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Ostrander, J.
(after stating the facts). Performance of the building contract would have given to the plaintiffs the structure called for, and would have cost them the contract price. Owing to the default of the contractor, there is no building, plaintiffs have paid no money, and it appears to be conceded that there are no attaching liabilities by way of liens or otherwise. It would seem reasonable that plaintiffs should have the advantage of their bargain, whether they ever get the house or not.
“The measure of damages for the failure of a contractor to construct a building is the reasonable cost of having the building constructed by another contractor less the contract price. Where a certain portion of the building is left undone the same rule applies ; that is, the increased cost of completion is the measure of damages for failure to complete. * * _ * If the building is left incompleted, it is immaterial that in its incomplete condition its value for purposes of sale is not lessened by reason of the work left undone; so, where the owner of a house which the defendant had failed to complete sold it in the condition in which the defendant left it, and there was no evidence that the price he received was less than he would have received if the defendant’s contract had been fully performed, he nevertheless was entitled to recover the cost of completing according to the contract.” 2 Sedgwick on Damages (9th Ed.), §648.
“In such cases the employer is generally entitled to measure his damages by what the necessary expense would be to procure to be done the work which the contractor neglected to do, whether it_ is done or not; for the same reason that a vendee in an executory contract for the sale of goods need not, in fact, pur chase the goods he was entitled to receive from the vendor in order to have his damages computed on the basis of what they would cost him at the time of the breach.” 3 Sutherland on Damages (3d Ed.), § 699.
Both text-writers refer to decisions supporting the rules stated in the text. In King v. Nichols & Shepard Co., 53 Minn. 453, 455 (55 N. W. 604), it is said:
“Upon such a contract as this, to wit, to put the machine in good repair and condition, it was not necessary that, in order to recover, plaintiff should himself put it in that condition. As soon as defendant failed to do what it agreed to do, plaintiff might recover the reasonably necessary cost of doing it.”
Where the employer had taken possession of an uncompleted building, and the contractor sued him, it was held that:
“Where a contract is nonapportionable, as this one is, and the plaintiff does not complete, as this plaintiff did not, his recovery must be upon the quantum, meruit. His measure of damages would be the reasonable value of the building as defendant took possession of it, not exceeding the contract price and the value of the extras, less what it would reasonably cost to complete it and make it comply with the contract and specifications.” Germain v. School District, 158 Mich. 214, 218 (122 N. W. 524, 526).
There are no opposed opinions upon the proposition that a defaulting contractor must respond in damages, although some judges have apparently had difficulty in formulating a rule governing the extent of liability in cases where the work is not completed. This apparent difficulty arises upon some notion of the remote, uncertain, or speculative character of the damages sought to be recovered. In Lamoreaux v. Rolfe, 36 N. H. 33, a case cited by appellant, the contract, which one of the parties wholly refused to-perform, was after breach relet to another, for an amount stated, but was never carried out. In a suit against the first contractor, this price agreed to be paid the second and subsequent contractor was relied upon as evidence of the damages plaintiff had sustained. It was held that, the defendant having absolutely refused to perform the contract, there was no reason why the plaintiff should wait any length of time before prosecuting for the damages, but that the price fixed in the subsequent contract, it never having been performed, was not evidence of the damages sustained. If it were otherwise, it was said, the plaintiff might by arrangement offer to pay, and the subsequent contractors offer to accept, any sum, with no intention of carrying out the contract. See, also, Bertram v. Bergquist, 153 Ill. App. 43. Reason and the weight of authority sustain the propositions, first, that plaintiffs are entitled to the benefit of their bargain, whether they do or do not build the house, and second, that the rule for determining the benefit was correctly laid down by the trial court.
It follows that the testimony of Newton concerning an intention to build at some time was, if wholly immaterial, not prejudicial to the defendants.
It was error to admit the notice of the building department as evidence of the condition of the structure at a, particular time. It was hearsay. The error was not prejudicial, because other competent testimony covered the same subject and is practically undisputed. Besides, the objection now made is not the one made upon the trial.
With respect to the testimonial qualifications of the witness Featherstone, it should be said that he gave no opinion of damages within the rule of damages given to the jury. As to what the house and lot would have been worth with the house completed according to specifications, he appeared to be competent to give, and did give, his opinion. He was competent also, apparently, to place a value upon the vacant lot. But as to the value of the completed house, he stated that he knew only what, or about what, contractors would ask for it, or would agree to build it for. While I think the testimony was of little probative value as affecting the real issue, and that no error would have been committed in striking it out, it may be safely said that it did defendants no harm.
1 Comp. Laws, § 414 (4 How. Stat. [2d' Ed.] § 11926), provides that:
“In cases tried in the circuit court in which such stenographers shall be engaged, sections one and four of an act entitled ‘An act to declare and establish the practice of charging or instructing juries, and in settling the law in cases tried in the circuit court,’ approved March twenty-sixth, eighteen hundred and sixty-nine, shall not apply.”
Said section 414 is the concluding one of an act entitled:
“An act to provide for the appointment and to fix the term of office, duties and compensation of circuit court stenographers in the State of Michigan” — being Act No. 183, Pub. Acts 1897.
The act of 1869, to which section 414 refers, is Act No. 67, entitled:
“An act to declare and establish the practice in charging or instructing juries, and in settling the law in cases tried in circuit courts.”
It is to be found in 3 Comp. Laws, §§ 10243-10246 (4 How. Stat. [2d Ed.] §§ 11837-11840). The first and last sections (1 and 4) read:
“Section 1. The people of the State of Michigan enact: That hereafter in all civil and criminal cases at law, circuit courts, in' charging or instructing juries, shall charge or instruct them only as. to the law of the case; and such charge or instruction shall be in writing, and may be given by the court of its own motion.”
“Sec. 4. The instructions or law so settled by the court in writing, either upon its own motion or upon the application of the respective parties, shall be read to the jury, filed in and be a part of the record of the case, and the court shall in no case orally qualify, modify, or in any manner explain the same to the jury.”
The legislature of 1869 .passed also Act No. 92, entitled:
“An act to provide for the appointment of a stenographer for the .circuit court for the county of Wayne, and other counties in this State, and to limit the operation of sections one and four of an act” — referring to Act No. 67.
This act may be found in 2 Comp. Laws of 1871, §§ 5027-5035, as amended by the Laws of 1871, Act No. 82, and in sections 6503 et seq., 1 How. Stat. (1st Ed.). It does not appear in the compilation of 1897. Its constitutionality was considered by this court in Sheahan v. Barry, 27 Mich. 217, 224; it being there contended that it embraced more than one object. It was held that Act No. 92 of 1869 was valid and effectual to relieve judges of the Wayne circuit court from the operation of section 1 of the act. It will be noticed that the title is broader than that of the act we now are considering, and that the court was of opinion that no duplicity was indicated in the title.
If the point now urged was for the first time presented to the court, some difficulty might be met with in holding that 3 Comp. Laws, §§ 10243-10246, were not binding upon all circuit courts. So late as the decision in Simons v. Haberkorn, 139 Mich. 130, 132 (102 N. W. 659, 660), it was said, generally, that these sections “declare and establish the practice in charging or instructing juries.” Of course, the question we are considering was not there involved. In People v. Quimby, 134 Mich. 625, 635 (96 N. W. 1061) the same justice who delivered the opinion in Simons v. Haberkorn said that a reference to the note under section 10246, 3 Comp. Laws, will show its provisions are not applicable where a stenographer is employed. In that case counsel was contending that his requests to charge, if they correctly stated the applicable law, should have been given as prepared by him. This right the court denied. In People v. Smith, 177 Mich. 358, 360, 361 (143 N. W. 12), an assignment of error was based upon the fact that the trial judge marked requests of counsel, “Refused, except as covered in the general charge,” instead of marking each as “Given” or “Refused.” It was said:
“We think what was done a sufficient compliance with the statute, in view of the fact that error may now be assigned upon the charge or refusal to charge, without the necessity of taking an exception.”
But in view of the decision in Sheahan v. Barry, supra, which was rendered in 1873, and the practice which has since then obtained in the circuit courts to disregard the provisions of sections 10243 and 10246, we are of opinion that the questions presented should be answered against the contention of appellant. If, however, the practice which the statute imposes was followed generally by the courts, there would be presented to this court fewer complaints of the nature of those hereinafter considered.
It is an exasperating thing, one which most trial lawyers have at some time had occasion to complain about, to have the trial judge say to the jury, “I am requested to charge you,” proceed to read a request, and end by so qualifying or amending it, with or without argument, that its force as a- declaration of the applicable law is weakened or wholly lost. The jury will usually understand by whom the request is preferred, and if several requests preferred by the same party suffer this fate, especially if they are contrasted with an unqualified, connected statement of rules favorable to the other party, dissatisfaction with an adverse verdict is to be expected. It is not that trial judges intend to be unfair, or intentionally depreciate the requests preferred by either party, though unfairness is often charged by the defeated suitor, but it is because, in the hurry of trials, no other course seems open to the effort to give so much of the requested law as. seems to the judge to be applicable, while refusing so much as is thought to be inapplicable or wholly wrong. It is against the supposed evils which may result from the delivery of qualified instructions, explained, or attempted to be, by argument on the part of the judge, that the statute, and especially the sections held to have been made inoperative by the later legislation, seems to be aimed. Very often counsel are partly or wholly to be blamed for presenting. requests so worded as to present contradictions and applicable and inapplicable rules, of law in the same request, or requests so numerous that the court can do no more than hurriedly examine them.
In the case at bar counsel for appellant say that at least 11 times, in giving and while reading from requests preferred by them, the court preceded the reading by the words, “I am asked to charge you,” that in one or more of these instances these words were followed by, “And I charge you,” which were omitted in other instances, emphasizing, it is claimed, those portions of the charge so designated, and in concluding the charge said:
“I have perhaps given a longer charge than I otherwise should, but the Supreme Court have said, so far as possible, the court should give the requests to charge in the language in which the counsel have written them, and for that reason, perhaps, I have given a longer charge than I otherwise would.”
Complaint is made also that the court, prefacing a request as above indicated, after reading it, said, in words or substance, “Now, doubtless that is so, but,” etc., or, “Undoubtedly that may be so, but,” etc.
Particular portions of the charge are called to attention in the brief for appellant showing claimed argumentative qualifications and modifications of requests, in which it is said inferences which were for the jury alone were drawn by the court. I shall not set out the requests or the charge as given. Some argument was indulged in by the court, and, if the statute which has been referred to were controlling, a reversal of the judgment would be inevitable. I have applied to the charge the test of repeated careful readings of it, and am impressed that the jury could not have misunderstood the court, that no improper rules were laid down, and, in the absence of a controlling statute, think that no reversible error is made to appear.
The judgment is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Ostrander, J.
Defendant Fordney presented against the estate of Marie M. Owsley, deceased, a claim for $22,547.06, based upon two written instruments. The executors of the estate thereupon filed their bill against him and the commissioners on claims, based upon the contention that the claim involved partnership matters or the matter of a joint adventure which can be fully disposed of only in a court of equity, and that the instruments themselves should be reformed. The answer of defendant Fordney denies the material allegations of the bill — the existence of a partnership, the right to reformation, the necessity for an accounting. In effect, it denies the jurisdiction of the court, but, if jurisdiction is retained, asks for affirmative relief. The decree recites that the parties have consented in open court to settle and determine in this suit all of the matters put in issue, and adjudges that the bill be dismissed, the complainants pay to Fordney a certain sum of money, the amount to be determined by a method of ■computation stated in the decree; that the undertakings evidenced by the written instruments be specifically performed; that complainants convey to defendant Fordney an undivided one-third of certain lands in California; and that upon the filing by the complainants of a certain bond the commissioners on ■claims be perpetually enjoined from passing on the .said claim and the probate court advised to proceed to administer and close the estate. The bond' was approved and filed in conformity with the terms of the decree.
The formal beginning and the recited inducement in one of the instruments above referred to is:
“This agreement made this thirteenth day of September, A. D. 1887, between Wilhelm Boeing, of the city of Detroit, Michigan, party of the first part, and Joseph W. Fordney, of the city of Saginaw, Michigan, party of the second part, witnesseth: Whereas, said second party has been instrumental in exploring, estimating, and purchasing with the moneys of the first party lands in the State of California, and has furnished his experience and part of his time to that end; and whereas, the lands, described below _ have been bought on the strength of said exploration at the price, including expenses as mentioned below, and said first party having furnished the necessary funds for the purchase of said lands, and has. taken the title thereto in his own name: said lands are in the State of California, and described as follows, to wit: * * * The total cost of the above-described lands this day is ninety-nine thousand eight hundred and twenty-four dollars thirty-seven cents ($99,824.37).
“Now, therefore, be it known, that said first party, in consideration of the sum of one ($1) dollar to him in hand paid by said second party, the receipt whereof is hereby acknowledged, and other considerations above refererd to, hereby declares, that he holds said lands for himself and said second party upon the agreement and understanding as follows, to wit:
“That said first party will deed and convey to said second party an undivided one-third (1/3) interest in said lands upon payment of one-third (1/3) of the cost thereof.^ An estimation of such cost will include purchase price, taxes, and assessments paid by said first party, with interest computed on all sums at the rate of seven (7) per cent, per annum; that such conveyance shall be made to said second party, upon the condition and provision that he shall not sell or transfer his interest in this contract or in said lands until he has first offered to sell and assign such lands or interest to said first party, giving him a reasonable time to accept or decline such offer, and all sales and transfer of said lands or contract by said second party shall be subject to the above stated and reserved right in the first party to purchase the same; and it is further understood and agreed that the said first party before selling said lands shall offer to sell and convey the same to said second party, giving said second party a reasonable time to accept or decline such offer. Said lands were purchased for the purpose of selling the same for mutual profit, and it is understood and agreed that all profits or losses made or sustained in the sale or disposition of said lands, or in defects of titles, shall be divided or paid by and between the parties hereto upon the basis of two-third (2/3) interest in said first party, and one-third (1/3) interest in said second party.
“This contract is executed in duplicate, each party holding an original copy, and it is agreed by the parties hereto that no assignment, sale, pledge, or transfer of the contract held by either of the parties mentioned herein, or transfer of the interest of either of the parties in the premises above described, shall be of any validity or force whatever, unless such as signment, sale, pledge, or transfer be made on the other contract held by the remaining party, and by his consent in writing indorsed thereon.”
The other instrument, designated in the bill Exhibit B, is in form and substance like Exhibit A, except that the parties of the first part thereto are Wilhelm Boeing and James T. Keena, who took the title in their joint names. It is charged in the bill that for many years previous to the execution and delivery of these contracts Wilhelm Boeing and Joseph W. Fordney had been engaged as partners or quasi partners in the purchase of timber lands in Michigan and elsewhere, Boeing furnishing the money, Fordney buying the land therewith, usually taking title in Boeing’s name; that Boeing paid the expenses of exploring, estimating, and acquiring the lands and the taxes and other expenses after they were acquired.
“That under the terms of said partnership, or quasi partnership, said Boeing was entitled upon the sale of the lands so purchased to a return of the purchase price, the taxes, and other expenses paid by him, and as a part of his contract was also entitled to interest thereon at the rate of 7 per centum per annum, compounded annually; that after the payment of said purchase price, taxes, expenses, and compound interest as aforesaid, said Boeing and Fordney shared in the loss or profit, as the case might be, in the proportion of one-third to the said Fordney and two-thirds to the said Boeing; that said Fordney and Boeing in the conduct of said business acted as agents for each other and for both; that there was a community of interest in both profits and losses, and that there was a community of interest in the land purchased as aforesaid.
“That your orators have been unable to find any written articles of partnership between said partners, or quasi partners, but that it was the usual custom of said Boeing and Fordney, after a series of purchases of timber lands as aforesaid, to make a written •agreement between themselves with reference to the lands thus previously purchased, all of which agreements were similar, or substantially similar, in character to said Exhibits A and B hereto attached; that such agreements, however, as your orators are informed, believe, and charge, did not set forth and did not pretend to set forth all of the contract relations between said Boeing and Fordney in the purchase of said lands.
“That from time to time during the course of said partnership dealings, both before and after the execution and delivery of said Exhibits A and B, said Boeing and Fordney had numerous settlements between themselves _ as to such partnership or quasi partnership, and in every instance said settlements were made upon the basis of the allowance to said Boeing, as a part of his said profit, of interest at seven per cent, per annum compounded annually.
“That, as your orators are informed, believe, and charge, said Fordney began making purchases of land described in said Exhibits A and B some time in October, 1886, or nearly one year previous to the execution and delivery of said contracts; that said Fordney went to California and purchased such lands as he saw fit, the money being furnished from time to time and sent to him by said Boeing in advance of such purchases; that said Boeing remained in Detroit the entire time that said purchases were being made; that said California purchases were made beginning some time in October, 1886, and extended over a period of from eight to ten months, and the land was purchased from 15 or 20 different owners; that during this period said Boeing sent to said Fordney in California, for the purpose of said partnership or quasi partnership purchases, more than $160,000, substantially all of which was used by said Fordney in said partnership or quasi partnership business.
“That the lands set forth in said Exhibit B were purchased by said Fordney in the same manner as those described in said Exhibit A, the money being forwarded to said Fordney by said Boeing, but said James T. Keena was permitted to contribute to the purchase of and was given an undivided one-third interest in the lands thus purchased, the consideration paid by said Keena amounting to $20,000, or thereabouts; that, notwithstanding this fact, said Boeing and Fordney, as between themselves, included their interests in these purchases in and as a part of their general partnership transactions and dealings, and as a part of their partnership assets.
“That said Wilhelm Boeing during his lifetime carried said lands set forth in said Exhibits A and B, paying all expenses and taxes and other charges thereon, subsequently collecting from said Keena his pro rata thereof, so far as the lands described in said Exhibit B are concerned.”
The bill then charges the death of Boeing in the year 1900, before which time he conveyed to his wife, Marie M. (now Owsley), also since deceased, .the lands in the agreements mentioned; that after the death of Boeing his widow, Marie, executed to Fordney two certain declarations of trust with reference to said lands to protect said Fordney, “and without intending, as your orators are informed, believe, and charge, to change or modify the original partnership or quasi partnership agreement with reference to said lands;” that the widow, during her lifetime, continued to pay taxes and other charges and expenses concerning the lands.
“That in February, 1894, a portion of the land included in said Exhibit A was sold for $30,000 cash; that on April 20, 1904, another portion of said land described in said Exhibit A, and all of the land described in Exhibit B, was sold upon land contract for $333,333.33, $100,000 of which was paid in cash, and notes for the remainder therefor, the last of which notes were paid shortly before presentation of the claim of said Fordney against the estate of Marie M. Owsley; that there yet remains a large amount of said partnership or quasi partnership lands (in the neighborhood of 1,200 acres) described in said Exhibit A, unsold, the legal title thereto remaining in said Marie M. Owsley until her death as aforesaid.
“That the present claim of said Fordney arises out of a dispute between said Fordney and said estate as to the amount of interest chargeable against said partnership land as a part of the cost thereof; that said dispute arises through a mutual mistake made by said Boeing and Fordney in the drafting of said Exhibits A and B; that it was the intention of both of said partners, or quasi partners, to provide in said contracts for payment of interest at 7 per cent, per annum, compounded annually, but that, through'the error of said copartners, said agreement having been drafted by said Wilhelm Boeing himself, who was not a lawyer, the provision for interest was made to read, 'Seven per cent, per annum,’ and failed to set forth and express the full intent and meaning of the parties with reference to interest as aforesaid; that said Wilhelm Boeing, in his lifetime, and said Marie M. Owsley, during her lifetime, at all times treated said agreements upon the basis that they provided for compound interest, and in the books of account in which the accounts of various partnership lands were kept charged said lands with interest compounded semi-annually; that your orators are informed, believe, and charge that said Fordney at various times, and in various ways, in his negotiations with said Wilhelm Boeing, and afterwards in his negotiations with said Marie M. Owsley, treated said partnership lands and said contract upon the basis that compound interest was properly a part of the cost of said lands; that it was not until recently, after the death of both the said Wilhelm Boeing and said Marie M. Owsley, that he made any different or other claim.
“That, if interest compounded annually is a proper charge against the cost of said lands as a part of the profit of said Wilhelm Boeing, then the entire cost of said lands has not yet been repaid, and there remains in the neighborhood of $40,000 due to said estate of Marie M. Owsley, but that, if simple interest only can be considered as a part of said cost, then the profit of said Wilhelm Boeing as represented by interest will have been fully paid, and there will remain of the partnership assets, in addition to unsold lands, something like $14,000 in cash, and it is upon the latter basis that said Fordney has presented his claim against said estate, and upon the theory that he is now entitled to be paid said sum. * * *
“That your orators also represent that, so far as said Keena is concerned, all of the lands in which he was interested are disposed of, and they are informed, believe, and charge that all matters in which he was interested, both as between him and said estate and between him and said Fordney, have been amicably settled and adjusted, and for that reason he is not made a party to this suit.”
As stated by complainants and appellants, the issues are:
(1) Considering the relation of the parties, is the original cost of the land, including taxes, expenses of carrying same, chargeable with simple or compound interest?
(2) If with simple interest only, should the computation be upon the basis of the Connecticut or the Massachusetts rule?
Mr. Fordney was a witness in his own behalf. Objections were made to portions of his testimony upon the ground that the facts related were equally within the knowledge of Mr. Boeing, or were equally within the knowledge of Mrs. Owsley. In the brief for appellants the point is stated, with a citation of authorities and reference to the statute, but no application of the rule contended for in the objections and In the brief is made. That is to say, counsel for appellants have not pointed out what facts relied upon by defendant would remain not proven if the rule is enforced. On the contrary, the statement of facts which they present is unquestionably based, in part, upon testimony of Fordney about facts equally within the knowledge of either Mr. Boeing or of his assignee, Mrs. Owsley. In the brief for Fordney, it is said upon this subject, among other things:
“It seems to us upon this record to be of comparatively little consequence to Mr. Fordney whether his testimony is excluded or considered, but what we object to is that complainants should use his testimony, and likewise the inadmissible ex parte and unverified statements of Wilhelm Boeing, deceased, to support their case, and at the same time claim that Mr. Fordney can have no benefit from his testimony because of the statute.”
This statement is followed by references to portions of the record which, it is said, show that complainants are relying upon Fordney’s testimony. • In the reply brief for complainants it is said:
“It is a matter of indifference to us whether Fordney’s testimony is considered by the court or not. On the whole, it is rather more favorable to us than otherwise. Through the zeal of counsel, plainly incompetent testimony has been injected, which a chancery judge was helpless to exclude. Despite our objections and refusal to cross-examine, it is in the case. We feel justified therefore in referring to this testimony until it shall have been finally passed upon. It merely serves in important particulars to confirm our own testimony, which necessarily was made up in large part from ancient records, documents, statements, back accounts, correspondence, etc.”
This being the general attitude of counsel (there are one or two specific portions of testimony and its effect about which there is argument), I do not feel called upon to critically examine the testimony of Mr. Fordney, ascertain to what extent it should be rejected, and determine the effect of rejecting any of it. I am the better satisfied to do this because I am impressed that, with or without the objectionable testimony, the decree dismissing complainants’ bill must be affirmed.
Mr. Boeing and Mr. Fordney were for many years associated together in the business of buying, holding, and selling lumber and timber, and they purchased and disposed of a large number of tracts of land, bought with money furnished by Boeing, who paid the expenses of the purchases and the accruing taxes. It is the theory of complainants’ bill that underlying the relations which existed between them was a parol agreement which, if correctly interpreted, and legally enforceable, bound them, as partners, or as joint adventurers (and bound Mrs. Owsley as Boeing was bound), to certain specific things, among them the one that in their settlements and divisions of profits and losses the cost of a particular purchase of lands should be augmented by interest computed at the rate of 7 per cent, per annum upon the original cost and upon the expenses and the taxes paid, and compounded annually. Such an agreement is not evidenced by general articles or by any written contract or memorandum involving any particular purchase or adventure. Indeed, it is negatived by every one of the many memorandums or agreements formally made and executed by the parties in interest. But it is claimed that such an agreement is evidenced by the correspondence and the uniform conduct of the parties, who kept accounts and settled and distributed profits and losses of their various adventures according to the original and underlying agreement. It appears that the parties made many contracts similar to those directly involved in this suit, which reserved to Mr. Boeing interest at 7 per cent, per annuir upon sums paid out by him to make and to carry purchases of land and timber; that none of them in terms reserves interest to be compounded; and that in every instance, when the lands were sold, compound interest was, in fact, taken by Boeing as a part of the cost of the land or timber. Upon such a basis settlements were uniformly made, and the method of computation was, apparently, never questioned. For an example, contract Exhibit 5, relating to a purchase and holding of Michigan lands, contains the following agreement of Mr. Boeing “to account for and pay to said second party,” Fordney—
“One-third (1/3) of the proceeds of such sales, after deducting from said proceeds the original cost as above to said first party of said lands and annual interest at the rate of 7 per cent. - on such cost, together with the amount and interest thereon paid by said first party for taxes on said lands.”
Mr. Boeing kept two accounts of his land business with. Mr. Fordney, neither of them in the form of a partnership or of a mutual account. One account he kept with the land, showing its cost, with interest compounded annually; the other an account of cash transactions with Fordney, in which he charged Fordney with one-third of the cost of the land only after a sale had been made and a settlement and division was due. In both he deals as with his own land and his own funds. He, Boeing, is owner of the lands and of their proceeds, and, as he disburses money to purchase lands, so he disburses the proceeds when lands are sold. Fordney kept an account with Boeing. Their accounts agree, or were made to agree, upon conference and examination. Fordney was usually indebted to Boeing as the account shows. But there is nothing in the accounts, or in the manner in which they were kept, to indicate a general partnership or any relation other than the one repeatedly evidenced in the written contracts they made, each of which concerned a particular tract or tracts of land, the original cost of which was stated and the division of proceeds provided for substantially as above set out. There is evidence in the contracts themselves which tends to disprove the existence of a general parol partnership or other agreement of the parties under which the California lands were purchased. In the contracts relating to Michigan lands, losses which may occur are not mentioned. In those relating to the California lands — those here involved — there is a provision that losses shall be shared as profits are shared. In the Michigan contracts it was provided that, if Fordney found a purchaser at a price which suited him, and did not suit Boeing, then, on a release by Fordney, Boeing was obligated to account to him for his one-third interest on the basis of the price proposed. In the California contracts it is provided that Boeing will deed an undivided one-third interest in. the land to Fordney, upon payment of the cost thereof, upon certain conditions. Whether they were partners or were joint adventurers, there is no objection to enforcing an agreement reserving compound interest to Mr. Boeing on account of his cash contributions, if such an agreement existed. The evidence of such agreement, and the only evidence, is the fact that Boeing always took it; that Fordney did not object; that he himself thus made some computations of the cost of land; that he approved, or at least did not question, such a computation made by the executor of Mrs. Owsley’s estate, showing the cost of some or all of the California lands which are embraced in the particular contracts involved in this suit; this in the face of the plain provision for interest agreed to by them in the written contracts which they made. I think there is but one reasonable explanation of the matter, which is that Mr. Boeing, who himself prepared many of the contracts, supposed, and that Mr. Fordney supposed, that the reservation of interest— namely, “annual interest at the rate of 7 per cent.”— meant interest computed annually and annually added to the sum drawing interest. This, indeed, is the effect of Mr. Fordney’s. testimony. The California lands were purchased in 1886 and 1887. After that time, and before the death of Mr. ■ Boeing, he and Mr. Fordney made at least 29 adjustments respecting other properties upon the basis of adding to the cost of the land compounded interest. Upon the contracts involved in this suit the right to do this was first questioned by Fordney. Although lands were bought and sold in a few instances which were never made the subject of a written memorandum of agreement, and although in such cases settlements were made as they were made when written agreements were entered into, I am not satisfied that complainants have proven any general, independent agreement of Boeing and Fordney. On the contrary, I am impressed by the fact that in most cases — always when there was opportunity to do so — a written memorandum of agreement with respect to particular purchases was made which contains, by recital and otherwise, a complete statement of the relations of the parties. It was to the written contracts that they looked for a statement of their mutual rights and obligations, and it is to them that the court must look.
Unless Mr. Fordney is estopped to insist upon performance of the particular contracts according to their plain terms, they must be so performed. The suggestions of counsel upon the subject of estoppel have all of them been examined, and, I think, must be all of them rejected. That Mr. Boeing borrowed large sums of money for these operations and paid interest thereon at short intervals would furnish some reason for his exacting compound interest if he had done so. But Fordney’s knowledge that Boeing so paid interest is not of itself sufficient to estop Fordney to claim the benefit of the contracts. I have considered carefully the suggestion that Boeing made the considerable investment in California lands and carried it for years, relying upon his right to eventually treat the cost of them as including compound interest. But the contracts are before us, executed with formality, unambiguous in their terms. It is of their very essence, that they separate the particular transactions from all others. It does not appear that Fordney did anything with respect to them which affected, injuriously or otherwise, the conduct of the other interested party or parties. He did not protest when he learned how Boeing computed the cost of lands. He even gave Boeing his note in 1889 for a balance which was undoubtedly made from computations which included compound interest.
It is said there was a mutual mistake in drafting the contracts, which should therefore be reformed to accord with the intention of the parties. I find rather that Fordney assented to Boeing’s construction of the terms of the contracts until advised of their true legal effect; that he understood, until correctly advised, that by the terms of the contracts Boeing had the right to compound the interest. The decree dismissing the bill must be. affirmed.
As to the method of stating the account. The effect of the decree is to charge Fordney with his proportion of the cost of the land, including principal, expenses, and taxes paid, with interest at 7 per cent, per annum until October 20, 1911. He is credited his proportion of moneys received for sale of the lands as of the date when it was paid and interest thereon at 7 per cent, to October 20, 1911. Upon the balance to be struck he is allowed interest at 5 per cent, from October 20, 1911 (it is said in the brief that this date should be November 19, 1911). Complainants declare this method to be absurd, and say that, if compound interest is not chargeable, then the computation must be made upon the basis of the Massachusetts rule, “and not upon the basis of the Connecticut rule, which is the rule stated in the decree.” For defendant Fordney it is said that the Massachusetts rule is followed in the decree as far as it is applicable;' that there was nothing either of principal or interest due when some of the land was sold in 1894, nor when partial payments were made from time to time upon the final sale, and consequently nothing to apply these payments to. Perhaps some confusion has resulted from the attempt to separate Mr. Fordney’s interest and deal with that, instead of dealing with the fund as a whole. It is a somewhat laborious, but not difficult, matter to ascertain what the land had cost Mr. Boeing and his successors at any particular time. Each sum of money invested and interest upon it from the time it was invested, beginning with the sums stated in the contracts, is what complainants have at all times had the right to take — to repay themselves. The remainder is profit, and Mr. Fordney is entitled to one-third of it. In February, 1894, some of the land was sold for $30,000. To this extent the interest-bearing investment ought to be reduced, and is, in effect, reduced, when complainants are charged this amount in the account, with interest on it at 7 per cent. In April, 1904, more of the lands were sold, and for a price which more than equaled the sum invested and interest. The sum of $100,000 cash was paid April 20, 1904. Further payments were deferred, with interest at 4 per cent., and were made at various times from March, 1905, to November, 1911. But I perceive no reason for continuing the Boeing investment, as against Fordney, after April 20, 1904. Granting that up to that time Boeing had a 7 per cent, investment in the lands, it was an investment for the purpose only of securing to himself and Fordney a profit when the lands were sold. The lands were sold. The investment should be regarded as then and there paid with whatever was accepted for the purchase price, and the profits ascertained and distributed as of that date. In short, the parties should now do what they might have done April 20, 1904 — use the money and sufficient of the securities first maturing to repay Mr. Boeing, and divide the remainder of the securities and the land. If, as I assume, complainants have received the entire sum then unpaid, with interest, they should account to Mr. Fordney for it precisely as though they had acted as collecting agents for him. As I find no evidence of their withholding the money so collected against his demand therefor, no interest will be charged to complainants on account of it before October 20, 1911, from which time any balance in Mr. Fordney’s favor will draw interest at 5 per cent, per annum. If either party has paid out money for the benefit of the other on account of the unsold lands since April 20, 1904, the account to be stated must take care of it.
A decree may be prepared in accordance with this opinion, and will be entered in this court. Defendant Fordney will recover the costs of his appeal against the executors, appellants.
Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Osteandee, J.
Testimony for the plaintiff tended to prove that while she was riding in a sleigh the foot of one of the horses went through a bridge in a highway in defendant township, the horse fell, and she, in consequence, fell or was thrown out of the sleigh, sustaining injury. In the trial of the action which she brought against the township, and in which she recovered, numerous exceptions were taken by defendant, many of which, with objections to the charge given, are urged here as ground for reversal of the judgment. Plaintiff’s injury was received February 27, 1913. ■
An unusual difficulty attends upon any examination of the record, a difficulty to which the attention of counsel for appellant was directed at the hearing. In the record is found no index showing the page of the record where an exception may be found. Indeed, it does not appear by the printed record that a verdict was returned or judgment entered. Aside from this, and of more importance, because the court desires to learn and seeks the aid of counsel in determining the precise questions, which are presented and opposing counsel are required to meet only such points as are urged here, the brief for appellant does not at all conform with the provisions of Supreme Court Rule 40. The statement of facts presented does not indicate that there was any issue of fact raised by testimony. The questions involved and the manner in which raised are not presented distinct from argument, nor at all except as they may be discovered, mainly by the process of deduction, from the argument.
There is one assignment of error (the twenty-first) which is based upon the charge as given, which appears to have merit and which may properly be considered. The portion of the charge referred to reads as follows:
“In that respect I am requested to charge you by defendant’s counsel in their third request: ‘To charge the defendant township with constructive notice in this case the plaintiff must show by a preponderance of the evidence: (a) That the bridge in question was not reasonably safe and fit for public travel on the 27th day of February, 1913. (b) That its. unsafe condition was of such a character as to be clearly obvious and such as would attract and arrest the attention of persons passing over it in the daytime, and that the township permitted it to remain in such condition and neglected for an unreasonable length of time to repair it.’
“Now, gentlemen, I give you that charge, but with some modifications. I say to you that that is the rule except to this extent: that the highway officials whose duty it was to keep this bridge in reasonable repair would be bound to take perhaps a little more notice of it as they passed over it than the ordinary passer-by would, and if they discovered at any reasonable time before this accident happened that there was a condition in this plank, a rotten condition, or a hole was beginning to appear in it, which would lead an ordinarily prudent man to see that it might grow larger, then it would be the duty of the township officials to go further and make some inspection of the plank and find out to what extent the rot had affected it and take some steps then, if it was necessary, to repair it before the hole in it did grow larger so that an accident would happen.
“I don’t mean to imply by that charge that there is any evidence that any officer did see it, because I don’t understand that there is, but I tell you this as the law governing the case, so that if you find that it had existed there long enough so that in the ordinary course of events officials of the township going over it did see it, or should have seen it, provided it was obvious enough so that an official in going over it, keeping in mind his duty to look after the bridges in Ms townsMp, should have seen and discovered it, then that would be such notice to the township as would require them to act and to cause the bridge to be repaired within a reasonable time thereafter.”
Under the statute, actual or imputed knowledge or notice to the township of a defect in a highway or bridge is necessary to establish liability for injuries received on account of the defect. Act No. 283, Pub. Acts 1909. 2 How. Stat. (2d Ed.) § 2463. Assuming, as the trial judge did, that proof of actual knowledge, or of actual notice, was wanting, and that the question submitted to the jury was whether knowledge of the defect in question should be imputed to the defendant, it is a serious question whether the court correctly .stated the governing rule. The rule itself is simple ■enough, and has many times been stated by trial courts .and by this court. It is the phrasing of the statement, in applying the rule to the facts of a particular case, which has varied.
The testimony tended to prove that the defect complained about was a hole in a plank in the flooring of the bridge, and that it was caused by the exposure of the plank to the weather and to travel, by decay. The bridge spanned a drain or ditch, the span being about 10 feet and the width of the bridge 16 feet. It was a steel bridge floored with oak plank and had been built about 10 years. The highway was considerably traveled. Evidence of some decay of the plank appeared in the autumn of 1912, and was noticed by various travelers during a period of from four to six weeks before the plaintiff was hurt. Some of those using the highway saw it and some did not. It is described variously as an opening or decayed portion from 12 to 16 inches long and from 2 to 3 inches wide 3 feet or more from the end of the plank and in a part of the plank which came from the heart of the tree. Plaintiff’s son, who with his wife was with plaintiff on the occasion of her injury and drove the team, drove over the bridge three times a week, and had never noticed a hole in it. He described the hole, after the accident, as from 3 to 4 inches wide and from 1% to 2 feet long — wider in some places than in others. It was not a defect which disturbed any traveler so much that, so far as appears, he notified any officer of the township thereof. Defendant produced the overseer of highways and the highway commissioner, but they were both dismissed, with questions indicating the offices held by them. It may be said that the testimony does not tend to prove that the defect was a glaring or obtrusive one, although in some stage it had been noticed by passers-by for two months and perhaps a longer time. The testimony tends to prove that the supervisor passed over it in January, 1913, but whether at that time the bridge was covered with snow or not is not clear. Otherwise the testimony does not tend to prove that any officer of the township passed that way while the hole was noticeably in existence. It does not appear that any other defect in the bridge existed, nor when repairs were last made, if the bridge had been repaired, nor when, if ever, it had been inspected. It is proper to read here the portion of the charge preceding that already set out, the two portions comprehending all that was said in the way of stating a rule by which to determine whether the township had notice:
“Now you will notice that I said to you that the township must have either notice or knowledge of the defect a reasonable time after that in which to repair it. Now I charge you as a matter of law that there is no evidence in this case that the township had actual notice or knowledge of the defect in this bridge; that is, no one has sworn that they went and told any highway officer that it was there, or that they saw any highway officer looking at or discovering it, but the plaintiff claims that she has shown such a state of facts here as charges the township of Washington with notice of the condition there. That is what is sometimes called constructive or presumptive notice. And in that respect I charge you that it is for you to say whether or not this hole in the bridge was of such size and character and had existed for such length of time as. would charge this township with knowledge of it; that is, charge its highway officers and officials whose duty it is to keep the highway in repair with knowledge of the fact that it is there.
“You have heard the evidence as to the length of time when the hole had existed, or existed to some extent; I don’t mean to say that it existed the same size all this time, but the evidence has been given here as to when any one first discovered any hole in the plank or rotten place there, and what they discovered from that time on, and it is for you to say whether or not if people who passed over the bridge saw the hole there, whether or not the officials of the township did see it, or should have seen it during that time, or should have found it.”
In the opinion of the majority of the court handed down in Thomas v. City of Flint, 123 Mich. 10 (81 N. W. 936, 47 L. R. A. 499), in February, 1900, appears an exhaustive review of cases to that time decided by this court, in connection with an interpretation and construction then put upon the controlling statute with respect to the notice which is a condition of liability. Of the law of 1887, which so far as the subject here involved is concerned is not different from the present law, it was said:
“It will be observed that this language implies that a municipality can only be held liable for injuries through defects of which it had notice or knowledge. As this was the substantial change made, we must conclude that mere neglect was not thereafter to be enough to create a liability, and that the new act required, not only proof of negligence in permitting the defect to exist, but also knowledge or notice of its existence, and an opportunity to remedy the defect after such notice or knowledge. The pointed language of the act forbids any other construction, and we-should expect to find that thereafter proof of notice or knowledge was held indispensable. We will examine subsequent cases.”
In concluding the opinion it was said:
“From this review of the cases, it seems manifest that the plain provisions of the law óf 1887 have been kept in view by the court, and that while some allusions to the case of Township of Medina v. Perkins may, at first blush, appear to have committed the court to a broader rule of liability than the language of the statute contemplated, an examination of the questions at issue and decided in the respective cases will show that this is not so. The law undoubtedly makes it the duty of municipalities to keep their streets, etc., in good repair, but it does not follow that there is a liability for a neglect of that duty. That duty has existed ever since Michigan has been a State, but, as already shown, there was no such liability for many years. Legislation was necessary to create it, and it follows that the liability extends no further than the statute requires. The act plainly limits liability to a case arising after knowledge or notice of the defect causing the injury, whether such defect exists by reason of the negligence of the municipality or not. There was doubtless abundant reason for such a proviso in the statute in the well-recognized facility with which injured persons shift the responsibility for accidents upon the public through the medium of charitably inclined juries. . At all events, the law is plain, and we should not hold that a city or township is liable because it negligently omitted an inspection, when the legislative intention to limit recovery to cases arising from known defects is clear.
“We do not mean to be understood as. saying that notice or knowledge may not be inferred from circumstances such as the existence of an obvious defect for a period which renders a want of knowledge improbable. It has often been said that the law will presume that the municipality has notice of defects, which common observation for a long time has made notorious. This has been called ‘constructive notice,’ but it has often been said that the rule does not extend to latent defects, as I have shown. To say that a neglect to inspect is actionable is to nullify the statute.”
See, also, Pearl v. Township of Benton, 123 Mich. 411 (82 N. W. 226); s. c., 136 Mich. 697 (100 N. W. 188); Hunter v. Village of Ithaca, 141 Mich. 539 (105 N. W. 9.)
Recurring to the charge, it will be perceived that the point at which the request of counsel for defendant was aimed was a rule according to which, and the facts found by them, the jury might • determine whether the defendant, within the meaning of the statute, had had notice of the defect. Whether defendant was or was not entitled to an instruction more favorable than the one requested, the court gave it, but with modifications which left no semblance of it remaining. The infirmity of the instruction given lies in this: That it implies that township officers when crossing bridges should observe what ordinary travelers would not. It introduced to the jury a condition of things which the testimony negatived. There was no occasion to point out the duty of an official who passed over the bridge and saw the defect, because it did not appear that any such official had observed the defect. Was it so obvious a defect;, had it existed for so long a time, or was it so notorious, that notice of it may be presumed to have come to the authorities? This was the question to be answered by the jury. One or more of the things stated must have existed in order to charge the township with notice of the defect, in the absence of actual notice. In the portion of the charge last quoted, the last two ultimate facts stated, namely, whether the officers of the township “should have seen it,” or “should have found it,” were neither of them facts upon which, upon this record, the liability of the township could be predicated. Reading the whole of the charge upon this subject together, it nowhere limits the jury to the consideration of what may be properly considered in determining whether the defendant had constructive, or presumptive, notice of the defect. On the contrary, it is calculated to lead to speculation and to wrong conclusions.
For this reason, the judgment must be reversed and a new trial granted.
Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Bird, J.
The township of Monguagon, Wayne county, is divided into nearly two equal parts by the west channel of the Detroit river. A petition signed by the requisite number of freeholders residing in the township was filed with the board of supervisors to organize into a new township that portion lying east of the channel, which is commonly called Grosse Isle. Favorable action thereon resulted against the objections of the petitioner, and he thereupon obtained a writ of certiorari from the circuit court to test the validity of the proceedings. The proceedings were sustained by the circuit court, and this court is now called upon to review them.
The first question raised is that the petition contained the names of none of the freeholders of the township who resided west of the channel. The question, therefore, which this objection presents is whether, in the division of one township into two, it is necessary that the petition shall be signed by 12 freeholders of the territory seceded from, as well as 12 freeholders of the seceding territory.
The statute which controls such cases provides that such petition shall be upon the application “of at least 12 freeholders of each of the townships to be affected by the division.” Act No. 3, Pub. Acts 1913. Of course, it is clear that, if the territory proposed to be organized into a new township were carved out of two or more townships, the petition would have to be signed by 12 freeholders from each township, and, by analogy, it is argued that, where the territory of the proposed township is taken wholly from the territory of one township, 12 freeholders from the part left, as well as the part taken, are necessary to confer jurisdiction. See Scrafford v. Supervisors, 41 Mich. 647 (2 N. W. 904). While it might have been in the interest of fairness for the legislature to have so provided, we are satisfied from the language used they did not so provide, and, if we should so construe the act, we would be obliged to read something into the statute which is not there.
It is further contended that the proceedings are void, because no provision was made by the board of supervisors for the collection of taxes in the new township. We think this objection is fully answered by Act No. 290, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 6293), which provides for just such an exigency.
The final point argued is that the proceedings are void because the board of supervisors has power only to change the boundaries of a township which has been organized by a special act of the legislature or by action of the board of supervisors. It is argued that the boundaries of Monguagon were fixed by neither; that they were fixed by the territorial council in 1827, and therefore they cannot be disturbed under this act. Prior to 1911 boards of supervisors had power to change the boundaries only of townships which had been fixed by them. Harrison v. Supervisors, 117 Mich. 215 (75 N. W. 456). Act No. 96, Pub. Acts 1911, was evidently passed to change the law in this respect, and to give the board a wider jurisdiction. It was therein provided that boards of supervisors should have power to change the boundaries of any township, “whether the boundaries of such township may have been fixed theretofore by a special act of the legislature or by action of the board of supervisors.” See Acts 3 and 4, Pub. Acts 1913. We think this language, fairly construed, includes townships whose boundaries were fixed by the territorial legislature, as well as those fixed by the State legislature.
The order of the circuit court quashing the writ of certiorari is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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] |
Brooke, C. J.
Plaintiff herein sued defendant to recover the sum of $20.10 alleged to have been collected under an unlawful sidewalk assessment and for $11.15 for work done for defendant in grading in front of plaintiff’s house in the village of Brooklyn. The case was tried by the court without a jury. No requests for finding of fact or law were made by either party. The court filed a written opinion in which he said:
“As I am unable to find that the village acted with out jurisdiction in respect to this sidewalk, and as the jurisdictional question has been submitted by counsel as the fundamental one in this case, it follows that judgment must be entered in favor of the defendant, the village of Brooklyn, together with its costs to be taxed.”
This opinion was filed on the 3d day of March, 1914, and judgment entered thereon. No requests fori amendments to the opinion filed were made by either party. No exceptions were made, taken, or filed to the opinion and judgment filed by the court. On July 7, 1914, plaintiff made a motion for a new trial, assigning 35 specific reasons therefor. That motion was overruled by the court, to which ruling the plaintiff duly excepted. Plaintiff now assigns 64 errors on the refusal of the court to grant his motion for a new trial.
Circuit Court Rule No. 26, subd. “c,” provides:
“Within four days after the filing of such completed finding (or such %other time as may be allowed by the court), any party aggrieved may briefly, in writing, allege exceptions to the matters of law embodied in such finding, and such exceptions shall be thereafter put in form and settled in the same bill, which may contain the exceptions taken during the trial, and in the same manner with bills of exceptions in other cases.
“(d) The finding of the facts by the court shall be treated in all respects as a special verdict, and error may be alleged that the same does not support the judgment, as on a special verdict; but no ruling of law embodied in such finding can be reviewed except on exceptions, or on a case made as provided by statute.”
In the case of Nichol v. Ward, 156 Mich. 136 (120 N. W. 569), it was said:
“The case was tried before the judge without a jury. * * * No objection was made, and no exception taken, to the admission of testimony. At the conclusion of the testimony a motion was made to dis miss the case. No request was made for special findings of fact and law by the judge. He took the motion under advisement, and later rendered the judgment before stated. No exceptions were taken to the rendition of judgment. No special findings of fact and law have been made. The record does not comply with Circuit Court Rule 26. There is nothing in this court to review.” Haines v. Saviers, 93 Mich. 440 (53 N. W. 531); and Robards v. Waterman, 96 Mich. 233 (55 N. W. 662).
The assignments of error based upon exceptions taken to the denial of a motion for a new trial cannot be considered where, as in the case at bar, there has been an absolute failure to comply with the rules of the court.
The judgment is affirmed.
McAlvay, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Stone, J.
This action was brought by the administrator of the estate of Ernest E. Clark, deceased, against the defendant, to recover damages for the alleged wrongful death of plaintiff’s decedent. Mr. Clark died as a result of injuries received in a collision near North Concord, Jackson county, on November 12, 1912, on a line of the railway operated by defendant, he surviving about two hours after the accident. Plaintiff’s decedent was acting in the capacity of an' express messenger in charge of express matter of the United States Express Company, in a car carrying express which met in a head-on collision with an express car at the point first stated.
To a declaration alleging negligence of defendant in the operation of its cars, the defendant pleaded the general issue, and gave notice thereunder, in part, as follows:
“This defendant will further show that prior to the time of the accident upon which the claim of this suit is based that the said plaintiff’s decedent herein had made application to the express company, in writing, for employment by it as an agent or express messenger, and that, in pursuance to said application, he was, prior to and at the time of the collision, employed by the express company under a contract in writing between said Clark and said express company, by the terms whereof he did assume all risk of all accidents and injuries that he might sustain in the course of said employment, whether occasioned by negligence, or whether resulting in death or otherwise, and did undertake and agree to indemnify and hold harmless the said express company for any claims that might be made against it arising out of any claim or recovery for any damages sustained by him by reason of said injuries, whether such injuries resulted by reason of negligence or otherwise, and did ratify all agreements made by the express company with any transportation line, namely, the Michigan United Railways Company, and its lessee, the Michigan United Traction Company, in which said express company had agreed, or might agree, that the employees of said express company should have no claim for injuries sustained in the course of their employment upon the line of said transportation company.”
Plaintiff’s decedent first entered the employ of the United States Express Company as a driver at Jackson, Mich., in 1906, under the terms of a written contract of employment, signed by himself and the authorized agent of the express company. He signed a printed form of application, which application bore the following heading:
“United States Express Company.
“Application for Employment.
“I apply for employment by the United States Express Company, and for that purpose have made and signed this application in my own handwriting.”
He then states his full name, his residence, place and date of birth, parents’ names and residence, the names of his last employers, with the terms of employment, with certain references to individuals and their addresses. The printed application signed by him contained the following language:
“I also state and agree, as-terms and conditions of my employment, as follows: * * * I understand that I may be required to render services for the company on and about the railroad, stage, and steamboat lines used by the company for forwarding property, and that such employment is hazardous. I assume the risk of all accidents and injuries that I may sustain in the course of my employment, whether occasioned by negligence, and whether resulting in my death or otherwise. I agree to hold the company harmless from any and all claims that may be made against it arising out of any claim or recovery on the part of my self, or my representative, for damages sustained by reason of my injury or death, whether such injury or death result from negligence or otherwise. I agree to pay to the company, on demand, any sum which it may be compelled to pay in consequence of any such claim. I will execute and deliver to the corporation or persons owning or operating the transportation line upon which I may be so injured a good and sufficient release under my hand and seal of all claims, demands, and causes of action arising out of any such injury, or connected with or resulting therefrom. I ratify all agreements made by the company with any transportation line in which the company has agreed, or may agree in substance, that its employees shall have no cause of action for injuries sustained in the course of their employment upon the line of such contracting party, and I agree to be bound by each and every of such agreements, so far as the provisions thereof relative to injuries sustained by employees of the company are concerned, as fully as if I were a party thereto. The provisions of this agreement shall be held to inure to the benefit of any and every corporation and person upon whose transportation line the company shall forward merchandise, as fully and completely as if made directly with such corporation or persons.”
Then follows a description of the applicant to be prepared and signed by the superintendent or agent, which is signed by the agent of the company. Next follows a printed form of contract of employment reading as follows:
“Contract of Employment.
“On the statements and conditions contained in the foregoing application, the United States Express Company hires the applicant above named to serve as [written] driver at Jackson, Michigan [printed. form], and to perform such other services as may be directed from time to time, from [written] July 6, 1906, [printed form] and agrees to pay him for his services at the rate of [written] forty-five [printed form] dollars per month, or fractional part thereof, to the date of his resignation or discharge.”
Signed by the express company and by Clark.
At the date of the accident the defendant was operating at the place of the accident as lessee from the Michigan United Railways Company, under lease by which it assumed all contracts of the lessor. The contract between the Michigan United Railways Company and the United States Express Company, providing for the carrying of express over this line, which the defendant herein assumed as lessee, provides, in part, as follows:
“The express, company hereby agrees that it will: Assume all losses, risks, and damages to express business of all kinds forwarded by it over the lines of the traction company, as well as all losses, risks, and damages to its own property while on or near the lines of the traction company; also assume the risk of personal injury to, or death of, any employee solely in the service of the express company while engaged in its business of traveling free under its orders on any of the railroads or property of the traction company, and will protect and save harmless the traction company from all loss and damage growing out thereof, or connected therewith. The traction company will protect the express company against any liability for damages which may result from the death of, or injury to, any person jointly employed by the traction company and the express company from the negligence of the traction company or its employees without negligence on the part of the express company or its employees, and it is understood between the parties that the traction company shall have the full benefit of all agreements between the express company and its employees whereby the express company or the traction company is released from claims and demands on their part on account of personal injuries or death.”
At the time of the collision here involved Mr. Clark was riding in defendant’s car in sole charge of express matter. No evidence was offered by defendant pertaining to the cause of the accident involved; it being defendant’s contention that by the plain terms of the contract between Mr. Clark and his employer, the express company, the present action is absolutely barred.
At the close of the testimony the defendant made a motion for a directed verdict in its behalf, which was denied, and exception duly taken, and the case was submitted by the trial court to the jury upon the question of damages alone. The jury returned a verdict for the plaintiff, upon which judgment was entered.
By appropriate assignments of error the following points are urged by defendant:
(1) The court should have directed a verdict for defendant:
(a.) By the terms of the contract of employment of plaintiff’s decedent, he assumed the risk of all accidents and injuries such as the one in question, and released the defendant herein from all claim therefor.
(b) This contract is valid, and may be enforced by the defendant in this case.
(2) If the court refused to direct a verdict for the defendant, then the court should have submitted to the jury the question as to whether or not the contract between Clark and the United States Express Company was binding on plaintiff’s decedent in the case at bar.
It is also claimed that, if the court refused to direct a verdict for defendant, it should have submitted to the jury the question whether the application for employment, by plaintiff’s decedent to the United States Express Company, covered and contemplated the performance of the services which he was rendering at the time of the accident. It is the claim of the plaintiff that in the application made by plaintiff’s decedent in 1906, the parties did not contemplate Clark’s employment as an express messenger; that Clark sought employment as a driver for the express company at Jackson, Mich. It is urged by plaintiff that the defendant failed to maintain its plea, or to show what it undertook to show under its notice, that Clark made application for employment' by the express'company as an “agent or express messenger.”
We are satisfied that the application and the contract of employment should be treated as one contract, signed at one and the same time by the party seeking employment, and must be understood and construed with reference to the particular work or line of employment that the applicant desired. The words in the application, “I understand that I may be required to render services for the company on or about the railroad, stage, and steamboat lines used by the company for forwarding property,” were contained in the printed form of application, and were made to fit any and every locality, and, in this case, should be understood, in the light of the surrounding circumstances, as referring to the job which Clark was applying for at Jackson, Mich. So far as he might be required under his employment as driver at Jackson, Mich., to render services about the railroad, stage, or steamboat which the company made use of, this clause had application. It may be said, as a matter of common knowledge, that the driver for an express company would have to do more or less work on or about the lines of the company used for transportation, and, if it made use of no stage or steamboat line at Jackson, Mich., it did make use of the street railway, and the words “stage and steamboat lines” might be treated as merely surplusage. The wording of the contract is also significant in this respect, and bears out the contention of the plaintiff that it has no reference whatever to the work of an express messenger, or to anything but the job specified, to wit, “driver at Jackson, Michigan.” It reads that:
“The United States Express Company hires the applicant above named as driver at Jackson, Michigan, and to perform such other services as may be directed from time to time.”
Whatever services he might be directed from time to time to perform by the terms of the contract, it is urged, were to be performed in connection with his work as driver at Jackson, Mich., and the rate of wages was fixed at $45 per month for this service. He was not a driver at Jackson, Mich., at the time he met with his injury, and had not been for years. The agent of the express company at Jackson, Mich., testified on direct examination as follows:
“This application was made before Mr. Clark went to work, and signed by him and-filed with me.
“Q. Was any application or any subsequent — any subsequent application or contract or agreement ever made with Mr. Clark up to the time of his death?
“A. No, sir. * * * ”
On cross-examination the same witness testified:
“I could not say positively how long Mr. Clark worked as driver. He went into our employ at that time as driver. I presume he worked as driver for two years; I could not say positively; driver about the city of Jackson. After that he was appointed messenger for the company.
“Q. Did he act as shipping clerk for a time?
“A. Waybill clerk.
“Q. Where was he working then?
“A. In my office at Jackson. I do not recall how long he worked as waybill clerk. * * * Mr. Clark as waybill clerk received a salary of $55 a month; as messenger he was getting $60 a month.”
In construing this contract of employment it is a familiar rule' that the intention of the parties should. govern. This intention must, however, be collected from the words used in the instrument, and not from matters dehors the writing. The entire instrument should be examined; the particular purpose for which it was executed should be kept in mind and given effect to, if it can be done, without adding to, or subtracting from, the words used by the parties. A release covers only such claims as were within the contemplation of the parties. Although there are general words in the application which might, if they stood alone, bear the construction of a general release, these, we think, are limited and controlled by the recital of the specific employment, to wit, “driver at Jackson, Michigan,” to which the release was evidently intended to apply. The rule is that, where the words in the recital apply to a particular kind or class of employment, as in this case, that of “driver at Jackson, Michigan, and to perform such other services as may be directed from time to time from July 6, 1906,” the general words will be limited and restricted by the words in the recital. Texas, etc., R. Co. v. Dashiell, 198 U. S. 521, 25 Sup. Ct. 737; Union Pac. R. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14 (23 L. R. A. 581).
The burden of this defense is upon the defendant to show a release applicable to the employment in which the deceased was engaged at the time of his death.
It seems to be settled by the authorities that in order to exempt the carrier from liability, or to limit the extent of its liability for injury caused by its own negligence of any kind, the contract must expressly so provide. Black v. Transportation Co., 55 Wis. 319 (13 N. W. 244, 42 Am. Rep. 713).
In the opinion in that case the court, referring to New Jersey Steam Navigation Co. v. Bank, 6 How. (U. S.) 343, quotes the following language:
“ ‘The burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment. The exemption from these duties should not depend upon implication or inference, founded on doubtful and conflicting evidence, but should be specific and certain, leaving no room for controversy between the parties.’ This rule is approved by the court of appeals in New York, notwithstanding the fact that that court has gone further than most of the other courts of the country in upholding contracts exempting carriers from liability for the negligence of their servants, when such exemption has been clearly and expressly stipulated for. See Westcott v. Fargo, 61 N. Y. 542 (19 Am. Rep. 300).”
In Kenney v. Railroad Co., 125 N. Y. 422 (26 N. E. 626), the court of appeals of New York held that general words in the contract of a common carrier limiting its responsibility will not be construed as exempting it from liability for negligence, when they are capable of other construction.' Speaking of the contract in that case, the court, on page 425 of 125 N. Y. (on page 627 of 26 N. E.), uses the following language:
“Our decision, however, is placed upon the ground that this contract does not in unmistakable language provide for an exemption from liability for the negligence of the defendant’s employees. The rule is firmly established in this State that a common carrier may contract for immunity from its negligence, or that of its agents, but that, to accomplish that object, the contract must be so expressed, and it must not be left to a presumption from the language. Considerations based upon public policy and the nature of the carrier’s undertaking influence the application of the rule and forbid its operation, except where the carrier’s immunity from the consequences of negligence is read in the agreement ipsissimis verbis. The doctrine of such contracts was stated by this court in the case of Perkins v. Railroad, 24 N. Y. 196, 206 (82 Am. Dec. 282). It was reiterated in the opinion of Judge Allen in Blair v. Railroad Co., 66 N. Y. 313, 318 (23 Am. Rep. 55), and in Mynard v. Railroad Co., 71 N. Y. 180 (27 Am. Rep. 28), Church, C. J., reviewing the question at some length, considered the prior decisions of this court and referred to certain decisions in the United States Supreme Court which held a different doctrine as to such agreements. In recognizing the right of the carrier to contract for its immunity from the results of negligence, he stated the general rule to be that such contracts must be expressed. in unequivocal terms. This decision was followed as being decisive of the question in the later decisions in Holsapple v. Railroad Co., 86 N. Y. 275; Nichols v. Railroad Co., 89 N. Y. 370, and Canfield v. Railroad Co., 93 N. Y. 532 [45 Am. Rep. 268].”
The defendant, upon the main question in this case, relies upon Baltimore, etc., R. Co. v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, and the numerous decisions that have followed that case. It is worthy of passing remark that in that case the court expressly found:
“That Voigt, the defendant in error, had agreed in writing to indemnify the express company against any liability it might incur by reason of said agreement between the companies, so far as he was concerned, and further agreed to release the railroad company from liability for injuries received by him while being transported in the express cars.”
In other words, in that case (as was claimed by defendant in its notice in this case) the agreement related to the particular employment of express messenger, in which he was then engaged.
An examination of the other cases cited by defendant’s counsel discloses that in every instance the application and agreement related to the particular employment of express messenger. It will not do to say that the contract included all or any employment in which the applicant might engage, but the rule is, as above shown, that the identical words of the contract must refer to the employment.
Where a waiver is claimed by ‘the defendant, in order to prevail in such defense, it should be made to appear that the waiver is plainly expressed in the contract. We are unable to find any such waiver in the application and contract relied upon by the defendant in this case. Looking at the entire instrument, we cannot say for a certainty that the employment of express messenger was within the contemplation of the parties when the contract was made.
Neither can we agree with the position of defendant that there was involved here a question of fact which should have been submitted to the jury. In other words, we do not think that it was the duty of the trial court to submit to the jury the question whether the application for employment by plaintiffs decedent and the contract with the express company contemplated the performance of the services which he was rendering at the time of the accident. The question involved was one of law, and not of fact, and the jury should not have been permitted to speculate respecting it. We find no error in the ruling of the court upon this subject. This view of the case renders it unnecessary for us to consider the numerous other objections raised by the plaintiff to the validity of the waiver in the contract of employment.
We think the court reached the correct conclusion in the case, and, finding no reversible error in the record, the judgment of the circuit court is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Steere, J.
Mrs. M. V. Edgar inaugurated this proceeding in the probate court of Tuscola county to establish a claim against the estate of Franklin Par-sell, deceased. Josephine Parsell, executrix of said estate, contested said claim, which was for 12 ewe sheep let to deceased, with one-half their wool and increase from 1898 to 1913, amounting less credits to $307.50. The commissioners on claims rejected all of said account but $31.61, and allowed the claim for the latter amount. Claimant appealed the matter to the circuit court, where a judgment was entered in favor of said estate on a verdict directed by the court at the conclusion of plaintiffs testimony, on the ground that recovery was barred by the statute of limitations. Plaintiff moved for a new trial, which was denied.
Appellant’s assignments of error, covering refusal to charge as requested, directing a verdict and denying a new trial, all center upon the single question of whether, regarding the testimony in its most favorable light for her, she is, as a matter of law, precluded from recovery by the statute of repose. No objections were made, so far as the record discloses, to any testimony offered by her, and the only issue is upon its significance and adequacy.
Upon the trial the following exhibit was identified and introduced in evidence:
“Almer, October 18, 1898.
“This is to certify that G. F. Parsell has this day taken of M. V. Edgar twelve (12) ewe sheep to keep for the rental annually of one-half the wool and increase from said twelve (12) sheep, for the term of three years from and after this date.
“G. F. PARSELL;”
Indorsed on the back of this • appears:
“Paid eighteen (18) she'ep back, November, 1903.
“M. V. Edgar.”
“November, 1908, to ten days’ work.”
At the end of the three-year term deceased continued to keep the sheep. There is no direct proof of an express contract of renewal in writing, or otherwise. The indorsement on the back of the written memorandum that 18 sheep were paid back in November, 1903, is not questioned. Plaintiff’s husband, testifying as to this, says that 18 lambs were returned then. He further testified, without objection, to three different conversations, one as late as 1912, in which deceased stated he yet had plaintiff’s sheep, and admitted an indebtedness to her in that connection, and directed that some work done by him for her be applied on such indebtedness. John Miller, a' neighboring farmer, testified that in 1906 deceased stated to him, “I have some of Mrs. Edgar’s sheep yet, and they are dandies.” In behalf of said estate it is urged that such evidence is not competent to show renewal of said contract during the remaining 10 years of deceased’s life, nor indebtedness or payment on such renewal, the indorsement of “ten days’ work” in November, 1908, shown to have been made by plaintiff, not being evidence of payment “so as to take the case out of the operation” of the statute under section 9744, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14151); Fowles v. Joslyn, 130 Mich. 272 (89 N. W. 946), and deceased’s oral admissions or promises are excluded by section 9740, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14147), which provides:
“In actions founded upon contract express or implied, no acknowledgment or promise shall be evidence of a continuing contract, whereby to take the case out of the provisions of this chapter, or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing, signed by the party to be charged thereby.”
This may eliminate from consideration certain promises and admissions of deceased, testified to, touching past indebtedness, but not, in our opinion, his statements of the existing fact that he was yet in possession of some of her sheep and did not hold them adversely.
We are impressed that in disposing of this case in harmony with general rules as to limitation of actions, sufficient consideration was not given to the nature of the transaction by which contractual relations were established between the parties. The four-line memorandum of agreement signed by deceased, and the meager evidence of what was done in pursuance of it, clearly point to a bailment — a trust relation arising from lawful possession of property taken with consent of the owner for an agreed time and purpose, and the duty to later account for it to the owner.
In Ruling Case Law, vol. 3, p. 73, the general rule upon this subject is thus stated:
“Where one leaves animals, as sheep, with another on shares for a certain period of time, providing for the payment of a certain amount of wool per head and for the disposition of the increase, the sheep to be redelivered at the end of the term, the transaction is of course a bailment; but where an equal number is to be returned, of like value, ordinarily it is to be deemed a sale.”
There was no agreement in this case to return an equal number of like value. The implied legal obligation arising from this agreement' was to return the same sheep or their survivors at the end of the term. That this was a bailment there can be no question. Woodward v. Edmunds, 20 Utah, 118 (57 Pac. 848); Manti Bank v. Peterson, 30 Utah, 475 (86 Pac. 414, 116 Am. St. Rep. 862); Robinson v. Haas, 40 Cal. 474; Smith v. Niles, 20 Vt. 315 (49 Am. Dec. 782). In the latter case the transaction was held to be a bailment and not a sale, although the animals were to be returned “or those worth as much in all respects.”
It is shown that these sheep were not redelivered at the end of the term, nor ever demanded by the owner, so far as shown, nor that her title was ever denied. There is evidence tending to show it was not. Two years later deceased “paid eighteen (18) sheep back,” or “lambs,” according to the testimony of plaintiff’s husband. Whether during the three years or afterwards he made the annual payments in kind as stipulated is otherwise left to conjecture.
The short memorandum of agreement leaves much to inference. Deceased took the 12 ewe sheep, in 1898, to “keep” for three years, agreeing to pay annually for their “rental” half the wool and increase. He died in 1913. How many of these sheep outlived him is not shown. In the absence of special agreement, it was his duty, while in possession of them under his bailment, to annually pay the agreed rental in kind, and properly keep, feed, shelter, and otherwise care for them. He did not insure them, nor agree to replace any which perished from natural causes, by disease, or accident without fault on his part. He was only holden to the honest exercise of average diligence. It was a bailment for benefit of both. Where the parties fail to expressly define their relative rights and duties in that particular, the law only requires of the bailee the care and diligence in conserving the property intrusted to him which persons of average diligence and prudence bestow towards such property, or upon their own property, under like circumstances.
Counsel for appellee emphasize that, conceding this transaction was a bailment, it was for a definite time, and urge that the bailment terminated when the time expired; that plaintiff was then entitled to a return of the sheep, and her right of action to recover them or their value then arose. This may be recognized as the general rule and, unquestionably, the bailment ends absolutely if the bailee returns the property or accounts for it as is his duty; but if at the expiration of the appointed time he does not redeliver the property or excuse the failure to do so, nor deny the bailor’s right to possession of it, the bailment does not necessarily end as to him, for he yet holds the property in trust, and “the bailor has a right to resume the property or consider the bailment as continued or renewed” (5 Cyc. p. 207; Elliott on Contracts, §3005), and under some circumstances the inaction of the parties might be treated as inferential evidence of an agreement to that effect (Schouler on Bailments [3d Ed.], §159).
The law of bailments does, not, however, as in case of leases, imply a renewal of the former contract from the mere naked act of retaining possession, but possession, retained without 'objection after the period originally fixed has expired, in connection with other persuading circumstances, may raise a question of fact for a jury as to whether the bailment was terminated or continued and renewed. Chamberlain v. Pratt, 33 N. Y. 47, 2 Enc. of Ev. p. 189.
It is recognized as a general rule of bailment that the mere retention of "possession of property by the bailee, however long continued, will not in itself work a change of ownership, and the statute of limitations cannot run in his favor until he sets up and asserts some adverse claim in respect to the bailment by which he acquired possession of it. Blount v. Beall, 95 Ga. 182 (22 S. E. 52); Reizenstein v. Marquardt, 75 Iowa, 294 (39 N. W. 506, 1 L. R. A. 318, 9 Am. St. Rep. 477). While in these cases the time of termination of the bailment is not shown to have been so definitely-set as here, both the rule and reason therefor are well stated as of general application. In the last case cited it is said:
“The rights and obligations of a bailee of personal property are very much like those of a trustee of a resulting trust in realty, and it has always been held that the statute of limitations commences to run in favor of a trustee from the, time when he denies the trust and claims the trust property as his own. Peters v. Jones, 35 Iowa, 512; Gebhard v. Sattler, 40 Iowa, 152. Upon the same principle the statute of limitations will not begin to run in favor of a bailee until he denies the bailment and converts the property to his own use.”
That the burden of proof rested upon plaintiff to establish, by a preponderance of evidence, a continuance or renewal of the bailment, as well as various other facts essential to recovery, is clear, but under the facts and circumstances disclosed in this record we must conclude it cannot be said, as a matter of law, that she is absolutely barred from any recovery by the statute of limitations.
The judgment is reversed, and a new trial granted.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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McGregor, J.
This appeal comes to us from a jury conviction of defendant, who had been charged with entering the Hazel Park city hall without breaking, but with intent to commit larceny. On the evening of May 11, 1965, the defendant and two companions were observed in the vicinity of the Hazel Park city hall at approximately 9:30 p.m., parking their automobile, opening its trunk, and removing several objects therefrom. Defendant re-entered the auto, drove a short distance, and then left it and walked back to the city hall. Within a short time, defendant was observed looking out a window of the city hall. Twenty or thirty police officers were summoned to the scene and search lights and loudspeakers were set up. After 6 or 8 tear-gas shells were fired into the building, defendant emerged from the building with his hands over his head. Immediately thereafter, a police officer entered the building and, upon investigation, observed papers strewn around the office of the court clerk.
At trial, this first officer to enter the building identified a photograph as accurately representing the clerk’s office as it looked when he arrived, including a canvas bag of tools lying by the door. The court clerk and a police officer testified that the door from the clerk’s office to the courtroom had clearly been broken and that the wood was splintered. The canvas bag of tools, complete with contents, along with a 14-inch pry bar found lying outside the bag, were offered in evidence. Defendant objected to this evidence as not relevant or material to the issues in the case. After another witness had testified, the court admitted the bag of tools into evidence over the same objection by defendant. Admission of this physical evidence is one claim of error on this appeal.
Defendant claims another error arises from the excusing by the judge of a juror after the jury was sworn but before any witnesses were sworn. One juror, who had not been challenged and had been accepted voluntarily, told the court that she might be precluded from serving impartially. The court had given the usual precautionary instructions to the jury and allowed them to go their separate ways for lunch. After reconvening, the juror was questioned about her bias. She stated that she was incapable of making a fair and just decision, and was then dismissed. Another juror was then drawn. At this point, the defendant’s attorney moved for a mistrial, claiming that the biased juror may have contaminated the other jurors during the lunch hour. The transcript shows that the trial court instructed the jury:
“You should not enter into any discussion with your fellow jurors or anyone else concerning this case until such time as the court tells you to.”
There was no showing of any violation of this instruction by the jury members by discussing the case, or even having lunch together.
Under the existing authority, a rational approach is provided in such a situation as faces us: the judge may impanel a 12th juror rather than declare a mistrial.
“Where, after the jury has been selected and sworn, but before the introduction of evidence, it becomes necessary to excuse or discharge a juror because of sickness or incompetency, the court may, without discharging the entire jury, substitute another juror in the place of the one discharged and proceed with the trial, but the court is not obliged to substitute a juror for the one discharged but may discharge the entire jury and continue the case, since it is discretionary with the court to make such substitution or to discharge the entire jury.” 50 CJS, Juries, § 290 p 1082.
Also, see Sullivan v. State (1929), 155 Miss 629, 638 (125 So 115, 117), in which the Court adopted this rule, saying:
“A litigant has not a vested right in a particular juror, but only a right to be tried by a fair and impartial jury qualified under the law * * * We think the court, in standing the juror Langford aside, or sustaining the challenge, was acting upon a question where different reasonable conclusions might be reached as to the qualification of the jurors, and there is nothing to suggest that the judge desired anything other than to secure to the defendant that fair and impartial trial accorded to him by the law.”
There was no reversible error in the action of the court in dismissing the self-confessed prejudiced juror and properly impanelling another.
Defendant urges the separate theory that the admission of the bag of tools found near the splintered door resulted in the consideration by the jury of evidence founded upon an inference based upon an inference. As the matter was submitted to the jury, defendant contends that they were asked to conclude that the defendant’s specific intent upon entering the building was to commit larceny; that the bag of tools belonged to or was connected with the defendant; and after making either or both of these inferences, they were to conclude from them the defendant’s specific intent to be larcenous.
“What is actually meant by the statement found in many cases, that an inference cannot be based upon an inference, is that an inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility.” 1 Wigmore on Evidence (3rd ed, 1940), § 41, 1964 Supplement p 124, quoting Shutt v. State (1954), 233 Ind 169, 174 (117 NE2d 892, 894).
“It is obvious that Michigan law is in accord with that previously cited from Shutt, supra, where that court also stated:
“ ‘It may be true that appellant’s guilt must be established by inference drawn from circumstantial evidence. However, these inferences are not based upon uncertain or speculative evidence but upon proven facts which are, under the surrounding circumstances in this case, sufficient to support an inference of guilt.’ ” People v. Eaves (1966), 4 Mich App 457, 464.
The jury could have concluded properly that the defendant entered the building in question with intent to commit a larceny therein; this inference would have been drawn from proven facts and the surrounding circumstances. The record does not support defendant’s contention of an inference being drawn from an inference.
Evidence was presented from which a jury could conclude that the defendant was guilty beyond a reasonable doubt. Ample facts were presented and proven from which the jury could infer that the defendant entered the building in question with the intent to commit a larceny therein, without indulging in a double inference to conclude the ultimate fact.
Conviction affirmed.
J. H. Gillis and Miller, JJ., concurred.
CL 1948, § 750.111 as amended by PA 1964, No 133 (Stat Ann 1968 Cum Supp § 28.306). | [
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Ziem, J.
On December 22, 1965, a complaint was signed and a warrant issued in Ionia county charging the defendant with escaping from prison. At the time, defendant was serving a pre-existing sentence of from 8 to 30 years imposed on February 21, 1963, by the Genesee county circuit court. In circuit court, 2 days before trial in April, 1966, a motion for nolle proseguí was granted. On April 20, 1966, a new complaint and warrant were issued charging attempted escape from prison. CLS 1961, § 750.193 (Stat Ann 1962 Rev § 28.390). Defendant was tried and convicted of attempted escape in the Ionia conn ty circuit court on August 31, 1966,, and was sentenced to a minimum term of 2 years and a maximum term of 3 years. This latter sentence, in accordance with the statute, was imposed as a consecutive sentence to commence at the termination of the sentence then being served.
The principal issues presented are whether the passage of 252 days from December 22, 1965, to Aug-ust 31, 1966, bars this prosecution under the 180-day statute and whether the statute applies to offenses committed by persons who are already inmates at the time the offense is committed. A further issue of whether the trial judge abused his discretion in his ruling on the people’s motion for nolle prosequi is also presented.
In the instant ease, it was not until March, 1966, that the prosecutor learned that at the time of the alleged escape the appellant was still on state property when apprehended. The prosecutor then, rightly or wrongly, but in apparent good faith, elected not to amend the information, but chose instead to proceed by nolle prosequi and the issuance of a new complaint and warrant alleging attempted escape.
The 180-day statute, insofar as it is material, reads as follows:
Section 1 of the act provides, in part:
“Whenever the department of corrections shall receive notice that there is pending in this State any untried warrant, indictment, information or complaint setting forth against any inmate of a penal institution of this State a criminal offense for which a prison sentence might be imposed upon conviction, such inmate shall be brought to trial within 180 days after the department of corrections shall cause to be delivered to the prosecuting attorney of the county in which such warrant, indictment, information or complaint is pending written notice of the place of imprisonment of such inmate and a request for final disposition of such warrant, indictment, information or complaint. * * *”
Section 3 provides:
“In the event that, within the time limitation set forth in section 1 of this act, action is not commenced on the matter for which request for disposition was made, no court of this State shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” CLS 1961, §§ 780.131, 780.133 (Stat Ann 1968 Cum Supp §§ 28.969[1], 28.969[3]).
In People v. Hendershot (1959), 357 Mich 300, the Supreme Court held that the statutory requirement, that the accused “shall be brought to trial” within 180 days, does not require the actual trial within that time, but only the taking of good faith action to start the proceedings in motion. This was reaffirmed in People v. Castelli, 370 Mich 147, 153.
In the instant case, the 180 days had not expired when the prosecutor took action to start the proceedings in motion.
“The statute does not require the action to be commenced so early within the 180 day period as to insure trial or completion of the trial within that period. If, * * * apparent good faith action is taken well within the period and the people proceed promptly and with dispatch thereafter toward readying the ease for trial, the condition of the statute for the court’s retention of jurisdiction is met.” People v. Hendershot, 357 Mich 300, 304.
Here, there was an apparent good faith action taken well within the period and the people proceeded promptly and with dispatch toward readying the ease for trial, and thus the condition of the statute for the court’s retention of jurisdiction was met.
But, there is another and more important reason for denying appellant’s claim. This 180-day statute is comparatively new and was intended to cover those situations where warrants for offenses committed prior to incarceration are held in abeyance pending the release of the inmate.
“In formulating the statutory language, the legislature sought to protect those who face multiple charges against undue delay in trial when they are jailed in State prison while untried charges are still pending. The statute seeks to secure to those serving sentences in a State prison the enjoyment of the rule of law which, in the absence of a statute otherwise providing, prohibits imposition of a sentence to commence upon completion or expiration of another sentence.” People v. Williams (1968), 9 Mich App 676, 682, citing In re Carey (1964), 372 Mich 378.
The purpose of the statute is clear. It was intended to give the inmate, who had pending offenses not yet tried, an opportunity to have the sentences run concurrently consistent with the principle of law disfavoring accumulations of sentences. This purpose, however, does not apply in the instance of a new offense committed after imprisonment, nor where the statute, as in the case of an escape or attempted escape, sets up a mandatory consecutive sentence. The legislature was not concerning itself with the need for dispatch in the handling of a charge brought against an inmate for offenses committed while in prison.
At the time of sentencing in the instant case, the defendant was not even eligible for parole on his original sentence from Genesee county. The statute under which he was sentenced made it mandatory that his sentence for the attempted escape be eonsec-. ulive. Thus, his sentence for attempted escape will commence at some time in the future. The defendant was in no way prejudiced by any delay.
For the foregoing reasons, it is the opinion of this Court that the 180-day statute does not and was not intended to apply to offenses committed while in prison and for which offenses mandatory consecutive sentences are provided.
As to the remaining issue, the entire file on appeal and the briefs have been reviewed and there is no basis for the appellant’s claim that the trial court abused its discretion in granting the nolle prosequi after defense counsel objected to an amendment to the complaint, warrant and information.
The conviction and judgment entered thereon is accordingly affirmed.
Quinn and Burns, JJ., concurred. | [
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Lesinski, C. J.
The circuit court granted defendant’s motion for accelerated judgment and entered an order for summary judgment of dismissal from which the plaintiff appeals. The court believed the substance of the plaintiff’s claim to be in the nature of an action for “alienation of affections, charging criminal conversation and seduction of a person over the age of 18 or more years” and therefore barred by statute.
Defendant’s motion for summary judgment was “governed by G-CR 1963, 117, which permits such motion to be based, as it was here, on the ground that plaintiff’s complaint failed to state a claim upon which relief can be granted. For the purpose of that motion, both at the trial and appellate levels, every well-pleaded allegation [of fact] in the complaint is assumed to be true.” Bielski v. Wolverine Insurance Company (1967), 379 Mich 280, 283. Accordingly, the following facts and allegations of fact which frame the legal issues are taken from the amended complaint and other papers filed in this cause.
Mr. - Nicholson, the plaintiff herein, and his wife Marilyn, were experiencing marital difficulties. In December, 1960, plaintiff had occasion to consult the defendant, Dr. Maolin Han, a licensed physician, concerning an injury to plaintiff’s left foot. During the course of treatment, plaintiff told the doctor about his marital problems and received an offer of help. The plaintiff avers that defendant offered to, reconcile plaintiff’s marital problems through the use of psychiatry and other means and warranted that his marital relations would improve. Defendant told plaintiff that he had been successful with other patients. The plaintiff and his wife consulted defendant in his role as a psychiatrist and marriage counselor in December, 1960, and in 1961 and 1962; however, the plaintiff’s marital situation deteriorated to such a point that Marilyn Nicholson obtained a divorce in February, 1962. The plaintiff had occasion to visit Northville State Hospital in the fall of 1964 and saw there a hospital record relating to his wife. The record revealed that Marilyn Nicholson told her physicians that she had been intimate with defendant. Later Marilyn Nicholson told plaintiff that her, personal relationship with the doctor began in 1961 and continued into 1964. The plaintiff claims no knowledge of the relationship between defendant and his wife until he saw the hospital record in the fall of 1964.
The plaintiff brought this action against defendant charging him with utilizing the doctor-patient relationship to seduce plaintiff’s wife. The amended complaint contains five counts alleging: (1) breach of contract, (2) malpractice, (3) assault and battery, (4) trespass on the case (negligence) and (5) fraud. Each count contains an allegation to the effect that defendant, used the pretext of rendering psychiatric and marriage counseling services to deprive plaintiff of the services, companionship’, and marital relationship of his wife by inducing her to engage in a sexual relationship and to divorce plaintiff. The plaintiff stated in opposition to the motions for accelerated and summary judgment that “there can be no donbt that plaintiff’s amended complaint includes elements which used to be recoverable through actions for criminal conversation or alienation of affections. However, that fact does not immunize defendant from suit.”
The lower court found plaintiff’s entire claim to be based upon torts abolished by statute and dismissed the action. The plaintiff appeals the court’s ruling as respects counts 1 and 5 of the amended complaint for breach of contract and fraud.
The question before us is whether counts 1 and 5 of the amended complaint plead causes of actions unaffected by the statutory bar. CL 1948, § 551.301 (Stat Ann 1957 Eev § 25.191), reads as follows:
“All civil causes of action for alienation of affections, criminal conversation, and seduction of any person of the age of 18 years or more, and all causes of action for breach of contract to marry are hereby abolished.”
The provisions of CL 1948, § 551.301, supra, were substantially re-enacted as CLS 1961, § 600.2901 (Stat Ann 1962 Eev § 27A.2901), in the following language:
“The following causes of action are abolished:
“(1) alienation of the affections of any person, animal, or thing capable of feeling affection, what-. soever;.
“(2) criminal conversation;
“(3) seduction of any person of the age of 18' years or more;
“(4) breach of contract to marry.”
In Miller v. Kretschmer (1965), 374 Mich 459, 461, the Supreme Court concluded that' “the. reenactment of the above section [CL 1948, § 551.301], as modified by the legislature, has unquestionably spelled out a legislative decision to abolish all ac tions for alienation of affections.” Miller v. Kretschmer, supra, teaches that the ambit of the re-enacted statute extends beyond the orthodox action for alienation of a spouse for loss of consortium, conjugal society, and assistance of the other spouse. ' •
We have momentarily digressed from our main inquiry concerning the nature of the appealed counts to make plain the fact that Michigan ■ courts have taken the statute to mean exactly what it says'. Further, it has been held that a bare reading of the statute is sufficient and no interpretation is necessary when the language employed by the legislature is plain, certain, and unambiguous. Van Antwerp v. State (1952), 334 Mich 593. And “a plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity.” City of Lansing v. Township of Lansing (1959), 356 Mich 641, 649.
A reading of the statute here in question reveals no ambiguity or delphic meaning in the' clear language employed by the legislature.
Count 1 alleges that defendant failed to perform a special agreement to reconcile and improve plaintiff’s marital problems through the use of psychiatry and other means, “in that he failed to constructively counsel plaintiff and his wife and in that defendant failed to use psychiatry and in that he in fact induced plaintiff’s wife to become friendly and intimate and to have sexual intercourse with defendant and induced plaintiff’s wife to obtain a divorce from plaintiff.”
The plaintiff .cites Stewart v. Rudner (1957), 349 Mich 459, and Johnson v. Caldwell (1963), 371 Mich 368, in support of his proposition that defendant doctor made a special agreement enforceable under Michigan law. In the Stewart Case, the Court found that the language of the parties gave rise to an express promise on the part of the defendant physician to perform a caesarean section and that he breached the special agreement by failing to perform the operation at the mother’s full term. In the Johnson Case, the language of the parties again indicated that the physician had made a special agreement to treat the plaintiff during and after pregnancy. The failure to provide proper post partum treatment was held a breach of contract.
The Court said in Stewart v. Rudner, supra, pp 467, 468:
“We have now to consider the contract made. A doctor and his patient, of course, have the same general liberty to contract with respect to their relationship as other parties entering into consensual relationship with one another, and a breach thereof will give rise to a cause of action. It is proper to note, with respect to the contracts of physicians, that certain qualitative differences should be observed, since the doctor’s therapeutic reassurance that his patient will be all right, not to worry, must not be converted into a binding promise by the disappointed or quarrelsome. These qualifications we have in mind as we proceed.”
This Court considers the above language especially salutary in this case where the plaintiff alleges a special agreement to effect a psychiatric cure related to the marital relationship. The warranties and representations alleged by plaintiff to show a special agreement to reconcile a marriage are, in another sense, qualitatively different from the special agreements found in the Stewart and Johnson Gases. This is not to say that a patient and his doctor cannot make an express contract for psychiatric services containing a warranty of “cure,” but such must very clearly appear from what was said by the parties at the time of making. The Court held in McInerney v. Detroit Trust Co. (1937), 279 Mich 42, 46, that “an express contract may be defined as one in which the terms were openly uttered and avowed at the time of making.” See, also, Woods v. Ayres (1878), 39 Mich 345.
We are persuaded moreover that the substantial cause of action pleaded in count 1 is for alienation of affections and criminal conversation, not for breach of contract.
It is stated in 1 Am Jur 2d, Actions, § 8, p 549: ■
“The determination of whether an action is on contract or in tort requires knowledge of the source or origin of the duty, the nature of the grievance, and what is said concerning them in the pleading in the cause. The form cannot always be determined from the character of the damages claimed, although the relief demanded has in some cases been considered controlling. When the facts are plainly and distinctly stated, the action will be regarded either as one in tort or as one in contract, depending, first, upon the character of the remedy such facts indicate, and, second, upon what is the most complete and ample redress that the law affords upon the facts stated.”
Justice Talbot Smith put the matter admirably in a strong dissent in Baatz v. Smith (1960), 361 Mich 68, 76:
“The pleader insists he is relying on the contractual cause of action, and so, in truth, the declaration reads, but it is hopeless to rely upon verbiage alone, unless the wheel has come full circle and lawsuits will once more, as in medieval times,. stand or fall upon the words employed in the writ.
“We should in determining the cause of action pleaded, examine the essential allegations of the complaint as a whole, stressing neithér particular words nor particular allegations taken out of context. [Footnote omitted.] If the substantial cause of action pleaded is a tort action, the tort limitation would follow. If contract, the longer period.”
Count 1 does not allege two substantial causes of action. It is founded on allegations of breach of contract; but the gravamen of the action sounds in tort, that is, the substance of the allegations denominate a tort. Clark v. Dalman (1967), 379 Mich 251. “The authorities are uniform in holding that the nature of the action with respect to whether it is based on a breach of contract or sounds in tort must be determined by .the..gravamen, or essential facts or grievance as alleged, to be ascertained from a consideration of the pleading as a whole. 1 CJS, Actions, § 46, p 1100.” Williamson v. Pacific Greyhound Lines (1944), 67 Cal App 2d 250 (153 P2d 990, 992).
The gist of the action for alienation of, affections was “plaintiff’s loss of his wife’s society, services, and comfort by means of the tortious conduct of the defendant.” Perry v. Lovejoy (1883), 49 Mich 529, 531. The gist of the action for criminal conversation., was proof of an actual marriage plus adulterous intercourse. Perry v. Lovejoy, supra. The action for alienation of affections necessarily involves intent to induce the- spouse to separate and malice is conclusively presumed in the ease of adultery. See 27 Am Jur, Husband and Wife, § 523, p 125. It is clear that the facts alleged in count. 1 of the amended complaint place'it squarely. within the abolished actions, i.e., the fact of plaintiff’s marriage, the adulterous intercourse, the inducement to obtain a divorce and resulting loss of society, loss of services, pain and suffering rising from the marital relationship.
We are likewise persuaded that the claim of fraud in count 5 of the amended complaint falls squarely within the abolished actions. For here too, what is alleged constitutes an action for alienation of affections and criminal conversation in the same language found in count 1, and no action can be based thereon.
Affirmed, with costs to appellee.
McGregor and Canham, JJ., concurred.
GCR 1963, 116.
G-CR 1963, 117.
CLS 1961, § 600.2901 (Stat Ann 1962 Rev § 27A.2901); GL 1948, §§ 551.301, 551.302 (Stat Ann 1957 Rev §§ 25.191, 25.192).
Count 5 of the amended complaint claiming fraud contains identical language.
The negligent breach of a contract involving misfeasance gives rise to an action for tort. See Clark v. Dalman (1967), 379 Mich 251; Hart v. Ludwig (1956), 347 Mich 559; and Chase v. Clinton County (1928), 241 Mich 478. And cases involving the statute of limitations have required that a determination be made whether the pleaded action was essentially a contract or tort. See Baatz v. Smith (1960), 361 Mich 68; and Coates v. Milner Hotels, Inc. (1945), 311 Mich 233. | [
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Morse, J.
When this case first came before us, we decided that, if the allegations of the complainant’s bill were sustained, she would be entitled to the relief prayed for therein.
A full statement of the main averments of the bill will be found in the opinion then filed (60 Mich. 470).
After the remanding of the record to the court below, the defendants answered, proofs were taken, and the ease went to a hearing. With some reluctance the judge of the superior court of Grand Rapids, as appears from his opinion, which is made a part of the record, granted the complainant a decree. The defendants appeal.
Upon a careful examination of the evidence, we do not think her case is sustained by the proofs. The burden is upon her to establish the facts alleged in her bill.
In the first place, we are satisfied that she freely executed the note for $4,000, which is the basis of her claim for relief, and knew fully what it was given for; and that both she and her husband understood and intended that it should be paid out of the insurance money which upon .Ball’s death would be payable to her.
It also appears beyond question that the note represented in part moneys that Ball was honestly owing to Hollister or the bank, and in part moneys to be thereafter advanced by them for the use and benefit of Ball and his family. It is undisputed that about $1,500 of the consideration of this note was paid to Ball, or for his benefit, between the date of its execution and his death.
It also appears that she made the first payment upon the note of her own accord, and in the absence of Mr. Hollister, to Mr. Barnett, the vice-president of the bank. She went there with the draft, and asked him to take it and indorse it upon her note.
We are not satisfied that Mr. Hollister said or did anything to mislead her in relation to her liability upon this note. It is true he did not acquaint her with her rights in the premises. He claims he did not know that she was not bound •, but, be that as it may, his silence alone under the circumstances would not entitle her to relief.
As the case stood upon the bill, he told her it was her debt, when he knew better, and secured her funds, and himself paid the note out of the same against her wishes. We held there that there was something more than silence in the case; that he not only suppressed the truth for his own .advantage and benefit, but asserted clearly to her that it was her debt, thus taking active measures to defraud her.
There is no such case in the proofs. As the evidence appears to us, she knew what the note was given for, and how it was to be paid. She knew also that every dollar of it represented money that her husband and his family had received when their need of it was urgent and almost imperative. She freely took the insurance funds, and paid the note as her husband wished, and without undue influence from Hollister or any one.
She knew of, and acquiesced in, the filing of her claim against the estate for the amount she paid upon the note; and not until she married again, and her present husband took charge of her business, did she find any fault with the arrangement.
It seems also that the estate of her first husband is solvent, and that her claim against the estate is good. She has, in fact, lost nothing by her action in paying the note, except the costs of a litigation into which she was no doubt over-persuaded.
Her payment of the note must be held a voluntary one.
The decree of the court below is reversed, with costs, and the bill of complaint dismissed.
Campbell, C. J. concurred. Sherwood, J. I concur in the result. Chamflin, J. did not sit. | [
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] |
Sherwood, J.
On the nineteenth day of June, 1884, Charles E. Woodard, secretary. and treasurer, and H. S. Servoss, president, of the Woodard Manufacturing Company, executed a chattel mortgage upon all its property to the Muskegon Iron Works, a corporation of which said Woodard was also secretary and treasurer, he acting in both capacities by virtue of the by-laws of the corporation.
The mortgage was executed to secure the payment of the sum of $4,700. Four thousand two hundred dollars, however, was the actual amount then due from the mortgagor to the mortgagee, but inasmuch as the mortgagor was getting goods constantly from the Novelty Works upon credit, the amount was placed at the first sum named, believing that would no more than cover the full amount of credit required to meet their immediate approaching necessities. No seal was attached to the mortgage, as the company bad not yet obtained one. There was no formal action, or the record of any action taken, carried on the records of the company authorizing the making of the mortgage; but it was agreed upon and assented to by all the directors and stockholders of the company assembled together, and the mortgage was drafted and executed in their presence. After it was executed, the secretary of tlie Novelty Works took it, and locked it up in the safe of that company, and filed a copy of the same in the recorder’s office in Muskegon city.
The mortgage was signed, “The Woodard Manufacturing Company, by Charles E. Woodard, secretary and treasurer. H. S. Servoss, president.”
The mortgage was duly assigned and transferred on the twenty-fifth day of October, 1884, to the plaintiff, as collateral security for the payment of a debt which the Muskegon Novelty Iron Works owed the plaintiff, of about $8,000; and said assignment was duly filed in the recorder’s office with the mortgage. Before the year from the time the mortgage was made expired, the assignee caused the proper affidavit to renew the same to be made and filed as required by statute.
In May, 1885, the chattel mortgaged property was attached by creditors of the Woodard Manufacturing Company; judgments were obtained on their claims; and said property, under executions issued thereon, was seized, advertised, and sold by the defendant Bresnahan, who was sheriff, to the other defendant, Delano, against the protest and in utter disregard of the mortgage interest of the plaintiff, though fully notified by the record and personally of the nature and character of such interest. It was not sold even subject to the plaintiff’s lien.
After the sale the plaintiff caused demand to be made upon both the defendants for possession of the mortgaged property^ which was refused ; and thereupon the plaintiff brought this suit in trover to recover the value of its interest under the chattel mortgage in said property. The declaration contained the usual counts in trover.
The defendants pleaded the general issue, and therewith gave notice that they would justify the conversion of the property, under and by virtue of the judgments and executions rendered and issued against the Woodard Manufacturing Company.
The cause was tried in the Muskegon circuit before Judge Bussell, with a jury; and, under the special direction of the court, a verdict was rendered in favor of tlie defendants, and' the plaintiff brings error.
On the trial the plaintiff’s counsel offered in evidence the-chattel mortgage, after proving its execution as hereinbefore stated by the mortgagor, which was objected to by defendants’ counsel upon the following grounds:
1. Because the president and secretary of the Woodard .Manufacturing Company had never been authorized to make the mortgage.
2. Because the secretary of the said company was a heavy stockholder in the Novelty Company, and its secretary, and the mortgage made by him from the one to the other as secretary was without the right so to do, and void.
3. Because the mortgage was executed without any authority from the board of directors, acting as such.
i. Because the officers who purport to have executed this-mortgage were not competent in law to bind the corporation, and were not authorized expressly or impliedly by the corporation to sign the instrument in its behalf; and because it appears, from the testimony already in, that one of the objects of executing the mortgage was to cover the property to prevent its being attached by creditors, and that this agent for both corporations had knowledge of that fact, and that, being secretary and treasurer of the Novelty Iron Works, and a stockholder to the extent named, it was incompetent for him to execute this mortgage.
5. Because it does not appear that there was ever a delivery of this mortgage from the Woodard Manufacturing Company to the Muskegon Novelty Iron Works.
The court sustained the objection, and held that it is not the mortgage of the Woodard Manufacturing Company,, nor such a mortgage as the president and treasurer were authorized to make, under the testimony given.
Counsel for plaintiff then offered to prove the following facts in addition to tho$o already stated: That the mortgage, after being made and executed, was duly delivered to-the mortgagee, and filed by its direction on the day it was made; that when the mortgage was assigned to the plaintiff the indebtedness of the Novelty Works to it was past due ; that at the time the plaintiff made demand for the chattel mortgage property the defendants had possession of the property, and converted it to their own use, and that the mortgage indebtedness was then due, and had been for some time before possession was taken by the defendants; that .at the time this suit was commenced the plaintiff was the bona, fide owner of the chattel mortgage; and that the mortgaged property, at the time the plaintiff made demand therefor, was worth $4,000; and that the judgments under which the execution sale was made of the property to the defendant were not valid.
The court ruled the testimony inadmissible because the mortgage had been excluded, and that it was the basis of plaintiff’s right to recover.
We think both these rulings were erroneous.
Of course, neither party could deny the existence of the Woodard Manufacturing Company; both claim title through it. It is not claimed that it could not make a valid .chattel mortgage at the time it did, but that the company could not make such mortgage except at a regular meeting, or one called in accordance with the by-laws_ of the corporation, of the directors; that such mortgage could not be legally made, though all the directors and stockholders in the company were present and consented to and directed it to be done, as in this case, unless at a-duly authorized meeting of the same, or of its directors.
We cannot agree with this doctrine. It would make the thing created greater than its creators. It would, in this case, operate a gross injustice. The mortgage of the plaintiff is really a purchase-money mortgage; and it is neither justice, nor the policy of the law, to allow a claim of this character to be defeated through any informality or technicality of the proceedings taken or practice sought to be applied.
The corporation had no greater interest in the company property than all the members composing the corporation. Certainly, had they all joined in a conveyance of their interest in the property, there would be nothing left which the company could control or convey. And if all, being present, direct the secretary and president to make such conveyance in the name of the company, there is no reason why it. should not be bound by the conveyance, and the purchaser take a good title to the property, unless it was made to defraud creditors. That question, however, would be determined only by the jury. The court could not pass upon that question and direct the verdict.
The recorded action or direction of the board of directors is no more than written evidence of that action and that direction ; and unless the statute has prescribed the mode and manner in which action shall be taken, and forbids it being taken in any other way, the stockholders may take the action in such manner and at such times as they may deem best. The statute does not, in this case, interfere at all with such action and such direction.
There is no question but that the giving of the mortgage security in this case was within the corporate powers of the Woodard Manufacturing Company, of Muskegon. Neither is there any question but that a majority of the directors may bind the corporation, when assembled to take lawful action under the rules and regulations of the company. This is only because of the assent given by all that such action shall be binding, and when the assent of all has been had in any other manner, unless, as we have said, when expressly prohibited by the statute, the action will be binding, and its validity will not be allowed to* be questioned either directly or collaterally. “ Corporations may transact all such matters as, being auxiliary to their primary brrsiness, are transacted by ordinary individuals under similar circumstances:" Brice, Ultra Vires, 66 et seg.; Reynolds v. Stark Co., 5 Ohio, 205 ; Barry v. Merchants' Exch. Co., 1 Sanf. Ch. 280 : Brady v. Mayor, etc., 1 Barb. 584; Madison, etc., Plank Road Co. v. Watertown, etc., Plank Road Co., 5 Wis. 173; Macon v. Macon & W. R. Co., 7 Ga. 221; Hamilton v. Lycoming Ins. Co., 5 Penn. St. 339. They are bound, also, by the same implications and inferences as natural persons : Bates v. Bank of Alabama, 2 Ala. (N. S.) 451; and a corporation, having the right to create a debt, has the necessary pbwer to give securities for its repayment in any form not prohibited by law: Dubois v. New York & H. R. R. Co. 1 N. Y. Leg. Obs. 362; Curtis v. Leavitt, 15 N. Y. 9; Barnes v. Ontario Bank, 19 N. Y. 152; Conant v. Bellows Falls Canal Co., 29 Vt. 263.
In the absence of any provision to the contrary contained in the charter of a corporation, it will be presumed that its president, secretary, and treasurer have the authority to make all necessary contracts in transacting the ordinary business of the corporation, within the legitimate scope, object, and purposes of its organization.
The mortgage in this case was clearly within this rule. Its due execution was proved, and the consideration given therefor. None of the stockholders have ever questioned its validity, or sought to repudiate it, and it should have been allowed in evidence. This is sufficient to dispose of the case ; but on both grounds stated we think the court erred, and the judgment must be reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Campbell, C. J.
This suit was begun to recover back a certain sum of money paid by the estate of the decedent upon a note which is claimed to have been a debt of defendant, so that the money was paid to the use of defendant. The circuit court for the county of Monroe held that the- payment did not so operate, and that while an indebtedness existed at one time directly to the deceased, it was barred by limitation.
So far as material, the facts as found were as follows : In 1872 defendant, a religious corporation, being desirous of raising money for church purposes, Doty and the four other trustees executed their, joint and several promissory notes, at four and six years, payable to Elizabeth Lavoye or bearer, and delivered them to Charles M. Stocking, defendant’s insurer, who got the money on them. These notes were individual notes, and the defendant did not in any way become responsible to the holder.
In 1873 the defendant borrowed on mortgage the sum of $5,000, and lent it to Caleb Ives, one of its trustees, who in consideration of this advance agreed, not only to pay the mortgage itself, but also to pay off a considerable amount of debts of the defendant, aggregating about $3,000, and including these “trustees’ notes.” The 'note secured by the $5,000 mortgage was given by Ives, and guaranteed officially by the trustees of defendant. Ives gave some collateral security to the mortgagee. Ives paid most of the church debts, but not the note in question, beyond some interest, and did not pay all of the mortgage, having failed in business. Defendant took up the balance of the mortgage, and received the col-laterals, realizing ultimately some money on them. The note in question was proved against Doty’s estate and paid.
We think the court below decided correctly that under these circumstances the note in question was never a legal liability of defendant. Defendant became liable to the signers for the money raised upon it, but the statute of frauds, stands in the way of any suretyship, and there is nothing in the facts found to indicate that even an unwritten promise was made to Mrs. Lavoye, the holder of the paper, by defendant. Neither is it found that any definite arrangement was made between defendant and the signers of the note which would operate as an agreement to pay the notes themselves as they matured. The Ives arrangement, while it bound him to pay the notes, involved no agreement by defendant to do so. The understanding, if any existed, was probably a vague one, and the relations of the parties probably led to leaving the matter in that condition. There is, at any rate, no finding which would hold defendant to the payment of the note as its own debt, and according to its terms, and the finding seems warranted by the testimony.
This being so, we have no proof of any contract with Doty, except such as arose out of his being one of the persons who lent the defendant money at the date of the notes, with no special arrangement as to time of payment. Under such circumstances a loan, is impliedly payable on demand, and the lapse of time before this suit was brought unquestionably barred this claim.
The judgment must be-affirmed.
The other Justices concurred. | [
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Murphy, J.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendant in this action arising out of plaintiffs repeated unsuccessful attempts to renew his driver’s license without reporting his social security number on the renewal application. Plaintiff, citing his right to freely exercise his religious beliefs, refused to furnish his social security number as demanded by defendant pursuant to the requirements of MCL 257.307(l)(a). On appeal, plaintiff raises numerous constitutional and statutory issues. We affirm.
This Court reviews de novo a trial court’s ruling on a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). Issues of statutory construction and questions of constitutional law are likewise reviewed de novo on appeal. Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006); Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004).
In his complaint, plaintiff alleged that defendant, by refusing to allow him to renew his license without submitting his social security number and by rejecting the religious grounds given for his stance, knowingly and willfully violated Const 1963, art 1, § 4 (freedom of worship and religious belief), violated Const 1963, art 1, § 2 (equal protection), and violated MCL 257.307(13). In his prayer for relief, plaintiff requested renewal of his license without fee, cost, or payment, retroactive renewal to the expiration date of his last license, the drafting of a standard form by defendant, in accordance with MCL 257.307(13), for use by individuals who, for religious reasons, do not want to divulge their social security numbers in the license application and renewal process, and money damages in the amount of $10 million. Plaintiff also sought a declaratory ruling that the state engaged in unconstitutional activity by entering into a contract with the federal government pursuant to which the state receives federal child support enforcement funds in exchange for compliance with federal law dictating the procurement of social security numbers on license applications in violation of religious freedoms. This last assertion was founded on principles arising from the Tenth Amendment and the Spending Clause, art I, § 8, of the United States Constitution.
MCL 257.307(l)(a) mandates that an application for an operator’s or chauffeur’s license contain the following:
The applicant’s full legal name, date of birth, residence address, height, sex, eye color, signature,... intent to make an anatomical gift, other information required or permitted on the license under this chapter, and, only to the extent required to comply with federal law, the applicant’s social security number.... [Emphasis added.]
To qualify for various federal welfare funds, states must certify that they will operate a child support enforcement program that conforms to Title IV-D of the Social Security Act, as amended by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, PL 104-193, which we shall refer to as the Child Support and Establishment of Paternity Act (CSEPA), 42 USC 651 et seq., and that they will do so pursuant to an approved detailed plan. Blessing v Freestone, 520 US 329, 333; 117 S Ct 1353; 137 L Ed 2d 569 (1997). The states must collect overdue support payments, establish comprehensive systems to establish paternity, locate absent parents, and help families obtain support orders. Id. at 333-334. Pursuant to 42 USC 654(20), “[a] State plan for child and spousal support must... provide, to the extent required by [42 USC 666], that the State . .. shall have in effect all of the laws to improve child support enforcement effectiveness which are referred to in that section[.]” 42 USC 666(a) provides in relevant part:
In order to satisfy [42 USC 654(20)(A)], each State must have in effect laws requiring the use of the following procedures, consistent with this section and with regulations of the Secretary, to increase the effectiveness of the program which the State administers under this part:
(13) Recording of social security numbers in certain family matters. — Procedures requiring that the social security number of—
(A) any applicant for a professional license, driver’s license, occupational license, recreational license, or marriage license be recorded on the application^]
For purposes of subparagraph (A), if a State allows the use of a number other than the social security number to be used on the face of the document while the social security number is kept on file at the agency, the State shall so advise any applicants. [Emphasis added.]
Because there is no dispute that Michigan operates a child support enforcement program that meets the requirements of the CSEPA and Michigan receives federal funding because of its participation, 42 USC 654(20) mandates that Michigan comply with 42 USC 666(a)(13)(A). We also note that the final paragraph of 42 USC 666(a)(13) that refers to the use of a number other than a social security number does not create an exception to the recording requirement in § 666(a)(13)(A). See Lewis v Idaho Dep’t of Transportation, 143 Idaho 418, 423 n 4; 146 P3d 684 (Idaho App, 2006) (applicant’s social security number need not be recorded on the license itself, but it still must be reported or furnished by the applicant for purposes of having the information in the department file).
We first address plaintiffs arguments under former MCL 257.307(13). At the time of the license renewal efforts and the filing of the complaint, MCL 257.307(13) provided:
A requirement under this section to include a social security number on [a driver’s license] application does not apply to an applicant who demonstrates he or she is exempt under law from obtaining a social security number or to an applicant who for religious convictions is exempt under law from disclosure of his or her social security number under these circumstances. The secretary of state shall inform the applicant of this possible exemption. [2004 PA 362 (emphasis added).]
Pursuant to 2008 PA 7, subsection 13 was amended, deleting the religious-conviction exemption, and it now simply provides that “[a] requirement under this section to include a social security number on an application does not apply to an applicant who demonstrates he or she is exempt under law from obtaining a social security number.”
Former MCL 257.307(13) required that the applicant be “exempt under law,” which necessarily directs attention to a law other than § 307(13). In Cheeseman v American Multi-Cinema, Inc, 108 Mich App 428, 433; 310 NW2d 408 (1981), this Court rejected an argument that the words “except where permitted by law” reflected a legislative intent to encompass solely statutory law. The Cheeseman panel ruled that “the term ‘law’ includes the entire body of law including but not limited to the constitution, the statutes, administrative rules and regulations, and the common law as embodied in decisions and judgments of courts[.]” Id. at 441. Thus, the use of the term “law” here includes constitutional provisions that would carve out a religion-based exception to the social security number requirement.
Aside from Tenth Amendment and Spending Clause arguments on the final appellate issue addressed later, plaintiffs complaint and arguments on appeal rely solely on Const 1963, art 1, §§ 2 and 4. Plaintiff does not place any reliance on the Free Exercise Clause or the Establishment Clause of the First Amendment of the United States Constitution, nor on the Equal Protection Clause of the Fourteenth Amendment.
Article 1, § 4, of the Michigan Constitution, which addresses freedom of religion, provides in relevant part:
Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion.... The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.
Plaintiffs claims fit under the first and last sentences of Const 1963, art 1, § 4, because he argues that his liberty to worship according to his own conscience would be compromised if effectively forced by defendant to engage in an activity inconsistent with his religious beliefs and that his driving privileges were diminished on account of his beliefs.
Pursuant to McCready v Hoffius, 459 Mich 131, 143; 586 NW2d 723 (1998), vacated in part 459 Mich 1235 (1999), and Reid v Kenowa Hills Pub Schools, 261 Mich App 17, 27; 680 NW2d 62 (2004), we apply the compelling state interest test (strict scrutiny) to challenges under the free exercise language in Const 1963, art 1, § 4, regardless of whether the statute at issue is generally applicable and religion-neutral, which is the case here. In McCready, supra at 143-144, the Court stated:
Next, we turn to defendants’ claim that the act violates their religious freedom under art 1, § 4 of the Michigan Constitution of 1963. We analyze the [issue]... under the compelling state interest test....
The test has five elements: (1) whether a defendant’s belief, or conduct motivated by belief, is sincerely held; (2) whether a defendant’s belief, or conduct motivated by belief, is religious in nature; (3) whether a state regulation imposes a burden on the exercise of such belief or conduct; (4) whether a compelling state interest justifies the burden imposed upon a defendant’s belief or conduct; and (5) whether there is a less obtrusive form of regulation available to the state. [Citations omitted.]
With respect to the compelling state interest test, defendant concedes that plaintiffs beliefs regarding social security numbers, and his conduct motivated by those beliefs, are genuine and sincere. And it is not disputed that plaintiffs genuine beliefs and the actions taken by him in furtherance of those beliefs are religious in nature, arising from his interpretation of the Book of Revelation contained in the New Testament. Therefore, the first two elements of the test are satisfied. On the issue concerning whether the social security number requirement of MCL 257.307(l)(a) burdens the exercise of plaintiffs religious beliefs, plaintiff contends that the statute forces him to choose between abandoning his religious convictions so that he can operate a vehicle, a privilege enjoyed by others, and staying faithful to his beliefs while forgoing a driver’s license. Given the fact that we dispose of plaintiffs claim under the remaining elements of the compelling state interest test, we decline to make a specific finding regarding whether the exercise of plaintiff’s religious beliefs was truly burdened by the application of MCL 257.307(l)(a).
Next, we must ascertain whether a compelling state interest justifies the presumed burden imposed on plaintiffs religious beliefs and related conduct. Because ultimately federal law, the CSEPA, is incorporated by reference into MCL 257.307(l)(a) and a governmental interest, whether state or federal, is at stake, we deem it appropriate to examine the purpose behind the federal law in determining whether a compelling state interest exists. 42 USC 651 provides:
For the purpose of enforcing the support obligations owed by noncustodial parents to their children and the spouse (or former spouse) with whom such children are living, locating noncustodial parents, establishing paternity, obtaining child and spousal support, and assuring that assistance in obtaining support will be available under this part to all children (whether or not eligible for assistance under a state program funded under part A of this subchapter) for whom such assistance is requested, there is hereby authorized to he appropriated for each fiscal year a sum sufficient to carry out the purposes of this part.
Consistent with caselaw issued by courts across this country, including Michigan, there is a strong and compelling state interest in preserving and promoting the welfare of children relative to their financial health, which affects their overall well-being, by means of child support legislation, including enactments providing for court filiation and support orders, support enforcement and collection mechanisms, and other provisions securing the support of children. Prince v Massachusetts, 321 US 158, 168; 64 S Ct 438; 88 L Ed 645 (1944) (“A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers, within a broad range of selection.”); Crego v Coleman, 463 Mich 248, 273; 615 NW2d 218 (2000) (“Providing financial support for children is a permissible, important, and even compelling governmental interest.”); Torres v Kunze, 106 Conn App 802, 810; 945 A2d 472 (2008) (one cannot imagine a more compelling state interest than the support of children); In re Marriage of Paredes, 371 Ill App 3d 647, 653; 863 NE2d 788 (2007) (“ '[I]t is difficult to imagine a more compelling State interest than the support of children.’ ” [Citation omitted.]); In re Marriage of Didier, 134 Wash App 490, 499; 140 P3d 607 (2006) (neutral and generally applicable support laws “embody the state’s compelling interest of seeing that parents provide for their children”); Hur v Virginia Dep’t of Social Services Div of Child Support Enforcement, 13 Va App 54, 58; 409 SE2d 454 (1991) ("[D]uty of support to . . . children is necessarily related to the compelling governmental interest of preserving the welfare of children”).
Stated in more narrowly defined terms, the government has a compelling interest in the establishment of paternity, the tracking and locating of parents legally obligated to pay child support, the enforcement of support obligations, and the collection of support pay ments, and doing so in timely fashion, along with otherwise having in place a data-collection mechanism and network to assist in locating individuals, establishing paternity, and enforcing support obligations with respect to future births and parental responsibilities. The CSEPA’s requirement that driver’s license applicants furnish their social security numbers, as incorporated by MCL 257.307(l)(a), greatly assists in promoting these interests, and thus helps to successfully accomplish the broad compelling interest or goal of providing for the welfare of children because a social security number can be used as an important and practical tool to collect necessary information and data for support and paternity purposes. A social security number is a unique federal identifier that can be effectively used to locate absent parents and withhold wages, all in the name of supporting children. See Michigan Dep’t of State v United States, 166 F Supp 2d 1228, 1231-1233 (WD Mich, 2001) (Congress, demonstrating a strong public policy for using a federal identifier, intended to create and have in place a rapid response and automated mechanism to locate absent parents, withhold wages, and otherwise collect support through use of and reference to social security numbers drawn from license applications and entered into databases); McDonald v Alabama Dep’t of Pub Safety, 756 So 2d 880, 881-882 (Ala Civ App, 1999) (importance of social security numbers as unique identifiers is not in doubt).
Finally, we must determine whether there is a less obtrusive or restrictive means available to the state by which to promote its compelling interests such that plaintiffs religious objections can be accommodated.
We conclude that there are no less restrictive or obtrusive means available to promote the compelling state interests at stake here and that the reporting of social security numbers on license applications is essential to accomplishing these interests. Granting exemptions for plaintiff and other religious objectors would defeat the goals and interests sought to be promoted by the legislation.
Plaintiff argues that the interests could be promoted by simply waiting until he has a child and is involved in divorce or paternity proceedings before collecting the information, instead of demanding that he and all license applicants furnish their social security numbers despite religious objections. The first problem with this argument is that plaintiff himself suggested that he would not be compliant with the requirement to report his social security number even in divorce or paternity proceedings. Second, there is absolutely no guarantee that any person who has conceived a child would actually become involved in family court proceedings such that a social security number could be reported, either because of a purposeful attempt to evade court process or because the parent, without intent to evade process, cannot be located, possibly having no knowledge of the child. Indeed, the social security number, if previously procured from a license application, could be used to locate a parent under those circumstances and subject them to court process. Finally, we have contem plated the feasibility of allowing a religious exemption for someone who has no children because the compelling interest to support children would not appear to be at risk if a license applicant has no offspring; however, that appearance would be deceiving. Defendant would have the onerous task of confirming whether a religious objector has children, let alone dealing with the issue whether a religious belief is genuine, and some license applicants could intentionally be deceptive on the issue, or male applicants might simply not be aware of their parental status. But more importantly, much can transpire during the period between license renewals such that a license applicant can become a parent after renewing his or her license, leaving no social security number on file with defendant if a religious exemption were granted. And if a person in that situation did not participate in later paternity or divorce proceedings and could not be located, support enforcement and collection could be problematic. As we stated above, one of the state interests is having in place a data-collection mechanism and network, a type of safety net if you will, to assist in locating individuals, establishing paternity, and enforcing support obligations with respect to future births and parental responsibilities. This was clearly considered by Congress because 42 USC 666(a)(13)(B) already requires parents to furnish social security numbers in divorce, support, and paternity proceedings. So to craft a safety net or data-collection mechanism and network for children who will be born in the future, as well as to protect existing children whose parents’ whereabouts could become unknown at a later date or whose parents fail to participate in family court proceedings, Congress additionally required license applicants to furnish their social security numbers. 42 USC 666(a)(13)(A).
Plaintiffs religious beliefs conflict with any type of national identifier that could be used to assist in locating a parent, establishing paternity, enforcing support obligations, and collecting support. Furthermore, there is no other identifier or mechanism cited by plaintiff that could be used to promote the compelling state interests, much less one that would be as efficient in promoting those interests as a social security number. Granting a religious exemption to plaintiff and others similarly situated would substantially impair the state’s interests because the goals of, and interests secured by, the social security number requirement simply cannot be promoted without the reporting of a social security number. Defendant has shown that there are no viable, acceptable alternative means that can be used to promote the compelling state interests.
We acknowledge that granting one person a religious exemption, when viewed in comparison with the great multitude of license applicants who will report their social security numbers, will not cause the downfall of paternity and child support programs, sending them into chaos and turmoil. But the compelling state interest test should not succeed or fail on the basis of the number of people seeking an exemption, as viewed as a percentage of the total population. If that were the case, the test would essentially be rendered meaningless and would rarely, if ever, be satisfied, given that, as stated by the Supreme Court in People v DeJonge (After Remand), 442 Mich 266, 282; 501 NW2d 127 (1993), the “major benefactors [of free exercise rights] are religious minorities or dissidents whose beliefs and worship are suppressed or shunned by the majority.” (Emphasis added.) Furthermore, granting the requested religious accommodation and otherwise allowingreligious exemptions would compromise the government’s ability to administer the support enforcement programs by creating information gaps in the network and databases, and thus there is a compelling interest in the uniform application of the social security number requirement to license applicants. See Gonzales v O Centro Espirita Beneficente Uniao do Vegetal, 546 US 418, 435; 126 S Ct 1211; 163 L Ed 2d 1017 (2006) (claimed exemption can be denied when the state demonstrates a compelling interest in the uniform application of a particular program by showing that granting the requested religious exemption would compromise the government’s ability to administer the program).
The fact that some license applicants need not furnish social security numbers, because federal law does not require them to have a social security number in the first place, does not demand that we recognize an exemption for plaintiff; he has a social security number, and there are no less restrictive or obtrusive means to promote the compelling state interests cited above.
Accordingly, the religious-conviction exemption formerly found in MCL 257.307(13) does not provide relief to plaintiff under a theory based on Const 1963, art 1, § 4, nor does the constitutional provision, standing alone, entitle plaintiff to relief.
Next, plaintiff argues that defendant’s actions violated his right to equal protection under Const 1963, art 1, § 2, which provides:
No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.
The essence of plaintiffs argument is that he is not provided the same exemption as persons who do not have to report social security numbers because they do not have them. He claims that they are allowed to obtain a driver’s license and he is not, unless he sacrifices his fundamental right to freely worship.
In Brinkley v Brinkley, 277 Mich App 23, 35; 742 NW2d 629 (2007), this Court, addressing an equal protection claim, stated:
Both the federal and state constitutions provide that no person will be denied the equal protection of the law. The federal and state constitutional guarantees of equal protection are coextensive. The constitutional guarantee of equal protection ensures that people similarly situated will be treated alike, but it does not guarantee that people in different circumstances will be treated the same. [Citations omitted; emphasis added.]
See also Morales v Parole Bd, 260 Mich App 29, 49; 676 NW2d 221 (2003); Wysocki v Felt, 248 Mich App 346, 367; 639 NW2d 572 (2001).
“[E]qual protection does not require the same treatment be given those that are not similarly situated.” Alspaugh v Comm on Law Enforcement Standards, 246 Mich App 547, 555; 634 NW2d 161 (2001).
Here, plaintiff, or anyone claiming that he or she need not report an existing social security number on a license application, is not similarly situated in relation to a person who does not have a social security number. Individuals who are exempt by law from obtaining a social security number cannot, of course, furnish a number that has never been given to them. In Florida State Conference of the Nat’l Ass’n for the Advancement of Colored People v Browning (On Remand), 569 F Supp 2d 1237 (ND Fla, 2008), there was an equal protection challenge to a voter registration statute that required applicants who did not have driver’s licenses to provide the last four digits of their social security numbers, even though applicants who did hold driver’s licenses were not also required to provide the last four digits of their social security numbers. The federal district court, after first noting that equal protection only requires that states treat similarly situated people alike, ruled that “[b]ecause they have no driver’s license, such applicants are not similarly situated with applicants who can provide a driver’s license number.” Id. at 1257.
Accordingly, we hold that plaintiffs equal protection claim fails.
Plaintiff next argues that it is unconstitutional for the state of Michigan to enter into a contract with the United States pursuant to the CSEPA if it results in a violation of federal and state constitutional rights. Plaintiffs argument relies on the Tenth Amendment of the United States Constitution, the Spending Clause, Const 1963, art 1, § 4, and South Dakota v Dole, 483 US 203; 107 S Ct 2793; 97 L Ed 2d 171 (1987). The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Spending Clause provides that “[t]he Congress shall have the Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” US Const, art I, § 8. In Dole, supra at 206-208, the United States Supreme Court, addressing the power of Congress under the Spending Clause, stated:
Incident to this power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power “to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.”
The spending power is of course not unlimited, but is instead subject to several general restrictions articulated in our cases. The first of these limitations is derived from the language of the Constitution itself: the exercise of the spending power must be in pursuit of “the general welfare.” In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress. Second, we have required that if Congress desires to condition the States’ receipt of federal funds, it “must do so unambiguously ... , enabling] the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Third, our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated “to the federal interest in particular national projects or programs.” Finally, we have noted that other constitutional provisions may pro vide an independent bar to the conditional grant of federal funds. [Citations omitted; alteration and internal omission in original.][ ]
Plaintiffs argument focuses solely on the fourth restriction or limitation on Congress’s spending power (“independent constitutional bar” limitation), claiming that the Tenth Amendment and Const 1963, art 1, § 4, are offended by Michigan’s participation in the CSEPA. In Dole, the state of South Dakota brought an action that challenged the constitutionality of a federal act that conditioned receipt by states of federal highway funds on the adoption of a minimum drinking age of 21 years. The Court, explaining the nature of the “independent constitutional bar” limitation and the relevant cases, stated:
These cases establish that the “independent constitutional bar” limitation on the spending power is not, as petitioner suggests, a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly. Instead, we think that the language in our earlier opinions stands for the unexceptionable proposition that the power may not be used to induce the States to engage in activities that would themselves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress’ broad spending power. But no such claim can be or is made here. Were South Dakota to succumb to the blandishments offered by Congress and raise its drinking age to 21, the State’s action in so doing would not violate the constitutional rights of anyone. [Dole, supra at 210-211.]
The enactment of the CSEPA by Congress under the Spending Clause, and specifically in relation to the requirement that a driver’s license applicant furnish his or her social security number, 42 USC 666(a)(13)(A), did not induce the state of Michigan to engage in unconstitutional activities relative to the free exercise of religion, given that MCL 257.307(l)(a), as applied to plaintiff and on its face, does not violate Const 1963, art 1, § 4, pursuant to our analysis above.
With respect to the Tenth Amendment, the Dole Court, rejecting the same argument proffered by plaintiff here, ruled:
We have also held that a perceived Tenth Amendment limitation on congressional regulation of state affairs did not concomitantly limit the range of conditions legitimately placed on federal grants. In Oklahoma v Civil Service Comm’n, 330 U.S. 127; 67 S. Ct. 544; 91 L. Ed. 2d 794 (1947), the Court considered the validity of the Hatch Act insofar as it was applied to political activities of state officials whose employment was financed in whole or in part with federal funds. The State contended that an order under this provision to withhold certain federal funds unless a state official was removed invaded its sovereignty in violation of the Tenth Amendment. Though finding that “the United States is not concerned with, and has no power to regulate, local political activities as such of state officials,” the Court nevertheless held that the Federal Government “does have power to fix the terms upon which its money allotments to states shall be disbursed.” The Court found no violation of the State’s sovereignty because the State could, and did, adopt “the ‘simple expedient’ of not yielding to what she urges is federal coercion. The offer of benefits to a state by the United States dependent upon cooperation by the state with federal plans, assumedly for the general welfare, is not unusual.” [Dole, supra at 210 (citations omitted).]
Moreover, in Kansas v United States, 214 F3d 1196 (CA 10, 2000), the United States Court of Appeals for the Tenth Circuit, citing Dole in support, rejected a similar constitutional challenge to the CSEPA under the Spending Clause. See also Michigan Dep’t of State, supra at 1233-1234.
Accordingly, we reject plaintiffs argument that Michigan’s participation under the CSEPA constitutes an unconstitutional state-federal contract.
As a matter of law, plaintiff failed to establish a violation of his statutory rights under former MCL 257.307(13) of the Michigan Vehicle Code, failed to establish a violation of his religious rights under Const 1963, art 1, § 4, failed to establish a violation of his equal protection rights under Const 1963, art 1, § 2, and failed to establish an unconstitutional state-federal contract under the Spending Clause or the Tenth Amendment.
Affirmed.
In plaintiffs appellate brief, he reveals his “religious belief that social security numbers are at best an immediate precursor to the mark of the beast, described in the Book of Revelation at Chapter 14, verses 16-17, and Chapter 20, verse 4.”
We note that these two constitutional challenges to the social security number requirement found in MCL 257.307(l)(a) are not facial challenges, but rather challenges to the enforcement of the provision against plaintiff or, worded differently, “as applied” challenges. “When faced with a claim that application of a statute renders it unconstitutional, the Court must analyze the statute ‘as applied’ to the particular case.” Crego v Coleman, 463 Mich 248, 269; 615 NW2d 218 (2000).
The Court of Claims adjudicated this original action, granting summary disposition in favor of defendant in cursory fashion. Defendant did not argue below, and does not argue on appeal, that plaintiffs sole avenue of relief was a driver’s license appeal to the circuit court in plaintiffs county of residence pursuant to MCL 257.323. Therefore, we shall not explore that potential issue.
As indicated in Tenison v State, 38 P3d 535, 537 (Alas App, 2001), “[t]he federal government has no authority to directly order the states to change their licensing laws, so Congress used an economic incentive: states lose a substantial portion of their federal funding for various welfare programs if they do not require all license applicants to supply their social security number.” The CSEPA was enacted pursuant to congressional power under the Spending Clause. See generally Hodges v Thompson, 311 F3d 316 (CA 4, 2002).
In Employment Div, Dep’t of Human Resources of Oregon v Smith, 494 US 872, 885-886; 110 S Ct 1595; 108 L Ed 2d 876 (1990), the United States Supreme Court, analyzing a case under the Free Exercise Clause of the First Amendment, held that generally applicable, religion-neutral laws that, in effect, burden a religious practice need not be justified by a compelling state interest. See also the plurality opinion in Bowen v Roy, 476 US 693, 702-712; 106 S Ct 2147; 90 L Ed 2d 735 (1986). McCready applied Smith to a challenge made pursuant to the Free Exercise Clause of the First Amendment, but then applied the compelling state interest test to its analysis under Const 1963, art 1, § 4. McCready, supra at 142-144. We note that there exists caselaw indicating that the free exercise language in Const 1963, art 1, § 4, and the Free Exercise Clause of the First Amendment are subject to similar interpretation. Advisory Opinion re Constitutionality of 1970 PA 100, 384 Mich 82, 105; 180 NW2d 265 (1970); Weishuhn v Catholic Diocese of Lansing, 279 Mich App 150, 156; 756 NW2d 483 (2008); Scalise v Boy Scouts of America, 265 Mich App 1, 11; 692 NW2d 858 (2005). However, McCready, being the latest pronouncement by our Supreme Court on the issue, controls our analysis and requires application of strict scrutiny under the compelling state interest test. Washington Mut Bank, FA v ShoreBank Corp, 267 Mich App 111, 119; 703 NW2d 486 (2005) (“We are obligated to follow the most recent pronouncement of the Supreme Court on a principle of law.”). The Michigan Supreme Court in Donkers v Kovach, 481 Mich 897 (2008), recently voted to deny an application for leave to appeal in a case involving witness oaths, and three members of the Court who dissented from the order voiced their concerns that post-Smith cases, specifically McCready and Reid, applied strict scrutiny under the compelling state interest test to religious freedom challenges under Const 1963, art 1, § 4, relative to religion-neutral laws that were generally applicable, yet failed to explain the basis for imposing a greater burden. We do note that under Michigan and federal constitutional analysis, strict scrutiny is applicable in hybrid cases, i.e., cases in which a free exercise claim is made in conjunction with other constitutional protections such as freedom of speech, freedom of the press, or the right of parents to direct the education of their children, even where the challenged law is generally applicable and religion-neutral. Smith, supra at 881; People v DeJonge (After Remand), 442 Mich 266, 279; 501 NW2d 127 (1993).
We reject defendant’s argument that Michigan also has a compelling state interest in obtaining federal funding made available only if the state complies with the CSEPA. See 42 USC 655 (funds for operating costs), 42 USC 658a (incentive payments), 42 USC 669b (monies for access and visitation programs), and 42 USC 601 et seq. (grant monies for needy family programs). While Michigan certainly has an interest in obtaining federal funds, which may even be a fiscal necessity, we are not prepared to rule that the interest is compelling in the context of the analysis concerning constitutional rights. It would indeed be troubling to conclude that Michigan can, without state constitutional ramifications, effectively burden a citizen’s free exercise of religion, or any constitutional right, if sufficient monies are thrown in its direction by the federal government. We are in agreement with the assessment made by the United States Court of Appeals for the Tenth Circuit in United States v Hardman, 297 F3d 1116, 1127 (CA 10, 2002), that “a desire for federal funds is not a compelling interest.” See also Church on the Rock v City of Albuquerque, 84 F3d 1273, 1280 (CA 10, 1996) (fact that city policy prohibiting use of public senior centers as places for religious worship was designed to comply with federal laws conditioning federal funding on compliance does not shelter policy from constitutional scrutiny as a city or state’s wish for federal funds does not constitute a compelling state interest).
We also reject defendant’s reliance on the REAL ID Act of 2005 (RIA), PL 109-13, 119 Stat 302, for purposes of identifying a compelling state interest. “The [RIA] requires that federal agencies accept only state-issued driver’s licenses and identification cards that meet stringent information requirements.” In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1, 10 n 11; 740 NW2d 444 (2007). The relevant language in MCL 257.307(l)(a) regarding social security numbers was not enacted in furtherance of the RIA. Even though the RIA had already been enacted by Congress when plaintiff was seeking renewal of his driver’s license, Michigan has not yet implemented the act through legislation, having been granted an extension for compliance, so it cannot be said that defendant required plaintiff to report his social security number in order to serve the purposes and goals of the RIA. Therefore, we decline to consider the RIA in our analysis.
Plaintiff asserted at oral argument that he does not have any children. We also note that plaintiff claimed to have never reported his social security number to defendant because, before the renewal application at issue here, such requirement was not in place when he last renewed his license. Consistently with this statement, counsel for defendant noted at argument that had plaintiff previously reported his social security number to defendant, the number would have been preprinted on the renewal application, which was not the case. 1998 PA 330 added the statutory language at issue relative to furnishing social security numbers.
We note that virtually every jurisdiction that has addressed a claim that furnishing one’s social security number violates religious free exercise rights has rejected the argument. Anno: Free exercise of religion as applied to individual’s objection to obtaining or disclosing social security number, 93 ALR5th 1, § 2[a]; Miller v Reed, 176 F3d 1202, 1206-1207 (CA 9, 1999); Kasler v Howard, 323 F Supp 2d 675, 680 (WD NC, 2003); Stoianoff v Comm’r of Motor Vehicles, 107 F Supp 2d 439, 449-450 (SD NY, 2000); Mefford v White, 331 Ill App 3d 167, 174-178; 770 NE2d 1251 (2002); Kocher v Bickley, 722 A2d 756, 761-762 (Pa Commonwealth, 1999); McDonald, supra at 885-886; State v Loudon, 857 SW2d 878, 882-883 (Tenn Crim App, 1993); Terpstra v State, 529 NE2d 839, 843-847 (Ind App, 1988); Penner v King, 695 SW2d 887, 890 (Mo, 1985).
The CSEPA, particularly 42 USC 654a(a), provides that
[i]n order for a State to meet the requirements of this section, the State agency administering the State program under this part shall have in operation a single statewide automated data processing and information retrieval system which has the capability to perform the tasks specified in this section with the frequency and in the manner required by or under this part.
The Dole Court also indicated that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’ ” Dole, supra at 211. Plaintiff, while acknowledging this language, does not present an argument that the state of Michigan was effectively coerced into complying with the CSEPA. | [
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Bandstra, J.
In Docket No. 270031, plaintiff Great Lakes Society (GLS) appeals by leave granted the trial court’s opinion and order affirming the denial by defendant Georgetown Charter Township Zoning Board of Appeals (ZBA) of GLS’s request for a special use permit and for a variance. In Docket Nos. 280574 and 280577, defendants appeal by leave granted the trial court’s opinion and order granting GLS partial summary disposition on its claims under the Religious Land Use and Institutionalized Fersons Act (RLUIFA), 42 USC 2000cc et seq., and the Michigan and United States constitutions.
We conclude that the trial court applied an incorrect legal standard in deciding that the building GLS pro posed to build was not a “church” under the township ordinance and that, under the correct analysis, it is a church. Nonetheless, we conclude that the ZBA properly decided not to grant a variance with respect to the proposed building location and that it did not violate the RLUIPA or any constitutional guarantees by making that decision. Accordingly, we affirm in part, reverse in part, and remand this matter for entry of an order granting defendants summary disposition on GLS’s statutory and constitutional claims. We do not retain jurisdiction.
I. factual background and proceedings below
GLS is a Michigan ecclesiastical corporation and an IRS-recognized religious organization exempt from taxation under 26 USC 501(c)(3), and describes itself as ministering to persons having varying degrees of chemical sensitivities to common environmental pollutants. GLS seeks to construct a two-story building, approximately 9,700 square feet in size, for worship services and supporting ministries, on a six-acre parcel of property owned by GLS pastor John Cheetham (Cheetham property), located in defendant Georgetown Charter Township (the Township). The Cheetham property is zoned low-density residential (LDR). Section 8.3(A) of the Georgetown Charter Township zoning ordinances permits construction of “churches” in a residential district with a special use permit (SUP).
GLS filed its initial SUP application on April 17, 2002, and its second SUP application on February 18, 2003. According to those applications and additional information about the proposed building that GLS provided to the ZBA, the building would include (1) a 2,400-square-foot sanctuary, including a reception area, coatroom, bathrooms, kitchen, and special heating/cooling and air- filtration equipment, for a maximum of 60 people to participate in Sunday worship services; (2) a 1,600-square-foot counseling ministry area, including meeting rooms, a group conference room, a waiting lounge, and bathrooms; (3) a 1,500-square-foot tape/publication ministry area, including a recording studio, tape-copying equipment, publishing equipment, a mailing room, and a computer room; (4) an 1,800-square-foot ministerial training ministry area, including classrooms, a research library, a study area, an exercise room, a kitchen, and a bathroom; (5) a 1,200-square-foot administration area, including a ministerial office, a board of elders conference room, a bathroom, and a secretary/treasurer’s office; (6) a 375-square-foot health ministry area; (7) a youth center, and (8) a large garage to house a GLS transport van, snow clearing/landscape equipment, space for a visiting minister’s car, and recycling bins. The main floor was also to include airlock entrances and a mechanical/electrical/filter room.
GLS explained the purpose of the supporting ministries to the ZBA. According to GLS, its counseling ministry provides spiritual counseling to church members on an individual and group basis to facilitate their spiritual growth. John Cheetham and Timothy DeYoung, ordained ministers, are GLS’s spiritual counselors. No fees are charged for counseling services. Rather, as with all of GLS’s supporting ministries, donations are accepted; this is consistent with the religious belief that such giving is to be done voluntarily and “cheerfully.” GLS’s ministerial training ministry is necessary to achieve “perpetual existence of [GLS] as a religious organization” and is an integral part of continuing GLS’s form of worship and mission. A youth center was included in the proposed building in anticipation of future growth in membership and as a means to strengthen youth connection to the group and to God. The youth center would also be used for weddings, funerals, Bible forums, and other religious or worship functions. GLS’s tape/publication ministry “supports members’ ability to worship through personal study of Christ’s teachings” and is an effective means of “evangelistic outreach for new members.”
GLS described its “health ministry,” termed a food cooperative or nutritional service by the Township, as a “very minor portion of [the] entire ministry,” arising out of GLS’s mission, which includes “teach[ing] and practicing] the health and nutritional principles as revealed in the Holy Scriptures and .. . providing] for the members ... as Christ taught to provide.” The health ministry provides GLS members with access to specialty food items and fragrance-free products. It also allows members to obtain “ordinary” items in a fragrance-free environment. Cheetham characterized the health ministry as “a spiritual service that is essential to the well-being of the members.” Members cannot participate in the health ministry until they “establish a spiritual connection” by “show[ing] their commitment through interest... in the spiritual teachings of [GLS].” Cheetham explained:
[GLS’s] nutritional practice is an integrated and critical part of [its] worship in much the same way that Jews would follow Kosher standards. Chemically sensitive and allergenic people find that [the GLS] Health Ministry is essential to their spiritual and physical health as well as their ability to worship and hold supporting jobs for their personal survival.
Cheetham further explained that GLS members were not required to pay for items they obtained from this ministry, but were free to make a donation to GLS in appreciation for this service. Cheetham acknowledged that GLS had a one-line advertisement in the phone book under the heading of “nutritionists,” using the name “Nutritional Research” at the Cheetham property address. According to Cheetham, this was GLS’s most effective form of outreach to the public; when people called to express an interest in nutrition, it gave GLS an opportunity to relate nutritional questions to spirituality. Cheetham believed that “[a]t least 80 percent” of GLS’s current members came to the group through the nutrition route; the others were referrals.
GLS presented the ZBA with documentary evidence establishing that other area churches also housed ancillary services, including youth centers, preschools, day-care centers, multipurpose rooms, gymnasiums, a coffee bar, a dance studio, a book store, a printing office, libraries, offices, and kitchens, and that many of them had large garages. GLS also presented documentary evidence indicating that a number of area churches offered counseling services, ministerial training, and other ministerial services, such as performing weddings or funerals, for a fee. Finally, GLS provided documents showing that several churches had sanctuaries that comprise less than 30 percent of the church building.
Following a remand from the trial court to allow the parties to further develop the record, the ZBA concluded that the principal purpose of GLS’s proposed building was not for public worship and, therefore, that the proposed building is not a church for purposes of the zoning ordinance. Consequently, GLS’s SUP application was denied.
On February 24, 2003, while GLS’s SUP application was pending with the Township, the township board approved an amendment of § 20.4(E) of the zoning ordinance relating to street-frontage requirements for churches constructed in residential districts. Before this amendment, GLS believed that the Cheetham property met, or would be able to meet, the requirements of § 20.4(E). However, the Cheetham property did not meet the amended requirements. Consequently, GLS applied for a variance from the frontage requirements in § 20.4(E) as amended. The ZBA denied GLS’s variance request, concluding that it failed to meet the specific standards for granting a variance set forth in the zoning ordinance.
In reaching this decision, the ZBA noted the purposes of the requirement from which a variance was sought, as well as the degree of the variance sought. More specifically, the Township planner observed, with the ZBA’s concurrence, that the purpose of requiring that a church constructed in a residential zone have 200 feet of frontage on a major street is to ensure adequate sight distance for traffic entering and leaving the church site, to provide sufficient spacing between the access point to the church and adjacent property lines and driveways, to minimize confusion with regard to multiple driveways within a limited distance, to provide reasonable vehicle “stacking space” in front of the church property, and to minimize conflict with adjacent driveways with vehicles turning left into the site. Additionally, the ZBA observed that the Cheetham properly has only 66 feet of frontage on a major street and, therefore, that the variance sought from the 200-foot requirement was “huge.” The ZBA took note that all but three of the 37 churches in the Township have 200 feet of frontage on a major street, as required by § 20.4(E)(2). Of the three noncompliant churches, the first was constructed more than 50 years ago and has 165 feet of frontage on a major street, the second was constructed more than 20 years ago and has 153 feet of frontage on a major street, and the third, constructed in 1990, was granted a variance to have less road frontage on a major street; it has 132 feet of frontage on two separate major streets. On the basis of these considerations, the ZBA denied the variance request.
GLS appealed the ZBA’s denial of both the SUP and the variance in the Ottawa Circuit Court, by way of two separate complaints, each of which also asserted claims under RLUIPA and the Michigan and United States constitutions, as well as for superintending control. The trial court first concluded that, under Michigan law, whether a building is a “church” is properly ascertained by evaluating the “principal use” of the building as determined by the activities that take place in the building. After observing that “[tjhere is record evidence that supports the ZBA’s conclusion that the principal use of the proposed building would not be for public worship,” the trial court concluded that the decision of the ZBA that the proposed building was not a church for zoning purposes was supported by competent, material, and substantial evidence on the record. The trial court further concluded that GLS’s appeal of the ZBA’s denial of a variance was moot because, the proposed building not being a church, GLS was not eligible to apply for the variance sought.
Later, in response to cross-motions for summary disposition of GLS’s RLUIPA and constitutional claims, the trial court determined that GLS’s construction of the proposed structure would constitute “religious exercise” under RLUIPA. Consequently, the trial court concluded that the determination that the proposed building was not a church and the denial of a variance amounted to a “substantial burden on religious exercise,” were capricious and not in furtherance of a compelling governmental interest, and, therefore, contravened the “substantial burden” provision of RLU-IPA, 42 USC 2000cc(a). The trial court further determined that the GLS members’ constitutional right to the free exercise of religion was “coextensive with GLS’s rights under RLUIPA” and, thus, that the ZBA’s actions violated that right as well. Further, the trial court concluded that the ZBA’s actions violated GLS’s members’ constitutional rights to freely associate and to equal protection.
II. ANALYSIS
A. IS THE PROPOSED BUILDING A CHURCH?
GLS first argues that the trial court erred in affirming the ZBA’s determination that its proposed building does not constitute a church for zoning purposes. We agree.
Ordinances are treated as statutes for the purposes of interpretation and review. Soupal v Shady View, Inc, 469 Mich 458, 462; 672 NW2d 171 (2003). Hence, the interpretation and application of a municipal ordinance presents a question of law, which this Court reviews de novo. City of Riverview v Sibley Limestone, 270 Mich App 627, 630; 716 NW2d 615 (2006). The goal of statutory construction, and thus of construction and interpretation of an ordinance, is to discern and give effect to the intent of the legislative body. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). Terms used in an ordinance must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary for definitions. See Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004).
Generally, courts review a decision of a zoning board to determine whether it complies with the constitution and the laws of the state, is based on proper procedure, is supported by competent, material, and substantial evidence on the record, and represents the reasonable exercise of the board’s discretion. MCL 125.3606. The determination of “ ‘the facts which, taken together, can be said to describe the situation’ ” presented by GLS’s practices and building proposal is a factual matter, and the ZBA decisions in that regard are entitled to deference. Macenas v Village of Michiana, 433 Mich 380, 395-396; 446 NW2d 102 (1989) (citation omitted). However, the manner in which the zoning ordinance applies to those facts, i.e., whether the proposed building is a church for purposes of the ordinance, is a question of law, for this Court to decide as a matter of review de novo. Id. at 396.
For the reasons discussed below, the circuit court erred in concluding that Michigan law requires that a proposed building constitutes a church only if its principal use is public worship. Consequently, the circuit court erred in concluding that GLS’s proposed building does not constitute a church. Rather, the correct standard is whether the building is used for public worship and reasonably closely related activities or uses. The record evidence is undisputed that the proposed building was to be used for regular public worship. Further, the other identified uses are reasonably closely related, in substance and in space, to that public worship use. Therefore, the proposed GLS building constitutes a church for purposes of the zoning ordinance.
The trial court relied on Portage Twp v Full Salvation Union, 318 Mich 693; 29 NW2d 297 (1947), in analyzing whether the proposed GLS building is a “church” within the meaning of that term in the Township zoning ordinance. Portage, like the present case, involved a zoning ordinance that allowed a church to be located in residential zoning districts. Id. at 696-697. At issue were “camp meetings” that were held during the summers and the construction of small buildings to accommodate some campers and to provide meals on a no-profit/at-cost basis. Id. at 698. The plaintiff township brought suit, seeking an injunction to prevent those uses of the defendant’s property. The Supreme Court quoted the dictionary definition of “church,” which was a “ ‘building set apart for public worship ....’” Id. at 700. It then determined that religious gatherings at which some people would “ ‘camp,’ in the ordinary meaning of that word,” using the small buildings for residential purposes, did not constitute a church activity. Id. The logic of Portage was that, because those buildings were not “set apart for public worship” in any way, but were instead residential in nature, they did not fall within the usual definition of a “church.”
The issue in Portage was significantly different from the issue here. The issue here is whether a proposed building that is to be used for public worship loses its status as a church because it also is to be used for other purposes. The trial court here erred in concluding that Portage addressed that question in any fashion. The trial court further erred in concluding that Portage stands for the proposition that a building is a church only if its principal use is public worship. The tried court, citing Portage, reasoned that “[u]nder Michigan law, a ‘church’ is a building set apart whose principal use is for public worship____The question, then, is what is to be the ‘principal use’ of GLS’s proposed building.” However, the term “principal use” is not found anywhere within Portage. And further, the dictionary definition quoted by Portage required only that a building be “set apart for public worship” to be considered a church. Portage, 318 Mich at 700. There was no suggestion whether the public worship function of the building must be its principal or predominant use, a significant or substantial use, or simply one of its uses in order to qualify as a church.
As with the ordinance in Portage, the ordinance at issue here does not define a “church.” Therefore, as in Portage, this Court will turn to current dictionary definitions of “church” to find the ordinary meaning of that term as it is used in the ordinance. Stanton v Battle Creek, 466 Mich 611, 617; 647 NW2d 508 (2002) (“When determining the common, ordinary meaning of a word or phrase, consulting a dictionary is appropriate.”). It does not appear that the dictionary definition of “church” has changed much in the 60 years since Portage was decided; it is today simply defined as “a building for public. . . worship.” American Heritage Dictionary, Second College Edition; accord Random House Webster’s College Dictionary (2000); Merriam-Webster’s Collegiate Dictionary, Eleventh Edition. The dictionary definition makes no suggestion about how exclusive or substantial the public worship use of a building must be for it to qualify as a church. If anything, comparing this “building for” definition to the “building set apart for” definition referred to in Portage suggests that less exclusivity or substantiality is needed under the current usage of the term “church.”
In any event, it is clear that a building must be used to some extent for public worship to fall within the definition of “church.” The record here is unrefuted that regular worship services would be conducted for the GLS membership in the proposed building, and the ZBA has acknowledged that worship would take place there. The argument at issue is whether, notwithstanding that use, the proposed building is not a church because of the nonworship activities and uses that will occur within it. There being no Michigan precedent addressing that question in the zoning context, we turn to a brief review of such precedents from other jurisdictions. People v Rogers, 438 Mich 602, 609; 475 NW2d 717 (1991).
As a general matter “ ‘[c]hurches .. . and other institutions dedicated to religious objectives are in some degree protected from the full impact of zoning restrictions. These uses are favored for reasons ranging from their unique contribution to the public welfare to constitutional guarantees of freedom of worship.’ ” Rapid City v Kahler, 334 NW2d 510, 512 (SD, 1983) (deletion added), quoting 2 Anderson, American Law of Zoning (2nd ed), § 12.18. Thus, for example, it is an “almost universal rule that churches and their attendant uses are permitted in residential areas .. .Church of Jesus Christ of Latter Day Saints v Idaho Falls, 92 Idaho 571, 574; 448 P2d 185 (1968); accord In re Diocese of Rochester v Brighton Twp Planning Bd, 1 NY2d 508, 522; 154 NYS2d 849; 136 NE2d 827 (1956) (“It is well established in this country that a zoning ordinance may not wholly exclude a church or synagogue from any residential district.”) (emphasis deleted). As one court has reasoned, churches need not be established only in sparsely settled areas; instead, “wherever the souls of men Eire found, there the house of God belongs.” O'Brien v Chicago, 347 Ill App 45, 51; 105 NE2d 917 (1952). Consistent with these principles, the Michigan Supreme Court noted that as early as 1787, in the Northwest Ordinance for the Northwest Territory, part of which became the state of Michigan, religion and morality were declared to be “ ‘necessary to good government and the happiness of mankind.’ ” Roman Catholic Archbishop of Detroit v Orchard Lake, 333 Mich 389, 394; 53 NW2d 308 (1952). Accordingly, the Court concluded that churches could not be completely excluded from a municipality. Id.
As a corollary to the favored status of churches, courts have held that zoning authorities must be flexible and accommodating in reviewing requests to permit church building projects. “It is well settled that... greater flexibility is required in evaluating an application for a religious use than an application for another use and every effort to accommodate the religious use must be made.” In re Genesis Assembly of God v Davies, 208 AD2d 627, 628; 617 NYS2d 202 (1994) (citations omitted).
One component of this accommodating and flexible approach is to broadly define what constitutes a “church” activity or use in light of changing ecclesiastical purposes and circumstances. “ ‘[T]he concept of what constitutes a church has changed from a place of worship alone, used once or twice a week, to a church used during the entire week, nights as well as days, for various parochial and community functions.’ ” Beit Havurah v Norfolk Zoning Bd of Appeals, 177 Conn 440, 447-448; 418 A2d 82 (1979), quoting 2 Rathkopf, Zoning & Planning, § 20.03, p 20-53 (1978). More than half a century ago, the New York Court of Appeals handed down an often-cited summary of what constitutes a church in contemporary society:
A church is more than merely an edifice affording people the opportunity to worship God. Strictly religious uses and activities are more than prayer and sacrifice and all churches recognize that the area of their responsibility is broader than leading the congregation in prayer. Churches have always developed social groups for adults and youth where the fellowship of the congregation is strengthened with the result that the parent church is strengthened .... When a member of the congregation cements friendships with other members of the congregation, the church benefits and becomes stronger. It is a religious activity for the church to provide a place for these social groups to meet, since the church by doing so is developing into a stronger and closer knit religious unit. To limit a church to being merely a house of prayer and sacrifice would, in a large degree, be depriving the church of the opportunity of enlarging, perpetuating and strengthening itself and the congregation. [In re Community Synagogue v Bates, 1 NY2d 445, 453; 154 NYS2d 15; 136 NE2d 488 (1956).]
There are, however, limitations to this approach: “the religious aim of strengthening the congregation through fellowship may not be permitted to be perverted into a justification for establishing a place of entertainment, such as a country club ....” Id. “The activity or use must be intended to promote the pur poses for which the church is instituted, the most, but not sole, prominent purpose of which is the public worship of God.” Solid Rock Ministries Int’l v Monroe Zoning Bd of Appeals, 138 Ohio App 3d 46, 55; 740 NE2d 320 (2000). A relationship test is generally used in this regard: “the activities or the use to which the property is put must be reasonably closely related, in substance and in space, to the church’s purpose.” Id.; accord, e.g., Idaho Falls, 92 Idaho at 574.
While we recognize that these foreign precedents are not binding on this Court, they are nonetheless persuasive authority. Rogers, 438 Mich at 609. They represent a broad agreement of opinion from our sister states and are consistent with cited zoning treatises and other authorities. Further, they flow from and are consistent with the deference for religious and church activities and uses in the zoning context recognized by our Supreme Court in Orchard Lake. Accordingly, we adopt these principles as a matter of Michigan law and apply them in determining this appeal.
To begin, as explained earlier, there is no doubt that the proposed building would be used for public worship. The question then becomes whether the other uses of the building are reasonably closely related, in substance and in space, to that public worship use.
All the proposed activities would occur within the same building. Accordingly, the spatial relationship test is not at issue. With respect to whether the other activities are reasonably closely related in substance to the public worship function of the proposed building, almost all of them clearly are. That is certainly true for the meditation and prayer rooms that adjoin the worship center. They provide space for traditional worship activities in a more intimate, small group setting. As explained in Bates, the youth center and other areas of the building designed to strengthen the fellowship of the GLS congregation serve to enrich GLS as a worship-ping community. For much the same reason, the use of the proposed building to provide ministerial, faith-based counseling to congregants is reasonably closely related to the public worship use of the building. See, e.g., Church of the Saviour v Tredyffrin Twp Zoning Hearing Bd, 130 Pa Cmwlth 542, 548; 568 A2d 1336 (1989) (“[Counseling is an integral part of the church’s activities.”). And so is use of the building to train ministers and to promulgate the teachings of the church through broadcasts and publication; these ac tivities are designed and intended to effectively communicate to a wider audience the message that is regularly espoused at GLS’s public worship services. See Burlington Assembly of God v Florence Twp Zoning Bd of Adjustment, 238 NJ Super 634, 642; 570 A2d 495 (1989) (concluding that the operation of a church’s radio station is a religious activity). As the record in this case demonstrates, all these activities and uses are relatively commonplace among churches in the area and elsewhere.
The same is not true of GLS’s health ministry “co-op” activities, whereby GLS buys bulk amounts of various products for distribution to its members. However, this does not necessarily mean that the health ministry is unrelated to GLS’s public worship purpose. To the contrary, this activity flows directly from the unique reason for GLS’s existence as a church in the first place, i.e., to accommodate the chemical sensitivities and allergies of its members. By operating its health ministry, GLS asserts that it provides a much-needed service to its members in a fashion otherwise unavailable in today’s society. Pastor Cheetham characterized the health ministry as a “spiritual service that is essential to the well-being of the members” and part of the GLS mission to “teach and practice the health and nutritional principles as revealed in the Holy Scriptures . . . .” Compare Shim v Washington Twp Planning Bd, 298 NJ Super 395, 408; 689 A2d 804 (1997) (daycare centers considered part of a spiritual mission because they provided a valuable community service, even though they did not necessarily advance religious teachings). We cannot conclude that the health ministry does not strengthen GLS as a community in its worship and otherwise. See Bates, 1 NY2d at 453. Further, the health ministry generates a net positive flow of revenue that helps to support GLS in its public worship and other endeavors. In this regard, it is similar to quasi-commercial ventures that the record demonstrates are occurring in other area churches to raise money for various causes. Thus, the health ministry use of the proposed building is not so far afield from its public worship purpose, nor so extensive, that it would undermine its status as a church.
In sum, we conclude that, under the correct legal analysis, the record here does not support the ZBA’s determination that the proposed GLS building is not a church for purposes of the Township’s ordinance. Accordingly, as a church, GLS could qualify for an SUP to construct its building, assuming that a variance should have been granted for the location GLS proposed.
B. DENIAL OF THE VARIANCE
GLS next argues that the ZBA improperly denied its request for a variance allowing it to construct its church on the Cheetham property. The trial court did not review this decision, reasoning that, because the GLS building is not a church, it could not qualify for the variance sought. Nonetheless, because this issue was fully briefed in the trial court, this Court’s review of any trial court decision on GLS’s appeal of the denial would be de novo, Norman Corp v East Tawas, 263 Mich App 194, 198; 687 NW2d 861 (2004), and since the record is adequate for our review, we will consider this issue, Peterman v Dep’t of Natural Resources, 446 Mich 177, 183; 521 NW2d 499 (1994).
GLS’s first argument arises from the fact that the ordinance was amended during the time between its initial application and when the Township made its decision to deny that application. Before the amendment, the zoning ordinance included only a general 200-foot minimum width requirement; the amendment specified that the 200-foot length must be on an adjoining street for access. GLS argues that it could have satisfied the general 200-foot minimum width require ment and that it should not be subject to the amended version of the ordinance. We disagree.
As this Court explained in Landon Holdings, Inc v Grattan Twp, 257 Mich App 154, 161; 667 NW2d 93 (2003):
In determining which version of a zoning ordinance a court should apply, “ ‘the general rule is that the law to be applied is that which was in effect at the time of decision.’ ” MacDonald Advertising Co v MacIntyre, sub nom MacDonald Advertising Co v City of Pontiac, 211 Mich App 406, 410; 536 NW2d 249 (1995), quoting Klyman v City of Troy, 40 Mich App 273, 277; 198 NW2d 822 (1972); Lockwood v Southfield, 93 Mich App 206, 211; 286 NW2d 87 (1979).
There are two exceptions to the general rule: (1) “A court will not apply an amendment to a zoning ordinance where ... the amendment would destroy a vested property interest acquired before its enactment...”; and (2) a court will not apply the amendment where “the amendment was enacted in bad faith and with unjustified delay.” Lockwood, supra at 211, citing City of Lansing v Dawley, 247 Mich 394, 396; 225 NW 500 (1929), and Keating [Int’l Corp v Orion Twp, 395 Mich 539, 549; 236 NW2d 409 (1975)].... “[T]he test to determine bad faith is whether the amendment was enacted for the purpose of manufacturing a defense to plaintiffs suit.” Id.
In Klyman, 40 Mich App at 279, this Court identified several factors to be considered when exercising discretion to admit or deny evidence of an amended ordinance: (a) whether the plaintiff had an unquestionable right to issuance of a permit before the amendment, (b) whether the municipality had not forbidden the type of construction the plaintiff proposed before the amendment, (c) whether the ordinance was amended for the purpose of manufacturing a defense to the plaintiffs suit, and (d) whether the city waited until the last possible minute to assert the defense. Similarly, in Lockwood, 93 Mich App at 211, this Court reiterated the general rule that the law to be applied is that in effect at the time of the zoning decision, subject to the exception that a court will not apply an amendment of a zoning ordinance if the amendment was “enacted for the purpose of manufacturing a defense to plaintiffs’ suit.” The Court noted that, in the case before it, there was evidence indicating that the amendment was intended to clarify an ambiguous ordinance and that the amendment did not apply only to the plaintiffs’ property, but applied to all like structures throughout the city. Thus, this Court concluded that the trial court did not abuse its discretion in holding that the amendment was not enacted in bad faith. Id. at 212.
While these cases address amendment of a zoning ordinance during the pendency of litigation, and the instant ordinance was amended before the onset of litigation, they instruct that the bad faith exception does not apply to the township’s February 2003 amendment of § 20.4(E) under the facts presented. The record shows that all but three of the 37 churches within the Township, each located there before the ordinance was amended, either comply with the 200-foot street frontage requirement or were granted a variance from that requirement. The three exceptions were constructed decades ago, and two have more than 150 feet of street frontage. That lends great credibility to other record evidence indicating that the intent of the ordinance was always to require 200 feet of street frontage, that the GLS application alerted zoning authorities within the Township to the need for a clarifying amendment, and that the amendment was merely intended to provide that clarification, not to concoct a reason to deny GLS’s application. See McDonald Advertising Co v McIntyre, 211 Mich App 406, 411; 536 NW2d 249 (1995) (“After reviewing the facts in this case, it is clear that the amendment was not enacted for the purpose of manufacturing a defense to plaintiffs suit.”). Further, the amendment does not apply only to GLS; it governs the use of property throughout the Township. Id.; accord London Holdings, 257 Mich App at 162; Lockwood, 93 Mich App at 212; Klyman, 40 Mich App at 279. Accordingly, the zoning authorities properly applied the ordinance as requiring a variance from the 200-foot street frontage requirement.
Having determined that the amended requirements of § 20.4(E) apply here, this Court reviews the ZBA’s decision to deny GLS a variance from those requirements to determine whether it is supported by competent, material, and substantial evidence on the record. MCL 125.3606(l)(c); Norman, 263 Mich App at 202. As noted, the 200-foot frontage requirement has been imposed on churches in the Township almost universally. The record further shows that the only variance granted was for a church having much longer frontage than the 66 feet available to the GLS parcel here. The Township’s planning consultant testified regarding the rationale for the 200-foot minimum requirement:
The purpose of the requirement is to insure adequate sight distance for traffic entering and exiting the site, to provide sufficient spacing between access points and adjacent property lines and driveways, to minimize confusion with regard to multiple driveways within a limited distance, to provide reasonable vehicle stacking space in front of the church property, to minimize conflicts with adjacent driveways with vehicles turning left into the site.
The planner reasoned that, while these issues might certainly arise even with the limited membership of the GLS congregation today, they could be exacerbated if GLS grows, as hoped and expected, or if another church takes over the property in the future.
In sum, the decision not to grant GLS a variance was based on the large deviation requested, the purposes of the 200-foot requirement, and the traffic and public safety issues that could result from allowing GLS to establish a church on this parcel of property. As the planner further testified, the denial was justified by ordinance provisions specifying the criteria on which variance requests are to be considered. We conclude that the decision was based on competent, material, and substantial evidence and affirm that decision.
C. GLS’s RLUIPA CLAIM
The “substantial burden” provision of RLUIPA provides in relevant part that
[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest. [42 USC § 2000cc(a)(l).]
Although the trial court determined that the Township had correctly concluded that the proposed GLS building was not a church, it nonetheless also held that the Township had violated the RLUIPA in applying its ordinance to prevent the location of the proposed building at the location where GLS wanted to build it. Specifically, the trial court determined that implementation of the ordinance placed an improper “substantial burden” on GLS’s right to exercise its religion. 42 USC 2000cc(a).
After the trial court issued its decision in this regard, our Court decided Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp (On Remand), 280 Mich App 449; 761 NW2d 230 (2008). That case is dispositive of the issue presented. In Shepherd Montessori, this Court reasoned:
[T]o establish a RLUIPA violation, plaintiff must show that the denied of the variance request “coerces” individuals into acting contrary to their religious beliefs. Plaintiff did not show that the denial of the variance forces plaintiff to do something that its religion prohibits, or refrain from doing something that its religion requires. Plaintiff did not allege that the property at issue has religious significance or that plaintiffs faith requires a school at that particular site. Rather, the evidence suggests that... plaintiff could operate its school at another location in the surrounding area.... In other words, plaintiff may operate a faith-based school, but it must do so on property that is zoned for schools... . [T]he denial of the variance does not constitute a substantial burden on plaintiffs religious exercise and, therefore, the trial court correctly granted summary disposition to defendants on the RLUIPA claims. [Id. at 455 (citations omitted; emphasis in original).]
Similarly, the record demonstrates that GLS could locate a church at some other location within the Township as long as the property chosen has a 200-foot street frontage and otherwise complies with the ordinance. Failing that, if the alternative property more closely complies with the ordinance requirement, it could qualify for a variance. GLS makes no argument whatsoever that the particular parcel of property on which it would like to place the facility has any religious significance or is otherwise unique in any way. Accordingly, implementation of the ordinance against GLS’s use of this particular piece of property does not constitute a substantial burden under the RLUIPA, and we reverse the decision of the trial court.
D. GLS’S CONSTITUTIONAL CLAIMS
The Township argues that the trial court erred by determining that its application of the ordinance to reject GLS’s proposed building plan was in violation of the rights of GLS’s members to freely exercise their religion, to freely associate, and to be afforded equal protection under the United States and Michigan constitutions. The trial court decided that GLS had not been afforded its rights under these three constitutional theories largely on the basis of its determination that the RLUIPA had been violated. Because we have determined that the RLUIPA was not violated, that reasoning cannot serve as a basis for concluding that the constitutional claims GLS raises are valid. Instead, we turn to an analysis of each of those claims under applicable caselaw.
This Court reviews constitutional questions de novo. Dep’t of Transportation v Tomkins, 481 Mich 184, 190; 749 NW2d 716 (2008). Likewise, we review challenges to the constitutionality of a zoning ordinance de novo on appeal. Scots Ventures, Inc v Hayes Twp, 212 Mich App 530, 532; 537 NW2d 610 (1995).
We begin our analysis by noting that, with respect to GLS’s constitutional claims concerning free exercise and equal protection, there are no significant differences between the Michigan and United States constitutions with regard to the rights afforded or their interpretation. Advisory Opinion re Constitutionality of 1970 PA 100, 384 Mich 82, 105; 180 NW2d 265 (1970) (Free Exercise Clause); Neal v Oakwood Hosp Corp, 226 Mich App 701, 716; 575 NW2d 68 (1997) (Equal Protection Clause). Further, the freedom of association claim arises solely out of the United States Constitution; it has not been recognized as a right under the Michigan Constitution. Accordingly, we analyze these questions largely on the basis of federal precedents.
The Free Exercise Clause does not relieve an individual from the obligation to comply with neutral laws of general applicability. Employment Div, Dep’t of Human Resources of Oregon v Smith, 494 US 872, 878-879; 110 S Ct 1595; 108 L Ed 2d 876 (1990). A law is neutral if, both on its face and in its implementation, its object is something other than the infringement or restriction of religious practices. Church of the Lukumi Babalu Aye, Inc v City of Hialeah, 508 US 520, 533; 113 S Ct 2217; 124 L Ed 2d 472 (1993); Grace United Methodist Church v City Of Cheyenne, 451 F3d 643, 649-650 (CA 10, 2006). The record in this case amply demonstrates that neither the ordinance requirement that the parcel have 200 feet of frontage on a major street nor the decision to deny GLS a variance from that requirement runs afoul of the Free Exercise Clause under these principles. Instead, the record demonstrates that the street frontage requirement and its imposition on GLS was a valid exercise of a generally applicable scheme to accommodate competing interests within the Township, traffic issues, and other community concerns. See, e.g., Village of Euclid v Ambler Realty Co, 272 US 365; 47 S Ct 114; 71 L Ed 303 (1926).
Freedom of association claims like those GLS raises are tested under a three-part analysis: A zoning ordinance does not violate the United States Constitution if it (1) is content neutral, (2) is narrowly tailored to serve a legitimate governmental objective, and (3) leaves open ample channels of alternative means of association. Ward v Rock Against Racism, 491 US 781, 791; 109 S Ct 2746; 105 L Ed 2d 661 (1989); Mothershed v Supreme Court Justices, 410 F3d 602, 611-612 (CA 9, 2005). The 200-foot street frontage requirement satisfies this test. It applies to all churches regardless of the message they espouse and is, therefore, content neutral. There is no apparent manner, and GLS suggests none, in which the ordinance might be more narrowly tailored to meet the valid traffic and other purposes that the record demonstrates it advances. As explained earlier, the ordinance leaves open other channels for GLS to exercise its right to associate, on other parcels of property within the Township.
The equal protection clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v Cleburne Living Ctr, Inc, 473 US 432, 439; 105 S Ct 3249; 87 L Ed 2d 313 (1985). Accordingly, the first question has to be whether GLS demonstrated on the record that it was treated differently from some similarly situated church. See Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 259 Mich App 315, 336-337; 675 NW2d 271 (2003). With respect to the variance request, the record here shows that all churches within the Township have been treated alike. Almost all have been allowed only on parcels of property that have a 200-foot street frontage. The few exceptions have a street frontage available that is much closer to that requirement, in comparison to the parcel on which GLS sought to locate its proposed building. Therefore, GLS has failed to show that it has been treated differently from any similarly situated church.
In sum, we conclude that the trial court erred in determining that these three constitutional claims were valid under the facts of this case.
We reverse the trial court’s decision affirming the ZBA conclusion that the proposed building is not a church under the zoning ordinance. We affirm the decision of the ZBA denying GLS’s variance request. We remand for entry of an order granting defendants summary disposition of GLS’s statutory and constitutional claims. We do not retain jurisdiction.
GLS representatives explained that the sanctuary was designed to accommodate, at most, 60 people at one time because that was the maximum number of individuals who could be present while still maintaining an environment permitting chemically sensitive members to worship together.
Contrary to this assertion, the ZBA received affidavits and deposition testimony from Harold and Anna Mae DeYoung, the parents of GLS pastor Timothy DeYoung, indicating that they were “charged” a rate of $40 an hour and a total of more than $200 for two counseling sessions with Cheetham. This money, which GLS characterized as a “donation,” was returned to the DeYoungs because, according to GLS, the DeYoungs did not consider it to be a gift.
GLS does not have any system of tithing or pledge contributions; its sole means of financial support comes from member donations. According to Cheetham:
GLS has a strict policy of only accepting free-will donations for any of its spiritual ministries. Therefore any and all donations given to GLS in the past and in the future are understood and received for the spiritual purposes defined in [GLS’s] Mission Statement. The defining principle is “For God loves a cheerful giver.”
Currently, GLS’s health ministry operates out of the existing house on the Cheetham property; approximately 12 members and one or two supporters of GLS obtain products from the health ministry. Food deliveries for GLS members began in 1984. UPS deliveries occurred two to three times a week and, until April 2002, a semi-truck made additional deliveries once a month.
Cheetham noted that some members included their “regular spiritual donation” with their health ministry donation and, therefore, he thought there was too much emphasis placed on the amount of the health ministry donations in the ZBA proceeding.
GLS is registered with the state of Michigan as a nonprofit food cooperative. Cheetham explained that GLS was instructed by state officials to use the term “co-op” because that was the only way to achieve exemption from having to obtain a license as a food establishment for the health ministry.
Because the term “church” is not defined in the Township’s zoning ordinance, which instructs that undefined terms “shall have the meanings customarily accepted,” the ZBA consulted the Oxford American Dictionary, which defines a church as “a building for public worship.”
Section 28.11(C) of the ordinance provides:
Variances. The [ZBA] shall have the power to authorize, upon an appeal, specific variances from the requirements of this Ordinance, when the applicant demonstrates that ALL of the following conditions will he satisfied.
(1) Granting the variance he [sic] in the public interest and will ensure that the spirit of this Ordinance shall be observed.
(2) Granting the variance shall not permit the establishment within a district of any use which is prohibited, nor shall any use variances be granted.
(3) That there are practical difficulties in complying with the standards of the Zoning Ordinance resulting from exceptional, extraordinary, or unique circumstances or conditions applying to the property in question, that do not generally apply to other property or uses in the vicinity in the same zoning district; and have not resulted from the adoption of this Ordinance.
(4) That the granting of such variance will not be of substantial detriment to adjacent properties or improvements in the vicinity; or, that the application of conditions to an approved variance will eliminate or sufficiently mitigate potential detrimental impacts.
(5) That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.
(6) That granting such variance will not cause any existing non-conforming use, structure, or condition to be increased or perpetuated, contrary to the provisions of Chapter 27 of this Ordinance, expect in accordance with Section 27.12.
(7) That the variance is not necessitated as a result of any action or inaction of the applicant.
Because of the relatively small degree of variance sought in that case, and because that church had frontage on two separate major streets, so as to divide the effect of any traffic concerns, that case was not considered to be of precedential value by the ZBA in deciding whether to grant GLS’s request for a variance in the instant case.
The trial court concluded, however, that the ZBA’s actions did not violate the “equal terms,” “nondiscrimination,” or “total exclusion/unreasonable limitation” provisions of RLUIPA, 42 USC 2000cc(b), and did not infringe GLS members’ constitutional rights to due process, freedom of assembly, or free speech and further that GLS “failed to state a claim on which relief can be granted in superintending control.” GLS has not cross-appealed the trial court’s grant of partial summary disposition to defendants on the counts of its complaints presenting these claims.
The ZBA argued that worship would not be open to the general public, hut would be limited to a relatively closed group. However, Pastor Cheetham’s testimony that anyone who is interested may attend GLS services and that the proposed building is designed to facilitate future growth is unrefuted. A conclusion that the worship expected to occur at the building would not be public is not supported by the requisite evidence. MCL 125.3606(l)(c).
But see Roman Catholic Archbishop of Detroit v Orchard Lake, 333 Mich 389; 53 NW2d 308 (1952), discussed below. As defendants observe, precedents defining a “church activity” for tax cases are inapposite because they rest on policy concerns not at issue in zoning cases.
The Solid Rock court explained more fully:
[A] church is more than a mere building used solely for worship. Religious use has been defined to mean conduct with a religious purpose. In turn, any building used primarily for purposes connected with the faith of the congregation or to propagate such faith has been deemed used for church purposes. We agree that a church cannot enjoy completely unfettered use of its property just because the activities conducted on the property bear some relation to a church purpose. To fit within the definition of a church or church use, the activities or the use to which the property is put must be reasonably closely related, in substance and in space, to the church’s purpose. [Solid Rock, 138 Ohio App 3d at 55.]
We find the precedents relied on by defendants, North Pacific Union Conference Ass’n of the Seventh Day Adventists v Clark Co, 118 Wash App 22; 74 P3d 140 (2003), and Hayes v Fowler, 123 NC App 400; 473 SE2d 442 (1996), factually distinguishable from the instant matter. In North Pacific Union, the building at issue was a 40,000-square-foot five-state regional headquarters office complex that contained a relatively small worship room to be used only by building employees. In Hayes, the building at issue was not to be used for worship at all; it was located one-half block away from the church and its sanctuary.
It is irrelevant whether counseling services are provided free or at reduced cost. Further, the record evidence, while slightly contradictory, heavily favors a conclusion that the services are provided on a donation basis.
We note that, after concluding that the buildings used for the camp meetings at issue in Portage were not a “church” under the dictionary-definition of that term, as discussed earlier, our Supreme Court noted that those meetings were very noisy from early morning until extremely late at night and thus caused disturbance to neighbors. Portage, 318 Mich at 700. In contrast, the record here shows that the health ministry would involve nothing more than occasional deliveries by truck and customer activities during daytime hours.
At the time GLS filed each of its SUP applications, Georgetown Charter Township Zoning Ordinance, § 20.4(E) imposed the following site requirements for the construction of churches in residential districts:
(1) Minimum lot width shall be two hundred (200) feet.
(2) Minimum lot area shall be two (2) acres; plus an additional fifteen thousand (15,000) square feet for each one hundred (100) seating capacity or fraction thereof in excess of one hundred (100).
(3) The property location shall be such that at least one (1) property line abuts and has access to a collector, major arterial, or minor arterial streets.
As amended, § 20.4(E) imposes the following site requirements for churches constructed in residential districts:
(1) Minimum lot area shall be two (2) acres; plus an additional fifteen thousand (15,000) square feet for each one hundred (100) seating capacity or fraction thereof in excess of one hundred (100).
(2) The property location shall be such that at least one (1) property line with a minimum lot width of two hundred (200) feet abuts and has access to a collector, major arterial, or minor arterial street.
The Township began the process of amending § 20.4(E) on January 13, 2003, in order “to clarify” the ordinance requirements to clearly comport with the longstanding intention of the Township that churches constructed in residential districts have a minimum of 200 feet of frontage on a major street. Township representatives explained that the filing of GLS’s first application for an SUP presented the first occasion for the Township to observe that there may have been an ambiguity in this section as originally enacted.
As discussed previously, that church also had frontage on two arterial roads, thus distributing the traffic in a manner so as to, perhaps, reduce the traffic concerns that might otherwise have arisen from that site having less than the required frontage.
To the extent that this determination was based on the Township’s failure to consider the proposed building a church, questions regarding that decision have become moot because of our conclusion that it is a church. The same is the case for the constitutional claims discussed below. Thus, we consider the statutory question and the constitutional claims only with regard to the denial of the variance.
To the extent that GLS argues that the RLUIPA was also violated because the Township’s implementation of its ordinance “treat[ed] a religious assembly or institution on less than equal terms with a nonreligious assembly or institution,” 42 USC 2000cc(b)(l), we consider that argument to be improperly preserved for appeal and improperly argued because it was presented without citation of any authority other than mere references to the RLUIPA. A party may not merely announce a position and leave it to this Court to discover and rationalize the basis for the claim or to search for authority to sustain or reject that party’s position. Goolsby v Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984); In re Toler, 193 Mich App 474, 477; 484 NW2d 672 (1992). Further, the gist of the argument is that the Township’s zoning scheme treats churches less favorably than some commercial enterprises, but, as a matter of fact, that is not the case. Most of the commercial enterprises about which GLS complains are completely prohibited from locating in residential zoning districts. The imposition of certain conditions, like the 200-foot street frontage requirement, on churches that want to locate in residential districts certainly does not treat them less favorably in comparison with others that are simply excluded altogether.
Although Shepherd Montessori involved a religious school rather than a church, we see no logical distinction between those uses of property for purposes of the RLUIPA and its “substantial burden” provision.
In response, GLS goes to great lengths to describe the religious hostility, animus, and discriminatory intent of various township officials. All of that argument applies to the decision that GLS is not a church, however, so it is inapposite to this Court’s review of GLS’s claims that its constitutional rights were violated with respect to the variance decision.
We express no opinion regarding the propriety of the trial court’s approach or its assumption that, if the RLUIPA was violated, so was the constitution with respect to these rights. | [
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Fitzgerald, P.J.
The prosecution appeals by delayed leave granted the circuit court’s order granting defendant’s motion to quash the district court’s bindover for trial on charges of delivery of a controlled substance (heroin), thereby causing death, MCL 750.317a; and delivery of less than 50 grams of heroin, MCL 333.7401(2)(a)(iv). We affirm.
I. FACTS AND PROCEDURAL HISTORY
The following relevant facts were established at the preliminary examination. Tracy Corson was a prostitute who first met defendant through a drug dealer, Darryl Shavers, who informed her that defendant wanted the company of a female who would “be provided drugs to go and get high at his house.” Shavers drove Corson to defendant’s apartment in February 2006 and provided crack cocaine to defendant before leaving the apartment. Corson and defendant used crack cocaine and watched pornography throughout the evening. Defendant gave Corson $380 when she left.
Corson again contacted defendant on May 20, 2006, and met with him on that day “to get high and to get money from him.” Corson moved in with defendant during the Memorial Day weekend of 2006. Corson stopped working as a prostitute after moving in with defendant and was not employed. According to Corson, she and defendant drove to Detroit daily to purchase drugs from a drug dealer, Harold Spencer, with whom Corson was acquainted before meeting defendant. She indicated that “on average we would buy around a [sic] eight ball of crack and a bundle, if not more, of heroin.” According to Corson, she used crack cocaine and heroin, but defendant used only crack cocaine. Corson used the entire amount of heroin in one day, while the crack cocaine lasted “a few hours” for Corson and defendant.
In early June 2006, Corson contacted Tiffany Gregory, a childhood friend and the victim of the alleged homicide. The two met at Gregory’s apartment twice in June. During the first meeting, Corson introduced Gregory to heroin and taught her how to prepare the drug. During the second meeting, Gregory loaned Cor-son $100 and drove Corson to Detroit to purchase drugs. The two then returned to Gregory’s apartment and used crack cocaine and heroin.
On June 15, 2006, defendant and Corson traveled to Detroit in defendant’s vehicle to purchase drugs from Spencer. Defendant gave Corson $200 to purchase crack cocaine and heroin. Corson left defendant’s vehicle and entered Spencer’s vehicle to make the purchase. After handing Spencer the money and receiving the heroin and crack cocaine, Corson returned to defendant’s vehicle. On the drive home from Detroit, defendant and Corson smoked crack cocaine, and Corson injected three packets of heroin.
That same night, Gregory went to a bar with Andrew Voltattorni. Gregory consumed alcohol throughout the evening and left the bar when it closed at 2:00 a.m. Later, Gregory, her roommate Ashley, and Voltattorni went to a pizza restaurant. Gregory received several telephone calls while at the restaurant, including one from Corson. After talking to Corson on the phone, Gregory spoke to Voltattorni about using heroin. Gregory told Voltattorni that Corson owed her $20 and she wanted to be paid back with $20 worth of heroin.
Gregory called Corson at approximately 3:00 a.m. on June 16, 2006, asking for drugs and reminding Corson that she owed Gregory $20. Corson invited Gregory to defendant’s apartment. Gregory arrived at 3:30 a.m., and she was intoxicated but able to walk and talk. Corson, Gregory, defendant, and his friend Veronica smoked crack cocaine in the living room. Afterward, Gregory and Corson went into a bedroom and injected themselves with heroin. Gregory thereafter slumped over and Corson called for help. While Veronica administered cardiopulmonary resuscitation (CPR) to Gre gory, Corson hid the drugs and drug paraphernalia in the laundry room. Gregory was dead by the time emergency personnel arrived at 4:30 a.m.
Dr. Yung Chung performed an autopsy on Gregory and concluded that the death was accidental and caused by “multiple drug intoxication.” She testified that Gregory’s body had a high morphine content of 269 nanograms, cocaine metabolites, and a high alcohol content. She indicated that heroin changes into morphine once it enters the body and that Gregory had three times the normal recreational-use level of that drug in her body. Dr. Chung opined that Gregory died from a heroin overdose that was exacerbated by the alcohol she had consumed.
Following the presentation of the proofs, defendant argued against a bindover on the charges of delivery of heroin causing death and delivery of less than 50 grams of heroin on the ground that there was no evidence that defendant ever possessed the heroin or transferred the heroin to anyone. He maintained that, at most, the prosecutor had shown that defendant funded Corson’s heroin purchase. He also maintained that a purchaser of heroin could not be convicted of aiding and abetting the delivery of heroin. The prosecutor argued that even though defendant had not possessed the heroin, he provided the transportation to Detroit and the money used to purchase the heroin. The district court concluded that defendant drove Corson to buy drugs on a regular basis, that he gave her money to purchase the drugs, and that the heroin purchased on June 15 caused Gregory’s death. On that basis, the court found sufficient probable cause to bind defendant over on all four counts.
Defendant moved to quash the bindover, asserting that with respect to the charges of delivery of heroin causing death and delivery of heroin, the prosecutor failed to present evidence on the element of delivery. Specifically, defendant asserted that with respect to the charge of delivery of heroin causing death, the prosecutor failed to present evidence that defendant delivered heroin to another person. With respect to the charge of delivery of less than 50 grams of heroin, defendant asserted that the prosecutor failed to present evidence that defendant delivered to Corson the heroin that caused Gregory’s death. Following argument on the motion, the circuit court issued a written opinion, ruling in relevant part that defendant’s actions did not constitute delivery of heroin to Corson under either statute. The circuit court concluded that the district court had abused its discretion in binding defendant over on the charges of delivery of heroin causing death and delivery of less than 50 grams of heroin.
II. THE ELEMENT OF DELIVERY
The prosecution argues that probable cause existed to bind defendant over on the charges of delivery of heroin causing death, MCL 750.317a, and delivery of less than 50 grams of heroin, MCL 333.7401(2)(a)(iu). MCL 750.317a provides:
A person who delivers a schedule 1 or 2 controlled substance, other than marihuana, to another person in violation of section 7401 of the public health code .. . that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for life or any term of years.[ ]
As applied to this case, the plain language of MCL 750.317a indicates that a person is guilty of a felony if the person delivers heroin to another person, if that heroin is consumed by the person to whom it is delivered or by “any other person,” and if, as a result, the person who consumes it dies. And, under MCL 333.7401(2)(a)(ic), a defendant is guilty if he or she delivers less than 50 grams of heroin to another.
The critical question presented by the prosecution in this case with regard to both statutes is whether the prosecution presented sufficient evidence to establish the element of delivery; that is, that defendant delivered the heroin to Corson. The prosecution maintains that defendant could be found guilty of delivering heroin to Corson on two theories: that defendant constructively delivered the heroin to Corson or that defendant aided and abetted the delivery of the heroin to Corson.
A. CONSTRUCTIVE DELIVERY
The prosecution asserts that defendant could be found guilty of constructively delivering heroin to Cor-son on the basis of evidence that he provided the transportation and the money used to procure the heroin.
The primary goal of statutory interpretation is to give effect to the intent of the Legislature. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). “We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written.” People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
The term “deliver” is not defined in the statute. The term is, however, defined in the Public Health Code, which is expressly referenced in MCL 750.317a, as follows:
“Deliver” or “delivery” means the actual, constructive, or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship. [MCL 333.7105(1).]
The record does not support the finding of either an actual or attempted transfer of heroin from defendant to Corson. The prosecution argues that defendant constructively delivered the heroin to Corson by providing the transportation to meet the drug dealer and by giving Corson the money used to purchase the heroin. The prosecution reasons that but for defendant’s participation, Corson would not have possessed the heroin and thus could not have provided it to Gregory.
The term “constructive delivery” is not defined in either MCL 750.317a or the Public Health Code. Nor does Black’s Law Dictionary define the term in any relevant manner. But, Black’s Law Dictionary (8th ed), p 1535, defines “constructive transfer” as “a delivery of an item — [especially] a controlled substance — by someone other than the owner but at the owner’s direction.” The term “delivery” in the Public Health Code clearly equates with the term “transfer.” Under this definition, a defendant constructively delivers a controlled substance when the defendant directs another person to convey the controlled substance under the defendant’s direct or indirect control to a third person or entity. See, e.g., Commonwealth v Murphy, 577 Pa 275, 286; 844 A2d 1228 (2004) (“[A] defendant constructively transfers drugs when he directs another person to convey drugs under his control to a third person or entity.”); Dawson v State, 812 SW2d 635, 637 (Tex App, 1991) (constructive delivery defined as “the transfer of a controlled substance either belonging to an individual or under his direct or indirect control by some other person at the instance or direction of the individual accused of such constructive transfer”).
Here, the heroin purchased by Corson was not under defendant’s control, nor did defendant direct the drug dealer to transfer the drugs to Corson. No evidence was presented that defendant had any discussions with the drug dealer regarding the delivery of the heroin to Corson on June 15, 2006. Corson’s testimony established that defendant never had any control over the actual transfer between the drug dealer and Corson, nor did he ever have any control over the heroin that was sold to Corson for her use. Even assuming that the delivery from the drug dealer to Corson might not have occurred had defendant not transported Corson to Detroit and provided her with money, there was no evidence the defendant had any control over the heroin or that the drug dealer acted under defendant’s direction. The evidence does not support a finding that defendant constructively delivered the heroin from the drug dealer to Corson.
B. AIDING AND ABETTING
The prosecution argues in the alternative that defendant could be convicted of delivering the heroin from the drug dealer to Corson under an aiding and abetting theory. The prosecution contends that defendant aided and abetted the delivery of the heroin from the drug dealer to Corson by providing Corson with transportation and the money used to purchase the heroin.
A defendant “who aids or abets the commission of a crime may be convicted and punished as if he directly committed the offense.” People v Izarraras-Placante, 246 Mich App 490, 495; 633 NW2d 18 (2001); MCL 767.39. “[T]he phrase ‘aids and abets’ is used to describe any type of assistance given to the perpetrator of the crime by words or deeds that are intended to encourage, support, or incite the commission of that crime.” People v Moore, 470 Mich 56, 63; 679 NW2d 41 (2004); see also People v Wright, 99 Mich App 801, 820; 298 NW2d 857 (1980).
Both MCL 750.317a and MCL 333.7401(2)(a)(ic) criminalize the actions of a person who “delivers” a controlled substance, not a person who “receives” a controlled substance. In this case, no evidence was presented to support a finding that defendant aided and abetted the drug dealer in delivering the drugs to Corson. Cf. Izarraras-Placante, supra (the defendant aided and abetted the delivery of the cocaine to an undercover police officer when he discussed the price of the cocaine with the drug dealer and drove the drug dealer to the site of the sale); People v Lyons, 70 Mich App 615, 618; 247 NW2d 314 (1976) (the defendant who “actively assisted” the drug dealer “by acting as a doorman or a ‘lookout’ ” was guilty of aiding and abetting the delivery of the heroin); People v Berry, 101 Mich App 399, 402-403; 300 NW2d 575 (1981) (the defendant was properly bound over on “the theory of aiding and abetting the delivery of a controlled substance” where the evidence established that the “defendant arranged, assisted, and facilitated the delivery of cocaine”). While the evidence in this case could support a finding that defendant aided and abetted Corson in receiving the heroin, the evidence did not support a finding that defendant aided and abetted the drug dealer in delivering the heroin to Corson.
III. CONCLUSION
The evidence presented failed to establish a prima facie case for the element of delivery of heroin. There fore, the district court improperly bound defendant over for trial in the circuit court on the charges of delivery of a controlled substance causing death and delivery of less than 50 grams of heroin. Defendant did not constructively deliver the heroin to Corson because he did not have control of the heroin that was delivered to Corson, nor did he control the transfer of the heroin to Corson. Further, defendant did not aid and abet the delivery of heroin from the drug dealer to Corson. The circuit court properly quashed the district court’s bindover on the charges of delivery of heroin causing death and delivery of less than 50 grams of heroin.
Affirmed.
Bandstra, J., concurred.
The circuit court denied defendant’s motion to quash the district court’s order binding defendant over on one count of delivery of less than 50 grams of cocaine, MCL 333.7401(2)(a)(m), and one count of maintaining a drug house, MCL 333.7405(l)(d).
According to Corson, defendant did not possess any heroin and did not know that Corson was going to give heroin to Gregory.
Officer Eric Bowles testified that Gregory was not breathing, her nose and ears were blue in color, and she appeared dead.
MCL 750.317a became effective on January 1, 2006, and there are no reported decisions interpreting it. | [
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Zahra, J.
In this attendant care benefit case brought under the Michigan no-fault act, MCL 500.3101 et seg., defendant, Allstate Insurance Company, appeals as of right a $2,541,146.87 jury verdict in favor of plaintiff, Shaun Bonkowski. The judgment entered on the verdict reflects the jury award of $1,730,723.67 in past due attendant care benefits, $10,546.85 in costs, $249,750 in attorney fees (549.5 hours at $500 an hour) pursuant to MCL 500.3148, and $525,126.35 in statutory interest pursuant to MCL 600.6013. The judgment denied plain tiffs requests for additional attorney fees as case evaluation sanctions pursuant to MCR 2.403. The judgment also denied a request for 12 percent penalty interest under MCL 500.3142(3), running from the entry of the judgment through the satisfaction of judgment. Defendant appeals the denial of its motion for judgment notwithstanding the verdict (JNOV), the award of attorney fees under MCL 500.3148, and the amount of attorney fees awarded. Plaintiff cross-appeals the trial court’s denial of attorney fees under MCR 2.403 and the trial court’s failure to impose through the satisfaction of judgment the 12 percent penalty interest under MCL 500.3142(3). Plaintiff also requests attorney fees on appeal pursuant to MCL 500.3148 and MCR 7.216(C), claiming that defendant’s appeal is vexatious. We affirm the denial of the motion for JNOV and the denial of a 12 percent penalty interest through the satisfaction of judgment under MCL 500.3142(3). We reverse the attorney fees awarded under MCL 500.3148 and the trial court’s denial of reasonable attorney fees under MCR 2.403. We vacate the award of attorney fees and remand for a determination of reasonable attorney fees, if any, awardable under MCR 2.403 and consistent with Smith v Khoury, 481 Mich 519; 751 NW2d 472 (2008).
I. FACTS AND PROCEDURAL HISTORY
On June 3, 2001, 18-year-old Shaun Bonkowski, plaintiff, was struck by an automobile and suffered extensive and tragic injuries, including a spinal cord injury that left him nearly paralyzed from the neck down. He also suffered a traumatic brain injury, which impairs his short-term memory and ability to concentrate, and causes him emotional problems. Despite his injuries, plaintiff is able to operate a powered wheelchair and, with devices attached to his wrist, plaintiff can feed himself and use a computer keyboard. The driver of the vehicle that struck plaintiff was never located. Plaintiff was nonetheless insured under a no-fault automobile insurance policy issued by defendant.
Plaintiff initially received treatment at St. Joseph’s Mercy Hospital until August 15, 2001. On that day, defendant arranged for plaintiff, along with his father, Andrew, to travel by a medical air service to the Craig Hospital (the Craig) in Colorado, an institution that specializes in quadriplegia and closed head injuries. Plaintiff and Andrew resided at the Craig until December 1, 2001. While there, Andrew received extensive training on how to care for plaintiff. A nonexhaustive list of the care that Andrew provides to plaintiff includes: administering oral medication, detecting and assessing pain, diagnosing dysreflexia (a potentially lethal condition involving a rise in blood pressure in a paraplegic), clearing lungs, administering a bowel program, preventing and treating skin ailments, physical therapy (moving his arms and legs to maintain a range of motion), attending to emotional concerns, maintaining hygiene and tending to dietary needs. Dr. Owen Perlman, physiatrist and plaintiffs primary treating physician, characterized Andrew’s care of plaintiff as interdisciplinary or multidisciplinary, in that different aspects of plaintiffs care would be performed by different health care professionals, including nurses, physical therapists, respiratory therapists, psychologists, etc.
Laura Kling, a registered nurse employed by a private rehabilitation company that coordinates plaintiffs health care services, became involved with plaintiffs care when he was admitted at St. Joseph’s and managed plaintiffs care from 2003 to 2005. She participated in the discharge planning process at the Craig. She observed that Andrew, through the training provided at the Craig, obtained all the skills required to be an excellent caregiver to plaintiff. Despite Andrew’s not having previous medical training and having obtained only the equivalent of a high school degree, the Craig discharged plaintiff to Andrew’s care.
Defendant’s employee, Jan Mainella was assigned to plaintiffs claim on June 9, 2001. Mainella received preliminary reports from Kling and plaintiffs attending physician at the Craig indicating that plaintiff would require 24-hour attendant care from a high-tech professional nurse or a registered nurse. Mainella also learned that plaintiff anticipated that Andrew would provide plaintiff 24-hour attendant care. Mainella recognized that while Andrew was not a high-tech professional nurse or a registered nurse, he was entitled to reasonable compensation for the care he provided to plaintiff. Mainella, using the Home Care Salary and Benefit Report, 2001-2002 (Report), determined what she deemed to be reasonable compensation payable to Andrew. Pursuant to that Report, the typical hourly salaries paid to Michigan nurses were $19.57 an hour for registered nurses, $22.80 an hour for licensed professional high-tech nurses, and $14.67 an hour for licensed practical nurses. Mainella decided that $456 a day was reasonable compensation for Andrew for providing Shaun 24-hour attendant care. She arrived at this amount by multiplying $19, the average of the above hourly rates, by 24 hours, because Andrew would be providing plaintiff with around-the-clock care. Thus, defendant agreed to pay Andrew approximately $166,000 a year to provide attendant care to plaintiff.
On August 29, 2001, well before the Craig discharged plaintiff to Andrew’s care, plaintiffs counsel sent a letter to defendant demanding that Andrew be paid $34 an hour for the attendant care he was to provide. Defendant declined to increase the amount it intended to pay Andrew, and plaintiff filed this lawsuit on October 4, 2001. Defendant paid Andrew at a rate of $166,000 a year to attend to plaintiff. Defendant did not deny any requests relating to plaintiffs care, aside from plaintiffs request to increase the compensation paid to Andrew to provide 24-hour attendant care to plaintiff. On January 8, 2002, defendant offered to provide Andrew health care insurance.
At trial, plaintiff presented evidence that, upon discharge from the Craig, plaintiffs attending physician prescribed him 24-hour high-tech licensed practical nurse (LPN) or registered nurse (RN) care. Plaintiff established that after returning home, Dr. Perlman similarly prescribed plaintiff “24 hour high-tech LPN” attendant care, from January 29, 2002, to the date of trial. In a deposition admitted at trial, Dr. Perlman described the care Andrew provides to plaintiff as the equivalent of the care provided by a “24-hour high-tech licensed professional nurse or even a registered nurse.” Kling similarly testified that, “there is no question” that Andrew “has the knowledge, skill and expertise to provide the care for his son.” Gerald Shiener, a board certified psychiatrist, testified that Andrew’s care met or exceeded plaintiffs psychological needs in an appropriate manner.
Plaintiff also presented evidence that the training from the Craig was “unbelievable.” Kling testified that not all registered nurses or high-tech licensed professional nurses could provide the care that Andrew provides to plaintiff because they would need additional training. She testified that even as a registered nurse, she could not provide care for a person with a spinal cord injury because she had not had the specific training. She also testified that the best place for someone with plaintiffs maladies would be at home with family caregivers.
Kling testified that licensed home health care professionals could be retained through the use of a health care agency. Such an agency would charge $37 to $40 an hour for a high-tech licensed practical nurse and $50 an hour for a registered nurse. Robert Ancell, a vocational rehabilitation counselor and case manager familiar with plaintiffs care, testified that “he had an understanding of what the costs are of different types of care that are needed for various medical conditions like [plaintiffs.]” He testified that a high-tech licensed practical nurse would cost $40 an hour and that a registered nurse would cost $50 an hour, not including shift premiums and overtime. He also testified that physical therapy sessions cost $125 an hour, respiratory therapist sessions cost $75 a visit, and that behavioral therapist sessions cost $40 to $80 an hour. Ancell prepared an exhibit introduced at trial indicating that plaintiffs attendant care would have cost $3,205,125 if provided by a registered nurse, which defense counsel noted amounted to $80 an hour.
On cross-examination, defense counsel elicited testimony that Ancell’s testimony was based on agency rates, and that the person actually providing the care would receive less than the agency rate. Defense counsel also elicited testimony that an agency rate, in addition to providing a profit for the agency, assumes costs such as workers’ compensation insurance, professional liability insurance, malpractice insurance, health insurance, disability insurance, a secretarial staff, rent, legal fees, accounting costs, and office supplies. On re-direct examination, Ancell noted that Andrew does not receive many of the benefits listed above.
Defendant presented Mainella as its only witness at trial. In addition to testifying about how she determined Andrew’s compensation, she testified that she did not consider the compensation paid to home health care agencies, occupational therapists, physical therapists, or behavioral technicians, though she knew that Andrew provided plaintiff this type of care. She testified that defendant was unwilling to pay the agency rate for Andrew to care for plaintiff because an agency is licensed and incurs more expenses. In response to the question, “If Andy wasn’t there, [defendant] would have to pay a lot more money than they’re paying right now, right?” Mainella replied, “Willingly.” She testified, “I want to pay [Andrew] a reasonable and fair rate for the care he provides his son.” She explained that, although Dr. Perlman prescribed attendant care from a registered nurse or a high-tech professional nurse, she averaged in the hourly rate of licensed practical nurses to account for more basic care that plaintiff would provide.
On cross-examination, Mainella admitted that she had assumed that hourly rates listed in the Report did not include benefits of employment. She admitted that, although the Report provided for cost of living increases, she continued to pay Andrew $19 an hour because of pending litigation. She admitted that in determining Andrew’s hourly rate she did not consider paying him more for being on call or on overtime. She also admitted that she did not consider that the Report indicated that a registered nurse receives $35.47 an hour for the second shift, $44.33 an hour for the third shift, and $42.28 an hour for the weekend shift. She also admitted that she did not consider that the Report indicated that an occupational therapist made $49.31 an hour and that a physical therapist made $50.06 an hour. She admitted that Andrew does not receive any of the 22 fringe benefits listed in the Report. She testified that, if Andrew wanted fringe benefits, he could apply for a position at an agency and they could send him to care for plaintiff.
The jury returned a unanimous verdict in favor of plaintiff. The jury specifically found that “the amount of allowable expense owed to the plaintiff” was $1,381,114. The jury also found that the “payment for any of the expenses or losses to which plaintiff was entitled was overdue” and that the amount of interest owed, at 12 percent per annum, was $349,609.67.
Defendant moved for a directed verdict at the close of plaintiffs proofs and for JNOV after the verdict was returned. Both motions were denied. In denying the motion for JNOV; the trial court stated that “reasonable minds obviously could differ” in regard to whether $19 [an hour] was reasonable and noted that defendant did not present an expert at trial. Notwithstanding the trial court’s conclusion that reasonable minds could differ about whether compensating Andrew at a rate of $19 an hour for 24 hours a day and 365 days a year was reasonable, the trial court later awarded plaintiff $249,750 in attorney fees under the no-fault act. The judgment stated the trial court’s conclusion that defendant “unreasonably delayed in making proper payment on no-fault benefits due to plaintiff[.]” The trial court denied plaintiffs requests for case evaluation sanctions, but awarded plaintiff $10,546.85 in costs and $525,126.35 in statutory interest, pursuant to MCL 600.6013. This appeal ensued.
II. ANALYSIS
This case touches on an interesting question of law and statutory interpretation: whether, when determining reasonable compensation payable under MCL 500.3107(l)(a) to lay providers of attendant care services, a jury may rely on the rates charged by health care agencies that employ licensed health care professionals who provide attendant care services. We use the words “touches on” intentionally, as this issue is not squarely before us in this appeal.
This Court has previously embraced the notion that “comparison to rates charged by institutions provides a valid method for determining whether the amount of an expense was reasonable and for placing a value on comparable services performed [by family members].” Manley v Detroit Automobile Inter-Ins Exch, 127 Mich App 444, 455; 339 NW2d 205 (1983); see also Sharp v Preferred Risk Mut Ins Co, 142 Mich App 499, 514; 370 NW2d 619 (1985). We question the conclusion reached in Manley.
Under MCL 500.3107, family members Eire entitled to reasonable compensation for the services they provide at home to an injured person in need of care. Van Marter v American Fidelity Fire Ins Co, 114 Mich App 171, 178-181; 318 NW2d 679 (1982); Visconti v Detroit Automobile Inter-Ins Exch, 90 Mich App 477; 282 NW2d 360 (1979). In determining reasonable compensation for an unlicensed person who provides health care services, a fact-finder may consider the compensation paid to licensed health care professionals who provide similar services. Van Marter, supra at 180-181. For this reason, consideration of the compensation paid by health care agencies to their licensed health care employees for rendering services similar to the services provided by unlicensed family members is appropriate when determining reasonable compensation for those family members. However, the actual charges assessed by health care agencies in the business of providing such services is not relevant and provides no assistance in determining reasonable compensation for the actual provider of such services. The focus should be on the compensation provided to the person providing the services, not the charge assessed by an agency that hires health care professionals to provide such services.
Notwithstanding our questioning of Manley, defendant did not argue in the trial court or on appeal in this Court that Manley was wrongly decided. Rather, the lower court record reflects that defendant only argued before the trial court that, under MCL 500.3107, Andrew’s expenses had not been “incurred.” The question whether attendant care services were “incurred” is distinct from the question whether the amount paid for attendant care services was reasonable. Defendant maintains that its written motion for directed verdict argued that evidence of rates charged by an agency was not relevant. However, the only document in the lower court record entitled “directed verdict” is actually a mislabeled motion for judgment notwithstanding the verdict.
This Court’s review is limited to the record of the trial court. Amorello v Monsanto Corp, 186 Mich App 324, 330; 463 NW2d 487 (1990). The lower court record reveals that, at defendant’s oral motion for directed verdict, defense counsel argued that Andrew’s expenses had not been “incurred.” Also, defendant did not seek to preclude, through a pretrial motion in limine, the presentation of any evidence of health care agency rates. Further, defendant did not object to the jury instructions, which quoted Manley and provided in pertinent part that “Comparison to rates charged by institutions provides a valid method for determining whether the amount of the expense was reasonable and for placing a value on comparable services.” Defendant appeals only the denial of its motion for JNOV For these reasons, our review is limited to whether the trial court properly denied defendant’s motion for JNOV.
A. JNOV
This Court reviews de novo the trial court’s denial of a motion for JNOV Sniecinski v Blue Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). In doing so, we “review the evidence and all legitimate inferences in the light most favorable to the nonmoving party.” Id. (quotation marks and citation omitted). “A motion for directed verdict or JNOV should be granted only if the evidence viewed in this light fails to establish a claim as a matter of law.” Id. “If reasonable jurors could honestly have reached different conclusions, the jury verdict must stand.” Zantel Marketing Agency v Whitesell Corp, 265 Mich App 559, 568; 696 NW2d 735 (2005) (quotation marks and citations omitted).
MCL 500.3107(l)(a) provides:
Except as provided in subsection (2), personal protection insurance benefits are payable for the following:
(a) Allowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation....
In Van Marter, supra at 180, this Court recognized that no-fault “benefits are payable for ‘all reasonable charges’ which relate to the care, recovery or rehabilitation of the injured person. The statute does not require that these services be supplied by ‘trained medical personnel.’ ” Id. Further, we long ago recognized that family members should be compensated for the services they provide at home to an injured person in need of care. See id. at 178-181; Visconti, supra; see also Reed v Citizens Ins Co of America, 198 Mich App 443, 453; 499 NW2d 22 (1993), overruled on other grounds in Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521 (2005). Here, there is no dispute that 24-hour attendant care is necessary for plaintiff. Rather, defendant argues that this “Court should conclude that judgment notwithstanding the verdict should have been granted because the jury’s verdict unavoidably was based on agency rates.”
We reject defendant’s argument for two reasons. First, as stated above, the jury was instructed, without objection, that “[c]omparison to rates charged by institutions provides a valid method for... placing a value on comparable services.” Permitting this instruction to be given to the jury without objection amounts to a waiver of the issue whether the jury could base its finding of reasonable compensation on the rates health care agencies might charge for similar services. E.g., Kohn v Ford Motor Co, 151 Mich App 300, 310; 390 NW2d 709 (1986). A party may not waive objection to an issue and then argue on appeal that the resultant action was error. Czymbor’s Timber, Inc v City of Saginaw, 269 Mich App 551, 556; 711 NW2d 442 (2006); Chapdelaine v Sochocki, 247 Mich App 167, 177; 635 NW2d 339 (2001).
Second, viewing the evidence in a light most favorable to plaintiff, we conclude that the jury verdict does not necessarily reflect that the jury based its award on the rates a health care agency would charge to provide services similar to those provided to plaintiff by Andrew. There was testimony that an agency would charge as much as $3,205,125 to provide the same care that plaintiff received, which after subtracting the amount that defendant had already paid Andrew, amounts to over $2.4 million in unpaid attendant care costs. The jury’s verdict of $1,730,723.67 is substantially below this amount. Further, plaintiff presented evidence relating the overtime rates and shift premiums that would be paid to attendant care providers qualified to care for plaintiff. This evidence is appropriate and independent of any evidence of the rates charged hy health care agencies for attendant care services.
The only legally relevant question presented to the jury was whether the compensation defendant paid to Andrew was reasonable. The record contains sufficient evidence to conclude that the jury rejected defendant’s position. Substantial evidence was introduced chronicling Andrew’s everyday care of plaintiff. Not only did Andrew provide care consistent with that of a licensed health care professional, but ample evidence was presented to support the conclusion that Andrew’s care was more conducive to plaintiffs care, recovery, or rehabilitation than care that could have been provided by a licensed health care professional. The evidence established that Andrew provided plaintiff care that nurses ordinarily do not provide, including treatment specific to paraplegic patients.
“[T]he trier of fact will ultimately determine whether a charge is reasonable.” Advocacy Organization for Patients & Providers v Auto Club Ins Ass’n, 257 Mich App 365, 379; 670 NW2d 569 (2003), citing Nasser v Auto Club Ins Ass’n, 435 Mich 33, 55; 457 NW2d 637 (1990). The litigants zealously argued their respective cases to the jury. Although the verdict itself is large, there is nonetheless evidence to support the jury’s determination that the compensation provided to Andrew by defendant was not adequate, given Andrew’s training received at the Craig and the actual attendant care Andrew provided to plaintiff. The evidence was sufficient for reasonable jurors to conclude that the reasonable compensation due Andrew was substantially more than the compensation paid by defendant. Thus, the jury verdict must stand.
In a related but separate issue, defendant cites MCL 500.3157, which provides:
A physician, hospital, clinic or other person or institution lawfully rendering treatment to an injured person for an accidental bodily injury covered by personal protection insurance, and a person or institution providing rehabilitative occupational training following the injury, may charge a reasonable amount for the products, services and accommodations rendered. The charge shall not exceed the amount the person or institution customarily charges for like products, services and accommodations in cases not involving insurance.
Defendant argues that Andrew could not “customarily” charge the hourly rate gleaned from the verdict, which it claims is $53.50. We conclude the above statute does not entitle defendant to relief.
Defendant did not raise or argue this statute in the trial court. This Court need not address issues first raised on appeal. Booth Newspapers, Inc v University of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). Moreover, plaintiffs request that Andrew be paid compensation above that offered by defendant is entirely consistent with this statute, which merely precludes a provider of health care from charging an insurance company more for services than the provider would customarily charge in a case not involving insurance. Because Andrew never provided such services in any prior case (regardless of insurance coverage), this statute cannot apply to his situation. Plaintiffs request for additional compensation payable to Andrew is limited only by the statutory requirement that such compensation be reasonable. Here, the jury determined the reasonable compensation that was due for the services provided by Andrew.
B. ATTORNEY FEES PURSUANT TO MCL 500.3148(1)
Defendant argues that the trial court clearly erred by awarding plaintiff attorney fees pursuant to MCL 500.3148(1). We agree.
“A trial court’s finding of unreasonable refusal or delay will not be reversed on appeal unless it is clearly erroneous.” McCarthy v Auto Club Ins Ass’n, 208 Mich App 97, 103; 527 NW2d 524 (1994). Clear error exists when this Court is “left with a definite and firm conviction that a mistake has been made.” Walters v Snyder, 239 Mich App 453, 456; 608 NW2d 97 (2000). Clear error will be found where a trial court does not focus on the facts surrounding the disputed expenses, but instead concludes that the refusal to pay was unreasonable because the jury awarded the claimed expenses. McCarthy, supra at 105.
The no-fault act contains a provision allowing for an award of attorney fees. Specifically, MCL 500.3148(1) provides:
An attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue. The attorney’s fee shall be a charge against the insurer in addition to the benefits recovered, if the court finds that the insurer unreasonably refused to pay the claim or unreasonably delayed in making proper payment.
This Court has interpreted this provision of the no-fault act, holding:
[W]hen considering whether attorney fees are warranted under the no-fault act, the inquiry is not whether coverage is ultimately determined to exist, but whether the insurer’s initial refusal to pay was reasonable.... [T]his Court has also explained that a delay is not unreasonable if it is based on a legitimate question of statutory construction, constitutional law, or factual uncertainty. [Shanafelt v Allstate Ins Co, 217 Mich App 625, 635; 552 NW2d 671 (1996), citing McCarthy, supra at 105.]
Defendant specifically argues that there “was, at a bare minimum, a legitimate, bona fide factual basis for [defendant’s] decision to challenge plaintiffs claim.” We agree.
In the written judgment, the trial court stated:
The Court having found that the Plaintiff successfully prosecuted this claim for allowable expenses (attendant care benefits) pursuant to the Michigan No-Fault Automobile Insurance Act to a verdict of $1,730,723.67, which included a finding by the jury that benefits were more than 30 days overdue, and the court having found that Defendant Allstate Insurance Company, unreasonably refused in making the proper payment of No-Fault benefits due to Plaintiff....
Notwithstanding the above-cited conclusion, our review of the record reveals no factual findings to support the conclusion reached by the trial court. It appears from the record that the trial cotut, when awarding attorney fees to plaintiff, only considered the jury’s conclusion that Andrew was entitled to greater compensation than that offered by defendant. Thus, we are left with a definite and firm conviction that the trial court simply based its conclusion on the jury’s verdict. This was error.
Moreover, we conclude as a matter of law that defendant satisfied its burden of establishing that its initial refusal to pay Andrew more than $166,000 a year plus health care benefits as compensation for the attendant care provided to plaintiff was based on a bona fide and legitimate dispute over the compensation due Andrew under the no-fault act. Neither the medical community nor the legal community has established a hard and fast rule for determining the reasonable rate of compensation due unlicensed individuals who provide necessary health care services to family members. While consideration of rates paid to licensed and trained health care providers is appropriate, the law does not require that unlicensed individuals who have not earned a degree in a pertinent health care profession be paid the same compensation paid to licensed health care professionals. It can hardly be disputed that the greater the time a health care professional invests in his or her education and training, the greater the compensation would be for that professional. Andrew received specialized training to allow him to provide professional quality care to his son in an array of disciplines. However, Andrew’s training was provided over the course of four months. Andrew did not invest years to obtain an education and specialized training to become a medical professional. Quality care made possible by the dedication and love of family members is often preferable to institutional care. Yet, this Court has recognized that family-provided accommodations are generally less costly than institutional care. Reed, supra at 452. Under these circumstances we cannot conclude that defendant acted unreasonably when it offered to compensate Andrew at the lower end of the range of what a licensed and formally educated health care professional might expect to command in the open market.
Further, we cannot conclude that the rate of compensation paid by defendant to Andrew was unreasonable, given that Andrew alone provided the 24-hour care afforded plaintiff. There is no doubt that Andrew is skilled in the care and needs of plaintiff. There is also no doubt that Andrew is a loving, devoted, and admirable father. However, it should not be overlooked that it is not possible and, in fact, it is unhealthy for an individual to provide 24-hour care to another without also caring for one’s self. Out of necessity there is time in each day when Andrew is required to care for himself rather than plaintiff. Thus, in the process of arriving at a reasonable rate of compensation for Andrew, it was reasonable for defendant to elect not to factor in a shift premium for working in excess of eight hours a day.
Finally, in determining whether defendant acted in good faith and had a legitimate question of factual uncertainty about the proper compensation payable to plaintiff for the care rendered by Andrew, we note that of the several hundred bills for plaintiffs medical care, this was the only area of dispute. Plaintiff was not denied necessary services as a result of this dispute. The evidence supports the conclusion that had Andrew ceased providing care to plaintiff, defendant would have retained and paid for all professional health care services necessary to provide for plaintiffs needs. This is not a case where defendant simply refused to pay for services. Rather, defendant paid plaintiff the amount it deemed fair and reasonable and disputed the remainder of the amount sought by plaintiff.
For these reasons, we conclude that defendant did not unreasonably delay in making proper payment to plaintiff. The portion of the judgment awarding attorney fees pursuant to MCL 500.3148(1) is reversed and the award of $274,750 in attorney fees is vacated.
C. SANCTIONS PURSUANT TO MCR 2.403
On cross-appeal, plaintiff argues that the trial court erred by refusing to award plaintiff attorney fees as case evaluation sanctions pursuant to MCR 2.403, in addition to the fees awarded under the no-fault act, MCL 500.3148. This specific issue is rendered moot by our reversal of the award of attorney fees under MCL 500.3148. On remand, the trial court shall determine whether plaintiff is entitled to case evaluation sanctions pursuant to MCR 2.403. To the extent case evaluation sanctions are appropriate, the trial court shall not rely on its prior assessment of attorney fees under MCL 500.3148.
In assessing attorney fees under the no-fault act, the trial court awarded a $500 hourly rate for four different attorneys and multiplied that rate by 549.5 hours, the number of hours plaintiff’s counsel claimed were expended in litigating this matter. The trial court did not scrutinize the number óf hours claimed, nor did the trial court differentiate the hourly rate of the various attorneys on the basis of their skill and experience.
Our Supreme Court recently addressed the proper method for determining an award of attorney fees under MCR 2.403. In Smith, supra at 530-531, the Supreme Court held that
a trial court should begin its analysis by determining the fee customarily charged in the locality for similar legal services. ... In determining this number the court should use reliable surveys or credible evidence of the legal market. This number should he multiplied by the reasonable number of hours expended in the case .... The number produced by this calculation should serve as the starting point for calculating a reasonable attorney fee.
The Supreme Court added that this preliminary number may be adjusted upward or downward on the basis of the factors found in Michigan Rule of Professional Conduct 1.5(a) and Wood v Detroit Automobile Inter-Ins Exch, 413 Mich 573; 321 NW2d 653 (1982). This process must be employed for each attorney for whom plaintiff claims a right of fee reimbursement under MCR 2.403. On remand, to the extent the trial court finds an award under MCR 2.403 appropriate, it shall follow the formula set forth by our Supreme Court in Smith.
D. TWELVE PERCENT INTEREST UNDER THE NO-FAULT ACT, MCL 500.3142(3)
Plaintiff also argues on cross-appeal that the trial court erred by refusing to continue, pursuant to MCL 500.3142(3), the imposition of 12 percent penalty interest after the entry of judgment and continuing through the satisfaction of judgment. Specifically, MCL 500.3142(3) provides that “[a]n overdue payment bears simple interest at the rate of 12% per annum.” Plaintiff argues that until his judgment is satisfied, his claim for benefits under the no-fault act is overdue and, thus, he is entitled to 12 percent interest. We find no merit to this claim.
Interest awardable under MCL 500.3142(3) is a substantive element of the damages suffered by plaintiff. The jury, as fact-finder, was required to determine whether plaintiff was entitled to no-fault insurance benefits and whether such benefits were overdue. If the jury determined that the benefits were overdue, then the jury was required to consider whether penalty interest under MCL 500.3142 should be awarded to plaintiff. See M Civ JI 35.04 and question 9 of the standard verdict form, M Civ JI 67.01.
Plaintiff would have this Court apply MCL 500.3142 to award plaintiff postjudgment interest in addition to interest awarded under the Revised Judicature Act (RJA), MCL 600.6013. MCL 600.6013(8) expressly entitles plaintiff to interest on the judgment (6 percent in this case) accruing from the date the complaint was filed through the date the judgment is satisfied. That interest is awarded on a judgment that includes the 12 percent interest the jury awarded as penalty interest. However, once the judgment is entered, postjudgment interest is limited to the interest rate applicable under the RJA. MCL 600.6013(8). Nothing in the no-fault act supports the conclusion that a trial court is authorized to enhance the substantive damages determined by the jury. Rather, a trial court must enter a judgment on the jury’s verdict and limit its postjudgment activity to the award of any postjudgment interest allowable under the RJA.
Review of the statutory interest provisions under the RJA supports our conclusion. MCL 600.6013 expressly provides for interest to be awarded on judgments through the date of satisfaction of judgment. By so providing, the Legislature displayed its ability and willingness to expressly provide for an award of interest after entry of a judgment. In contrast to the express mandate under the RJA, MCL 500.3142(3) is silent as it relates to the award of penalty interest after entry of the judgment.
Further, the RJA was amended several times after the enactment of Michigan’s no-fault act. Some of these amendments provided for the application of different postjudgment interest rates to different types of claims. For example, the Legislature expressly provided that “if a judgment is rendered on a written instrument evidencing indebtedness with a specified interest rate, interest is calculated from the date of filing the complaint to the date of satisfaction of the judgment at the rate specified in the instrument if the rate was legal at the time the instrument was executed.” MCL 600.6013(7). While the Legislature had the opportunity to apply a unique postjudgment interest rate to claims for personal protection insurance benefits not timely paid under the no-fault act, it did not do so.
Our conclusion is also supported by the general rule of merger of judgments. The Restatement of Judgments 2d, §18, provides in pertinent part that when a judgment is entered in favor of a plaintiff, “[t]he plaintiff cannot thereafter maintain an action on the original claim, or any part thereof, although he may be able to maintain an action upon the judgment.” Comment A to this section of the Restatement explains the notion of merger. It provides, that “[w]hen the plaintiff recovers a valid and final personal judgment, his original claim is extinguished and rights upon the judgment are substituted for it. The plaintiffs original action is said to be ‘merged’ in the judgment.”
Applying the doctrine of merger to this case, plaintiffs claim for past due benefits was extinguished upon entry of the judgment. Thus, there no longer existed a claim that would be subject to the penalty interest provided under MCL 500.3142(3). Plaintiffs rights attach to the judgment. The only statutory interest rates applicable to a judgment are found in MCL 600.6013. As stated above, MCL 600.6013 does not specifically identify an interest rate on judgments that is unique to plaintiffs personal protection insurance benefits claim.
Plaintiffs reliance on Johnston v Detroit Automobile Inter-Ins Exch, 124 Mich App 212; 333 NW2d 517 (1983), although understandable, is misplaced. In Johnston, this Court initially addressed whether a plaintiff may recover penalty interest under MCL 500.3142 and interest upon the judgment, MCL 600.6013. In addressing the question, Johnston quoted this Court’s opinion in Wood v Detroit Automobile Inter-Ins Exch, 99 Mich App 701, 709; 299 NW2d 370 (1980), in which the “ ‘[t]rial court awarded the 12 percent interest [MCL 500.3142(3)] on the overdue wage loss payment from the time it became overdue[,] [and awarded] ... six percent interest [MCL 600. 6013] ... on the entire judgment from the day the complaint was filed.’ ” Johnston, supra at 214. The Wood Court addressed defendant’s basic contention that “the overlapping of the interest provisions was impermissible.” This Court rejected defendant’s contention and held that interest can be awarded under MCL 600.6013 even though penalty interest had been awarded under MCL 500.3142(3).
The Johnston Court noted that Wood had been affirmed by our Supreme Court, 413 Mich 573, 589-590; 321 NW2d 653 (1982), and concluded that the trial court correctly ordered both the 6 percent and the 12 percent interest. The Johnston Court, supra at 215, however, did not end its analysis, but further stated:
Consequently, plaintiff is entitled to the following interest on his overdue no-fault personal protection benefits: interest at 12% per annum from the time his benefits became overdue on December 12,1978, until the day before he filed the complaint, February 23, 1979, interest at 18% per annum from February 23,1979, until June 1,1980; and interest at 24% per annum from the entry of the judgment until the judgment is satisfied.
There is no dispute that our Supreme Court in Wood recognized that the interest provisions overlapped for a period. However, there is no indication by our Supreme Court in Wood that this overlapping period continues until the judgment is satisfied. In summarizing the trial court’s decision, the Supreme Court stated that “the default judgment awarded plaintiff consisted of $11,708.93 in wage-loss benefits for 14 months and interest at 12% ” Wood, supra at 577 (emphasis added). The Court then stated that “[i]n addition, plaintiff received 6% interest on the entire judgment.” Id. (emphasis added). Significantly, the Court identified that the 12 percent penalty interest was imposed only for 14 months, and that the 6 percent RJA interest was “on the judgment.” Had the Court held the view that the 12 percent penalty interest continued until satisfaction of judgment, the Court would not have indicated that the 12 percent penalty interest rate was assessable only for the 14-month period when benefits were overdue. The question of when penalty interest under MCL 500.3142(3) ends was simply not before our Supreme Court in Wood. No Michigan court has since addressed this issue. See Shanafelt, supra at 644; McMillan v Auto Club Ins Ass’n, 195 Mich App 463; 491 NW2d 593 (1992). Thus, we conclude that Johnston misapplied the holding in Wood to extend the penalty interest rate under MCL 500.3142(3) to the satisfaction of judgment.
Simply put, a court is not authorized to continue the work of a jury post verdict. Plaintiff was entitled to penalty interest as found by the jury. Plaintiff was also entitled to interest on the judgment authorized under the RJA from the filing of the complaint through satisfaction of judgment. However, MCL 500.3142(3) does not entitle plaintiff to judicial enhancement of the substantive damages awarded by the jury.
E. ATTORNEY FEES ON APPEAL
Lastly, plaintiff seeks an award of appellate attorney fees. We conclude that plaintiff has not established a claim for appellate attorney fees under MCL 500.3148(1) or MCR 7.216(C)(1).
“[Attorney fees for services on appeal can be awarded under MCL 500.3148(1) . . . .” Bloemsma v Auto Club Ins Ass’n (After Remand), 190 Mich App 686, 691; 476 NW2d 487 (1991). However, it is the trial court, not this Court, that considers claims for attorney fees under MCL 500.3148(1). Id. (“the trial court is to consider services rendered on appeal”). Accordingly, plaintiffs claim under MCL 500.3148(1) must be rejected.
Plaintiff also has not established a claim for attorney fees under MCR 7.216(C)(1). “Sanctions requested for a vexatious appeal are governed by MCR 7.216(C)(1).” Prentis Family Foundation v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 60; 698 NW2d 900 (2005). MCR 7.216(C) provides:
(1) The Court of Appeals may, on its own initiative or on the motion of any party filed under MCR 7.211(C)(8), assess actual and punitive damages or take other disciplinary action when it determines that an appeal or any of the proceedings in an appeal was vexatious because
(a) the appeal was taken for purposes of hindrance or delay or without any reasonable basis for belief that there was a meritorious issue to be determined on appeal; or
(b) pleading, motion, argument, brief, document, or record filed in the case or any testimony presented in the case was grossly lacking in the requirements of propriety, violated court rules, or grossly disregarded the requirements of a fair presentation of the issues to the court.
(2) Damages may not exceed actual damages and expenses incurred by the opposing party because of the vexatious appeal or proceeding, including reasonable attorney fees, and punitive damages in an added amount not exceeding the actual damages. The court may remand the case to the trial court or tribunal for a determination of actual damages.
MCR 7.211(C)(8) provides:
Vexatious Proceedings. A party’s request for damages or other disciplinary action under MCR 7.216(C) must be contained in a motion filed under this rule. A request that is contained in any other pleading, including a brief filed under MCR 7.212, will not constitute a motion under this rule. A party may file a motion for damages or other disciplinary action under MCR 7.216(C) at any time within 21 days after the date of the order or opinion that disposes of the matter that is asserted to have been vexatious.
MCR 7.216(C)(1) indicates that a motion for sanctions must be filed pursuant to MCR 7.211(C)(8), and MCR 7.211(C)(8) provides that a request for sanctions must be made by motion, not in a brief. Here, plaintiff has failed to file a motion, as required by the court rule. Moreover, because defendant has prevailed in part in this appeal, we cannot conclude that defendant’s appeal was vexatious.
III. CONCLUSION
We affirm the denial of the motion for JNOV We affirm the denial of a postjudgment award of penalty interest under MCL 500.3142(3). We reverse the award of attorney fees under MCL 500.3148. We reverse the trial court’s denial of a reasonable attorney fees under MCR 2.403. We vacate the award of attorney fees and remand for a determination of reasonable attorney fees, if any, awardable under MCR 2.403 and consistent with Smith.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Many witnesses used the terms “high-tech practical nurse” and “high-tech professional nurse” interchangeably. The record is unclear about whether these are two distinct positions that require different levels of training.
Such fees are awardable under the no-fault act only where the trial court concludes that the denial of insurance benefits was unreasonable. MCL 500.3148(1).
Even on appeal, defendant’s brief does not cite Manley.
Even assuming that the motion for JNOV is in fact a mislabeled motion for directed verdict, that motion similarly only argues that Andrew’s expenses had not been “incurred.”
Defense counsel argued before the trial court:
Your Honor, this is a motion for partial directed verdict. In a nutshell, your Honor, what it says is, that during the course of this case there was testimony, especially yesterday, regarding rate. The rates that were presented were agency rates. Dr. Ancell, as the Court will recall, testified to this at great length, that these were rates that an agency would charge.
I’m asking that those — that the jury not be allowed to consider those rates because those rates have not been incurred. As the Court knows, under the no-fault law, in order for an insurer to be liable for a benefit, the claim must have been incurred. There’s been no testimony in this case that those charges have been incurred.
And so I’m asking the Court to grant a motion for partial directed verdict, which would have the net effect that the jury would not be allowed to consider those rates, those agency rates, because they have not been incurred. Thank you, your Honor.
Stated differently, our review is limited to the narrow question whether the jury was presented with any evidence to support the verdict, not the much broader and legally significant question whether the jury should have been precluded from hearing any evidence of the rates a health care agency could have charged defendant to retain a licensed health care provider, had Andrew not attended to plaintiffs many medical needs.
We recognize that it appears very bkely that the jury rejected this position. However, the mere fact that the jury rejects a position does not, by itself, render that position unreasonable.
Because we vacate the award of attorney fees, defendant’s claim that the trial court abused its discretion by awarding plaintiff attorney fees at an hourly rate of $500 for 549.5 hours is rendered moot.
Some legal commentators have cited Shanafelt, for the proposition that interest awardable under MCL 500.3142(3) runs from the date of the filing of the complaint to the date of the satisfaction of judgment. This notion was apparently born from Westlaw’s summary headnote 10, which provides:
No-fault insurer’s wrongful refusal to pay personal protection insurance (PPI) benefits entitled insured to penalty interest and interest from date of filing of complaint to date of satisfaction of judgment, even though health insurer had paid insured’s medical expenses; recovery under second, distinct contract with another legal entity was immaterial. M.C.L.A. §§ 500.3142, 600.6013.
Westlaw’s summary and conclusion are wrong. Nothing in the text of the Shanafelt opinion supports this proposition. The question whether interest under MCL 500.3142 runs to the satisfaction of judgment was simply not addressed by the Shanafelt Court.
Because Johnston was decided before November 1, 1990, we are not required to convene a conflict panel to reach this conclusion. MCR 7.215(J)(1). | [
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Wilder, J.
Flaintiff Mettler Walloon, L.L.C. (Mettler Walloon), appeals as of right the trial court’s final judgment upon the remaining claims and its decision after trial. The trial court’s orders decided the pertinent issues in defendants’ favor, finding no cause of action on plaintiffs damages claims. We affirm.
i
The principal member of plaintiff is Louis E Mettler (Mettler). Mettler acquired the property at issue in various parts in 2002 and 2003. Mettler acquired parcels on Walloon Lake (lakeside parcels) and parcels across the highway from the lake (dry side parcels). The lakeside parcels in question were zoned C-3 (village commercial) at all relevant times. The zoning ordinance states that the village commercial “ [district is intended to provide areas for business uses that serve the township and that are located in the village area.” Melrose Township Zoning Ordinance (MTZO), art § 6.6(A). Numerous uses are permitted in the village commercial zone, including boathouses and wet storage, dry boat storage, marinas, and “[a]partments above all of the allowed uses[.]” MTZO, art W, § 6.6(B).
At the time Mettler purchased the initial parcels, he had a marina permit and was considering using the lakeside parcels for the sale of antique boats. Mettler was also contemplating boathouses with living spaces above them. Mettler initially planned to develop his property as a planned unit development (FUD).
In March of 2003 plaintiff entered into a purchase agreement with the Hass brothers for the acquisition of nine additional parcels, three on the lakefront and six on the opposite side of the highway. There had been a fire on one of the Hass parcels, and some people encouraged Mettler to buy the Hass properties. After purchasing the Hass properties, Mettler incorporated them into the site plan.
Before the purchase of the Hass properties, the plan for the lakeside parcels was to build two buildings, each in turn with two units (four total), and move an existing building across the street to be used for restoration of wooden boats. But the acquisition of the Hass properties doubled the site plan size from two buildings to four with two living units in each (eight total living units), and then one large boathouse underneath them.
Mettler initially attempted to purchase the Hass properties on land contract. It was alleged, however, that Mettler’s plan subsequently began to be disfavored. Plaintiff testified at trial that at that time “there was a definite turn in the direction of the feeling... most definitely by Mr. [Michael] Webster,” the township supervisor.
On March 28, 2003, David Drews, a project manager for Mettler, sent an e-mail to W. Randolph Frykberg, the township zoning administrator, discussing PUD issues. On March 28, 2003, Frykberg notified Webster of a meeting with Drews to discuss PUD details, but on that same date, David Drews notified Frykberg that plaintiff would not pursue a PUD, would seek approval of its development under existing zoning, and was no longer contemplating the sale of antique wooden boats.
On April 24, 2003, the Melrose Township Zoning Board of Appeals (ZBA) held a meeting. Among those present were Richard Hermann, the chairman of the planning commission and a planning commission representative on the ZBA, as well as Frykberg and township attorney Bryan Graham. Graham stated that the meeting was convened to define the term “boathouse.” The ZBA acknowledged that a boathouse is a use permitted by right in the C-3 zone, and that “boat house” is not defined in the ordinance. The ZBA interpreted “boathouse” to mean “a building or shed, usually built partly over water, for sheltering a boat or boats, but which excludes any residential use.”
On April 29, 2003, Webster removed Hermann from his position on the planning commission. On May 2, 2003, Mettler submitted a site plan for the lakeside parcels. The plan proposed marina and boathouse uses. The township directed the site plan to Graham for review. On May 23, 2003, Graham sent a letter to plaintiff indicating deficiencies in the site plan.
On June 20, 2003, Webster sent an e-mail to Frykberg, with copies to various township officials, stating:
I want to reiterate the importance of having the amendments completed prior to continuing with any receipt of application or review of the Mettler project or any large scale project. These types of projects must meet the amended standards, particularly the “performance guarantee” amendment to protect the interest of the community.
I realize that delays will frustrate Mr. Mettler and others, but if the policy has been “no condominiums allowed on the waterfront in the Village” then that is the policy we must follow until zoning is clarified or changed. I have made it clear that condominiums under the guise of boathouses was [sic] not appropriate and that there would be public discontent, but some people just did not want to listen. I continue to get negative comments and letters in regard to the condo/boathouses.
I feel that the priority of the Township Board is to remedy any misunderstandings as to zoning interpretations before proceeding with any large scale projects such as Mettler’s. Allowing the Zoning Board of Appeals and the Planning Commission to clearly define the interest of the township will take the onus of such a momentous decision off of a single individual and place it on several people.
In the long run, having taken deliberate steps to clarify and improve our zoning ordinance will be best for the community. To expedite matters in the interest of a developer is shortsighted and is a recipe for disaster. I expect that you will act accordingly.
At a June 23, 2003, planning commission meeting, Graham recommended zoning ordinance amendments. Thomas Swenor, the newly elected chairman of the planning commission, announced a special meeting would be held on July 17, 2003, to conduct a public hearing on the proposed amendments. Hermann, who was present, questioned the need for a special meeting, but Frykberg explained that he was expecting a lengthy site plan review at the next regular meeting and that the amendments should be considered first. Also at the June 23, 2003, planning commission meeting, it was announced that the commission would consider amending the zoning ordinance to add the word “commercial” in front of “boat houses” in the C-3 zone, and that a public hearing would be held at the July 17 special meeting to consider doing so.
On July 17, 2003, the planning commission held a special meeting, considered zoning ordinance amendments, and conducted a public hearing. The commission considered the proposed amendment to add “commercial” before “boathouses and wet storage” in the C-3 zone. Swenor explained the purpose of the amendment, but commission member Wayne Ramsey suggested that the amendment was unnecessary because the ordinance already designates C-3 as a commercial zone. Frykberg indicated that questions and ambiguity were what prompted the proposal, and that it was requested by the township board. He agreed that the purpose and intent of the zoning ordinance would be unchanged, but stated that it was being proposed in the interest of clarity. The commission unanimously passed a motion to recommend acceptance of the amendment to add “commer cial” in front of the phrase “boat houses and wet storage” that are allowed uses in a C-3 zone.
On July 21, 2003, the ZBA met. Chairman Errol Lee stated that the meeting was a continuation of the earlier meeting regarding interpretation of the zoning ordinance provisions, as requested by the township board. A motion was filed, based on findings of fact, to rule that a boathouse must be commercial to be allowed in a C-l or C-3 zone. The motion passed.
On July 18, 2003, Mettler’s development plan became available for public view at the library. On July 28, 2003, the planning commission held a regular meeting. The commission first dealt with the unfinished business of reviewing Mettler’s preliminary development plan. The meeting had to be moved to the fire hall to accommodate the additional persons who wanted to attend. There was substantial public discussion about whether Mettler’s proposed development was an allowed use in a C-3 zone. There was concern that the duplex concept would result in the boathouses below being sold or leased on a long-term basis to the upstairs occupant, effectively eliminating any semblance of a commercial enterprise. When asked for his definition of a “commercial” use of the proposed buildings, John Turner, plaintiffs counsel, repeatedly responded that the terms and conditions of access would be determined by the owner. Following the close of the public hearing portion of the July 28, 2003, meeting, the commission deliberated, but was not prepared to decide whether the proposed project was commercial in nature and adjourned the issue to a meeting on August 1, 2003.
On July 30, 2003, Frykberg provided a memorandum to the planning commission, for purposes of the August 1, 2003, meeting. Frykberg noted that the site plan included two garages on the street side of the first floor and two boathouses on the lakeside of the first floor in each of the four buildings. Frykberg opined that the proposed use of the garages and boathouses “is not, to me, a commercial use.” Frykberg opined that the proposed use of the garages and boathouses “does not, to me, meet the purpose of the C-3 Village Commercial” zone, viz., to provide areas for business uses. Frykberg recommended denial of the site plan:
Because the proposed use of the property for garages and boathouse [s] does not meet the common or standard utilization of the word commercial, nor does it meet the intent of the C-3 Village Commercial district, I recommend that the Planning Commission deny the Site Plan review as presented. This is not to say that the project, with some modifications, or a re-submittal as a PUD, could not be approved, just that the present form of the application does not meet the Ordinance. [Emphasis added.]
On August 1, 2003, the planning commission reconvened. Graham referenced exhibits made available to members, including two sets of proposed findings of fact. The two sets of proposed findings of fact were called “option one” and “option two.” The proposed findings of fact for option one supported a decision not to approve the plan, while the findings of fact for option two supported a decision to permit the use and allow the review process to proceed to the next step (actual site plan review). The commission ultimately adopted the findings of fact in option one.
Number 15 of the findings of fact for option one states in relevant part: “the Planning Commission finds that the long-term rental of a boathouse in close proximity to the apartment unit is the functional equivalent of the person owning both the apartment condominium unit and the boathouse condominium unit.” The commission found that merely labeling the boathouses as commercial uses does not ipso facto make them com mercial, and “[b]ased on all of the information before it, the Planning Commission [found] that the proposed boathouses are not commercial in nature.” The commission found that the ordinance “does not permit a residential use as the princip[al] use of property within the C-3 zoning district.” Therefore, the commission found “that the applicant’s proposed development is not a use allowed by right in the C-3 zoning district.”
After the proposed findings of fact for both options were read, Ramsey opined that “the currently proposed plan does not meet the definition of a commercial use.” Planning commission member William Stetson essentially agreed, because “rentals could vary in length and the condo owners may have first choice at a long-term rental.”
Ramsey moved, seconded by planning commission member A1 Reeves, that on the basis of the findings of fact, the development plan as a use by right in the C-3 zone be denied. After the motion, additional discussion by members occurred. Ramsey encouraged Mettler to work with Frykberg to alter the plan to provide an acceptable proposal. He indicated that a PUD proposal should be explored. Swenor expressed support for the mixed-use PUD idea. Swenor and Graham noted that the option to apply as a PUD is the applicant’s choice and the township cannot force it to do so. The commission unanimously passed a motion to deny the development plan.
On September 2, 2003, Mettler filed with the ZBA an appeal of the planning commission’s rejection of the development plan. On September 23, 2003, Graham prepared a memorandum noting that the scope of the ZBA’s authority (in considering Mettler’s appeal from the planning commission’s denial) is limited to considering the evidence presented to the planning commission.
On October 8, 2003, the ZBA met to consider Mettler’s appeal. Chairman Lee stated that the ZBA was to review the procedures that the planning commission used to deny the site plan. Graham added that the ZBA should look at the planning commission’s findings of fact to determine if the decision was correct, i.e., was the decision supported by the findings of fact. Frykberg stated that the available documentation was the same as what had been available to the planning commission.
Turner gave a lengthy presentation. Turner argued that Webster removed Hermann from the planning commission because Webster thought that Hermann did not share the vision of the township. Turner argued that this was done to slow down consideration of the application. Turner disagreed with Graham’s memorandum about the ZBA’s review being limited to the evidence that was available to the planning commission. Turner argued that Graham could not “establish the rules at the beginning of a meeting,” and that the ZBA should establish the rules, not the township’s attorney. Turner argued that there were no findings of fact allowed at the second commission meeting, no policy was set ahead of time, no public comment was allowed, and that due process is fundamental. Turner argued that the site plan was not subjected to the same procedures as other site plans.
Members of the public made various comments. After the public hearing closed, the ZBA deliberated on the appeal, considering the findings of fact made by the planning commission. The ZBA affirmed findings of fact 1 through 13, but made no decision on findings of fact 14 and 15, determining “[t]his needs more work.” The minutes state that “[m]uch discussion followed on the long and short-term rental issue and Mr. Turner stated he felt there is no real evidence to substantiate the short term vs. long-term rentals as far as commercial use is concerned.” The ZBA adjourned to its October 30, 2003, meeting.
On October 30, 2003, the ZBA met. The ZBA discussed and agreed unanimously to only deliberate on whether the planning commission decision was made properly and to not rehear the entire planning commission case. The ZBA made 29 findings, including finding that the planning commission’s conclusion that the proposed development was not commercial in nature was proper. Accordingly, the ZBA affirmed the planning commission’s decision. Chairman Lee noted that the applicant had the option of submitting new plans to the planning commission.
Plaintiff then commenced this action, seeking damages as well as authorization to develop the property. Facilitative mediation resulted in a partial consent judgment, allowing development to proceed under a revised development plan containing new commercial elements. The consent judgment requires that the boathouses be available for rent to the general public, and be rented for periods not longer than two years. The marina’s commercial space (4,000 square feet) is required to be maintained as commercial in perpetuity. But the partial consent judgment did not resolve plaintiffs damages claims.
Defendants filed a dispositive motion concerning the remaining damages claims. The trial court denied it. The parties then participated in a bench trial regarding the damages claims. The trial court eventually held that there was no cause of action.
ii
A
First, plaintiff argues that the trial court applied an incorrect legal standard to its claim under 42 USC 1983 when it stated that plaintiff failed to prove that township officials had a pecuniary interest behind their decisions. We disagree.
1
Following á bench trial, this Court reviews the trial court’s conclusions of law de novo, and its findings of fact for clear error. Ligon v Detroit, 276 Mich App 120, 124; 739 NW2d 900 (2007) (a taking claim), citing Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich App 523, 531; 695 NW2d 508 (2004). A finding is clearly erroneous if panel members are left with a definite and firm conviction that a mistake has been made. American Federation of State, Co & Muni Employees v Bank One, NA, 267 Mich App 281, 283; 705 NW2d 355 (2005).
2
a
42 USC 1983 is the all-purpose federal civil rights statute, providing a remedy for violations of the federal constitution and other federal law. A plaintiff must demonstrate that the defendants, acting under color of state law, deprived it of a right secured by the constitution or the laws of the United States. American Manufacturers Mut Ins Co v Sullivan, 526 US 40, 49-50; 119 S Ct 977; 143 L Ed 2d 130 (1999). In other words: “Any person who, under color of state law, deprives another of rights protected by the constitution or laws of the United States, is liable under 42 USC 1983.” Morden v Grand Traverse Co, 275 Mich App 325, 332; 738 NW2d 278 (2007), citing Monell v Dep’t of Social Services of the City of New York, 436 US 658, 690-691; 98 S Ct 2018; 56 L Ed 2d 611 (1978).
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects... 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____
“[I]n any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated.” Co of Sacramento v Lewis, 523 US 833, 841 n 5; 118 S Ct 1708; 140 L Ed 2d 1043 (1998). There must be an underlying violation of the federal constitution or a federal law, in order for a § 1983 claim to lie. Manuel v Gill, 270 Mich App 355, 374-375; 716 NW2d 291 (2006). Here, plaintiffs § 1983 count (count IV) asserts that defendants “deprived Plaintiff of its constitutionally protected rights to substantive due process and to the reasonable use and enjoyment of its property, as protected by the Michigan and United States Constitutions.”
Section 1983 does not provide a remedy for a violation of the Michigan Constitution; rather, there must be an underlying violation of the federal constitution or federal law. Morden, supra at 332. “By the terms of the statute itself, a section 1983 claim must be based upon a federal right.” Ahern v O’Donnell, 109 F3d 809, 815 (CA 1, 1997) (emphasis in original). Therefore, plaintiffs count IV insofar as it asserts a § 1983 claim for violation of the Michigan Constitution, was correctly rejected.
Count IV expressly states a substantive due process claim, but does not expressly state a procedural due process claim. However, the trial court and defendants essentially consented to the trial of both a substantive due process claim (pleaded) and a procedural due process claim (unpleaded). We therefore address both claims.
b
We first consider the substantive due process claim. The Due Process Clause provides that “[n]o State shall... deprive any person of life, liberty, or property, without due process of law[.]” US Const, Am Xiy § 1. But despite the clause’s reference to process, the United States Supreme Court has interpreted this clause to “guarantee[ ] more than fair process,” Washington v Glucksberg, 521 US 702, 719; 117 S Ct 2258; 138 L Ed 2d 772 (1997), and to cover a substantive sphere as well, “barring certain government actions regardless of the fairness of the procedures used to implement them,” Co of Sacramento, supra at 840 (quotation marks and citation omitted).
In disputes over municipal actions, the focus is on whether there was egregious or arbitrary governmental conduct. In City of Cuyahoga Falls, Ohio v Buckeye Community Hope Foundation, 538 US 188, 198-199; 123 S Ct 1389; 155 L Ed 2d 349 (2003), the Court stated:
[T]he city engineer’s refusal to issue the [building] permits while the petition [for repeal of a municipal housing ordinance authorizing construction of the low-income housing complex at issue] was pending in no sense constituted egregious or arbitrary government conduct. See County of Sacramento v. Lewis, 523 U.S. 833, 846 [118 S Ct 1708; 140 L Ed 2d 1043] (1998) (noting that in our evaluations of “abusive executive action,” we have held that “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense’ ”).
Thus, when evaluating municipal conduct vis-á-vis a substantive due process claim, only the most egregious official conduct can be said to be arbitrary in the constitutional sense.
To sustain a substantive due process claim against municipal actors, the governmental conduct must be so arbitrary and capricious as to shock the conscience. In Co of Sacramento, the parents of a motorcycle rider killed in a high-speed police chase of the motorcycle brought a § 1983 claim against the county, the sheriffs department, and a deputy, alleging deprivation of the rider’s life without substantive due process. The Supreme Court applied a “shocks the conscience” standard and held that the Court of Appeals erred in reversing the district court’s summary judgment in the deputy’s favor. The Supreme Court’s discussion is worth quoting at length:
We have emphasized time and again that “[t]he touchstone of due process is protection of the individual against arbitrary action of government,” Wolff v. McDonnell, 418 U.S. 539, 558 [94 S Ct 2963; 41 L Ed 2d 935] (1974), whether the fault lies in a denial of fundamental procedural fairness, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 82 [92 S Ct 1983; 32 L Ed 2d 556] (1972) (the procedural due process guarantee protects against “arbitrary takings”), or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective, see, e.g., Daniels v. Williams, 474 U.S. [327, 331; 106 S Ct 662; 88 L Ed 2d 662 (1986)] (the substantive due process guarantee protects against government power arbitrarily and oppressively exercised). While due process protection in the substantive sense limits what the government may do in both its legislative, see, e.g., Griswold v. Connecticut, 381 U.S. 479 [85 S Ct 1678; 14 L Ed 2d 510] (1965), and its executive capacities, see, e.g., Rochin v. California, 342 U.S. 165 [72 S Ct 205; 96 L Ed 183] (1952), criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue.
Our cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be “arbitrary in the constitutional sense,” Collins v. Harker Heights, 503 U.S. [115, 129, 112 S Ct 1061; 117 L Ed 2d 261 (1992)], thereby recognizing the point made in different circumstances by Chief Justice Marshall, “ ‘that it is a constitution we are expounding,’ ” Daniels v. Williams, supra, at 332 (quoting McCulloch v. Maryland, [17 US 316, 407] 4 Wheat. 316, 407 [4 L Ed 579] (1819) (emphasis in original)). Thus, in Collins v. Harker Heights, for example, we said that the Due Process Clause was intended to prevent government officials “ ‘ “from abusing [their] power, or employing it as an instrument of oppression.” ’ ” 503 U.S., at 126 (quoting DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. [189, 196; 109 S Ct 998; 103 L Ed 2d 249 (1989)] in turn quoting Davidson v. Cannon, 474 U.S. [344, 348; 106 S Ct 668; 88 L Ed 2d 677 (1986)]).
To this end, for half a century now we have spoken of the cognizable level of executive abuse of power as that which shocks the conscience. We first put the test this way in Rochin v. California, supra, at 172-173, where we found the forced pumping of a suspect’s stomach enough to offend due process as conduct “that shocks the conscience” and violates the “decencies of civilized conduct.” In the intervening years we have repeatedly adhered to Rochin’s benchmark. See, e.g., Breithaupt v. Abram, 352 U.S. 432, 435 [77 S Ct 408; 1 L Ed 2d 448] (1957) (reiterating that conduct that “ ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did not comport with traditional ideas of fair play and decency” would violate substantive due process); Whitley v. Albers, 475 U.S. 312, 327 [106 S Ct 1078; 89 L Ed 2d 251] (1986) (same); United States v. Salerno, 481 U.S. 739, 746 [107 S Ct 2095; 95 L Ed 2d 697] (1987) (“So-called ‘substantive due process’ prevents the government from engaging in conduct that ‘shocks the conscience,’... or interferes with rights ‘implicit in the concept of ordered liberty’ ”) (quoting Rochin v. California, supra, at 172, and Palko v. Connecticut, 302 U.S. 319, 325-326 [58 S Ct 149; 82 L Ed 288] (1937)). Most recently, in Collins v. Harker Heights, supra, at 128, we said again that the substantive component of the Due Process Clause is violated by executive action only when it “can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” While the measure of what is conscience-shocking is no calibrated yard stick, it does, as Judge Friendly put it, “point the way.” Johnson v. Glick, 481 F.2d 1028, 1033 (CA2), cert. denied, 414 U.S. 1033 (1973). [Co of Sacramento, supra at 845-847 (emphases added).]
Thus, when executive action is challenged in a substantive due process claim, the claimant must show that the action was so arbitrary (in the constitutional sense) as to shock the conscience.
In Butler v Detroit, 149 Mich App 708, 721-722; 386 NW2d 645 (1986), the plaintiffs decedent died in a fatal shooting involving the police, and, in addition to state-law tort claims, the plaintiff brought a § 1983 claim for deprivation of life without substantive due process. The jury found in the plaintiffs favor on all counts and awarded compensatory and punitive damages on the § 1983 claim. This Court held that the plaintiff failed to adequately prove a substantive due process violation under the “shocks the conscience” test:
[W]e must then inquire whether plaintiff “proved a case which fits the other prong of substantive due process— official, acts which ‘may not take place no matter what procedural protections accompany them’ ”. Wilson v Beebe, 770 F2d [578] 586 [(CA 6, 1985)]. As explained by the Wilson court, there “is a substantive due process right akin to the ‘fundamental fairness’ concept of procedural due process”. Id. Applying the “shocks the conscience test” as described in Wilson v Beebe, supra, to the facts and evidence presented in this case, we find that the plaintiff had failed to establish a cause of action under 42 USC 1983. The complained-of official conduct does not “shock the conscience” of this Court nor does it “offend those canons of decency and fairness which express the notions of justice of English speaking peoples even towards those charged with the most heinous crimes”. Wilson v Beebe, 770 F2d 586. [Butler, supra at 721-722 (emphasis added).]
Thus, the shocks-the-conscience test has been applied in Michigan to a substantive due process claim. Michigan courts have acknowledged that the essence of a substantive due process claim is the arbitrary deprivation of liberty or property interests. Landon Holdings, Inc v Grattan Twp, 257 Mich App 154, 176; 667 NW2d 93 (2003).
Sundry decisions, both federal and state, including those involving land use planning, apply the shocks-the-conscience standard. In Mongeau v City of Marlborough, 492 F3d 14 (CA 1, 2007), a developer claimed a deprivation of property without substantive due process. Eugene Mongeau alleged that Stephen Reid, the city’s commissioner of inspectional services, denied him a building permit and interfered in the zoning process for improper reasons. Id. at 16. The court held that the shocks-the-conscience standard applied to the substantive due process claim, and that the city official’s conduct in opposing the developer’s building permit did not shock the conscience. The court stated:
If Mongeau believes that the City or Reid has wrongly charged or demanded too much for his building permit, he may find recourse in other laws, but not in the substantive component of the Due Process Clause of the Fourteenth Amendment. Such conduct, without more, cannot be said to transgress “some basic and fundamental principle ... [such] that ‘the constitutional line has been crossed’ ” and our conscience is shocked. [Id. at 20 (citation omitted).]
In Mitchell v McNeil, 487 F3d 374, 377 (CA 6, 2007), the court stated:
To state a cognizable substantive due process claim, the plaintiff must allege “conduct intended to injure in some way unjustifiable by any government interest” and that is “conscience-shocking” in nature. Lewis, 523 U.S. at 849, 118 S.Ct. 1708; see Stemler v. City of Florence, 126 F.3d 856, 869 (6th Cir. 1997); Lewellen v. Metro. Gov’t of Nashville & Davidson County, 34 F.3d 345, 350-51 (6th Cir. 1994).
Mitchell held that the defendants’ municipal policy of allowing police officers to loan their personal vehicles to informants did not deprive the plaintiffs of liberty without substantive due process. Id. at 377-378.
In Torromeo v Town of Fremont, New Hampshire, 438 F3d 113 (CA1, 2006), the court held that the town’s unjustified delay in issuing previously approved building permits after enacting a growth control ordinance did not shock the conscience, and thus did not deprive the plaintiff of property without substantive due process, even though the town did not follow procedures mandated by state law in enacting the ordinance. Tor-romeo is worth quoting at length:
.. . We recently explained the limits on substantive due process claims arising from land-use disputes:
“This Court has repeatedly held that rejections of development projects and refusals to issue building permits do not ordinarily implicate substantive due process. Even where state officials have allegedly violated state law or administrative procedures, such violations do not ordinarily rise to the level of a constitutional deprivation. The doctrine of substantive due process does not protect individuals from all governmental actions that infringe liberty or injure property in violation of some law. Rather, substantive due process prevents governmental power from being used for purposes of oppression, or abuse of government power that shocks the conscience, or action that is legally irrational in that it is not sufficiently keyed to any legitimate state interest. Although we have the left door [sic] slightly ajar for federal relief in truly horrendous situations, the threshold for establishing the requisite abuse of government power is a high one indeed.”
SFW Arecibo Ltd. v. Rodríguez, 415 F.3d 135, 141 (1st Cir. 2005) (internal citations omitted).
In Arecibo, real estate developers sued after a state planning board incorrectly determined that their building permit had expired. Id. at 137. When suit was filed, the state court had already determined that the permit had been wrongly revoked. Id. at 138. We affirmed the dismissal of the substantive due process claim because the complaint stated “[i]n its strongest form... that the [planning board made an erroneous decision in violation of state law,” which is insufficient to establish a substantive due process violation. Id. at 141. So too here. Plaintiffs allege that the Town violated substantive due process by enacting the growth control ordinance without following the procedures mandated by New Hampshire law. But, as in Arecibo, the claim is only that the Town’s violation of state law caused Plaintiffs harm. This is not enough. See id. at 141; see also Licari v. Ferruzzi, 22 F.3d 344, 349 (1st Cir. 1994) (affirming dismissal of substantive due process claim based on allegations that a town planning board improperly revoked the developer’s building permits and delayed processing and approval of an application for an amended permit); PFZ Properties, Inc. v. Rodríguez, 928 F.2d 28, 32 (1st Cir. 1991) (affirming dismissal of substantive due process claim wheré developer alleged that government agency failed to comply with agency regulations or practices in the review and approval process of construction plans). [Torromeo, supra at 118 (emphasis added).]
Thus, under federal law, even a violation of state law in the land use planning process does not amount to a federal substantive due process violation.
In Koscielski v City of Minneapolis, 435 F3d 898 (CA 8, 2006), the court held that the plaintiffs, operators of a firearms dealership, failed to show that a city zoning ordinance restricting where firearms dealerships could operate was so irrational and egregious as to shock the conscience, so as to violate their substantive due pro cess rights, where there were vacant lots meeting the requirements of the zoning ordinance. The court stated:
Due process claims involving local land use decisions must demonstrate the “government action complained of is truly irrational, that is something more than . . . arbitrary, capricious, or in violation of state law.” Anderson v. Douglas County, 4 F.3d 574, 577 (8th Cir. 1993) (internal quotation omitted). The action must therefore be so egregious or extraordinary as to shock the conscience. See County of Sacramento v. Lewis, 523 U.S. 833, 846-47, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Burton v. Richmond, 370 F.3d 723, 729 (8th Cir. 2004). [Koscielski, supra at 902 (emphasis added).]
In United Artists Theatre Circuit, Inc v Twp of Warrington, PA, 316 F3d 392 (CA 3, 2003), Judge (now Justice) Samuel A. Alito held that the proper standard for evaluating the substantive due process claim was whether the supervisors’ actions (allegedly delaying approval of a proposed theater development so that the township could obtain an impact fee offered by a competing developer) shocked the conscience.
In Co Concrete Corp v Roxhury Twp, 442 F3d 159, 170 (CA 3, 2006), the plaintiffs argued that the township impeded their efforts to expand their sand and gravel extraction business “through false accusations, verbal disparagement and the imposition of illegal conditions and restrictions on their business in violation [of] a 1993 agreement.” It was allegedly “[o]n the heels” of this animus between the appellants and the township that the township enacted an ordinance rezoning the plaintiffs’ land from industrial to rural residential or open space. Id. The plaintiffs alleged that the only motivation for enacting an ordinance was to rezone the plaintiffs’ property, constituting an improper use of the zoning authority. The land had been zoned industrial for almost 50 years, and the rezoning action was alleged to have been taken with the knowledge that it would violate the plaintiffs’ legal and contractual rights, and with the desire to prevent the plaintiffs from operating their business. Id. The United States Court of Appeals for the Third Circuit concluded that the plaintiffs had sufficiently alleged a claim of substantive due process violations, providing that they “ ‘had the right to be free from harassment in [its] land development efforts.’ ” Id. (citation omitted). However, Co Concrete Corp relied on Blanche Road Corp v Bensalem Twp, 57 F3d 253, 258 (CA 3, 1995), which applied a lower standard than the “shocks the conscience” test and was abrogated on that ground. United Artists Theatre Circuit, Inc, supra at 400 (holding that Blanche Road Corp applied the “improper motive” test and, therefore, could not be reconciled with the “shock the conscience” test applied in Lewis, supra at 847).
In Uhlrig v Harder, 64 F3d 567, 573 (CA 10, 1995), the panel noted that “the standard for judging a substantive due process claim is whether the challenged government action would shock the conscience of... judges.” (Quotation marks and citations omitted.) The panel further stated:
[T]o satisfy the “shock the conscience” standard, a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power. That is, the plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking. The level of conduct required to satisfy this additional requirement cannot precisely be defined, but must necessarily evolve over time from judgments as to the constitutionality of specific government conduct. We do know, however, that the “shock the conscience” standard requires a high level of outrageousness, because the Supreme Court has specifically admonished that a substantive due process violation requires more than an ordinary tort.... [Id. at 574, citing Collins v City of Harker Hts, Texas, 503 US 115, 128; 112 S Ct 1061; 117 L Ed 2d 261 (1992).]
“The Due Process Clause is not a guarantee against incorrect or ill-advised [governmental] decisions.’ ” Collins, supra at 129 (citation omitted).
There are decisions from sister states applying the “shocks the conscience” test to land use planning disputes. In Plemmons v Blue Chip Ins Services, Inc, 387 NJ Super 551; 904 A2d 825 (2006), the court held that actions by Shirley Himmelman, the chairperson of the borough of Audubon’s zoning and planning board, and by the borough secretary that delayed the plain tiffs (a property owner’s) efforts to convert property from residential to commercial uses did not constitute “egregious official conduct” that “shocked the conscience,” id. at 569, and thus the plaintiff did not have a substantive due process claim under § 1983 against such officials for damages that occurred to the property as a result of a storm and construction delays. Himmelman had only notified Robert Scouler, the borough inspector, that the owner was apparently engaged in unlawful construction work. There was no evidence that the board’s delay in approving the site plan departed from its general practice, or that the owner demanded timely issuance of a resolution memorializing the site plan approval. When Claire Remenicky, Scouler’s secretary, failed to provide the owner with a new construction permit application, she was only complying with Scouler’s directions, and there was no evidence that Remenicky was aware that Scouler was pursuing some nefarious objective. The appellate court affirmed the trial court’s summary judgment for the municipal defendants (the borough, Himmelman, and Remenicky). Plemmons acknowledged that “[t]he [federal] Courts of Appeals have routinely utilized the “shocks the conscience” test in reviewing claims that the actions of officials responsible for passing upon land use and other related applications were so egregiously arbitrary that they violated a property owner’s substantive due process rights.” Plemmons, supra at 568.
It is worth noting that a developer does not always have a protected property interest in a particular outcome of land use planning. As indicated in Aegis of Arizona, LLC v The Town of Marana, 206 Ariz 557, 568-569; 81 P3d 1016 (Ariz App, 2003), there must be a reasonable expectation of entitlement:
“A threshold requirement to a substantive or procedural due process claim is the plaintiffs showing of a liberty or property interest protected by the Constitution.” Wedges/Ledges of California, Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). “A protected property interest is present where an individual has a reasonable expectation of entitlement deriving from ‘existing rules or understandings that stem from an independent source such as state law.’ ” Id., quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972).
Again, because only Marana’s final decision denying the CUP [conditional use permit] application was subject to review in connection with Aegis’s substantive due process claim, it is clear that Aegis could not have had a “reasonable expectation of entitlement” to have the CUP application granted. Although [Joel] Shapiro [Marana’s then-acting planning director] supported the CUP application and recommended its approval, no evidence in the record shows that anyone on either the Planning and Zoning Commission or town council had told Aegis that the CUP application would be approved. Thus, once the application for the CUP was submitted, Aegis was subject to the inherently unpredictable and often politicized process of seeking permission from a local legislative body to conduct certain activity on a piece of property. In short, Aegis had no protected property interest in having its CUP application granted.
Aegis of Arizona, LLC, supra at 569, next considered the substantive due process claim under the “shocks the conscience” standard:
Moreover, even if we assume, arguendo, that Aegis did have a protectable interest in the granting of the CUE] its substantive due process claim still fails. After determining that a party has a protectable property interest, the issue becomes, in the context of a § 1983 suit, whether any depri vation of that interest resulted from an abuse of governmental power of sufficient degree to be deemed a constitutional violation. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1577 (11th Cir. 1989). In order to show a substantive due process violation, the abuse of governmental power must be one that “shocks the conscience.” United Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 401 (3rd Cir. 2003) (holding that in the land-use context, substantive due process is violated only when government action “shocks the conscience”); cf. County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (in context of search and seizure, substantive due process is violated only when the government’s action shocks the conscience in a constitutional sense); Eller Media Co. v. City of Tucson, 198 Ariz. 127, ¶ 6, 7 E3d 136, ¶ 6 (App. 2000) ([in case in which billboard company sought to enjoin city from enforcing outdoor lighting code prohibition against bottom-mounted illumination of billboards, alleging a valid nonconforming use and substantive due process violation] noting that substantive due process “precludes government conduct that shocks the conscience”); Martin v. Reinstein, 195 Ariz. 293, ¶ 66, 987 P.2d 779, ¶ 66 (App. 1999) (applying “shocks the conscience” standard in context of substantive due process claim challenging application of Sexually Violent Persons Act).
Aegis of Arizona, LLC, held that the trial court did not err in denying the plaintiffs motion for judgment as a matter of law.
California also applies the “shocks the conscience” standard. In Clark v City of Hermosa Beach, 48 Cal App 4th 1152, 1186; 56 Cal Rptr 2d 223 (1996), the court concluded that the developer did not have a protected property interest in the development project permits in question. The court also held that the city’s action in allowing a particular council member with a conflict of interest to participate was not irrational or conscience-shocking:
In this case, regardless of whether the City Council’s decision was proper under state law, we cannot say that its conduct, for due process purposes, was arbitrary or oppressive or that it “shocks the conscience.” Although we have concluded that Councilmember [Robert] Benz had a conflict of interest in voting on the project, the city attorney advised the Council at the public hearing that there was no conflict. That advice was incorrect, but it was not irrational. In light of the city attorney’s opinion, the Council did not act irrationally by allowing Benz to participate in the proceedings. [Id. at 1186.]
Clark further held: “the Council erred in considering and deciding issues raised for the first time after the public hearing was over. Further, it may have misconstrued or misapplied the provisions of the zoning ordinance concerning lot coverage and usable open space. Nonetheless, the Council’s ultimate decision to deny the permits did not lack a rational basis.” Id.
Massachusetts is deferential toward local land use planning bodies. In K Hovnanian at Taunton, Inc v City of Taunton, 37 Mass App Ct 639, 647; 642 NE2d 1044 (1994), the court stated:
Had Hovnanian asserted a specific property interest under State law, any arbitrary misapplication of that law reflected by the denial of the tie-in nevertheless does not involve procedural or substantive due process rights. Rosenfeld v. Board of Health of Chilmark [27 Mass App Ct 621, 627-628; 541 NE2d 375 (1989)]. “[T]he ordinary state administrative proceeding involving land use or zoning does not present [a violation of a Federal constitutional right], regardless of how disappointed the license or privilege seeker may feel at being... turned down.” Id. at 628, 541 N.E.2d 375, quoting from Creative Envts. . . . See Bobrowski, Handbook of Massachusetts Land Use & Planning Law § 2.6.1 at 77 (1993 & Supp. 1994) (“The Creative Environments holding has led, in the First Circuit, to a long line of land use decisions rejecting the use of § 1983 actions. ”[)] Moreover, we are not involved here with cor- rapt or egregious conduct that so shocks the conscience as to give rise to a due process claim. See Raskiewicz v. Town of New Boston, 754 F.2d 38, 44 (1st Cir. [1985]), cert. denied .... Rosenfeld v. Board of Health of Chilmark [27 Mass App Ct 621, 628; 541 NE2d 375 (1989)].
K Hovnanian at Taunton, Inc, supra at 648, also noted that the developer had no constitutionally protected property interest in the approval of a subdivision plan:
Hovnanian’s claim of a right to approval of its subdivision plan is similarly unavailing. This court held in K. Hovnanian at Taunton, Inc. v. Planning Bd. of Taunton, 32 Mass.App.Ct. [480] 485-486, 590 N.E.2d 1172 [1992], that the decision of the Taunton planning board to reject Hovnanian’s subdivision plan was correct given the failure of the plan to comply with the board’s regulations and the absence of approval by the Taunton board of health based upon the unavailability of a sewer tie-in. It is significant that with respect to the absence of the Taunton board of health approval, this court, in effect, indicated that administrative discretion was not involved. We concluded that “the planning board had no choice but to disapprove the plans (plans....”) Id. at 486, 590 N.E.2d 1172. In any event, no “property” interest is involved in the approval of a subdivision plan. Cote v. Seaman, 625 F.2d 1, 2 (1st Cir. 1980). Rosenfeld v. Board of Health of Chilmark, supra 27 Mass.App.Ct. at 627, 541 N.E.2d 375 [1989]. The existence of such an interest is “a necessary prerequisite to a fourteenth amendment due process claim.” Cote v. Seaman, supra at 2.[ ]
Pennsylvania also gives deference to local planning officials. In Anselma Station, Ltd v Pennoni Assoc, Inc, 654 A2d 608, 614-615 (Pa Commw Ct, 1995), the defendants were township engineers who advised the township to delay development of a site until pollution could be remediated. The court applied the “shocks the conscience” standard.
Here, plaintiff has not presented evidence of any conduct by township officials that is so outrageous or arbitrary as to shock the conscience. Rather, the evidence indicated conduct intended to further the legitimate land use planning interests of the township (maintaining the integrity of the commercial zone in the village, and furthering the vitality of the village’s commercial center). Therefore, the trial court did not err in rejecting the substantive due process claim.
C
Next, we consider the procedural due process claim. Plaintiff argues that the trial court applied an incorrect legal standard when it held that plaintiff had failed to prove that Webster had a personal pecuniary interest in the outcome of the township’s land use planning proceedings. We disagree.
Procedural due process serves as a limitation on governmental action and requires a government to institute safeguards in proceedings that might result in a deprivation of life, liberty, or property. Kampf v Kampf, 237 Mich App 377, 382; 603 NW2d 295 (1999). Procedural due process generally requires notice, see In re Nunn, 168 Mich App 203, 208-209; 423 NW2d 619 (1988), an opportunity to be heard, Traxler v Ford Motor Co, 227 Mich App 276, 288; 576 NW2d 398 (1998), before an impartial trier of fact, Newsome v Batavia Local School Dist, 842 F2d 920, 927 (CA 6, 1988), and a written, although relatively informal, statement of findings, Verbison v Auto Club Ins Ass’n, 201 Mich App 635, 641; 506 NW2d 920 (1993). In other words, procedural due process requires that a party be provided notice of the nature of the proceedings and an opportunity to be heard by an impartial decision maker at a meaningful time and in a meaningful manner. Reed v Reed, 265 Mich App 131, 159; 693 NW2d 825 (2005).
Logically, where a governmental actor has a personal pecuniary interest in the outcome of proceedings, he might not be an impartial decision maker. See, e.g., Connally v Georgia, 429 US 245; 97 S Ct 546; 50 L Ed 2d 444 (1977) (due process violated when a justice of the peace personally received $5 for each search warrant he issued, collected nothing when he denied a warrant, and had no other salary); Gibson v Berryhill, 411 US 564; 93 S Ct 1689; 36 L Ed 2d 488 (1973) (due process violated when members of a board with the power to bar optometrists from practice had their own private practices in competition with those who came before the board); compare Alpha Epsilon Phi Tau Chapter Housing Ass’n v City of Berkeley, 114 F3d 840, 845 (CA 9, 1997) (Byron R. White, retired associate justice of the United States Supreme Court, sitting by designation, held that a rent board’s dual role as adjudicator and as executive body funded by its own registration fees did not render it a biased decision maker so as to violate due process).
In DeBlasio v Zoning Bd of Adjustment for Twp of West Amwell, 53 F3d 592 (CA 3, 1995), overruled on other grounds by United Artists Theatre Circuit, Inc v Twp of Warrington, Pennsylvania, 316 F3d 392, 400 (CA 3, 2003), the court held that New Jersey provided full judicial process for challenging adverse zoning decisions, thus precluding relief on a landowner’s procedural due process claim, but a genuine issue of material fact existed regarding whether the ZBA’s decisions were influenced by the ZBA secretary’s personal financial interest in resolution of the landowner’s zoning problems. See also Spokane Co Legal Services, Inc v Legal Services Corp, 614 F2d 662 (CA 9, 1980) (the plaintiffs were not denied procedural due process in the action taken by the Legal Services Corporation to terminate financial support for their programs, even though the Legal Services Corporation appointed the special assistant to its president to conduct the hearing on the proposed transfer of funding; there was no suggestion that the hearing examiner had any personal bias or animosity against the plaintiffs or had a pecuniary interest in the controversy, and the appointment of a Legal Services Corporation employee to conduct the hearing was specifically authorized by federal regulation).
In light of the fact that having a personal pecuniary interest in the outcome of the land use planning proceedings would indicate a lack of an objective decision maker, it was logical for the trial court to conclude that not having such an interest (and not being motivated by such an interest) would point to the existence of an objective decision maker, and to the lack of merit of a procedural due process claim. Accordingly, it was not erroneous for the trial court to use, as part of its ratio decidendi in resolving that claim, the factual finding that plaintiff failed to prove that Webster had a personal pecuniary interest in the outcome of the planning process.
B
Next, plaintiff argues that the trial court erred when it held that the township officials’ actions that the trial court found were wrongful were excused for purposes of 42 USC 1983 because the trial court believed that such officials acted in a way that they may have perceived to be in the best interest of the township. We disagree.
1
Following a bench trial, this Court reviews the trial court’s conclusions of law de novo, and its findings of fact for clear error. Ligón, supra at 124. Questions of law are reviewed de novo. Morden, supra at 340.
2
Plaintiff argues that the township officials’ actions are attributable to the township because the actions were taken pursuant to a custom or policy of the township or under color of law, citing Monell, supra at 690. This argument lacks merit.
Plaintiff’s argument regarding attribution is beside the point. The trial court never concluded that the township officials’ actions were not attributable to the township. The trial court simply used, as part of its reasoning for denying parts of the procedural due process claim, its conclusions of fact (1) that Webster did not have a personal pecuniary interest in the outcome of the land use planning proceedings and (2) that Webster’s conduct was not motivated by personal pecuniary interest. Plaintiff does not challenge these conclusions of fact on appeal; therefore, they must be accepted.
The only authority cited by plaintiff, Monell, does not show that the trial court erred as a matter of law by considering as relevant its findings regarding Webster’s lack of personal pecuniary interest and lack of motive to further a personal pecuniary interest. Therefore, no error can be found under this issue on appeal.
c
Next, plaintiff argues that the trial court erred by reviewing, for purposes of the § 1983 claim, only se lected instances of conduct from the evidence presented at trial and then viewing those limited instances in isolation. We disagree.
In this argument section, plaintiff argues that the trial court reached an erroneous factual conclusion regarding all its remaining claims. But plaintiff does not identify the allegedly erroneous factual conclusion. Also, plaintiff fails to argue that any factual finding by the trial court was clearly erroneous. Therefore, the trial court’s factual findings must be accepted.
Plaintiff argues that the trial court addressed only limited instances of the defendants’ actions in isolation, citing Bynum v ESAB Group, Inc, 467 Mich 280; 651 NW2d 383 (2002), for the proposition that the record should have been viewed as a whole. Plaintiff argues in this section that Webster acted improperly in terminating Hermann as the planning commission chairman. This argument lacks merit.
The trial court found that although Webster acted improperly in terminating Hermann as a planning commission member, “plaintiff has failed to meet its burden of proof that Mr. Hermann’s departure proximately caused the result it complains of,” pointing out that the planning commission’s vote against plaintiffs development was five to zero, and that the ZBA’s relevant vote was also five to zero. This conclusion is sound.
Proximate cause is an essential element of a § 1983 claim. Morden, supra at 335 (“Plaintiffs theory of causation is also insufficient as a matter of law to establish the requisite proximate cause for a § 1983 claim.”), citing Horn v Madison Co Fiscal Court, 22 F3d 653, 659 (CA 6, 1994) (“proximate causation is an essential element of a § 1983 claim for damages”). Proximate cause has, in turn, two components.
“ ‘Proximate cause’ is a legal term of art that incorporates both cause in fact and legal (or ‘proximate’) cause.” Craig v Oakwood Hosp 471 Mich 67, 86; 684 NW2d 296 (2004). Cause in fact requires the plaintiff to show that but for the defendant’s actions, the injury would not have occurred, while legal or proximate cause normally involves examining the foreseeability of consequences. Id. at 86-87. Cause in fact requires more than a possibility of causation:
It is important to bear in mind that a plaintiff cannot satisfy this burden by showing only that the defendant may have caused his injuries. Our case law requires more than a mere possibility or a plausible explanation. Rather, a plaintiff establishes that the defendant’s conduct was a cause in fact of his injuries only if he sets forth specific facts that would support a reasonable inference of a logical sequence of cause and effect. A valid theory of causation, therefore, must be based on facts in evidence. And while the evidence need not negate all other possible causes, ... [it must] exclude other reasonable hypotheses with a fair amount of certainty. [Id. at 87-88 (emphasis in original; quotation marks and brackets omitted).]
Speculation in proving causation is prohibited, e.g., Skinner v Square D Co, 445 Mich 153, 166, 516 NW2d 475 (1994); Ensink v Mecosta Co Gen Hosp, 262 Mich App 518, 524-525; 687 NW2d 143 (2004), even on a statutory claim, McManamon v Redford Charter Twp, 273 Mich App 131, 139; 730 NW2d 757 (2006) (claim under the Employee Right to Know Act). The proof must “ ‘amount to a reasonable likelihood . . . rather than a possibility. The evidence need not negate all other possible causes, but. . . must exclude other reasonable hypotheses with a fair amount of certainty.’ ” Skinner, supra at 166 (citation omitted).
Plaintiffs implied argument that Webster’s improper removal of Hermann caused the rejection of its development plan amounts to speculation and conjecture because it does not exclude other possibilities to a reasonable degree of certainty. See Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 496; 668 NW2d 402 (2003). The removal of Hermann from the planning commission did not likely make a difference in the outcome of the planning commission’s vote, because a planning commission majority would still have existed for disapproval of the development plan, unless Hermann’s presence and advocacy would have swayed a sufficient number of the other members of the commission. But there was no evidence to that effect.
In short, the trial court did not view certain instances of conduct in isolation. It considered whether the improper termination of Hermann could have been a cause in fact of the rejection of the development plan, and found a lack of evidence in support of the required proof of causation in fact. Therefore, no error can be assigned here.
D
Plaintiff next argues that the trial court committed error requiring reversal when it rejected plaintiffs claim for violation of § 1983 because the members of the planning commission voted five to zero against plaintiffs project and would not admit their wrongdoing or intimidation at trial. Again, we disagree.
The gist of plaintiffs argument is undeveloped, but it appears to repeat the argument that plaintiff should not be required to prove causation. As noted above, however, proximate causation is an essential element of a § 1983 claim. Morden, supra at 335; Horn, supra at 659. Because plaintiff cites no authority for its argument, we reject it as abandoned on appeal. Etefia v Credit Technologies, Inc, 245 Mich App 466, 471; 628 NW2d 577 (2001). An appellant may not merely announce its position and leave it to this Court to discover and rationalize the basis for its claims. In re Petition by Wayne Co Treasurer for Foreclosure of Certain Lands for Unpaid Prop Taxes, 265 Mich App 285, 299-300; 698 NW2d 879 (2005). This Court is not required to search for authority to sustain or reject a position raised by a party without citation of authority. In re Reisman Estate, 266 Mich App 522, 533; 702 NW2d 658 (2005); Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003). “It is not enough for an appellant in his brief simply to . . . assert an error and then leave it up to this Court to . . . unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). See, generally, Derderian v Genesys Health Care Systems, 263 Mich App 364, 388; 689 NW2d 145 (2004).
Plaintiff argues that the trial court erred by dismissing plaintiffs claim seeking declaratory relief and its taking and promissory estoppel claims. We disagree.
Plaintiff first argues that the trial court erred in dismissing its inverse condemnation claim. This issue is not contained in the statement of questions presented; it is therefore deemed abandoned. Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496, 553; 730 NW2d 481 (2007), citing MCR 7.212(C)(5). Also, plaintiff fails to cite authority for this position, and the issue is therefore deemed abandoned. Etefia, supra at 471.
Next, plaintiff argues that the trial court erred in dismissing its claim for declaratory relief. But, declaratory relief is a remedy (equitable in nature, because it is not a damages remedy), Sturm, Ruger & Co, Inc v Occupational Safety & Health Admin, 186 F3d 63, 64 (CA 1, 1999) (“declaratory relief is a remedy committed to judicial discretion and ... the exercise of that discretion is properly informed by considerations of equitable restraint” [quotation marks and citation omitted]),.not a claim. Therefore, the trial court did not dismiss any such claim.
In addition, all claims other than the damages claims were resolved by the partial consent judgment. Therefore, the trial court did not err in considering the request for declaratory relief to be moot. See Ewing v Bolden, 194 Mich App 95, 104; 486 NW2d 96 (1992).
Next, plaintiff argues that the trial court erred in “dismissing” its taking claim. We disagree. Although plaintiff cites Penn Central Transportation Co v New York City, 438 US 104; 98 S Ct 2646; 57 L Ed 2d 631 (1978), plaintiff provides no analysis for this argument, merely stating, conclusorily, that “Plaintiffs reasonable investment-backed expectations (per the Ordinance) were denied due to Defendants’ conduct.” Plaintiff dedicates only one sentence in a 50-page brief to analysis of alleged error in rejecting the taking claim.
Further, plaintiff makes a more fundamental error in its characterization of and challenge to the trial court’s decision. The trial court did not “dismiss” the taking claim. The taking claim was tried. In its verdict (or “decision after trial”), the trial court found no cause of action on the taking claim. The decision after trial concluded that “there was no unconstitutional temporary taking of the plaintiffs property” and “no cause for action for damages.”
Plaintiff points to no basis on which the trial court’s finding of no temporary taking was erroneous as a matter of law. Rather, plaintiff essentially challenges the trier of fact’s conclusion that no taking occurred, stating that “the conduct discussed above should have been sufficient to establish the elements of Plaintiffs taking claim....” An appellant cannot challenge a verdict’s merits as such; an appellant must either show that the verdict was against the great weight of the evidence (which plaintiff does not argue), or that after a bench trial the trial court’s findings of fact were clearly erroneous, or that its conclusions of law were legally erroneous. Ligón, supra at 124. With regard to the taking claim, plaintiff makes none of these arguments. Therefore plaintiffs assigned error regarding the taking claim must fail.
Plaintiff also argues that the trial court erred in “dismissing” its promissory estoppel claim. However, plaintiff cites no authority for this argument. Therefore, it is deemed abandoned on appeal. Etefia, supra at 471.
in
(l)(a) The trial court did not err in rejecting the substantive due process claim, because plaintiff failed to show evidence that defendants’ behavior was so arbitrary as to shock the conscience, (b) The trial court did not apply an incorrect legal standard to plaintiffs procedural due process claim, because whether an official has a personal pecuniary interest in the outcome of a matter is relevant to whether there was an objective decision maker. (2) Plaintiff has failed to show that the trial court erred as a matter of law in considering as relevant its findings regarding Webster’s lack of personal pecuniary interest and lack of motive to further a personal pecuniary interest. (3) The trial court did not view certain instances of conduct in isolation; it considered whether the improper termination of Hermann could have been a cause in fact of the rejection of the development plan, and found a lack of evidence of causation in fact. (4) The trial court did not err as a matter of law in considering that the planning commission voted five to zero against plaintiffs preliminary development plan. (5) (a) Plaintiff abandoned its claim that the trial court erred in dismissing its inverse condemnation claim, (b) The trial court did not dismiss a claim for declaratory relief; declaratory relief is a remedy, not a claim, (c) The trial court did not err in finding no cause for action on the temporary taking claim.
Affirmed.
The trial concerned the damages claims. Plaintiffs claim regarding its ability to develop the subject property was resolved by a partial consent judgment.
It is also worth noting that even a violation of state law relating to land use planning (such as a supervisor’s discharging a planning commission member without approval from the township board of trustees) does not necessarily constitute a substantive due process violation. In Eichenlaub v Indiana Twp, 385 F3d 274 (CA 3, 2004), the plaintiffs asserted that zoning officials refused certain permits and approvals and applied unnecessary enforcement actions and subdivision requirements to the plaintiffs’ property that were not applied to other parcels. The plaintiffs alleged that “zoning officials applied subdivision requirements to their property that were not applied to other parcels; that they pursued unannounced and unnecessary inspection and enforcement actions; that they delayed certain permits and approvals; that they improperly increased tax assessments; and that they maligned and muzzled the Eichenlaubs.” Id. at 286. The panel noted that such complaints were “examples of the kind of disagreement that is frequent in planning disputes.” Id. The panel distinguished a zoning dispute with the kind of gross misconduct that would shock the conscience as cases involving claims of unconstitutional taking without just compensation or an improper seizure in violation of the Fourth Amendment. Id. at 285, citing Conroe Creosoting Co v Montgomery Co, 249 F3d 337, 340 (CA 5, 2001) (allegation that “officials fraudulently converted a tax levy for a $75,000 deficiency into an unauthorized seizure and forced sale and destruction of an $800,000 ongoing business”).
In Eichenlaub, Judge Michael Chertoff wrote: “[E]very appeal by a disappointed developer from an adverse ruling of the local planning board involves some claim of abuse of legal authority, but it is not enough simply to give these state law claims constitutional labels such as ‘due process’ or ‘equal protection’ in order to raise a substantial federal question under section 1983.” Eichenlaub, supra at 286, quoting United Artist Theatre Circuit, Inc, supra at 402, quoting Creative Environments, Inc, 680 F 2d 822, 833 (CA 1, 1982) (internal quotation marks omitted).
In PFZ Properties, Inc v Rodriguez, 928 F2d 28, 32 (CA 1, 1991), the United States Court of Appeals for the First Circuit rejected a substantive due process claim arising from land use planning, after construction plans for a residential and tourist project in Puerto Rico were denied. The court stated:
This Court has repeatedly held ... that rejections of development projects and refusals to issue building permits do not ordinarily implicate substantive due process. Even where state officials have allegedly violated state law or administrative procedures, such violations do not ordinarily rise to the level of a constitutional deprivation. The doctrine of substantive due process “does not protect individuals from all [governmental] actions that infringe liberty or injure property in violation of some law. Rather, substantive due process prevents ‘governmental power from being used for purposes of oppression,’ or ‘abuse of government power that shocks the conscience,’ or ‘action that is legally irrational in that it is not sufficiently keyed to any legitimate state interests.’ ” [Id. at 31-32 (citations omitted).]
The panel further reasoned:
[W]e hold that PFZ’s allegations that ARPE [Regulations and Permits Authority of the Commonwealth of Puerto Rico] officials failed to comply with agency regulations or practices in the review and approval process for the construction drawings are not sufficient to support a substantive due process claim under the Fourteenth Amendment to the United States Constitution. See Amsden v. Moran, 904 F.2d 748, 757 (1st Cir. 1990) (noting that “even bad faith violations of state law are not necessarily tantamount to unconstitutional deprivations of due process”), cert, denied, [498] U.S. [1041], 111 S.Ct. 713, 112 L.Ed.2d 702 (1991). Even assuming that ARPE engaged in delaying tactics and refused to issue permits for the Vacia Talega project based on considerations outside the scope of its jurisdiction under Puerto Rico law, such practices, without more, do not rise to the level of violations of the federal constitution under a substantive due process label. [Emphasis added.]
RRI Realty Corp v Incorporated Village of Southampton, 870 F2d 911 (CA 2, 1989) (the developer did not have a property interest protected by substantive due process in a building permit for the second stage of its mansion renovation project, because the local regulating body had discretion to deny such a permit).
Similarly, here, it might be said that plaintiff did not have a reasonable expectation of entitlement to plan approval, where the site planning documents (such as the master deed) did not provide for a commercial use (a use of right), but more of a residential use.
Plaintiff does not even expressly address causation in fact. Other than essentially to plead for a rule requiring that such causation need not be proved, arguing that it would be too difficult to prove, because township officials would never admit that they would have approved the development plan if Hermann had not been removed from the planning commission. Plaintiff argues: “Plaintiff was only required to show that the project was an allowed use under the Ordinance ....
The trial court imposed an impossible requirement... that Plaintiff was required to elicit from the wrongdoers that the project would have been approved because they had violated the law and would have changed their votes. If this standard were imposed, no 1983 claim would ever succeed.” Plaintiffs complaint, that a number of § 1983 claims fail because of the difficulty in proving causation, notwithstanding, causation is, nevertheless, an essential element of a § 1983 claim. Morden, supra at 335; Horn, supra at 659.
E.g., East Bay Muni Utility Dist v Dep’t of Forestry & Fire Protection, 43 Cal App 4th 1113, 1121; 51 Cal Rptr 2d 299 (1996) (noting that declaratory relief is an equitable remedy and that it is often sought as a cumulative remedy in conjunction with requests for injunctive relief and mandamus). On questions of state law, Michigan courts are not bound by foreign authority, Campbell v Kovich, 273 Mich App 227, 231; 731 NW2d 112 (2006), but may find it persuasive, Ammex, Inc v Dep’t of Treasury, 273 Mich App 623, 639 n 15; 732 NW2d 116 (2007). | [
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Per Curiam.
Plaintiff Ameritech Publishing, Inc. (API), appeals as of right the Court of Claims order affirming the denial of API’s request for a use tax refund for the years 1998 through 2000 (the refund period) by defendant Department of Treasury (the Department). Because API “used” the telephone directories in Michigan and the “price” of the directories is to be calculated without a deduction for the costs of materials or services, and because the costs of the directories is not subject to double taxation, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
API and the Department submitted the case to the Court of Claims on the following stipulated facts. API published and distributed telephone directories to busi ness and residential customers in Michigan. R.R. Donnelly & Sons Company (Donnelly) printed, bound, and cut the directories at its printing facility in Dwight, Illinois.
The publishing of the directories involved three steps. First, API developed the content to be published in the directories. After API completed creating the content, which consisted of a page-by-page presentation of the directories, API provided the content to Donnelly in electronic format. Second, API purchased the paper on which Donnelly was to print the directories. API entered into contracts with non-Michigan paper mills for the paper. Athough the paper mills shipped the paper directly to Donnelly’s printing facility in Dwight, Illinois, API took title of the paper before Donnelly used the paper to print any directories. Donnelly maintained API’s paper separate from all other paper in its plant, and it was only allowed to use API’s paper for the directories. Third, API procured printing services from Donnelly. Ater Donnelly printed the content supplied by API on the paper, Donnelly cut and bound the paper into finished directories.
API entered into an agreement with a contract carrier for transportation of the directories (carrier contract) and with a product development corporation (PDC) for distribution of the directories (distribution contract). The contract carrier transported the finished directories from Donnelly’s printing facility in Dwight, Illinois, to the PDC’s distribution centers located throughout Michigan. Then, over the course of several weeks, the PDC distributed the directories to local businesses and residences. In general, the PDC’s distribution of the directories consisted of two phrases: (1) the “initial distribution,” where the PDC completed door-to-door distribution of the directories and mailed directories to remote and rural areas and to controlled-access locations, such as condominium complexes and gated communities; and (2) the “secondary distribution,” which consisted, in part, of the PDC’s delivering directories to new telephone users and to customers requesting additional directories.
During the refund period, API remitted use tax to the Department based on the cost of the paper it purchased from the paper mills and the cost of Donnelly’s printing services. In February 2002, API sought from the Department a refund in the amount of $3,519,409.13, which equaled the amount of use taxes it alleged it had overpaid during the refund period. The Department denied the refund request, and the Court of Claims upheld the denial.
On appeal, API makes three arguments. First, API argues that, because it exercised no rights or powers over the directories while the directories were in the distribution channel, it did not “use” the directories in Michigan. Second, API argues that, even if the distribution of the directories is subject to the use tax, neither the cost of the paper nor the cost of Donnelly’s printing services could be included in determining the “price” of the directories. Third, API argues that, because the directories are a “tie-in” item to the telecommunication services provided by its affiliated companies, the result of allowing defendant to tax its costs of producing the directories would be double taxation.
II. STANDARD OF REVIEW
This Court reviews questions of law de novo. Gen Motors Corp v Dep’t of Treasury, 466 Mich 231, 236; 644 NW2d 734 (2002). This Court also reviews questions of statutory interpretation de novo. Herald Wholesale, Inc v Dep’t of Treasury, 262 Mich App 688, 693; 687 NW2d 172 (2004).
Construction of the Use Tax Act (UTA), MCL 205.91 et seq., is subject to the general rules of statutory interpretation. Brunswick Bowling & Billiards Corp v Dep’t of Treasury, 267 Mich App 682, 684; 706 NW2d 30 (2005). The primary goal of judicial construction of a statute is to ascertain and give effect to the intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). If the language employed by the Legislature is unambiguous, the Legislature is presumed to have intended the meaning clearly expressed, and this Court must enforce the statute as written. Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d 41 (2007). However, when interpreting a tax statute, this Court must keep in mind that the authority to tax must be expressly provided. See Molter v Dep’t of Treasury, 443 Mich 537, 543; 505 NW2d 244 (1993). Tax laws will not be extended in scope by implication or forced construction. Sharper Image Corp v Dep’t of Treasury, 216 Mich App 698, 702; 550 NW2d 596 (1996). “When there is doubt, tax laws are to be construed in favor of the taxpayer.” Id.
III. THE UTA
The use tax is complementary to the sales tax. WPGP1, Inc v Dep’t of Treasury, 240 Mich App 414, 416; 612 NW2d 432 (2000). The UTA is designed to cover those transactions not covered by the General Sales Tax Act (GSTA), MCL 205.51 et seq. WPGP1, supra at 416. The UTA provides:
There is levied upon and there shall be collected from every person in this state a specific tax for the privilege of using, storing, or consuming tangible personable property in this state at a rate equal to 6% of the price of the property ...[MCL 205.93(1).][ ]
“It is the use [of the property] in Michigan that is taxed under the [UTA].” WMS Gaming, Inc v Dep’t of Treasury, 274 Mich App 440, 443; 733 NW2d 97 (2007).
A. “USE”
The UTA defines “use” as “the exercise of a right or power over tangible personal property incident to the ownership of that property including transfer of the property in a transaction where possession is given” to another. MCL 205.92(b). API claims that, because it did not exercise any rights or powers over the directories while the directories were transported by the contract carrier and distributed by the PDC, it did not “use” the directories in Michigan. In addition, API argues that this Court’s decision in Sharper Image, supra, suggests that a distribution of tangible personal property does not fall within the definition of “use” under MCL 205.92(b).
In Sharper Image, the plaintiff conducted business in Michigan through mail-order catalogs. The catalogs, produced by a printer in Nebraska, were shipped to Michigan residents through the mail from the printer’s place of business. The plaintiff retained no control over the catalogs after the catalogs were delivered to the postal service. The Court of Claims held that the plaintiffs distribution of the catalogs in Michigan was a “use” subject to the UTA because it found that the definition of “distribution” was synonymous with the definitions of “give” and “transfer,” two terms within the statutory definition of “use.”
This Court disagreed:
We conclude the trial court erred in two respects. First, under the plain wording of the statute, in order to be taxed under the UTA, a taxpayer must perform in Michigan one of the activities listed in the definition of “use.” MCL 205.93(1); MSA 7.555(3)(1). Here, plaintiffs exercise of a right or power over the catalogs ended when the catalogs were delivered to the postal service in Nebraska.
Second, we find no provision in the statutory definition of “use” to allow defendants to tax the distribution of catalogs. Had the Legislature intended for distributions to be taxed, it could have easily done so by expressly providing it in the definition of use. Indeed, the legislatures of other jurisdictions have done this. See, e.g., Collins v J C Penney Co, Inc, 218 Ga App 405; 461 SE2d 582 (1995), and J C Penney Co, Inc v Olsen, 796 SW2d 943 (Tenn, 1990).[ ] Our Legislature, however, did not include distribution in the definition of use, and we will not extend the tax to that activity absent the statutory authority to do so. Michigan Bell [Tel Co v Dep’t of Treasury, 445 Mich 470, 477; 518 NW2d 808 (1994)].
We find support for our conclusion from a review of case law from other states. The cases from states in which a use tax has been applied in situations similar to that presented here are dissimilar in two important ways. First, in many of the other jurisdictions, the relevant statute specifically provides for the taxation of distributions. See, e.g., Collins, supra, and Olsen, supra.
Also, the facts before the courts in the other jurisdictions indicated that the taxpayer enjoyed indicia of control over the material not here present. Such indicia of control included the power to determine in what publications the advertisements were to he placed and at what time they would be distributed. See Mervyn’s v Arizona Dep’t of Revenue, 173 Ariz 644; 845 P2d 1139 (1993), and K Mart Corp v Idaho State Tax Comm, 111 Idaho 719; 727 P2d 1147 (1986).
In those jurisdictions having statutory language similar to that in Michigan, and applying that language to facts similar to those presented here, the use tax has been held inapplicable. See, e.g., Modern Merchandising, Inc v Dep’t of Revenue, 397 NW2d 470 (SD, 1986), and Wisconsin Dep’t of Revenue v J C Penney Co, Inc, 108 Wis App 2d 662; 323 NW2d 168 (1982). Indeed, many of the courts addressing this issue rely on the distinction between those companies exercising control over their mailings and those not exercising such control. See, e.g., Modern Merchandising, supra, and Mervyn’s, supra. [Sharper Image, supra at 702-704.]
We disagree with API’s assertion that the Court’s holding in Sharper Image suggests that a distribution of tangible personal property can never be a taxable “use” of the property under the UTA. In Sharper Image, the Court’s holding that the plaintiffs distribution of the catalogs in Michigan was not subject to a use tax was two-fold: (1) the plaintiff did not exercise “a right or power” over the catalogs in Michigan, and (2) the Legislature did not include distributions within the list of activities subject to the UTA. Id. at 702-703. On the basis of the first part of the Court’s holding, we conclude that under MCL 205.92(b) a distribution of tangible personal property is a “use” subject to the UTA if the owner of the property exercised “a right or power . .. incident to the ownership of that property” while the property was in Michigan.
An owner of tangible personal property no longer exercises “a right or power over tangible personal property incident to the ownership of that property” when it has ceded total control of the property to a third party. WPGP1, supra at 418-419. In WPGP1, the plaintiff purchased two airplanes at a foreclosure sale. At the time of the purchase, the airplanes had been leased to Southwest Airlines, Inc., and were used by Southwest as commercial passenger airplanes. The plaintiffs purchase of the airplanes did not terminate Southwest’s lease of the airplanes, nor did the purchase interrupt Southwest’s continuous use of the airplanes in interstate commerce. According to the Department of Treasury, by owning the airplanes, leasing the airplanes to Southwest, and allowing Southwest to fly the airplanes into and out of a Detroit airport, the plaintiff “used” the airplanes in Michigan within the meaning of the UTA.
On appeal, this Court disagreed, id. at 417-419, finding that if any entity “used” the airplanes within Michigan, it was Southwest:
[I]t is undisputed that plaintiff bought the airplanes subject to preexisting leases with Southwest. Under the leases, Southwest completely controlled the flight schedules and the routine maintenance of the airplanes. In addition, the leases held Southwest responsible for ensuring that the aircraft remained registered with the FAA [Federal Aviation Administration] in the name of the lessor. Under the UTA, the tax is imposed for “the privilege of using, storing, or consuming tangible personal property in this state . ...” MCL 205.93(1); MSA 7.555(3)(1). If any of these privileges were utilized, it was done by Southwest, not plaintiff. “Use” means “the exercise of a right or power over tangible personal property incident to the ownership of that property... ,” MCL 205.92(b); MSA 7.555(2)(b) (emphasis supplied), which plaintiff did not do. Because of the leases, plaintiff at no time used, stored, or consumed the property in Michigan. Despite plaintiffs ownership interest in the airplanes, the leases gave exclusive authority over the use, storage, and consumption of the airplanes during the duration of the leases to Southwest, and thus plaintiff exercised no right or power over the airplanes. In other words, by virtue of the leases, plaintiff ceded control of the airplanes to Southwest, and therefore could not have “used” the airplanes for purposes of use tax liability under the UTA.
. . . While the leases did not give Southwest permanent control of the airplanes, we conclude that the leases gave Southwest total control of them, because pursuant to the leases Southwest was responsible for the flight schedules and general maintenance of the planes. Plaintiff did not direct Southwest’s routes or otherwise exercise dominion over Southwest’s use of the planes. [Emphasis in original.]
In this case, a review of the carrier contract and the distribution contract establishes that API did not cede total control of the directories while the directories were transported in Michigan by the contract carrier or when they were distributed to Michigan businesses and residences by the PDC. Pursuant to the carrier contract, API’s responsibilities included the “scheduling of directory printing, transportation and distribution from [Donnelly’s plant in Dwight, Illinois] to the end user.” Pursuant to the distribution contract, the PDC was to complete the initial delivery by the date specified by API. The distribution contract provided that in completing the door-to-door distribution of the directories to residences, the PDC was to place each directory in a bag and then place the directory on the hinged side of the door; the PDC was not to place the directory in the residence’s mailbox. Delivery of directories to residences was to take place between dusk and dawn. However, door-to-door distribution of directories to businesses was only to take place between the hours of 8:00 a.m. and 6:00 p.m. The PDC was to deliver the directories inside the place of business, and it was required to obtain customer signatures from a certain percentage of the businesses.
In completing the initial mail distribution, the PDC was to shrink-wrap all directories to be mailed and deliver the directories to the local post office five or eight days, depending on the number of directories to be mailed, before the delivery start date. The PDC could not convert a hand delivery route into a mail route without the approval of API. In addition, in completing the secondary distribution, the PDC was required to hand deliver directories to a minimum of 65 percent of the new telephone customers.
The distribution contract required the PDC to implement a quality-assurance program using an Interactive Voice Response (IVR) system. API reserved the right to approve any IVR script used by the PDC. Requirements regarding how many IVR confirmations of receipt of the directory the PDC must obtain for each delivery route were specified in the distribution contract, as were instructions for when a delivery route must he pulled for manual investigation and instructions on how to complete a manual investigation. And, it was API, rather than the PDC, who held the ultimate authority to decide whether to redeliver directories on a given route.
Throughout the distribution cycle, the PDC was required to provide API with numerous reports regarding its quality-assurance program and the number of directories delivered. The reports included a daily report chronicling the progress of the door-to-door initial distribution, weekly and monthly reports on the number of directories mailed during the initial distribution, and monthly reports regarding the number of directories delivered and mailed during the secondary distribution. Finally, pursuant to the distribution contract, all directories remaining at the end of a distribution cycle remained the property of API and were to be disposed of by AlPI’s recycling supplier of choice.
Here, unlike the plaintiff in Sharper Image who lost all control over the catalogs once the catalogs were delivered to the post office, API never lost all control over the directories after the directories were transported from Donnelly’s printing facility to the PDC’s distribution centers. In other words, although it was the PDC’s responsibility to distribute the directories to Michigan residences and businesses, the PDC did not have exclusive authority over the distribution. API informed the PDC of the date a distribution was to be completed. API instructed the PDC on what hours it was to distribute the directories, where it was to place the directories at a residence, and, when directories were to be mailed, when they were to be received by the local post office. Through the reports the PDC was required to provide, API continually monitored the PDC’s progress in distributing the directories. API also set the minimum requirements for the PDC’s staffing, and instructed the PDC on the type of quality-assurance program it was to implement. API retained possession of any unused directories, which were to be disposed of by the recycler of API’s choice. Under these circumstances, API exercised “a right or power over [the directories] incident to the ownership of [the directories],” MCL 205.92(b), while the directories were in Michigan. Accordingly, API “used” the directories in Michigan.
B. PRICE
A person using tangible personal property in Michigan shall pay use tax “at a rate equal to 6% of the price of the property ....” MCL 205.93(1). The UTA defines the “price” of property, in pertinent part, as
the aggregate value in money of anything paid or delivered, or promised to be paid or delivered, by a consumer to a seller in the consummation and complete performance of the transaction by' which tangible personal property or services are purchased or rented for storage, use, or other consumption in this state, without a deduction for the cost of the property sold, cost of materials used, labor or service cost, interest or discount paid, or any other expense. [MCL 205.92(f).]
The Department determined that the “price” of the directories included the cost of the paper and the cost of Donnelly’s printing services. API argues that neither should be included in the “price” of the directories.
I. PRINTING SERVICES
API claims that the cost of the printing services provided by Donnelly cannot be included in the “price” of the directories because, pursuant to Flexitype & Douglas Offset Co v Dep’t of Treasury, 52 Mich App 153; 216 NW2d 609 (1974), printing services are not subject to the sales tax. API argues that, because of the complementary nature of the UTA and the GSTA, the UTA was not intended to tax services that are not taxable under the GSTA. In this regard, API points out that, during the refund period, the UTA only provided for the taxation of telecommunication services and hotel services. See MCL 205.93a. In addition, API claims any conclusion that the cost of the printing services are to be included in the “price” of the directories would render meaningless the Supreme Court’s adoption of the “incidental to service” test in Catalina Marketing Sales Corp v Dep’t of Treasury, 470 Mich 13; 678 NW2d 619 (2004).
The GSTA provides for a tax on the gross proceeds of sales at retail of tangible personal property. Univ of Michigan Bd of Regents v Dep’t of Treasury, 217 Mich App 665, 669; 553 NW2d 349 (1996); Flexitype, supra at 155; see also MCL 205.52(1). Generally, the GSTA does not apply to sales of services. Catalina, supra at 19.
In Flexitype, Flexitype, a commercial printing company, agreed to print Detroit Edison’s company magazine. Detroit Edison provided the paper and all matter to be printed on the paper. Flexitype was only required to print the magazine, assemble it into a finished product, and deliver it to Detroit Edison. In billing Detroit Edison, Flexitype did not charge a sales tax. However, the defendant, the Department of Treasury, issued sales tax assessments against Flexitype for the period it provided printing services to Detroit Edison. The disputed issue was whether Flexitype had made a sale at retail to Detroit Edison. This Court found determinative of the issue the then-existing definition of “sale at retail”: “ ‘any transaction by which is transferred for consideration the ownership of tangible per sonal property * * ” Flexitype, supra at 156, quoting MCL 205.51(b) (emphasis in original). According to the Court, Flexitype did not make a sale at retail because it never owned either the tangible or intangible content of the magazines. Flexitype, supra at 156. Rather, at all times, Detroit Edison controlled and owned the tangible and intangible content of the magazines. Id.
In Catalina, supra, Catalina contested the assessment of sales tax by the defendant, the Department of Treasury, on its Checkout Coupon™ program. Under the program, Catalina contracted with manufacturers of consumer products to deliver a coupon or advertising message to shoppers as they checked out at a grocery store on the basis of what the shoppers had bought. It was undisputed that Catalina’s transactions with the manufacturers involved both the provision of services —advertising research and expertise — and the transfer of tangible personal property — slips of paper with coupons or advertising messages. Because the GSTA only applies to sales of tangible personal property, not the sales of services, it was necessary to categorize the transactions as either a service or a tangible property transaction. Catalina, supra at 19. The Supreme Court adopted the “incidental to service” test for categorizing a transaction involving both the provision of services and the transfer of tangible personal property as either a sale of services or a sale of tangible personal property. Id. at 24. Under this test, “ ‘sales tax will not apply to transactions where the rendering of a service is the object of the transaction, even though tangible personal property is exchanged incidentally.’ ” Id., quoting 85 CJS 2d, Taxation, § 2018, p 976.
API contends that application of the “incidental to service” test to the facts of the present case dictates a conclusion, consistent with Flexitype, that the object of its transaction with Donnelly was the procurement of a service. We need not decide this issue.
The Court’s holding in Flexitype and our Supreme Court’s adoption of the “incidental to service” test in Catalina are not relevant to whether the Department properly included the cost of Donnelly’s printing services in the “price” of the directories. The issue in both Flexitype and Catalina was whether there had been a taxable event, i.e., a sale at retail of tangible personal property. However, in the present case, we have already concluded that there was a taxable event, i.e., API’s “use” of the directories in Michigan. See part 111(A) of this opinion. Having determined there was a taxable event, the issue is whether, pursuant to MCL 205.92(f), the Department properly included the cost of Donnelly’s printing services in the “price” of the directories. The analysis of this issue must start with the language of MCL 205.92(f), see Hills of Lone Pine Ass’n v Texel Land Co, Inc, 226 Mich App 120, 123; 572 NW2d 256 (1997) (“The starting point in every case involving construction of a statute is the language itself.”), not whether printing services are a taxable event under the GSTA. Moreover, by relying on Flexitype and Catalina, along with the fact that during the refund period the UTA only taxed a limited number of services, API’s argument fails to account for the distinction between the imposition of a tax and the measure of the tax. In this case, the Department imposed a use tax on API because API “used” the directories in Michigan. The Department did not directly impose the use tax on the printing services provided by Donnelly. Bather, the Department used the cost of Donnelly’s printing services, along with the cost of the paper, as part of the measure of the use tax it imposed for API’s use of the directories in Michigan.
2. PAPER
API argues that, because the paper was consumed in Illinois, rather than in Michigan, when it was converted into the directories, the cost of the paper cannot be included in the “price” of the directories. API’s argument is based on the Morton Buildings cases. See Morton Bldgs, Inc v Indiana Dep’t of State Revenue, 819 NE2d 913 (Ind Tax Ct, 2004); Morton Bldgs, Inc v Comm’r of Revenue, 43 Mass App Ct 441; 683 NE2d 720 (1997); Sharp v Morton Bldgs, Inc, 953 SW2d 300 (Tex App, 1997); Morton Bldgs, Inc v Bannon, 222 Conn 49; 607 A2d 424 (1992); Morton Bldgs, Inc v Chu, 126 AD2d 828; 510 NYS2d 320 (1987), aff'd 70 NY2d 725 (1987).
The facts in each of the Morton Bldgs cases were the same and were undisputed. Morton Buildings engaged in the production, selling, and on-site erection of prefabricated buildings for agricultural and industrial use. Morton purchased raw materials, including steel and timber, and stored the materials in warehouses as inventory. When Morton Buildings received an order for a building from a customer, it removed the necessary materials to build the building from its inventory. It then fabricated the materials into finished building components, such as trusses, columns, purlins, panels, and overhang rafters, and transported the finished components to the building site in the taxing state. At the building site, Morton Buildings erected the building. The issue in each case was whether the taxing state could impose a use tax on Morton Buildings’ use of the building components it fabricated outside the taxing state. In each taxing state, the use tax statute imposed a use tax on all tangible personal property used in the state that was purchased from a “retailer” or a “vendor” (or acquired in a “retail transaction”). Morton Buildings argued that, because it fabricated the materials into the finished building components in factories outside the taxing state, the tangible personal property purchased from a retailer, i.e., the materials, had been used outside the taxing state, while the tangible personal property it used inside the taxing state, i.e., the building components, had not been purchased from a “retailer.” The courts in the above-cited Morton Bldgs cases agreed. For example, the Indiana Tax Court wrote:
Manufacturing, by its very nature, results in raw materials losing their identity and becoming part of a new item of tangible personal property....
The Stipulation of Facts reveals that the raw materials go through an extensive production process in Morton’s out-of-state factories before they are brought into Indiana as building components. The materials Eire processed through Morton’s machinery, cut to size, and affixed to other materials. ... The result of this process is a building component that has an entirely different appearance, character, and utility than the raw materials used to fabricate it. In other words, the raw materials are consumed in the out-of-state production process. What remains are the building components, which are not taxable when used in Indiana because they were not acquired in a retail transaction. [Morton Bldgs, supra, 819 NE2d at 916-917.][ ]
We do not find the Morton Bldgs cases to be relevant regarding whether the Department properly included the cost of the paper in the “price” of the directories. Like Flexitype, supra, and Catalina, supra, the issue in the Morton Bldgs cases was whether there had been a taxable event, i.e., whether Morton Buildings used tangible personal property purchased “at retail” in the taxing state. However, as already stated, we have already concluded that API’s “use” of the directories in Michigan was a taxable event. See part 111(A) of this opinion. Thus, the issue is whether, pursuant to MCL 205.92(f), the Department properly included the cost of the paper in the “price” of the directories. Because the Morton Bldgs cases did not construe language similar to that contained in the definition of “price” in MCL 205.92(f), we do not find the cases relevant to the issue before us.
3. AGGREGATE VALUE
Under the UTA, the price of tangible personal property “used” in Michigan is “the aggregate value in money of anything paid ... by a consumer to a seller[ ] in the consummation and complete performance of the transaction ...MCL 205.92(f). Here, the complete performance of the transaction includes the production of the directories. API’s purchase of the paper from the paper mills and its purchase of printing services from Donnelly were necessary and incidental to the transaction. See Kal-Aero, Inc v Dep’t of Treasury, 123 Mich App 46, 51; 333 NW2d 171 (1983). API could not have obtained the directories without purchasing the paper or without purchasing Donnelly’s printing services. Paper and printing services are necessary to the mass production of any telephone directory.
The aggregate value of the transaction is to be determined “without a deduction for the cost of the property sold, cost of materials used, labor or service cost, interest or discount paid, or any other expense.” MCL 205.92(f). By arguing that neither the cost of printing services nor the cost of the paper can be included in the “price” of the directories, API is essentially asking for a deduction equivalent to the cost of materials used and services provided. MCL 205.92(f) unambiguously prohibits such deductions, and we must enforce an unambiguous statute as written, Rowland, supra. Accordingly, because API paid the cost of the paper and the cost of printing services in the complete performance of the transaction, the Department correctly included the costs of the paper and the printing services in the “price” of the directories.
C. DOUBLE TAXATION
Finally, API claims that, because the customers of the telecommunication services provided by its affiliated companies are required to remit use tax on those services, see MCL 205.93a, if the Department is allowed to tax API’s costs of producing the directories, the costs of the directories would be subject to double taxation.
In making its argument, API relies solely on the following two paragraphs from the Department’s Revenue Technical Tax Training Manual:
If a company sells 1,000 items of its product to a customer and gives the customer an additional 10 items of the product free, the additional 10 items are not considered taxable giveaway items. There is one gross selling price on the 1,010 items. The gross proceeds would be the amount charged for the 1,000 items.
A “tie-in” sale requires someone to first buy tangible personal property in order to receive a different item free. There is an advertisement that an item will be received free at the time of purchase. The advertised item given away with the “tie-in” sale is not subject to use tax. A portion of the gross proceeds received from the sale is attributed to the free item. [Emphasis added.]
Even assuming that the manual cited by API carries the force of law, API’s argument is without merit. API claims that the directories were a “tie-in” to the telecommunication services provided by its affiliated companies. However, telecommunication services are not tangible personal property. API has presented no evidence that the customers of its affiliated companies bought any tangible personal property before receiving the directories.
Double taxation occurs when a second tax is imposed on the same property, for the same purpose, and by the same sovereign during the same taxing period. C F Smith Co v Fitzgerald, 270 Mich 659, 685; 259 NW 352 (1935). API has not proffered any evidence that the use tax paid by the customers of the telecommunication services provided by its affiliated companies is based, in part, on the costs paid by API in purchasing the paper used in the directories or in purchasing Donnelly’s printing services. Accordingly, API’s costs in producing the directories are not subject to double taxation.
Affirmed.
API is a subsidiary of Ameritech Corporation, and Ameritech Corporation is a subsidiary of AT&T, Inc.
Throughout this opinion, we quote the UTA as it existed during the refund period. The UTA has been revised since the refund period.
The Georgia use tax enabling statute provides “that ‘[ulpon the first instance of use, consumption, distribution, or storage within this state of tangible personal property... the owner... shall be liable for a tax....'" Collins, supra at 406-407, quoting Ga Code Ann 48-8-30(c) (emphasis added). The Tennessee use tax statute applies to tangible personal property “ ‘when the same is not sold but is used, consumed, distributed, or stored for use or consumption in this state....’ ” JC Penney Co, supra at 945, quoting Tenn Code Ann 67-6-203 (emphasis added).
See K Mart Corp, supra at 721 (“In light of... the exercise by K Mart, through its contracts, of rights and powers over the inserts incident to their ownership, K Mart uses the inserts within the meaning of the use tax statute.”).
The distribution contract refers to SBCDO (SBC Distribution Office). We assume SBC is the parent company of API.
The distribution contract also required the PDC to place in the bag any advertising inserts, such as coupons, product samples, magnets, or CD-ROMS, submitted by Advertising Media Solutions. The PDC was given instructions on where to place the advertising inserts in the bag relative to the directory.
The PDC was responsible for obtaining adequate staffing for distribution of the directories. However, the distribution contract provided the minimum requirements for adequate staffing, which included a management team, an administrative staff, a distribution staff, and data processors.
The PDC was also responsible for securing leases for offices and warehouses necessary for it to fulfill its responsibilities under the distribution contract. However, API reserved the right to review and approve any lease executed by the PDC.
The distribution contract contained instructions on where the PDC was to place the mailing label on mailed directories.
The Supreme Court remanded the case to the Tax Tribunal to apply the “incidental to service” test. Catalina, supra at 26. In a subsequent order, the Supreme Court affirmed the decision of the Tax Tribunal on remand that Catalina’s provision of services provided to the manufacturers was the object of the transaction. Catalina Marketing Sales Corp v Dep’t of Treasury, 471 Mich 1209 (2004).
Neither the warehouses in which Morton Buildings stored its inventory nor the factories where Morton Buildings fabricated the finished building components were located in the taxing states.
But see Morton Bldgs, Inc v Comm’r of Revenue, 488 NW2d 254, 258 (Minn, 1992), in which the Minnesota Supreme Court rejected Morton Buildings’ argument:
In our opinion, Morton’s manufacturing process does not transform the raw materials into something which is not used in Minnesota. Despite their alteration at the factories, the raw materials are still tangible personal property used in Minnesota as parts of Morton’s prefabricated buildings. The raw materials, in their altered form as building components, are used in Minnesota when they are erected into prefabricated buildings. Morton clearly exercises a right or power over the raw materials when it constructs the prefabricated building, and thus Morton “uses” the materials in Minnesota.
Neither party contests that API is a “consumer.” “Seller” is defined as “the person from whom a purchase is made and includes every person selling tangible personal property or services for storage, use, or other consumption in the state.” MCL 205.92(d). The UTA defines “purchase” as “to acquire for a consideration....” MCL 205.92(e). Here, API acquired for consideration printing services from Donnelly and paper from the paper mills. Accordingly, because purchases were made from them, Donnelly and the paper mills are “sellers.”
This manual was prepared as an “instructional text” to be used in classroom training on the GSTA and the UTA. It expressly stated that it was “not intended as a statement of law” and was “intended only for training purposes.” | [
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Per Curiam.
This case involves a wage dispute under Michigan’s payment of wages and fringe benefits act (payment of wages act). Appellant Alice Buckley, M.D., sought allegedly unpaid wages from appellee Professional Plaza Clinic Corporation (PPCC), which PPCC refused to provide. Appellant Department of Labor and Economic Growth agreed with Dr. Buckley and awarded her $15,979.14 in back pay, plus 10 percent annual interest and a $1,000 civil penalty. PPCC appealed the department’s determination and order to a hearing referee, who affirmed. The trial court reversed, ruling that Dr. Buckley was an independent contractor and was not entitled to any unpaid wages under the payment of wages act. The department and Dr. Buckley now appeal by leave granted. We reverse the judgment of the circuit court and reinstate the decision of the hearing referee.
I. BASIC FACTS AND PROCEDURAL HISTORY
Dr. Buckley is an internal medicine physician. On November 19, 2004, Dr. Buckley entered into an em ployment agreement (the agreement) with PPCC to provide medical services to patients at the facility. Under the agreement, PPCC was to pay Dr. Buckley $130,000 for a one-year term, which equaled $2,500 a week. The agreement contained references to both “employee” and “independent contractor.” More specifically, the agreement contained the following relevant provisions:
EMPLOYEE: In its usual sense employee is a person over whom Employer has control as to time or attendance and the employee is engaged in furtherance of Employer’s business. This Employment Agreement (hereinafter Agreement) deals with an agreement between a corporate employer and an Independent Contractor unless otherwise noted.
INDEPENDENT CONTRACTOR: Employee is encouraged to consult IRS code related to an independent contractor, mainly “whose control” and “whose business” tests.
PREAMBLE
Agreement made on November 01. 2004[ ] between Professional Plaza Clinic Corporation, a corporation organized and existing under the laws of the State of Michigan, with its principal office located at 3800 Woodward Avenue. Detroit. Wavne County. Michigan, referred to in this agreement as employer, and Dr. Alice Buckley of3800 Woodward Avenue. Detroit. Wayne County. Michigan, referred to in this agreement as employee.
The agreement provided that the employer would determine the “employee’s specific duties” and that the employer had discretion in “setting the days of the week and hours in which employee is to perform employee’s duties [.]” The remaining sections of the agreement also used the term “employee.” However, the term “independent contractor” occurred again at the signature line. Dr. Buckley did not sign the agreement itself, but rather an amendment of the agreement.
On November 23, 2004, Dr. Buckley also signed a W-9 (usually supplied to independent contractors and other self-employed workers). Under this arrangement, PPCC did not withhold any money from Dr. Buckley’s paycheck, and she was responsible for paying taxes herself. Dr. Buckley paid her state and federal income taxes using a 1099 form (for independent contractors).
During the time that she worked at PPCC, Dr. Buckley received three checks, each for $2,500, and two others for $3,300 and $1,450, for a total of $12,250. However, Dr. Buckley voluntarily stopped working for PPCC on February 11, 2005, allegedly because PPCC was behind in paying her and she did not want to work without getting paid. Dr. Buckley filed a complaint with the department’s Wage and Hour Division, alleging that PPCC failed to pay her wages owed. The department agreed with Dr. Buckley and awarded her $15,979.14 in back pay for “wages earned from November 1, 2004 to February 11, 2005.” The department also ordered PPCC to pay 10 percent annual interest and a $1,000 civil penalty if the amount was not voluntarily paid.
PPCC appealed that determination before a department hearing referee, contending that Dr. Buckley was an independent contractor and had been paid in full. Dr. Buckley maintained that she was an employee entitled to unpaid wages.
During an August 2006 hearing before the hearing referee, Andrea McBride, PPCC’s chief executive officer, testified that the employment agreement that Dr. Buckley signed was created as a general document to be used “for employment of the doctors ... as they [came] in.” As in Dr. Buckley’s case, an amendment was then prepared detailing each particular doctor’s salary. Contrary to Dr. Buckley’s testimony, McBride testified that Dr. Buckley started working on November 20,2004, and then worked again on November 23, 29, and 30. In December 2004, McBride testified, Dr. Buckley worked 11 days. McBride further stated that Dr. Buckley worked six days in January 2005, and six days in February 2005. McBride stated that Dr. Buckley worked an average of seven hours a day on the days that she worked in November through February McBride believed that although Dr. Buckley was not paid the whole monthly salary in November, December, January, or February, PPCC did pay Dr. Buckley in full for the services provided on the days she worked. However, McBride testified that doctors at the clinic are paid the same rate, whether they go over or under a few hours, because it balances out over the long run. McBride stated that she did not dictate what time Dr. Buckley came to work and that Dr. Buckley had full control over her patients. McBride also admitted that she could have fired Dr. Buckley for allegedly unruly conduct (McBride testified that Dr. Buckley “would get upset, fly off the handle, walk out of the clinic, [and] curse”), but she did not because Dr. Buckley told her that “she was going through some issues.”
PPCC’s office manager, Linda Foster, testified that Dr. Buckley started working at PPCC during the first week of November 2004. Foster also testified that Dr. Buckley was to be paid on a weekly basis while employed and that she was expected to work 40 hours each week. According to Foster, Dr. Buckley worked 40 hours a week in November and December, and for only a couple of weeks in January and “not that much” in February because Dr. Buckley was not getting paid. However, Foster noted that no time sheets were kept and that she did not know exactly how many hours Dr. Buckley worked. Foster testified that she believed that Dr. Buckley was a salaried employee.
Dr. Buckley also testified during the hearing. According to Dr. Buckley, she began working for PPCC on November 2, 2004, as a salaried employee. Dr. Buckley confirmed that she signed the W-9 form and that PPCC did not withhold taxes from her paychecks, but she claimed that PPCC told her that it would start withholding taxes once it got a payroll system in place. She asserted that she controlled her own hours, but she claimed that she was supposed to, and did, work from 9:00 a.m. to 5:00 p.m. for all four weeks in November, excluding the Thanksgiving holiday. She believed that as a salaried employee she was supposed to be paid for the holiday. She stated that she also worked full time in December, or 4V2 weeks, with the understanding that she would be paid for the days she took off for personal reasons and holidays. Dr. Buckley explained that she began limiting her hours in January 2005, working only just over 50 hours, because PPCC was behind in paying her and she did not see the sense in working and not getting paid.
In his written decision, the hearing referee determined that Dr. Buckley worked at PPCC from November 2, 2004, through February 11, 2005. Although acknowledging that there was some reference to “independent contractor” in the agreement, the hearing referee applied the economic reality test and found it significant that the employment agreement outlined the parties’ responsibilities and set forth Dr. Buckley’s duties, hours, compensation, and vacation time. Therefore, the hearing referee determined that Dr. Buckley was a PPCC employee for the entire period in question. On the basis of his calculations of Dr. Buckley’s time worked, the hearing referee adjusted the amount that PPCC owed Dr. Buckley to “$15,500.00 at the rate of 10% per annum, together with a civil penalty in the amount of $1000.00 if payment is not voluntarily made.”
PPCC thereafter appealed to the circuit court, arguing that the evidence and testimony established that Dr. Buckley was an independent contractor. PPCC conceded that Dr. Buckley worked at PPCC from November 2, 2004, through February 11, 2005, but it argued that the hearing officer erred in awarding Dr. Buckley two entire months’ pay for November and December 2004, because she only worked 4 days in November and 12 days in December. PPCC further argued that the proper test to determine whether Dr. Buckley was an employee or an independent contractor was the test used by the Internal Revenue Service (IRS), which examined behavioral control, financial control, and the relationship of the parties. Therefore, PPCC asserted, the hearing referee erred in applying the economic reality test.
The department maintained that Dr. Buckley was an employee, pointing to the repeated use of the term “employee” in the agreement. Further, the department pointed out, the agreement gave PPCC the power to set forth Dr. Buckley’s duties and hours, and provided that PPCC was responsible for supplying Dr. Buckley with an office and all necessary equipment. The department also argued that the termination for cause and noncompete clauses in the agreement supported the existence of an employer-employee relationship, noting that such clauses would not have been necessary for an independent contractor.
The circuit court found it significant that PPCC did not withhold income taxes for Dr. Buckley and that she paid her own taxes as an independent contractor. The circuit court also noted, despite the language of the employment agreement, that “[t]he clinic clearly treated her as an independent contractor by not dictating her professional duties, by not dictating her hours;” Accordingly, the circuit court reversed, ruling that Dr. Buckley was an independent contractor. The department and Buckley now appeal.
II. CONTRACTUAL AMBIGUITY AND THE ECONOMIC REALITY TEST
A. STANDARD OF REVIEW
The department and Dr. Buckley contend that the circuit court exceeded the scope of its appellate review and applied the wrong legal standard when it ruled that Dr. Buckley was not PPCC’s employee.
This Court’s review of a circuit court’s ruling on an appeal from an administrative decision is limited. “This Court must determine whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the agency’s factual findings.” This standard is synonymous with the clear-error standard of review. Under this standard, this Court will only overturn the circuit court’s decision if, on review of the whole record, it is left with a “definite and firm conviction that a mistake has been made.” A circuit court’s review of administrative proceedings is limited to deter mining whether the decision was authorized by law and supported by competent, material, and substantial evidence on the whole record. “Substantial evidence is that which a reasonable mind would accept as adequate to support a decision. It is more than a mere scintilla but less than a preponderance of the evidence.” When there is sufficient evidence, the circuit court must not substitute its discretion for that of the administrative tribunal even if the court might have reached a different result. It does not matter that alternative findings also could have been supported by substantial evidence on the record. The circuit court must give deference to the agency’s findings of fact.
[Algency interpretations are entitled to respectful consideration, but they are not binding on courts and cannot conflict with the plain meaning of the statute. While the agency’s interpretation may be helpful in ascertaining the legislative intent, courts may not abdicate to administrative agencies the constitutional responsibility to construe statutes. Giving uncritical deference to an administrative agency would be such an improper abdication of duty.[ ]
B. EMPLOYEE’S RIGHT TO RECOUP UNPAID WAGES UNDER THE PAYMENT OF WAGES ACT
The payment of wages act provides, in pertinent part, regarding voluntary termination of employment: “An employer shall pay to an employee voluntarily leaving employment all wages earned and due, as soon as the amount can with due diligence be determined.” Concomitantly, the act allows an employee to file a complaint with the department to recoup any allegedly unpaid wages.
C. DEFINITIONS
The payment of wages act defines “employee” as an “individual employed by an employer.” It defines “employer” as “an individual, sole proprietorship, partnership, association, or corporation, public or private ... who employs 1 or more individuals.” And it defines “employ” as “to engage or permit to work.” It prescribes a number of rules that employers must follow, such as withholding of taxes and timing of pay period days.
This Court has defined an independent contractor as “ ‘one who, carrying on an independent business, contracts to do work without being subject to the right of control by the employer as to the method of work but only as to the result to be accomplished.’ ”
D. DETERMINATION OF CORRECT LEGAL PRINCIPLE
“As this Court has repeatedly recognized when interpreting the terms ‘employ,’ ‘employer,’ or ‘employee’ in different statutory and factual contexts, the existence of an employment relationship is typically determined by examining a number of factors.” Our governmental agencies and courts have developed different tests, depending on the circumstances, to ascertain the true nature of an employment relationship. For example, “[a] contract between the parties which states that their relationship is that of an independent contractor is. . . a. factor to be considered, although it is not determinative. ”
The economic reality test is the most common tool for discerning whether an employee-employer relationship exists. Although primarily applied in the context of remedial legislation, like workers’ compensation matters, courts have found the test instructive in other contexts as well. For example, in Coblentz v City of Novi, the Michigan Supreme Court held that under the Freedom of Information Act provision allowing recovery of costs associated with employees, the economic reality test was the proper analytical framework.
This test takes into account the totality of the circumstances around the work performed, with an emphasis on the following factors:
“(1) [the] control of a worker’s duties, (2) the payment of wages, (3) the right to hire and fire and the right to discipline, and (4) the performance of the duties as an integral part of the employer’s business towards the accomplishment of a common goal.”[ ]
Under this test, no one factor is dispositive; indeed, the list of factors is nonexclusive and a court may consider other factors as each individual case requires. However, “[w]eight should be given to those factors that most favorably effectuate the objectives of the statute in question.”
E. APPLICATION OF CORRECT LEGAL PRINCIPLE
Here, the hearing referee applied the economic reality test. Again, Michigan courts have consistently applied the economic reality test in the context of social remedial legislation. A “remedial law” is “[a] law providing a means to enforce rights or redress injuries” or “[a] law passed to correct or modify an existing law ... .” The payment of wages act is remedial in that it provides a means to enforce rights with respect to wages and fringe benefits and prescribes remedies for violations of these rights. Further, application of the economic reality test, which takes into account the payment of wages, does not conflict with the plain meaning of the statute. Thus, the hearing referee appropriately applied the test in this case because the test is consistent with the purposes of the payment of wages act.
Conversely, in the present matter, the circuit court did not explicitly articulate any principle of law that aided it in determining that Dr. Buckley was an independent contractor. Rather, the circuit court looked only to the facts that PPCC did not withhold any taxes from Dr. Buckley’s paychecks and that PPCC lacked control over Dr. Buckley’s duties and hours. Thus, we conclude that the circuit court clearly erred because it failed to apply, or misapplied, the economic reality test.
We note that PPCC attempts to support its position with reliance on the IRS’s test for determining whether an individual is an independent contractor. However, PPCC cites no authority that this test should be applied in place of this jurisdiction’s longstanding reliance on the economic reality test. And, more importantly, there is no indication in the record that the circuit court relied on the IRS test in making its determination.
F. SUBSTANTIAL EVIDENCE
As previously stated, a circuit court’s review of administrative proceedings is limited to determining whether the decision was authorized by law and supported by competent, material, and substantial evidence on the whole record. And, here, substantial evidence adequately supported the hearing referee’s decision that Dr. Buckley was an employee.
Evidence was presented that PPCC treated Dr. Buckley as an employee. PPCC’s office manager testified that Dr. Buckley was a salaried employee paid on a weekly basis and that PPCC expected Dr. Buckley to work 40 hours each week. PPCC’s chief executive officer also testified that she had the authority to fire Dr. Buckley and that Dr. Buckley was to be paid the same rate each week, regardless of whether she worked over or under a few hours. Further, the agreement between Dr. Buckley and PPCC contained provisions indicating an employee-employer relationship. Specifically, the agreement set a term of employment, gave PPCC the power to determine Dr. Buckley’s duties and hours, contained a noncompete clause, granted PPCC the discretion to terminate the relationship “for reasonable cause,” and offered a “salary of $130,000” for a one-year commitment. This evidence was adequate to support a finding that Dr. Buckley was an employee.
Nevertheless, the circuit court provided the following reasons for reversing the hearing referee’s decision:
I think the judgment of the court below, the administrative law judge ... must be reversed. I think he was flat out dead wrong on the issue of whether or not this woman was an independent contractor. I think all the evidence points to the fact that she was.
The contract contained language both ways whether she was an independent contractor or an employee. The clinic clearly treated her as an independent contractor by not dictating her professional duties, by not dictating her' hours. I assume everybody knew she had to come when the patients were there. Otherwise she wouldn’t be very effective as a doctor. They didn’t withhold taxes. That’s consistent with being an independent contractor.
In fact, if they did not withhold taxes and she was an employee, there [sic] were in clear violation of... the tax requirements of Michigan law for employers. I don’t know why the judge below did what he did. Frankly, he had all the items of evidence in front of him and he simply concluded that wage and hourly applied and he would give a result. He even compromised his result. I have no idea why he did that except it’s a further indication to me that he decided incorrectly.
The judgment below is reversed. I find as a matter of law that the woman was an independent contractor ....
These statements reflect several instances of clear error. As already noted, the court failed to apply the economic reality test and focused its analysis primarily on the element of control. Further, the circuit court ignored the substantial evidence on which the hearing referee relied and made no assessment regarding whether that evidence adequately supported his decision. Rather, the circuit court simply concluded that the hearing referee reached the wrong outcome because all the evidence, in the court’s view, indicated that Dr. Buckley was an independent contractor. According to the court, the referee was “flat out dead wrong” on the issue. However, as this Court has stated, “[a] reviewing court may not set aside factual findings supported by the evidence merely because alternative findings could also have been supported by evidence on the record or because the court might have reached a different result.” In this case, the hearing referee noted that while the agreement contained an “independent contractor” reference, the agreement nonetheless set forth Dr. Buckley’s duties, hours, rate of compensation, and vacation time. The referee also stated that he relied on other evidence and testimony to conclude that Dr. Buckley was an employee. The fact that some of the evidence supported the finding that Dr. Buckley was an independent contractor does not warrant the circuit court’s setting aside the referee’s findings.
PPCC also asserts that the testimony of its office manager was inherently unreliable because she was a disgruntled employee and therefore a biased witness. However, “if the administrative findings of fact and conclusions of law are based primarily on credibility determinations, such findings generally will not be disturbed because it is not the function of a reviewing court to assess witness credibility or resolve conflicts in the evidence.”
III. CONCLUSION
The circuit court applied an incorrect principle of law when it did not use the correct standard to review the hearing referee’s decision. Further, substantial evidence supported the referee’s decision that an employee-employer relationship existed between Dr. Buckley and PPCC. Accordingly, we reverse the judgment of the circuit court and reinstate the decision of the hearing referee.
Reversed.
MCL 408.471 et seq.
“Section Two” of the agreement, entitled “Term of Employment,” stated that the agreement “was effective on November 19,2004 and shall remain in effect until November 19, 2005 ....”
See Askew v Macomber, 398 Mich 212, 217-218; 247 NW2d 288 (1976).
See MCL 408.481(9).
Adams v West Ottawa Pub Schools, 277 Mich App 461, 465; 746 NW2d 113 (2008).
Id. (quotation marks and citations omitted).
Id.
Id.
Const 1963, art 6, § 28; In re Complaint of Rovas against SBC Michigan, 482 Mich 90, 99-100; 754 NW2d 259 (2008); VanZandt v State Employees’ Retirement Sys, 266 Mich App 579, 588; 701 NW2d 214 (2005).
In re Kurzyniec Estate, 207 Mich App 531, 537; 526 NW2d 191 (1994) (citation omitted).
VanZandt, supra at 584.
Dep’t of Community Health v Risch, 274 Mich App 365, 373; 733 NW2d 403 (2007).
VanZandt, supra at 588.
In re Rovas Complaint, supra at 117-118.
MCL 408.475(1).
MCL 408.481.
MCL 408.471(c).
MCL 408.471(d).
MCL 408.471(b).
See MCL 408.472; MCL 408.474.
Kamalnath v Mercy Mem Hosp Corp, 194 Mich App 543, 553; 487 NW2d 499 (1992), quoting Parham v Preferred Risk Mut Ins Co, 124 Mich App 618, 622-623; 335 NW2d 106 (1983).
Mantei v Michigan Pub School Employees Retirement Sys and Michigan Pub School Employees Retirement Bd, 256 Mich App 64, 76; 663 NW2d 486 (2003).
Id.
Detroit v Salaried Physicians Professional Ass’n, UAW, 165 Mich App 142, 148; 418 NW2d 679 (1987).
See, e.g., Renfroe v Higgins Rack Coating & Mfg Co, Inc, 17 Mich App 259, 264; 169 NW2d 326 (1969).
Coblentz v City of Novi, 475 Mich 558; 719 NW2d 73 (2006).
Id. at 578, addressing MCL 15.234(3). See also Mantei, supra at 79 (“[W]e conclude in the instant case, where respondeat superior liability is not at issue, that the economic-reality test is the appropriate legal tool with which to assess whether petitioner was ‘employed by a reporting unit’ under § 61 of the retirement act.”).
Mantei, supra at 79.
Clark v United Technologies Automotive, Inc, 459 Mich 681, 688; 594 NW2d 447 (1999), quoting Askew, supra at 217-218 (alteration in Clark). See also Mantei, supra at 78-79.
Rakowski v Sarb, 269 Mich App 619, 625; 713 NW2d 787 (2006); Mantei, supra at 79.
Rakowski, supra at 626 (citation and quotation marks omitted).
See, e.g., Renfroe, supra at 264.
Black’s Law Dictionary (8th ed).
In re Rovas Complaint, supra at 117-118.
Const 1963, art 6, § 28; VanZandt, supra at 588.
See In re Kurzyniec Estate, supra at 537.
Risch, supra at 373.
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Davis, J.
Plaintiff appeals as of right orders of summary disposition entered in favor of defendants American Manufacturers Mutual Insurance Company (American Manufacturers) and United States Fidelity & Guaranty Company (USF&G). We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
This case arises out of the Howe Elementary School demolition and reconstruction project begun by the Detroit Public Schools in 2001. The Detroit Public Schools contracted with American International, Inc., to be the general contractor for the project. American International obtained a payment bond from USF&G, and it subcontracted part of the construction project to defendant Metro Steel Fabricators, Inc. (Metro Steel). Metro Steel obtained its own payment bond from American Manufacturers. Metro Steel then subcontracted part of the construction work to plaintiff.
On May 8, 2003, plaintiff “stopped working on the Howe Elementary School project” without completing it. Plaintiff contends that its work on the project was nearly complete at that time, but that it was not receiving its expected payments and it perceived that it would continue not receiving its payments. Plaintiff therefore ceased work “to avoid further losses.” It is undisputed that plaintiff was not, in fact, paid all that it was owed on the Howe Elementary School project. On March 25, 2004, the Detroit Public Schools formally terminated the construction contract with American International for failure “to properly make payments to Subcontractors or for labor, materials and equipment” pursuant to that contract. On May 6, 2004, Metro Steel explicitly acknowledged in a letter to plaintiff that $124,666 remained owing on the Howe Elementary School project. Plaintiff seeks the same amount in the instant action. Nevertheless, the Detroit Public Schools thereafter persuaded plaintiff to complete its work on the project, giving plaintiff “assurances of payment.” On August 19, 2004, plaintiff returned to the work site and completed its work on the Howe Elementary School project.
On August 27, 2004, plaintiff sent notices to both sureties that it was making a claim on each of the payment bonds. Plaintiff then commenced the instant action against them. All parties filed motions for summary disposition. USF&G argued that the last day plaintiff worked as a subcontractor to a subcontractor on the original contract was May 8, 2003, and that it failed to provide notice of its claim within 90 days thereof, as required by the contractor’s bond for public buildings or works act, MCL 129.201 et seq. USF&G also argued that it could not be held liable on the bond because it was a secondary surety to American Manufacturers’s bond and because plaintiff was responsible for delays in the project. American Manufacturers argued that its bond contained a contractual limitations period that required claimants to file suit within one year of giving notice under the bond or of the last day on which work was performed and that plaintiff exceeded this date by more than three months under any possible interpretation of the facts. Plaintiff argued that the work it performed on August 19, 2004, was merely a completion of its work on its subcontract with a subcontractor and that American Manufacturers’s bond was a statutory bond and it was required to afford the longer limitations period available under the public works bond statute. The trial court granted summary disposition in favor of the sureties; the parties later agreed to a consent judgment and final order resolving the remaining claims.
A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR 2.116(0(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the non-moving party. Where the evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. Maiden, supra at 120. A motion brought under MCR 2.116(C)(8) should be granted only where the complaint is so legally deficient that recovery would be impossible even if all well-pleaded facts were true and construed in the light most favorable to the nonmoving party. Maiden, supra at 119. This Court also reviews de novo as a question of law the proper interpretation of both contracts and statutes. Detroit Fire Fighters Ass’n, IAFF Local 344 v Detroit, 482 Mich 18, 28; 753 NW2d 579 (2008).
MCL 129.201 et seq. was created by the Legislature in order to protect “principal contractors” from the void left by the “long-standing mechanics’ lien law” that prohibited mechanics’ liens on public buildings. Adamo Equip Rental Co v Mack Dev Co, Inc, 122 Mich App 233, 236; 333 NW2d 40 (1982). Although intended “to safeguard and protect contractors and materialmen in the public sector,” it significantly distinguishes between “rights and duties of the primary contractor and the rights and duties of the secondary contractors ....” Id. at 236-237. This Court has explained that “the principal contractor” means “the contractor who has the primary responsibility for performing the terms of the contract” and might or might not be the first contractor. Id. at 237. The plain language of MCL 129.201 imposes the requirement of providing a bond under the statute only on the principal contractor.
It is undisputed that Metro Steel was not the principal contractor, so Metro Steel was not required by statute to provide a bond pursuant to MCL 129.201 et seq. Plaintiff contends, however, that the bond issued by American Manufacturers is a statutory bond because it incorporates by reference Metro Steel’s subcontract with American International, which in turn allegedly required Metro Steel to obtain a statutory bond because the subcontract between Metro Steel and American International incorporated by reference the prime contract between American International and the Detroit Public Schools that required American International to provide a statutory bond. The prime contract appears to require the general contractor to obtain a payment bond using a form explicitly specifying that the bond is statutory and in conformance with the public works bond act. However, Metro Steel is not the general contractor, the reference to “bidders” appears to be in the context of dealings directly with the project owner, and the American Manufacturers bond did not include that particular language.
Indeed, there is no language in the American Manufacturers bond or in the subcontract between American International and Metro Steel making any reference to a statutory bond. Rather, the subcontract states that any other documents referenced are “as amended or supplemented by other provisions of the Subcontract Documents,” and it explicitly states that the subcontract takes precedence over the prime contract in the event any provisions are inconsistent. Given that MCL 129.201 et seq. are only intended to govern the principal contractor, and given that none of the documents executed by any party to the instant appeal imposed any requirement of a statutory bond, we conclude that no statutory bond was required of American Manufacturers. We agree with the trial court that the payment bond issued by American Manufacturers was contractual, rather than statutory, so the limitations period specified therein applied.
Conversely, it is undisputed that the USF&G payment bond was a statutory bond because it was issued to American International, the principal contractor on the Howe Elementary School project. As a consequence, for plaintiff to make a claim under the bond, it must have “given written notice to the principal contractor and the governmental unit involved within 90 days from the date on which the claimant performed the last of the labor or furnished or supplied the last of the material for which the claim is made.. . .” MCL 129.207. Additionally, a “claimant” is defined as “a person having furnished labor, material, or both, used or reasonably required for use in the performance of the contract.” MCL 129.206. The parties agree that the applicable limitations period is 90 days after the last day of work on the contract. The bond act itself is to be liberally construed, but the notice requirement must be strictly construed and enforced. Grand Blanc Cement Products, Inc v Ins Co of North America, 225 Mich App 138, 144; 571 NW2d 221 (1997). Plaintiff provided “notice” on August 27, 2004. Therefore, the most significant issue is whether the work plaintiff performed on August 19, 2004, was “in the performance of the contract.”
We find that issue impossible to resolve on the basis of the existing factual development in this matter. It is not seriously contended that the work plaintiff performed on that date was so de minimis that it cannot be counted, nor is it seriously contended that the work on that date was not work that had originally been called for under the contract. USF&G argues that the total amount plaintiff claims it is owed on the contract had already been agreed on by all relevant parties before it performed the additional day of work. This could be construed as an acknowledgement that the original contract was terminated at that point, but it could also simply be an acknowledgement of why plaintiff was no longer performing work on the contract; in any event, the letter only purports to confirm that plaintiff was owed further payment. Although plaintiff apparently performed the additional day of work on the basis of “assurances” by the Detroit Public Schools, there is in fact no evidence in the record shedding any light on what actually happened in that transaction. USF&G points out that plaintiff documented that additional day of work on a form entitled “additional work authoriza tion.” However, USF&G’s argument that the mere title of a form proves anything about the underlying transaction elevates form over substance, and in any event, the form also specifies that Metro Steel (the subcontractor) is the entity to be invoiced.
We find that the evidence — when properly viewed in the light most favorable to the nonmoving party— simply cannot foreclose or prove either possibility. Without further factual development, neither party could be entitled to summary disposition on this basis.
We do, however, conclude that if the work plaintiff performed on August 19, 2004, was “on the contract,” the fact that American International had been terminated as the general contractor is irrelevant. USF&G’s bond provides that it will not be liable for obligations of the contractor (American International) that are unrelated to the construction project. However, the unpaid work for which plaintiff is attempting to bring a claim all predates American International’s termination, and in any event, American International’s termination as the general contractor did not terminate plaintiffs status as a subcontractor to a subcontractor. The issue remains whether the work was “on the contract” or pursuant to a separate agreement between plaintiff and the Detroit Public Schools.
USF&G also urges us to adopt § 53 of the Restatement of Suretyship and Guaranty, 3d. In particular, USF&G argues that suretyship law obligates a claimant to exhaust recovery from the surety “closest” to the claimant, which in this case would be American Manufacturers. USF&G further argues that if plaintiff cannot do so because it exceeded the applicable limitations period in American Manufacturers’s bond, plaintiff can only blame itself for not having a remedy. However, it is undisputed that there is no Michigan law on this point. We conclude that applying USF&G’s proposed rule here would be contrary to the stated purpose of MCL 129.201 et seq.
The public works bond act is to be liberally construed to “protect contractors and materialmen in the public sector to ensure that they do not suffer injury when other contractors default on their obligations.” W T Andrew Co, Inc v Mid-State Surety Corp, 450 Mich 655, 659; 545 NW2d 351 (1996). It was enacted by the Legislature because materialmen and contractors cannot place liens on public buildings; by its own express terms, it is intended to protect parties who “furnished labor, material, or both, used or reasonably required for use in the performance of the contract.” MCL 129.206; see MCL 129.203; Rammer Asphalt Paving Co, Inc v East China Twp Schools, 443 Mich 176, 181-182; 504 NW2d 635 (1993). The payment bond issued by USF&G likewise defines a “claimant” to include any “individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Contract.”
Neither the bond nor the statute contains an exemption or exception for any other payment bonds, nor do any of the conditional prerequisites to recovery include exhaustion of recovery from any other sureties. Indeed, they show the opposite. The Legislature passed the public works bond act to require bonds like the one issued by USF&G for the purpose of protecting parties like plaintiff. The plain language of the statute and the bond itself show that USF&G is liable on its bond irrespective of the American Manufacturers bond, at least presuming plaintiff is found on remand to have fulfilled the other requirements for being a claimant.
The sureties finally assert that plaintiff cannot recover on either bond because plaintiff was responsible for delays in the construction project. However, the trial court did not address this matter, and facts necessary to make that determination do not appear to have been entered into the record. We decline to consider this issue in light of the existing lack of factual development.
We affirm the trial court’s grant of summary disposition in favor of American Manufacturers. We reverse the trial court’s grant of summary disposition in favor of USF&G, and we remand to the trial court for further proceedings. We do not retain jurisdiction.
American International has apparently filed for bankruptcy and ceased to exist.
This is also known as “the public works bond statute.” See, e.g., W T Andrew Co, Inc v Mid-State Surety Corp, 450 Mich 655, 657; 545 NW2d 351 (1996).
Metro Steel is not a party to this appeal.
Plaintiff also argues that the plain language of American Manufacturers’s bond shows that it is a statutory bond, but the paragraph on which plaintiff relies is inapplicable: by its own terms, that paragraph only applies where the “[blond has been furnished to comply with a statutory or other legal requirement.” Because Metro Steel was not the principal contractor, it did not obtain the bond from American Manufacturers to comply with “a statutory or other legal requirement.”
Plaintiff also relies on caselaw involving similarly worded payment bonds. But those cases involved principal contractors who had contracted directly with a public entity, and there was therefore no dispute that statutory bonds were required, Gloucester City Bd of Ed v American Arbitration Ass’n, 333 NJ Super 511; 755 A2d 1256 (2000), or were cases where a statutory bond was otherwise indisputably required. Kirkpatrick v Phillips, 162 Mich 251; 127 NW 340 (1910). These cases are therefore irrelevant to the issue at hand. | [
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Per Curiam.
Appellant, Houghton-Portage Township Schools (the school district), appeals by leave granted the trial court’s order affirming a decision by the Employment Security Commission Board of Review (now the Unemployment Security Board of Review) to award unemployment benefits to claimant, William M. Petrelius, a custodian, for a layoff period of about six weeks in the summer of 2005. The school district argues that the trial court and the board of review erred in finding that claimant is eligible for unemployment benefits. The school district maintains that the plain language of MCL 421.27(i)(2) precludes the award of unemployment benefits. We agree with the school district, reverse the decision of the board of review, and remand this case to the board.
“A final agency decision is subject to court review, but it must generally be upheld if it is not contrary to law, is not arbitrary, capricious, or a clear abuse of discretion, and is supported by competent, material and substantial evidence on the whole record. ‘Substantial evidence is that which a reasonable mind would accept as adequate to support a decision, being more than a mere scintilla, but less than a preponderance of the evidence.’ ” VanZandt v State Employees’ Retirement Sys, 266 Mich App 579, 583-584; 701 NW2d 214 (2005) (citations omitted). “This Court reviews a lower court’s review of an administrative decision to determine whether the lower court applied correct legal principles and whether it misapprehended or misapplied the substantial evidence test to the agency’s factual findings, which is essentially a clearly erroneous standard of review.” Id. at 585. “A finding is clearly erroneous where, after reviewing the record, this Court is left with the definite and firm conviction that a mistake has been made.” Id.
Statutory interpretation presents a question of law subject to review de novo. Brown v Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514 (2007). While appellate courts give respectful consideration to the construction of statutory provisions by any particular department of the government, the department’s interpretation is not binding on the court and cannot be used to overcome a statute’s plain meaning. In re Rovas Complaint Against SBC Michigan, 482 Mich 90, 103; 754 NW2d 259 (2008). The primary goal of statutory construction is to discern and give effect to the intent of the Legislature. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). The words of a statute provide the most reliable evidence of the Legislature’s intent. Id. If the statutory language is unambiguous, appellate courts presume that the Legislature intended the plainly expressed meaning, and further judicial construction is neither required nor permitted. DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000).
MCL 421.27(i)(2), also known as the “school denial period” provision, provides:
With respect to service performed in other than an instructional, research, or principal administrative capacity for an institution of higher education as defined in section 53(2) or for an educational institution other than an institution of higher education as defined in section 53(3), benefits shall not be paid based on those services for any week of unemployment beginning after December 31,1977 that commences during the period between 2 successive academic years or terms to any individual if that individual performs the service in the first of the academic years or terms and if there is a reasonable assurance that the individual will perform the service for an institution of higher education or an educational institution other than an institution of higher education in the second of the academic years or terms.
It is undisputed that the period of unemployment at issue occurred between two successive academic years, that claimant performed services for the school district in the first of those academic years, and that claimant was given reasonable assurance that he would perform services for the school district in the second of those academic years. MCL 421.27(i)(2) states that “benefits shall not be paid” for any week of unemployment commencing between successive academic years under such circumstances. The phrase “shall not” is unambiguous and denotes a mandatory, rather than a discretionary, action. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 65; 642 NW2d 663 (2002).
This Court has explained the operation of the school denial provision as follows: “In simpler terms, employees working for an educational institution, who are not teachers, researchers, or principal administrators, may not receive unemployment benefits during summer break if they have a reasonable assurance that they will be working in the academic year that follows the summer break.” Adams v West Ottawa Schools, 277 Mich App 461, 463; 746 NW2d 113 (2008). In the present case, because the layoff period was during the summer break and claimant was given reasonable assurance that his duties would resume in the following academic year, he is not eligible for benefits. Id.; See also Riekse v Grand Rapids Pub Schools, 144 Mich App 790, 792-793; 376 NW2d 194 (1985).
The denial of benefits unquestionably results in hardship for claimant. However, the school denial period provision is an expression of legislative intent not to protect all persons who might be in a position to claim involuntary unemployment. Paynes v Detroit Bd of Ed, 150 Mich App 358, 367; 388 NW2d 358 (1986). Its clear language cannot be ignored on the basis of any alleged general purposes or legislative intent underlying the statute. Directly contrary to appellees’ argu ments, even the statutory declaration of policy, MCL 421.2, only becomes helpful “if [specific disqualification provisions are] vague or ambiguous,” Thomas v Employment Security Comm, 356 Mich 665, 668-669; 97 NW2d 784 (1959), and that is not the case here. In other words, even if the statute is to be liberally construed to fulfill its employee protection purposes, such construction cannot ignore and contradict specific limitations on that protection. Courts should not nullify the clear policy choice made by the Legislature in MCL 421.27(i)(2) and thereby undermine the legitimate expectations of Michigan citizens that laws will be enforced as written. See Karaczewski v Farbman Stein & Co, 478 Mich 28, 42; 732 NW2d 56 (2007).
Claimant emphasizes that, in the years before 2003, he was employed throughout the summer, and he notes that his pay structure and benefits reflected that full-year employment. However, MCL 421.27(i)(2) neither provides an exception for employees who may have been offered employment for the period between two successive academic years in years past, nor does it permit consideration of an employee’s subjective expectations regarding the possibility of continued employment between two successive academic years. We reiterate that, by its plain language, MCL 421.27(i)(2) applies to any week of unemployment between successive academic years for any individual performing services in the first of those years and with a reasonable assurance of performing those services in the second of those years. Claimant’s period of unemployment meets this criterion. Thus, MCL 421.27(i)(2) mandates that benefits not be paid for that period.
We need not consider whether claimant’s layoff occurred during “customary” or “traditional” vacation periods; any reference to such periods is a reference to a different subsection of the statute, and is not pertinent here. MCL 421.27(i)(3) provides:
With respect to any service described in subdivision (1) or (2), benefits shall not be paid to an individual based upon service for any week of unemployment that commences during an established and customary vacation period or holiday recess if the individual performs the service'in the period immediately before the vacation period or holiday recess and there is a contract or reasonable assurance that the individual will perform the service in the period immediately following the vacation period or holiday recess.
Unlike MCL 421.27(i)(3), the school denial period provision in MCL 421.27(i)(2) does not necessitate consideration of whether the period of unemployment occurred during an “established and customaiy” vacation period. Rather, the sole consideration in MCL 421.27(i)(2) is whether the period of unemployment took place during the period between two successive academic years. In construing a statute, a court may not presume that the Legislature inadvertently omitted language in one section that it included in another. South Haven v Van Buren Co Bd of Comm’rs, 478 Mich 518, 530; 734 NW2d 533 (2007). And, of course, cases construing the language of MCL 421.27(i)(3) are simply irrelevant to our consideration of MCL 421.27(i)(2). See, e.g., Billups v Howell Pub Schools, 167 Mich App 407, 411-412; 423 NW2d 231 (1988).
We reverse and remand to the board of review for the entry of an order holding that claimant is not eligible for unemployment benefits. We do not retain jurisdiction.
We note that, with regard to claimant’s purported expectation of year-round employment, claimant was not employed for a portion of the summers of 2003 and 2004, and claimant was notified at a meeting during August 2004, and again in writing in March 2005, that he would not be employed from July 1, 2005, until August 15, 2005. | [
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Per Curiam.
In these consolidated appeals, respondent, James Jenks, appeals as of right the trial court’s February 22, 2008, order terminating his parental rights to the minor children under MCL 712A.19b(3)(b)(i) and (Hi), (g), (h), (j), and (k)(ii). We affirm.
The minor children came to the attention of petitioner, the Department of Human Services, on September 1, 2006, when it was discovered that the children’s home was in deplorable condition and without running water. Thereafter, on October 23, 2007, respondent pleaded guilty to one count of first-degree criminal sexual conduct with a person under 17 years of age for his conduct in sexually abusing his stepdaughter, who is the minor children’s half-sister. As part of his plea, respondent admitted his sexual penetration of the stepdaughter. On November 27, 2007, respondent was sentenced to serve a prison term of 5 to 15 years for that offense.
Petitioner sought to terminate respondent’s parental rights on the basis of his admitted sexual abuse of the other child. Petitioner presented no witnesses at the termination hearing, relying on respondent’s order of conviction and judgment of sentence as establishing grounds for termination. Respondent presented a single witness, who testified that the children were not of Native American heritage. The trial court found, by clear and convincing evidence, that respondent had committed a sexual penetration of a half-sister of the minor children and that there was a reasonable likeli hood that the minor children would suffer injury or abuse if ever placed in respondent’s custody. The trial court also concluded that it was not clearly contrary to the children’s best interests for respondent’s parental rights to be terminated “given the acts he committed against his step-daughter and the length of his incarceration.”
Respondent argues that the trial court clearly erred by finding that petitioner established statutory grounds for termination by clear and convincing evidence. We disagree.
To terminate parental rights, the trial court must find that at least one of the statutory grounds for termination set forth in MCL 712A.19b(3) has been established by clear and convincing evidence. In re Sours Minors, 459 Mich 624, 632; 593 NW2d 520 (1999); In re Terry, 240 Mich App 14, 21-22; 610 NW2d 563 (2000). Once a ground for termination is established, the court must order termination of parental rights unless there is clear evidence, on the whole record, that termination is not in the child’s best interest. MCL 712A.19b(5); In re Trejo Minors, 462 Mich 341, 354; 612 NW2d 407 (2000). If, as in this case, the termination is sought on the basis of grounds new or different from those that led the court to assert jurisdiction over the children, the grounds for termination must be established by legally admissible evidence. MCR 3.977(F)(1)(b).
This Court reviews the trial court’s determinations that a ground for termination has been established and regarding the child’s best interest under the “clearly erroneous” standard. MCR 3.977(J); Sours, supra at 633; In re Fried, 266 Mich App 535, 541; 702 NW2d 192 (2005). A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made. In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003); In re LE, 278 Mich App 1, 18; 747 NW2d 883 (2008).
Contrary to respondent’s assertion, we conclude that the trial court did not err by determining that the ground for termination set forth in MCL 712A.19b(3)(b)(i) was established by clear and convincing legally admissible evidence. MCL 712A.19b(3)(b) provides for termination if the
child or a sibling of the child has suffered physical injury or physical or sexual abuse under 1 or more of the following circumstances:
(i) The parent’s act caused the physical injury or physical or sexual abuse and the court finds that there is a reasonable likelihood that the child will suffer from injury or abuse in the foreseeable future if placed in the parent’s home.
The record clearly established that respondent sexually abused the minor children’s half-sister; respondent does not dispute this. And the statute clearly encompasses such conduct. Further, considering the nature of respondent’s criminal sexual conduct with the other child, which included penetration, the trial court did not clearly err in determining that there is a reasonable likelihood that the minor children would suffer injury or abuse in the foreseeable future if placed in respondent’s home. Therefore, the trial court did not clearly err in finding that this ground for termination was established by clear and convincing legally admissible evidence.
Termination was likewise warranted under MCL 712A.19b(3)(k)(ii), which provides for termination if the parent whose parental rights the petitioner seeks to terminate sexually abused the child or a sibling of the child and that abuse included penetration, attempted penetration, or assault with intent to penetrate. Respondent admitted that his sexual abuse of the other child included penetration. Therefore, the trial court also did not clearly err by finding that this ground for termination was established by clear and convincing legally admissible evidence.
Having found that at least one statutory ground for termination was established by clear and convincing evidence, as noted above, the trial court was required to terminate respondent’s parental rights unless there was clear evidence, on the whole record, that termination was not in the children’s best interests. MCL 712A.19b(5); Trejo, supra at 354. Respondent does not argue that termination was not in the children’s best interests; rather, he asserts only that, because petitioner did not establish at least one statutory ground for termination by clear and convincing evidence, the trial court was not permitted to consider the best interests of the children. We disagree. Having affirmed the trial court’s conclusion that petitioner appropriately established at least one statutory ground for termination, we find no clear error in the trial court’s conclusion that, considering the nature of respondent’s criminal sexual conduct with the minor children’s half-sister and the length of his incarceration for that offense, termination was not clearly contrary to the minor children’s best interests.
We affirm.
The trial court subsequently terminated the parental rights of the minor children’s mother. Her mother’s separate appeal of that termination order remains pending in this Court.
This Court previously interpreted the prior version of MCL 712A.19b(3)(b)(i) as applicable only to conduct perpetrated by the parent of the injured or abused child. Therefore, this Court reluctantly determined that the prior version of this section did not apply if the injured or abused child was not also the child of the parent whose parental rights the petitioner sought to terminate. In re Powers, 208 Mich App 582, 591; 528 NW2d 799 (1995). However, the Legislature amended MCL 712A.19b(3)(b)(i) in 1997 to clarify that grounds for termination are established when the parent against whom termination is sought is responsible for the physical injury or physical or sexual abuse of a sibling of the minor child, regardless of whether that parent is also a parent of the injured or abused sibling. Thus, as amended, MCL 712A.19b(3)(b)(i) sets forth a ground for termination in circumstances such as those presented here, in which respondent sexually abused a half-sister of the minor children who are the subject of the termination proceedings, regardless of the fact that respondent was not also a parent of that abused half-sister. MCL 712A.19b(3)(b)(i).
Because we conclude that grounds for termination were established by clear and convincing evidence under MCL 712A.19b(3)(b)(i) and (k)(ii), we need not address the remainder of the grounds for termination cited by the trial court in terminating respondent’s parental rights to the minor children. In re Powers Minors, 244 Mich App 111, 118-119; 624 NW2d 472 (2000). We do note, however, that termination in this case could not properly be based on MCL 712A.19b(3)(b)(iii). | [
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] |
Murphy, J.
Defendant appeals the trial court’s order awarding plaintiffs personal protection insurance (PIP) benefits under the no-fault act, MCL 500.3101 et seq., for various housing and living expenses, as well as services, associated with the care of plaintiffs’ adult son, Michael Hoover. Michael was injured as a child more than 20 years ago when struck by a motor vehicle operated by a drunk driver and insured by defendant. Defendant also challenges the trial court’s assessment of attorney fees and penalty interest. The trial court did not properly apply, in part, our Supreme Court’s opinion in Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521; 697 NW2d 895 (2005), resulting in erroneous conclusions on several, but not all, of the expenses and services at issue. Further development of the record under the framework set forth in Griffith is appropriate with respect to expenses and services analyzed incorrectly by the court. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.
In 1985, Michael Hoover, two years old at the time, was struck by a drunk driver and suffered serious, life-altering injuries. Michael, now 25, is developmentally disabled from a brain injury and is a quadriplegic, and he depends on a ventilator to breathe, all as a result of the accident. In 2002, plaintiffs built a new home with a wing specifically constructed and designed to accommodate Michael and his injuries. Alarms monitor Michael’s breathing, in-home nurses working shifts around the clock provide medical care, he is fed puréed food (sometimes through a feeding tube), a backup generator is in place in case of a disruption in power, Michael stays and sleeps in a specialized bed, the home has an elevator for when he needs to be moved to the basement, and Michael lives in a sterile environment closely surrounded by various medical instruments and equipment. See the photograph appended to this opinion. It is beyond dispute that absent these accommodations and the care of his parents and others, Michael would need to be institutionalized.
The parties have litigated the payment of PIP benefits off and on over the years, dating back to 1986, when plaintiffs first commenced suit for the recovery of benefits. Defendant’s general obligation to provide PIP benefits was settled early in the litigation, and the court has adjusted the amount of benefits payable for home-care and living expenses through the years. In 2002, plaintiffs built a specially designed house with accommodations necessary to properly care for Michael. Pursuant to a settlement agreement, defendant paid approximately 28 percent of the construction costs. Thereafter, and on the basis of language in the agreement, defendant filed a motion requesting an order canceling future benefit payments for accommodations; however, the trial court denied the motion, and that ruling is not the subject of this appeal. Subsequently, plaintiffs moved for an increase in benefits to cover home-care and living expenses, and defendant, in response, argued that there should be a reduction. The trial court ruled that 28 percent of the home could be attributed to Michael’s needs. Using this allocation, the trial court ordered defendant to pay benefits covering 28 percent of the following expenses: real estate tax bills, gas and electric utility bills, homeowner’s insur anee, home maintenance, telephone bills, and security system costs. The court ordered defendant to pay 100 percent of the expenses associated with the gasoline backup generator, dumpster, medical alert pendant, television monitoring system, and inspections of the elevator. The trial court additionally ordered defendant to pay plaintiffs $15 an hour for the two hours a day generally spent cleaning Michael’s section of the home, removing trash, waxing floors, and removing snow from the driveway. The trial court further ruled that plaintiffs were entitled to penalty interest under MCL 500.3142 and reasonable attorney fees under MCL 500.3148.
Whether a cost constitutes an allowable expense under MCL 500.3107(l)(a) is a question of statutory construction, subject to review de novo. Griffith, 472 Mich at 525-526. We review underlying factual findings for clear error. Ross v Auto Club Group, 481 Mich 1, 7; 748 NW2d 552 (2008). “A trial court’s finding of an unreasonable refusal to pay or delay in paying benefits will not be reversed on appeal unless the finding is clearly erroneous.” Attard v Citizens Ins Co of America, 237 Mich App 311, 316-317; 602 NW2d 633 (1999). Our primary task in construing a statute is to discern and give effect to the intent of the Legislature. Shinholster v Annapolis Hosp, 471 Mich 540, 548-549; 685 NW2d 275 (2004). The words contained in a statute provide us with the most reliable evidence of the Legislature’s intent. Id. at 549.
In Reed v Citizens Ins Co of America, 198 Mich App 443; 499 NW2d 22 (1993), overruled by Griffith, this Court, in an opinion I authored, addressed a claim for no-fault insurance benefits under MCL 500.3107(1)(a). In Reed, a parent sought no-fault insurance coverage for room and board expenses associated with the care of her son after he was severely injured in an automobile accident and came to live with her. He required 24-hour nursing care. The son initially spent 2V2 years in residential treatment facilities following the accident. Id. at 445. The Reed panel, after first observing that “family members may be compensated for the services they provide at home to an injured person in need of care,” ruled:
We see no compelling reason not to afford the same compensation under the act to family members who provide room and board. [MCL 500.3107(l)(a)] does not distinguish between accommodations provided by family members and accommodations provided by institutions, and we decline to read such a distinction into the act. Moreover, holding that accommodations provided by family members is an “allowable expense” is in accord with the policy of this state. Denying compensation for family-provided accommodations while allowing compensation in an institutional setting would discourage home care that is generally, we believe, less costly than institutional care....
We hold that, where an injured person is unable to care for himself and would be institutionalized were a family member not willing to provide home care, a no-fault insurer is liable to pay the cost of maintenance in the home. [Id. at 452-453 (citations omitted).]
We are of the opinion that Reed was correctly decided and that it honored the language in MCL 500.3107(l)(a). We note that the Supreme Court, without dissent, denied the application for leave to appeal in Reed, 444 Mich 964 (1994), and the opinion stood and was accepted for 12 years until being overruled by a four-to-three decision in Griffith.
In Griffith, the plaintiffs husband, Douglas Griffith, was involved in a motor vehicle accident, resulting in a severe brain injury and leaving him confined to a wheelchair. He was first treated at in-patient facilities and hospitals for two years before returning home with the plaintiff, where he required assistance with basic tasks such as bathing and eating. The insurer denied the plaintiffs claim to recoup her husband’s food expenses under MCL 500.3107(l)(a) that were incurred after he returned home. Griffith, 472 Mich at 524-525. Relying on the language in MCL 500.3105(1) and MCL 500.3107(1)(a), the Supreme Court rejected the plaintiffs claim for no-fault benefits. With respect to MCL 500.3105(1), the Court construed the language to mean that “a no-fault insurer is liable to pay benefits only to the extent that the claimed benefits are causally connected to the accidental bodily injury arising out of an automobile accident.” Id. at 531. The Court concluded that the plaintiffs claim did not indicate that her husband’s diet was different from the diet of an uninjured person, that the food expenses were incurred as part of a treatment plan, or that the food costs were related in any way to the injuries suffered in the accident. Id. Therefore, according to the Griffith Court, the claimed food expenses were not for, nor causally connected to, an accidental bodily injury. Id. at 532.
Proceeding on an assumption that the food expenses could be compensated under MCL 500.3105(1), the Supreme Court then examined and rejected the plaintiffs claim under MCL 500.3107(l)(a). The Court first noted that there was no contention that the food expenses were part of the plaintiffs husband’s “recovery” or “rehabilitation,” as those terms are used in MCL 500.3107(l)(a), thereby narrowing the issue to whether the food expenses were necessary for his “care.” Griffith, 472 Mich at 532-533. Addressing the interpretation of the term “care” as used in MCL 500.3107(1)(a), the Court stated:
“Care” must have a meaning that is broader than “recovery” and “rehabilitation” but is not so broad as to render those terms nugatory. As noted above, both “recovery” and “rehabilitation” refer to an underlying injury; likewise, the statute as a whole applies only to an “injured person.” It follows that the Legislature intended to limit the scope of the term “care” to expenses for those products, services, or accommodations whose provision is necessitated by the injury sustained in the motor vehicle accident. “Care” is broader than “recovery” and “rehabilitation” because it may encompass expenses for products, services, and accommodations that are necessary because of the accident but that may not restore a person to his preinjury state. [Id. at 535.]
The Griffith Court, applying its definition of “care,” proceeded to analyze the claim for food expenses pursued by the plaintiff:
Griffith’s food costs here are not related to his “care, recovery, or rehabilitation.” There has been no evidence introduced that he now requires different food than he did before sustaining his injuries as part of his treatment plan. While such expenses are no doubt necessary for his sur vival, they are not necessary for his recovery or rehabilitation from the injuries suffered in the accident, nor are they necessary for his care because of the injuries he sustained in the accident. Unlike prescription medications or nursing care, the food that Griffith consumes is simply an ordinary means of sustenance rather than a treatment for his “care, recovery, or rehabilitation.” In fact, if Griffith had never sustained, or were to fully recover from, his injuries, his dietary needs would be no different than they are now. We conclude, therefore, that his food costs are completely unrelated to his “care, recovery, or rehabilitation” and are not “allowable expenses” under MCL 500.3107(l)(a). [Id. at 535-536 (emphasis in original).]
The Court, rejecting the plaintiffs argument that there was no difference between food costs for hospital food and the cost of food provided to an insured as part of at-home care, reasoned:
Food costs in an institutional setting are “benefits for accidental bodily injury” and are “reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.” That is, it is “reasonably necessary” for an insured to consume hospital food during in-patient treatment given the limited dining options available. Although an injured person would need to consume food regardless of his injuries, he would not need to eat that particular food or bear the cost associated with it. Thus, hospital food is analogous to a type of special diet or select diet necessary for an injured person’s recovery. Because an insured in an institutional setting is required to eat “hospital food,” such food costs are necessary for an insured’s “care, recovery, or rehabilitation” while in such a setting. Once an injured person leaves the institutional setting, however, he may resume eating a normal diet just as he would have had he not suffered any injury and is no longer required to bear the costs of hospital food, which are part of the unqualified unit cost of hospital treatment.
This reasoning can be taken a step further when considering the costs of items such as an injured person’s clothing, toiletries, and even housing costs. Under plaintiff’s reasoning, because a hospital provided Griffith with clothing while he was institutionalized, defendant should continue to pay for Griffith’s clothing after he is released. The same can be said of Griffith’s toiletry necessities and housing costs. While Griffith was institutionalized, defendant paid his housing costs. Should defendant therefore be obligated to pay Griffith’s housing payment now that he has been released when Griffith’s housing needs have not been affected by his injuries? [Id. at 537-539 (emphasis in final paragraph added).]
It is crucially important for our purposes here to keep in mind all the language in the rhetorical question regarding housing needs posed in this passage from Griffith, which demands a determination whether the housing needs at issue are “affected by [one’s] injuries.” Griffith expressly overruled Reed on the basis that the rule announced in Reed was contrary to MCL 500.3105(1) and MCL 500.3107(l)(a). Id. at 540. As indicated earlier, the rule announced in Reed was that in cases “in which an injured person is unable to care for himself and would be institutionalized were a family member not willing to provide home care, a no-fault insurer is liable to pay the cost of maintenance in the home.” Reed, 198 Mich App at 453. However, consistent with Griffith and its language addressing housing needs unaffected by injuries, room and board or living expenses are not necessarily precluded from being covered by insurance benefits in their entirety in every case, such as when the expenses, because of or as affected by the injuries, go beyond or are different from what normally could be expected. Reed in no way indicated that the claimed room and board or living expenses were atypical, unusual, or out of the ordinary; rather, they were ordinary expenses typically associated with living in the home. Id. at 446 (trial court stated that benefits would not be recoverable because the “expenses would have been incurred regardless of the injury sustained”), 450 n 3 (proposed amended complaint sought reasonable accommodation expenses), and 453 (Court disagreed that “expenses that are as necessary for uninjured persons as they are for injured persons are not allowable expenses”).
At its core, the holding in Griffith requires a court to determine whether expenses would not have been incurred but for the accident and resulting injuries. Stated otherwise, the question is whether the expenses would have been incurred in the course of an ordinary life unmarred by an accident. And if they would have been incurred, like the ordinary food costs at issue in Griffith, a causal connection between the expenses and the accidental bodily injury would be lacking and it could not be said that the act of providing products, services, and accommodations was necessitated by the accidental bodily injury. No-fault benefits would not be payable absent a link between the expenses and the injury. But if the expenses were atypical and arose solely because or out of the accidental bodily injury, a causal connection between the expenses and the injury would exist and it could be said that the act of providing products, services, and accommodations was necessitated by the accidental bodily injury. Payment of no-fault benefits to cover the expenses would be mandated in that situation.
The analysis necessarily entails a comparison between costs associated with circumstances as they actually exist, which includes reflection on a life scarred and affected by injuries sustained in an automobile accident, and costs associated with a life unscarred by injuries, which would include examination of circumstances that existed preinjury or that would in all likelihood have transpired absent the injury. Whether injured or uninjured, Michael would need, like each of us, daily sustenance and housing, thereby incurring all associated costs. The concept that defendant fails to grasp is that, even though Michael or his parents would have borne expenses for Michael’s necessities had Michael not been injured, the expenses currently being incurred as a result of his injuries are, in all likelihood, more than would ordinarily have been incurred in an accident-free life.
An initial question that begs asking as part of the “but for” analysis concerns whether you take into consideration the fact that it is Michael’s parents who are providing “services” and “accommodations” to Michael. Consistent with Supreme Court’s tendency to use dictionaries to determine the plain meaning of statutory terms undefined in the statutory scheme, People v Morey, 461 Mich 325, 330-331; 603 NW2d 250 (1999), “accommodations” is defined as “lodging” or “food and lodging” and services encompass “act[s] of helpful activity . . . .” Random House Webster’s College Dictionary (2001). Given that Michael is 25 years old, plaintiffs are not under any legal obligation as parents to pay for his food, lodging, accommodations, support, or services or to otherwise pay for his care. See generally the Support and Parenting Time Enforcement Act, MCL 552.601 et seq. Had Michael not been injured and were he a healthy 25-year-old man, plaintiffs would likely not be providing any accommodations and ser vices for him and, at a minimum, they absolutely would have no legal obligation to so provide.
A medical or nursing home facility that provides institutionalized care is likewise not obligated to provide accommodations and services, but once an undertaking is made and a patient is admitted under contract, accommodations and services are provided, as well as products, and the no-fault insurer is required to pay benefits to cover the associated costs. However, under the analysis in Griffith, especially considering its rejection of Reed, a case with many parallels to the case at bar, it appears that parents providing accommodations and services for an injured adult child, although under no legal obligation to do so, are not afforded no-fault insurance benefits to the full extent of the accommodations and services provided. This is so despite the fact that, in our opinion, there is indeed a causal connection between the accidental bodily injury and the accommodations and services. Again, plaintiffs are providing Michael with accommodations and services, which, but for the accident, they would likely no longer be providr ing, given his age. But in contemplating whether an expense for a particular item would have been incurred even without the accident, Griffith suggests that it matters not who would have incurred the expense in an accident-free life, just that it would have ordinarily been incurred. Thus, for example, all costs attributable to Michael for utilities on the basis of his usage would not be recoverable because, had Michael not been injured, his activities would nonetheless have generated some level of expenses for utility usage regardless of who ultimately paid the utility bills. Under Griffith, an examination is required to discern the portion of the utility costs attributable to Michael that is causally connected to his injuries, which would be utility usage that goes beyond typical or ordinary usage, i.e., usage “affected by his injuries.” Griffith, 472 Mich at 539 (emphasis added). In other words, a court must allocate not the portion of a utility bill attributable to the injured person’s usage, but that portion of the bill attributable to the injured person’s usage that is only occurring because of the injuries, e.g., power to operate Michael’s ventilator. Making these calculations and ascertaining the proper allocations might prove difficult; however, Griffith requires such an undertaking.
We now turn to the expenses for which plaintiffs seek no-fault benefits, applying the principles enunciated. It is important to first identify the expenses at issue and those not at issue in this case. Defendant concedes that Michael is in need of “24 hour per day nursing services, widened hallways and elevators ... , wheelchairs, ventilators, specially equipped beds, and other such amenities that [he] needs as a result of the injuries” and that “[s]uch expenses are causally related to [the] automobile accident and are covered under no-fault insurance.” Defendant also concedes that the expenses associated with the backup generator should be and are fully covered by insurance, as are television monitoring and medical alert pendant expenses. Defendant challenges, however, the awarding of insurance benefits to cover, even partially, property taxes, standard utility bills, homeowner’s insurance, home maintenance costs, telephone bills, dumpster expenses, elevator inspection costs, home security system expenses, cleaning stipends paid to Mrs. Hoover for time spent cleaning Michael’s area of the home, and snow removed.
It is necessary to carefully scrutinize the expenses at issue and take into account factors that have a bearing on those expenses.
With respect to property taxes, it is indisputable that plaintiffs’ property taxes are affected by the value of the home, see the General Property Tax Act, MCL 211.1 et seq., and it is likely that the value of the home is enhanced by certain structures and amenities therein, architectural designs, and square footage that are causally connected to, and necessitated by, Michael’s accidental bodily injuries, thereby inflating the amount of property taxes owed. In regard to homeowner’s insurance, it is again, in our opinion, indisputable that premiums paid for that insurance are affected by the value of the home, which in turn is affected by the home’s structural design, amenities, and square footage, some of which are attributable to Michael’s injuries, and the home’s features in and of themselves can affect the insurance premiums. With respect to maintenance costs, some portion of those costs are likely to be causally connected to, and necessitated by, Michael’s injuries, going beyond ordinary maintenance expenses related to housing a healthy adult child, when many features of the home are atypical in order to suit Michael’s needs. On the issue of the utility bills, touched on earlier, they are likely higher than would normally be expected, considering the extra electricity needed to power, for example, the ventilator. If Michael were a healthy young man living in his parents’ home, there would be no extra cost to power a ventilator. Additionally, the mere size of the home, some of which can be attributed to features needed to accommodate Michael, would have a bearing on the cost to heat the home. We agree with defendant that plaintiffs would be required to pay taxes, utilities costs, homeowner’s insurance premiums, and maintenance expenses irrespective of Michael’s injuries; however, these costs are certainly inflated beyond what would normally be expected because of Michael’s accidental bodily injuries.
With respect to the ADT security system, Mr. Hoover indicated that it is used for crime prevention and to help the nurses feel safer. Given that nurses would be unnecessary but for the accident and considering that the home contains expensive medical equipment related to Michael’s care, it could be surmised that some of the costs associated with the security system are causally connected to, and necessitated by, Michael’s accidental bodily injuries. We would also not be surprised if the cost of the system is greater because of the immense size of the home necessitated by features constructed to properly care for Michael. Furthermore, Mr. Hoover testified that a “panic button” for Michael was part of the ADT security system and included in the monthly bill for the system.
In regard to elevator inspection costs, the fact that plaintiffs’ house even has an elevator is directly connected to, and necessitated by, Michael’s injuries and, therefore, inspection and operational expenses can also be attributed to accidental bodily injury. Indeed, as quoted earlier, defendant concedes that Michael is in need of “widened hallways and elevators.” Michael’s need for basement access during weather emergencies by means of an elevator specifically arises because of his injuries, and defendant apparently believes that Michael has another means to access the basement during a tornado or other weather emergency or that he need not be given a safe haven. Defendant’s position is necessarily and implicitly premised on the illogical conclusion that plaintiffs would have had an elevator in their home had Michael never been injured. Furthermore, Mr. Hoover testified that a doctor ordered the elevator, and he also stated that the elevator is used to give Michael access to the basement when the family gathers down there to watch television or otherwise spend time together socially. Inspecting the elevator is a normal safety precaution, and associated costs are covered by no-fault benefits.
With respect to the dumpster, Michael alone generates numerous bags of garbage a day because of the nature of his injuries and their attendant care, which goes beyond the amount of garbage that would typically be generated by an adult child who is not afflicted with the injuries suffered by Michael. Mr. Hoover testified that most of the garbage that goes into the dumpster is generated by Michael and that without a dumpster, garbage would pile up all over the place and blow into the street. Absent Michael’s injuries, no dumpster would be necessary. At first glance, allocating the full amount of the dumpster cost to Michael would appear improper because plaintiffs also use the dumpster for their waste and, even if injury-free, Michael would generate some waste. However, this issue is somewhat analogous to the food expense issue in Griffith. Just as daily sustenance can be accomplished by eating an ordinary diet or a special diet, garbage removal can be accomplished by using a standard trash can set out at the curb or by use of a dumpster, something typically relegated to use by restaurants and businesses because of the quantity of waste generated. Consistent with our thoughts expressed in footnote 5 of this opinion, Griffith indicates that special diet food would be a fully covered expense regardless of how it compares to the cost of daily sustenance ordinarily incurred. Griffith, 472 Mich at 537-538. Thus, even though some garbage removal costs can be attributed to plaintiffs, along with costs Michael would have ordinarily incurred in an accident-free life, the dumpster, like special diet food, is fully covered because it was necessitated by accidental bodily injury.
On the issue of benefits to cover stipends for Mrs. Hoover related to cleaning Michael’s living area, parents of a healthy adult child might clean up after the child, they might make the child clean up after himself, or the parents and child might share the cleaning duties. What is abundantly clear here is that Michael’s incapacity does not allow him to clean up after himself and that the needed cleaning goes beyond cleaning that would ordinarily be expected. Part of Mrs. Hoover’s cleaning time is spent taking care of messes created as the nurses provide care for Michael, which, but for the accident, would not be necessary. She also testified that she cleans daily to make sure that Michael’s room is “dust free,” which is understandable given Michael’s susceptibilities to infection or illness. We conclude that Mrs. Hoover is entitled to be compensated for any time spent cleaning areas used by Michael and his caregivers that goes beyond the time for cleaning that one would ordinarily expect to perform. With respect to snow removal costs, Mr. Hoover testified that part of the need to clear the driveway as often as it is done is because of the fact that shift nurses are coming and going around the clock and ingress or egress is required. Any costs greater than those that would regularly be spent on snow removal are to be attributed to Michael’s needs.
In regard to telephone bills, the evidence was unclear, such that we cannot render any assessment of the issue.
We conclude that a remand is proper for the parties to submit additional evidence on each of the expenses remaining at issue in order to give them an opportunity to properly present arguments under the analytical framework outlined here and as required by Griffith. At the time of the hearing on plaintiffs’ motion to increase benefits, during which the parties and court agreed to have the case decided on documentary evidence submitted to the court, Griffith had not yet been decided. Moreover, the approach taken by both parties was to have the court simply allocate the expenses, across the board, on the basis of the percentage of the home devoted to Michael’s use, which would then be multiplied by the particular bill covering the entire home. The parties disagreed on the percentage of the home devoted to Michael’s use, and that was the focus during much of the litigation below. Plaintiffs did indeed submit bills, statements, and other evidence of the expenses. We conclude that remand for further development of the record under Griffith guidelines is proper.
We do agree with defendant that the 28 percent allocation ordered by the trial court was not legally sound, and it is inconsistent with our analysis, although the court’s decision was understandable from a practical standpoint considering the difficulties in making technical allocations for each item of cost and the desire to simplify matters. Despite the difficulties in making the necessary assessments, we reverse with respect to the expenses that were given a 28 percent allocation and remand the case to the trial court in order for the court to entertain additional evidence relevant to the approach dictated by Griffith and to rule accordingly. For purposes of the remand, we emphasize that although this opinion indicates that there is a likelihood that the various expenses at issue are causally connected to Michael’s injuries to some degree, the trial court is to render its own judgment on each expense on the basis of the evidence presented. On the claimed expenses for which the trial court awarded 100 percent of the costs, we find no error in regard to the backup generator, television monitoring system, medical alert pendant, elevator inspections, and dumpster. Thus, we affirm that part of the trial court’s ruling. With respect to the cleaning services performed by Mrs. Hoover and the snow removal expenses, no-fault benefits are owing only if the snow removal and time spent on cleaning are causally connected to Michael’s injuries, which matters the trial court must resolve on remand.
On the issue of attorney fees, defendant did unreasonably refuse to pay or delay payments of benefits for expenses associated with the backup generator, television monitoring system, medical alert pendant, dumpster, and elevator inspections. Thus, attorney fees are recoverable to the extent that they relate to benefits for those claimed expenses. MCL 500.3148(1); Attard, 237 Mich App at 317. Penalty interest under MCL 500.3142(2) is also appropriate with respect to those same items. Attard, 237 Mich App at 319-320. The other items of expense need further review before deciding the appropriateness of additional attorney fees and penalty interest. At this time, we see no basis to award defendant attorney fees under MCL 500.3148(2) for a foundationless excessive or fraudulent claim on plaintiffs’ part. To the extent that our conclusions on attor ney fees and penalty interest are consistent with the trial court’s order, we affirm.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Fitzgerald, J., concurred.
The court included within this cost the expenses associated with the well, septic system, roof, structural upkeep of the home, and general maintenance and repair.
MCL 500.3107(1)(a) provides that PIP benefits are payable for “[alllowable expenses consisting of all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person’s care, recovery, or rehabilitation.”
We encourage our Supreme Court to revisit and reconsider its decision in Griffith. See People v Mitchell, 428 Mich 364, 370; 408 NW2d 798 (1987) (stating that the Court of Appeals may properly express its belief that a Supreme Court opinion was incorrectly decided).
MCL 500.3105(1) provides, in pertinent part, that “[u]nder personal protection insurance an insurer is hable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle ....”
We note that Griffith indicated that if Mr. Griffith had been required to eat special diet food, no-fault benefits would have covered those food costs. Griffith did not have to address whether there would have needed to be any adjustments in benefits on consideration of the cost of the diet food when compared to the cost of ordinary food. For example, if it cost $15 a day to feed a person preinjuiy, and if the daily cost of food on a special diet following the accident were still $15 a day, would a $15 daily no-fault benefit have to be paid or would no benefit be owing? Griffith suggests that a $15 benefit would still need to be paid.
In Griffith, it was an elderly, married couple who sought insurance benefits for food costs. The couple would have together borne these costs regardless of the accident. The factual setting is different in this case because plaintiffs are caring for an adult child who, most likely, would otherwise be out on his own and bearing the costs of housing himself, although we cannot say that with 100 percent certainty. Ultimately, this distinction does not appear to be relevant under Griffith, especially given its treatment of Reed.
Mr. Hoover stated that “you could get a pickup truck load in one day of Michael’s stuff....” He testified that about 80 percent of the garbage in the dumpster comes from Michael.
“[W]e long ago recognized that family members should be compensated for the services they provide at home to an injured person in need of care.” Bonkowski v Allstate Ins Co, 281 Mich App 154, 167; 761 NW2d 784 (2008). | [
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Per Curiam.
Plaintiff, New Freedom Mortgage Corporation, appeals as of right the trial court’s order dismissing its claims against defendant/cross-defendant Crystal Solomon. Plaintiff also challenges the order denying its motion for summary disposition and granting summary disposition in favor of defendant/cross-plaintiff, Globe Mortgage Corporation (Globe), and defendants Commonwealth Land Title Insurance Company (Commonwealth) and Gerald J. Chastain, and the order granting Commonwealth, Globe, and Chastain case evaluation sanctions. We affirm.
I. BASIC FACTS AND PROCEEDINGS
Plaintiff, who is in the business of originating and purchasing residential mortgage loans, entered into a loan purchase agreement with Globe, who is in the business of originating and brokering residential mortgage loans. Globe originated a loan to Solomon regarding a residential property located on Burns Street in Detroit, and plaintiff funded the loan. Globe also originated a loan to defendant/cross-defendant Douglas Bowers regarding a residential property on Runyon Street in Detroit, and plaintiff funded this loan as well. The issues presented in this appeal arise from these two transactions. Commonwealth, a company that provides title insurance, issued closing protection letters to plaintiff in connection with title insurance it issued regarding the Solomon and Bowers loans. Defendant Scott W. Kissner Title & Escrow Services, Inc. (Kissner), was the issuing agent. The title insurance policies were issued to Impac Funding Corporation (IFC), to whom plaintiff assigned both loans.
Defendant/cross-defendant Marco Welch worked for Globe as a loan officer, and defendant/cross-defendant Napolean Howard is Solomon’s stepbrother. Howard contacted Welch on Solomon’s behalf for the purpose of obtaining financing for an investment property for Solomon. At Welch’s request, Chastain conducted an appraisal of the Burns Street property and estimated that it was worth $411,000. The purchase price for the Burns Street property was $407,000. At the closing, rather than providing funds, Solomon received a check for $44,612.30 as part of a rehabilitation agreement with the sellers. Solomon indicated that she intended to occupy the home, but Welch entered into a land contract •with her to purchase the property, and he occupied the home. Solomon defaulted on her loan, and IFC foreclosed on the property. IFC then purchased the Burns Street property, and an appraisal estimated the property’s value at $175,000. IFC paid $199,300 for repairs and sold the property for $420,000. IFC notified plaintiff of its obligation to repurchase the Solomon loan, and plaintiff paid IFC.
Bowers indicated that he intended to occupy the home on the Runyon Street property as his primary residence, but he actually purchased the property for his son, who would not have qualified for financing. The purchase price for the Runyon Street property was $80,000. Bowers defaulted on his loan, and Bankers Trust, a trustee related to IFC, foreclosed on the property. IFC purchased the property, and it was sold for $20,000. Plaintiff indemnified IFC for $47,333.98.
In its complaint, plaintiff sought reimbursement for the amounts it paid IFC, alleging that Globe violated the loan purchase agreement and Commonwealth violated its closing protection letters. Plaintiff also asserted fraud claims against Globe, Chastain, and several other defendants and claimed that its loss resulted from the fraudulent or dishonest acts or omissions of Kissner. Chastain, plaintiff, Globe, and Commonwealth sought summary disposition. The trial court granted Chastain, Commonwealth, and Globe summary disposition. The trial court held that an indemnity provision in the loan purchase agreement between plaintiff and Globe applied and Commonwealth, through Kissner, had violated the closing protection letter regarding the Solomon loan. The. trial court held that there was a genuine issue of material fact regarding whether Chastain was negligent in performing his appraisal. However, with respect to Globe and Commonwealth, the trial court reasoned that plaintiff had suffered no damages because IFC had tendered a “full credit bid,” which satisfied the debt. With regard to Chastain, the trial court held that the full credit bid rule barred the action because there was no evidence that Chastain had committed fraud.
II. STANDARDS OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Zsigo v Hurley Medical Ctr, 475 Mich 215, 220; 716 NW2d 220 (2006). When reviewing a decision on a motion for summary disposition pursuant to MCR 2.116(0(10), this Court considers the affidavits, pleadings, depositions, admissions, and other evidence in the light most favorable to the party opposing the motion. Zsigo, supra at 220. Summary disposition is appropriately granted if, except for the amount of damages, there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. This Court reviews de novo questions of law, including issues regarding the existence and interpretation of a contract. Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006).
III. PULL CREDIT BID RULE
Plaintiff argues that the trial court erred in granting Globe, Commonwealth, and Chastain summary disposition in reliance on the full credit bid rule, which dictated that plaintiff had suffered no damages. We disagree.
When a lender bids at a foreclosure sale, it is not required to pay cash, but rather is permitted to make a credit bid because any cash tendered would be returned to it. Alliance Mortgage Co v Rothwell, 10 Cal 4th 1226, 1238-1239; 44 Cal Rptr 2d 352; 900 P2d 601 (1995). If this credit bid is equal to the unpaid principal and interest on the mortgage plus the costs of foreclosure, this is known as a “full credit bid.” Id. at 1238. When a mortgagee makes a full credit bid, the mortgage debt is satisfied, and the mortgage is extinguished. Bank of Three Oaks v Lakefront Properties, 178 Mich App 551, 555; 444 NW2d 217 (1989). MCL 600.3280, which addresses deficiencies, provides, in pertinent part, as follows:
When, in the foreclosure of a mortgage by advertisement, any sale of real property has been made after February 11, 1933, or shall be hereafter made by a mortgagee, trustee, or other person authorized to make the same pursuant to the power of sale contained therein, at which the mortgagee, payee or other holder of the obligation thereby secured has become or becomes the purchaser, or takes or has taken title thereto at such sale either directly or indirectly, and thereafter such mortgagee, payee or other holder of the secured obligation, as aforesaid, shall sue for and undertake to recover a deficiency judgment against the mortgagor, trustor or other maker of any such obligation, or any other person liable thereon, it shall be competent and lawful for the defendant against whom such deficiencyjudgment is sought to allege and show as matter of defense and set-off to the extent only of the amount of the plaintiffs claim, that the property sold was fairly worth the amount of the debt secured by it at the time and place of sale or that the amount bid was substantially less than its true value, and such showing shall constitute a defense to such action and shall defeat the deficiency judgment against him, either in whole or in part to such extent.
In its complaint, plaintiff alleged fraud, misrepresentation, and breach of contract, and in its response to Chastain’s motion for summary disposition, it asserted that Chastain had been negligent. Fraud and misrepresentation are similar and require proof that
“(1) defendants made a material representation; (2) it was false; (3) when defendants made it, defendants knew that it was false or made recklessly without knowledge of its truth or falsity; (4) defendants made it with the intent that plaintiffs would act upon it; (5) plaintiffs acted in reliance upon it; and (6) plaintiffs suffered damage.” [Mitchell v Dahlberg, 215 Mich App 718, 723; 547 NW2d 74 (1996), quoting Arim v Gen Motors Corp, 206 Mich App 178, 195; 520 NW2d 695 (1994).]
Damages are an element of a breach of contract action. Alan Custom Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003); Shippey v Madison Dist Pub Schools, 55 Mich App 663, 668; 223 NW2d 116 (1974). The elements of a negligence claim are “duty, breach of that duty, causation, and damages.” Brown v Brown, 478 Mich 545, 552; 739 NW2d 313 (2007). Therefore, if there are no damages, it is appropriate to grant sum mary disposition on fraud, misrepresentation, breach of contract, and negligence claims.
The trial court relied on Smith v Gen Mortgage Corp, 402 Mich 125, 126-127; 261 NW2d 710 (1978), in which the mortgagors were in default and the property was totally destroyed by a fire. After the fire, the mortgagee’s assignee bid the full amount of the outstanding debt plus costs and fees. Id. at 127. The Court relied on Whitestone S & L Ass’n v Allstate Ins Co, 28 NY2d 332, 336; 321 NYS2d 862; 270 NE2d 694 (1971), in which the court held that the mortgagee’s full credit bid barred recovery by the mortgagee under an insurance policy when a fire partially destroyed the mortgaged property before the foreclosure sale. Our Supreme Court similarly held that the mortgagee was not entitled to the insurance proceeds. However, because this was a previously unannounced rule, the Court did not apply it to the parties in that case. Smith, supra at 129-130.
This Court has applied the full credit bid rule in several cases regarding similar insurance proceeds since Smith. In Heritage Fed Savings Bank v Cincinnati Ins Co, 180 Mich App 720, 724; 448 NW2d 39 (1989), the Court held that the mortgagee was not entitled to fire insurance proceeds when the fire occurred before the foreclosure and the mortgagee purchased the property for an amount greater than the debt at the foreclosure sale. The Court reasoned that the debt had been satisfied and that the Smith rule was intended to prevent a mortgagee from receiving a double recovery. Id. at 725-726. In Emmons v Lake States Ins Co, 193 Mich App 460, 462-463; 484 NW2d 712 (1992), the mortgagee bid the full amount of the outstanding principal and accrued interest at a foreclosure sale following a fire that partially destroyed the secured property. The Court applied Smith and stated that, “[generally, a mortgagee is not entitled to insurance proceeds when a loss occurs before a foreclosure sale in which the mortgagee purchases for a bid which extinguishes the mortgage debt.” Id. at 463. The mortgagee attempted to claim the insurance proceeds under the mortgagor’s assignment of the insurance proceeds, but the Court rejected this argument because the debt had not survived the foreclosure and there was no deficiency. Id. at 463-465.
In Janower v F M Sibley Lumber Co, 245 Mich 571, 572; 222 NW 736 (1929), the mortgagee purchased the secured property at a foreclosure sale for the full amount of principal, interest, and costs. The mortgagee sought the appointment of a receiver to prevent waste, i.e., for the performance of necessary repairs and the payment of unpaid taxes. Id. at 573. Our Supreme Court held:
The rule of caveat emptor applies with full force to this judicial sale. The petitioner, purchaser, took “subject to defects, liens, and incumbrances of which he has notice or of which he could obtain knowledge under his duty to inform himself.” It purchased subject to the very tax liens of which it complains, and the premises in the condition of which it complains, and it bid the full amount due. There can be no decree for deficiency. [Id. (citation omitted).]
See also Pulleyblank v Cape, 179 Mich App 690, 696; 446 NW2d 345 (1989).
In Bank of Three Oaks, supra at 553, the lender bid the full amount of the mortgage plus costs and fees at a foreclosure sale. The lender attempted to recover the amount of interest on the debt that accrued during the redemption period, as well as insurance, taxes, and fees. Id. at 554. This Court held that the lender’s purchase for the full amount of indebtedness extinguished the debt and mortgage. Id. at 555. The lender also at tempted to recover this amount from several individuals who had executed a guarantee. Id. at 554. The Court held that the guarantors were not liable because the borrower had never incurred a liability. Id. at 558-559. The Court stated that the expenses had arisen from the decision to purchase the property at the foreclosure sale, which was wholly independent from the original transaction covered by the guarantee. Id. at 559. Further, the lender’s full credit bid meant that there was no deficiency. Id. at 561.
In Chrysler Capital Realty, Inc v Grella, 942 F2d 160, 161-162 (CA 2, 1991), the mortgagee purchased the secured property at a foreclosure sale for the amount of the entire debt, including accrued interest and costs. The mortgagee then sued the mortgagor and Mabon, Nugent & Co., a partnership that owned 100 percent of one of the limited partners in the mortgagor, and who had also arranged the mortgage loan between the mortgagor and the mortgagee. Id. at 161. The mortgagee sought to recover damages because the fair market value of the property was less than the amount of its full credit bid, arguing that Mabon had fraudulently induced it to enter into the loan. Id. at 162. The United States Court of Appeals for the Second Circuit applied Smith, Pulleyblank, and Bank of Three Oaks, and declined to create an exception to the full credit bid rule where the underlying mortgage transaction was induced by fraud. Id. at 163. Although this Court is not bound by the decisions of the lower federal courts, this decision is persuasive. Greater Bible Way Temple of Jackson v City of Jackson, 478 Mich 373, 396; 733 NW2d 734 (2007).
Plaintiff relies on several out-of-state cases where the courts declined to apply the full credit bid rule to bar actions against nonborrower third parties. The leading case is Alliance Mortgage, supra at 1232-1235, in which the lender madé a full credit bid for secured properties at a foreclosure sale, and it sued its real estate appraiser and broker, title insurers (its fiduciaries), and others, alleging that they had fraudulently induced it to make certain loans to fictitious buyers. After it acquired the properties, the lender learned that the true market value was less than the value that had been represented to it and less than the balance of the mortgage, requiring the lender to perform repairs and incur other costs. Id. at 1232-1233. The California Supreme Court acknowledged that the lender generally has a burden to make an informed bid. Id. at 1246. However, given the lender’s alleged fiduciary relationship with the defendants and the fact that it did not discover the alleged fraud until after the foreclosure sale, the court held that the full credit bid rule did not, as a matter of law, bar its claims. Id. at 1245-1248, 1249-1251. Rather, the court stated that the lender could recover against the defendants to the extent that their fraudulent misrepresentations caused its full credit bids and that the lender’s reliance on these misrepresentations was appropriate, given the fiduciary relationship, or was not otherwise manifestly unreasonable. Id. at 1246-1248. Given that there are no allegations of a fiduciary relationship between plaintiff and Globe, Commonwealth, or Chastain, Alliance Mortgage is distinguishable.
At least one California court after Alliance has applied the full credit bid rule to nonborrower third parties where fraud was not alleged. See Pacific Inland Bank v Ainsworth, 41 Cal App 4th 277, 279-280, 283-284; 48 Cal Rptr 2d 489 (1995) (affirming the application of the full credit bid rule to preclude a lender’s recovery against an appraiser for negligence), applying Cornelison v Kornbluth, 15 Cal 3d 590; 125 Cal Rptr 557; 542 P2d 981 (1975). In Pacific Inland Bank, supra at 283-284, the court reasoned that the lender could have taken appropriate steps to determine the property’s value before making its full credit bid and bears the burden of making an informed bid. Although Alliance and Pacific Inland Bank are not binding on this Court, they are instructive. Further, Chrysler Capital Realty, supra, supports the conclusion that the full credit bid rule bars fraud actions. Michigan caselaw supports these conclusions.
A mortgagee purchases subject to the condition of the property, and the rule of caveat emptor applies. Janower, supra at 573; Pulleybank, supra at 696. Further, as a purchaser at the foreclosure sale, IFC and Bankers Trust stood “in the same position as any other purchaser.” Id. at 694. If a third party had bid and purchased the properties for the full amount of the mortgages and costs, IFC and Bankers Trust would have received this amount and applied it to the debts. If the third party then discovered that the properties were worth less than the full bids, it would have no recourse against Globe, Commonwealth, or Chastain. The Smith rule was intended to prevent a mortgagee from receiving a double recovery. Heritage Fed Savings Bank, supra at 725-726. Although plaintiff did not actually receive the payments at the foreclosure sales, it assigned both mortgages to IFC for valuable consideration. Therefore, it has already received compensation for the loans. As our Supreme Court has stated, “ ‘To allow the mortgagee, after effectively cutting off or discouraging lower bidders, to take the property — and then establish that it was worth less than the bid— encourages fraud, creates uncertainty as to the mortgagor’s rights, and most unfairly deprives the sale of whatever leaven comes from other bidders.’ ” Smith, supra at 129, quoting Whitestone S & L Ass’n, supra at 337 (emphasis omitted). We therefore conclude that the trial court properly applied the full credit bid rule to bar plaintiffs claims against Globe, Commonwealth, and Chastain, and did not err by granting summary disposition.
IV LOAN PURCHASE AGREEMENT
Plaintiff also argues that the trial court erred by applying the full credit bid rule to prevent recovery under the loan purchase agreement between plaintiff and Globe. We disagree.
In particular, plaintiff relies on the indemnification provision. The trial court found that the indemnification provision was broad enough to include acts of fraud committed by Welch, an undisputed employee of Globe. Indemnity agreements are construed in the same manner as contracts generally. Badiee v Brighton Area Schools, 265 Mich App 343, 351; 695 NW2d 521 (2005). The indemnification agreement contained in the loan purchase agreement provides, in relevant part:
Broker agrees to indemnify defend and hold NEW FREEDOM MORTGAGE CORPORATION harmless from and against any and all claims, losses, costs, or damages, including but not limited to reasonable attorneys’ fees and expenses which
a. arise out of any act or omission of Broker or any employee or agent of Broker;
*
d. arise out of or in connection with any falsity, incorrectness, or incompleteness in any material respect of any representation or warranty made by Broker herein[.]
When construing a contract, the goal is to ascertain and enforce the parties’ intent on the basis of the plain language of the contract. Real Estate One v Heller, 272 Mich App 174, 178; 724 NW2d 738 (2006). The loan purchase agreement requires Globe to indemnify plaintiff for any losses or damages arising out of any act or omission of Globe’s employees or agents. Therefore, Globe would be liable for Welch’s acts or omissions, regardless of whether it was aware of them. However, as discussed in part II of this opinion, the full credit bid rule bars recovery because plaintiff did not incur any damages. Although it claims that it suffered “actual damages,” these damages were a direct result of IFC’s full credit bid and there is no evidence that IFC’s decision to make the full credit bid arose out of Welch’s acts or omissions.
We are mindful of the principle of freedom of contract, as discussed by our Supreme Court:
The rights and duties of parties to a contract are derived from the terms of the agreement. As this Court has previously stated, “The general rule [of contracts] is that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts.” Under this legal principle, the parties are generally free to agree to whatever they like, and, in most circumstances, it is beyond the authority of the courts to interfere with the parties’ agreement. Respect for the freedom to contract entails that we enforce only those obligations actually assented to by the parties. [Wilkie v Auto-Owners Ins Co, 469 Mich 41, 62-63; 664 NW2d 776 (2003) (citations omitted).]
Nevertheless, the full credit bid rule overrides the indemnity provision because a mortgagee purchases subject to the condition of the property, and a lender who makes a full credit bid stands “in the same position as any other purchaser.” Pulleyblank, supra at 694, and see Janower, supra at 573, and Pulleyblank, supra at 696.
Plaintiff also contends that other provisions contained in a separate part of the loan purchase agreement entitled “Representations and Warranties as to Mortgage Loans” apply because Welch’s knowledge of the forgeries and falsities should be imputed to Globe. The trial court held that the other warranties contained in the loan purchase agreement did not apply because there was no evidence that Globe knew of Welch’s actions. The other warranties on which plaintiff relies are as follows:
1. To the best knowledge and belief of Broker, the application has been duly executed, and all of the documents and records relating to the Mortgage Loan are genuine, bona fide and what they purport to be, do not contain forgeries or unauthorized signatures.... The documents and records do not fail to disclose any facts which could be material or which would make such information misleading.
4. There are no undisclosed agreements between the borrower and Broker concerning any facts or conditions, whether past, present or future, which might in any way affect the obligations of the borrower under the Mortgage Loan documents.
5. Broker has complied with its covenants in Section 4 of the Loan Purchase Agreement, and has disclosed to NEW FREEDOM MORTGAGE CORPORATION all facts of which Broker has notice which might have any influence upon the credit decision by NEW FREEDOM MORTGAGE CORPORATION, including without limitation, any information in any way communicated by Borrower or others which might not be disclosed in the file documentation. Broker will promptly notify NEW FREEDOM MORTGAGE CORPORATION of any occurrence, act or omission of which Broker receives knowledge or notice, which occurrence, act or omission may materially affect Broker, the Mortgage Loan, the property securing the Mortgage Loan, or the Borrower.
13. To the best knowledge and belief of Broker, all verifications of employment, deposits, down payment and credit and all names, addresses, amounts, credit information and statements of fact contained in the Mortgage Loan file, and all of the documents submitted in support of the Mortgage Loan are true, correct and bona fide and authentic and are what they purport to be. The Broker has not, and has no knowledge or reason to believe that anyone else had, given anything of value to the appraiser of the property that is collateral for the Mortgage Loan, to affect the appraised value of the subject property, and the appraisal is true, accurate, correct, bona fide and authentic in what it purports to be. [Emphasis added.][ ]
Again, we glean the parties’ intent from the plain language of the contract. Real Estate One, supra at 178. In §§ 1 and 13, Globe only warrants those items of which it has knowledge and belief. In § 5, Globe only warrants those facts of which it has notice. Plaintiffs presented no evidence that Globe, through an alleged owner, Basil Yaldo, or its president, Walter A. Yaldo, was aware or had notice of Welch’s actions. In § 4, Globe warrants that there are no undisclosed agreements between the buyer (Solomon) and Globe. Although there was a land contract between Solomon and Welch, plaintiff presented no evidence that Globe was a party to this transaction, approved of this transaction, or even had knowledge of this transaction. Globe is not liable to plaintiff under any of these provisions.
Plaintiff claims that Welch’s knowledge of his acts should be imputed to Globe. Plaintiff is correct that notice by an agent is generally imputed to the principal. Turner v Mut Benefit Health & Accident Ass’n, 316 Mich 6, 21; 24 NW2d 534 (1946); Sheridan v Forest Hills Pub Schools, 247 Mich App 611, 623; 637 NW2d 536 (2001). However, plaintiff overlooks that an employer is only vicariously liable for the acts its employees commit while performing a duty within the scope of employment, and an employer is not hable for “ ‘torts intentionally or recklessly committed by an employee beyond the scope of his master’s business.’ ” Rogers v J B Hunt Transport, Inc, 466 Mich 645, 651; 649 NW2d 23 (2002) (citation omitted). Therefore, it is unlikely that Globe could be vicariously Hable for Welch’s acts, outside the indemnification provision. In any event, as discussed in part III of this opinion, the full credit bid rule bars recovery because plaintiff did not incur any damages.
With respect to the Bowers loan, plaintiff has not presented any. evidence that Globe or any of its employees or agents was aware that he did not intend to occupy the property. Therefore, Globe is not liable to plaintiff under these provisions of the loan purchase agreement.
V. CLOSING PROTECTION LETTERS
Plaintiff argues that the trial court erred in applying the full credit bid rule to prevent recovery under the closing protection letters that Commonwealth issued to plaintiff. We conclude that Commonwealth is not liable to plaintiff under the closing protection letters for Kissner’s violations of plaintiffs closing instructions.
A closing protection letter is typically issued by a title insurance underwriter “[t]o verify the agent’s authority to issue the underwriter’s policies and to make the financial resources of the national title insurance underwriter available to indemnify lenders and purchasers for the local agent’s errors or dishonesty with escrow or closing funds.” 2 Palomar, Title Ins Law, § 20:11. These letters are issued incidentally to title insurance, and they are “to persuade customers to trust their agents, so that their policies can be sold.” Id,., § 20:13. Thus, consideration is given, i.e., the purchase of the insurance policy, and a breach of contract action may be maintained independent of the title insurance policy. Id. The pertinent language of the closing protection letters Commonwealth issued regarding the two properties in this case is as follows:
When title insurance of Commonwealth Land Title Insurance Company is specified for your protection in connection with closings of real estate transactions in which you are to he ... a lender secured by a mortgage (including any other security instrument) of an interest in land, the Company, subject to the conditions and exclusions set forth below, hereby agrees to reimburse you for actual loss incurred by you in connection with such closings when conducted by the Issuing Agent referenced herein (an agent authorized to issue title insurance for the Company), and when such loss arises out of:
1. Failure of the Issuing Agent to comply with your written closing instructions to the extent that they relate to (a) the status of the title to said interest in land or the validity, enforceability and priority of the lien of said mortgage on said interest in land, including the obtaining of documents and the disbursement of funds necessary to establish such status of title or lien, or (b) the obtaining of any other document, specifically required by you, but not to the extent that said instructions require a determination of the validity, enforceability or effectiveness of such other document, or (c) the collection and payment of funds due you, or
2. Fraud or dishonesty of the Issuing Agent in handling your funds or documents in connection with such closings. [Emphasis added.]
We ascertain the parties’ intent from the plain language of the contract. Real Estate One, supra at 178. Plaintiff contends that Commonwealth is liable for Kissner’s violations of plaintiffs closing instructions. In pertinent part, plaintiffs closing instructions regarding the Solomon loan provided that the attachment to the HUD-1 settlement statement and the application must be fully and properly executed and the maximum cash to close was $47,100. The instructions also required that the HUD-1 settlement statement “must be completed properly and completely. It must reflect all applicable charges, costs, refunds, addresses, and proration dates.”
Scott Kissner, the sole officer and director of Kissner, asserted that Globe, presumably Welch, provided a cashier’s check for $46,387.70 at closing, but this check was never used. Rather, Scott Kissner explained that he believed the check had been presented to convince plaintiff that Solomon had provided these funds, which she never did. Instead, Solomon received a check for $44,612.30 from the sellers through Kissner, as part of a $91,000 rehabilitation agreement with the sellers. The HUD-1 settlement statement for the Solomon transaction indicates that Solomon brought $46,387.70 to the closing and fails to show that she received $44,612.30 from the sellers. On the attachment to the HUD-1 settlement statement, Kissner attested that funds were disbursed in accordance with the HUD-1 settlement statement, but it allowed the loan to close with knowledge of the $91,000 rehabilitation agreement. Although the closing instructions did not prohibit the sellers from giving Solomon money out of their proceeds, Kissner violated the instructions by failing to require Solomon to tender $46,387.70 and failing to properly execute the attachment to the HUD-1 settlement statement.
On Solomon’s loan application, she asserted that she would be occupying the property as her primary residence, which was false. Rather, Welch would be occupying the property pursuant to a land contract with Solomon. Although Kissner was aware of the arrangement between Welch and Solomon two days after the closing, there is no evidence that it was aware of this information at closing. To the contrary, Solomon testified that they did not discuss the property’s being an investment property at the closing. Therefore, this did not constitute a violation of the closing instructions.
Applying the closing protection letter to the facts, any failure on Kissner’s part to comply with plaintiffs closing instructions did not relate to the title or lien under § 1(a) of the closing protection letter. Although the loan application contained a false statement regarding occupancy, Kissner was aware that the HUD-1 settlement statement was inaccurate, and the attachment to the HUD-1 settlement statement was falsely attested, § 1(b) of the closing protection letter provided that Commonwealth was only liable for documents specifically required by plaintiff and that Commonwealth would not be liable for any determination of the “validity, enforceability or effectiveness of such other document. . . .” Therefore, this provision does not trigger liability.
The trial court found that Kissner had violated § 1(c) of the closing instructions by permitting Solomon to leave the closing without tendering $46,387.70. Paragraph 1(c) applies to “the collection and payment of funds due [plaintiff].” These funds were not due plaintiff; rather, Kissner was supposed to collect them and tender them to the sellers. Therefore, Kissner’s violation of the closing instructions does not trigger liability under this paragraph, and Commonwealth was not liable for Kissner’s failure to follow plaintiffs closing instructions.
Pursuant to § 2, Commonwealth is liable for Kissner’s fraud or dishonesty “in handling [plaintiffs] funds or documents in connection with such closings.” Plaintiff presented no evidence that Kissner was aware at closing that Solomon did not intend to occupy the property. Although there were discrepancies in the HUD-1 settlement statement and the attachment to the HUD-1 settlement statement was falsely attested, these documents did not belong to plaintiff. Kissner properly disbursed plaintiffs funds, and there were no shortages. Although Kissner violated the closing instructions and failed to notify plaintiff when it learned that Solomon was not occupying the property, there is no evidence that it committed any fraud or dishonesty in handling funds or documents that belonged to plaintiff. Therefore, § 2 does not apply and Commonwealth is not liable to plaintiff for Kissner’s violations of the closing instructions.
Plaintiff also argues that Commonwealth is liable for Kissner’s violations of plaintiffs closing instructions regarding the Bowers loan. The closing instructions pertaining to the Bowers loan provided, in relevant part, that the attachment to the HUD-1 settlement statement, the occupancy statement, and the application must be fully and properly executed. The instructions also required that the HUD-1 settlement statement “must be completed properly and completely. It must reflect all applicable charges, costs, refunds, addresses, and proration dates.” On his loan application, Bowers falsely asserted that he intended to occupy the property. However, plaintiff failed to present any evidence that Kissner was aware of this falsity, and § 1(b) of the closing protection letter provided that Commonwealth would not be liable for any determination of the “validity, enforceability or effectiveness of such other document. .. .” Given that there is no evidence that Kissner was aware of this misrepresentation, there is no evidence of fraud or dishonesty on Kissner’s part, and § 2 does not apply. Therefore, Commonwealth is not liable to plaintiff under the Bowers closing protection letter.
VI. NEGLIGENCE AND FRAUD
Plaintiff argues that the trial court erred in applying the full credit bid rule to plaintiffs claims against Chastain. Although there is a genuine issue of material fact regarding negligence and fraud or misrepresentation, the full credit bid rule precludes recovery because plaintiff did not suffer any damages.
Plaintiff asserted a fraud or misrepresentation claim against Chastain, and Chastain moved for summary disposition, arguing that there was no evidence of conspiracy. Although he cited no law and provided minimal argument, he provided his affidavit and an affidavit by Garrett Steele, a licensed appraiser, both of which constituted evidence that Chastain complied with industry standards in performing the Burns ap praisal. In response, plaintiff requested summary disposition and argued that Chastain’s failure to follow industry standards constituted prima facie negligence, even though plaintiff had never pleaded negligence. At oral arguments regarding the summary disposition motions, Chastain argued that he had complied with industry standards and there was no evidence of conspiracy. Plaintiff argued that the evidence showed that Chastain was negligent. The trial court found that there was a genuine issue of material fact regarding whether Chastain was negligent, but it concluded that the full credit bid rule could not be defeated because there was no evidence of fraud.
The elements of a negligence claim are “duty, breach of that duty, causation, and damages.” Brown, supra at 552. Duty is “the legal obligation to conform to a specific standard of conduct in order to protect others from unreasonable risks of injury.” Lelito v Monroe, 273 Mich App 416, 419; 729 NW2d 564 (2006). “ ‘In deciding whether a duty should be imposed, the court must look at several factors, including the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.’ ” Id. (citation omitted). Given that Globe hired Chastain to perform the appraisal for a loan that plaintiff was providing to Solomon, Chastain owed plaintiff a duty in performing his appraisal.
There is no evidence to support plaintiffs assertion that Chastain failed to personally inspect the Burns property. He admitted that Jeff Groff, who is not a licensed appraiser, had taken notes and prepared a diagram during the inspection, but Chastain asserted that he had personally entered the property. Chastain did not note any water or termite damage in his report, and plaintiff provided no evidence that there was any such damage on the day Chastain appraised the property. But, an appraisal conducted 20 months later (after the foreclosure) showed extensive termite damage from a prior infestation and other reports prepared 23 months later showed water damage from the roof leaking for a period of years. Further, the rehabilitation agreement between Solomon and the sellers may indicate that the property was worth less than Chastain’s appraised value. Therefore, there was a genuine issue of material fact regarding whether Chastain breached his duty. There may also be a question of fact regarding causation, i.e., whether IFC relied on Chastain’s appraisal in making its full credit bid.
But even if a question of material fact exists regarding duty and causation, as already discussed, damages are also an essential element of a fraud or misrepresentation claim. Mitchell, supra at 723. Because the full credit bid rule dictates that there are no damages, the trial court properly granted summary disposition on this claim.
Plaintiff also challenges the trial court’s ruling regarding fraud, arguing that Chastain had never requested summary disposition on a fraud claim and plaintiff had no notice that it needed to brief this issue. Given that fraud or misrepresentation was the only cause of action pleaded against Chastain, plaintiff had notice that it needed to brief this issue in its response to Chastain’s motion.
VII. CASE EVALUATION SANCTIONS
Plaintiff argues that this Court should vacate the order granting case evaluation sanctions if it reverses the order regarding summary disposition. Given our resolution of the foregoing issues and our decision to affirm the grant of summary disposition in favor of Globe, Commonwealth, and Chastain, this issue is moot.
Affirmed.
While this result may seem harsh, we note that plaintiff obtained a default judgment against Kissner, Howard, and Welch jointly and severally in the amount of $228,747.55. Further, plaintiff obtained a $13,000 settlement against Solomon and a default judgment against Bowers for $47,333.98, in violation of the full credit bid rule.
Regarding the Bowers loan, there is no evidence that Globe or any of its agents or employees committed any acts or omissions triggering this indemnity provision.
In its brief on appeal, plaintiff cites §§ 2, 6, 7, and 13 of the representations and warranties part of the loan purchase agreement, but these sections do not apply to plaintiffs issues regarding forgeries in the loan documents, false information regarding occupancy and funds brought to the closing, the side deal between Solomon and Welch, and falsities in the loan documents. In the statement of facts, plaintiff quotes §§ 1, 4, 5, and 13 of the representations and warranties part of the loan purchase agreement, which is consistent with its brief in support of its motion for summary disposition. Therefore, we analyze this issue based on §§ 1, 4, 5, and 13.
We note that the trial court erroneously referred to this as “Item (3)(b)” in its opinion and order. | [
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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 Butterworth Hosp v Farm Bureau Ins Co, 225 Mich App 244; 570 NW2d 304 (1997). | [
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Per Curiam.
In Docket No. 276511, petitioner Alvan Motor Freight, Inc. (AMF), appeals by right the decision of the Tax Tribunal upholding the position of the Department of Treasury that AMF was not entitled to an exemption from taxation under § 4k of the Use Tax Act, MCL 205.91 et seq., because the AMF trucks operated wholly within Michigan and so were not “used in interstate commerce” within the meaning of the exemption even though carrying freight originating from or destined for locations outside the state. MCL 205.94k(4), formerly MCL 205.94k(2) (see 1996 PA 477 and 1999 PA 70). We reverse.
In Docket No. 276736, the department appeals by right the order of the Court of Claims granting summary disposition to plaintiff United Parcel Service, Inc. (UPS), under MCR 2.116(C)(10) on its claim for a refund of use taxes paid for the years 1998 through 2000 on brown delivery vans purchased outside Michigan but used wholly within the state to carry packages from or destined for other states. On the basis of United States Supreme Court precedent, the Court of Claims rejected the department’s position that UPS was not entitled to the exemption because its brown delivery vans did not cross state lines. We affirm.
The common issue in these consolidated appeals is whether the “rolling stock” of AMF and UPS that never leaves the state of Michigan, but does carry freight originating from or destined for locations outside the state, is “used in interstate commerce” so as to qualify for tax exempt status under MCL 205.94k. Statutory construction presents a question of law, which this Court reviews de novo. General Motors Corp v Dep’t of Treasury, 466 Mich 231, 236; 644 NW2d 734 (2002). This Court also reviews de novo a lower court’s grant or denial of summary disposition. Id. Because the facts are not disputed, our review of the Tax Tribunal’s interpretation and application of the statute to those facts is also de novo. Id.; Danse Corp v Madison Hts, 466 Mich 175, 178; 644 NW2d 721 (2002). Moreover, our review is de novo even though we give respectful consideration to the department’s interpretation of the statute. In re Complaint of Rovas Against SBC Michigan, 482 Mich 90; 754 NW2d 259 (2008).
For the tax years relevant to these cases, MCL 205.94k provided, in part:
(2) For taxes levied after December 31, 1992 and before May 1,1999, the tax levied under this act does not apply to the storage, use, or consumption of rolling stock used in interstate commerce and purchased, rented, or leased outside of this state by an interstate motor carrier....
(4) As used in this section:
(b) “Interstate motor carrier” means a person engaged in the business of carrying persons or property, other than themselves, their employees, or their own property, for hire across state lines, whose fleet mileage was driven at least 10% outside of this state in the immediately preceding tax year.
(c) “Out-of state usage percentage” is a fraction, the numerator of which is the number of miles driven outside of this state in the immediately preceding tax year by qualified trucks used by the taxpayer and the denominator of which is the total miles driven in the immediately preceding tax year by qualified trucks used by the taxpayer. Miles driven by qualified trucks used solely in intrastate commerce shall not be included in calculating the out-of-state usage percentage.
(d) “Qualified truck” means a commercial motor vehicle power unit that has 2 axles and a gross vehicle weight rating in excess of 10,000 pounds or a commercial motor vehicle power unit that has 3 or more axles.
(e) "Rolling stock” means a qualified truck, a trailer designed to be drawn behind a qualified truck, and parts affixed to either a qualified truck or a trailer designed to be drawn behind a qualified truck. [1996 PA 477, amended effective June 25, 1999, by 1999 PA 70 (deleting the italicized language).]
No material facts are disputed in either of the cases at bar. Both UPS and AMF are “interstate motor carriers” that operate “rolling stock” in the state of Michigan. Thus, the sole issue on appeal is whether, as a matter of law, the “rolling stock” of UPS and AMF is “used in interstate commerce” so as to be exempt from use tax under MCL 205.94k.
The main goal of judicial construction of a statute is to “ascertain and to give effect to the intent of the Legislature.” United Parcel Service, Inc v Bureau of Safety & Regulation, 277 Mich App 192, 202; 745 NW2d 125 (2007). The first step in doing this is to review the language of the statute. Id. If the statutory language of the statute is unambiguous, then we assume that the Legislature intended its plain meaning, and the statute must be enforced as written. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002). “A necessary corollary of these principles is that 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.” Id.; see also Lash v Traverse City, 479 Mich 180, 194; 735 NW2d 628 (2007) (The judiciary may not speculate regarding the Legislature’s intent beyond those words expressed in the statute.) A provision in a statute “is ambiguous only if it irreconcilably conflicts with another provision, or when it is equally susceptible to more than a single meaning.” Lansing Mayor v Pub Service Comm, 470 Mich 154, 166; 680 NW2d 840 (2004) (citation and punctuation omitted; emphasis in original).
When reading a statute, we must assign to every word or phrase its plain and ordinary meaning unless otherwise defined in the statute, or unless the Legislature has used “technical words and phrases . . . [that] may have acquired a peculiar and appropriate meaning in the law.” MCL 8.3a; Ford Motor Co v Woodhaven, 475 Mich 425, 438-439; 716 NW2d 247 (2006); Village of Holly v Holly Twp, 267 Mich App 461, 470; 705 NW2d 532 (2005). Furthermore, we must not read a word or phrase of a statute in isolation; rather, each word or phrase and its placement must be read in the context of the whole act. Lansing Mayor, supra at 167-168; Village of Holly, supra at 470. Consequently, this Court must consider “both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999), quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995).
We read the words “interstate commerce” in the phrase “used in interstate commerce” in the context of its placement and part of the whole of 1996 PA 477, as amended. Specifically, the Legislature enacted a use tax exemption applicable only to an “interstate motor carrier,” defined as “a person engaged in the business of carrying persons or property, other than themselves, their employees, or their own property, for hire across state lines.” Further, the act recognizes that such interstate motor carriers will likely engage in business activities that occur both within and without the state of Michigan and establishes a percentage requirement for business outside the state for the exemption to apply. In other words, the Legislature was clearly cognizant of, and capable of crafting, requirements regarding the crossing of state lines with respect to the phrase, “used in interstate commerce,” but it did not. Moreover, when enacting legislation, the Legislature is presumed to be fully aware of existing laws, including judicial decisions. See Walen v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993), and Gordon Sel-Way, Inc v Spence Bros, Inc, 438 Mich 488, 505-506; 475 NW2d 704 (1991). Thus, in light of this context, we hold that the only reasonable reading of the words “interstate commerce” as used in 1996 PA 477, as amended, is that the Legislature intended them to have the “peculiar and appropriate meaning in the law” that those words have acquired in over a century of judicial decisions applying the Commerce Clause of the United States Constitution. MCL 8.3a; Ford Motor Co, supra at 439; Van Buren Charter Twp v Garter Belt, Inc, 258 Mich App 594, 606-607; 673 NW2d 111 (2003).
Caselaw spanning over 100 years establishes that the term “interstate commerce” has acquired a technical meaning in the law such that the phrase “used in interstate commerce” refers to trade in goods or services between different states. See The Daniel Ball, 11 US (10 Wall) 557, 565; 19 L Ed 999 (1871) (steamer engaged in interstate commerce, even if it never left the confines of the state, so long as it carried goods destined for, or originating from, another state); Northern Pacific R Co v Washington ex rel Atkinson, 222 US 370, 375; 32 S Ct 160; 56 L Ed 237 (1912) (train moving solely within a single state was engaged in interstate commerce because it hauled goods originating from, or destined for, locations outside the state, “despite the fact that it may also have been carrying some local freight”); United States v Yellow Cab Co, 332 US 218, 228; 67 S Ct 1560; 91 L Ed 2010 (1947) (“When persons or goods move from a point of origin in one state to a point of destination in another, the fact that a part of that journey consists of transportation by an independent agency solely within the boundaries of one state does not make that portion of the trip any less interstate in character.”); Martin v Airborne Express, 16 F Supp 2d 623, 628 (ED NC, 1996) (carrier moving goods solely within a state is moving interstate commerce if part of a larger travel scheme evincing continuity of movement between states). Courts have consistently found that even if a vessel or vehicle never leaves a state, it is “used in interstate commerce” if it carries goods moving in a continuous stream from an origin in one state to a destination in another. See The Daniel Ball, supra at 565; Northern Pacific R Co, supra at 375; Yellow Cab Co, supra 228; Auclair Transportation, Inc v State, 113 NH 231, 233; 305 A2d 662 (1973) (motor transportation conducted solely within one state may be interstate commerce if it is part of a continuous movement in interstate commerce).
On the basis of the foregoing, we conclude that the Court of Claims did not err by relying on The Daniel Ball and its progeny to rule that the “rolling stock” of UPS was “used in interstate commerce” within the meaning of the use tax exemption of MCL 205.94k. Moreover, we would reach the same conclusion were we not to ascribe to the Legislature the well-established meaning of “interstate commerce” utilized in over a century of judicial decisions.
The statute does not define the phrase “used in interstate commerce.” When the Legislature does not define terms in a statute, courts may consult a dictionary to learn their “common and approved usage.” MCL 8.3a; Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004). The Random House Webster’s College Dictionary (1997) defines the adjectival form of “interstate” as “connecting or involving different states.” The word “interstate” describes “commerce.” The Random House Webster’s College Dictionary defines “commerce” as “an interchange of goods or commodities between different countries or between areas of the same country; trade.” Giving the phrase its plain and ordinary meaning, the words “used in interstate commerce” in MCL 205.94K(2) mean rolling stock used in the trade of goods (commerce) between different states (interstate). Accordingly, we conclude that the phrase “used in interstate commerce” is unambiguous. Any rolling stock that is used to carry the persons or property that are the objects of commerce from a point outside the state to a point inside the state or from a point inside the state to a point outside the state is “used in interstate commerce.” The plain language of the statute contains no requirement that the implements of moving the objects of commerce from point to point, i.e., the rolling stock, must also cross state lines. Consequently, we must reject the department’s argument to the contrary because “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, supra at 63. Both UPS and AMF qualify for the use tax exemption because their rolling stock, despite not leaving the state, is used in the trade of goods between different states: both the UPS brown vans and the AMF delivery trucks transport freight originating from or destined for locations outside Michigan.
The department’s other arguments also fail. The department argues that while tax statutes are generally construed against the government, tax exemptions are to be strictly construed in favor of the taxing unit. See JW Hobbs Corp v Dep’t of Treasury, 268 Mich App 38, 43; 706 NW2d 460 (2005). Applying this principle, the department argues that its construction of the statute must be accepted because otherwise the exception will swallow the rule. But as we have discussed, whether we employ the plain ordinary meaning of the terms used in the statute or the peculiar meaning in the law of the term “interstate commerce,” there is no basis for a “strict” or “liberal” construction of the statute; rather, we enforce its unambiguous terms as we must. Roberts, supra at 63; United Parcel Service, Inc, supra at 202-203.
We also find misplaced the department’s reliance on American Trucking Ass'ns, Inc v Michigan Pub Service Comm, 545 US 429; 125 S Ct 2419; 162 L Ed 2d 407 (2005) (ATA), to suggest that the Court has altered the meaning of “interstate commerce” developed in The Daniel Ball and its progeny. In ATA, the Court rejected a Commerce Clause challenge to a flat fee levied on trucks that “engage in intrastate commercial operations — that is, on trucks that undertake point-to-point hauls between Michigan cities.” ATA, supra at 431. Specifically, the two petitioners engaged in both interstate and intrastate shipments and argued that they engaged in proportionately less intrastate business than trucks that confined operations to the state of Michigan. Id. at 432. Thus, the petitioners argued that Michigan’s flat fee discriminated against interstate carriers and imposed an unconstitutional burden upon interstate trade. Id. Ultimately, the Court determined that nothing about the flat assessment on intrastate activity unfairly discriminated against interstate truckers. Id. at 434-438. No issue was raised and decided in ATA regarding the meaning of “interstate commerce” or whether trucks hauling both interstate freight and intrastate freight are “used in interstate commerce.” Instead, ATA addressed a fee on intrastate activity, hauling freight originating in Michigan and staying in this state: “Michigan imposes the flat $100 fee only upon intrastate transactions — that is, upon activities taking place exclusively within the State’s borders.” Id. at 434 (emphasis added). Nothing in ATA casts doubt on the meaning of “interstate commerce” as stated in The Daniel Ball and its progeny.
The department also argues that its interpretation of the statute is correct because the construction advanced by UPS and AMF would render part of MCL 205.94k nugatory. Specifically, the department contends that the words “rolling stock used in interstate commerce” are superfluous if all they mean is that a party claiming the exemption must be part of an interstate freight business. We disagree. In order to qualify for the exemption, a party must be an “interstate motor carrier” as defined in subsection b. The department misinterprets the effect of our reading of the statute. The phrase “rolling stock used in interstate commerce” does not mean that a carrier needs only to be part of an interstate freight business to obtain exempt status. Rather, it is possible that a vehicle is part of an interstate freight business but does not qualify for the exemption because it is not used in interstate commerce, i.e., it carries no interstate goods or services. To qualify for the use tax exemption the rolling stock must be both used in interstate commerce and purchased, leased, or rented by an interstate motor carrier, as defined in subsection b. Thus, no part of the statute is rendered nugatory.
Although the department does not adopt the Tax Tribunal’s analysis, we review the tribunal’s reasoning in Docket No. 276511. First, the tribunal erred by relying on Bob-Lo Co v Dep’t of Treasury, 112 Mich App 231; 315 NW2d 902 (1982), to accept the department’s position that the phrase “used in interstate commerce” requires the crossing of state lines. Bob-Lo is inapposite because it considered a use tax exemption related to vessels engaged exclusively in interstate commerce, not rolling stock used in interstate commerce. The exemption at issue in Bob-Lo, adopted by 1978 PA 262, provides:
A vessel designed for commercial use of registered tonnage of 500 tons or more, when produced upon special order of the purchaser, and bunker and galley fuel, provisions, supplies, maintenance, and repairs for the exclusive use of a vessel of 500 tons or more engaged in interstate commerce. [MCL 205.94(k), now MCL 205.94(j).]
The plaintiff corporation in Bob-Lo operated two pleasure steamers between points in Michigan and in Canada. The plaintiff contended that it qualified for the exemption. But a previous Michigan Supreme Court decision, affirmed by the United States Supreme Court, held that the plaintiff was engaging in foreign commerce. Bob-Lo Co, supra at 242. The plaintiff argued, however, that it was also engaged in interstate commerce. The Bob-Lo Court disagreed for two reasons: (1) given the prior decision, the plaintiffs activity constituted foreign commerce and (2) the exemption was intended to include vessels that were engaged exclusively in interstate commerce. Id. at 244. Although the Court’s opinion incorrectly refers to The Daniel Ball as involving intrastate activity, which the tribunal quotes, the opinion also correctly states the facts and holding of that case in the prior paragraph. Bob-Lo Co, supra at 244. At any rate, the Bob-Lo decision is inapposite because the Court could not and did not alter United States Supreme Court precedent, interpreted a different statutory provision with substantially different language from the exemption involved in the present cases, and was decided on the basis that the activity in Bob-Lo was foreign commerce, not interstate commerce.
We also conclude that the tribunal improperly relied on the department’s Internal Policy Directive (IPD) 2003-1 in ruling that trucks must cross state lines to be deemed being used in interstate commerce. Generally, courts give respectful consideration to an agency’s interpretation of a statute it executes and will not overturn that interpretation without cogent reasons. In re Complaint of Rovas, supra at 130; By Lo Oil Co v Dep’t of Treasury, 267 Mich App 19, 50; 703 NW2d 822 (2005). Nevertheless, an agency’s interpretation that is contrary to the statute’s plain meaning is not controlling. Id.; Catalina Marketing Sales Corp v Dep’t of Treasury, 470 Mich 13, 23-24; 678 NW2d 619 (2004). In this case, the department’s IPD states, “If a truck or trailer operates only in Michigan, it is not being used in interstate commerce.” In support of this interpretation, the IPD cites the statutory definition of “interstate motor carrier.” The IPD reasons that the definition does not depend on the percentage of freight that the carrier may ship outside the state, but on whether the carrier’s “fleet mileage was driven at least 10% outside” of Michigan. According to the IPD, it follows that the rolling stock must also be used out of state in order to be used in interstate commerce. This reasoning is flawed because it conflates two distinct requirements of the statute: (1) that rolling stock must be “used in interstate commerce” and (2) that the party claiming the exemption must be an “interstate motor carrier” that satisfies the 10 percent criterion. The IPD improperly imports the definition of “interstate motor carrier” to the definition of “interstate commerce” to reach the incorrect conclusion that in order for rolling stock to be used in interstate commerce, it must cross state lines. As discussed already, the plain language of the statute does not contemplate this result. Because the department’s IPD is contrary to the plain meaning of the statue, we have the most cogent of reasons to reject it. In re Complaint of Rovas, supra; Catalina Marketing Sales Corp, supra at 23-24.
We reverse in Docket No. 276511; we affirm in Docket No. 276736. We remand each case for further proceedings not inconsistent with this opinion. We do not retain jurisdiction.
UPS also claimed a partial refund of sales tax paid on four brown vans purchased in Michigan during 1999. The partial sales tax exemption employed the same pertinent language as the use tax exemption at issue and has since been repealed. See 1996 PA 576, repealed by 1999 PA 116.
The United States Constitution grants Congress the power: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” US Const, art I, § 8, cl 3. “The Commerce Clause ‘prohibits discrimination against interstate commerce... and bars state regulations that unduly burden interstate commerce.’ ” Rayovac Corp v Dep’t of Treasury, 264 Mich App 441, 443; 691 NW2d 57 (2004), quoting Quill Corp v North Dakota, 504 US 298, 312; 112 S Ct 1904; 119 L Ed 2d 91 (1992). This, of course, is all the more reason for the Legislature to be mindful of the meaning that the words “interstate commerce” have acquired through Commerce Clause litigation.
Because the pertinent language is identical, our reasoning applies equally to the partial sales tax exemption at issue in Docket No. 276736. MCL 205.54g; 1996 PA 576, repealed 1999 PA 116.
People v Bob-Lo Excursion Co, 317 Mich 686, 691; 27 NW2d 139 (1947), aff'd 333 US 28 (1948). | [
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Per Curiam.
In this insurance coverage dispute, plaintiffs appeal as of right the circuit court’s order granting summary disposition in favor of defendant. We affirm.
On July 8, 2005, Terry Manier’s two children and minor ward sustained injuries in a motor vehicle crash. The children were in a 2001 Oldsmobile Silhouette owned by Manier and Alice Burton, his mother, and driven by Manier’s girlfriend. Several months before the accident, defendant issued Alice and Clarence Burton, Manier’s parents, a no-fault automobile insurance policy that covered the Silhouette and several other vehicles. The insurance policy listed Manier as a driver of the Silhouette.
After the accident, defendant determined that the Burtons’ application for no-fault insurance coverage of the Silhouette had misrepresented that Manier lived with the Burtons in their Westland home, and that the vehicle would be stored in Westland. Manier, his girlfriend, and the children actually lived in Ypsilanti and kept the vehicle there. Despite this misrepresentation, defendant paid all first-party no-fault personal protection insurance benefit (PIP) claims submitted on behalf of Manier’s children and ward. On October 11, 2005, defendant reformed the policy retroactive to March 12, 2005. The reformation corrected Manier’s address, but made no other substantive changes. The reformed policy maintained the insurance coverage limits stated in the original policy, $100,000 a person, with a $300,000 limit for a single accident. Both the original and the reformed policies contained identical household exclusions restricting liability coverage: “Bodily injury to you or a family member. This exclusion applies only to damages in excess of the minimum limits required by the Financial Responsibility Laws of the state of Michigan.” (Emphasis in original.)
On July 5, 2006, Manier sued defendant, seeking payment of first-party no-fault benefits and a declaration that defendant had improperly reformed the insurance policy by reducing the liability coverage. Manier’s complaint asserted that he had made no misrepresentations, and that “[defendant knew, should have known or easily could have known that the Plaintiff, TERRY D. MANIER, resided in Ypsilanti.”
On March 9, 2007, defendant filed a motion seeking summary disposition under MCR 2.116(0(10), alleging that it had paid all first-party no-fault benefit claims arising from the accident and that the reformed policy included the same liability coverage as the original policy. Manier responded that defendant could not reform the policy because the children qualified as “innocent third parties” and that the household exclusion could not apply in Michigan. In support of Manier’s claim regarding the misrepresentation, he submitted the Michigan vehicle registration for the Silhouette, which reflected his Ypsilanti address, and an affidavit stating that “some time in March of 2005, someone from the Defendant called me to confirm information and I told that person that I lived in Ypsilanti.”
At a summary disposition hearing conducted on May 2, 2007, Manier’s counsel conceded that defendant had paid the children’s first-party no-fault benefits, and the circuit court granted defendant summary disposition regarding that claim. Manier’s counsel further admitted that Alice Burton had misrepresented the location of Manier’s residence, but contended that defendant bore an obligation to independently investigate Mani-er’s address. The circuit court found that Burton had misrepresented Manier’s address, and granted summary disposition to defendant with respect to the liability coverage issue. In the final dismissal order entered on July 13, 2007, the circuit court ruled that “$20,000 per person/$40,000 per accident” constituted the maximum liability coverage available under the reformed policy for any claims made by a “family member.”
Plaintiff raises several challenges to the circuit court’s order of dismissal. This Court reviews de novo a circuit court’s summary disposition ruling. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” West v General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh, supra at 621. “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, supra at 183.
Manier first challenges the circuit court’s misrepresentation ruling, contending that regardless of any misstatements by Burton, defendant failed to dispute its awareness that Manier actually resided in Ypsilanti. Alternatively, Manier asserts that defendant easily could have ascertained his address by reviewing public records like his driver’s license and the vehicle’s registration. In support of these arguments, Manier cites Farmers Ins Exch v Anderson, 206 Mich App 214, 219; 520 NW2d 686 (1994). In Farmers, defendant Joyce Anderson’s application for no-fault insurance coverage failed to disclose that her son, Jack Dillon, would be operating the subject vehicle. Id. at 216. Dillon’s driver’s license had been revoked, and he was ineligible for motor vehicle coverage. Id. After Dillon became involved in an accident that resulted in the death of another driver, Farmers claimed that Anderson had procured the policy by fraud and rescinded the policy. Id. at 215-216. This Court held that an insurance company may “use fraud as a defense to limit coverage under the policy to the statutory minimum.” Id. at 221. However, this Court observed that a “validly imposed defense of fraud” will not “absolutely void any optional excess insurance coverage in all cases,” explaining that “when fraud is used as a defense in situations such as these, the critical issue necessarily becomes whether the fraud could have been ascertained easily by the insurer at the time the contract of insurance was entered into.” Id. at 219. Given that Dillon’s name did not appear in Anderson’s application, this Court determined that “it would have been virtually impossible for Farmers to know that it should obtain Dillon’s driving record, because it had no reason to believe that he would be operating the subject vehicle.” Id. at 220.
In Hammoud v Metropolitan Prop & Cas Ins Co, 222 Mich App 485, 489; 563 NW2d 716 (1997), this Court held that “an insurer does not owe a duty to the insured to investigate or verify” a policy applicant’s representations “or to discover intentional material misrepresentations.” Here, Alice Burton advised defendant that Manier resided in her home, and claimed to have no awareness of Manier’s driver’s license number. Burton also failed to advise defendant that Manier’s girlfriend drove the Silhouette. Reviewing the issue de novo, we conclude that defendant could not have “easily ascertained” Burton’s misrepresentations at the time she made them. Because no duty of investigation compelled defendant to perform further research regarding Mani-er’s residence, Farmers does not control this case, and the circuit court correctly determined that Burton’s misrepresentation entitled defendant to reform the policy.
Manier next contends that because the injured minors qualify as “innocent third parties,” defendant cannot reform the policy. According to Manier, Liberty Mut Ins Co v Michigan Catastrophic Claims Ass’n, 248 Mich App 35, 48; 638 NW2d 155 (2001), supports the proposition that defendant is estopped from reforming the policy because the children cannot face responsibility for Burton’s misrepresentations. In Liberty, this Court observed in a footnote that “reformation or rescission may occur if fraud or a material misrepresentation occurred, the insurance coverage was considered optional, and the fraud could not have been ascertained easily by the insurer.” Id. at 48 n 2.
In Lake States Ins Co v Wilson, 231 Mich App 327, 331-332; 586 NW2d 113 (1998), we held that although an insurance company is estopped from asserting fraud to rescind coverage applicable to an innocent third party, “an insurer is not precluded from rescinding the policy to void any ‘optional’ insurance coverage[.]” “Optional” coverage includes “ ‘any lawful coverage in excess of or in addition to the [mandatory minimum] coverage specified for a motor vehicle liability policy.’ ” Id. at 332 n 2, quoting MCL 257.520(g). Here, defendant reformed the policy without altering the original liability coverage limit of $100,000 a person and $300,000 for each occurrence. Therefore, we reject as factually unfounded Manier’s claim that defendant unlawfully reformed the policy.
Lastly, Manier asserts that Michigan’s financial responsibility statute, MCL 257.501 et seq., forbids defendant’s household-related exclusion. The financial responsibility act requires certain motor vehicle insurance for the owner or operator of a vehicle, including minimum coverage limits of $20,000 per person and $40,000 per occurrence for injury arising out of the ownership, maintenance, or use of the vehicle. MCL 257.520(b)(2). According to Manier, Gurwin v Alcodray, 77 Mich App 97; 257 NW2d 665 (1977), “settled” this issue by holding that household exclusions violate public policy and the financial responsibility act. In Gur win, the exclusion eliminated liability coverage for members of the insured’s household. Id. at 99.
But the exclusion at issue in this case does not eliminate coverage for members of the insured’s household; rather, it limits liability coverage to the minimum provided in MCL 257.520(b)(2). If a clause in an insurance policy is clear and does not contravene public policy, it must be enforced as written. Farm Bureau Mut Ins Co of Michigan v Nikkel, 460 Mich 558, 568; 596 NW2d 915 (1999). “An insurer is free to define or limit the scope of coverage as long as the policy language fairly leads to only one reasonable interpretation and is not in contravention of public policy.” Heniser v Frankenmuth Mut Ins Co, 449 Mich 155, 161; 534 NW2d 502 (1995). Manier has not identified any Michigan caselaw invalidating a no-fault policy’s household exclusion, where statutorily adequate residual liability coverage exists. This Court has upheld household exclusions in other circumstances. Bogas v Allstate Ins Co, 221 Mich App 576; 562 NW2d 236 (1997), and Geller v Farmers Ins Exch, 253 Mich App 664; 659 NW2d 646 (2002). Consequently, we reject Manier’s claim regarding the validity of the household exclusion.
Affirmed. | [
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] |
Sharpe, J.
On July 23,1927, the plaintiff Ella M. Draper entered into a written agreement with the defendant in which she agreed to sell to him 40 acres of land described therein and the following personal property:
“1 team horses and harness, 3 cows, 1 brood sow and 7 shoats, chickens now on the farm, all farm tools also all crops on the farm at time of sale harvested or unharvested,”—
for the sum of $6,500, to be paid for as follows: $200 on execution of the agreement, $1,300 on or before August 15th and $200 or more annually until $3,000 and interest at 6 per cent, had been paid, when a warranty deed would be given and mortgage taken for the balance.
On August 29, 1927, when the $1,500 had been paid, a land contract in the usual form was entered into by the parties, with conditions as to payments of the balance similar to those above stated. The personal property was referred to therein in the following language:
“This contract to include personal property on the farm, which personal shall be maintained during the life of this contract at not less than the present amount.”
Defendant defaulted in his payments. A notice of forfeiture was given, and he vacated the premises on October 15, 1930, talcing the personal property with him. Plaintiffs bring this action to recover the value thereof. The trial court held that under the provisions of the contracts the title to the personal property was still in the plaintiffs and that the defendant was liable for the conversion thereof. He submitted the question of its value to the jury, and entered a judgment for the plaintiffs for the amount thereof as found by them.
In the conceded facts in the case made, by which review in this court is sought, it is said:
“Defendant makes no claim of error as to the proofs submitted or the verdict rendered as to the amount of damages, defendant hereby admitting that if there was a cause of action at all in favor of plaintiffs the judgment is correct in amount.”
The contract first entered into was simply an agreement on the part of the plaintiff to sell certain real estate and personal property to the defendant at a stated price. No title passed to the defendant thereunder. When the $1,500 had been paid, the land contract was entered into and possession of both the real and personal property delivered to the defendant. It contained the usual provision that in case of default in payment the plaintiffs (vendors) should have the right to declare the contract void and to retain all payments as stipulated damages for nonperformance.
Counsel for the defendant insists that the title to this personal property passed to him when delivery was made thereof. . Ordinarily, this is so.
'“It is a general rule that, when one has agreed to sell and the other to buy a specific and designated article, the title passes to the purchaser at once, unless the terms of the contract indicate the intention to have been otherwise.” People v. Sheehan, 118 Mich. 539, 541.
The seller may, however, reserve title in himself, and that, in effect, is what we think was here done. Plaintiff agreed to sell the personalty along with the real estate on certain conditions as to payment. It was not a severable contract (Gates v. Gamble, 53 Mich. 181) unless made so by the contract thereafter executed. Title surely did not pass thereunder, although possession was at that time given. The purpose of the land contract was to more formally express the rights and obligations of the parties relative to such sale. The reference to the personalty therein, while peculiarly worded, negatives any intent that the title to it had passed to the defendant. A considerable payment had then been made, and, had it been intended that title would then pass, no allusion to it would have been made.
“Every word in the agreement must be taken to have been used for a purpose, and no word should be rejected as mere surplusage if the court can discover any reasonable purpose thereof which can be gathered from the whole instrument.” 6 R. C. L. p. 838, quoted in McIntosh v. Groomes, 227 Mich. 215, 218.
“It is elementary that a contract must be construed so as to effectuate the intent of the parties when it was made; and, to ascertain the intent of the parties, a contract should be construed in the light of the circumstances existing at the time it was made.” Kunzie v. Nibbelink, 199 Mich. 308, 314.
“It is also true that what is plainly implied from the language used in a written instrument is .as much a part thereof as if it was expressed therein. ’ ’ Maclean v. Fitzsimons, 80 Mich. 336, 343.
No claim is made that the personal property for which judgment was recovered is not the same as that listed in the agreement first entered into. In our opinion, the trial court correctly disposed of the matter.
The judgment is affirmed.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
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] |
Butzel, C. J.
For upwards of four years, plaintiff resided on the Adams road near its intersection with Woodward avenue, in the village of Birmingham, Michigan. To enter the Adams road from Woodward avenue, one must cross five tracks of two rails each. The two most westerly tracks adjoin Woodward avenue and are exclusively for street railway purposes. The three more easterly ones belong to defendant, or other affiliated railroad companies. The easterly and westerly railroad tracks are used to set out cars and also to enable trains to pass one another. The railroad track between these latter two is used as a main line for through traffic.
Plaintiff was familiar with the tracks, for he crossed them daily. The railroad was not required by any legal authority to keep a watchman at the crossing and it was unguarded. The Adams road crosses the tracks at an angle of 45 degrees. The distance between the railroad tracks is 9% feet, and between the rails of each track approximately five feet. Plaintiff was possessed of good sight and had no physical impediments.
Inasmuch as the verdict was directed in favor of defendant, the evidence most favorable to plaintiff must be accepted. At about 9:30 p. m. on June 16, 1926, he drove a Ford car along "Woodward avenue, and turned in a northeasterly direction on to Adams road. As he approached the street car tracks, he stopped his ear, and, seeing that no street cars were approaching, crossed the street car tracks and again stopped at the first or more westerly railroad tracks. He saw a long freight train standing on this track. The rear of the caboose on the south end of the train was approximately five feet north of Adams road. The plaintiff stopped his car, and as he looked and listened, a man came out of the rear door of the caboose, descended to the ground from the west side of the train, motioned, and called out to plaintiff, ‘ ‘ Come on. ’ ’ The testimony does not show that the man had any lantern, wore a cap, uniform, or other insignia of a railroad employee. He was in no way identified as an agent or employee of defendant. Plaintiff claims that he looked in both directions before proceeding across the track. There was also an engine standing on the fifth or most easterly of the three railroad tracks. Plaintiff’s lights were shining in a northeasterly direction, from which a train was coming. After receiving the word from the man who emerged from the caboose, plaintiff speeded up his car and as he drove on to the fourth or middle railroad track the front part of his car was struck by the locomotive of a south-bound train belonging to defendant. Plaintiff sustained injuries for which he brought suit. He claims that the moving train had no lights and sounded no whistle. This would constitute negligence on the part of defendant.
At the conclusion of testimony on behalf of plaintiff, defendant, after producing only one witness to show the lay of the tracks, asked for a directed verdict in its favor. The trial judge held plaintiff guilty of contributory negligence, and directed a verdict against him.
The invitation by the man who came from the caboose, and who was a stranger as far as the record shows, did not completely relax plaintiff’s duty to exercise due care and caution in crossing the other railroad tracks. An ordinarily prudent man would have looked carefully before proceeding. The man who came out of the caboose had his back turned to the more easterly tracks, and his statement indicated that the train with the caboose had come to a standstill.
Notwithstanding the fact that plaintiff claims that the locomotive of the south-bound train on the middle railroad track bore no headlight, and that he looked both north and south before he crossed the track, the very fact that the locomotive bore down upon him almost immediately upon his reaching the track, and struck the front part of his automobile, shows that he would have seen the oncoming train had he looked properly. Without taking* into consideration the fact that the track was near Woodward avenue, which is illuminated, for this is not disclosed by the record, as the judge stated, nevertheless the headlights of the car were turned partly in the direction from which the train was coming. Plaintiff testified that it was light enough for him to see the man coming* out of the caboose on the freight train, although he was five feet away from the Adams road. If he had looked he would necessarily have seen the approaching train.
The law imposes care upon the person approaching a railroad crossing. It was plaintiff’s duty to carefully observe and ascertain whether he could safely proceed in a northeasterly direction across the second railroad track. His mere statement that he looked does not overcome the physical facts of the case. As was said in Baker v. Delano, 191 Mich. 204:
“This testimony also makes the conclusion irresistible that if the deceased had stopped, looked, and listened, it would have been a physical impossibility for him not to have been aware of the approach of the engine, no matter whether the bell was being rung or the lights were burning. There was no obstruction to his view for 500 feet along the tracks in the direction from which the engine was coming. A stop for a moment, or a momentary glance, would have apprised him of the danger. We see no escape from the conclusion that the circuit judge was clearly right in holding that the deceased was guilty of contributory negligence.”
In Ackerman v. Railroad Co., 249 Mich. 693, this court said:
“Plaintiffs recognize the general rule that one about to cross a railroad track must look for ap proaching’ trains while he is in a place of safety and has an unobstructed view. But their position is that they used due care in that they looked and listened, saw sufficient clear track to induce a prudent man to believe he could cross in safety, could have crossed had not the train approached at an excessive rate of speed, the rough road took their attention, and these circumstances made the question of negligence one for the jury.
“The general duty to look is not a mere element of due care, to be weighed with other circumstances in determining negligence. In the words of Mr. Justice Wiest in Rosencranz v. Railroad Co., 244 Mich. 137, it is a ‘standard of conduct, based on a rule of reasonable care, to which all drivers of motor vehicles must conform or bear the consequences.’ * * *
“In this case plaintiffs had an unobstructed view, and there was nothing to throw them off guard. They had ample opportunity to see the approaching train and to stop in a place of safety, not only before they reached the tracks, but even after they had crossed the west-bound track. Downey v. Railway Co., 230 Mich. 243; Brady v. Railway Co., 248 Mich. 406. Exceptional circumstances necessary to modify the standard of conduct were not present. The language in McGee v. Railway Co., 102 Mich. 107 (26 L. R. A. 300, 47 Am. St. Rep. 507), is particularly applicable:
“ ‘It will not do to say that he has discharged Ms responsiMlity in case of an accident by looking when some feet away, for he may miscalculate the distance and the speed of the ear. To avoid danger, he must look just before he enters upon the track.’
“Plaintiffs are chargeable with contributory negligence of their driver, and the judgment is affirmed. ’ ’
See, also, Rosencranz v. Railroad Co., 244 Mich. 137; DeJager v. Andringa, 241 Mich. 474; Brady v. Railway Co., 248 Mich. 406; Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66 (48 Sup. Ct. 24, 56 A. L. R. 645):
The court was correct in directing a verdict in favor of defendant. The judgment is affirmed, with costs.
Wiest, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Butzel, C. J.
Plaintiff Butterworth Hospital, located at Grand Rapids, Kent county, Michigan, brought suit against the superintendents of the poor of Kent county, a corporation, defendant herein, to recover for the care of three indigent patients. The trial judge who heard the case without a jury found defendant liable for the care of one of the patients, a resident of Kent county, but not for the other two, John Gargeich and Goerto Satrornino. He held that inasmuch as their indigency and need of immediate assistance had arisen prior to their removal to Kent county, of which they were nonresidents, no liability could be imposed upon defendant. Plaintiff has appealed.
It is claimed that Gargeich’s home is in Chicago. He was working on a farm near Wayland, in Allegan county, Michigan, when he met with a very severe automobile accident. He suffered severe bodily injuries, including a fractured femur. He was taken by friends to plaintiff hospital in Kent county, and not to Allegan, the county seat of Allegan county. Wayland is but a few miles further from Grand Rapids than it is from Allegan.
Satrornino was suffering from encephalorrhagia, which resembles and is frequently confused with “sleeping sickness.” He was indigent when he became afflicted with this disease at Thompsonville, in Benzie county, a long distance from Kent county. In the belief that a difficult surgical operation was necessary, he was transported to plaintiff hospital. There is no claim that he had a legal settlement in Benzie county. His residence is not disclosed by the record. It only shows that he was working with a crew of men on the Pere Marquette railroad at Thompsonville, Michigan, where they were living in box cars.
Both of these patients were indigents and in an extremely serious physical condition both before and after they were brought to plaintiff hospital. It would have been inhuman for plaintiff to refuse them first aid if not also subsequent treatment. It took months for Gargeich to recover. Satrornino died 11 days after his arrival at the hospital.
It was shown that plaintiff is supported by public or private subsidies and its chief purpose is to take care of the people of Kent county. There is no doubt but that it would be a very great hardship upon any hospital to be compelled to accept free patients from all over the State. It would be unfair to a county to be compelled to pay for the care of paupers brought to it from other counties where they had no legal settlement but where their indigency arose and. must have been known. It is apparent that both of these patients were transported to plaintiff hospital on account of its superior facilities and not with the intention of relieving the responsibility of the counties where their indigency arose. Shortly after the patients arrived, plaintiff hospital served notice upon defendant that it was caring for them. Bills were sent to defendant, which it refused to honor but it failed to return them. It at no time' acknowledged itself as either responsible or willing to pay for the care of these patients. On the contrary, it asserts that it is not liable. Plaintiff claims liability on the part of defendant under the following subsections of section 8274, 2 Comp. Laws 1929:
‘ ‘ Section 1. When any person applies for or requires relief and support as a poor person, in any county, township or city, the superintendents of the poor of the county, or the supervisor or director, as the case may be, shall ascertain the township, city, county or State in which such poor person is settled, and relief and support of such person shall be granted, as follows:
“First, If such settlement cannot be ascertained or is in another State or country, the relief and support of such poor person shall be at the expense of the county in which he may be; * * *
“Third, If it is ascertained that the settlement of any such poor person is in another county or any other township or city of any other county, relief and support of such poor person shall be granted by the superintendents of the poor of the county where such poor person may be, at the expense of the county where such poor person has a settlement, or the county in any township or city of which county such poor person has a settlement. ’ ’
Our attention is called to the case of Superintendents of Poor of Kalkaska County v. Superintendents of Poor of Grand Traverse County, 120 Mich. 247, in which plaintiffs failed to recover from the defendants for the care of an indigent who had his home in defendant county.
Plaintiff relies on the case of Superintendents of Poor of Livingston County v. Superintendents of Poor of Oakland County, 141 Mich. 667, where the defendants were held not liable for the support of an indigent person because when the latter moved to plaintiff county the removal was not brought about by the defendants with the intent of making her a charge upon the poor authorities of plaintiff county. The facts are different from those in the present case.
Plaintiff relies on the case of City Hospital of Quincy v. Milton, 232 Mass. 273 (122 N. E. 274), where the circumstances are somewhat similar to the present case. Plaintiff calls our attention to the case of Eckman v. Township of Brady, 81 Mich. 70 (1890), where the township in which the indigent had a legal settlement was held liable for her care by a private individual who furnished her with support which the township had neglected to give. This case was decided at a time when conditions were different from those of the present day and when indigency and delinquency were infrequent and could he readily localized and the responsibility for support could be properly charged. There were not the present day methods of quick and cheap transportation, nor was there the migration from city to farm and back again, nor the constant shifting of part of the population from one place to another. In Eckman v. Township of Brady, supra, the indigent also had a legal settlement, and we do not believe the principle set forth in that case can be extended so as to apply to the case at bar. In the present case the indigency arose in other counties where the indigents were at the time they required support. Plaintiff knew this fact when it received the patients. They had no legal settlement in Kent county. Subdivision 1 of section 8274, 2 Comp. Laws 1929, does not contemplate that the relief and support of such poor person without a legal settlement and whose home cannot be ascertained shall not only be at the expense of the county where he may be but also of the county to which he may be transported after the indigency has arisen. Such a construction would lead to the imposition of an unjust burden upon the county to which the poor person might have been transported. If there is any liability at all, it is against the counties in which the indigents were when they became public charges. See McCaffrey v. Town of Shields, 54 Wis. 645 (12 N. W. 54). This we do not determine as the question is not before us.
The judgment of the lower court is affirmed, but without costs.
Wiest, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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North, J.
This bill of complaint was filed for the purpose of securing construction of a deed establishing a line between the properties of these respective parties and obtaining injunctive relief. Defendant presented a cross-bill seeking affirmative relief including reformation of her deed to plaintiffs. On September 8,1924, the defendant executed to plaintiffs a warranty deed of a triangular piece of property east of Grand Rapids and bordering Cascade road on the north, which deed contained the following description:
“Beginning on the east line of and 589.3 feet south of northeast corner of southwest quarter of section five (5), said township of Cascade, thence south along the east line of premises owned by first party 1,250.7 feet to Cascade road, so-called; thence northwesterly along said.Cascade road 548.2 feet; thence northeasterly in a direct line 922.4 feet to place of beginning, being in all 5.4 acres,more or less, and all on section five (5), township of Cascade, Kent county, Michigan, subject, however, to all roadway rights of said Cascade road, so-called.’’ '
About three months prior to her deed to plaintiffs defendant had released a 50-foot right of way north of the center line of Cascade road. Prior to this the north half of this highway was only 33 feet in width; but this and a like addition on the south side made Cascade road 100 feet in width. At the time of her conveyance to plaintiffs defendant’s deed for this highway widening was not recorded but all parties concerned had full knowledge thereof. In contemplation of preparing the deed plaintiffs employed Williams and Works to survey and stake out the parcel about to be purchased. The following from the opinion filed by the trial judge is sustained by the record:
‘ ‘ These surveyors set an iron stake at each of the three corners of the property, the stake at the southwest corner being 548.2 feet northwesterly from the quarter line measuring along the edge of the old or 33-foot right of way. The surveyors at that time also set out a row of some six wooden stakes extending from the iron stake in the southwest corner, northeasterly to the place of beginning, on the north and south quarter line. The defendant owned the balance of the land to the west of the premises conveyed to the plaintiffs, and lived thereon.
“At the time the deed was prepared by the defendant’s attorney the parties had before them the sketch prepared by Williams' and Works which showed measurements as follows, the northerly point of the triangle not being in any dispute:
“Distance from the northerly point of beginning to the center line of Cascade road 1,250.7 ft.
“Distance from northerly point of beginning to edge of 33-foot roadway 1,202.7 ft.
“Distance from quarter line to southwest corner of property 548.2 ft. Measured along the edge of the 33-foot road.
“Distance from southwest corner of property starting on the edge of the 33-foot road, northeasterly to point of beginning 866.6 ft.
“This last line, extended south to the center of the road, is shown on the sketch as 922.4 feet. The sketch also showed the acreage included within the triangle, having as its base the 548.2 measurement on the edge of the 33-foot road, as 5.4 acres.
“The plaintiffs paid for the property $1,080, being 5.4 acres at $200 per acre.
“The plaintiff took possession and occupied the land up 'to the surveyors ’ row of stakes on the west, which stakes remained standing for several months.. He plowed the land to within three or four feet of this westerly line, and planted fruit trees thereon. The evidence shows that Mrs. Todd knew that the plaintiff was claiming under the deed the land to the surveyors’ stakes, and that she acquiesced and consented thereto until about three years after the deed was given.
“On or about July 1, 1929, the defendant, caused to be erected the present fence on the westerly portion of plaintiffs’ premises, which fence, at the southern end thereof, was 529.86 feet northwest of the north and south quarter line measuring along the edge of the 33-foot highway (18.34 feet southeasterly of iron stake).”
It thus appears that the southerly end of the fence erected by defendant is a little more than 18 feet southeasterly of the location of the iron stake which plaintiffs claim marked the southwest corner of their parcel. The controversy presented involves a wedge-shaped piece of land lying between the two disputed westerly boundary lines of plaintiffs ’ property, which lines converge to a common point at the north but diverge so at the southerly line of the. property they are 18.34 feet apart. These conflicting claims arise from the fact plaintiffs assert that their southerly line coincides with the northerly line of the 33-foot highway, but defendant contends that it coincides with the center line of the highway. It will be noted that the description in the deed is from the point of beginning (about which there is no dispute), “thence south along the east line of the premises owned by first party 1,250.7 feet to Cascade road, so-called; thence northwesterly Mong said Cascade road 548,2 feet;” the first meas urement would extend the line to the middle of Cascade road. This circumstance surely tends to sustain defendant’s claim that the southerly boundary line extended along the center line of the highway rather than' the northerly line. It should also be noted that the next provision in the deed is “thence northeasterly (from the southwest corner of the parcel) in a direct line 922.4 feet to the place of beginning, being in all 5.4 acres, more or. less.” Without- doubt the figures in the description were taken from the sketch prepared by Williams and Works; but from the testimony it seems equally clear that by mistake of the conveyancer the sides of the triangle were extended to the center of Cascade road, while the base was the distance between the sides along the northerly line of the road rather than along the center line. In contending that the southerly line of this parcel is the center of the highway the defendant relies upon and insists upon the application of the. following rule of law, as well as upon the description in the deed:
“We hold the correct rule to be that a conveyance of land bounded on a highway, street,, or alley carries with it the fee to the center thereof, subject to the easement of public way, provided the grantor at the time of conveyance owned to the center and there are no words in the deed showing a contrary intent, whether the dedication of the highway, street, or alley has been accepted or not, and whether it has been opened or not.” Loud v. Brooks, 241 Mich. 452.
Notwithstanding the rather persuasive circumstances relied upon by appellant, we are convinced after a careful consideration of the testimony that the trial judge was correct in his finding that prior to the conveyance the “surveyors set an iron stake at each of the three corners of the property,” and beyond question the parcel thus marked was the parcel that the deed was intended to convey and it should be so construed if possible. Where parties agree upon definite monuments which fix the boundaries of a parcel of land conveyed by one or the other, such monuments should unquestionably control-. Diehl v. Zanger, 39 Mich. 601; Flynn v. Glenny, 51 Mich. 580; Miller v. Michel, 227 Mich. 497.
Plaintiffs ’ contention is' also' supported by the conduct of these parties immediately following the conveyance in mutually acquiescing in the location of the westerly boundary line as indicated on the Williams and Works survey sketch. 2 Tiffany on Real Property (2d Ed.), § 444; Monfort v. Stevens, 68 Mich. 61. It is worthy of notice that in the instant case the iron stake placed at the southwesterly corner of the parcel together with the agreed point of beginning would definitely fix the location of the westerly line regardless of whether that line extended to the center of the highway as defendant contends or only to the northerly line as plaintiffs contend.
In addition to the foregoing, the defendant on cross-examination testified she was willing to be bound by the Williams and Works survey. To some extent she retracted this on her redirect-examination, but it seems that her statement on cross-examination, which we quote, was not inadvertent:
“Q. I am asking you now if you were satisfied that Mr. Nordberg was to have the land, by this deed that was made, that land between the three iron stakes marking off the triangle of the property?
“A. Certainly, where Mr. Williams’ iron stakes was, yes.” .
Each of these litigants offered testimony relative to the area of the land contained within the bounda ries contended for by the respective parties. This testimony under the circumstances of this case is not at all conclusive either way; especially in view of the rule of law that quantity in any description must generally give way to fixed lines and monuments. Keyser v. Sutherland, 59 Mich. 455. The testimony taken as a whole, especially that establishing definite monuments, convinces us that the westerly line of plaintiffs’ property should be located in accordance with their contention. In other words, this deed should be construed as extending plaintiffs’ southerly boundary line along the northerly line of the 33-foot road northwesterly from the quarter line a distance of 548.2 feet.
The appellant asserts that the appellees are really seeking in this court reformation of the deed rather than a construction of it; and it is urged such relief should not be granted because it was not prayed for in the bill of complaint nor urged in the circuit court. In the instant case it is of little consequence whether the relief granted is by way of construction of the deed or by its reformation. While plaintiffs’ bill does not specifically ask for reformation, such relief might well be granted under plaintiffs’ prayer for general relief, especially since the issue of reformation was definitely raised by defendant’s cross-bill wherein reformation of the deed was prayed.
Complaint is made by appellant that an attorney fee in the sum of $75 was allowed to plaintiffs as taxable costs in the circuit court. We think this provision in the decree cannot be sustained. Instead the court should have followed former Circuit Court Rule No. 64, which fixed the attorney’s fee in the amount of $30. Subject to this modification, the decree of the lower court is affirmed, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe; and Fead, JJ., concurred, | [
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] |
Butzel, C. J.
Plaintiff issued a policy of insurance to David S. Block, on October 5, 1928, against loss by fire or theft of an automobile. Defendant maintained and operated a parking lot at the intersection of First street and Bagley avenue in the city of Detroit. There were two entrances and exits to the lot, the balance being enclosed by barriers. There was a shack in the rear for accommodation of the attendants. It was the custom at night to move all unlocked cars to that portion of the lot near the shack. The only persons in charge after 5:45 p. m. were a middle-aged woman and a 13-year old girl, both of whom remained in the shack. It contained windows which looked out on the lot, but at nighttime the lot was dark, there being no illumination. Block had been parking' his car at the defendant’s lot for over two months. There was never any objection or extra charge made to his leaving the car after 5 p. m. He usually called for it late in the evening. It was the custom of defendant to frequently move the cars with the exception of those brought in early in the morning before the lot was opened for business and locked by their owners.
On September 28, 1929, at about 8:30 a. m., in accordance with his usual custom, Block parked his automobile • on this lot, paid the sum of 25 cents therefor, and received a parking ticket as follows:
“8 9 10 11 12 1 2 3 4 5
“Sep. 28, 1929
“This ticket MUST be surrendered when car is taken from lot.
“SERVICE PARKING GROUNDS
‘ ‘ (Incorporated)
“Offices: 1301 Industrial Bank Building
“WE COMPLY WITH CITY ORDINANCE
“WE ARE NOT INSURERS
“Do not leave any valuables in the car.
“No attendant after parking hours.
“Day Parking Hours 8 a. m. to 5 p. m.
“License No.
“CHECKER CABS
“Empire 7000
“285-579
“63196”
Block accepted the ticket without reading it and paid no further attention to it. When he called for his car later in the evening, at first he found no one in charge of the lot. After walking around the lot to see if he could locate his car, he sounded the horn of another car, and a few minutes later the woman in charge and the young girl came out of the shack. The car was missing, and evidently had been stolen. It was so reported by Block to defendant and the Detroit police department. . It was worth $375. Plaintiff paid Block this amount, and received from him a bill of sale of the car and an agreement subrogating plaintiff to Block’s rights. Plaintiff then sued defendant in the common pleas court in the city of Detroit to recover the damages sustained by it, and á judgment of no cause of action was rendered. Plaintiff appealed to the circuit court, and before trial the stolen car was recovered and at the time of its recovery was worth $150. Plaintiff’s damages amounted to $225. The case was tried in the circuit court without a jury.
There was absolutely no conflict in the testimony. The trial judge found in favor of defendant solely on the ground that it was excused from liability because it was shown that the car was stolen; that defendant was not an insurer, and he held that defendant took all precautions proper and necessary for the care of the car. He stated his doubts as to the correctness of his decision, and expressed the hope that the case might be reviewed by this court.
In Knights v. Piella, 111 Mich. 9 (66 Am. St. Rep. 375), it is said:
“There is no presumption of'negligence from the mere fact of the loss or theft, and while there is much reason for the rule, adhered to in many States, that the defendant has the burden of prov ing the fact of loss, it does not necessarily follow that a presumption of negligence arises; and, if the facts shown in connection therewith do not fail to excuse, the onus is on the plaintiffs to shake defendant’s exculpation. This does not deny the proposition that when the bailment is proved, and a refusal to deliver is established, the plaintiff has made out a prima facie case, arid the inference of wrong by the defendant follows, or that it is then for the defendant to explain the loss and exonerate himself, which he may do by showing circumstances which prima facie excuse the failure to deliver. To this extent, and in this sense, a burden rests upon the defendant ; but, if this question of fact becomes a disputed one, the evidence of the plaintiff must preponderate; and if the language of the charge, viewed abstractly, extends further, it cannot be said to have prejudiced the plaintiffs, under the established facts, the disputed question in this connection being whether or not the care exercised was equal to that to be expected from ordinarily prudent persons under similar conditions and circumstances. See Schouler, Bailments, § 23, for a discussion of this subject.”
The testimony shows that the parking lot was maintained for both day and evening service, and that competent persons were supposed to be in attendance until 11:45 p. m. After that hour, any cars uncalled for were moved for safety to a more central parking lot. Almost daily, for a period of two months, plaintiff did not call for his car until after the day parking hours were over, and no extra charge was made for overtime. It is quite evident that inasmuch as the time stated in the ticket was not considered by either party as a limit of the bailment, or of the obligations of the bailee, it became inoperative through the conduct of the parties.
In Galowitz v. Magner, 208 App. Div. 6 (203 N. Y. Supp. 421), it was said:
“Appellant contends that there was no bailment, or if there was, no negligence was shown.
“I have not .been able to find any authority covering such a contract as that presented in this case. I think, however, it was a bailment for hire. It was, in my opinion, of the same nature as checking parcels, and the disclaimer of liability could only become effective, if brought to plaintiff’s knowledge (Healy v. Railroad Co., 153 App. Div. 516, 138 N. Y. Supp. 287). Or storing an automobile in a garage (Smith v. Economical Garage, 107 Misc. Rep. 430 [176 N.Y. Supp. 479]). * * *
“The proof in this case is very meager, but is in my opinion sufficient to present a question of fact for the jury. Where a space is inclosed by an eight-foot board fence, for parking cars, with an entrance and an exit, a checking system, and three attendants to look after and take care of the cars as they came' in and went out, the jury might infer that the theft of plaintiff’s car could not have occurred had defendant and his employees properly performed their duty. • Indeed, it seems to me that such inference is well-nigh irresistible, because some one must have taken out plaintiff’s car without presenting a check or ticket' therefor, and to permit this was clearly negligent. ’ ’
The burden was on defendant not only to show that the car was stolen but also that the theft took place without any negligence on its part. As a rule automobiles brought in after 8 a. m. were left unlocked. Attendants were supposed to be at the parking lot so that cars could not be taken away without a surrender of the ticket given to the owner. It was defendant’s duty to see that cars were not removed except upon the surrender of the ticket. Plaintiff might have had a better opportunity of protecting his car from theft had he kept it locked at the curb of a street in the vicinity. At least there would have been more difficulty in stealing a car that was locked and not properly guarded.
Act No. 391, Pub. Acts 1919 (1 Comp. Laws 1929, § 4796 et seq.), provides as follows:
‘ ‘ Section 1. Whenever any damage shall be done to any motor vehicle while in the possession or under the care, custody or control of the owner, his agent or servant,- or the keeper of any public garage or other establishment where such vehicle shall have been accepted for hire or gain, proof of such damage shall be prima facie evidence that such damage was the result of the negligent act of such owner or keeper of the place where such vehicle was stored.”
The word “damage” in the statute must be construed to also cover a total loss of the automobile. Under this statute, the onus of exoneration for failure to return the car was upon defendant and it was its duty to show that it was not negligent in the care of the car. Tatro v. Baker-Fisk-Hugill Co., 215 Mich. 623. This it failed to show. Not only was the car taken without th'e surrender of the ticket, but it was further shown that there were no lights on the lot at nighttime; that the lot was enclosed by barriers but it had two exits and entrances which were not guarded; that the lot was situated in a neighborhood frequented by persons of questionable character, and there were not sufficient capable attendants in charge so as to guard the property. The showing that the car was stolen does not excuse defendant, for the undisputed testimony shows that defendant was negligent in its care of the car.
The judgment is reversed, with costs to plaintiff, and the case remanded to the lower court, where, on the undisputed testimony, a judgment is ordered entered for plaintiff in the sum of $225, the damages proven, together with costs.
Wiest, Clark, Sharpe, North, and Fead, JJ., concurred with Butzel, C. J. | [
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] |
Potter, J.
This case was once before this court and it was held defendants were entitled to a prescriptive easement in the driveway in question to a point to be determined by the circuit judge. Engel v. Gildner, 248 Mich. 95. The circuit judge, after the case was remanded, and after hearing the testimony adduced by the respective parties, made a final decree which we think is supported by the evidence, and which is affirmed, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred. | [
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Butzel, C. J.
A dwelling house in the city of "Wakefield, Michigan, owned by plaintiff Anton Yalisano, was insured in each of the four defendant insurance companies. The amount of the policies aggregated the sum of $3,800. Valisano had been insane since 1913 and his property was being looked after by his wife, Mary, who has brought suit as his next.friend; She obtained the insurance from defendants’ agent, who knew of Valisano’s insanity both at the timó the policies were issued and for many years previous thereto.
On May 8, 1928, a fire occurred, resulting, it is claimed, in a total, loss. Mrs. Valisano notified the insurance companies. The adjusters met and made her an offer of settlement. The testimony is in dispute as to just what occurred. Plaintiff’s wife claims that they first offered her $2,700, and then only $1,700. She testified that they told her they would pay $1,700 and no more. That she thereupon stated she would get an attorney and fight for her rights, whereupon they said: “Do as you please. It is up to you.”
On June 20, 1928, she began four suits, which have been consolidated in this action. All of the policies follow the Michigan standard fire insurance form. The defendants claim that they did not know of plaintiff’s insanity, .that no proofs of loss were furnished them, that the suits were prematurely brought, and that there was no appraisement as demanded by them, that the verdict is excessive and against the great weight of the evidence. Plaintiff claims that owing to Anton’s insanity, no proofs of loss were required, that no notice of demand for appraisement, was given until after-the suits were begun, that proofs of loss, appraisement, etc., were waived by defendants’ adjusters when they stated that the companies would pay a certain amount and no more; that this constituted a discharge of the obligation to furnish proof of loss, etc. This latter question was one of those submitted to the jury who found in favor of plaintiff for the full amount of the insurance. All of the questions raised are before us for review.
An insured person who is insane is excused from submitting a proof of loss. Such an action on his part would be a nullity. Insurance Companies v. Boykin, 12 Wall. (U. S.) 433; Hartford Fire Ins. Co. v. Doll, 23 Fed. (2d) 443 (56 A. L. R. 1059); Houseman v. Home Insurance Co., 78 W. Va. 203 (88 S. E. 1048, L. R. A. 1917A, 299); Woodmen Accident Ass’n v. Pratt, 62 Neb. 673 (87 N. W. 546, 89 Am. St. Rep. 777); Concordia Fire Ins. Co. v. Waterford, 145 Ark. 420 (224 S. W. 953, 13 A. L. R. 1387).
The question of failure to send notice by the assured on account of his mental incompetence arose in Reed v. Loyal Protective Ass’n, 154 Mich. 161, where the court stated:
“But we are committed to the doctrine in insurance cases that a provision requiring a notice on pain of forfeiture will not be construed to require strict performance, when by a plain act of God it is made impossible of performance.”
The disputed question as to whether defendants’ agent stated to Mrs. Valisano that they would pay a certain sum and no more was submitted to the jury. There were corroborating witnesses who testified that this statement was made, although defendants’ witnesses vigorously denied they made it. It became a question of fact for the jury who decided in plaintiff’s favor. The case falls squarely within the doctrine set forth in Rott v. Westchester Fire Ins. Co., 218 Mich. 576, and Maki v. Commonwealth Ins. Co., 232 Mich. 295.
It is further claimed that Mrs. Valisano had neither right or authority to act for her husband. Defendants, through their agent, both in issuing the policies and in attempting to adjust the loss made no objections whatsoever to her so acting. As an agent ex necessitate she had a right to act. . Although as such agent she would not have the right to engage in new enterprises, nevertheless it was both her right.and duty to conserve plaintiff’s property, and in that connection to take out the insurance and attempt to adjust the loss.
In Barron v. McChesney, 198 Iowa, 657 (200 N. W. 197), the wife took a mortgage from the debtor of her insane husband, and the question was raised whether she had authority. The court, in holding that she had, said:
“In this case, the plaintiff was taken in mental derangement to the hospital, from which he returned a few weeks later. The wife remained at the home on the farm and looked after all the property and transacted the current daily business. To that extent, at least, she was fairly within the scope of authority which the law would presume in her favor. The general scope of such authority was to conserve the property rights of her husband. It did not extend to the initiation of new enterprises. It was in an attempt to conserve her husband’s property that she accepted delivery of the mortgage. The’ mortgagor had become insolvent. He was owing a debt to her-husband. It was unsecured. The mortgagor tendered the security. This was plainly beneficial to her husband and conserving in character. The burden this benefit carried was of a minor character, as compared with the benefit conferred.”
Unless and until a guardian is appointed, it was incumbent on the wife to protect her insane husband’s property. Defendants recognized this right and authority and may not now object.
The question is raised as to the amount of the verdict, which is sufficiently supported by the evi deuce. Other minor questions raised we do not believe of such importance as to require discussion.
The judgment of the lower court is affirmed, with costs.
Wiest, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Fead, J.
This is a bill to abate, as a nuisance, a wooden building moved from one location to another within the fire limits of the village of Durand, in violation of an ordinance. The ordinance declares such building a public nuisance and requires its abatement on order of the common council. The authority to adopt such ordinance is conferred by 1 Comp. Laws 1929, §§ 1549, 1667 et seq.
Section 8 of the ordinance deals with wooden buildings. Among other things, it declares it unlawful to remove such a building from one location to another within the fire limits “without first having obtained from fhe chairman of the building commit tee of said village (a permit) in writing so to do.” No qualifications or standard of building proper to be removed nor conditions or restrictions on the discretion of tbe chairman to grant or deny such permits are provided, as they are in connection with permit in other sections of the ordinance. It thus appears to have been the intention, as it is the obvious construction, that the authority attempted to be conferred on the chairman by section 8 was unlimited and arbitrary. Section 8, therefore, is void. Harrigan & Reid Co. v. Burton, 224 Mich. 564 (33 A. L. R. 142).
It is further contended that the whole ordinance is invalid for want of publication. Section 1 reads:
“Sec. 1. That all that portion of the village of Durand described and shown on a certain map and blue print marked ‘Exhibit A’ now on file in the office of the clerk of said village the same being a part of this ordinance, be and the same is hereby designated and declared to be the fire limits of the village of Durand.”
Exhibit A was not published with the ordinance. Counsel for plaintiff urges that its publication was not necessary because it was á public record to which the ordinance could refer without publication of it.
An ordinance sometimes may refer to a public record already established by lawful authority and become effective without publication of such record as part of the ordinance. But Exhibit A was drafted solely for the purpose of the ordinance and to define the fire limits, had no prior official approval and had no purpose, use, force, or official sanction except as it was given by and as part of the ordinance. An ordinance cannot at the same time establish a paper as a public record and also incorporate it by reference as a previously established public record. Without publication of the map, the ordinance was not published in full, did not comply with the statute, and is void. Thompson Scenic R. Co. v. McCabe, 211 Mich. 133.
Decree dismissing the bill affirmed, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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Sharpe, J.
This case was tried before the court without a jury. He filed findings of fact which may be summarized as follows: In the last will and testament of Arthur H. Hartshorn, he provided for the payment by his executors to the defendant Mc-Cluskey, as trustee, of certain moneys for the use and benefit of his son, Arthur A. Hartshorn. It seems undisputed that the sums so received by him and interest thereon, less advances made to Arthur, pursuant to the terms of the trust, amounted at the time of the trial to the sum of $6,440.37. McCluskey qualified as such trustee by giving a bond with Harry H. Hartshorn and D. R. Brown as sureties in the sum of $10,000, which was approved by the judge of probate on May 3, 1926. Harry H. Harts-horn sought to be relieved from his obligation under said bond, and McCluskey, at the request of the probate judge, filed an account in the probate court, and on July 12, 1927, filed a new bond, with the defendant Fidelity & Deposit Company of Maryland as surety, in the sum of $6,000, which was duly approved.
Arthur A. Hartshorn became 25 years of age on January 8,1929, and was then entitled to receive the corpus of the trust fund. On May 27th following, McCluskey, as such trustee, was cited to appear before said court to show why he had not settled and closed the matters of his said trust, and, not appearing, the probate court authorized the bringing of this action for- the recovery of the moneys due Arthur A. Hartshorn from said trustee. The sureties on both bonds were made parties defendant.
The last finding of fact reads as follows:
“The default of the trustee, C. E. McCluskey, occurred after July 12, 1927, the date of the approval of the second bond hereinbefore mentioned by the said probate court. Such default consisted in the conversion of the remainder of the said trust funds belonging to the said Arthur A. Hartshorn. ’,
Based on these findings, the trial court concluded as matter of law that— ■
“The second bond was a substitute bond; the sureties on the former bond were released except for .liability on account of defaults of the trustee committed prior to the approval of the second bond by the probate court; and the surety on the second bond is liable for all defaults of the trustee occurring after the approval of such bond by said court.”
McCluskey had not been served with process. A judgment in favor of the plaintiff against the Fidelity & Deposit Company for $6,000 was entered, of which it seeks review by writ of error.
It proposed certain amendments to the findings of fact. It requested the court to substitute for the last of such findings the following:
“The default of the trustee, C. E. McCluskey, occurred prior to July 12, 1927, the date of the approval of the second bond by the probate court, except as to the sum of $500, which was received by the said trustee on November 5, 1927, and as to this sum the default of the said trustee in the amount of said $500 occurred subsequent to July 12, 1927.”
In the report filed by McCluskey above referred to, he listed certain securities as held by him as trustee for “Arthur A. Hartshorn & Gladys Scholer.” It appears that he was also a trustee for Mrs. Scholer, a sister of Arthur. In it he acknowledged that he had received for the estate of Arthur A. Hartshorn moneys to the amount of $6,075.02, and stated that he had paid to him $975.06. The list of securities as undisposed of and moneys on hand amounted in all to $8,007.86, but it was in no way indicated to which estate they belonged. It seems to be conceded, however, that the amount thereof included all sums at that time in his hands as trustee for Arthur A. Hartshorn. Harry H. Hartshorn, a brother of Arthur and a surety on the first bond, testified that he saw the report in which these securities were listed and asked McCluskey about them on July 16th or 17th, after the second bond was given, and that they were then shown to him by McCluskey and he made a list of them in a memorandum book, and he produced the book.
The Fidelity Company insists that the great weight of the evidence supports its claim that these securities, except a promissory note hereafter referred to, were the property of the trustee’s father, Heber V. McCluskey. His testimony was taken by deposition. He admitted that, while the securities thus listed (real estate mortgages) were payable to Mm, he had assigned them to his son “and he had them for a while.” As to two of them he said:
“That was all the mortgages I had left at that time and I assigned them at his request and he sent them back and asked me to advance the money on them and I took them back and sent the Lauf er mortgage $500 and the Grice mortgage $400 and gave him $900. ”
On cross-examination he testified:
“Q. You knew he was going to list these mortgages in this particular account?
“A. I expected he would.
“Q. That is, Arthur Hartshorn?
“A. Yes.
“Q. And you knew that was what he was going to use it for?
“A. I didn’t know what he was going to use it for. I didn’t know anything more about his business than a stranger would know. I don’t know what he did with any of it. I know I let him have it and that is all I know because the presumption was he was paying his debts, using it in a legitimate manner. That is what I supposed.
“Q. Particularly in the Arthur A. Hartshorn matter, wasn’t it?
“A. I think so, yes; but I don’t know.’’
The trial court was apparently satisfied from the evidence submitted that the trustee was the owner of these securities at the time the second bond was approved and filed. We cannot say that his finding in that respect is against the great weight of the evidence.
Among the items of securities listed by the trustee in his account was a promissory note, executed by Charles Merriman, in the sum of $1,952.94. Coun sel for the appellant proposed an amendment as to this item, reading as follows:
“As to this item the court finds that this was not and is not a proper or legal investment for trust funds, and therefore, the trustee had defaulted and devastavit of the trust funds had occurred .as to this amount prior to July 12, 1927.”
This court has declined to lay down “any definite rule as to the class of securities in which trustees may legally invest.” In re Buhl’s Estate, 211 Mich. 124, 131 (12 A. L. R. 569). In Michigan Home Miss. Soc. v. Corning, 164 Mich. 395, 402, the court said:
“It is a generally accepted rule that it is not prudent to invest trust funds in unsecured notes of an individual or of a partnership. We have found no decision which announces a contrary rule where the trust contemplated an investment of a permanent nature.”
But, conceding the fact as stated in the proposed amendment that the unsecured promissory note was not such an investment as would relieve the sureties on the first bond, yet if it was paid to the trustee by the maker after the second bond had been given, the surety thereon would be liable td account for its proceeds. The record does not disclose what became of this note. It does not appear that proof concerning it was not available.
• In the early case of Bailey v. Gould, Walk. Ch. 478, 483, wherein proceedings were taken to foreclose a mortgage securing a promissory note and the note was not offered in evidence, the court said:
“The promissory note is not in evidence, and, for aught that appears from the testimony, it may have been paid. The law does not raise a presumption of nonpayment, but of payment when due, unless the contrary is shown by the production of the note, or other evidence repelling the presumption of law, when the note itself cannot be produced. ’ ’
In Martin v. McReynolds, 6 Mich. 70, 74, the Bailey Case was cited as authority for the statement—
“For the law. presumes every man has done his duty, and on that raises a presumption of payment, unless the contrary is shown.”
It was also cited with approval in George v. Ludlow, 66 Mich. 176, and in Ward v. Munson, 105 Mich. 647.
This court has held that the law will presume that a member of a fraternal organization has paid the dues fixed by the by-laws. Petherick v. Order of the Amaranth, 114 Mich. 420; Rousseau v. American Yeomen, 186 Mich. 101. See, also, Bergen v. Urbahn, 83 N. Y. 49; 41 C. J. p. 794. The rule thus stated does not apply when an action is brought to enforce the payment of such a note in the hands of the payee or his assignee. In such a case, payment is made a matter of affirmative defense (Michigan Court Rule No. 23, § 3), and the burden of proving it is on the defendant.
We are unwilling to reverse the finding that the proceeds of this note came into the hands of the trustee after the second bond was given. As to the cash in his hands, there is no evidence that he did not have it at the time the second bond was filed.
The probate judge testified that he informed Harry H. Hartshorn, one of the sureties on the first bond, that “automatically we considered the discharge of the bond as soon as the new bond was filed.” It is urged that he was in error in doing so; that the statutory requirement as to notice had not been complied with. 3 Comp. Laws 1929, § 15880; Rice v. Wilson, 129 Mich. 520. While the action was against McCluskey and the sureties on both bonds, the judgment was entered against the Fidelity & Deposit Company alone. The plaintiff not having assigned error, the question of concurrent liability is not before us for consideration.
The judgment is affirmed.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
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Sharpe, J.
In June, 1923, the defendant Grand Eapids Knitting Mills filed a petition in voluntary bankruptcy. The assets of the company were disposed of, from the proceeds of which the unsecured creditors received payment of 22.14 per cent, of their claims. The trustee filed his final account, and was discharged on December 2, 1924.
On February 21, 1925, a large number of the stockholders filed the bill of complaint herein, alleging that they had been induced to purchase their stock by the fraudulent representations of the individual defendants, the then board of directors of the company, and praying for a rescission of their contracts of purchase and the payment to them by the individual defendants of the moneys paid by them thereon. The defendants, except Mather and Case, who were not served with process, appeared and answered, denying the material allegations in the bill.
On April 16,1927, more than two years thereafter, by order of the court, but against the objection of the defendants, an amended bill of complaint was filed. It contained many of the allegations of the former bill, but particularly set forth that, by mismanagement and neglect of their duty as such directors, the individual defendants permitted the moneys which had Been received By the sale of certain of its stock “to Be squandered, misappropriated and lost,” and that the financial ruin of the company had been produced and it forced into bankruptcy thereby. They prayed for a decree adjudging the individual defendants liable for the losses so incurred, and for the appointment of a receiver to collect the same and disburse the sums so received.
The defendants, except Mather and Case, who are hereafter called the defendants, answered the amended bill, denying the material allegations therein. The proofs were submitted in open court, after which the trial court entered a decree dismissing the bill of complaint, from which the plaintiffs have taken an appeal.
The trial court filed a written opinion, in which he reviewed the proofs and the claims of counsel at considerable length. In it he said that the claim of plaintiffs ’ counsel, as stated in their final brief filed with him, was as follows:
“The parties to this suit are agreed that the question to be adjudicated is what damage did the corporation suffer from the acts of the directors, what is the damage to the corporation, and what are the facts of negligence of the directors.”
He eliminated a very considerable part of the proofs submitted as immaterial to the question as above presented. This included that tending to support the claim of the fraudulent representations which induced plaintiffs to purchase their stock and the earnings and losses of the company prior to such purchase. It appeared that one of the directors, Carl N. Mather, had been intrusted with the sale of certain stock authorized to be issued by the securities commission, and the trial court limited the issue to—
“whether these defendants were guilty of negligence in permitting Mather to become indebted to the company in the sum of approximately $60,000.”
While counsel in their brief filed in this court discuss at considerable length the effect of the proofs thus eliminated from consideration by the trial court, we are of the opinion that the prayer for relief in the amended bill and the statement of counsel above quoted fully justified such action on his part.
After a consideration of the pleadings and the material proofs submitted, the trial court said:
“The real issue in this cause in its last analysis relates to the responsibility, if any, of the four defendants, Foote, Wilmarth, Murray and Palmer for loss to the corporation due to Mather’s failure to pay to the company all he owed as a result of the sale of the company’s stock to him.”
To understand how this sale came about, it seems necessary to detail at some length the history of the company. It apparently was in a fairly prosperous condition in the fall of 1920, but from that time on there was a steady drop in the prices of its products. We may take judicial notice that this period of deflation was not confined to the business of this company alone. It lost money on practically everything it handled for a period of months. In the spring of 1921 there were signs of improvement, and the board of directors caused an audit to be made in order to ascertain its exact financial condition. The report of the auditors and an independent appraisal of the value of the company’s property revealed the fact that on June 30, 1921, its assets and liabilities were about the same. It then had a paid-in capital of $79,100, but no funds with which to do business.
At a meeting of the board of directors on May 28, 1921, at which Case, Mather, Murray, and Palmer were present, a tentative balance sheet, prepared by the auditors, was presented. A proposition of certain fiscal agents for increase and sale of capital stock was presented and discussed, and Case, Mather, and Palmer were appointed a committee to consult with the bank and fiscal agents and to make recommendation to a special meeting of the stockholders to be thereafter called. Such meeting was held on July 5, 1921, at which it was decided to change the name of the corporation from Mather-Palmer Company to Grand Rapids Knitting Mills; to increase the capital stock to $400,000 of preferred and 300,000 shares of no-par value. The directors were authorized to secure permission for such increase from the Michigan securities commission. Fifteen per cent, was fixed as the commission to be allowed on the sale of the stock. At this meeting, the holders of 4,200 shares of stock out of 4,910 outstanding were present or represented.
On July 14th, the securities commission validated both preferred and no-par stock and authorized the sale of $100,000 of common stock and $100,000 of preferred stock on condition that not to exceed 15 per cent, commission be paid on the sale thereof. The sale of the stock was considered at a meeting of the stockholders on July 18th, and a proposition of director Mather to underwrite it was submitted and recommended for approval to the board of directors. A by-law of the corporation was amended to authorize the treasurer to sign the certificates instead of the president. Later, on the same day, the board of directors met and the following action was taken:
“The minutes of the annual meeting of the stockholders of July 18th were read and upon discussion it was unanimously moved, seconded and carried that Messrs. Case, Mather and Palmer be authorized to arrange for a sale of the no-par value stock of the company through C. N. Mather as broker as recommended in such stockholders’ meeting with power on the part of Case, Mather and Palmer to take such action as shall be necessary to consummate such arrangement.”
On July 23,1921, a written agreement was entered into between the company and Mather, wherein the company agreed to sell, to Mather all of the stock which had been validated by the commission “in such amounts 'as said second party shall from time to time order or demand from said first party” at the price of $10 per share for the preferred stock and a sum to be agreed upon, to be evidenced by a supplementary contract, for the no-par value stock. It was provided therein:
“It is further agreed that said second party shall acquire a broker’s license and dispose of any stock so purchased by him in his discretion.”
In an agreement supplemental to this, which was lost, but proof of which was submitted, the price of the no-par stock was fixed at $2 per share, from which Mather was entitled to deduct a 15 per cent, commission. He secured a license as a broker, and proceeded to sell this no-par stock; $8,500 worth was delivered to him and his note for that amount placed in the hands of the treasurer. He engaged the services of other brokers and salesmen in disposing of it and of other stock which came into his hands for sale, being that of stockholders, some of whom had been permitted to exchange their common stock for no-par stock, with the result that in June, 1923, when the company was adjudged a bankrupt, Mather also became such. The manner in which he was permitted to dispose of the stock of the company, without paying in cash therefor, forms the basis on which the plaintiffs’ claim of negligence on the part of the defendants rests.
Counsel differ widely as to the amount of the company’s stock sold by Mather, or by others acting for him. While some of the records which would doubtless more clearly show the exact amount are now lost, we think it quite satisfactorily appears that the proceeds thereof to which the company was entitled, less the money paid by him into the treasury of the company, $44,876.48, amount approximately to the sum of $61,187.44. In the Mather bankruptcy proceeding, the referee allowed the claim of the trustee in bankruptcy of the company against Mather at the sum of $61,189.49, of which $305.95 was paid out of the bankruptcy assets, leaving a balance of $60,883.54.
Counsel for plaintiffs insist that the amount of Mather’s indebtedness was largely in excess of the sum stated. Irrespective of the contention of defendants that the determination in the bankruptcy proceedings is res adjudicata, we are satisfied that the amount fixed fairly represented the amount of -such indebtedness. It also appears to be the amount which one of plaintiffs’ auditors found to be due from Mather to the company.
The trial court found:
“The ultimate failure of the corporation was not due to Mather’s inability to pay his account. In spite of $44,000 or thereabouts, paid into the company on new stock sales, the losses in retail and wholesale selling of merchandise were so great, due to adverse business conditions, as to make further operations impossible. The payment of Mather’s entire debt would have been barely sufficient to •satisfy existing creditors and ultimate failure must have occurred in any event.”
The evidence supports this finding. It appears that the operating end of the company’s business received attention from the directors. Its financial failure was due to causes which they were unable to control.
The trial court was of the opinion that, under the proofs submitted, the defendants could not “be held responsible for the unpaid debt of Mather. There is nothing in this case indicating such nonfeasance or misfeasance of these defendant directors as should make them personally responsible therefor.” While defendants’ counsel strenuously insist that the conclusion thus reached is supported by the evidence and the law applicable to the conduct of directors of a mercantile corporation, we are unwilling to rest decision thereon. We are, however, in accord with the finding that no intentional fraud or misconduct is chargeable to the defendants.
This suit cannot be considered as other than one by the plaintiffs, representing the corporation, to compel the defendants to pay into the treasury of the company certain moneys lost to it by their negligence in the conduct of its affairs. The material facts here presented were known to many of the plaintiffs before the discharge of the trustee in bankruptcy on December 2, 1924. They had held meetings and made arrangements with attorneys for the bringing of this suit as early as October, 1924. The bill of complaint was filed on February 21, 1925. It was their duty to have presented these facts in the bankruptcy court, in an effort to have the liability of the defendants there established, to the end that money would have come into the hands of the trustee with, which to further satisfy the claims of the creditors. Their counsel now say:
“In this case there was no trustee in bankruptcy at the time that the plaintiffs discovered this fraud and instituted this suit. The estate of the Grand Rapids Knitting Mills was entirely closed and the trustee was discharged of his trust, and his bond as trustee canceled December 2, 1924,”—
and.insist that the plaintiffs who have instituted this suit “are the only ones entitled to the avails.”
A duty rests upon every corporation to pay its creditors. In its performance, the stockholders, while they may not be personally liable for the debts of the corporation, are equally interested with the directors whom they have chosen to manage its affairs. It would be a strange doctrine for a court to announce a rule that certain stockholders, having knowledge of facts which render the directors liable to the corporation for negligence in the handling of its fiscal affairs, may sit quietly by and allow proceedings in bankruptcy to be carried on and the assets of the corporation disposed of, under which the creditors receive but a small percentage of their claims as allowed, and, after the discharge of the trustee, institute a suit to recover money due the corporation from the directors on account of such negligence and be themselves entitled to the sums so recovered to the exclusion of the claims of the creditors.
Stockholders are not creditors of the corporation as that word is generally understood. Leland v. Ford, 245 Mich. 599. In a stockholders’ suit, they do not sue in their own right, but in that of the corporation. The cause of action is an asset of the corporation, and, as a general rule, a stockholder may not bring suit unless he has requested the directors to bring it in the name of the corporation. There is an exception to this rule, as here, when' the suit is brought to recover moneys lost to the corporation through the negligence of the directors. But, in this case, all of the assets of the corporation passed to the trustee in bankruptcy. The corporation could not thereafter maintain a suit. Its assets, including all rights of action, were in the hands of the trustee as an officer of the court. Had the plaintiffs furnished him with information justifying action against the defendants, on his refusal to prosecute the same, recourse might have been had to the court to compel such action on his part. But the law will not permit the plaintiffs to quietly sit by and permit the trustee to close the bankrupt estate, paying to the creditors but a small percentage of their claims, and, after his discharge, bring suit for their own benefit to recover from the directors moneys due the corporation.
No claim is made that the trustee was himself .in any way chargeable with the negligence complained of, as was the case in Flynn v. Third National Bank, 122 Mich. 642, relied on by plaintiffs’ counsel.
“A demand on tEe corporation need not be made where the corporate functions have been suspended by the appointment of a receiver since its power to sue no longer exists. In cases where the corporation is in the hands of a receiver or trustee in insolvency, the demand must be made on this official.” 6 Thompson on Corporations (3d Ed.), p. 486.
A suit by a stockholder is in fact a suit by the corporation to redress a wrong to the corporation, and the relief granted belongs to the corporation and not to the stockholder individually. He is not entitled to the money recovered: That goes to the corporation, and not to the individual complainants. 6 Thompson on Corporations (3d Ed.), p. 465.
In Talbot v. Scripps, 31 Mich. 268, in which an action was brought by a stockholder against individuals, who, it was alleged, had conspired with the directors to wreck the corporation, it was said:
“The wrong alleged will be seen to be a corporate wrong, in which all the stockholders are proportionally interested, and any legal redress should be at the instance of the corporation, if the board of directors will consent to demand it. There is no allegation that the board has been requested to bring suit and has refused. Under these circumstances, we know of no ground on which the suit can be maintained. As well might an individual stockholder bring suit to recover his share of corporate funds which had been lost by negligence or embezzlement, or his proportion of insurance money on the corporate property destroyed by fire. The injury counted on is not a separate injury to each of the stockholders, but a joint injury to all, and the corporation represents all for the purposes of legal remedy; at least until it is shown that the corporate authorities refuse after proper application to act.”
The above holding was referred to with approval in Horning v. Louis Peters & Co., 202 Mich. 140, 151, where it was said:
“The contract, then, having been made primarily for the benefit of the corporation and only secondarily ór indirectly for the benefit of its stockholders, such stockholders including plaintiff cannot prosecute a claim based upon its breach without first making a demand upon the receiver (in this case the trustee in bankruptcy), to commence suit.”
In 4 Cook on Corporations (8th Ed.), p. 3202, it is said:
“Another important principle of law in this connection is that where the. corporation is insolvent a stockholder cannot maintain a suit to hold the directors liable for fraud unless he alleges that the relief asked for will be of some benefit to him; in other words, that there will be a surplus for the stockholders after the creditors are paid.”
The decree dismissing the bill is affirmed, with costs to appellees.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, North, and Fead, JJ., concurred. | [
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Wiest, J.
This is a claim against an estate for care and maintenance of a daughter of the deceased from the time she was six years of age until she was 16; from October 1, 1913, to December 22, 1923, under an oral agreement for compensation at $5 per week, no part of which was paid. Trial was by jury with verdict and judgment thereon for plaintiff. Plaintiff is the wife of a son of the deceased, and the little girl was cared for and supported in the home of plaintiff and her husband.
Defendant gave notice of the statute of limitations, and contends that in no event can plaintiff recover for support furnished more than six years before filing the claim. Under the alleged contract the pay at the rate of $5 per week was for a continuous service which was rendered and not closed until within six years before presentation of the claim. The point is without merit. Carter v. Carter, 36 Mich. 207.
Defendant also invokes the rule that household or home-rendered services of the wife belong to the husband, and the claim here made is for services rendered in the home, and, therefore, in law, the claim is that of the husband. The evidence justified the jury in finding that the contract was made with plaintiff, not only by express consent of her husband to that effect, but, as well, in directing his father to make the contract with her. The rule that services of the wife in and about the home belong to the husband is not one beyond the power of the husband to waive. A husband may, by his consent, permit the wife to contract for special services to be rendered another in their home and to receive pay therefor. Cogent reasons existed for consent in this instance by plaintiff’s husband; the little girl was his sister; her mother was dead; she needed a home and a woman’s care and oversight, he was incapacitated by long-continned illness from earning enough to maintain his home and his wife was, in fact, the breadwinner.
The court instructed the jury to disallow the claim if the contract was between plaintiff’s husband and his father. The court also instructed the jury:
“If you find that it was a joint contract between Frank Wisniewski and Mary Wisniewski, in which Frank Wisniewski, the husband, did not waive his right to remuneration, then you would also disallow the claim.”
Objection was made to any testimony by the husband of plaintiff. The testimony of Frank Wisniewski, on direct examination, did not come within the statute (3 Comp. Laws 1929, § 14219) prohibiting an opposite party from testifying to matters equally within the knowledge of the deceased, so the objection, when made, was properly overruled. On cross-examination, however, Frank Wisniewski gave contradictory testimony. No motion was made to strike out all of his testimony, and his re-direct examination again disclosed the inapplicability of the statute. We find no request for instruction to the jury on this subject. The court was right under the state of the record at the time the ruling was made. The verdict was not excessive in amount nor' against the clear weight of evidence.
The record presenting no reversible error, the judgment is affirmed, with costs to plaintiff.
Butzel, C. J., and Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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North, J.
Plaintiffs seek to recover from defendant $21,553.38 and accrued interest as compensation claimed to be due them for services rendered as income tax experts and accountants under a written contract with defendant providing for such services and compensation therefor. Plaintiffs claim that by reason of mutual mistake the contract as executed does not conform to the agreement of the parties and on this account they also seek its reformation. In the circuit court plaintiffs were decreed the relief sought. Defendant has appealed.
On the 31st of May, 1921, defendant entered into a contract with the S. S. Kresge Company for the sale of real estate located on the southwest corner of Woodward and Grand Biver avenues in the city of Detroit. The contract price was $1,660,000. The vendee assumed a mortgage of $675,000, made a down payment of $100,000 and agreed to pay the balance of the purchase price in substantial annual installments extending from 1921 to 1934. Mr. Hickey’s profit on this sale was $522,682.03. Incident to making his 1921 income tax return, Mr. Hickey consulted his attorney and auditor; and was advised that such profit should'be reported as on a 1921 sale made on an installment basis and that the tax would then be payable in annual installments as the payments on the land contract were made from 1921 to 1934. At a meeting between plaintiffs and defendant the matter was broached as to whether plaintiffs could make a report of defendant’s income, including the profit on this real estate transaction, so that his income tax would be legally computed upon a different basis which would result in a saving to defendant. After some consideration the plaintiffs and defendant, on April 13, 1922, entered into a written contract for plaintiffs’ service in making defendant’s income tax return “for such years as may be affected by the profit derived from the afore-mentioned real estate transaction.” In substance this contract, which was prepared by plaintiffs, provided that they should have as compensation for such services 10 per cent, of any saving effected.
The meaning of “saving” as used in this contract and the method of determining the amount of such saving is set forth in the contract as follows:
“The word ‘saving’ as herein used shall be considered as meaning the amount by which
“ (a) The income taxes actually and finally paid or payable by said taxpayer on taxpayer’s taxable net income from all sources for the year or years affected by the profit derived from the above-mentioned sale of real estate, is less than
“(b) The income taxes which such taxpayer would have paid on taxpayer’s taxable net income from all sources for the year or years affected by the profit derived from said real estate transaction, had the tax on said real estate transaction been computed on the ‘installment sales’ basis as provided in article 45, regulations 62, issued by the treasury department through the commissioner of internal revenue.”
Appellant first contends that plaintiffs are not entitled' to reformation. The contract as drawn (paragraph b) does not specify in what year the Kresge sale or the profit incident thereto was to be reported or assumed to have been reported by Mr. Hickey, nor does it specify or identify the provision or provisions of the revenue act under which the theoretical computation of Mr. Hickey’s income tax for the various years would be computed. Thus neither the time nor the rate was fixed for making the computation by which plaintiffs’ compensation would be measured. Each of these factors was essential to making the computation in the manner which the proofs clearly show these parties had in mind when they entered into this, contract. Such a computation was necessary to determine what, if any, “saving” plaintiffs accomplished for defendant. This determined the amount of plaintiffs ’ compensation. The circuit court justly decreed reformation; and, as reformed, paragraph (b) above-quoted reads:
“(b) The income taxes which such taxpayer would have paid on taxpayer’s' taxable net income from all sources for the year or years affected by the profit derived from said real estate transaction, had the profit on said real estate transaction been reported as a 1921 sale on the installment basis as provided in article 45, regulation 62, issued by the treasury department through the commissioner of internal revenue, and the tax thereon computed by applying the rates specified in sections 210 and 211 of the revenue act of 1921 (42 U. S. Stat. at Large, pp. 233-237).”
It is further urged by appellant that the method of computing the amount of plaintiff’s compensation was erroneous and resulted in a substantial overpayment being decreed. From the quoted portion of the contract it is clear that plaintiffs were to have as compensation 10 per cent, of the difference between the income tax Mr. Hickey, acting under their advice, was actually to pay incident to his profit on the Kresge sale and the amount of such tax he would have paid if the sale had been reported as first contemplated by Mr. Hickey, i.e., as a 1921 “installment sale.” Acting under their contract, plaintiffs adopted a different plan of making Mr. Hickey’s income tax return and thereby'they materially reduced the amount of his tax. By altering the Kresge transaction so that it became a fully consummated sale in 1922, by giving a deed and taking back a mortgage; and by having all of Mr. Hickey’s profit thereon taxed on- the basis of “capital gain” (section 206, revenue act of 1921 [42 U. S. Stat. at Large, p. 232]), plaintiffs were able to have the tax on this item computed at 12½ per cent. It was paid at that rate as a part of Mr. Hickey’s 1922 tax. Including this item, his income tax for 1921 and 1922 totaled $76,060.43. It is plaintiffs’ claim that since the Kresge transaction was thus fully consummated in 1922 in so far as it affected defendant’s income tax, they are entitled under their contract to compute the amount that Mr. Hickey’s tax under sections 210 and-211 of the revenue act of 1921 (42 U. S. Stat. at Large, pp. 233-237) would have been if all of the Kresge transaction profit had been returned by Mr. Hickey in 1921 and 1922. Computed in this manner, defendant’s total tax for the two years’would have been $291,594.19. This exceeds the amount he actually paid ($76,060.43) by $215,533.76. Plaintiffs were decreed 10 per cent, of this amount as compensation due them under their contract.
Appellant asserts that this method is not in accordance with the contract, but instead, that paragraph (b) above quoted provides that the computation should be on the basis of the amount of income tax Mr. Hickey would pay on his profit if the Kresge sale was reported as an “installment sale” and the payments received during the various years from 1921 to 1934 as provided in the Kresge contract. It is clear that had such a plan been followed by Mr. Hickey and he had included in his income tax return each year from 1921 to 1934 such a proportion of his profit on the Kresge sale as he received payment on the purchase price, he would have been taxed at a much lesser rafe than that assumed in plaintiffs’ computation wherein all this profit is included in a hypothetical 1921 and 1922 tax return. The difficulty of ascertaining the amount of plaintiffs’ compensation under such a construction of the contract is obvious; but notwithstanding that unfortunate circumstance, we are satisfied that such was the method the parties agreed upon as a basis of fixing plaintiffs’ compensation. As noted, the contract was prepared by plaintiffs and they must abide by it. If there is occasion for construing such a contract, its terms must be interpreted most strongly against those by whom it was drafted. Greenough v. Willcox, 238 Mich. 52; Weber v. Wilson, 240 Mich. 462. Equity cannot create contracts for litigants any more than courts of law. Wood v. Truax, 39 Mich. 628. It is urged by plaintiffs that payments on the Kresge contract might not have been made in accordance therewith, and that defendant’s income tax would be affected by the payments as made rather than by the contract provisions for payments. Regardless of that fact, we think the contract between plaintiffs and defendant was consummated in contemplation of the subsequent performance of the Kresge contract in accordance with the terms thereof, and that paragraph (b) of plaintiffs’ contract must be construed in the light of that circumstance. Plaintiffs ’ compensation should be computed on the assumption that the payments on the Kresge contract have been made or will be made as provided therein; because such were the terms and conditions plaintiffs and defendant obviously had in mind when paragraph (b) was made a part of their contract.
The record does not contain testimony from which a computation of plaintiffs’ compensation on the proper basis can be made. This necessitates remanding the case for further proof. The decree entered in the trial court will be set aside, and the case remanded for further testimony and final decree in accordance herewith. Appellant will have costs of this court.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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] |
Fead, J.
In March, 1929, J. C. Arthurs contracted to drill an oil well for Sias Oil Development Company, payment therefor to he made in five installments, as the work progressed. April 16th, claimant Gallagher, trustee, mailed defendant bank a $11,125 check, the proceeds to be held by the bank in escrow and to be paid Arthurs as installments became due under his contract. April 19th, the bank acknowledged receipt of the check and stated:
“The money is being placed in escrow in the form of five certificates of deposit from R. W. Gallagher, trustee, to J. C. Arthurs (as per contract), payable as follows,” etc.
The bank held the certificates, and, on April 29th, sent two of them to Arthurs. They were not cashed because, on April 30th, defendant bank suspended operations and later a receiver was appointed for it.
It was conceded that, on receiving the check, the bank deposited it with its correspondent, First National Bank of Bay City, and had credit therefor; and that from April 16th to the closing of defendant bank the credit of the latter on the books of the former was always greater than the amount of the check. However, by reason of drafts written, but not presented, the books of defendant bank showed its credit at the First National Bank reduced below that amount on April 27th and 30th. The receiver took custody and control of the account and received an amount in excess of the Gallagher check, either by way of cash or credit on a note owing by defend ant bank to the First National Bank, charged by the latter to the account after the receiver was appointed.
The question is whether the deposit is a preferred claim against the receiver.
The general rule, as stated in 31 A. L. R. 473, is:
“It may be stated as a general rule that where a deposit is máde in a bank with the distinct understanding that it is to be held by the bank for the purpose of furthering a transaction between the depositor and a third person, or where it is made under such circumstances as give rise to a necessary implication that it is made for such a purpose, the deposit becomes impressed with a trust which entitles the depositor to a preference over the general creditors of the bank where it becomes insolvent while holding the deposit.”
See, also, 39 A. L. R. 930; 57 A. L. R. 386; 60 A. L. R. 336.
The drafts drawn by defendant bank, but not presented before it suspended operations, did not deplete its balance with the First National Bank below the amount of Gallagher’s check, because they did not constitute assignment of any part of it. Sunderlin v. Mecosta County Savings Bank, 116 Mich. 281; 2 Comp. Laws 1929, § 9376.
As the fund deposited was traced, identified, and came intact into the hands of the receiver, it was a preferred claim, unless the parties intended it otherwise than in the nature of a special deposit or as a trust. Board of Fire & Water Com’rs v. Wilkinson, 119 Mich. 655 (44 L. R. A. 493); Sherwood v. Central Mich. Savings Bank, 103 Mich. 109; Gillen v. Wakefield State Bank, 246 Mich. 158; American Employers Ins. Co. v. Maynard, 247 Mich. 638; Glerum v. Spencer, 251 Mich. 163.
Appellant contends that the parties intended the deposit as general, not in trust, but as creating merely the relation of creditor and debtor, because (a) it was not technically an escrow, (b) the check was deposited in the correspondent bank subject to draft, and (c) defendant bank wrote negotiable certificates of deposit for it.
In calling the deposit an escrow, the parties were not speaking technically nor concerned with the niceties of legal terminology and distinctions. They were using a common word, as it is commonly employed by laymen in commercial transactions, to characterize the deposit as of a special nature in which the depositee was a stakeholder or trustee.
The parties to a special deposit in a bank ordinarily do not contemplate that the bank shall set aside specific currency to be held in its vault, but that it will collect outside checks in the usual manner through correspondents upon whose books they have credit. The practice here followed was usual, showed no intention on the part of the bank to change its agreement and convert the deposit into a general one; nor, having received it in specific trust, could it lawfully have so converted it without consent of the depositor.
The writing of the certificates of deposit was for convenience in bookkeeping. They were not issued as negotiable paper, as'they were not delivered to the depositor. The fact that the bank informed Gallagher that the account was so handled did not evidence' an intention to modify the contemporaneous specific agreement that the deposit was in trust; nor did it have such legal effect. Hudspeth v. Union Trust & Savings Bank, 196 Iowa, 706 (195 N. W. 378, 31 A. L. R. 466); Shopert v. Indiana Nat. Bank, 41 Ind. App. 474 (83 N. E. 515); Ander son v. Pacific Bank, 112 Cal. 598 (44 Pac. 1063, 32 L. R. A. 479, 53 Am. St. Rep. 228); Woodhouse v. Crandall, 197 Ill. 104 (64 N. E. 292, 58 L. R. A. 385); Blummer v. Scandinavian American State Bank of Badger, 169 Minn. 89 (210 N. W. 865); State v. State Bank of Wahoo, 42 Neb. 896 (61 N. W. 252).
Judgment that the claim is preferred is affirmed, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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] |
Wiest, J.
October 30, 1928, defendant Betty, as an accommodation, signed a note for $700, payable in 90 days, to the order of defendant Fire. Plaintiff brought this suit as an alleged good-faith purchaser of the note, for value, from Fire before maturity.
At the trial it was established that Betty was an accommodation maker, and the court instructed the jury as follows:
“Now, members of the jury, since that was an accommodation note, it is incumbent upon the plain tiff, Krause, before you may rightfully give Krause a verdict in his favor, that he satisfy you that he is what is called in the law, the holder in due course of that note. Now, what is meant by that? By that is meant that he must show that he is a good faith holder of that note, that he acquired it for value, that he parted with a consideration for it, and did it without any knowledge of the fact that it was an accommodation note between Betty and Fire.
“Therefore, to entitle the plaintiff to your verdict, he must satisfy you by a fair preponderance of the evidence that he is the holder in due course, that he acquired it for value received and in good faith. If the evidence satisfies you of that, the plaintiff should have your verdict.
“What does the defendant contend? The defendant contends that being an accommodation note the circumstances of the case as revealed by the testimony, show that the plaintiff Krause is not a holder in due course, and that he did not acquire it in good faith for a valuable consideration.”
If plaintiff was a holder, before maturity, in due course and for value, defendant Ketty was liable on the instrument, even though plaintiff knew him to be an accommodation maker. Upon this we quote 2 Comp. Laws 1929, § 9277:
“Absence or failure of consideration is matter of defense as against any person not a holder in due course.”
And section 9278:
“An accommodation party is one who has.signed the instrument as maker, drawer, acceptor, or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.”
The court was in error in instructing the jury that, before plaintiff was entitled to a verdict, the burden was on him to show that he not only acquired the note for value and parted with a consideration for it, but as well did so “without any knowledge of the fact that it was an accommodation note between Retty and Fire.” Whether plaintiff was a holder in due course was a question of fact for the jury. If plaintiff was a holder in due course it was no defense to show that defendant Retty was an accommodation maker.
For the error pointed out, the judgment is reversed, and a new trial granted, with costs to plaintiff.
Butzel, C. J., and Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Fead, J.
This is review of an order denying motion to quash a petition for condemnation of certain lands lying outside the city limits of Allegan, desired by plaintiff for the construction of a municipal hydroelectric plant to furnish light and power to the inhabitants of the city. The project includes the building of a dam and flowage of over 1,500 acres of land. Other phases of the controversy have been before this court in Consumers Power Co. v. City of Allegan, 248 Mich. 34.
Plaintiff relies for its authority to condemn on certain statutes and charter provisions, and particularly on the Constitution, Art. 8, § 23:
“Sec. 23. Subject to the provisions of this Constitution, any city or village may acquire, own and operate either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof; and may also sell and deliver water, heat, power and light without its corporate limits to an amount not to exceed twenty-five per cent, of that furnished by it within the corporate limits; and may operate transportation lines without the municipality within such limits as may be prescribed by law: Provided, That the right to own or operate transportation facilities shall not extend to any city or village of less than twenty-five thousand inhabitants.”
Defendants contend that such section gives cities power only to purchase utilities, and that there is an implied constitutional prohibition against the legislature granting them authority to condemn as to outside water power and lands, because, in the constitutional convention, a proposal was presented to give cities power to condemn for such specific purposes and it was defeated after spirited discussion. 2 Debates, Const. Con., pp. 869-871, 1208-1215, 1350-1356.
In the convention, the subject of the authority to be given cities under section 23 and the subject of eminent domain, article 13, were closely related. 1 Debates, Const. Con., pp. 357, 731; 2 Id., p. 1350, Mr. Stewart. Tbe rejection of the proposal, as well as some of the discussion (2 Debates, Const. Con., p. 869, Mr. Thew), indicates that the grant of power in section 23 to cities to “acquire” public utilities was not understood or intended to include the power of condemnation. Had it been the intention to give cities constitutional power of eminent domain, it would have been provided in article 13, or definitely expressed in article 8. We are of the opinion that the authority to “acquire” in article 8, §23, does not include power of condemnation, and that' such power in plaintiff must be found in the statutes.
Despite the defeat in the convention of the proposal to give cities such right of condemnation, no relevant restriction appears in the Constitution on the sovereign power of eminent domain vested in the legislature. The result is that, although the convention refused to give cities a constitutional power of condemnation, which would be beyond control of the legislature, it left unimpaired the power of the legislature to grant or withhold it. There were too many good lawyers in the convention to justify an implication that the obvious effect of what the convention did was not intended.
In these respects, the constitutional debates illuminate, but do not change, the natural construction of the section as adopted.
Defendants contend that article 8, § 23, was intended to permit cities to establish steam plants or small works outside their corporate limits, but was not designed to authorize flowage of land. The language suggests no such limitation. Floodage is a usual accompaniment of water power. The right to acquire utilities outside the city would be of little worth if it did not include water power, the preferred means of generating electric current, where feasible. The constitutional debates on the subject revolved around power plants then already established for lighting purposes by cities and villages outside their limits. As proposed to the convention, this section did not contain the clause “either within or without its corporate limits,” and, in the discussion upon the omission, which was cured by amendment, 2 Debates, Const. Con., p. 824, the necessity for such clause was emphasized to provide for the acquisition of such outside water power. 2 Debates, Const. Con., p. 822 et seq. Defendants’ contention is not tenable.
Acting under the home rule act, 1 Comp. Laws 1929, chap. 49, plaintiff adopted an amendment to its charter substantially as permitted by 1 Comp. Laws 1929, § 2236, subd. (3):
“Sec. 4-f. Each city may in its charter provide: * * * Water, light, heat, power, transportation; referendum. (3) For the purchase and condemnation of private property for any public use or purpose within the scope of its powers; also for the acquirement, ownership, establishment, construction and operation, either within or without its corporate limits, of public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof, for domestic, commercial and municipal purposes; and for the sale and delivery of water, heat, power and light without its corporate limits to an amount not to exceed twenty-five per centum of that furnished by it within its corporate limits for like purposes; and for the operation of transportation lines without the municipality and within ten miles- from its corporate limits: Provided, That the right to own or operate such transportation facilities shall not extend to any city of less than twenty-five thousand inhabitants according to the last preceding United States census, or local census taken by authority of a resolution of the legislative body of such city. The acquirement of any such utility together with all properties, franchises, and rights necessary for its establishment, ownership, construction, operation, improvement, extension and maintenance, whether such properties, franchises and rights are situated within or without the corporate limits of such city, may be either by purchase or condemnation. If by condemnation, the provisions of act number one hundred forty-nine of the public acts of Michigan, approved March twenty-five, nineteen hundred eleven, entitled, ‘An act to provide for the condemnation by State agencies and public corporations of private property for the use or benefit of the public and to define the terms ‘ ‘ public corporations, ” “ State agencies,” and “private property,” as used herein,’ or such other appropriate provisions therefor as exist or shall be made by law, may be adopted and used for the purpose of instituting and prosecuting such condemnation proceedings: Provided, hoioever, That no such public utility shall be so acquired unless the proposition to do so shall have first received the affirmative note of three-fifths of the electors of such city voting thereon, at a regular or special municipal election.”
The essential difference between the statute and the charter is that, instead of the last proviso, the city adopted the following:
“But no such public utility shall be acquired unless authorized by a three-fifths vote of the electors voting thereon at a regular or special election.”
Defendants contend that under the rule of “last antecedent” the word “so” in the last proviso of the statute refers only to condemnation, so that the section requires the electors to vote specifically upon whether a utility shall be acquired by condemnation; and the charter provision is invalid because it omitted the word “so.”
Under article 8, § 25, of the Constitution, a three-fifths vote of the electors 'is necessary to authorize a city to “acquire” a utility. If that means that the legislature could authorize its condemnation without such vote, an inadmissible construction, the proviso might be said to have been inserted to make the condition uniform as to purchase and condemnation. Both purchase and condemnation are so commonly employed in acquiring property for public improvements that it would be difficult to imagine that the legislature intended to require the electors to approve a precise method of acquisition rather than to grant the council power to acquire, leaving to it the method which may be advisable or necessary under the circumstances. The more sensible construction is that the legislature incorporated the constitutional mandate in the statute in order to require charters to clearly express the essential of exercise of the power of acquisition, not merely its incidents, purchase or condemnation. Consumers Power Co. v. City of Allegan, supra.
Furthermore, the structure of section 4-f(3) as a whole quite conclusively demonstrates that the legislature did not have in mind the precise rule of “antecedent subjects” in drafting the statute. Such rule would be equally applicable to the preceding proviso regarding transportation, and, if there applied, would result in the unconstitutional permission to a city to acquire a transportation utility wholly within its corporate limits, although the city be under 25,000 population.
"We think the charter amendment as adopted by plaintiff is within the statutory authorization.
Piecemeal amendments of existing city charters, without previous revision or incorporating the mandatory provisions of the home rule act, are now permissible. Common Council of Detroit v. Engel, 187 Mich. 88.
Section 35 of the home rule act, 1 Comp. Laws 1929, § 2271, provides that any city may acquire by purchase or condemnation, when authorized by the electors, “any public utility and any water power and water rights for the use of such city within the corporate limits of said city.” Defendants contend that this section, being later in the act than section 2236 and being specific, modifies the earlier and general section and constitutes an implied prohibition against establishment of water power outside the city. There is no repugnancy. Section 35. is a general grant of the powér described in it to cities regardless of their charters. Section 4-f(3) grants cities the right to exercise the power described in it if they so provide by charter.
1 Comp. Laws 1929, § 4546, provides:
“Hereafter, no person, firm, corporation, or municipality shall artificially alter the stage of water or widen or deepen the channel of any watercourse, except drains established by public authority, without first securing a legal permit therefor from the commissioner or commissioners having jurisdiction over all the bridges and culverts on or over said watercourse, or the portion thereof affected by such proposed change.”
It is claimed by defendants, but seems to • be doubted by plaintiff, that the proposed improvement is within this statute and requires a permit from the State highway commissioner. Plaintiff has not alleged in its petition that it has such permit. In view of the mandatory character of the statute, section 4546, and the consideration that, before a prop erty owner may be required to defend against condemnation proceedings, the municipality should be legally authorized to make the improvement, we think the permission of the State highway commissioner, if necessary, should have been alleged in the petition. Clay v. Pennoyer Greek Improvement Co., 34 Mich. 204; Fox v. Holcomb, 34 Mich. 298; contra, Denver Power & Irrigation Co. v. Railroad Co., 30 Colo. 204 (69 Pac. 568, 60 L. R. A. 383). Under 1 Comp. Laws 1929, § 3795, the petition may be amended, but we cannot do so because the record does not show the fact for an amendment.
This proceeding covers only part of the land sought for the project. Other condemnation proceedings were begun for other portions. The action is under Act No. 124, Pub. Acts 1883, 1 Comp. Laws 1929, § 3784 et seq., is indivisible, and a single proceeding must cover all the lands sought to be condemned. Common Council of Houghton v. Huron Copper Mining Co., 57 Mich. 547; Kundinger v. City of Saginaw, 59 Mich. 355; Marquette & Southeastern R. Co. v. Longyear, 133 Mich. 94.
Plaintiff has moved in this court for consolidation of the several proceedings. The others are not here. It also appears from affidavits that' all or some of the others have been dismissed and new condemnation proceedings begun. We cannot order consolidation.
In view of the state of the record, the order is reversed, and petition quashed, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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The certification by the Court of Appeals pursuant to Administrative Order No. 1984-2 that its decision in this case is in conflict with its decision in People v Turner, 130 Mich App 646; 344 NW2d 34 (1983), and People v Coyle, 104 Mich App 636; 305 NW2d 275 (1981), is considered and the Supreme Court declines to take any further action. Leave denied June 25, 1985, reported ante, 934. Reported below: 141 Mich App 610. | [
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Boyle, J.
I
Introduction
We granted leave in these consolidated cases arising under the Michigan Worker’s Disability Compensation Act of 1969, MCL 418.101 et seq.; MSA 17.237(101) et seq., to consider the interpretation of two recently enacted "set off’ or "coordination of benefits” provisions that became effective in 1982. In each of these cases, we must decide whether an employer may apply the appropriate setoff to reduce its workers’ compensation obligation with respect to payments made after the effective date of the provision, to workers whose injuries occurred prior to that date.
In the Chambers and Gomez cases, we consider whether § 354, MCL 418.354; MSA 17.237(354), of the act permits an employer to set off against its obligation to pay workers’ compensation benefits, employer-financed pension and social security benefits received by the disabled employee after March 31, 1982, § 354’s effective date, where both the workers’ compensation benefits and the other employer-financed benefits relate to time periods after such a date.
In the Franks case, we will consider whether an employer may apply § 358, MCL 418.358; MSA 17.237(358), of the act to reduce the amount of its liability for workers’ compensation where that liability is based upon periods of disability prior to § 358’s effective date of January 1, 1982, but "payable” after that date, by setting off against that liability unemployment compensation benefits chargeable to that employer and received by the disabled employee to compensate for the wage loss during those same pre-1982 periods. We will also determine whether the Court of Appeals erred in concluding that defendant waived application of the two-year-back rule under the facts and circumstances of this case.
Both §§ 354 and 358 were enacted as parts of a series of legislative reforms of the workers’ com pensation laws of Michigan. Although § 358 was enacted on December 30, 1980, by 1980 PA 357, it did not become effective until January 1, 1982. Section 354 became effective March 31, 1982, as part of a final series of enactments on December 30, 1981. 1981 PA 203.
The cases under consideration today involve employees who were injured prior to the effective dates of the pertinent sections. In Chambers and Gomez, the plaintiffs’ employer, General Motors, applied § 354 to reduce its workers’ compensation obligation, on the basis of liability for disability during periods after that section’s March 31, 1982 effective date, to workers injured prior to that date. In Franks, the employer, White Pine Copper, sought to reduce its liability for workers’ compensation benefits payable by the amount of unemployment compensation payment the employee had already received to compensate him for his wage loss during earlier periods also covered by the workers’ compensation award.
In both instances the Workers’ Compensation Appeal Board and the Court of Appeals held that § 354 and § 358 could not be applied to reduce workers’ compensation obligations to workers injured prior to their respective effective dates.
II
The Chambers and Gomez Cases
A. Facts and Procedural History
Plaintiff John Chambers worked for defendant General Motors Corporation from April 1, 1943, until September 30, 1974, when he retired. Prior to retirement, plaintiff earned average weekly wages before tax of $238.80. Since October 1, 1974, plaintiff has received retirement benefits funded by defendant under its pension plan which have an after tax value of $103.75 per week. He also receives old age social security • benefits in the amount of $94.34 per week.
Shortly after his retirement, on October 16, 1974, plaintiff filed a petition for workers’ compensation benefits, alleging that he had developed disabling pulmonary and heart diseases as a result of his employment with defendant. A hearing was held on November 5, 1975, and an open award was entered in plaintiff’s favor on February 16, 1976, by the hearing referee. Defendant was ordered to pay plaintiff $106 per week from October 1, 1975, on the basis of a finding of an injury incurred on September 30, 1974, the plaintiff’s last day of employment. The award was affirmed by the Workers’ Compensation Appeal Board on January 30, 1978. In addition, since January 1, 1982, Mr. Chambers has received $43 per week in supplemental workers’ compensation benefits pursuant to MCL 418.352; MSA 17.237(352).
Plaintiff Anacleto Gomez was injured on May 31, 1979, when he slipped and fractured his left ankle in the course of his employment with defendant General Motors Corporation. Defendant filed a report of injury and voluntarily paid compensation to Mr. Gomez at the rate of $161 per week from the date he was injured until February 25, 1980. Shortly thereafter, plaintiff filed a petition for workers’ compensation benefits, alleging disability as a result of the 1979 injury to his left leg and ankle. In a decision mailed December 17, 1981, which was not appealed and is accordingly final, the hearing referee found plaintiff to be partially disabled and entered an open award ordering compensation payments of $161 per week. Since January 1, 1982, Mr. Gomez has also received supplemental compensation benefits in the amount of $17 per week, pursuant to § 352. In addition, plaintiff receives pension benefits of $179.36 per week, net after tax value, which are funded entirely by General Motors.
On December 30, 1981, the Legislature enacted 1981 PA 203, which included the coordination of benefits provisions of § 354, MCL 418.354; MSA 17.237(354). This section provides that an employer may coordinate employee benefits, by applying against its workers’ compensation obligations payable for compensable periods after its effective date, that portion of certain other benefits, such as pensions and social security payments, also received by the employee and financed by the employer.
On March 31, 1982, the effective date of § 354, General Motors began coordinating benefits and notified plaintiffs Chambers and Gomez that it was reducing their weekly workers’ compensation benefits in accordance with the provisions of that section. Because the sum of those portions of their employer-funded benefits subject to coordination exceeded their basic workers’ compensation payments, elimination of plaintiffs’ weekly compensation payments resulted, except for the supplemental benefits received pursuant to § 352 which were not subject to coordination.
Thus, prior to the effective date of § 354, Mr. Chambers was receiving the following weekly payments: $106 basic workers’ compensation, $43 supplemental workers’ compensation, $94.34 social security, and net after tax pension benefits of $103.75. Section 354 authorized as an offset against workers’ compensation fifty percent of social security payments, in this case $94.34 divided by 2 equals $47.17, and that proportion of retirement pension, after taxes, that have been funded by employer contributions, in this case $103.75. Because the sum of those portions of the employer funded benefits subject to coordination, $47.17 plus $103.75 equals $150.92, exceeded the workers’ compensation payment of $106, coordination resulted in termination of basic workers’ compensation benefits with the exception of the supplemental benefit payment of $43.
In the Gomez case, prior to the effective date of § 354, plaintiff was receiving pension benefits entirely funded by defendant with an after tax value of $179.35. Since the weekly after tax value of Mr. Gomez’ pension exceeded his basic workers’ compensation rate of $161, coordination resulted in termination of all workers’ compensation benefits except for $17 per week in supplemental benefits. He is, of course, still receiving his pension benefits.
Both plaintiffs requested and were granted hearings under Rule 5 as to the propriety of General Motors’ action in coordination of benefits. In both cases, the hearing referee ruled that the offset provisions of § 354 could not be applied to plaintiffs because their injuries occurred prior to the effective date of § 354. These rulings were affirmed by the Workers’ Compensation Appeal Board. The board also ruled that an employer is required to petition and prevail at an evidentiary hearing before it is entitled to coordinate benefits under §354.
Both plaintiffs also sought assessment of penalties pursuant to MCL 418.801(2); MSA 17.237(801)(2). In the Chambers case, the hearing referee denied the request on the ground that the case involved a substantial issue of statutory construction which was more than sufficient to establish an ongoing dispute. In the Gomez case, the referee awarded penalty benefits. The appeal board affirmed the denial of penalties in Chambers and reversed the assessment in Gomez, concluding that "enactment of [MCL 418.354; MSA 17.237(354)] at least created a substantial dispute as to statutory right of injured and disabled workers in plaintiff’s class to continue to receive unreduced weekly benefits . . . .” The board was satisfied that under these "first impression circumstances . . . enough of a dispute arose as to plaintiff’s right to continuing weekly benefits so as not to justify penalties.”
General Motors’ timely applications for leave to appeal were denied by the Court of Appeals in both cases and on March 29, 1984, this Court granted General Motors’ applications for leave to appeal, directing that the Franks, Chambers, and Gomez cases be argued and submitted together. 419 Mich 855 (1984).
B. Section 354 of 1981 PA 203
1. The Statutory Provision
On December 30, 1981, the Legislature enacted twelve amendments to the Worker’s Disability Compensation Act, continuing the comprehensive reform that began a year earlier. These were embodied in 1981 PA 192-203. Section 354, MCL 418.354; MSA 17.237(354), was added by 1981 PA 203 and became effective March 31, 1982. Our first step in applying the statute must be an examination of its language, for, if it is clear, interpretation is unnecessary, and it need only be applied. Selk v Detroit Plastic Products, 419 Mich 1, 9; 345 NW2d 184 (1984); Owendale-Gagetown School Dist v State Bd of Ed, 413 Mich 1, 8; 317 NW2d 529 (1982); City of Lansing v Lansing Twp, 356 Mich 641, 648; 97 NW2d 804 (1959); Grand Rapids v Crocker, 219 Mich 178, 182; 188 NW 221 (1922); MacQueen v City Comm’r of Port Huron, 194 Mich 328, 342; 160 NW 627 (1916). Unless the statutory language is unclear, "our task ... is to give effect to the plain meaning of the language used.” Owen-dale-Gagetown School Dist, supra.
Section 354(1) contains the fundamental instructional and definitional provisions which set forth the statutory preconditions for coordination, the specific other benefit sources or plans to which the provision applies and the permitted coordinations and reductions. At the time of its enactment this section provided as follows:
Sec. 354. (1) This section is applicable when either weekly or lump sum payments are made to an employee as a result of liability pursuant to section 351, 361 or 835 with respect to the same time period for which old-age insurance benefit payments under the social security act, 42 U.S.C. 301 to 1397f; payments under a self-insurance plan, a wage continuation plan, or a disability insurance policy provided by the employer; or pension or retirement payments pursuant to a plan or program established or maintained by the employer, are also received or being received by the employee. The employer’s obligation to pay or cause to be paid weekly benefits other than specific loss benefits under section 361(s) and (3) shall be reduced by these amounts ....
We disagree with the Workers’ Compensation Appeal Board to the extent that it found the provisions of § 354 ambiguous and find that this statute clearly and unambiguously requires coordination of workers’ compensation and other specified benefits for all compensable periods subsequent to its effective date, regardless of when the injury occurred. The statute does not limit its application to cases where workers’ compensation payments are made to an employee for injuries incurred after its effective date, or for injuries incurred after March 31, 1982. Nor does it contain any language indicating that it should not be applied when payments are being made for injuries that occurred prior to March 31, 1982. The Legislature’s failure to do so leaves the section generally applicable to payments made after its effective date. In the absence of express language of limitation, "[t]his court cannot write into the statutes provisions that the legislature has not seen fit to enact.” Paselli v Utley, 286 Mich 638, 643; 282 NW 849 (1938).
Section 354(9) which deals with overpayments reinforces this reading. At the time of its enactment this section provided:
(9) Except as otherwise provided in this section, any benefit payments under the social security act, or any fund, policy, or program as specified in subsection (1) which the employee has received or is receiving after the effective date of this section and during a period in which the employee was receiving unreduced compensation benefits under section 351, 361 or 835 shall be considered to have created an overpayment of compensation benefits for that period. The employer or carrier shall calculate the amount of the overpayment and send a notice of overpayment and a request for reimbursement to the employee. Failure by the employee to reimburse the employer or carrier within 30 days after the mailing date of the notice of request for reimbursement shall allow the employer or carrier with the approval of the bureau to discontinue 50% of future weekly compensation payments under section 351, 361 or 835. The compensation payments withheld shall be credited against the amount of the overpayment. Payment of the appropriate compensation benefit shall resume when the total amount of the overpayment has been withheld. [Emphasis added.]
The language of § 354(9) also demonstrates that the Legislature is capable of including words of express limitation when it intends to do so.
We also disagree with the board’s assumption that application of the coordination of benefits provision of § 354 to workers’ compensation payments for compensable periods after the effective date of the statute would constitute retrospective application simply because the liability is based upon an injury that occurred prior thereto. Hughes v Judges’ Retirement Board, 407 Mich 75, 86; 282 NW2d 160 (1979). As the board accurately observed at the outset of its opinion, "it is not contended that compensation benefits should be retroactively coordinated or reduced. Rather it is argued that the benefits of all disabled workers should be prospectively coordinated after the effective date of the enactment regardless of when they were injured
While § 354 may in some cases involve an antecedent event, such as an injury incurred prior to its effective date, by its clear language it operates only with regard to payments received and attributable to periods after its effective date. "Our [obligation] is to give effect to the plain meaning of the language used.” Selk, supra, p 9.
2. Constitutionality
Plaintiffs argue that the Legislature may not constitutionally deprive workers who were injured before the effective dates of the workers’ compensation benefits that they otherwise would have been entitled to receive after those dates. These arguments are premised on an erroneous concept of workers’ compensation benefits.
Workers’ compensation is not generally payable to compensate for an injury, although lump-sum specific-loss benefits are payable for certain injuries without regard to disability from earning wages. In this connection, it is noteworthy that the Legislature did not, in the 1981 reform act, provide for coordination of lump-sum specific-loss benefits with social security and pension and retirement benefits; in the earlier 1980 act, it did not except from coordination specific-loss benefits with unemployment compensation benefits.
Generally, however, workers’ compensation benefits are payable not for the injury — although historically there was a trade-off of tort liability for workers’ compensation benefits — but for the disability, which has been defined as loss of wage-earning capacity.
Workers’ compensation benefits are social-welfare income-maintenance benefits. Workers’ compensation is the first or progenitor safety net providing a means of income maintenance for persons who have met misfortune or whose regular income source has been cut off. All the social welfare programs — workers’ compensation, unemployment compensation, social security old age, disability, and survivors benefits, no-fault automobile benefits, aid to families with dependent children, and general assistance — are directed to the same objective, income maintenance. All these programs are funded by impositions on employers and others of mandatory payments (to the government, insurers or, in the case of the self-insured, to the beneficiary), with statutorily prescribed benefits. In providing for such benefits, the Legislature did not covenant not to amend the legislation.
Income-maintenance benefits payable under a legislatively mandated social welfare program are not property protected by the Due Process Clause, the Contract Clause, or the Takings Clause from substantive change by subsequent legislation irrespective of whether the recipient contributed to the cost of funding the benefit or of whether the program replaces a tort remedy which has been abolished.
3. The Public Policy Underlying the Coordination of Beneñts Provisions
Analysis of the legislative history of the coordination of benefits provisions provides further support for our conclusion. In November of 1981, Governor William Milliken discussed his proposals to solve what he deemed the "biggest single liability to Michigan’s job climate today.”
To start with, we must keep in mind that the purpose of workers’ compensation, after all, is to restore wage-earning capacity lost in on-the-job accidents. Workers’ compensation was never intended to be more lucrative than gainful employment or to be a retirement bonus.
I have proposed that we coordinate benefits from different employer-paid sources so that workers receive the maximum benefits to which they are entitled, but no more. It is only simple justice that an employer not be assessed costs for several different funds which result in reimbursing the injured worker for more than the lost wage-earning capacity .[ ]
Legislative analysis of § 354 by the Senate Analysis Section reiterated these concerns:
Coordination of benefits has been a major concern of employers for years. Public Act 357 coordinated workers’ compensation with unemployment compensation (effective January 1, 1982) [MCL 418.358; MSA 17.237(358)] but failed to address coordination with Social Security and other insurance and pension plans. By coordinating workers’ compensation benefits with Social Security and other benefits, Senate Bill 595 would provide a major savings to employers in the cost of workers’ compensation while maintaining adequate benefit levels for disabled workers.
From its creation in 1912, workers’ compensation in Michigan has been intended as a means of protecting an employee’s ability to earn wages by replacing wages lost because of a disability resulting from an on-the-job injury. Since 1912, other public and private wage replacement insurance programs have appeared with the result that many employees now receive wage-loss benefits from two, three, or four different programs providing a total wage "replacement” greater than the wages the employee earned while on the job, while employers who must contribute to these programs find themselves paying more than once to replace the wages of a single employee. Such a situation is contrary to the basic philosophy of Michigan’s wage-loss system and discourages some disabled employees from returning to work. Coordination of benefits, as proposed in Senate Bill 595, would reduce the overlap between the various public and private wage replacement programs while ensuring adequate wage-loss benefits to injured employees.[ ]
Finally, on December 12, 1984, Theodore J. St. Antoine, the Governor’s Special Counselor on Workers’ Compensation, presented to Governor James J. Blanchard’s Cabinet Council on Jobs and Economic Development his Report on Workers’ Compensation in Michigan: Costs, Beneñts, and Fairness. Professor St. Antoine summarized the perceived abuses in the workers’ compensation system which impelled the Legislature to enact § 354 as a reform measure:
For many years the most hotly discussed topic concerning the Michigan workers’ compensation system was the so-called "retiree problem.” It was almost unique to this State. Its legal underpinning was the notion developed by the Workers’ Compen sation Appeal Board, with some support from the judiciary, that a retired worker, even one who had voluntarily retired and gone on a company-funded pension, could still be suffering from a loss of wage earning capacity. If the retiree could demonstrate that he or she had incurred a disability caused by pre-retirement job activity or working environment (a bad back from 30 years on the assembly line or a dust disease from 30 years in a foundry), the retiree was entitled to workers’ compensation. It should be emphasized that in many of these cases the disability was undoubtedly genuine, at least in the physical impairment sense, and such an employee would unquestionably be eligible for medical benefits. The fighting issue was whether he was also entitled to recover for wage loss. . . . [F]or a "Big Three” automobile manufacturer (the most common target of this practice), it was plainly provoking, not to mention costly, to see workers take early retirement and walk out of a plant one day and then proceed to file their workers’ compensation claims the next.
In 1973 the Big Three (General Motors, Ford and Chrysler) paid out $51 million in wage loss benefits, of which $24 million, or 47 percent, went to retirees. For Michigan employers as a whole, out of a total of $191 million in wage loss benefits, $45 million, or 24 percent, went to retirees. With such a large part of the compensation dollar going to persons who were no longer part of the active work force, it was inevitable that reforms would be demanded.
Professor St. Antoine specifically endorsed the concept of coordination of benefits:
Similarly, I am satisfied that the 'coordination of benefits’ provisions in the 1980 and 1981 amendments should remain in the statute, probably permanently. The principle of avoiding duplicative payments under workers’ compensation and other income maintenance programs, such as private pensions and Social Security, was endorsed by the National Commission on State Workmen’s Compensation Laws. . . . [T]he coordination arrangements have also served to check, if not eradicate, one of the most criticized aspects of Michigan’s workers’ compensation system, namely, the payment of disability benefits to retired workers who almost by definition are suffering no wage loss. As I understand it, organized labor is not so much opposed to the concept of coordination of benefits as to its application even in situations where noncoordination would not have resulted in a worker’s receiving more than he would have earned if working. There is some merit in this view, but it is offset by the long-standing notion that income replacement should not be total lest it prove a disincentive to work, and that in any event an unemployed person will be spared certain daily expenses incurred by an active worker.
We may not premise our decision in these cases upon our own feelings about the wisdom of what the Legislature has done, nor any equitable concerns about the express proposes and potential effect of the enactment under consideration. See City of Lansing v Lansing Twp, 356 Mich 641, 648-650; 97 NW2d 804 (1959). See also Manistee Bank v McGowan, 394 Mich 655, 666-667; 232 NW2d 636 (1975). Nor is it properly part of our function to decide whether or not those things which the Legislature sought to change really constituted abuses. That the Legislature believed that it was abusive for an injured and disabled worker to receive workers’ compensation benefits and benefits from certain other sources at the same time is clear. Section 354’s rationale for eliminating the abuse of duplicate payments so that income replacement does not prove a disincentive to work applies whether an injury occurred prior to or following its enactment. We apply the statute in these cases as it literally reads, and as we believe the Legislature intended.
4. Legislative Resolution Passed After Enactment of §354
A legislative resolution passed after enactment of § 354 which purported to interpret the statute to prevent coordination of benefits of persons injured prior to its effective date is not binding on this Court. The resolution appears to have been the result of an attempt by those who had opposed the legislation to subsequently limit its scope. Had the Legislature wanted to change § 354 to impose that limitation, it could have properly done so only by amendment. Although § 354 has been amended, such amendments have not limited its application with respect to date of injury. Finally, the respectful consideration to which legislative resolutions are entitled, Boyer-Campbell Co v Fry, 271 Mich 282, 296; 260 NW 165 (1935), is offset here by the fact that a bill introduced to achieve that result was defeated.
5. Application to Facts of These Cases
As of March 31, 1982, plaintiffs Chambers and Gomez were receiving weekly payments "as a result of liability pursuant to” §§ 351 and 361(1), respectively, of the Worker’s Disability Compensa tion Act. Mr. Chambers was also receiving old age insurance benefit payments under the Social Security Act, 42 USC 301-1397f, and both were receiving pension payments pursuant to a plan established, maintained, and fully funded by their employer.
Subsequent to that date, the provisions of § 354 authorized defendant to offset against its basic workers’ compensation obligations to plaintiffs, fifty percent of the old-age social security benefits, and one hundred percent of the after tax value of the employer-funded pension benefits. It is not disputed that the sum of those portions of the employer-funded benefits subject to coordination under § 354 exceeded the amounts of defendant’s basic workers’ compensation obligations to plaintiffs herein. Therefore proper application of the setoff provisions of § 354 resulted in termination of defendant’s obligation to pay basic weekly compensation benefits of $106 to Chambers and $161 to Gomez. Plaintiffs’ supplemental benefits, received pursuant to § 352, are not subject to coordination.
C. Procedural Prerequisites to Coordination of Beneñts Under § 354
We also disagree with the board’s ruling that benefits cannot be coordinated by an employer under § 354 until the employer files a petition with the Bureau of Workers’ Disability Compensation and produces evidence at a hearing which proves that it is "factually and legally entitled to stop or reduce plaintiffs weekly benefit.” The Legislature has directly addressed this issue and provided in § 354(10) a simple statutory reporting procedure when the employer takes a credit or makes a reduction:
The employer or carrier taking a credit or making a reduction as provided in this section shall immediately report to the bureau the amount of any credit or reduction, and as requested by the bureau, furnish to the bureau satisfactory proof of the basis for a credit or reduction.
Section 354 contains no provision requiring the employer to file a petition and present proofs at an evidentiary hearing prior to coordinating an employee’s benefits. The express language of subsection (10) makes it clear that what is required of the employer is that it report the credit or reduction in benefits and provide proof of the basis for it if requested by the bureau.
Whether a claimant has received social security or pension benefits giving rise to a setoff under § 354 is an objective fact that can be readily determined. For that reason, and because the amount of the setoff is a matter of arithmetic, the Legislature has provided that the employer may coordinate benefits without prior administrative approval. However, the employer must notify the bureau of the amount of any setoff and, upon request, furnish proof of the basis for the setoff. Section 354(10). If, based on the documentation furnished, the director believes the employer is failing to comply with the act, he may convene a hearing under Rule 5 of the Bureau’s Administrative Rules, 1979 AC, R 408.35. Those procedures are facially adequate to protect the claimant’s interest; there is no reason to believe that the director, who is charged with protecting the rights of workers under the act, will not conscientiously and expeditiously investigate the matter, as he did at plaintiffs’ request in these cases. Moreover, where the director fails to act, the claimant is entitled to a hearing upon filing an application. MCL 418.847; MSA 17.237(847); 1979 AC, R 408.34.
That the hearing occurs after the employer has begun coordinating benefits does not deny due process. In Mathews v Eldridge, 424 US 319, 339; 96 S Ct 893, 903; 47 L Ed 2d 18 (1976), the Supreme Court held that the opportunity of social security beneficiaries whose disability benefits were terminated to have a post-termination hearing sufficed to satisfy the requirements of due process.
Under Mathews, the factors relevant to whether a statutory procedure satisfies due process are:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [424 US 335.]
Applying those considerations to the statutory scheme here, the private interest at stake for a claimant is the remote possibility that an arithmetical error would cause a temporary decrease, which he could later recoup, in the total benefits paid by the employer. On the other hand, overpayments by an employer while waiting for the board to approve a setoff may be difficult or impossible to recover.
The second consideration in determining whether a post-termination hearing will satisfy procedural due process is the risk of an erroneous decision. In Mathews, the Supreme Court emphasized that less than twenty percent of the original administrative redeterminations of entitlement to disability benefits were reversed on appeal. The determination of whether workers’ compensation may be set off is even less subject to error than the disability compensation termination decision involved in Mathews. Unlike a determination that a worker is no longer disabled, which may involve subjective evaluation of factual questions subject to conflicting interpretation, the fact and amount of social security and pension benefits received can be readily determined and documented. As stated in Mathews, "procedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions.” 424 US 344.
The last factor listed in Mathews was the interest of the government, which the Court equated with the public interest. 424 US 347. That consideration clearly militates against requiring a hearing prior to a setoff. The Legislature already has determined that whatever minimal value a prior hearing would have would be outweighed by the added burden on employers of paying uncoordinated benefits pending an administrative hearing and the increased administrative expenses of holding hearings._
Although we recognize that coordination of benefits may affect a substantial reduction or cessation of benefits which is inconsistent with the legislative objective to provide a disabled worker and his dependents with the means to survive "the catastrophe which the temporary cessation of necessary income occasions,” McAvoy v H B Sherman Co, 401 Mich 419, 437; 258 NW2d 414 (1977), absent a constitutional challenge or a contrary permissible reading of the statute, we are not at liberty to substitute our view regarding the equities of the procedure for that of the Legislature.
D. Conclusion
We hold that the provisions of § 354 of 1981 PA 203; MCL 418.354; MSA 17.237(354), may be applied to offset workers’ compensation liability to workers injured prior to the effective date of that section, and that an employer may reduce the amount of workers’ compensation benefits payable after March 31, 1982, for periods of disability after that date, by deducting other employer-financed benefits as provided in § 354(l)(a)-(e) which are being received by the injured employee and are attributable to the same compensable periods after March 31, 1982.
We also hold that an employer is not required to petition and prevail at an evidentiary hearing before it is entitled to coordinate benefits under § 354, but that, instead, the reporting and informational provisions of § 354(10) and the employee’s right to seek a hearing in the event of dispute will govern.
In light of our resolution of the foregoing, we approve of the wcab’s analysis and resolution of the issue of assessment of penalty benefits pursuant to MCL 418.801(2); MSA 17.237(801X2), and agree that penalty benefits should not be assessed in these cases.
The decisions of the wcab are reversed, and these cases are remanded for entry of decisions consistent with this opinion.
Ill
The Franks Case
A. Facts and Procedural History
Plaintiff Larry Franks began his employment with defendant White Pine Copper Division in June of 1970. On March 7, 1971, while classified as a development miner, he sustained a work-related injury to his right hand, which resulted in the amputation of four fingers.
Following his accident, plaintiff received 215 weeks of specific loss benefits pursuant to MCL 418.361(2)(h); MSA 17.237(361)(2)(h) for the loss of a hand. He returned to work ten weeks after his injury, on May 24, 1971. Although there is some dispute as to his job description thereafter, after a period of readjustment plaintiff resumed many of his previous duties. With the exception of layoff periods from January 4, 1976, to April 26, 1976, and from November 13, 1976, to May 31, 1977, due to defendant’s economic difficulties, plaintiff worked for defendant until August 1, 1977, when he was permanently laid off. He received unemployment benefits, which were charged against White Pine’s rating account, during both interim layoff periods and for the maximum time allowed after the permanent layoff.
On July 26, 1978, Mr. Franks filed a petition for workers’ compensation, claiming total disability as a result of the 1971 hand injury. A hearing was held in March of 1979 and in a decision dated May 24, 1979, the hearing referee found plaintiff to be partially disabled and awarded benefits commencing August 2, 1977, the first day of the permanent layoff.
A timely appeal was filed by the defendant in June of 1979 with the Workers’ Compensation Appeal Board. Defendant alleged error in the finding of disability and contended that it was entitled to a setoff for the unemployment benefits plaintiff had collected under a theory that the unemployment benefits were a substitute for wage earning capacity and therefore should be set off from compensation benefits in the same manner as wages. Plaintiff filed no appeal or cross-appeal of the decision of the hearing referee or of the August 2, 1977 benefit commencement date.
On February 18, 1982, forty-eight days after the effective date of § 358, the Workers’ Compensation Appeal Board issued its decision. The board affirmed the finding of disability and denied a setoff of unemployment benefits. In addition, the board, sua sponte, reversed that portion of the hearing referee’s order directing that payment for plaintiff’s partial disability should begin as of August 2, 1977, and ordered computation of payment due from the time claimant returned to work in 1971. Anticipating an objection from defendant based on the two-year-back rule, MCL 418.381(2); MSA 17.237(381)(2), the board held that defendant had waived any right to application of the rule by failing to affirmatively raise that issue as a defense. The Court of Appeals affirmed. 122 Mich App 177; 332 NW2d 447 (1982).
This case raises three issues. First, as in Chambers and Gomez, we must determine whether the amendatory legislation, in this case § 358 of 1980 PA 357, was intended to apply to persons injured prior to the enactment or effective date of the setoff provision. However, even if we determine that, like § 354, § 358 was intended to apply to workers whose injuries predated its enactment, that does not resolve the Franks case for we must then determine whether, under § 358, an employer may apply the. statutory setoff to reduce its outstanding liability for compensable periods prior to that provision’s effective date.
Specifically, in this case we must determine whether the employer White Pine may reduce its liability for workers’ compensation found to be payable for periods of disability in 1977 and 1978, but not yet paid as of January 1, 1982, by deducting the amount of unemployment compensation Mr. Franks received for loss of wages during those same periods in 1977 and 1978. Finally, we must determine whether the Court of Appeals erred in finding the defendant had waived the defense of the two-year-back rule under the facts and circumstances of this case.
B. Section 358 of 1980 PA 357
1. The Statutory Provision
On December 30, 1980, while this appeal was pending before the Workers’ Compensation Appeal Board, the Michigan Legislature enacted 1980 PA 357, which was the first step in the recent reform of the Michigan workers’ compensation system. The Legislature directed that most of the provi sions of this act, including § 358, were to become effective one year later, on January 1, 1982. Then, on March 10, 1982, in § 2 of 1982 PA 32, the Legislature repealed enacting § 3 of 1980 PA 357 and simultaneously reenacted § 358 along with certain other provisions providing for the same effective date of January 1, 1982, which at that time was retroactive. 1982 PA 32, § 3(2). Section 358 provides as follows:
Net weekly benefits payable under section 351, 361, or lump sum benefits under section 835, shall be reduced by 100% of the amount of benefits paid or payable to the injured employee under the Michigan employment security act, Act No. 1 of the Public Acts of the Extra Session of 1936, as amended, being sections 421.1 to 421.67a of the Michigan Compiled Laws, for identical periods of time and chargeable to the same employer.
2. Application to Pre-1982 Injuries
The Court of Appeals held that the setoff provisions of § 358 could not be applied to employees whose injuries predated that provision’s effective date. It reached this conclusion, based upon the assumption that such application would, in all cases involve retroactive application of the statute, and, after concluding that the statute was ambiguous on this question, applied principles of statutory construction to find "that the Legislature’s failure to provide clearly and unequivocally for applicability to cases of injuries predating its effective date mandates prospective application.” 122 Mich App 186.
We believe the analysis of the Court of Appeals on this question is erroneous. As in Chambers and Gomez, we disagree with the Workers’ Compensation Appeal Board and the Court of Appeals and find that the setoff provision of § 358 may be applied to reduce workers’ compensation liability to workers injured prior to its effective date. As this Court indicated in Hughes, supra, p 86, "A statute is not regarded as operating retrospectively because it relates to an antecedent event. Merely because some of the requisites for its application are drawn from a time antedating its passage^ a law is not] retrospective.” See also Selk, supra.
3. Application to Compensable Periods Prior to Effective Date
The Court of Appeals holding on the date of injury issue made it unnecessary for that court to distinguish cases in which the workers’ compensation liability relates to periods of disability prior to January 1, 1982, from cases involving compensable periods commencing on or after January 1, 1982. However, our conclusion that § 358 may be applied to pre-effective date injuries is not dispositive of the claim involved in this case and requires us to address the latter question; that is, whether the setoff provisions of § 358 may be applied to reduce an employer’s liability for workers’ compensation for periods of disability prior to January 1, 1982, by the amount of unemployment compensation benefits the employee received for the same pre-1982 periods, simply because the workers’ compensation benefits remained unpaid as of January 1, 1982. We hold that unemployment compensation paid for weekly periods prior to the January 1, 1982 effective date of § 358 may not be deducted from workers’ compensation benefits payable for the identical pre-1982 periods.
Unlike the factual situation in Chambers, Go mez, and Hughes, application of § 358 to alter liability for benefits due and payable prior to its effective date does constitute retrospectivity. In Hughes, supra, p 87, this Court made clear that "by requesting benefits not from the date of retirement but from the effective date of the amendment in question, plaintiffs seek only prospective application of the amendment.” Application of the provisions of § 358 for a period of time preceding that statute’s effective date is purely retrospective.
a. Application of Rules of Construction
(i) Is the Language Ambiguous?
Traditional general constructional rules to determine whether a statutory amendment or enactment should be held to operate retrospectively are well established. The primary and overriding rule is that legislative intent governs. All other rules of construction and operation are subservient to this principle. Therefore, the initial critical inquiry is whether the Legislature has stated its retrospective or prospective intention in clear and express language. See Karl v Bryant Air Conditioning Co, 416 Mich 558, 570; 331 NW2d 456 (1982). A statute is not open to construction as a matter of course, but only where the language used in the statute requires interpretation — where it is ambiguous or where two or more constructions can be placed upon it, where it is of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.” City of Lansing v Lansing Twp, supra, p 649. See also Owendale-Gagetown School Dist, supra, p 8; Selk, supra, p 8.
We find nothing in the language of § 358 clearly indicating that workers’ compensation benefits which remain payable after the statute’s effective date are subject to setoff where those benefits are payable for periods of disability prior to the effective date of the section and where the unemployment benefits were also paid for periods prior to the effective date. The statute merely provides that "[n]et weekly [workers’ compensation] benefits payable” be reduced by the "amount of [unemployment] benefits paid or payable to the injured employee ... for identical periods of time and chargeable to the same employer.” This language does not constitute a clear legislative statement as to retroactivity or to the period of time intended to be covered by the statute. Although it supplies some limitations as to when unemployment benefits qualify for the setoff, it says nothing about the period of time to which the setoff attaches.
Where the Legislature has not stated any retrospective intention in clear and express language and the statute is ambiguous interpretation is required. See Karl, supra.
(ii) Does the Act Actually Operate Retrospectively?
"As a matter of statutory construction, statutes are presumed to operate prospectively unless the contrary intent is clearly manifested.” Selk, supra, p 9, and cases cited therein. "A retrospective law is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a disability with respect to transactions or considerations already past.” Hughes, supra, p 85.
Although a statute is not regarded as operating retrospectively merely because it relates to an antecedent event, as we have already observed, application of the provisions of § 358 to impose a disability, in the form of a setoff, upon the amount of workers’ compensation time periods prior to the effective date of the legislation in question, is purely retroactive. Cf. Hughes, supra, p 85. The unemployment benefits at issue were received prior to the effective date of § 358. Although payments of the disability benefits were not made prior to January 1, 1982, because of the pendency of this appeal, the payments for the identical period of time as the unemployment payments involved were "due” and thus "payable” prior to the effective date of the statute. See MCL 418.801(1); MSA 17.237(801X1). See also Selk, supra, p 8, and p 17, n 3, and accompanying text (Levin J., dissenting). Workers’ compensation benefits are geared to weekly wage loss. The weekly workers’ compensation benefits at issue in this case became due over four years before the January 1, 1982 effective date of § 358. We therefore conclude that application of the statute to payments due for these periods would be purely retrospective.
(iii) Is the Act Remedial or Procedural?
An exception to the general rule is recognized where a statute is remedial or procedural in nature. Hansen-Snyder Co v General Motors Corp, 371 Mich 480; 124 NW2d 286 (1963). Thus, statutes which operate in furtherance of a remedy or mode of procedure and which neither create new rights nor destroy, enlarge, or diminish existing rights are generally held to operate retrospectively unless a contrary legislative intention is manifested. In Selk, we found the interest rate on overdue compensation payments related to a remedy or mode of procedure and was "but an incident and not the essence of a right or liability.” Selk, p 11.
The issue in this case is distinguishable from that in Selk. In essence, interest is a payment for the use of someone else’s money. As we noted in Selk, this is not a matter of substance going to the individual’s right to compensation. Rather, it is a matter of procedure. Unlike the interest statute in Selk, the statute here in question may not be regarded as wholly procedural in character. Its effect, if applied, would result in taking from the plaintiff the substantive right to receipt of compensation payments which existed prior to enactment of § 358. Consequently, only a clear statement of legislative intent could justify retroactive application.
Nor are we persuaded that § 358 should be applied retroactively because it can be characterized as "remedial.” This Court has been reluctant to apply this exception without extensive exploration of legislative intent. See, e.g., Rookledge v Garwood, 340 Mich 444; 65 NW2d 785 (1954); Lahti v Fosterling, 357 Mich 578; 99 NW2d 490 (1959). We agree with the Court of Appeals that "[w]hile § 358 is 'remedial’ in the sense that it was adopted to effect a reform which, in the eyes of many, will correct certain injustice in the system, [retroactive application would] also significantly and detrimentally affect the substantive right of certain injured employees to receipt of workers’ compensation benefits.” 122 Mich App 186. In addition, such a construction would appear to reward employers who are found to have incorrectly withheld payment of workers’ compensation benefits and correspondingly penalize those who timely made such payments prior to January 1, 1982. We cannot attribute to the Legislature an intention to reward those in defendant’s position.
We find nothing to overcome the presumption that prospective operation only was intended, and therefore conclude that unemployment compensation paid for weekly periods before the January 1, 1982 effective date of § 358 is not deductible from workers’ compensation benefits payable for the identical pre-1982 periods, but that weekly payments of workers’ compensation that become due on or after January 1, 1982, are to be reduced by unemployment compensation benefits paid or payable for the same periods.
C. Waiver of the Two-Year-Back Rule
We also are unable to concur in the Court of Appeals holding that defendant had waived the two-year-back rule, MCL 418.381(2); MSA 17.237(381)(2), Kleinschrodt v General Motors Corp, 402 Mich 381; 263 NW2d 246 (1978).
1. The Meaning of Kleinschrodt
This Court’s holding in Kleinschrodt that defendant had waived the defense of the one-year-back rule, MCL 418.833; MSA 17.237(833), by failing to raise it before the appeal board was expressly limited to the circumstances of that case. In Klein-schrodt, the hearing referee had ordered disability payments for a scheduled loss that occurred ten years before the claim had been filed. Thus, the decision involved liability for a time period that exceeded the limitations of the one-year-back rule, and it would have been both appropriate and indeed necessary to raise the rule as a defense to liability at the time of appeal. However, on appeal to the wcab, General Motors not only failed to raise what may have been the complete defense of the one-year-back rule, it specifically limited the issues to be considered by the board to the question of disability. Although the Court divided over whether the one-year-back rule is a jurisdictional limitation on the authority of the wcab or a waivable defense, the majority interpreted the provision as a nonjurisdictional "defense, akin to the statute of limitations, which can be waived.” Id. However, in its per curiam opinion, the Court noted and expressly relied upon the defendant’s stipulation as to the single issue in finding the defense had been waived.
2. Applicability of Kleinschrodt to Facts of This Case
We find the rationale and principles of Klein-schrodt inapplicable to the facts before the wcab and Court of Appeals in the Franks case. Mr. Franks filed the petition in this case on August 26, 1978. The hearing referee ordered payment of weekly benefits "from August 2, 1977 . . . .” Plaintiffs employer, White Pine, filed an application for review of the referee’s decision with the appeal board, alleging error in the finding of disability and the refusal to apply a setoff for unemployment compensation benefits. As no disability benefits had been ordered for time periods prior to August 2, 1977, there was no reason for the defendant to raise the defense of the two-year-back rule on appeal. The issue of benefits for any period earlier than two years before the petition was filed was not present to defend against.
The claimant in this case filed no application for review or cross-application requesting review of the hearing referee’s decision on the benefit commencement date. In his brief to the wcab, he indicated that "[t]his Brief is submitted in opposi tion to [the] appeal and in support of Judge Mik-ko’s Decision.” No oral argument was permitted or presented before the appeal board.
Nevertheless, in its decision, the appeal board modified the hearing referee’s order and changed the commencement date of the partial disability benefits from 1977 to 1971. Even though the question of benefits prior to 1977 had not been an issue before the hearing referee and had not been raised by cross-appeal, the board, concurrently with its award of benefits for additional time periods prior to 1977, held that the employer was barred from applicability of the two-year-back rule. It cited Kleinschrodt as the basis for finding that defendant had waived the defense. We disagree.
Under the circumstances of this case, defendant could not have appealed a ruling on the two-year-back rule to the wcab, because the decision of the hearing referee was favorable to its position on that rule. There was no reason to anticipate a need to argue that issue prior to the determination that Mr. Franks was entitled to additional benefits. Although the majority in Kleinschrodt viewed this defense as nonjurisdictional, there is no authority for requiring it to be raised in a void in the first responsive pleading or be waived. Compare MCR 2.116(D)(1) and 2.116(D)(2). See Piwowarski v Detroit Sulphite Pulp & Paper Co, 412 Mich 716, 727; 316 NW2d 719 (1982) (Coleman, C.J., dissenting). We agree with the admonition of Justice Coleman that it would be "a costly mistake to extend the holding in Kleinschrodt beyond the facts presented in that case.” (The majority did not reach this issue in its resolution of the case.)
In addition, defendant White Pine never stipulated or specified that the only issue before the appeal board was one other than the two-year-back rule, as the defendant had in Kleinschrodt. For these reasons, we conclude that under the facts and circumstances of this case, the holding that this defense was waived was clearly erroneous.
D. Conclusion
We hold that under the provisions of § 358 of 1980 PA 357, MCL 418.358; MSA 17.237(358) unemployment compensation paid for weekly periods before the January 1, 1982 effective date of the 1980 amendment is not deductible from workers’ compensation benefits payable for the identical pre-January, 1982 periods, but weekly payments of workers’ compensation that become due on or after January 1, 1982, are to be reduced by unemployment compensation benefits paid or payable for the same periods, although the worker was injured before January 1, 1982.
We also hold that under the circumstances of this case, where the decision on review before the Workers’ Compensation Appeal Board did not involve benefits for any time period which would require invoking the two-year-back rule, and the claimant had not filed an application for review or cross-appeal seeking benefits for a longer period, the holding that the defense had been waived was clearly erroneous.
The judgment of the Court of Appeals is reversed, and the case is remanded to the Workers’ Compensation Appeal Board for further proceed ings and entry of judgment consistent with this opinion.
We find defendant’s remaining challenge to the test applied by the appeal board in determining disability to be without merit and affirm the judgment of the Court of Appeals on that issue.
Williams, C.J., and Levin, Brickley, and Cav-anagh, JJ., concurred with Boyle, J.
Ryan and Riley, JJ., concurred with Boyle, J., in Chambers and Gomez, but concurred only in the result in Franks.
See below, pp 667-668, for further discussion of the legislative history.
Franks v White Pine Copper Div, 122 Mich App 177; 332 NW2d 447 (1982). The Court of Appeals denied leave in Chambers on April 20, 1983, citing its decision in Franks in the order of denial. Leave was denied in Gomez on May 24, 1983.
The statutory setoff at issue applies only to the "after tax value” of such benefits; therefore, these are the only amounts of record.
This is a supplemental workers’ compensation benefit designed to account for the effect of inflation on the basic award. It is not subject to coordination. See also n 19 for further discussion of the supplemental benefit provision.
An administrative hearing for the purpose of determining noncompliance with the Worker’s Disability Compensation Act, authorized under Bureau Administrative Rules, 1979 AC, R 408.35.
See below, pp 667-668, for an historical discussion of the 1980 amendment.
Several minor amendments were made to clarify the act in 1983 PA 159. The only change to the introductory paragraph of subsection (1) was insertion at the beginning of the second sentence of: "Except as otherwise provided in this section”; the other changes were minor and for clarification only, having no effect on our interpretation of the statute except to support our interpretation under the doctrine of expressio unius est exclusio alterius, because the amendments have not included any language to prevent application to persons injured prior to the effective date of the statute. In fact, a bill introduced to achieve-that result was defeated. See n 19.
The 1983 amendment substituted "March 31, 1982” for "the effective date of this section” in subsection (9).
The Michigan Constitution provides, however, that "[t]he accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.” Const 1963, art 9, § 24.
See Shavers v Attorney General, 402 Mich 554, 620; 267 NW2d 72 (1978). See also Lahti v Fosterling, 357 Mich 578, 591-592; 99 NW2d 490 (1959).
Remarks by Governor William G. Milliken to the Ann Arbor Chamber of Commerce on November 18,1981.
Id.
Senate Analysis Section, SB 573: First Analysis, p 6 (January 7, 1982).
Senate Concurrent Resolution No. 575 adopted by the Senate on April 1, 1982, 1982 Senate Journal 626, 705; adopted by the House on May 18, 1982, 1982 House Journal 1262. For the text of the resolution, see 1982 Senate Journal 686.
While we have expressed "respect” for legislative resolutions, we must decide cases by reference to the language of the statutes in question. See, e.g., Becker v Detroit Savings Bank, 269 Mich 432; 257 NW 853 (1934); McAvoy v HB Sherman Co, 401 Mich 419, 456-460; 258 NW2d 414 (1977).
The recorded vote in the Senate indicates that a majority of those who voted in favor of the resolution had voted against § 354, and all but one of the Senators who had voted against § 354 voted for the resolution. Senate Vote on Concurrent Resolution No. 575 and Roll Call No. 174, 1982 Senate Journal 706-707. See also the comments of Senators Brown and Engler, 1982 Senate Journal 705.
See n 7.
Senate Bill No. 834, introduced on May 20,1982.
Section 352 was enacted as part of 1980 PA 357 on December 30, 1980 and provided for compensation supplements for those injured in the years 1965 to 1979. These supplements range from 10.3 percent for those injured in 1979, to 40.7 percent for those injured in 1975, to 88.6 percent for those injured in the years 1965 to 1968 and are not subject to coordination. While the reform package may not have resulted in perfect equity for everyone, we are unable to say that it does not represent a reasoned legislative attempt to reconcile fairly the various interests of workers injured at different dates with the economic needs of this state.
See n 5.
In fact, under the provisions of § 354 the employee must provide the employer or carrier with properly executed authority for release of information "to be utilized by the employer or carrier to obtain necessary benefit entitlement and amount information from the appropriate source.” § 354(6). See also § 354(3). Compare Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985).
It appears that sometime in 1971 the development-miner classification was eliminated and plaintiffs classification moved up to that of a driller-blaster. Although the parties seem to agree that plaintiff could not have used the type of drill he was using prior to his injury, the defendant had substituted new equipment which plaintiff was able to use. Many of the duties in these job descriptions overlap.
Such charges result in an increase in unemployment tax paid by the employer.
We also note that the Court of Appeals reliance on a legislative resolution related to § 354 is erroneous. As discussed ante, p 659, the resolution in question is nonbinding with respect to § 354 itself. Thus, it would be incongruous to apply it to interpret the provisions of §358.
Although there was some disagreement among the members of this Court as to the importance of effective dates in determining legislative intent, see Selk, p 35, n 2, and pp 41-42 (Levin J., dissenting), we agree here that there is nothing in either the history of the statute or the provisions for its effective date that can overcome the presumption that the statute was to apply prospectively only to payments for periods of disability from and after the effective date.
Justice Ryan concurred with Justice Coleman in viewing the one-year-back provision as a jurisdictional limitation on the authority of the wcab which is not subject to waiver by the parties. 402 Mich 384 (Coleman, J., dissenting). They criticized the majority for overruling Michigan precedent without any legal or policy justification. Id., pp 385-386, citing Loucks v Bauman, 356 Mich 514; 97 NW2d 321 (1959), and Baldwin v Chrysler Corp, 67 Mich App 61; 240 NW2d 266 (1976).
The Court of Appeals has applied the rationale of the Klein-schrodt majority to the two-year-back rule, holding that it is “akin to a statute of limitations” and is waivable, not jurisdictional. Kingery v Ford Motor Co, 116 Mich App 606, 615; 323 NW2d 318 (1982); Howard v General Motors Corp, 132 Mich App 639; 348 NW2d 286 (1984), remanded on other grounds 419 Mich 948 (1984). As this issue need not be decided in this case, we intimate no opinion as to the correctness of these decisions. We hold merely that, assuming arguendo that the two-year-back rule is waivable, the Court of Appeals ruling that it was waived in this case is clearly erroneous. | [
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] |
This Court has received the Decision and Recommendation of the Judicial Tenure Commission in this matter together with the respondent’s consent to the recommendation of the commission that he be publicly censured. After due consideration of this matter:
1) We adopt the finding by the commission that the statements of the respondent set forth in its Decision and Recommendation render respondent "guilty of conduct clearly prejudicial to the administration of justice and misconduct in office which undermines the effectiveness of the judiciary in Michigan and engenders public disrespect.”
2) In the case of In re Bennett, 403 Mich 178, 199 (1978) we indicated:
"The point, then, as also reflected in our judicial canons and opinions dealing with other judicial misconduct cases, is that a judge, whether on or off the bench, is bound to strive toward creating and preserving the image of the justice system as an independent, impartial source of reasoned actions and decisions. Achievement of this goal demands that a judge, in a sense, behave as though he is always on the bench. Or, in the words of Canon 2 of the Code of Judicial Conduct, 'He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen ....’”
3) This order shall stand as our public censure of the respondent. It is our expectation that the conduct which gave rise to this complaint and subsequent proceedings will not be repeated.
"State of Michigan
"Before the Michigan Judicial Tenure Commission
"In the Matter of:
Hon. Daniel L. Tschirhart
Judge, 54B District Court
Formal Complaint No. 32
East Lansing, Michigan
"Commission Decision and Recommendation
"I
"On October 9, 1984, by order of the Supreme Court, the Honorable Frank E. Jeannette was appointed as Master to preside over the healing on Formal Complaint No. 32 of the Michigan Judicial Tenure Commission against the Honorable Daniel L. Tschirhart, Judge, 54B District Court, East Lansing, Michigan. The Master submitted his report on January 18, 1985, 30 days after the December 18, 1984, hearing. The Respondent filed his Objections to the Report on January 31, 1985. The Examiner filed its Petition to Adopt the Report of the Master on February 8, 1985, and its Brief to the Commission was filed March 4, 1985. The matter was called for hearing before the Commission on March 11, 1985. Oral argument on behalf of Respondent was presented by his attorney, Thomas A. Bengtson. Argument on behalf of the Examiner was given by Joseph F. Regnier, Examiner.
"n
"Upon due consideration of the Master’s ten page report containing findings of fact and conclusions of law, upon consideration of the record, including Respondent’s Objections to the Report of the Master, and examination of briefs filed on behalf of Respondent and Examiner, the Commission adopts the Master’s findings of fact and conclusions of law in into.
"Upon review of the record, examination of the briefs of the parties, exhibits admitted, and the Report of the Master, the Commission finds that the facts were not materially in dispute. From the onset of the investigation the Respondent has admitted his arrest and subsequent acquittal on charges that he defrauded a Nevada cab driver of a round-trip fare to a legal brothel. So, too, he admitted that within days of the incident, he granted an interview with a reporter he knew from the Lansing State Journal and that during the interview he made several remarks of the incident including the following:
"(a) 'You bet I would do it again, under the same circumstances. I’m more concerned about my principles than public reaction on an emotional basis about something that doesn’t even count.’ Lansing State Journal, April 22, 1984.
"(b) T will fight the charge that I defrauded a Nevada taxi driver, even if it means generating publicity about my visit to a legal brothel there.’ Alpena, Michigan, News, April 20,1984.
"(c) 'I enjoyed it. It was fun. There’s nowhere like it in the world.’ Lansing State Journal, April 22, 1984; Flint Journal, April 23, 1984.
"(d) 'Although I’m not in favor of legalized prostitution, the trade was handled a lot better in Mustang Ranch than it was on East Michigan Avenue in Lansing.’ Lansing State Journal, April 22, 1984.
"He also admitted that in the course of the interview he rendered comments concerning certain other controversial incidents marking his judicial career. These include:
"(a) On the Michigan State University gang rape trial which he dismissed in 1983, he said he still receives hate mail and telephone calls from across the country. He commented:
" 'How am I supposed to have respect for those people who call me up and tell me they wish that kind of violence on my wife or daughter. This woman from California who’s been on my case called and said just that. I said "same to you honey.” ’ Lansing State Journal, April 22,1984; Flint Journal, April 23,1984.
"(b) Other comments about the Michigan State University gang rape trial included his recommendation that the Ingham County Prosecutor’s Office be taken to task for pursuing the case as far as it did. He remarked:
" 'This was a noteworthy case. Was the attorney Don Williams, whom they sent to prosecute it, the best, most seasoned trial attorney they had to handle it? If so, this county is in trouble.’ Lansing State Journal, April 22, 1984.
"'. . . (w)as this a token effort by Mr. Houk to give lip service to certain political factions? If this was a serious effort at prosecution, where was he when this case was being tried before the nation? Everybody in the legal community knows this case was a joke.’ Lansing State Journal, April 22,1984.
"(c) On the fact that his ex-wife took him to court in 1982 to collect $7,025 in delinquent child support payments, the Respondent declared:
“ T paid $45,000 over the last three years in after-tax dollars for child support. Ask them how much they spent on their children.’ Lansing State Journal, April 22,1984.
"Finally, regarding his plans to run for re-election, he admits he remarked:
" T probably will run again in 1986 just so I can raise a little more hell.’ Lansing State Journal, April 22, 1984; Detroit Free Press, April 23, 1984.
"In light of the Respondent’s factual concessions, the sole question before the Master was the conclusion of law that Respondent’s media defense of the Reno incident and public comments regarding other controversial incidents concerning him constituted conduct clearly prejudicial to the administration of justice and misconduct in office. After attentive study of the record and consideration of arguments made on both sides, the Commission finds, in accordance with the Master, that the statements of Respondent bring the judicial office, and the judiciary in general, into disrepute and that such disrespectful, defiant and inappropriate comments constitute judicial misconduct.
"The proper administration of justice requires that the Commission view the Respondent’s actions in an objective light. The focus is necessarily on the impact his statements might reasonably have upon knowledgeable observers. Although the Respondent’s subjective intent as to the meaning of his comments, his newly exhibited remorseful ness and belated contrition all properly receive consideration, any such individual interests are here necessarily outweighed by the need to protect the public’s perception of the integrity of the judiciary.
"As the Master observed, the Respondent did not merely grant a media interview to respond to the charge of the Nevada cab driver, but made a series of defiant, flippant, and disparaging remarks which could only serve to erode public confidence in the judiciary. Additionally, the record indicates that Respondent was aware before he made the comments, that publicity concerning the Reno incident would likely bring a complaint against him by the Judicial Tenure Commission. Nevertheless, he defiantly declared to the media:
" T will fight the charge that I defrauded a Nevada taxi driver, even if it means generating publicity about my visit to a legal brothel there. . .[.] I’m more concerned about my principles than public reaction on an emotional basis about something that doesn’t even count.’
"Moreover, the Respondent testified at the hearing that he realized, before he made the remarks, that they might 'cause a little aspersion upon the judiciary.’ (12-18-84 Tr., p. 51). Despite this and in complete disregard of his ethical obligation under Canon 2 of the Code of Judicial Conduct, he granted the interview to the State Journal and another to WILX Channel 10 expounding his views on not only the Reno incident but other controversial incidents concerning him as well. To add fire to the undeniable controversy he was creating, he then, in a defiant, brazen manner, declared:
" 'I probably will run again in 1986 just so I can raise a little more hell.’
"The Commission can only agree with the conclusion of the Master that this statement, 'has a particularly odoriferous appearance in the context it was uttered’ and that '[t]he ordinary reader would conclude respondent is referring to a course of conduct in disregard of the law. . . .’ (Master’s Report, p. 8).
"Ill
"Canon 2A of the Code of Judicial Conduct provides:
" 'Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.’ (Emphasis added[.])
"According to the Michigan Supreme Court, the Canon requires that a judge behave as if he were always on the bench.
"The Court, in [In re] Bennett, declared:
" 'As the judicial canons suggest, there is demanded of judges [of] this state the highest standards of personal and professional conduct.’ (Emphasis added.) 403 Mich 178, [193] (1980) [sic, 1978].
"The Respondent’s remarks to the media stand as blatant evidence of his indifference to the ethical obligations incumbent on his office and constitute an undeniable display of his callous disregard for the necessity of avoiding the appearance of impropriety. A judge must be and must be perceived to be a person of absolute integrity. When a judge’s character and morals come into question not only do the people lose respect for him as a person, but worse, respect for the Court over which he presides is lost as well.
"IV
"Wherefore, the Michigan Judicial Tenure Commission, having adopted the findings of fact and conclusions of law of the Master finds that Judge Tschirhart is guilty of conduct clearly prejudicial to the administration of justice and misconduct in office which undermines the effectiveness of the judiciary in Michigan and engenders public disrespect. The Commission therefore recommends discipline for the further protection of the public and the judiciary and respectfully submits that public censure is mandated to vindicate the public interest in connection with these findings of misconduct.
"Accordingly, we respectfully recommend to the Michigan Supreme Court that Respondent be publicly censured in accordance with Const 1963, Art VI, Sec 30 and MCR 9.225.
"Judicial Tenure Commission of the State of Michigan
"By: /s/_
Thomas J. Foley, Chairman
/s/_
John S. Abbott
/s/_
James R. McCann
/s/_
Marjorie Peebles-Meyers
/s/_
Harold E. Resteiner
/s/_
James S. Thorburn
"Commissioners Kelly and Groner were absent when the Commission considered this matter. Commissioner Farhat disqualified himself.
"Dated: March 27,1985.”
"Concurring Opinion and Recommendation
"I concur in the decision and recommendation of the Commission.
"The decision and recommendation of the Commission contains the following citation:
" 'According to the Michigan Supreme Court, the Canon requires that a judge behave as if he were always on the bench.’
" 'The Court, in /In re] Bennett, declared:
" ' "As the judicial canons suggest, there is demanded of judges [of] this state the highest standards of personal and professional conduct.” (Emphasis added.) 403 Mich 178, [193] (1980) [sic, 1978].’
"It also contains the quote of the respondent to the effect that:
" T will fight the charge that I defrauded a Nevada taxi driver, even if it means generating publicity about my visit to a legal brothel there. . .[.] I’m more concerned about my principles than public reaction on an emotional basis about something that doesn’t even count.’
"The fact that brothels are legal in the state of Nevada does not permit a Michigan judge outside his jurisdiction to participate.
"Obviously, the standard that must be applied is the Michigan standard and not the Nevada standard, the South African standard, the Argentinian standard or any other standard.
"A visit of a Michigan judge to a Nevada brothel is judicial misconduct for a Michigan judge.
"Accordingly, I respectfully recommend to the Michigan Supreme Court that the respondent be publicly censured in accordance with the Commission’s decision and recommendation and also including this recommendation.
"Judicial Tenure Commission of the State of Michigan
"By: /s/_
James S. Thorburn
Commissioner” | [
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Montgomery, J.
The plaintiff recovered a verdict on. a fire-insurance policy, and defendant brings error. The defenses made below were two: (1) That the plaintiff himself burned the property; and (2) that there was a violation of the “ clear-space clause,” so called.
The first question was submitted to the jury, and found against the defendant. The meritorious question arises out of the following provision of the policy, viz.: “ Warranted by the assured that a continuous clear space of 150 feet shall hereafter be maintained between the property hereby insured and any wood-working or manufacturing-establishment.” It appeared by the undisputed testimony that there was not between an unused sawmill and the lumber insured 150 feet of clear space; that the mill was situated about 250 feet in a direct line from the lumber, but that 101 feet from the lumber was a house 18x46, and that from this house to the mill was a distance of about 100 feet. Plaintiff’s counsel concede that the situation was not exactly as warranted, but contend that the agent of the insurance company was fully apprised of the situation before the policy was written,.and that, therefore, within the rule laid down in Michigan Shingle Co. v. State Invest. & Ins. Co., 94 Mich. 389 (22 L. R. A. 319), and Michigan Shingle Co. v. Pennsylvania Fire Ins. Co., 98 Mich. 611, the company is estopped from asserting the breach of warranty. The defendant’s counsel, on the other hand, contend that the undisputed testimony shows that the true state of facts was not revealed to the agent.
It would appear by the testimony of defendant’s witnesses that a diagram was prepared by a Mrs. Underwood, a clerk in the office of the agent, Shaw; that this diagram showed the distance from the lumber to the mill to be 350 feet; that in a line drawn from the mill to the lumber east and west there were no buildings or barns, but a dwelling house and barn were shown farther north; that the barn was marked 95 feet from the lumber, and the distance from the barn to the mill was not given, nor were the dimensions of the barn given'; so that it is not‘very clear from the plat whether or not there would be 150 feet of clear space between the barn and the mill, assuming the correctness of the map, but it is clear that, according to any scale adopted, there was not shown any such clear space. If the distance noted on the east and west line as 350 feet be taken as a basis, it is still uncertain, as the size of the barn is not given.
It is admitted, however, that the diagram drawn by Mrs. Underwood is inaccurate, in that it should have placed the house and shed substantially on a direct east and west line drawn from the lumber to the mill, and that there was not in fact a clear space of full 150 feet. It is contended by counsel for defendant that plaintiff’s own testimony shows that this diagram was drawn from the plaintiff’s directions, and fully approved by him. Mr. Collins did, it is true, testify that the preparation of the diagram was done under his supervision, but he further testified as follows:
“ Q. What is your recollection as to the location as given by you of the barn and the dwelling house that were represented here to the left of the 350 feet ?
“M. Well, I think this is just the same as I have looked at before. I went there, and made an application to insure the lumber that I had at Conger Station; and Mr. Shaw asked me the location and the surroundings, and I went on and described to him, as well as I could, and he didn’t appear to understand. Then I took a scrap of paper, and made a rough diagram of it, upon which I represented those buildings; and I told them about these buildings being there, and the distances. The house I represented as a small house, and a small barn, I think I called it, that was north of it. I had marked out the location of this dwelling on this diagram.
“ Q. How does the location that Mrs. Underwood has given upon the diagram of that house and barn correspond with what you told them, as you remember it, as to the location ? Have they got it correct as you told it ?
“A. They have got it correct with the exception of having the buildings farther north than I marked them in my diagram, — than I told them. That is my recollection.
“ Q. You made no measurement at the time, and didn’t make any diagram of the ground, and what you told them was from your recollection of the location of things there ?
“A. I had paced; I hadn’t measured with a tapeline.
“ Q. (showing witness a map). You notice on this map a house and shed, as they call it, represented as on a direct line between the lumber and the mill ?
“A. Yes, sir.
“ Q. Now, you see the way they represented it on the diagram ?
“A. Yes, sir.
“ Q. Way to the north or left of that ?
“A. Yes, sir.
“ Q. You say you had paced the distance from the lumber to the house ?
“A. Yes, sir; I made it 95 feet by pacing, and 101 feet by measurement with a tapeline afterwards; that was from the house to the lumber.
“ Q. What I want to know is whether Mrs. Underwood is correct according to your recollection,— whether you represented the location of this house in the place she has put it on the diagram.
“A. I don’t think I did. I knew where the house was. I think' that I got the house on the diagram that I gave her, and I think you will find it, if you find it, right there at about the north end of the house, as represented here. I made the diagram by standing over near the lumber on the north part, and I looked from there, and I think I got the house a little too far north. But I don’t think I got it as far north as she has got it. I am quite positive that I did not. I think she made a mistake there. * * *
“ Q. Bid you pronounce it correct after she had got through drawing it, as she testifies?
“A. I did not look at it at that time as it is here now, if that is the one.
■“ Q. She testifies that that is the one. Have you any doubt of that ? Have you any doubt that she testified to the fact ?
“A. I would not want to. It don’t seem possible to me that I could be so mistaken about that house being so far to one side there, but I have no doubt of her truth in the matter.”
We think this testimony was sufficient to raise a question for the jury as to whether the plaintiff, at the time of taking out the insurance, informed the agent of the situation of the property with substantial accuracy. It is significant that none of the parties understood that this diagram was precisely accurate. If, as the plaintiff states, the diagram drawn by him showed the house and barn farther south, it was not his fault that the clerk made the mistake in putting on paper the results of the information given her.
The other questions raised have had consideration, and no error is discovered.
The judgment will be affirmed.
The other Justices concurred. | [
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] |
Long, J.
At a regular meeting of the respondent lodge, June 5, 1897, the relator was fined the sum of one dollar by the president of the lodge for not obeying the call to order then and there made by the president in the presence of the members of the lodge, which the respondent now claims was lawfully imposed in accordance with, and by virtue of, the constitution and by-laws then in force in that order. The relator having refused to pay such fine, the same was added to his dues and assessments. Having thereupon refused to pay his dues.and assessments by reason of said fine having been added, he was expelled from the lodge. Relator then appealed from such order expelling him to the grand lodge, where the action of lodge No. 86 was affirmed. It is claimed by respondent that this was the tribunal of ultimate appeal.
Relator filed his petition in the Wayne circuit court for a mandamus to compel the respondent to reinstate him in the lodge. Respondent answered the order to show cause. The issues raised by the petition and answer came on to be heard before Judge Donovan in the Wayne circuit court. Respondent introduced in evidence the constitution and by-laws of the order, the records of the lodge relating to the imposing of the fine and expulsion of relator, the record of the appeal, and the action of the grand lodge. Testimony was also taken in the cause by relator and respondent. March 26, 1898, the court granted the mandamus. The case is now brought into this court by writ of certiorari.
Section 2, art. 7, of the constitution provides:
“The fines and reprimands by the president shall be determined by the by-laws of the subordinate lodges.”
Section 4, art. 7, provides:
“The expulsion of a member shall take place for the following offenses: (a) A member who has not paid all of his dues and fines at the monthly meeting. * * * ”
Section 4 also provides that a member—
“Shall be notified of his arrearage by the financial secretary, and if, after such notice, he fails to pay his in debtedness at the following monthly meeting, he is expelled.”
Section 5, art. 7, provides:
“All fines imposed upon members shall be recorded in a special book, and, if not revoked, shall be added to the dues of such members.”
It appeared on the hearing of the cause in the court below that the by-laws of the lodge were printed in the Bohemian language, and a translation made, which appears in the record before us. Such by-laws provide, substantially, that any member of the lodge shall be liable to a fine of one dollar, “who, during the meetings, does not preserve order, or who does not obey the warning of the chairman.” The record of the meeting shows that a fine of one dollar was imposed upon the relator for disobeying the chairman when called to order. It was shown that he did not pay his fine. It therefore appears from the record that the relator was lawfully fined one dollar, which he refused to pay. This fine was added to his dues, after having been duly recorded in the special book, as required by section 5, art. 7, of the constitution, and the fine has never been revoked. Relator was notified of the amount due the lodge for the fine and dues, as required by subsection a, § 4, art. 7, of the constitution. This notice was in writing, and it was shown that it was received by relator, and at the following monthly meeting he was expelled.
The court below seems to have had some doubt as to the explicitness of subsection a, § 4, art. 7, of the constitution, in providing under what circumstances a member should be expelled from the order. We think the fair interpretation of this section is that the member shall be expelled from the lodge and the order for the offenses enumerated in the by-laws, and the relator was found guilty of the violation of the by-law above set forth.
Counsel for relator contends that the action of the president was not ratified by the lodge. The order of expul sion was, however, ratified. The record of the meeting of July 31, 1897, shows that the expulsion was ratified.
It is also contended that the notice of expulsion sent to relator was not sent as the by-laws require; that is, by registered letter. The letter was, however, received and acted upon by the relator. He appealed to the grand lodge after the notice was received by him.
We are satisfied that the president acted within the power conferred by the by-laws, and that it was the duty of the relator to pay his fine, if he desired to retain his standing in the lodge.
One other point is suggested, and that is that the relator tendered the money, including the fine, to the secretary, before the time of expulsion. The record does not show this fact. All that is claimed is that the relator went there, as he claims, to pay the money, but the president would not give him the password, and he therefore could not get into the lodge, and the president told him he was no longer a member.
The order of the circuit court granting the mandamus must be reversed, and the mandamus denied.
The other Justices concurred. | [
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Mooke, J.
This is an appeal from an order overruling a demurrer to a bill of complaint. Complainant filed a bill in chancery, alleging, among other things, that he is the owner of a farm, in the county of Saginaw, that borders on the county line between Bay county and Saginaw county, and that defendants are flooding his lands with water, which is brought to his farm by means of ditches constructed by defendants, making his lands useless for farming purposes. The bill alleges defendants are yearly increasing the amount of water thrown upon his lands, and threaten to enlarge the quantity by opening and extending more ditches; that the water so discharged creates a nuisance, and has done him much damage; and prays for an accounting for the damages done, and for an injunction to prevent the further flooding of his lands. The bill shows complainant’s lands are in Saginaw county, while all the ditches which have been opened are upon land in Bay county, except such culverts as are made in the highway between the two counties. A general demurrer is interposed to the bill by all of the defendants. Only a portion of the reasons set up in the demurrer are discussed in the brief.
It is said the township of Frankenlust cannot be made a party to a suit in Saginaw county; citing Pack, Woods & Co. v. Township of Greenbush, 62 Mich. 122. Whether this contention is true, where the township is a trespasser to real estate situated in another county, is not decided by the case cited. If it is true, the case can be discontinued as to the township.
It is claimed the complainant has no standing in a court of equity, becáuse the acts of which complaint is made were done more than six years before the bill was filed, and complainant has an adequate remedy at law. The bill alleges the trespass to be a continuing and increasing one. The jurisdiction to grant injunctions to prevent trespasses upon lands, though sparingly exercised, is well established, where the trespass is of a continuing nature, whose constant recurrence renders the remedy at law inadequate, unless by multiplicity of suits. 1 High, Inj. § 697; 1 Wood, Nuis. § 376; Gregory v. Bush, 64 Mich. 37 (8 Am. St. Rep. 797).
It is also claimed the individual defendants opened ditches upon their own lands, which are all in Bay county, and would have resulted in no injury to complainant had it not been for the action of the highway officer of the township of Frankenlust, which township is in Bay county; and that no action can be maintained against that officer, and those who assisted him, except in Bay county,- — citing 2 How. Stat. § 7549; Graham v. Montcalm Circuit Judge, 62 Mich. 147. These citations, instead of aiding defendants, are against them. What is the fact in this case which gives complainant a right to maintain this proceeding, if he has such a right? It is manifestly a trespass to his lands by causing to come upon them water in unusual quantities, to his injury. That trespass does not occur until th® water reaches his land. It is true, some of the agencies which cause this result are set in motion some distance away from his land, and in the adjoining county. These acts would have constituted no cause of complaint had they not resulted in a trespass, and the act which constituted the trespass was the arrival and the spreading of the water upon the land of complainant in unusual quantities. The complainant resides in Saginaw county. The land injured is in that county. The trespass occurs upon the land in that county, and we think the chancery court of that county has jurisdiction to dispose of the case. 2 How. Stat. § 6611.
The order overruling the demurrer is sustained, with costs, and defendants are allowed 20 days in which to answer.
The other Justices concurred. | [
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Reported ante, 407. | [
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The certification by the Court of Appeals pursuant to Administrative Order No. 1984-2 that its decision in this case is in conflict with its decision in In re Scbejbal, 131 Mich App 833; 346 NW2d 597 (1984), is considered, and the Court declines to take further consideration of the question presented. Reported below: 141 Mich App 170. | [
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Grant, C. J.
(after stating the facts). 1. By the deed and the declaration accompanying it, Henry Williams had only a life estate in the land, and at his death the title revested in complainant. Had the declaration been incorporated in the deed, no question would arise as to its effect. As between the parties, the same effect -must be given to the words when found in the declaration as when found in the deed. Only creditors of Henry Williams, and purchasers in good faith and for a valuable consideration, have rights in the property superior to those of the grantor and grantee.
2. Mrs. Williams was not a purchaser for a valuable consideration. She did not loan this money to her husband with any express agreement that these premises were to be conveyed to her in consideration for the loan. The money transaction was such as is common between husband and wife.
3. It is urged that this deed was made to defraud the creditors of complainant and defendant Julia, who were copartners in business at the time, and that, therefore, equity will not interfere. We find no tangible evidence to sustain this theory.
4. Mr. Henry Williams and his wife at one time executed a deed to one Archibald Campau. Mr. Campau subsequently redeeded the land to Mr. Williams. Defendant’s counsel urges that there is nothing upon this record to show that Mr. Campau was not a bona fide purchaser, and, the presumption being that he is one, that Mrs. Williams is entitled to the same protection that would be given to Mr. Campau if a bona fide purchaser. This might be true if Mr. Campau had made the deed direct to her; but where property is conveyed by a trustee to a bona fide purchaser, and the title to the property is reconveyed to the trustee, the trust reattaches. % Perry, Trusts, § 830.
5. It is urged that defendant Julia is, in any event, entitled to an accounting for the rent of that part of the building occupied by complainant during her husband’s lifetime. As already said, there is nothing in the record to indicate the existence of the relation of landlord and tenant, except the mere fact that the title was in the father, and a portion of the building occupied by the son. Whatever presumption might arise under the circumstances of this case, we need not consider. If complainant was bound to account to any one for the rents, it would not be to Mrs. Williams, but to the estate of Henry Williams.
Decree affirmed, with costs:
Montgomery, Hooker and Moore, JJ., concurred. Long, J., did not sit. | [
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Long, J.
This action of trespass was brought in justice’s court, and removed to the circuit on plea of title.
The case was tried before a jury, who rendered a verdict in favor of plaintiff. Defendant brings error.
The plaintiff claimed to be the owner and in possession of an island in the Clinton river, in Macomb county. He introduced in evidence certain deeds of conveyance, describing the lands in controversy as: “Being the island in section 19, in township 3 north, of range 12 east, containing 21 37-100 acres, be the same more or less.” The first deed offered in evidence by the plaintiff bears date January 9, 1833, given by James Cheney to Clem Cheney, and recorded in the office of the register of deeds of Macomb county, January 10, 1833. Deeds of this same description were also offered by him, as follows: Clem Cheney to James Cheney, July 29, 1834, recorded August 2, 1834; James Cheney and wife to Peleg D. F. Ewell, dated August 22, 1850, recorded May 8,1851; Peleg D. F. Ewell to Franklin Selleck, dated December 5, 1851, recorded January 7, 1852; Franklin Selleck and- wife to Lebbeaus Ewell, dated September 1, 1852, recorded September 22,1852; Lebbeaus Ewell and wife to John George, dated October 7, 1853, recorded October 19, 1853; John George, by his executrix, to Sally George, dated April 6, 1864, recorded October 20, 1864; Martha J. Bacon et al., heirs at law of Sally George, to Lewis B. Goff, plaintiff, dated March 5, 1894. Many of these deeds conveyed other lands, and in most of them the lands are designated as “the island in the Clinton river, section 19, town 3 north, range 12 east,” etc.
Plaintiff introduced evidence tending to show that, since and up to and including the year 1897, he and his grantors had paid the taxes on the land in controversy. The lands are described on the tax rolls for the various years as the island, and central part of the southeast fractional quai’ter, of section 19. This land was assessed with other lands during those years. Some evidence was given tending to show that the Clinton river, up to and above this land, was a meandered stream, and the farms along it were surveyed as bordering on the river. Plaintiff also gave evidence tending to show that this so-called “ island” was situate about the center of section 19; that, prior to 1842, the island was fenced all around on the inside of the channels of the stream by rail and brush fences, and that 19 years ago some traces could be seen of these fences; that it was cleared of timber except a few trees, and that, while the Cheneys owned it, they cut hay there, pastured the land, and sowed oats on a part of it; that there was but one island in the river; that, while Ewell owned it, he pastured it, building a bridge to it for his cattle and sheep to cross over; that others of plaintiff’s grantors cut hay on the premises; that the fences, however, were not kept up for the last 15 years. Some of plaintiff’s witnesses describe the land as being entirely surrounded by the waters of the Clinton river; that the Clinton river is the boundary line between the adjacent farms; and that the island is between the farms. The plaintiff testified, as to the trespass complained of, that defendant went upon the land, and commenced to build a fence next to the river; that he forbade the building of it; that defendant also cut some timber thereon.
It appeared, further, from the testimony of plaintiff’s witnesses, that, some 30 or 40 years ago, the Clinton river was divided at the head of the island, the main channel extending to the southward along other lands owned by the plaintiff, cutting them off from the island, which is on the west side of the main channel. These lands on the main shore were also owned by the plaintiff’s grantors, and the island used in connection with them. The defendant owned the lands to the southwesterly. Plaintiff’s •witnesses say that in the earlier days there was a well-defined channel between the lands now owned by the defendant and the lands in controversy, so that, by the coming together of the waters which are divided at the head of the lands, the island is formed. These witnesses leave it somewhat uncertain as to the time when the waters of the river became so dried up that the channel on the southwesterly side was not filled except in times of high water, though they say that there is a well-defined channel there now, through which the water flows in times of high water.
The defendant claims title to the lands by conveyances as follows: A warranty deed from Ephraim Calkins and wife to Joseph Cougle, dated December 11, 1846, conveying, among other lands, a parcel —
“Beginning at the quarter stake on the north side of section 30, in township 3 north, of range 12 east; thence running south, along the line through the center of said, section, 5 chains and 75 links; thence south, 75 degrees east, with the nonius set 4£ dégrees east of north, 12 chains and 75 links; thence north, parallel with the line through the center of section 19 in said town, 29 chains and 10 links, to the bank of Clinton river; thence up said Clinton river, to the said center line ;• thence south, along said center line, 24 chains and 66 links, to the place of beginning. Also one other piece of land, beginning at the quarter stake; thence running south, along the line from the center of said section 30, to a stake standing 10 chains north from the center stake of said section 30; thence west, parallel with the north line of said section, 12 chains and 50 links; thence north, parallel with said-center line, to the north line of said section; thence north, on a line parallel with the line of section 19, to the north line of the southwest fractional quarter of said section 19; thence, along the north and east lines of said fractional quarter, to the place of beginning. All in the town of Shelby, Macomb county, Michigan; containing 111 75-100 acres, more or less. ”
This deed was recorded February 21, 1848.
Defendant also offered in evidence a warranty deed from Fitch Rossman and wife to Ephraim Calkins, dated February 2, 1835, conveying the E. fractional \ of the S. W. fractional \ of said section 19, recorded December 9, 1835; also a deed from N. C. Naramour to Ephraim Calkins, conveying the land described in the deed from Calkins and wife to Joseph Oougle. These deeds describe the lands known and described in the plaintiff’s deeds as the island in the Clinton river, unless it may be said that the deeds are limited to the lands extending only to the south channel of the river.
Defendant contended that the lands claimed by plaintiff do not constitute an island; that they were never surveyed as such by the United States government; that what is spoken of as the south or old channel, the southern boundary of the so-called “island,” is but an old ravine, which at times is perfectly dry; that the Clinton river lies be tween the lands in dispute and the plaintiff’s land; and that such land is wholly on the defendant’s side of the river. Defendant gave testimony tending to show that there was little or no water in the so-called “south channel,” except in high water, and had not been for more than 40 years, and in fact that there had never been an island there for that length of time. Defendant further gave evidence tending to show that he had pastured the land, and used it in connection with his other land, for more than 40 years; also, that the main channel of the river had been recognized as the boundary between the farms for more than 20 years; that the so-called “island” had never been ’plowed or any hay cut upon it. He also offered in evidence tax receipts for the year 1857, and many other years since, showing that the lands had been assessed under the description of his lands, and the taxes paid by Joseph Cougle. Some evidence had been given on the part of the plaintiff tending to show that Joseph Cougle made overtures for the purchase of these lands from some of plaintiff’s grantors. This was denied by defendant. Plaintiff also gave some evidence tending to show that the defendant’s intestate had felled trees and brush in and across this ravine or channel to keep the water from flowing therein.
The main question raised by counsel for defendant relates to certain portions of the charge, which will be referred to hereafter.
There is no evidence in the case that this so-called “island” had ever been surveyed as such by the government. There is nothing upon the record to show but that this parcel of land belonged to, and was surveyed by the government as a part of, the governmental description which would be included in the lands of the defendant. The plaintiff did not trace title back to the government. The first deed in his chain of title is from James Cheney, in 1833, and does not refer to any governmental survey. What rights at that time James Cheney had in the land does not appear; nor does it appear that the government ever recognized it as an island. It is true that the deed from Cheney and wife to Ewell, in 1850, in describing the land, stated “according to the United States survey.” No government plat is contained in the record; nor is any reference made in the record to any authority from the government to treat this land as an island surveyed and separated from the main land, so that it became detached by the government from the quarter section of which it naturally became a part. The main channel of the river is between the plaintiff’s land and that in controversy. It is a stream of considerable size; and the defendant’s testimony, as well as considerable of plaintiff’s testimony, shows that this “south channel,” so called, is in fact comparatively dry, except in the time of freshets. Yet the court charged the jury that if the government surveyors surveyed, measured, and designated it as an island, and the jury found that there was an island there and thus surveyed, they might consider that parcel of land as the land conveyed by the various conveyances to the plaintiff; or, if the parcel of land so surveyed or so commonly known and designated as an island was the parcel of land on which the defendant did the acts complained of, even if it appeared that it was not usually surrounded by water, so that it could not properly be termed an island, yet they would be justified in considering that parcel as the island covered by the conveyances from Cheney to plaintiff. Counsel for defendant contends that this portion of the charge not only permitted the jury to find, but assumed, that the island” had been surveyed by the government; and this without any evidence whatever to base such finding upon. Upon the defendant’s theory and claim in the case, this parcel was included within the description of his farm, and his lands extended to the thread of the main channel of the river. He contended that he took possession of his farm in 1846, very soon after he received his deed from Calkins, and that he had used this piece of land in connection with his farm ever since, and had pastured his cows there for 40 years. We think the court was in error in this portion of the charge.
The court charged the jury that there was no evidence that the plaintiff had acquired title by-adverse possession. Whether there was such evidence given by the plaintiff we need not now consider, as that question was not submitted to the jury, and the plaintiff is not here complaining of that, he not having appealed.
The court left the question to the jury to determine whether or not there was an island in the river, and the jury must have found that there was; so that question must be taken as settled that there was an island in fact. But, so far as the record shows, there was no island there which had been recognized by the government as such, and which was no part of the main land. The deeds to defendant conveyed to him the lands in controversy, unless the south channel is treated as the Clinton river, within the meaning of the deeds. The deeds cannot be so construed, as even upon meandered streams the lands extend to the middle thread; and it appears that the north channel is the main channel, so that defendant’s deeds conveyed lands extending to the middle of the main channel. These deeds were given in 1846. Can it be said that the plaintiff, without showing some conveyance from the government to himself of this land, describing and designating it as an island, has shown a paramount title We think not. In Railroad Co. v. Schurmeir, 7 Wall. 272, the question was as to the title to an island in the Mississippi river, which at the time of the survey was a mere sand-bar, about 90 feet wide and 160 feet long, separated from the main land by a slough or channel 28 feet wide. The island was submerged at high water (of which no notice was taken in the survey), and the slough was insignificant in comparison with the main river. At the time the action, the sand-bar had been filled in and covered with valuable improvements; and the contest was between the owner of the adjoining fraction and the railroad company, which claimed the bar under a new survey made by a United States surveyor, and a congressional grant of certain odd-numbered sections. It was held that the sandbar was included in the first survey as a part of the main. . land.
Prima facie, the title of the riparian owner extends to-the middle thread of the stream. The defendant’s deeds presumptively, under the facts shown here, convey the title -to the land in controversy, and that presumption is not overcome by the plaintiff’s deeds.
We think no other questions need be discussed.
The judgment below must be reversed, and a new trial granted.
The other Justices concurred. | [
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] |
Long, J.
Action upon a promissory note of $100, dated September 1, 1894. The execution of the note is admitted. The defense is that it has been paid.
The plaintiff is 75 years of age, and the defendant is his niece. They live in the same house, plaintiff living in the upper part of it. It appears that, after the making of the note, plaintiff was sued for a breach of promise of marriage. This case was settled by plaintiff, and on his return home after such settlement, he says, he stated to defendant that she could have this $100 note which she owed him; that defendant and her husband declined to receive it, saying that they had no children, and did not need the money. Defendant admits this conversation, but claims that she then told the plaintiff to give 'the money due on the note to Louis Saloman, her husband’s brother, who was then out of employment, had four children, and needed the money, as he wanted to start in business; that the plaintiff promised that he should have the money; that this conversation was in the presence of her husband. The husband of defendant also testified to this conversation, and, further, that the plaintiff told him to pay the money on the nbte to Louis Saloman; that, acting upon this, he did pay the $100 to Louis Saloman; that he informed the plaintiff of such payment, and asked to have the note back, and was informed by the plaintiff that the note had been destroyed. This whole arrangement as testified to by defendant and her husband is denied by plaintiff. He testified that there was a talk about his letting Louis Saloman have some money, and that he said if he got back the $100 he would loan Louis $50; but that he never authorized the defendant or her husband to pay Louis the money due on the note, and never approved such action; that, after defendant refused to receive it as a gift, he kept the note, and produced it on the trial.
The court charged the jury, at the request of defendant, as follows:
“If you find from the evidence that the plaintiff, after the termination of the breach of promise case with Rosa Schlessinger, authorized the defendant or her husband, Jacob Saloman, to pay the amount of the note sued on in this case to Louis Saloman, and that the plaintiff thereafter never revoked the authority, and that the defendant or her husband paid the amount of the said note to the said Louis Saloman, then your verdict would be for the defendant; that is, of course, if the note is paid you would not find a verdict on it.
“If you find that the plaintiff in January, 1896, authorized Loúis Saloman to collect the amount of this note from the defendant in this case, and that in pursuance of that authority the said defendant or her husband did so pay the $100 to the said Louis Saloman, then your verdict would be for the defendant. * * *
“If you find after the $100 was paid— I will say, if you find that the $100 was paid to Louis Saloman; that the plaintiff was informed by the defendant or her husband, and approved of the action so taken, — then your verdict would be for the defendant. It is immaterial in this case what Louis Saloman was to do with the money. If you find that the plaintiff authorized the defendant or her husband to pay Louis Saloman the money, and his ratification of the payment thereafter, if he did so ratify it, would show that he did not intend that the money was to be applied for any particular purpose.
“It is undisputed in this case that Rosa Saloman had authorized her husband, Jacob Saloman, to act in the matter for her; and if you find that Jacob Saloman"was instructed by the plaintiff in this action to pay the amount of the note to Louis Saloman, and that Jacob Saloman ■did so pay it, then the payment was the same as if made to the plaintiff himself, and then the verdict would be for the defendant.
“If you find that the plaintiff authorized payment of the money due on this note to Louis Saloman, and it was paid, then the fact that the note was not canceled orjde.stroyed is immaterial in this case.”
Defendant’s counsel also asked the court to chai'ge the jury:
“If you find that, after the payment of the amount of the note to Louis Saloman, Jacob Saloman asked the plaintiff for the note, so that it might be canceled or ■destroyed, and that the said plaintiff informed the said Jacob Saloman that the note was destroyed and that he would never again try to enforce payment, your verdict must be for the defendant.”
The following request was also made by the defendant:
“If you find that the plaintiff in this suit, one month before he brought suit upon this note, stated to the defendant, in the presence of her husband and in the presence of Mrs. Roth, that the defendant in this suit owed him nothing, and if he did not in any way qualify this-statement, this is conclusive proof that he considered the note paid, and your verdict must be for the defendant.”
These requests were refused, and counsel for defendant insist that the refusal to give them was prejudicial to the defendant, and that the requests correctly stated the law governing the case. We think the court properly refused them. If it be assumed that the plaintiff made these statements, he would not be estopped from making claim on the note. He denied positively that he made any such statements, and the whole controversy was for the jury. The court very fully and fairly stated to the jury that, if the plaintiff instructed defendant’s husband to pay the money to Louis Saloman, he could not recover. That was the only question in the case.
It appears that a motion for a new trial was made upon the grounds that after the jury had been charged by the court, and had retired to their room for deliberation, the clerk of the court, in the absence of the court, and without consent of counsel for defendant, entered the jury-room, and received from the jury a note reading, “It is maintained by some of the jurors that the judge charged us that, if we believed that Jacob paid the money to Louis, we must bring in a verdict for the defendant;” that the clerk communicated the contents of' this paper to-the trial judge through the telephone; that the judge directed him to change the paper so that it would read, “If Jacob paid the money to Louis by authority of Barnett, the plaintiff, you must bring in a verdict for the defendant;” that defendant’s counsel objected to this-method of charging the jury, but that the clerk took the paper into the jury-room, defendant’s counsel not being admitted, and no stenographer being present; and that the clerk was heard to say something to the jury, but what it was could not be heard. The motion was supported by the affidavit of counsel for defendant.
The plaintiff on such motion filed the affidavit of the clerk of the court in opposition to the motion, in which the clerk testified that, while the jury were in their room, he was informed by the officer in charge that the foreman of the jury requested to have him called; that he did not enter the jury-room, but went to the door; that the foreman stated that the jury desired to ask a question of the court; that he communicated this to the judge, who directed that the jury should put the question in writing, which was done, and the question was presented as stated in the motion; that one of the circuit judges was in the room adjoining while these matters were taking place; that, as soon as he received the question from the jury, he showed it to the circuit judge then present, who instructed him to submit it to the attorneys for both parties, which he did; that he then communicated it to the trial judge, who directed the change as above suggested; that he at once submitted the instruction to both the attorneys of the parties, neither of whom made any objection to its being handed to the jury; that he handed it to the jury, but in no manner otherwise communicated with them.
The motion was denied by the trial court, and error is assigned upon such denial. The whole matter was before the trial court, who was in a better position to determine the truth of the facts stated in the affidavits on this motion than we are. If counsel for the defendant consented that the further charge might be handed to the jury by the clerk, or stood by and made no objection to such proceeding, we think no error was committed of which counsel can now complain. It is true that no communication must be made to the jury after they have retired to deliberate upon their verdict, except by order of the court. ' The court itself directed that this further instruction be given them in writing. Counsel for defendant, if the clerk’s affidavit be true, knew that they were to be so further instructed, and made no objection. The instruction was a correct statement of the law applicable to the case, and we think no new trial should be now granted at the^ instance of counsel who made no objection at the time.
The judgment must be affirmed.
The other Justices concurred. | [
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] |
Moore, J.
Plaintiff replevied from defendant a wagon which he bought at a sale made by the township treasurer to collect a tax which the treasurer claimed the plaintiff should pay. The case was tried by a jury, who rendered a verdict in favor of defendant. The case is brought here by plaintiff, assigning a number of errors in the trial.
The tax was levied upon several descriptions of real estate, which the plaintiff claims it did not own, but that they were owned by one Vaughn. It claimed that it took the title to the land simply to secure it for advances made to Vaughn, which advances had,been paid, and that it had no further interest in the land. Testimony was given in support of this claim. The supervisor, before making the assessment, examined the records in the office of the register of deeds, and found the title to be in the plaintiff. The record shows the land was deeded to the plaintiff July 8, 1889, by warranty deed, which was recorded July 22, 1889. There is nothing to show, except a parol agreement to convey, but that the title remained in the plaintiff when the assessment was made. The plaintiff did not appear before the board of review, and represent it was not the owner of the land, but, when an attempt was made to collect the tax, it did make the claim. The judge left it to the jury to say whether the plaintiff was the owner of the land or not, and instructed them, if the plaintiff was not the owner, they must return a verdict in its favor. The verdict shows the jury found the plaintiff was the owner.
The warrant to the tax roll was directed, “ To -, Township Treasurer of the Township of Big Creek, County of Oscoda.” It was signed, “James B. Markle, Supervisor of the Township of Big Creek.” Objection was made to this warrant because it did not contain the name of the treasurer as well as his official title. This objection is not well taken. The precise question was raised and decided in First Nat. Bank v. Township of St. Joseph, 46 Mich. 526.
The lands were assessed on the roll to “ Loud, H. M., & Sons,” instead of being assessed to theH. M. Loud & Sons Lumber Company. Plaintiff insists that, while this might be á good assessment as against the land, it would not authorize the treasurer to levy upon personal property belonging to anybody except Loud, H. M., & Sons, and that, as the plaintiff corporation is not the same entity as the partnership which was assessed, the treasurer was not authorized to levy and sell property belonging to the plaintiff. Section 99, Act No. 206, Pub. Acts 1893, provides for just such a contingency as has occurred here. As already stated, the jury found the property assessed belonged' to the plaintiff. The property levied upon to satisfy the tax belonged to it. No injustice has been done plaintiff by levying upon property belonging to it to satisfy a tax upon its property. This question has been before this court in a number of cases, where it was decided against the contention of plaintiff. Petrie Lumber Co. v. Collins, 66 Mich. 64; Michigan Dairy Co. v. McKinlay, 70 Mich. 574; Hill v. Graham, 72 Mich. 659; Fletcher v. Post, 104 Mich. 424; Hinds v. Township of Belvidere, 107 Mich. 664.
These are the principal questions in the case. While the others have had attention, they will not be discussed.
Judgment is affirmed.
The other Justices concurred. | [
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] |
Grant, C. J.
(after stating the facts). The relator contends:
(1) That by the extension of its road it accepted the proposition made by the State, and that thereby a contract exists between the corporation and the State, which a subsequent legislature cannot avoid by a repeal of the law.
(2) That the exemption was valid until repealed; that the repeal did not .take effect till August 30, 1897; and that the company was therefore exempt from taxation until that date, even if the repeal be held valid.
(3) That the law of 1897 is unconstitutional and void, in that it embraces two subjects, one of which is not expressed in the title.
1. The question whether such a statute creates a contract, or confers a gratuity or bounty or privilege, existing bene placitum, is no longer debatable. It is settled by a long line of decisions that they are mere gratuities. The essential element of a binding contract, viz., a consideration, is wanting. The question is ably and fully discussed in the following cases: East Saginaw Manfg. Co. v. City of East Saginaw, 19 Mich. 259 (2 Am. Rep. 82); Welch v. Cook, 97 U. S. 541; Tucker v. Ferguson, 22 Wall. 527; Grand Lodge F. & A. Masons of Louisiana v. City of New Orleans, 166 U. S. 143; West Wisconsin R. Co. v. Board of Supervisors, 93 U. S. 595. The East Saginaw Manfg. Co. Case was affirmed by the United States Supreme Court, in 13 Wall. 373.
The reasoning of these decisions is so clear and cogent that it would be useless to attempt to improve upon it. I call special attention to the opinion of Mr. Justice Cooley in the East Saginaw Manfg. Co. Case, and to the language of Mr. Justice Swayne in the Ferguson Case, on pages 573 to 575. There is no real difference in meaning between the language of the act involved in the East Saginaw Manfg. Co. Case and that in the present case, except that the former was unlimited in time, while in this it is limited. But time does not determine the character of the transaction, or change a gratuity into a contract. There was a time limit in Welch v. Cook, Tucker v. Ferguson, and West Wisconsin R. Co. v. Board of Supervisors. We have examined the cases cited in behalf of relator: State Bank of Ohio v. Knoop, 16 How. 369; Wilmington Railroad v. Reid, 13 Wall. 264; Home of the Friendless v. Rouse, 8 Wall. 438; Farrington v. Tennessee, 95 U. S. 679; University v. People, 99 U. S. 309. They are not in conflict with the holding of the other cases cited. They were all rendered by the same court, and illustrate the distinction between a gratuity and a contract. In Com. v. Essex Co., 13 Gray, 239, the consideration is clearly pointed out at page 253 of the opinion. The company, under its act of incorporation, had constructed a dam with a fishway according to its charter, and had paid all parties damnified in their several fisheries large sums of money. It was held that this was a contract which could not be repealed.
2. The body of the act of 1897 contains a clause taxing union railroad station and depot companies, which are organized under another act. The title contains no reference to the latter. It is unnecessary to consider whether the act is void as to those companies. The title of the act is sufficient as applied to railroads, and the provision in regard to station and depot companies is entirely distinct from that in regard to railroads. In such cases the act is void only as to those matters not contained in the title. 23 Am. & Eng. Enc. Law, 232, 270; Ames v. Port Huron, etc., Booming Co., 6 Mich. 266; Board of Sup’rs of Sanilac Co. v. Auditor General, 68 Mich. 659; Schehr v. City of Detroit, 45 Mich. 626. The point, however, is disposed of in the opinion in Fort-Street Union Depot Co. v. Commissioner of Railroads, ante, 340.
3. The respondent was in error in holding that relator was not entitled to its exemption until the repealing act took effect. The exemption was good, and the right to it was vested, until repealed. People v. Board of State Auditors, 9 Mich. 327; Welch v. Cook, supra.
The writ is granted, directing respondent to compute the amount in accordance with this opinion.
The other Justices concurred. | [
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] |
Montgomery, J.
The relator applied to the circuit court of Wayne county to compel the respondent to discontinue the use of a certain book, known as “Readings from the Bible,” in the public schools of Detroit. The answer of respondent contains the following statement, which we quote:
“ It is not true that said book is devoted almost entirely or principally to the subject of religion, to the subject of relations of man to Almighty God, or to the subject of worshiping God, or to all these subjects, but this respondent says that said book is, for the greater part, made up of moral precepts affirming and emphasizing the moral obligations laid down in the Ten Commandments; that, while some of the passages in said book do relate to the power, goodness, and mercy of Almighty God, the said book is made up almost entirely of extracts from the Bible emphasizing the moral precepts of the Ten Commandments, and which are intended merely to inculcate good morals, — that is, our duty to each other, — which ought to be understood and practiced by every good citizen, and concerning the fundamental principles of which, the religious sects do not disagree. * * * No .teacher in said schools is required by law to give»instructions from the last said book, except such as is absolutely necessary for the use of the same as a supplemental text-book on reading, and no teacher is by said board allowed to make note or comment upon anything in said book contained; and, further, said book is used as a supplemental text-book on reading, as aforesaid, and not otherwise. * * * It has never been the purpose nor intention of said board to require of the pupils of the grammar grades in said schools to listen to the readings from said book, but, on the contrary, such readings take place at the close of the sessions of said schools, and any and all pupils, by the order of said board, are excused therefrom upon the applications of either their parents or guardians; and, further, said superintendent is not vested with, nor is he authorized to exercise, any discretion whatever in the matter, but is required, under and by the rules of said board, to excuse any and all pupils from being present at such readings whenever an application therefor is made by the parents or guardians of such pupil or pupils.”
The contention of relator is that the action of the board is forbidden by the Constitution of the State. The provisions touching this question are as follows (article 4):
“Sec. 39. The legislature shall pass no law to prevent any person from worshiping Almighty God according to the dictates of his own conscience, or to compel any person to attend, erect, or support any place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel or teacher of religion.
“Sec. 40. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary, nor shall property belonging to the- State be appropriated for any such purposes.
“Sec. 41. The legislature shall not diminish or enlarge the civil or political rights, privileges, and capacities of any person on account of his opinion or belief concerning matters of religion.”
The precise question is not whether the pupil can be compelled to attend religious exercises, nor necessarily whether the reading of the Bible, or an extract from it, constitutes religious worship; but whether such reading of extracts from the Bible, at which reading pupils whose faith or scruples are shocked by hearing the passages read are not required to attend, constitutes the teacher a teacher of religion, or amounts to a restriction of the civil or political rights or privileges of such students as do not attend upon the exercises.
Is the reading of extracts taken from the Bible a violation of the provision of the Constitution which inhibits the diminishing or enlargement of the civil or political rights, privileges, and capacities of the individual on account of his opinion or belief concerning matters of religion? We do not think it can be maintained that this section has any application to this subject- The primary purpose of this provision was to exclude religious tests, and to place all citizens on an equality before the law as to the exercise of the franchise of voting or holding office. The language is inapt to be applied as restricting the use of school-rooms or school funds. It might be said that many of the students in our schools are not in position to avail themselves of the opportunity to study the dead languages. Is it therefore an unjust discrimination to provide for instruction in Latin and Greek for such pupils as are able to devote their time to those studies ? Does it harm one who does not, for conscientious reasons, care to listen to readings from the Bible, that others are given the opportunity to do so ? Is it not intolerant for one not required to attend to object to such readings? It may be said, of course, that the services of the teacher while engaged in these exercises are paid out of the fund in which all are entitled to share; but the same is true of the time which the teacher devotes to the languages, or instruction in higher mathematics. Does it follow that the civil rights or privileges of the students who do not accept teaching in those branches, or those who do, have been, on the one hand, diminished, or, on the other, enlarged? I do not think it should be so held.
Nor has section 40 any more appropriate application. This section has a very plain meaning, which is that the public money may not be turned over to a religious sect to maintain churches or seminaries; and unless the readings from the Bible, or selections from the Bible, constitute the public school a religious or theological seminary, this section has not, in my judgment, any application.
As is stated in the opinion of the learned circuit judge, the most significant provision is section 39; and the meritorious question is whether any student or any taxpayer has been compelled to attend, erect, or support a place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel or teacher of religion. In determining this question, we should endeavor to place ourselves in the position of the framers of the Constitution, and ascertain what was meant at the time; for, if we are successful in doing this, we have solved the question of its meaning for all time. It could not mean one thing at the time of its adoption, and another thing today, when public sentiments have undergone a change. McPherson v. Secretary of State, 92 Mich. 377 (16 L. R. A. 475, 31 Am. St. Rep. 587). It is therefore essential that we determine the intent of this provision by reference to the state of the law or custom previously existing, and by the contemporaneous construction, rather than attempt to test its meaning by the so-called advanced or liberal views obtaining among a large class of the community at the present day.
A similar provision was introduced into the convention of 1835. The provision was as follows:
“Every person has a right to worship Almighty God according to the dictates of his own conscience; and no person can of right be compelled to attend, erect, or support, against his will, any place of religious worship, or pay any tithes, taxes, or other rates for the support of any minister of the gospel or teacher of religion.” Const. 1835, art. 1, § 4.
As is pointed out in the brief of the learned counsel for the respondent (to whom we are much indebted for a most laborious and careful research into the historical. origin of this provision), the provision was doubtless taken from the Virginia constitution of 1830. It is clearly shown by that research that the inhabitants of that commonwealth were by statute compelled to attend upon divine service. Ministers were, in public statutes, referred to as “teachers of religion.” In 1784 a statute making provision for the support of ministers of the established church was introducen under the title of “A bill to establish a provision for teachers of the Christian religion.” This statute was repealed by a general statute adopted in 1786, entitled “An act for establishing religious freedom,” the preamble of which clearly shows that the term “teacher of religion” was used as synonymous with “minister.” The constitution of 1830 was but an embodiment of this enactment in the organic law of the State. Can it be said that the adoption of this provision into our constitution of 1835 was intended to have a wider scope ? I think not. It is significant that this constitution was adopted in pursuance of authority conferred by article 5 of the articles of compact contained in the ordinance of 1787 (Scott v. Detroit Young Men’s Society, 1 Doug. 119), which gave to the people of the territory a right to form a constitution in conformity with the principles contained in the articles. The ordinance of 1787 declared that religion, morality, and knowledge were necessary to good government and the happiness of mankind, and provided that, for these purposes, schools and the means of education should forever be encouraged. It is not to be. inferred that, in forming a constitution under the authority of this ordinance, the convention intended to prohibit in the public schools all mention of a subject which the ordinance, in effect, declared that schools were to be established to foster, — particularly as the provision, when traced to its historic origin, is shown to have been aimed at quite another evil. In my opinion, this provision, when incorporated into our organic law, meant simply that the inhabitants of the State should not be required to attend upon those church services which the people of Virginia had been by this same enactment relieved from, and that no one should be compelled to pay tithes or other rates for the support of ministers. If this meaning attached at that time, it has not been changed since.
I do not wish to be understood as assenting to the proposition that the ordinance of 1787 makes it imperative that religion shall be taught in the public schools. ' It was doubtless the opinion of the .framers of that great document that public schools would of necessity tend to foster religion. But the extent to which I go is to say that the language of this instrument, when read in the light of the fact that this was at that date a Christian nation, is such as to preclude the idea that the framers of the constitution, ‘ ‘ in conformity with the principles contained in the ordinance,” intended, in the absence of a clear expression to that effect, to exclude wholly from the schools all reference to the Bible. ’ I should certainly mistrust my judgment if it led me to a different conclusion, and on the best of grounds. The i’eturn in this case shows that since the admission of this State into the Union, a period of more than half a century, the practice has obtained in all the State institutions of learning of not only reading from the Bible in the presence of students, but of offering prayer; that the text-books used in the public schools of the State have contained extracts from the Bible, and numerous references to Almighty God and His. attributes; and all this without objection from any source. These usages we may also take judicial notice of. In a doubtful case, involving any other question than one which appeals so^ strongly to the prejudices of men, would not this universal usage, extending over so long' a period, be deemed decisive by every one as a practical construction made by the administrative branch of government ? Judge Cooley, in his Constitutional Limitations (page 82, 6th Ed.), says:
“Where a particular construction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the constitution,. and by those.who had opportunity to understand the intention of the instrument, it is not to be denied that a strong presumption exists that the construction rightly interprets the intention.”
See, also, McPherson v. Secretary of State, 92 Mich. 383 (16 L. R. A. 475, 31 Am. St. Rep. 587), and cases cited.
In treating of the effect of the provision in the several state constitutions corresponding to that under discussion, Judge Cooley, in the work above cited, says, at page 578:
“The American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the great Governor of the Universe, and of acknowledging with thanksgiving His boundless favors, or bowing in contrition when visited with the penalties of His broken laws. No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures; or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of state government.”
The weight of the authority of the adjudicated cases sustains the contention of the learned counsel for the respondent. The subject came before the supreme court of Maine as early as 1854. The question arose as to whether the constitution prohibited the reading of the Bible in the public schools, in Donahoe v. Richards, 38 Me. 379 (61 Am. Dec. 256). The provisions of the Maine constitution are substantially different from ours, and the decision is not, therefore, necessarily decisive. For its force as an argument, however, we quote the following language from pages 398, 399:
“The common schools are not for the purpose of instruction in the theological doctrines of any religion or of any sect. The State regards no one sect as superior to any other, and no theological views as peculiarly entitled to precedence. It is no part of the duty of the instructor to give theological instruction, and, if the peculiar tenet of any particular sect were so taught, it would furnish a well-grounded cause of complaint on the part of those who entertained different or opposing religious sentiments. But the instruction here given is not in fact, and is not alleged to have been, in articles of faith. No theological doctrines were taught. The creed of no sect was affirmed or denied. The truth or falsehood of the book in'which the scholars were required to read was not asserted. No interference, by way of instruction, with the views of the scholars, whether derived from parental or sacerdotal authority, is shown. The Bible was used merely as a book in which instruction in reading was given. But reading the Bible is no more an interference with religious belief than would reading the mythology of Greece or Rome be regarded as interfering with religious belief or an affirmance of the pagan creeds. A chapter in the Koran might be read, yet it would not be an affirmation of the truth of Mohammedanism, or an interference with religious faith. The Bible was used merely as a reading book, and for the information contained in it, as the Koran might be, and not for religious instruction. If suitable for that, it was suitable for the purpose for which it was selected. No one was required to believe, or punished for disbelief, either in its inspiration or want of inspiration, in the fidelity of the translation or its inaccuracy, or in any set of doctrines deducible or not deducible therefrom.”
Article 1, § 3, of the constitution of Iowa, is as follows:
“The general assembly shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister or ministry.”
I have endeavored to show that “religious teacher,” when used in our constitution, is synonymous with “minister.” If I have been successful in this, the pro vision of the Iowa constitution is, in substance, identical with section 39 of article 4 of our constitution. ' In Moore v. Monroe, 64 Iowa, 367 (52 Am. Rep. 444), the supreme court of Iowa had occasion to consider this provision, and it was held not violated by tbe reading of tbe Bible in the public schools. See, also, Nessle v. Hum, 1 Ohio, N. P. 140; Spiller v. Inhabitants of Woburn, 12 Allen, 127. Contra, State, ex rel. Weiss, v. District School Board, 76 Wis. 177 (20 Am. St. Rep. 41).
In my opinion, the reading of tbe extracts from tbe Bible in tbe manner indicated by tbe return, without comment, is not in violation of any constitutional provision. I am not able to see why extracts from the Bible should be proscribed, when tbe youth are taught no better authenticated truths of profane history.
Tbe order of the circuit court should be reversed.
Grant, C. J., Hooker and Long, JJ., concurred with Montgomery, J. | [
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] |
Hooker, J.
The plaintiffs recovered a judgment for damages resulting from an injury to a steam threshing machine outfit, occasioned by the fall of a bridge upon which it was crossing a stream. It was claimed that the bridge was out of repair and unsafe, and that the timbers were rotten. The jury must have found that the load placed upon the bridge by the plaintiffs was not extraordinary for that vicinity, and that the township had actual or constructive notice of the weakness of the bridge, and was negligent in permitting it to go unrepaired. The contract for building the bridge was let some years before to one Austin, who hired a man named Garner to work upon it. Garner testified that in boring a hole through a timber— which there was evidence tending to show to have been the piece used for the needle beam, which is alleged to have given way- — the bit stopped drawing, and he then turned it, and bored from the other way, when he met the same difficulty ; that it was owing to a condition of dry rot; that he informed Austin of it, who said the timber should be put in; and a bolt was obtained, and driven through the stick where the auger failed to do its work, and the stick was used in the bridge. He also testified to another conversation upon the subject at the supper table, in the presence of his brother’s wife. Mrs. Garner was called by the plaintiff, and she testified that on the latter occasion the following occurred:
“I remember of a talk between George Garner and Mr. Austin about a stick of timber they put in the bridge. It was at the supper table one night. They came home to supper, and during the eating of the supper George says to Mr. Austin, he says: ‘Andrew,’ he called him, ‘it is a shame to put that stick of timber into that bridge, for,’ he says, ‘it is rotten.’ Mr. Austin says, ‘ Never mind, I will risk but what I will get it accepted;’ and that was the conversation exactly.
“Mr. Chandler: I move to strike out this testimony as being incompetent and immaterial, and in no way binding the township.
“ The Court: What position did Mr. Austin occupy at that time?
“Mr. Chapman: He had taken the contract from the township to build this bridge. They had let it to him.
“ The Court: As an admission it would not bind the township, but as a matter of. notice it would. I will let it stand.
“Mr. Bichards: What the contractor may do or say would not bind the town.
“The Court: If Mr. Austin was there, having charge of the work on the defendant’s highway, — having charge of public work,— I think there would be a presumption there that he was helping, and doing it in the interest of the defendant. Now, the fact that such a person, in such a position, had notice of what was being done, would be competent for the purpose of showing notice only, but not as any admission by the township. I will deny the motion. (Exception for defendant.)
“Cross-examination by Mr. Chandler: I don’t remember anything more that was said there about the bridge at that time. I was there all the time during the supper hour.
“The Court: I think, gentlemen, that the fact that Mr. Austin was informed of the condition of the timber might stand, but as to what Mr. Austin said about it may be stricken out of this witness’ testimony.
“Mr. Chandler: I move to strike it out, — all of it.
‘ ‘ The Court: I will strike out what Austin said about it, but let the fact stand that Austin was notified in regard to that stick of timber. (Exception for defendant.)”
Austin was not an officer of the town at that time, that we discover, but merely one who had contracted to build the bridge; and we think that notice to him that the bridge was not properly built would not be notice to the town that the bridge was weak, nor would this conversa tion between Austin and Garner at the supper table be proper evidence to prove that it was so.
Among other questions in the case was that of contributory negligence. There was some evidence tending to show that, a year before, the plaintiffs knew that the-bridge was weak and shaky, and that one of the stringers was out of place, and that one of them took an ax, and drove it into position, before going upon the bridge. The defendant’s counsel offered the following request:
“If you find the plaintiffs crossed this bridge, with the engine, the year before the alleged accident, and that the bridge at that time shook and gave evidence of weakness, and if such shaky and weakened condition of the bridge was then known to the plaintiffs, or either of them, in the absence of actual knowledge by them that the bridge had been subsequently repaired, they would have no right to presume that it had been repaired, and it would be negligence for the plaintiffs to draw their engine on said bridge without first inspecting its condition; and, if they drove the engine on the bridge without inspecting it, they placed themselves in a place of danger,- — -they took their chances on getting safely over the bridge, — and, if they were injured in so'doing, they cannot recover in this case.”
The judge refused this request, and instructed the jury as follows:
“ ‘ If the bridge had been out of repair the year before, and the plaintiffs did know it, they would have a right to presume that the township had put the bridge in a reasonable repair before the-following year.’ * * *
“ ‘ If plaintiffs, .or either of them, had actual knowledge, or if they, or either of them, were in possession of such facts or matters or circumstances or information concerning the condition of this bridge at the time of the alleged injury as would put reasonable, careful, and prudent men upon inquiry as to whether this bridge was out of repair, and not in a condition reasonably safe for them to drive their engine upon, it would be negligence for them to drive their engine upon the bridge without first making careful examination for the purpose of determining whether said bridge, at the time of the alleged injury, was safe for them to drive their engine upon.’
‘ ‘ The fifth I give with some interlineation: ‘ If the plain tiffs, or either o£ them, knew, or if they were in possession of such facts relative to the condition of this bridge at the time of the alleged injury as would put reasonable, careful, and prudent men upon inquiry as to the strength and safety, of this bridge, and its condition of repair, it would, under such circumstances, be negligence of the plaintiffs to attempt to drive their engine upon and over the bridge (I have added the words, “without inspecting it”); and if, under such circumstances, they did drive the engine upon the bridge, and their engine was broken and damaged by the breaking down of the bridge and the falling of the engine into the creek, the plaintiffs cannot recover in this case, and your verdict must be for the defendant, “No cause of action.” ’
“The sixth: ‘I instruct you that, although you may believe from the evidence that the defendant township had negligently suffered this bridge to be and remain in an unsafe condition for driving traction engines upon and oyer it, still, if you also believe from the evidence that such unsafe condition of the bridge was known to the plaintiffs, or either of them, before and at the time they attempted to drive their engine upon and over the bridge, and if, knowing that said bridge was unsafe and out of repair, they attempted to drive their engine upon and over said bridge (I will add, ‘ ‘ and did drive it upon the bridge ”), they would not be using due care and prudence to avoid an injury, which the law in this State requires, but plaintiffs would, in such case, be guilty of (I have added the word “contributory”) negligence; and, if you so find the facts to be, you must find a verdict for the defendant, “No cause of action.”’”
Taken together, we think the instructions fair. The latter sentences qualified the instruction that the plaintiffs had a right to presume that the bridge had been repaired, if such qualification was necessary. We think that, in the absence of any knowledge upon the subject, or anything apparent to observation that should lead to a contrary opinion, it may be presumed that a township has repaired a weak and shaky bridge after the lapse of a year from the time that it was known to be in that condition ; but it was eminently proper to submit to the jury the question of the plaintiffs’ knowledge, and opportunities for knowing, that it had not been repaired. We think no error was committed in refusing defendant’s request, or in the instructions given.
On cross-examination one of the plaintiffs was asked the following:
“Q. Do you say in your judgment it was not carelessness to drive a load of that dimension on that bridge without first examining the strength of it, to see whether it would hold or not, in your judgment? (Objected to, as. witness had a right to assume the bridge was strong enough to run an ordinary threshing engine over it in that manner.)
“ The Court: I think that is a matter of law. (Exception for defendant.) ”
This was a proper question to ask the plaintiff on cross-examination.
A witness for the defendant was asked whether, in his opinion, a ten-horse engine, with a tank full of water attached, was an extraordinary load in that vicinity, and his ' answer was excluded. Unless we are to say that townships must construct bridges suitable to'sustain the weight of any load that may be put upon them, we must say that they must provide only for the ordinary wants of travel in such communities. We recognize the right to use traction engines upon the highways, and the necessity for townships to keep abreast of the improvements of the age, and the necessity for better and stronger bridges now than in earlier times. The obligation is, however, to provide reasonably safe bridges under existing conditions, and they are not liable for a failure to provide structures that will sustain loads that could not reasonably be anticipated. Whether a ten-horse engine and tank full of water constituted such a load was a question of fact, and it was proper to take testimony upon the subject. The plaintiffs were allowed to testify that other engines as large or larger frequented the highways of the township, and the defendant should have been allowed to introduce testimony to the contrary.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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] |
Hooker, J.
Van Bogaert & Co. erected a building for Voss, under a contract. When it was ready for plastering,'Van Bogaert, accompanied by Domke, who worked upon the house as a carpenter in Van Bogaert & Co.’s employ, went to the house of the plaintiff, when the plaintiff and Van Bogaert, acting for his firm, made a contract whereby the plaintiff agreed to do the lathing and the plastering upon the house for Van Bogaert & Co. The plaintiff hired Bolster to do the lathing, and he suggested to the plaintiff that Van Bogaert & Co. were irresponsible; and thereupon the plaintiff saw Domke, who lived in the family of Voss, and who said that he expected to marry Ms daughter, and occupy the new house when completed, and was assured by him .that Voss would see that he was paid before he paid the contractors. The plaintiff also testified that he told Voss himself that “he would not do the job unless he. would pay him for the job, because he did not think the contractor was any good,” and that “Voss told him that he would pay him if he plastered the house.”
The important question in the case is whether this oral promise constituted a valid contract. It is claimed that it is within the statute of frauds. The circuit court held otherwise, and the jury found a verdict for the plaintiff. The statute of frauds makes void any oral promise to answer for the debt or default of another. So that, if we must say that the plaintiff in this case performed his contract with Van Bogaert & Co., thereby making them his debtors under the contract which all agree was made with them, it is manifest that the promise alleged to have been made by Voss was collateral merely, and void because not in writing..,--The fact that Wilhelm had made a contract with Van Bogaert & Co. to do this work would not necessarily render invalid a subsequent contract with Voss to do the same work, but both of these alleged oral promises to pay for this work could not be valid at one and the same time. Unless the contract with Van Bogaert & Co. was abandoned by Wilhelm, so that there would remain no right to a claim for-compensation for the work when done, as against them, the promise alleged of Voss was collateral, and void under the statute.
The right of the plaintiff to recover against the defendant must depend upon the actual state of affairs at the time the work was done. If it was done in pursuance of ,and under the contract with Van Bogaert & Co., the performance created an obligation against Van Bogaert & Co., and not against Voss; while, if the plaintiff repudiated the contract made with that firm, so that, although he plastered the house, it was done under a different arrangement, and gave rise to no obligation upon the part of Van Bogaert & Co. to pay, the defendant would be liable for his promise to pay for the work, if he made such promisev The danger of injustice in this case arises from the opportunity afforded for the plaintiff, after finding himself unable to collect from Van Bogaert & Co., to say that he abandoned his first contract, and relied on the second, when in fact this was an afterthought, to avoid the effect of the statute of frauds. This is, however, a question of fact, and it was proper to submit it to the jury, unless the evidence conclusively showed that the work was done under the contract with Van Bogaert & Co., or that the alleged promise of the defendant was only a collateral promise. In our opinion, there was evidence tending to support the plaintiff’s theory, and it was proper to submit these questions to the jury.
Another question in the case requires discussion. Testimony of statements made by Domke, the defendant’s son-in-law, was admitted, tending to show that an original promise was made by him, upon behalf of the defendant, and it was claimed that he was the authorized agent of the defendant in the premises. It is now contended (as it was in the circuit court) that there was no proof of agency. The learned circuit judge thought there was such proof, and submitted the question to the jury. We agree with him that there was some testimony to that effect. It is to be found in the testimony of Wilhelm that, at’ the time Voss and he had their first talk, nothing was said about Domke, but that afterwards he said that he would leave it all to him, — to look after the business for him. This, in conjunction with what occurred, justified the judge in leaving the question to the jury. Had specific objection been made, the testimony that Domke stated that he was the agent of Voss should have been stricken out as hearsay; but the objection included much more, and, as a whole, was not well taken.
Counsel also maintains that the evidence fails to show the value of the services, or that a price was agreed upon. As to this, we are of the opinion that the jury were justi fled in treating 17 cents a yard as the price contemplated by all parties.
The judgment is affirmed.
The other Justices concurred. | [
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Long, J.
Petition' for writ of assistance. Petitioner became the purchaser of the lands in controversy at the annual tax sale in 1896, under a decree made in the'circuit court, in chancery, for Marquette county. He petitioned for a writ of assistance; and the respondents, in answer to an order to show cause, replied :
. 1. That it was an attempt to eject respondents from their possession of the property without their having had their day in court before a jury, and in contravention of section 27 of article 6 of the Constitution of this State.
2. That the court of chancery acquired no jurisdiction to render a decree against the land, because no personal service of notice was given to the owner of the land, though he resided within said county, and that the law providing for publication of notice, and thus attempting to give the court jurisdiction, is in contravention of the fourteenth amendment to the Constitution of the United States.
3. That the decree had not been enrolled before sale.
4. That the county treasurer did not make a report of sale to the auditor general within the time prescribed by the tax law.
5. That the owner of the land had personal property from which the tax might have been collected.
On the coming in of the answer, the court below granted the order issuing the writ of assistance.
The questions raised by respondents in the first and second points above stated are fully discussed, and decided adversely to respondents’ contention, in Ball v. Ridge Copper Co., ante, 7.
"We think the proposition that no sale could be made until after enrollment has no force. The statute prescribes a time for the sale to take place, which precludes the application of 2 How. Stat. §§ 6648, 6649. Chancery Rule No. 24 cannot overrule the tax law, which provides when the deeds may issue. See, also, Hochgraef v. Hendrie, 66 Mich. 561.
The point that the county treasurer did not make his report to the auditor general in time is decided contrary to the view of counsel in Detroit Fire & Marine Ins. Co. v. Wood, ante, 31. In the present case it appears that the time taken by the treasurer was not unreasonable.
The" order below must be affirmed.
The other Justices concurred. | [
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Grant, C. J.
Defendant was the treasurer of the village of Sanilac Center for the year 1897, and had a warrant for the collection of taxes, valid upon its face. He levied upon personal property to satisfy a tax assessed against the. plaintiff. Plaintiff brought this action of replevin, claiming the right to go behind the warrant and show the invalidity of the tax. The court entered judgment for the defendant. The suit is within the expressed prohibition of the statute, and cannot be maintained. 2 How. Stat. § 8318; Boyce v. Peterson, 84 Mich. 490; Curtiss v. Witt, 110 Mich. 131. This case is not within the few which have sustained the action of replevin when the tax was not levied in pursuance of any law of this State. These cases will be found cited, and the distinction shown, in Curtiss v. Witt.
Judgment affirmed.
The other Justices concurred. | [
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Moore, J.
This is an application for a writ of mandamus to compel the circuit judge to issue a preliminary injunction. The petition shows that in April, 1898, the relator, as complainant, filed a bill in chancery against the township board of the township of Paw Paw and the South Haven & Eastern Railroad Company, in which bill it was stated that complainant was the owner of property in said township, of the value of $2,000, which was liable to the assessment of taxes; that the electors of said township had illegally voted and executed $10,000 in the bonds of said township, which had been placed in the hands of persons unknown to complainant, in trust or escrow for the defendant railroad company, to be delivered to it when it had made certain changes and improvements to its railroad property, by making it a standard-gauge road from the village of Lawton, through Paw Paw, to the village of Hartford,-and erecting a freight station at or near Lake Cora, and making other improvements; that the money to liquidate said bonds must be raised by taxation ; that said bonds are illegal, and will be negotiated unless an injunction is issued,— and prayed for an injunction. A temporary restraining order was issued. A time was set for a hearing of the application for an injunction. The defendants severally answered. Their answers are not frank, clear, and definite, but it is claimed in them that the bonds were legally issued, under the provisions of Act No. 438, Local Acts 1895. It is also claimed that the bonds have already been negotiated, but the language used is very peculiar, and there is no statement when and to whom they were negotiated. A hearing was held, at which the court evidently was not impressed with the statement that the bonds had been negotiated, or had been issued for other purpose than to aid in making improvements to the railroad property. This is indicated by the language of the court in the disposition of the motion:
“The court is strongly of the opinion that, if the bonds which are the subject of this controversy are invalid, then the complainant is entitled to the temporary injunction asked for in this motion. This view renders it necessary to examine the question of the validity of the bonds, upon the assumption that they were issued as a bonus to the South Haven & Eastern Railroad Company, in consideration of the making of certain changes and improvements in the road and railroad property of the company. * * * There can be no question but that, according to the decisions of the Supreme Court of Michigan in the cases of People v. Township Board of Salem, 20 Mich. 452 (4 Am. Rep. 400), and People v. State Treasurer, 23 Mich. 499, a municipal corporation of this State has no authority to issue its bonds in aid of a private corporation building, or proposing to build, a railroad to be owned and controlled by the corporators, and that the legislature cannot, under the Constitution, authorize the issue of such bonds, either with or without a vote of the electors of the municipal corporation issuing them.”
The judge then reviews the cases, and claims the views of this court as expressed in its opinions are not in harmony with the decisions of many of the State courts, or with the courts of the United States, and then proceeds:
“The decision in the case of People v. Township Board of Salem rests on the assumption that ‘ a corporation created for the purpose of constructing a railway to be owned and operated by the corporators is a private corporation, and that the road when constructed will not be a public highway, except in a very qualified sense, as it accommodates the travel and traffic of the public, and is therefore no more a public object than any other private enterprise which also supplies a public want or furnishes to the public a convenience.’ To this proposition my reason refuses assent.”
The judge then argues that railroads are not private corporations, and proceeds:
“It might be suggested in behalf of the complainant that, inasmuch as the decisions of the Supreme Court of Michigan have been to the effect that municipal corporations in this State have no constitutional right to issue bonds in aid of the construction of railways, this court ought to follow those decisions. But the experience of this court has not been such as to encourage the adoption of this suggestion.”
The judge then reviews some cases heard by him, appealed to the Supreme Court, in which the court did not agree with the circuit judge as to the effect of its earlier decisions, and then proceeds:
“ The doctrine of stare decisis is a salutary one, when applied within proper limits. But a decision which is radically wrong in principle ought not to be followed, no matter how long it may have been acquiesced in or how many times it may have been followed. * * * In this State the authority for holding that municipal corporations have no constitutional right to vote aid to railroad companies in the construction of railways is found in the case of People v. Township Board of Salem. Believing, as I do, that the doctrine of that case is radically wrong, and has been overthrown by the decisions of the Supreme Court of the United States, I must decline to follow it. The motion for an injunction should be denied. ”
In the answer filed in this proceeding by the circuit judge, he says he was so firmly convinced of the correctness of the views expressed by him in his opinion, of the constitutionality of the act in relation to the issuing of the bonds, that he did not deem it necessary to consider the other questions in the casé. It may be necessary to consider them briefly here.
First, it is said complainant has an adequate remedy at law. This suggestion is met by the case of Curtenius v. Railroad Co., 37 Mich. 583, where it is held that a bill like the one filed in this case can be filed under the circumstances shown by this case.
It is said that, as it is not shown the taxes of complainant would amount to $100, he cannot maintain this bill. The allegation is that the property subject to taxation» and which might be sold for the tax if it was unpaid, is of the value of $2,000. The case is governed by Fuller v. City of Grand Rapids, 40 Mich. 395.
It is urged that Act No. 438 of the Local Acts of 1895, under which these bonds were issued, is constitutional. If that act is to be interpreted as authorizing the issuing of bonds in aid of railroad enterprises, and if that was the purpose of procuring its enactment, it is a scheme evasive in character, in which the attempt is made to defeat the plain provisions of the Constitution, as interpreted by the courts. Common Council of Cedar Springs v. Schlich, 81 Mich. 405 (8 L. R. A. 851). Whether legislation of this character is constitutional or not is no longer an open question in the courts of this State. Prior to 1870 the disposition on the part of townships, cities, and villages of this State to vote municipal aid to railroads and other corporations was so widespread that had it not been for the wise provisions of the Constitution, as interpreted by the courts, these municipalities in many instances would have so incumbered themselves with debt, in aid of enterprises which were not needed, as to be a serious menace to their prosperity. Many aid bonds had been issued, and others were to be issued. The question was raised in the case of People v. Township Board of Salem, 20 Mich. 452 (4 Am. Rep. 400). Because of the magnitude of the interests involved, the case excited widespread attention. The parties in interest were represented by as able counsel as ever appeared in any one case before any court in this State. The case was given patient and careful consideration by the court, whose membership then, in point of ability, was not excelled by any State court. The opinion was written by one of the ablest jurists this or any other country has ever known. Justice Cooley was then at the height of his great powers. In an elaborate and well-considered opinion, in which all the questions involved were ably discussed, it was held that legislation of this character was unconstitutional. A year later the question was again raised, in People v. State Treasurer, 23 Mich. 499. The learned justice who wrote the opinion in People v. Township Board of Salem, supra, wrote the opinion in this case, and, i-eferring to the prior case, said:
“Our conclusion, therefore, was thát the legislature could neither compel the taxation of municipalities in aid of railroad companies, nor could it empower them, in order to give such aid, to tax themselves, or to contract indebtedness which must be paid by taxation. * * * The conclusion reached by the majority of the court was one which struck at the root of all the legislation of which the act in question was an instance. We found no warrant for it in the Constitution. On the contrary, we found that it assumed to take from the citizen his property under a pretense of taxation, but in a case and for a purpose not admitting of an exercise of that power. Our Constitution has carefully provided a shield against an invasion of the citizen’s right to his property, in the provision which guarantees to every person due process of law. Article 6, § 32. To take a man’s property from him under pretense of taxation, for a purpose for which taxation is not admissible, is not due process of law, but is an unlawful confiscation.”
Justice Graves, who wrote a dissenting opinion in the Salem Case, concurred in this!
The question again arose in 1873, in the case of Thomas v. City of Port Huron, 27 Mich. 320, where Justice Cooley wrote the opinion, in which the doctrine of the two other cases was reaffirmed.
The townships and municipalities ceased to vote aid to corporations. The people indicated no desire to change the Constitution so that this might be done. For a quarter of a century the doctrine announced in the case of People v. Township Board of Salem has been regarded as the settled law of this State, and, so far as we know, has gone unchallenged in any of the courts of this State until a different rule was announced in this case. Section 3, art. 6, of the Constitution of this State, provides:
“The Supreme Court shall have a general superintending control over all inferior courts, and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo, and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.”
Our attention has not been called to any constitutional provision authorizing the judge of a circuit court, however learned and able he may be, to overrule the decisions of the Supreme Court. So, the doctrine of People v. Township Board of Salem must still be regarded as the law in all of the courts of the State.
It is urged the granting or refusing a writ of injunction calls for the exercise of his discretion upon the part of the judge, and will not be reviewed by mandamus; counsel citing 1 High, Inj. (3d Ed.) § 15, Reddall v. Bryan, 14 Md. 444 (74 Am. Dec. 550), and Lansing Lumber Co. v. Ingham Circuit Judge, 108 Mich. 305. It is true that courts hesitate to review the action of a trial judge involving matters of discretion, and will not do so unless it is necessary that justice may be done. In the note to section 15, 1 High, Inj., it is said: “This discretion, however, is by no means an arbitrary one, and is to be exercised in accordance with established principles of law and equity.” In the case of Lansing Lumber Co. v. Ingham Circuit Judge, supra, the writ of mandamus was 'issued. In Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 479, a writ of mandamus was issued to set aside an injunction; the court holding it was a prerogative writ, designed to afford a summary and specific remedy, where the party applying for it would otherwise be subjected to serious injustice. In this case the circuit judge said, if the decisions of this court are to control, the relator was entitled to the writ of injunction. It is not a case where, in refusing the writ of injunction, the judge exercised his discretion in accordance with established principles of law and equity, but it is a case where he substituted his judgment of what the law ought to be for the law itself, as determined by the repeated rulings of this court.
The writ of mandamus will issue as prayed.
The other Justices concurred. | [
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] |
Montgomery, J.
Bill filed to set aside a conveyance on the grounds of undue influence and mental weakness. The court below granted the relief prayed, and defendant appeals.
The complainant is a widow, and at the date of the con veyance was 74 years old. The evidence shows that she, as Dr. Howard, a witness for the defendant, expressed it, “is a nervous, fidgety woman, troubled with nervous prostration at times.”- About a week-after her husband’s decease the conveyance in question was made, transferring all the real estate which the complainant had to the defendant, who is not a relative. The deed recited a consideration “of her [grantor’s] support during her-natural life, and her burial at death, by said second party.” It was accompanied by no separate agreement. The complainant’s testimony tends to show that she was, at the time this deed was made, so overcome by grief that she was incapable of understanding the transaction, and did not, in fact, understand that she had conveyed away the fee of the land. The testimony on the part of the defense indicates thát the negotiations were conducted with defendant and her husband, and no satisfactory reason is shown why the husband was not obligated in some way to fulfill the engagement to care for complainant. The circuit judge was of the opinion that the deed -did not protect the complainant, or correctly represent the bargain which defendant’s testimony shows was made, and that the complainant did not understand the legal effect of the conveyance.
We are fully satisfied that the circuit judge reached the correct result. The case, in many of its features, is similar to Crips v. Towsley, 73 Mich. 399. The court found that defendant had been fully compensated for the care of complainant for the time she remained with her, and in this we also concur.
The decree will be affirmed, with costs.
The other Justices concurred. | [
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] |
Long, J.
In July, 1897, the local option law was in force in Yan Burén county. Respondent was a registered pharmacist, and was charged in the information with having sold, furnished, and delivered, on July 23, 1897, to one Charles T. Benham, one bottle of beer, to be used as a beverage. The pharmacy was owned and kept by W. A. Engle, and the respondent was in his employ ■as a clerk. It appears that Charles T. Benham and E. S. Persing were employed by the prosecuting attorney and sheriff of the county to look up liquor cases in that county, and were paid $5 a day each for their services. Benham went by the name of F. C. Hart, and Persing by the name of F. J. Freeman, and so registered at their different stopping places in the county. On the day the beer is alleged to have been sold, they arrived in Hartford, Van Burén county, about noon, and stopped at an hotel. Ben-ham testified that, at about 9 o’clock in the evening, he and Persing went into the Engle store, and found the respondent there, and asked him for a bottle of export beer; that respondent said he would get it for them; that—
“He went down cellar, and came up with a bottle. We stood at the head of the stairs leading down cellar. * * * The respondent brought back a bottle of lager beer, and asked if he should open the bottle. I told him, ‘Yes,’ and he drew the cork; and he says, ‘Boys, you will have to step to the door to drink it.’ And we stepped just outside of the door, on the back steps, and drank the beer, came back, and he was standing on the stairs. He said: ‘ Set the bottle right down there; it will be all right. ’ I paid him 20 cents, and went out. We didn’t inform Mr. Engle the purpose we wanted to put the beer to. He didn’t ask us. He said nothing about it.”
Mr. Persing was called, and testified to the same transaction having taken place at the time given by Benham. They both testified that they did not go into the store except on that occasion, and were not there in the afternoon. The people then rested.
The respondent testified that he was not in the store at the time mentioned, but that he went from it about 8 o’clock; that he sold Benham no beer on that night, but that about 4 o’clock in the afternoon the parties came in, and asked him for some beer; that Mr. Persing, who called himself Freeman, asked for it. Respondent then testified:
“Freeman is the name he gave. He said he would like to get a couple of bottles. I asked him if he wanted it for medicine, and he said he did. I asked him his name, and he gave the name of F. J. Freeman, and I put it on the book, and he took the beer, and went out. This was about 4 o’clock in the afternoon. * * * ”
Mr. Woolsey, a half brother of the respondent, was also a clerk in the store. He testified that he was in the store that night, and that respondent went out of the store at 8 o’clock; that no such transaction took place that night as testified to by Benham and Persing. Milo Wolcott testified that he saw Benham and Persing come out of the store about 4 o’clock that afternoon, and saw them all the evening at the hotel, which was his headquarters; that, when he saw them come out of the store, one of them had a long package done up in a piece of paper. It was the theory of the respondent that this package was the two bottles of beer just purchased from him.
The business of druggist is a lawful business, in which the legislature has recognized the necessity for the sale of all kinds of liquors to adult persons, at all times, day or night, even where the local option law is in force. The restriction placed upon the sale is that it shall be sold only for medicinal, chemical, scientific, mechanical, or sacramental purposes. The statute further provides that it shall not be sold to any person as a beverage, to be drunk on the premises; and that the druggist shall keep a blank book in which shall be recorded the names of all persons applying for such liquor for any of these lawful purposes, the date of each sale, the amount and kind of liquor sold to each person, and the purpose to which the same is to be applied, as stated by the purchaser. 3 How. Stat. § 2283c6. Respondent claimed to have fully complied with this statute.
.The question in the case is whether the sale was made at 9 o’clock in the evening, and under the circumstances claimed by the people, or at 4 o’clock in the afternoon of the day, under the circumstances testified to by respondent. If the sale was made as claimed by the two witnesses for the people, there .was a violation of the law; if sold under the circumstances stated by respondent, there was no violation of the law, and the respondent was wrongfully convicted.
There is but one question in the case which we deem important to discuss. It appears that the jury had been out all night, and, returning into court in the morning, they were asked if they had agreed upon their verdict, and, answering in the negative, the court asked:
“Do you think you have exhausted every reasonable effort to agree ?
“ The Foreman: Yes, sir; we have been over the testimony several times.
" The Court: I was very sorry, gentlemen, that you were obliged to remain out all night with this case. The work of a jury is hard enough if it only works when court is in session, without having to be out all night; but the interests of both the people and the respondent are important in this case, and it is very important that you should, if possible under the testimony, agree upon a verdict. Now, I have no doubt that you have done just as your foreman says, — gone over the testimony very carefully and conscientiously, and endeavored to agree upon a verdict, so far as you have been able to; but perhaps, on further reflection, you may be able to do so. I certainly hope so. Now, I make this suggestion: I have no doubt that each side has used all the powers of persuasion, that of the individual jurors, to convince his fellow jurors of the case as it looks to him. Now, suppose you go out and try the reverse, and let each of you try as hard as you can to be persuaded, instead of trying to persuade the others. Try and persuade yourselves, those who do not agree with their fellow jurors, and see if, looking over the testimony carefully and listening to all the arguments that those who do not agree with you may use, you cannot come to the same verdict. In view, as I have said, of the importance of the verdict in this case, I do not feel like discharging you at this time. It is now early in the morning. You have had your breakfast. Make yourselves as easy and comfortable as you can, and think the matter over carefully. Divest yourselves of all sort of preconceived opinions about the case on either side up to this time. Start right in now just as if you had first gone out, and see what you can do. You may again retire, gentlemen.”
Within an hour after this charge, the jury returned a verdict of guiltj', but with the recommendation that the court fix the punishment or fine as light as the law would allow in such cases.
Counsel for the people contends that the instruction comes within the rule laid down in Com. v. Tuey, 8 Cush. 1, where the trial court, among other things, charged the jury:
“But in conferring together you ought to pay proper respect to each other’s opinions, and listen — with a disposition to be convinced — to each other’s arguments; and, on the one hand, if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one which makes no impression upon the minds of so many men equally honest, equally intelligent, with himself, and . who have heard the same evidence with the same attention, with equal desire to arrive at the truth, and under the sanction of the same oath; and, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to, doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated, and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.”
That court before that, however, had stated in the same connection to the jury:
“Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring 12 minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other.”
That charge was approved by the supreme court of Massachusetts.
In the present case, however, the jury were not instructed that the verdict to which they agreed should be and must be each individual juror’s own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows; but, on the contrary, they were instructed just the reverse,— that they must each try to be persuaded. We think the court was in error in this instruction, and that its substance had a tendency to make the jurors feel that they must give way their honest convictions upon the merits, and agree with the majority, though they had a reasonable doubt of the guilt of the respondent. This may have been what the minority did, and in consequence of which the foreman, in announcing the conclusion, recommended that the court should be lenient in passing sentence. For this reason the verdict must be set aside, and a new trial granted.
We have examined the other questions raised, and find no error in them.
The other Justices concurred. | [
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Hooker, J.
The complainant obtained a judgment against William B. Gates in justice’s court for $208.79 damages and $2.30 costs, in the year 1877. Execution was issued, and returned unsatisfied, as appears from the execution. The justice is dead, and after diligent search it was impossible to find his docket, or any paper in the case except the execution and return. The issue of this execution was delayed upon the promise of Gates to sell his wheat and pay the judgment; but, after selling his wheat, he absconded, and has since lived in the State of Washington. In the year 1897, his sister, residing in Branch county, Mich., died, leaving a will, whereby she bequeathed to him her property. Immediately after her funeral, the property, consisting of securities, came into the possession of Leonard, her sister’s husband. Jesse Gates, a brother, was named as executor; and, after proceedings were instituted for the probate of the will, the complainant had a conversation with him, requesting payment of his claim, and offered to take half of it, but this was refused. Jesse Gates offered to pay him $50, and afterwards, acting under the advice of counsel, sent an assignment to William B. Gates, who signed and returned it duly signed, whereby x^e assigned to Leonard all of his interest in the estate, the proceedings to probate the will being meantime postponed. This assignment was dated September 8, 1897. It was delivered to Leonard, and he gave his note for $500, payable on or before a year from its date. What the date was does not appear, as the note does not appear to have a date. Leonard testified that he paid $400 upon the note by a draft sent William B. Gates on October 13th, and the remainder later. The complainant filed a bill soon after the will was probated, to reach the interest of William B. Gates in the hands of the executor, and some months later, on being advised of Leonard’s connection with the transaction, filed an amended bill, making him a party. From a decree in favor of the complainant, the defendants have appealed.
Defendants’ brief states that there are two questions in the case:
First, whether either of the defendants is liable to the complainant upon the merits.
Second, whether a bill in chancery will lie to establish a lost judgment of a justice of the peace, rendered in this State, there being no copy or note of the judgment.
We are convinced from the testimony in the case that the complainant had a valid claim against William B. Gates at the time that he left Michigan, but the amount of such claim does not appear. He testified that 40 years ago he had a note against him, but the note was not produced, nor is there any competent evidence to show its date or amount. The witness testified, further, that this note was sued before one Sawin, a justice, and that judgment was rendered upon it, and that he saw the entry of the judgment upon the docket. A paper purporting to be an execution issued upon such a judgment appears in the record, but such execution is insufficient to show a valid judgment. It is no less hearsay than would be testimony of oral statements of the justice to that effect.
To prove a justice’s judgment, it must be shown that jurisdiction of the defendant was obtained, and that at a proper time a trial was had and a judgment rendered, and its amount. This would be required if the docket were produced, and certainly proof that the lost docket contained as much is requisite. Kenyon v. Baker, 16 Mich. 373 (97 Am. Dec. 158); Hickey v. Hinsdale, 8 Mich. 267 (77 Am. Dec. 450). It is the rule that the loss of the record must first be shown, and 'then the substance of the contents must be established. 1 Whart. Ev. § 139. In section 140 it is said: “But, to authorize memoriter proof of a lost document or record, the witness must have read it, and be able to speak at least to the substance of its contents.” See, also, Coxe v. England, 65 Pa. St. 212. In Com. v. Roark, 8 Cush. 210, it was held that “the contents of a complaint and warrant in a criminal case, lost after being returned into court, may be proved by secondary evidence; and witnesses to prove the contents may state the substance, without giving the exact words.” See, also, Simpson v. Norton, 45 Me. 281; Hall v. City of Manchester, 40 N. H. 410.
It is manifest that anything less than a statement of the contents would be unsafe, and, especially in criminal cases, could not be accepted. It would necessarily involve an opinion of a witness to say that a judgment or warrant — i. e., a valid judgment or warrant — existed, and that would be clearly inadmissible. It has been held that previous talk of the parties as to what they proposed to agree to in the writing is not even secondary evidence of the contents of the paper. Richardson v. Robbins, 124 Mass. 105. And the opinion of the witness as to the effect of the language of a paper, the language not being given, was held inadmissible in Elwell v. Walker, 52 Iowa, 256. In 1 Greenl. Ev. § 558, it is significantly said: “Satisfactory proof being thus made of the loss of
the instrument, the party will be admitted to give secondary evidence of its contents.” This court has recognized the rule in Norvell v. McHenry, 1 Mich. 227, which implies the necessity .of proving the steps taken before judgment. See, also, Eslow v. Mitchell, 26 Mich. 500. In re Lambie’s 'Estate, 97 Mich. 55, recognizes the rule, though itself exceptional. In Showier v. Bonander, 80 Mich. 534, Mr. Justice Cahill says, upon behalf of the court: “ When parties rely upon parol evidence to establish the contents of a written agreement, they should be required * * * to show its contents by proof,” etc.; quoting with apparent approval the following: “No vague, uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily;” citing Tayloe v. Riggs, 1 Pet. 600, and Richardson v. Robbins, supra.
It is with reluctance that we reach the conclusion that proof of judgment is wanting, and that we cannot afford the complainant the relief that we would' be glad to give him.
The decree is reversed, and the bill dismissed, with costs of both courts.
The other Justices concurred. | [
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] |
Hooker, J.
The petitioner is a mortgagee of the premises in question, which were sold for the tax of 1893, under a decree of the circuit court on petition of the auditor general. The purchaser sold to Barnes, who has appeared by solicitors in this proceeding.
The petition is filed to open the decree entered in the proceedings instituted by the auditor general, under which the sale was made, and allow the petitioner to defend against the tax, upon several grounds set up in the petition. The circuit judge denied the prayer of the petition. The jurisdiction of the circuit court is attacked upon the ground that a sufficient petition was not filed by the auditor general. The decree is said to be defective, in that it fails to describe any lands to be sold, and because it was not made 10 days prior to the time fixed by law for the sale; also because the county treasurer never made and filed with the clerk a report of sale. It also prays that the sale be set aside because made without enrollment of the case, and because the land was sold on the first day of the sale to the State, instead of offering it from day to day for 20 days.
To prove his case, the petitioner offered in evidence the files found in the office of the register in chancery, who testified that they were all of the files that he found in his office. Among these was a petition, and counsel for the petitioner insist that this must be assumed to be the petition filed in the case, and argue, among other things, that it appears to have been filed one day after the order of publication was made. On the other hand, counsel for the auditor general asserts that this writing was a copy, and was attached to the order of publication. On consulting the original return, we find a printed order signed by the circuit judge, followed by the petition, in the same type, with a memorandum to the printer to print both, which is required by section 66 of the law. Act No. 206, Pub. Acts 1893. It would seem to follow that this cannot be considered the original petition in the . case, and we need not discuss the numerous questions raised upon the assumption that it was such.
The record also contains a petition which seems to conform to section 61. It was in book form, containing a list of the lands alleged to be delinquent, and bears the evidence of filing signed by the register. It appears to have been produced from the county treasurer’s office. .We are satisfied of its identity and sufficiency as the original petition in the case. Mersereau v. Miller, 112 Mich. 103.
The decree is said to be void because as recorded it does not contain the descriptions of lands ordered to be sold. The statute (section 67 ) prescribes the form of the decree, and clearly indicates that the tax record, with its entries, shall be considered a part of the decree by reference, and as clearly that it was not intended that this record or any part of it should be recorded.
The report of sale was valid under the decision in the case of Jenison v. Conklin, 114 Mich. 9.
The decree was not made 10 days before the sale, but that does not preclude a sale at the usual time. The point is ruled by Hooker v. Bond, ante, 255.
It is also contended that the cause was not enrolled, and argued that this is necessary, under the general statute and rule, to the validity of a sale. The statute prescribes a time for the sale to take place, which precludes the application of 2 How. Stat. §§ 6648, 6649. Chancery Rule No. 24 cannot overrule the tax law, which provides when deeds may issue. Hochgraef v. Hendrie, 66. Mich. 561.
We cannot sustain the claim that the sale must be kept open 20 days before selling the land to the State. It is enough if, on being reoffered before the close of the sale, it is found impossible to sell the land for the amount of the tax during the sale.
It is contended that this is not a proper proceeding, after land has been deeded by the State, and conveyed by the purchaser to Barnes; that he is not a party to the record; and that a bill of review is the proper practice. We have not found it necessary to intimate an opinion upon that question.
The order of the circuit court in chancery is affirmed, with costs.
The other Justices concurred. | [
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Moore, J.
Prior to 1877, Mr. Richardson was liable upon a note secured by a mortgage. Foreclosure proceedings were commenced in August, 1877. The subpoena was personally served. The defendant did not appear in the case, and his default was taken December 20, 1882. A decree was entered, finding the amount due on the note and mortgage to be $9,313, directing a sale of the premises, and for the deficiency, if any, it was decreed defendant Richardson should be liable personally, and execution should issue therefor. In April, 1883, the commissioner made his report of sale, and also reported the deficiency was $5,581. This report was confirmed. No further proceedings were ever had in the cause. Mr. Richardson died in September, 1889, when Mr. Prentis presented a claim against his estate for the amount of the deficiency. The claim was disallowed by the commissioners. An appeal was taken to the circuit court, where the judge directed a verdict in favor of the estate.
The record shows Mr. Richardson filed a petition in bankruptcy in December, 1877. Among his list of debts was the debt secured by the mortgage. Mr. Prentis, doubtless because he preferred not to surrender his security, did not prove his debt in the bankruptcy court. In April, 1878, Mr. Richardson was discharged in bankruptcy. On the part of the estate it is contended there are two defenses to the claim:
1. The discharge in bankruptcy.
2. That the case is still pending in chancery, and, claimant having elected to proceed in'chancery, he must pursue his remedy there until authorized to pursue it somewhere else.
As to the first of these defenses, Mr. Prentis urges it might be good against a judgment rendered prior to the discharge in bankruptcy, but that it is not good against this decree, because it was rendered after the discharge was procured. It becomes important to inquire whether this personal decree was regularly taken. The right to a personal decree for the deficiency in a foreclosure proceeding is purely statutory. It is not until the coming in of the report of sale, showing a deficiency, that the court can make a decree directing the payment by the mortgagor of any balance remaining unpaid after a sale of the premises. Section 6702, 2 How. Stat., provides:
“When a bill shall be filed for the satisfaction of a mortgage, the court shall not only have power to decree and compel the delivery of the possession of the premises to the purchaser thereof, but, on the coming in of the report of sale, the court shall have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the mortgagéd premises, in the cases in which such balance is recoverable at law, and for that purpose may issue the necessary executions, as in other cases, against other property'of the mortgagor.”
This section has frequently been construed by the courts. In Johnson v. Shepard, 35 Mich. 122, it is said:
“Under the original equitable jurisdiction, there never was any power to make a personal decree against even the mortgagor himself. His personal obligation could only be enforced in a suit at law. It was an innovation which provided that, in case there was a deficiency left after exhausting the land, the debt might be collected in the same proceedings. The first Michigan statute authorizing this remedy was the chancery act of April 23, 1833, and was confined strictly to the mortgagor himself. Section 37. Before the Revised Statutes of New York, there was no remedy in equity against anything but the lands mortgaged, in that State (Dunkley v. Van Buren, 3 Johns. Ch. 330), and such was the general rule (Downing v. Palmateer, 1 T. B. Mon. 66). The debt could only be collected at law. The Michigan Revised Statutes of 1838 prohibited proceeding at law and in equity at the same time, and provided that the personal claim might be pursued against the mortgagor; but in giving this power it was made to act as a supplementary process. ‘On coming in of the report of sale, the court shall have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the premises, in the cases in which such balance is recoverable at law, and for that purpose may issue the necessary executions, as in other cases, against other property of the mortgagor.’ Rev. Stat. 1838, p. 376, § 105. * * * Our present statutes on this subject are in all respects the same with those of 1838, and those were borrowed from the laws of New York. The language is unambiguous in requiring the action which shall finally authorize the issue of an execution to be based on the confirmation of a report of deficiency. The proceeding is essentially new and supplementary, and not a mere continuation of the foreclosure. It resembles the proceeding had on the coming due of a new installment, which, although it is usually provided for in the original decree, is nevertheless as distinct a proceeding as a scire facias for further breaches of a bond. Brown v. Thompson, 29 Mich. 72. It was not until 1840, in McCarthy v. Graham, 8 Paige, 480, that it was settled by any reported decision that a contingent provision for personal liability could be inserted in the original decree. But it is merely contingent. It has never been held that an absolute decree can be rendered before the confirmation of the report, so as to operate as a final judgment. The practice in Michigan has generally conformed to the chancellor’s decision in McCarthy v. Graham.”
See, also, Howe v. Lemon, 37 Mich. 164; Gies v. Green, 42 Mich. 107; Ransom v. Sutherland, 46 Mich. 489; McCrickett v. Wilson, 50 Mich. 513; Vaughan v. Black, 63 Mich. 215; Shields v. Riopelle, Id. 458.
In Shelden v. Erskine, 78 Mich. 627, at page 633, Justice Campbell said, speaking of the jurisdiction of the court to render a personal decree in such cases:
“It is also to be exercised, and the trial of liability had, on a new hearing, after the deficiency is reported. Any decree in advance of sale made for payment is, at best, no more than declaratory, and can fix no rights.”
The cases hold very clearly the attempt to take a personal decree is substantially a new proceeding, requiring personal service upon the defendant, if he can be found. In this case it was the duty of the complainant, before a personal decree could be taken against the defendant, to serve him personally with notice of the application. When the decree was taken, Mr. Richardson was in default. He could not contest the amount due on the mortgage, for there was no dispute about the amount. He could not question the lien upon the land, for the bankruptcy proceedings could not discharge the lien. He had no reason to suppose an attempt would be made to take a decree against him personally, for the statute, by its terms, did not authorize such a decree until after sale; and, as construed by the courts, the statute did not permit the taking of a personal decree without the filing of a petition, and notice to him personally. He had a right to answer the petition. While he could not dispute the amount which was due upon the mortgage, he could set up any defense which would operate to discharge his liability upon the debt. He would have had a right to show that the debt secured by the mortgage was in existence when the bankruptcy proceedings were commenced, and was provable in the bankruptcy proceedings, and his discharge in bankruptcy. The discharge would not be a defense to the mortgage, but it' would be a defense to a decree against Mr. Richardson . personally for deficiency. McDougald v. Reid, 5 Ala. 810; Ewing v. Peck, 17 Ala. 339; Roberts v. Wood, 38 Wis. 60; Luning v. Brady, 10 Cal. 265. Mr. Richardson was never informed it was proposed to take a personal decree against him for the deficiency. He never had an opportúnity to plead his discharge in bankruptcy to an application of that character. He was entitled to such an opportunity before he could be cut off by the decree. Dresser v. Brooks, 3 Barb. 429; McDonald v. Ingraham, 30 Miss. 389 (64 Am. Dec. 166); Boynton v. Ball, 121 U. S. 457.
If be bad been properly brought into court before tbe personal decree was taken,' and failed to plead bis discharge in bankruptcy, a different question would be presented.
Tbe judgment is affirmed.
Tbe other Justices concurred. | [
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Moore, J.
This is an action of trespass on the case to recover damages for slander. The case was tried by a jury, which returned a verdict in favor of the plaintiff for $325. A motion was made for a new trial, which motion was overruled; the trial court filing written reasons for so. doing. The case is brought here by writ of error.
The only errors relied upon which call for discussion are grouped by counsel for appellant as follows:
“(1) Error in permitting the plaintiff to be recalled for further direct examination after cross-ex- animation had been waived and in refusing to strike out this evidence.
“(2) Error in permitting the plaintiff to describe how the alleged slanderous words affected her feelings.
“(3) Error- in the admission of testimony relative to alleged statements of the defendant showing malice.
“(4) Error in the admission of evidence relative to the financial standing of the defendant.”
(5) Rulings in relation to testimony.
Taking these up in the order presented:
The plaintiff was a witness in her own behalf. She was examined in chief. Counsel for defendant waived cross-examination. Albert Tumser was next called as a witness. He gave his version of the conversation which is the basis of the suit. After he left the stand counsel for plaintiff recalled the plaintiff for further examination. This is said to be error. We think this well within the discretion of the trial judge. Green’s Michigan Practice, § 897.
This group of assignments of error is not well taken. Farrand v. Aldrich, 85 Mich. 593 (48 N. W. 628) ; Cribbs v. Yore, 119 Mich. 237 (77 N. W. 927); McArthur v. Sault News Co., 148 Mich. 556 (112 N. W. 126).
Relates to the testimony of witnesses Cole and Hoyt of prior statements made by defendant concerning plaintiff, bearing upon the question of malice. Counsel say:
“In the present case the words admitted to show malice were not a part of the res gestee; they were not a part of the same transaction; they did not lead up to the words charged in the declaration, and we maintain were incompetent in the case.”
The ruling of the court was justified by Randall v. News Association, 97 Mich. 136 (56 N. W. 361); 25 Cyc. p. 396, and notes; Newell on Slander and Libel, p. 331.
We quote from the brief of counsel' for appellant :
“The fifth, sixth, and seventh assignments of error are directed to questions and answers of plaintiff’s witness, Handy, regarding the financial standing of defendant. This court has repeatedly held that the defendant’s reputed wealth may be shown in slander suits, and we do not desire to question that rule. But we do maintain and argue that it was not reputed wealth that witness Handy was testifying^ to in this case. His whole knowledge, according to his own admissions, was what he knew himself and not what he had heard people say.”
This contention is not sustained, except by reading one or two questions and answers of the witness, isolated from the rest of this testimony. His testimony, read as an entirety, shows that it’ was within the rulings' of this court. See Botsford v. Chase, 108 Mich. 432 (66 N. W. 325); Loranger v. Loranger, 115 Mich. 681 (74 N. W. 228); Derham v. Derham, 125 Mich. 109 (83 N. W. 1005).
5. We again quote from the brief of counsel:
“The defendant in this case sought to give in evidence facts tending to show where the rails, over which the dispute arose, were located, whose land they were on, and who they belonged to, a.nd the reasons for these conclusions.
“This evidence on the part of the defendant was offered for two purposes: First, to show a qualified privilege on the part of the defendant; and, second, to show want of malice, and thus mitigate damages. It was first offered to show a qualified privilege on the part of the defendant, and, when the court refused to receive it for that purpose, it was then offered, said offer being refused, for the purpose of mitigating damages.”
The plea of the defendant was the general issue and nothing more.
The defendant was allowed to testify and did testify:
“They [the rails] were on the north side of the line that they established on my side; the rails was. At the time of this alleged occurrence, I claimed to be the owner of these rails which were upon my side of the line established by the lawsuit. I can point' but on defendant’s exhibit one the place where Mrs. Sanford and I were when this altercation occurred. It was two or three rods north of the 80-rod post, the line established by the court, and about 90 rods from the road, and about half a rod north of the line established by that judgment. On this day I claimed the old rails, and I knew they (the Sanfords) claimed them.”
We think that in view of the pleadings, if any one is justified in complaining of the rulings in relation to the admission of testimony, it is not the defendant. We find no reversible error.
The judgment is affirmed.
Brooke, C. J., and Kuhn, Stone, Bird, and Steere, JJ., concurred. McAlvay and Ostrander, JJ.. concurred in the result. | [
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McAlvay, J.
Plaintiff, who was in the employment of defendant, brought this action to recover damages for personal injuries claimed to have been received by him on the night of September 10, 1911, at Thompson’s Crossing, in Ottawa county, a point on the line of defendant’s railway, in a rear-end collision of two cars on the rear one of which he was acting as motorman. He recovered a judgment in the case, which defendant has brought to this court for review upon errors assigned.
The following are the material facts in the case necessary to be stated: Defendant operates an electric railway, the main line, of which extends from Grand Rapids to Muskegon, with a branch at a point on the main line called Grand Haven Junction. Cars on the Grand Haven branch are operated back and forth from Grand Haven Junction to Grand Haven, and meet all cars on the main line at the junction, where passengers going either way are transferred. The dispatcher’s office is at Fruitport, from which place orders to the train crews on each car are transmitted by telephone through station agents. Grand Haven Junction is a regular registering point where all car crews are required to sign their names and time of arrival and departure of cars. They get their orders at that point direct by calling up the dispatcher. On a busy day an operator is kept at the junction, and orders from the dispatcher are given to the car crews through him.
Plaintiff was an experienced motorman, and had been employed as such for about seven years before this accident, September 10, 1911. On this date he was working in that capacity on a freight car, and made his regular run from Grand Haven to Grand Rapids, arriving at the latter place between 6 and 7 o’clock in the morning. Shortly after he arrived home he was notified by defendant’s agent that he would be required to “triple” train 38 from Fruit-port, which was a point beyond Grand Haven Junction, to Grand Rapids, leaving Fruitport at 6:10 p. m. In pursuance of this order he left Grand Rapids on the 5:00 p. m. interurban car for Fruitport, and arrived there about 6:18, and went to the dispatcher’s office for orders, which he received to run from Fruit-port to Grand Haven Junction. The crew, plaintiff acting as motorman, took this car from Fruitport to the junction, and arrived there at about 7:15 p. m. A car then arrived over the Grand Haven branch loaded with passengers, which was to be run from the junction to Grand Rapids. The regular car from Muskegon also arrived there in charge of Harvey Town, motorman, and A. E. Munyon, conductor, which was made the first car, or section, of train No. 38.
Plaintiff was assigned as motorman to car No. 2 above described, which came from Grand Haven, with one William Smith, as conductor. This car was to run as second section of train No. 38. These cars were placed in position to make the run to the city of Grand Rapids, and the motormen received their running orders in writing from the dispatcher at the junction through the operator. When he received his funning orders plaintiff called the attention of the operator to a mistake in the number of his car, which was given in the order as 15, instead of 2, and told the operator to notify the dispatcher. This was done, and the mistake was at once corrected.
The first section of train 38 then left the station between 7:19 and 7:20, and plaintiff took the orders in duplicate, gave one to the conductor, and read the order to him, saying: “There is no meet order on it.” He then went to the front end of the car, took off the green light which was there, put it out, got onto the cab of his car, put down the lantern, reached out of the window and took in the green flag. At that time the conductor gave him two bells, and, as the three minutes’ time required by rule in which the second section of a train must delay before leaving after the first section, had not expired, he waited. The train-master of the road, who was there leaving on another car from Muskegon, said: “All right,.boys; go ahead when your time is up.”
Plaintiff started the car when the three minutes had expired. Johnson’s Crossing is the first public crossing east of the junction and the only one between the junction and Thompson’s Crossing. The distance from the junction to Thompson’s Crossing is 1.81 miles. We do not find the exact distance from the junction to Johnson’s Crossing stated, but the testimony indicates the distance to be about one-half mile.
The first section of train 38 carried about 55 passengers, and after it left the junction it ran at full speed, 40 or 45 miles an hour, until the conductor gave the motorman the bell to stop at Thompson’s Crossing, where a passenger was to alight. Between these two points on the road the weather was foggy and sometimes in clouds quite dense. The car overran this crossing, and it was necessary to back up to the platform, when the passenger left the car. Here is where this car stood when the rear section ran into it.
Between the junction and Thompson’s Crossing the track is straight and downgrade. This grade is sharper after going east from Johnson’s Crossing. The second section, after it left the junction until it reached Johnson’s Crossing, ran at full speed of from 40 to 45 miles an hour. At this crossing the motorman of the second section testifies he turned off the current, as required by rule, and allowed the car to coast down the grade. The speed became less, and a short distance beyond the car was going about 40 miles an hour.
When about halfway to Thompson’s Crossing, because the fog became heavier, the motorman tested the air brakes and reduced the speed. Before reaching the whistle post for Thompson’s Crossing the motorman applied the air again and slackened speed. The proper whistle was sounded at the whistle post. No bell from the conductor or other notice to stop at this crossing was given the motorman of the second section. No torpedo was upon the track and no fusee had been dropped by the first section. Suddenly, not to exceed 100 feet distant ahead, plaintiff saw the tail light of the first section. Plaintiff at once applied the air brakes, and, seeing that a collision was inevitable, started for and reached the door of his car when the collision occurred. He was thrown from the car 20 feet, striking on the ground, which rendered him unconscious for considerable time.
The foregoing is a brief outline of the facts in this case up to the instant of the collision. In order to intelligently understand the dispute between the parties to this litigation, it is necessary to state the claims of each as to the causes which resulted in the injury to plaintiff, for which he has brought suit.
On the part of plaintiff the claim is that he was operating his car with due care and without negligence; that the presence of the first section of this train at that time at Thompson’s Crossing was caused by the negligence of Conductor Munyon, who, after his car had run past this station, backed it up for a passenger to alight, and unnecessarily and negligently held it while he talked with, and made change for, a passenger until more than the three minutes’ running time between the sections had elapsed, and neglected to give his motorman the starting signal at the proper time. Plaintiff also claims that, if he was in any respect negligent, such negligence was of a lesser degree than the negligence of defendant, its officers, agents, and employees.
On the part of defendant it is claimed that plaintiff started his car from the junction in less than three minutes from the time the first car started; that plaintiff ran his car at a high and excessive rate of speed; that plaintiff should have so operated his car that he could have stopped it at all times within the range of his vision; and that the negligence of plaintiff was at least equal to the negligence of Conductor Munyon.
• This case is brought under Act No. 104, Pub. Acts 1909, of this State, entitled “An act to prescribe the liability of common carrier railroad companies to their employees.” The contention of plaintiff is that by reason of this statute defendant company is liable for the negligence of Conductor Munyon, who was in charge of the first section of train 38 on the night in question. The declaration consists of three counts, in each of which is charged the duty of defendant in the premises and the neglect of such duty by its agents and servants. Such duties and negligence are briefly stated in plaintiff’s brief, as follows:
“(1) It was the duty of the defendant, through its conductor and motorman, to see to it that said first car did not stop at Thompson’s Crossing longer than was necessary to allow the passenger to alight, and as soon as the passenger did alight it was the duty of this conductor to give the motorman the proper signal to go ahead.
“(2) The car being delayed at the crossing for a period of about three minutes, by reason of running over the crossing, backing up, and the conductor stopping to make change and talking with passengers on the rear of said car, it was the duty of Conductor Munyon to light a fusee and throw the same upon the track, so as to warn plaintiff that his car was in that vicinity, and especially so on account of the foggy conditions which existed that night.”
The allegations of the third count need not be stated, for the reason that the ease was submitted to the jury upon the first and second counts of the declaration.
From the requests of counsel of both parties submitted to the court to charge the jury, and also from the charge of the court, it appears that the case was prosecuted, tried, and submitted with reference to the following provisions of Act No. 104, Pub. Acts 1909:
“In all actions hereafter brought against any such common carrier railroad company, under or by virtue of any of the provisions of this act, to recover damages for personal injury to an employee * * * the fact that an employee may have been guilty of contributory negligence shall-not bar a recovery: Provided, that the negligence of such employee was of a lesser degree than the negligence of such company, its officers, agents or employees.”
A motion for a new trial was made by defendant, one of the grounds of which was as follows:
“Because the verdict rendered by the jury in said cause was not supported by a fair preponderance of the evidence, but, on the contrary, was against the weight of the evidence.”
This motion was denied, and exceptions duly taken.
The- errors assigned and relied upon by defendant which are discussed relate to the refusal of the court to grant a new trial on the ground that the verdict was against the weight of the evidence, and to the refusal of the court to strike out certain testimony of two physicians who were witnesses for plaintiff.
The contention urged most strongly on the part of defendant in its brief is that the judgment in this case should be set aside because it is clearly against the great weight of the evidence; in fact, it is claimed it is against the overwhelming weight of the evidence. This is the crucial question in the case.
Before proceeding with the consideration of this-question, a few. words relative to the statement of facts given in this opinion will be proper. This statement, in so far as it relates to the conduct and management of both sections of this train, from the time they left Grand Haven Junction until the collision occurred, is naturally, and to a considerable extent, based upon the testimony of the motorman and conductor of each section, for the reason that they were, in fact, the principal actors, and most closely connected with all of the incidents which were knit together in the entire transaction. There are some disputes and differences between these principal parties, but no more than ordinarily develop in this class of cases.
Other witnesses who were in each of these sections during the entire trip from Grand Haven Junction strongly dispute the ■ testimony of some of the train men, including plaintiff, and others as strongly favor such testimony. This testimony related principally to the time each section left Grand Haven Junction; the speed of the sections on the way down to Thompson’s Crossing; the delay of the first section at that crossing by reason of having overrun and backing up to discharge a passenger; the delay in failing promptly to pull out from that station on time; the neglect to throw out the fusee; also the speed of the second section in coming to Thompson’s Crossing; and many other matters. All of this testimony, as far as the physical facts surrounding the accident are concerned, was material and relevant to the issue, and clearly for the consideration of the jury.
The record shows that during the entire course of the trial the end and aim of each side was to show that each section of this train was operated with greater negligence than the other. When we consider the nature of this case we will appreciate that each party was warranted in taking such course, for the reason that, the case having been brought under Act No. 104, Pub. Acts 1909, quoted supra, the contest naturally resolved itself into one of the comparative negligence of the crews operating these sections.
In cases where the question of the weight of the evidence is presented to this court, the obligation always rests upon it to read with great care and weigh with deliberation all of the evidence, and in arriving at a conclusion to do so in accordance with the familiar rule we have repeatedly stated, that this court will only reverse a case upon the question of the weight of evidence when the verdict is clearly against the great weight of such evidence. Gardiner v. Courtright, 165 Mich. 54, at pages 61, 62 (130 N. W. 322); Fike v. Railroad Co., 174 Mich. 167, at page 208 (140 N. W. 592).
In onr determination, upon the weight of all of the evidence, we do not agree with the contention of appellant upon this question, and our conclusion is that the verdict for plaintiff was not clearly against the great weight of the evidence in the case. It follows that the circuit judge was not in error under the evidence in this case in denying a new trial.
Two other questions are raised and discussed by appellant relative to certain testimony of two physicians. Each of these physicians examined the plaintiff at or about the time suit was commenced, for the purpose of testifying in the case. The testimony of both of these witnesses was evidently offered as bearing upon the question as to whether the injury which plaintiff received at the time in question was permanent. Dr. Hastie was first called, and on direct examination testified as to his examination made upon the body of plaintiff in manipulating the right leg, stating, among other things, that:
“Bringing the limb away from the body — abduction — it was very limited, and evidently very painful to the man. The rotary motion also was very limited, * * * which indicated that there was some injury in this case to the hip joint. There was apparently an indication of a fracture.”
The following hypothetical question was asked him:
“Q. The history of the case shows that on the 10th of September, 1911, Mr. Darling was injured in the wreck on the interurban, * .* * and that it will appear when he takes the stand he suffers pain, considerable pain, more or less, all the time on the right of the spine in the small of the back. Whether or not that could come from the hip or injury to the hip?
“A. Yes; and the muscles moving the hip with this limited motion pulling against that, would give him pain.”
He further testified that, in his opinion, the injury would be permanent. No objection was made to this direct examination or to any question then asked. After proceeding with the cross-examination and showing that the examination of plaintiff was made preparatory to being a witness, counsel for defendant made the following motion:
“Now, if your honor please, I move to strike out the answer of the witness where he stated that the plaintiff was suffering pain, or said he was suffering pain.”
Counsel for plaintiff denied that the witness had so testified, and considerable colloquy occurred between counsel, which does not require quoting. The motion was denied by the court, and an exception was taken. The doctor was testifying to the condition in which he found plaintiff’s hip. He volunteered that a certain condition, explaining it, “would give him pain,” and further stated that a certain movement was very limited and evidently very painful. We do not think that any prejudicial error was committed in denying the motion.
The objectionable testimony given by Dr. Corbus is as follows:
“Doctor, the evidence shows that on the 10th of September, 1911, Mr. Darling, the plaintiff in this case, was a motorman on an interurban car running between this city and Muskegon; that he was on the rear car and ran into a head car, the car that was ahead; a serious collision resulted which threw him from the cab a distance of some 20 feet on to the ground; that previous to that he was well, strong, suffered no pain in his hip, or in the small of his back to the right of his spine; that he could walk normally; that he had received no other injury to his person since that time. Now, I will ask you whether or not, in your opinion, the condition you found there in his hip could result from such an accident?
“A. Yes.”
Counsel for defendant moved to strike out both, the question and answer as conclusions, incompetent, and not susceptible to the application of expert testimony. This was overruled, and an exception taken.
It appears that the witness testified somewhat out of the regular order of proof, for his convenience, and testimony was later introduced in the case to cover, as we understand, all of the facts included in the hypothetical question. We think the testimony was competent, as showing the character of the cause which might have produced the injury. This has been so recognized by this court. Smith v. Railway, 155 Mich. 466 (119 N. W. 640), and cases cited.
The case was properly submitted to the jury by the learned trial judge in a charge with which defendant in its brief finds no fault, and resulted in a verdict in favor of plaintiff. .The question was one of comparative negligence, and the finding of the jury was warranted by the evidence.
We find no prejudicial error in the case.
The judgment of the circuit court is affirmed.
Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Bird, J.
Plaintiff’s husband was engaged in the work of repairing locomotive boilers and fire boxes for defendant at its shops in the city of Grand Rapids. While making interior repairs in a fire box on the afternoon of August 18, 1912, he was electrocuted by an electric lamp which he was using to aid him in his work, and which had been furnished him by the defendant for that purpose.
At the conclusion of the proofs the defendant re quested a directed verdict in its behalf on the ground that no negligence on the part of the defendant had been made out. This request was refused, and the jury were instructed, in substance: That if the deceased took the electric lamp to the electrical department to have it repaired, and after doing so the lamp was delivered back to him, he had the right to rely upon it that it was inspected and safe for use; and if it were handed back in a condition unsafe and unfit for use, and the deceased met his death by reason of such. impaired condition, the defendant would be guilty of negligence.
Counsel for the defendant concedes that the state of the evidence was such that the jury were justified in reaching the conclusion that the deceased was electrocuted by means of the electric lamp, but he insists that it was error for the trial court to permit the jury to find that the deceased took the lamp to the electrical department, or that it was repaired in that department. In effect, the contention is that, if the lamp was-defective, the defendant had no notice nor knowledge of it. As the case must turn upon this question, the testimony in relation thereto will have to be examined.
It appears from the record that the defendant maintained an electrical department with an electrician in charge who had three assistants, where all the defective electrical apparatus was repaired. It was located about 800 feet from where the deceased was working. It was shown to be a custom among the men to have such ¡repairs made at this department, and that this was the only place where such repairs could be made, as the wire guard which surrounded the globe could not be unlocked and taken off except with the aid of a key, which was possessed only by the electricians. It further appears that, upon the day in question, the deceased was preparing to make some repairs in the interior of the fire box of locomotive No. 89. His helper, Roys, brought the lamp and cord and attached the cord to a nearby drop cord. When he turned the key, it refused to light. He received a shock in attempting to turn it, and he thereupon handed it to the deceased with the suggestion that he have it repaired. An examination of the lamp disclosed that it was defective, in that the insulation around the shank of the key had been broken off. »In response to Roys’ suggestion, the deceased'took the lamp and cord and went away with it, and was gone about 15 minutes. When he returned, the lamp was lighted and the work proceeded. A few minutes later, the deceased, while holding the lamp, received a shock which resulted in his death. Roys testified that he took no notice where the deceased went with the lamp and cord, but assumed that he went to the electrical department. The testimony of the electricians was inconclusive, as only two of them were sworn at the trial, and it appeared that they were away from the shop a portion of the day doing outside work.
We are of the opinion that this testimony justified the trial court in submitting to the jury the question as to whether the deceased took the lamp to the electrical department and had it repaired, and whether it was handed back to him in an unsafe condition. The fact that the lamp would not light when he went away, and when he returned it did light, is very persuasive that some repairs had been made upon it, and the testimony conclusively shows that the only place where it could be repaired was at the electrical department.
As this is the only question in the case, the judgment of the trial court will be affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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Bird, J.
By this proceeding complainant is attempting to quiet title to lots Nos. 4 and 13 of Mercer’s addition to the village of Saranac. In 1901 William Fitzgibbons was the owner thereof in fee, and in April of that year he conveyed the lots by warranty deed to Bernice Budway for a nominal consideration, and on the same day she made a conveyance of the same for a like consideration to “William and Sarah Fitzgibbons, husband and wife,” and both deeds were duly recorded. In November, 1904, William Fitzgib bons died, leaving him surviving a widow and a daughter, Madeline, and also three children by a former marriage. In April, 1907, the widow, Sarah J. Fitzgibbons, conveyed an undivided half interest in the lots.to one Nathan F. Gould, and in November of the following year she conveyed the remaining undivided half to complainant.
It is the claim of complainant that the conveyance to William and Sarah Fitzgibbons, husband and wife, created an estate by the entirety, and that upon the death of William the entire interest passed to and vested in the survivor, Sarah J.
The position taken by the defendants, children of the first wife, is that at the time their father was married to Sarah J. he had not been divorced from his first wife, and that she was then living in the State of New York, and that, as a matter of fact, Sarah J. was not his wife when the deeds.were made, and by reason thereof they took as tenants in common, and not by entirety, and upon the death of their father his undivided half of the estate descended to them. The chancellor who heard the case took the defendants’ view of the case, and complainant has appealed.
The questions raised by the issues are:
(1) Is the question as to the ownership of the estate res adjudieata?
(2) What was the nature of the estate created by the deeds?
Defendants’ claim of res adjudieata rests upon the fact that, after the death of William Fitzgibbons, they filed a petition in probate court to determine who were his heirs. The hearing thereon was followed by an order adjudging the three children by the former wife the legal heirs. It also found that William Fitzgibbons was the owner of the real property now in dispute, and determined that the three heirs were en titled to it in equal shares. The order also determined other issues which were afterwards passed upon by the circuit court, and later by this court (162 Mich. 416, 127 N. W. 313, 139 Am. St. Rep. 570), but with which we need not concern ourselves in this case.
We are unable to agree with defendants that complainant is foreclosed in this suit by the probate order referred to. The power of the probate court to determine the heirs of a deceased person is derived from 3 Comp. Laws, §§ 9469-9471 (4 How. Stat. [2d Ed.] §§ 11180-11182). These provisions provide that:
Probate courts may in certain cases “find and adjudge who are? or were, the heirs, minor heirs, or legal representatives of the deceased, and entitled by the laws of this State to inherit the real estate of the deceased, or to take title to the lands conveyed or granted to the heirs, minor heirs, or legal representatives of said deceased, which finding and adjudication shall be entered on the journal of said court, and which entry, or a duly certified copy thereof, shall be prima facie evidence of the facts therein found.”
It will be observed that an order made under this statute is not conclusive. It merely provides that such a finding by the probate court shall be “prima facie evidence of the facts found therein.” It has been held by this court that orders made in pursuance of this authority do not affect vested rights (Miller v. Davis, 106 Mich. 300 (64 N. W. 338), and that they are not appealable (Lorimer v. Wayne Circuit Judge, 116 Mich. 682 (75 N. W. 133). In the latter case Mr. Justice Long said, in reply to the argument that such orders were appealable under the general statute regulating appeals from probate courts, that:
“The act under which the proceedings were instituted does not purport to make the proceedings of the probate court conclusive upon anybody. They are not binding even upon the relator. The petitioner, or other persons interested, if not satisfied with the findings, might, in any judicial proceeding, resort to original evidence, and wholly ignore the action of the probate court. The proceeding simply makes evidence, and any common-law jury could overturn it in any other proceeding.”
We are therefore of the opinion that the claim of the defendants that the question is res adjudicator is without merit.
Upon the issue as to whether an estate by the entirety or an estate in common was created by the conveyances, the complainant insists that an estate by the entirety was thereby created, but he argues, whether it was or not, it so purported to be upon its face, and that parol evidence was not admissible to «contradict it by showing that Sarah J. was not, in fact, the wife of William at the time the deeds were made. He supports this contention by a citation of several cases, but the one particularly relied upon is Jacobs v. Miller, 50 Mich. 119 (15 N. W. 42). We have examined this case with care, and are unable to distinguish it from the one under consideration. Upon the question as to whether parol proof was admissible to show that the parties were not in fact husband and wife, the court said in part:
“By the principles of the common law the legal effect due to the plain words of a deed cannot be contradicted by the parties or privies in any collateral matter by parol evidence. The terms must stand and receive their just legal significance. 2 Whart. Ev. 1050, 1054, and cases; Jackson v. Foster, 12 Johns. [N. Y.] 488; Jackson v. Robert’s Ex’rs, 11 Wend. [N. Y.] 422. The name of the grantee is part of the deed (2 Rolle’s Abr. 43), and,' where a deed is made to several individuals without designating in what proportions they shall hold, they will take in equal proportions precisely as though it had been detailed at length in the deed (Campau v. Campau, 44 Mich. 31 [5 N. W. 1062]; Treadwell v. Bulkley, 4 Day [Conn.], 395 [4 Am. Dec. 225]), and no parol proof can be admitted to give the deed a different effect than such as the words in it legitimately import. Treadwell v. Bulkley, supra; Morse v. Shattuck, 4 N. H. 229 (17 Am. Dec. 419); Gully v. Grubbs, 1 J. J. Marsh. (Ky.) 388, 389, 390; 1 Cowen & Hill’s notes, 217, 1428 et seq., 1442, 1444. The case before us is governed by the same principle.”
The cases of Dowling v. Salliotte, 83 Mich. 131 (47 N. W. 225), and Auditor General v. Fisher, 84 Mich. 128 (47 N. W. 574), are cited in support of the proposition that oral evidence is admissible for the purpose of showing that the parties were, as a matter of fact, husband and wife, in order to show that the estate is one by the entirety. Those are cases in which the deeds were silent as to whether the parties were husband and wife. In such event the rule against contradicting the terms of a written instrument by parol evidence would not be infringed; whereas, if the deed stated the parties were husband and wife, and it should be shown by parol evidence that they were not, the rule would be violated.
In the Jacobs case another reason is given why defendants should not be permitted to contradict the recited fact in the deed that the parties were husband and wife. It is that:
“One who claims under a deed confirms all its provisions, and cannot establish his claim by adopting those provisions, only, which are in his favor, while he repudiates or contradicts others that are repugnant thereto.”
In the instant case the defendants, who are trying to contradict the terms of the deed in this respect, are claiming an undivided half interest in the lots by force of the same deed. They do not accept the instrument as a whole. They accept what is favorable to them, and attempt to reject what is unfavorable. This is just what the Jacobs case holds they ought not to be permitted to do.
The decree of the trial court will be reversed, and one will be entered in conformity herewith, with costs of both courts to complainant.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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Steere, J.
On May 23, 1910, while working as a “trammer” on the thirty-third level of defendant’s, copper mine in Houghton county, plaintiff was struck and injured by a large rock thrown down the incline of a stope at the foot of which he was shoveling by a block-holer named Reily, working about 30 feet above. Plaintiff claimed that the rock was sent down without warning. This Reily denied, claiming that he gave the customary notice before starting it. That issue of fact becomes immaterial here, and it is to be assumed for the purposes of this inquiry that the jury would have decided it in plaintiff’s favor, as a verdict was directed for defendant at the conclusion of plaintiff’s testimony on the ground that the block-holer was a fellow-servant of the trammer, and defendant could not be held liable for the negligence of a fellow-servant in not giving warning, although it might have been the practice amongst the workmen to do so. The controlling question presented, therefore, is the old and oft-repeated one of vice principal and fellow-servant.
While the common purpose and result of all activities of employees underground in a mine is to break and get to the surface the metal-bearing rock there found, in a large mine of this nature, with many men engaged, their immediate duties are apportioned, and each assigned to a particular kind of work, gen-, erally according to experience, skill, and intelligence. Descriptive names, suggested by their special duties, are used in designating them, such as captains, shift bosses, inspectors, timbermen, miners, barmen, blockholers, and trammers. The miners’, block-holers’, and trammers’ duties are closely connected in the particular that they are directly engaged in getting out the desired ore or rock, reducing it to a condition to be handled, and starting it toward the surface for transportation to the stampmill. Their work is most directly involved here. The miners work along the mineral-bearing vein between the foot and hanging walls, drilling, blasting, and breaking out, or down, the rock, ore, or “dirt,” as it is often termed, doing, as their name implies, the actual mining. Occasionally pieces of the material as blasted and broken out by the miners from the solid vein are not all reduced sufficiently fine to be readily handled, and some of the blocks or pieces of rock are so large that they block or clog the holes or openings between timbers where this broken material runs down the incline of a stope, or raise, to the level. The block-holers’ duties require them to break up and reduce to safe and convenient size, by blasting or otherwise, such large blocks or pieces of rock. During their hours of duty they go from one level of the mine to another in the territory assigned to them, following up the work of the miners, looking for and breaking up such pieces, and in connection with that work starting them, as well as other large pieces which can be moved without breaking, down the inclines to where the trammers can conveniently handle them, and at times when those duties are performed they pass down dirt or work the material towards the place of loading the cars to facilitate the work of the trammers. The trammers are common laborers who, working chiefly with shovels, load the rock into tram cars and push them out from the stope to where they are attached to cables which haul them to the shaft. In loading the cars they also at times, when conditions require, go up or back into the stope and pass dirt towards the cars.
The “stope” in a mine is an excavation made in removing the ore which has been opened up, or made accessible by shafts and drifts or levels. In this mine the levels were about 100 feet apart. Plaintiff was working in an old, untimbered stope on the thirty-third level, connected with No. 5 shaft east of the vein. The place in the stope where he was injured was about 300 feet long, and ran diagonally up to the thirty-second level. Between the upper or hanging wall and lower or foot wall was a distance of 23 or 24 feet. There were three or four upright timbers about 8 feet apart standing some 3 feet back of the tram track in the drift, but nothing else to prevent rocks rolling down the stope or raise to the drift where plaintiff was at work. The block-holers going through the different levels worked in pairs; the trammers worked together in irregular numbers according to convenience and necessities of loading. On the occasion in question plaintiff worked with two other trammers loading tram cars at the spot indicated.
Three witnesses were sworn, plaintiff, Reily, the block-holer who threw down the rock that did the injury, and another of the trammers, who gave evidence through an interpreter confirmatory, so far as material here, of plaintiff’s testimony. Briefly stated, as bearing upon the duties of the trammers and blockholers in that mine, and what each was doing at the time of the accident, plaintiff testified that his duties as a trammer were shoveling dirt or copper rock into a car which stood on the track running along the level where they were loading; that was the trammer’s business, and they were not allowed to spend any time looking around or after the place where they were working; that at the time he was hurt he was shoveling rock into the car at the footwall in the level, and the rock came down from the rise in the stope; that no one gave him any warning that it was coming, and he had no knowledge that there was any danger of its doing so; that a short time before the accident he saw the block-holers go up into the stope, and heard them say something to some of the trammers as they passed by, but he did not pay any attention, and did not know what they were doing up there; that he had no time to look, and did not look, because they had to get out at least 16 cars, and he was busy at his work; that he was not supposed to pay any attention to the block-holers before getting the warning from them, it being their duty to give the trammers warning when they threw down their material. He first saw the rock when it was a yard or two from him, and tried to escape, but it struck him on the leg, breaking or crushing his ankle and injuring him severely; that the block-holers, who were supposed to make it safe for the trammers and give them notice, came around once or twice a day, and, if there were any big rocks that the trammers could not move, would break them up by blasting if necessary; besides this, if they found any big rock in the stope, they would throw it down for the trammers, and they sometimes examined the hanging wall in place of the timbermen; “besides that, they would shovel some of the loose dirt down to the level once in a while, and that was 'part of their work; * * * help us by breaking big rocks or shoveling them down towards the level;” that sometimes the trammers themselves would go up and shovel the rock down if they didn’t have any dirt on the lej/el.
Reily, who was yet in defendant’s employ at the time of the trial, and, as stated in the brief of plaintiff, was called for examination under the statute, testified on this subject: That the trammers are hired to shovel rock into the cars and push them out where they are attached to the cable, having to hustle most of the time at their own work, and are not supposed to pay attention to anything else except their work. That witness'worked as a block-holer, which brought him in connection with the trammers right along on the different levels. That he knew practically all the rules and customs of the mine. As a block-holer he had to break up and throw down rock from the levels, stopes, and raises, and blast the rock where necessary, throwing the rock down where the trammers could get hold of it. When the block-holers were working above the trammers they are supposed to give the trammers notice when they are going to blast or throw down any rock. That duty of warning them of danger was imposed on the block-holers. That on the day plaintiff was injured, in the course of his duties as a block-holer witness went into the thirty-third level and to the stope, or raise, up from the level where the trammers were at work, accompanied by his partner, who since died. On going up there they found a large rock which they threw down. It was on the footwall, and they barred it off and rolled it over, giving the trammers warning before doing so, as was their duty. That such was the custom and rule of the company. That the trammers had a right to, and did, rely upon being given such notice under the rules and custom which there prevailed. That in going from level to level, breaking up these large rocks and sending them down, if during their shift they had nothing else to do, they were supposed to help the trammers pass down the dirt, which they did, and when they came back to this level the trammers did not have much dirt, so they went up and ran some down for them at their request.
We need spend no time on the question of whether these men were fellow-servants in the work at which they were engaged. It was manual labor, for the same employer, at a common employment. They were engaged not only in the same general business of mining, but in a similar line of work, handling the rock, after it was mined, in the course of getting it to the surface. While each had certain duties to perform in that connection, their work at times so interlocked that each did identically the same thing. The trammer and block-holer were more closely associated in the line of their duties than the trammer and miner; the block-holer’s services being intermediate and devoted exclusively to aiding in the work of moving the rock to the surface after it is mined. In Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), where the question of negligence on the part of the miners resulting in an injury to a trammer arose, the court said that, if it was the fault of the miner, “it was the negligence of a fellow-servant under the plainest rules.”
“Generally employees working in or about a mine, quarry, or other excavation are fellow-servants.” 26 Cyc. p. 1348, citing numerous cases.
In Schroeder v. Railroad Co., 103 Mich. 213, 215 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354), Justice Grant thus tersely states the situation in cases like the present, in apt language:
“The doctrine of nonliability for the negligence of a fellow-servant is so firmly established, and has been so frequently affirmed, in this State, that I deem it unnecessary to cite the authorities. The difficulty has always been in determining whether the servant whose negligence caused the injury was, under the facts of each case, the alter ego or a fellow-servant.”
And Justice Montgomery, in a concurring opinion, as to reversal, states the rule as to nondelegable duties of the master as follows:
“In general, we think the true test is whether the person alleged to be a representative of the master is engaged in the performance of an act which it is the duty of the master to perform for the protection of his employees, — such a duty as that of providing a safe place to work, and safe machinery and appliances ; exercising due care in the selection of servants engaged in the same employment; giving proper directions as to use of dangerous machinery by inexperienced employees; and the establishment of proper rules and regulations for the conduct of the business.”
This statement of the test follows the line pointed out by Justice COOLEY in Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240), where it is said in that connection:
“The servant assumes all the usual risks of his employment, and among these is the risk that fellow-servants will sometimes be careless, and that injuries will result. All that can be required of the master in that regard is that his servants shall be prudently chosen, and that they shall not be retained in his service after unfitness or negligence has been discovered and has been communicated to him.”
In the instant case the only negligence, charged as a nondelegable duty not performed, is the failure of Reily to shout a warning when he himself was about to send down the rock, as by rule and custom it was his duty to do. He is shown to have been familiar with that rule, an experienced man well posted in the duties of his employment, and there is no evidence or claim that he was incompetent or had previously failed in this or any other duty.
Counsel for plaintiff cite in their brief certain authorities bearing largely on the question of duty to warn and give notice, several from other jurisdictions not altogether in harmony with the rulings of this court, and .say:
“From the foregoing authorities, and numerous others, it is clear that the law imposes the duty of making and keeping plaintiff’s place safe upon the defendant. But, regardless of that, it appeared by the evidence here that the plaintiff was relieved of that duty, and was prohibited from performing it by the defendant. This distinguishes this case from those in which the safe rule is held inapplicable. There can be no longer any doubt in this State that, ‘where a duty is assumed by the master, or is imposed upon him by contract, or is customarily performed by him, it becomes a nondelegable one’ ” — citing Baker v. Railroad Co., 169 Mich. 609 (135 N. W. 937); Scendar v. Copper Co., 169 Mich. 665 (135 N. W. 951); Oiva v. Mining Co., 178 Mich. 645 (146 N. W. 181).
The Baker Case was affirmed by a divided court on the theory that defendant violated a contract duty which decedent had a right to rely upon relative to cutting hose and chains on passenger trains. The quotation extracted from the case was taken from a text-book on Personal Injuries on Railroads. As the case was affirmed by an equally divided court, what was there said cannot be regarded as controlling precedent elsewhere. The Scendar Case involved purely a question of safe place and the danger from overhanging rock where plaintiff was at work. The danger was in the place itself, and not from some temporary and immediately dangerous thing which a fellow-workman might do resulting in injury because he failed to warn. That case was disposed of on the theory that it was in the first instance the duty of the defendant to make the place safe; that plaintiff had been assured that this would be done; and that the captain, shift boss, and others over him were designated as vice principals charged with the nondelegable duties to watch, inspect, and see that it was kept in safe condition, and, proper inspection not having been made, their default was that of the master. The Oiva Case involved the question of a safe place in its physical features. The case was submitted to the jury under a lengthy charge, and a verdict rendered for defendant. Errors assigned and considered related to the charge of the court. These were carefully reviewed in detail, and the charge sustained as correctly covering the issue involved, which was stated by the court to be as follows:
“What the plaintiff claims, in substance, is that he was not furnished a safe place in which to work, and a further claim that he was set to work in an unsafe place upon an assurance that it was safe. Assuming that he himself exercised proper care, he was entitled to recover if he established either proposition. * * * The court, whether it was necessary or not, seems to have had in mind the rule that, where a duty is assumed by the master, or is imposed upon him by contract, or is customarily performed by him, it becomes a nondelegable one.”
We find nothing in the cases cited controlling here; no complaint is made . in the instant case that the place where the plaintiff worked was, as to its physical conditions, an unsafe place in itself. So far as shown, it was safe, and would have continued so but for the fact that Reily, a fellow-servant, made it unsafe for a brief period by rolling down a stone, which might have been easily avoided if he had given proper warning, as was his duty. Not the condition of the place itself, but his neglect to give warning according to rule and custom, was the culpable delinquency. No duty of inspecting, to keep the place itself safe and in repair, is involved here. No inspection of the place would disclose a probability or possibility that Reily would at any time default in his duty to give warning.
From cases to which we have already referred and others of like import, it must be taken as the settled rule in this State that the master who has provided a safe place, proper appliances, and competent employees fully instructed as to their duties, and has established proper rules and regulations for safe conduct of the business which are made known to them, is not liable for the negligence of an employee failing to notify a fellow-servant of a transitory or temporary danger caused by his acts which will for the moment render the environment unsafe, but which can easily be avoided by a due warning it is his duty to give under rules of which all interested employees have knowledge.
The negligence of a workman to give warning of some act about to be done by him, and which may be dangerous to a fellow-servant, does not come within the scope of the safe place or duty to inspect doctrine in this jurisdiction.
“Frequent attempts have been made to bring the negligence of fellow-servants deputed to give signals within the scope of the principle that the duty to maintain a safe place of work is nondelegable. But this contention is rejected (except in Washington, where a servant who has been designated to give signals which control the movements of machinery is, while so acting, held to be doing the work of the master).” 4 Labatt on Master and Servant (2d Ed.) § 1537.
In Mikolojczak v. Chemical Co., 129 Mich. 80 (88 N. W. 75), it appeared plaintiff was injured while working with others at undermining and breaking-down a large quantity of salt in defendant’s plant. At certain times employees went upon the top of the salt pile above where others were at work, and, with bars or wedges, broke off large masses amounting to several tons, which would fall forward upon the floor. It was a regular custom for the men who went upon the top and did that work to give warning when ready to break down the pile. A foreman was in charge of the work going on there, and the negligence claimed was his failure to see that such warning was given at the time of plaintiff’s injury. The court there said:
“The defendant had performed all the duty the law required of it in providing a competent man to attend to the duties of yard foreman, and to direct and assist its employees in the performance of the labor for which they were employed” — holding that the negligence was that of a fellow-servant.
However persuasively authorities cited from other States may be urged and argued, they cannot be indorsed in disregard of the settled rule in this State, established by a series of decisions extending over many years. We are impelled to the conclusion that the learned circuit judge correctly found and charged, as a matter of law, that, under the controlling decisions of this State, the negligence complained of was that of a fellow-servant, for which defendant could not be found liable.
The judgment is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, and Moore, JJ., concurred. Ostrander, J.,- did not sit. | [
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] |
STONE, J.
(dissenting). This case is before us upon exceptions before sentence. The appellant is the superintendent of the Detroit house of correction, a State penal institution, located in the city of Detroit. On October 21, 1913, Burr B. Lincoln^ a State dairy and food inspector, sought to make an investigation of the food conditions in the said institution, and for that purpose he called upon the appellant and Requested that he be permitted to go through the building and see the foods that were there served. This request was refused by the appellant, who informed the inspector that he had no right there; that it was an institution over which the dairy and food inspectors had no jurisdiction; and that he could not go through the institution. Because of this refusal, complaint was made charging appellant with a violation of Act No. 167 of the Public Acts of 1899 (2 How. Stat. [2d Ed.] § 3345), being “An act in relation to the powers and duties of the dairy and food commissioner of the State of Michigan.” This act provides that any person who shall obstruct the said commissioner, or his deputy, or any of his duly appointed inspectors, by refusing to allow him entrance to any place where he is authorized to enter in the discharge of his official duty, shall be guilty of a misdemeanor, and prescribes the punishment. A hearing was had upon this complaint in the recorder’s court, and the respondent and appellant was by the verdict of a jury found guilty as charged.
The questions raised by the assignments of error may be combined into the one question, namely: Has the dairy and food commission, or its inspectors, power under the law to investigate the food conditions of the Detroit house of correction?
On the part of the people it is contended that ample power is vested in the inspectors of the dairy and food commission to make such investigation, and that, in view of the refusal of the superintendent to permit the making of the investigation, he had violated the act above referred to. Attention is called by the people to chapter 76, 1 Comp. Laws, under the provisions of which said institution was. erected, and is controlled, and especially to section 2156 (5 How. Stat. [2d Ed.] §15462), which provides that:
“The management and direction of the said house of correction, subject to periodical inspection by the State authorities in their discretion, shall be under the control and authority of a board of inspectors, to be appointed for that purpose by the common council of the city of Detroit upon the nomination of the mayor.”
It is urged by the prosecution that under this section alone the State has a right to inspect the institution, and that the right of inspection by any State authority is here given; that authority to inspect this institution is made still plainer by the pure food laws of the State; that section 6 of the act creating the office of dairy and food commissioner and defining his powers and duties (2 Comp. Laws, § 4978, as amended by Act No. 12, Pub. Acts 1905, 2 How. Stat. [2d Ed.] §3330), states that such commissioner, or his deputy, or any person appointed by him for that purpose—
“Shall have power, in the performance of their duties, to enter into any creamery, factory, store, salesroom, drug store, or laboratory, or place where they have reason to believe food or drink are made, stored, sold or offered for sale and open any cask, tub, jar, bottle or package containing, or supposed to contain, any article of food or drink, and examine or cause to be examined the contents thereof, and take therefrom samples for analysis.”
Attention is also called to section 4 of the amendatory act of 1905, which provides that the inspectors shall have the same right of access to the places to be inspected as the said commissioner, or his deputy. A reading of the entire section 6, above referred to, shows that the dairy and food commissioner, his deputy or inspectors, shall regulate filthy and insanitary conditions which may exist in the operation of any bakery or other place where “any food or drink products are manufactured, stored, deposited or sold for any purpose whatever.” It was admitted upon the trial of the case that a bakery was maintained in the institution to bake bread for the prisoners, at the time complained of. Section 5029, 2 Comp. Laws (2 How. Stat. [2d Ed.] §3323), makes it the duty of the dairy and food commissioner of the State to investigate all complaints for violations of the act known as the general pure food law, and especially it is made the duty of the food inspectors in the cities to examine all complaints made to them of violations of the act.
On the part of the defendant and appellant it is contended that the act' creating the State dairy and food commission, and the amendments thereto, together with Act No. 167, Pub. Acts 1899, did not confer the right upon the State dairy and food commission or its inspectors to inspect the food conditions of a public or State institution such as the Detroit house of correction.
It-is urged by defendant’s counsel that, by the terms of the act creating it, the institution is used for the confinement, punishment, and reformation of criminals, or persons sentenced thereto, under the laws authorizing the confinement of convicted persons in the house of correction; that the management and direction of the said house of correction subject to periodical inspection by the State authorities is, by statute, placed under the control and authority of a board of inspectors appointed by the common council of the city of Detroit upon the nomination of the mayor; that this board of inspectors is authorized and empowered by the common council to make rules for the regulation and discipline of the house of correction, and to.appoint a superintendent; that under the statute the superintendent has entire control and management of all its. concerns subject to the authority established by law, and the rules and regulations adopted for its government.
It is contended by the appellant that the Detroit house of correction is not any one of the places named which the State dairy and food commissioner or his inspectors are authorized to enter; that the institution is not a creamery, factory, store, etc., or a. place where the inspectors would hav.e reason to believe food and drink are made, stored, and offered for sale, within the meaning of the statute.
An examination of the statutes relevant to this subject has led us to the conclusion that the public penal institutions of this State, including the Detroit house of correction, are not within the purview or terms of the statute relating to the general pure food law. The legislature has provided a visitorial board, whose duty it is to inspect these institutions and make due report thereon. As early as 1871, provision was made for a commission to be appointed, subsequently called the “Board of Corrections and Charities,” of which the governor is ex officio a member. Section 2252, 1 Comp. Laws (5 How. Stat. [2d Ed.] § 15512), reads as follows:
“The said commissioners, by one of their number, or by their secretary, shall, at least once in each year, visit and examine into the condition of each and every of' the city and county poorhouses, county jails, or other places for the detention of criminals or witnesses; and the said board, or a majority thereof, with their secretary, shall, at least once in each year, visit and examine the reform school, State prison, Detroit house of correction, and State and county asylums for the insane, and the deaf, dumb, and blind, and for the purpose of ascertaining the actual condition of the institutions by them or either of them visited, the method of instruction, government, or management therein pursuéd, the official conduct of the superintendents or other officers and employees in charge thereof, or connected therewith, the condition of the buildings, grounds, or other property thereunto belonging, and the facts as to all other matters in any manner pertaining to the usefulness and proper management of the institutions, poorhouses, and jails above named. They, or either of them, and their secretary, shall have free access thereto at any and all times, and shall have authority to administer oaths and examine any person or persons in any way connected with or having knowledge of the condition, management, and . discipline of such institutions, jails, or poorhouses, as to any matters or inquiries not contrary to the purposes or provisions of this act.”
Attention is called to the remaining portions of this statute.
An examination of the statutes relating to the gov- eminent of the State prisons and reformatories, the powers and duties of the boards of control, and of the wardens of the institutions, will show that these officers have plenary power and control over all matters relating to the government of the institutions, including food, medicine, clothing, bedding, etc. — everything which pertains to the health and well-being of the inmates. With these ample provisions, and the added power of visitation lodged in the board of corrections and charities, it does not seem to us that it was the intention of the legislature that this ground was also to be covered by the dairy and food commission.’ In our opinion that commission has no jurisdiction over these institutions, but its right to inspect is limited to the store, etc., of the manufacturer or vendor of food or drink products, which are made, stored, sold, or offered for sale to the general public.
It will be noted that the language relied upon by the people in the amendatory act of 1905, defining the several places where inspection may be made by the dairy and food commissioner, is specific in designating certain places, to wit, creamery, factory, store, salesroom, drug store, or laboratory, followed by the general words, “or places where they have reason ,to believe food or drink are made, stored, sold or offered for sale.” This general language must be construed as meaning places of the same kind, of the same general character or sort as those named.
Although it appears in this record that the Detroit house of correction. bakes its own bread for its inmates, and for that purpose may be said to operate a bakery, yet it does not seem to us that such a place can be covered by any of the specific words mentioned.. Certainly it is not a creamery, factory, store, salesroom, drug store, or laboratory, as those words are used in the statute. The general rule should here apply that when after the enumeration a statute employs some general term to embrace other cases, the other cases must be understood to be cases of the same general character, sort, or kind, with those named. In other words, “They are known from their associates.” Brooks v. Cook, 44 Mich. 617-619 (7 N. W. 216, 38 Am. Rep. 282 and cases cited); Roberts v. City of Detroit, 102 Mich. 64 (60 N. W. 450, 27 L. R. A. 572); Drake v. Industrial Works, 174 Mich. 622 (140 N. W. 933).
We are therefore forced to the conclusion that the Detroit house of correction — a State penal institution, with its superintendent, and its board of inspectors, subject to the visitation of the board of corrections and charities — is not embraced within, and was not intended to be embraced within, the provisions of the pure food law, and that the inspector had no authority to enter the premises. Whenever the legislature desires to clothe the pure food commission with such authority it will doubtless so express itself. We think it has not done so in the past legislation. Reaching this result, that conflict in jurisdiction of the different boards, which would lead to an unseemly contest, is avoided. The conviction should therefore be reversed, and the defendant discharged.
Kuhn, Ostrander, and Moore, JJ., concurred with Stone, J.
Brooke, C. J.
My Brother Stone, in the earlier part of his opinion, states very clearly the contentions made on behalf of the people in this. case. It is claimed that the dairy and food commissioner, or his deputy, is authorized to make the inspection which was denied, upon two grounds: (1) Under the act creating the Detroit house of correction, section 2 (1 Comp. Laws, § 2156; 5 How. Stat. [2d Ed.] § 15462), which provides:
“The management and direction of the said house of correction, subject to periodical inspection by the State authorities in their discretion, shall be under the control and authority of a board of inspectors, to be appointed for that purpose by the common council of the city of Detroit.”
It is claimed on behalf of the people that this language used in the law of its creation is broad enough to warrant the inspection of said institution by any State authority. In my opinion the contention is fully warranted by the language used. It would be difficult to select words of more general import than those used in the statute:
“Subject to periodical inspection by the State authorities in their discretion.”
No particular State authority is pointed out, nor is the rignt of inspection limited to any such particular authority. There is no doubt that included among the State authorities entitled to the right of inspection is the State board of charities. It, however, by no means follows that the exercise of the right by that board exhausts the authority of the State under the language of the section above quoted. It seems to me clear that the labor department might very properly inspect the institution to determine whether proper safety devices were employed as provided by the general laws of the State touching that subject. The State board of health, too, should have authority to inspect and determine whether the laws relating to sanitary conditions were being obeyed therein. And closely akin to the necessity for such inspection is the necessity for inspection by the State dairy and food department in order that it may be determined that the food served is wholesome in quality.
It should be borne in mind that the institution is one of considerable magnitude within the walls of which are confined several hundreds of prisoners, male and female. The female prisoners therein are board ed at the expense of the State and many counties of the State having individual contracts with the institution, by the terms of which a per diem amount is paid for the board and medical attendance of each prisoner.
Several industries are carried on in the institution requiring the use of machinery. In my opinion it is an institution peculiarly requiring the supervision of every department of the State whose activities are directed to securing to the inhabitants thereof sanitary conditions, wholesome food, and freedom from danger to life and limb through the use of improperly guarded machinery.
If there could be any doubt of the right of the people to insist that the dairy and food commissioner, or his deputies, is authorized to make the inspection which was denied in the instant case, it is disposed of by a reading of section 6 (2 Comp. Laws, § 4978; 2 How. Stat. [2d Ed.] § 3330) of the law creating that department. That section authorizes the entry of the commissioner, or his deputies, to certain named places and,
“or place where they have reason to believe food or drink are made, sold or offered for sale.”
In my opinion it is idle to say that the house of correction is not such a place. Whatever may be said of other penal institutions of the State, this particular institution stores food in large quantities, which it sells. The record shows that during the year it received the very considerable sum of $32,659 for board of prisoners confined therein.
It is, in a sense, in the business of selling food. The fact that its customers happen to be the State itself and several political divisions of the State, makes no difference in the principle involved. It would, I think, scarcely be contended that a hotel keeping, storing, and offering food for sale to its guests was not subject to the inspection provided for in the act creating the dairy and food department. In any event, I think such a construction of the legislation is too narrow, and I quite agree with the opinion expressed by the learned trial judge who, in refusing to charge as requested by the respondent, said:
“I refuse to give this request to charge, gentlemen of the jury, upon the ground that it is my opinion that the spirit of the dairy and food law is to procure and secure proper food and drink for all of the inhabitants of the State. That is its general purpose and scope. And that the terms of the act creating the dairy and food commission, the acts amendatory thereto, are broad enough to include the Detroit house of correction and all other penal institutions.”
The judgment of the court below should be affirmed.
McAlvay, Bird, and Steere, JJ., concurred with Brooke, C. J. | [
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] |
J. H. Gtillis, P. J.
Plaintiff S.F.A. Studios, Inc., instituted this action in the common pleas court for the city of Detroit to recover advances made to defendant, a former employee, claimed to have been in excess of commissions due him. The declaration set out the allegations that defendant was employed as a sales representative and was to receive a percentage of the value of the billings he procured. Different commission rates on various kinds of work were agreed upon and made part of the written agreement between the parties, a copy of which was affixed to the declaration and made part of this record.
Aside from the commission schedule, the only other portion of the agreement relative to defendant’s compensation provided that “S.F.A. Studios, Inc., will advance $200 per week paid weekly against commissions starting May 26, 1964.”
The declaration alleges that the parties so performed until the arrangement was terminated by defendant on or about July 16, 1965. At that time, it is claimed, the moneys advanced under the agreement exceeded the commissions due by $2,018.30. Plaintiff seeks return of this “overpayment” based on the implied understanding that defendant was receiving merely advances against earnings and that his only compensation would he the commissions earned, thereby giving rise to the understanding that he would, on termination, be entitled to any difference in his favor or be obligated to return overpayments of advances.
In his answer, defendant asserts that the aforementioned writing “is not the complete agreement which the parties entered into.” Generally, it was denied that plaintiff was entitled to relief.
The case proceeded to trial on the pleadings as indicated and, in essence, plaintiff’s opening statement was a recital of the contents of the allegations made, and a statement of plaintiff’s theory of the case, the existence of the implied understanding.
At the close of plaintiff’s statement, defense counsel moved for summary judgment apparently on the basis of no material issues of fact (Common Pleas Court Rule No 21, §7). Defendant argued, and the trial court was so persuaded, that as a matter of law an advance was not a loan subject to repayment without an agreement to that effect, and that the parol evidence rule precluded plaintiff from introducing such an implied provision to the derogation of the unambiguous writing.
The trial court erred in granting the motion and the cause must be remanded for a trial.
Section 7 of Rule No 21 of the common pleas court provides, in pertinent portion:
“In any action at law, the defendant may, after issue is joined, move the court for entry of judgment in his favor upon showing by affidavits or depositions filed in the cause that there is no question of fact to be determined by the court or jury, and that he is entitled to a judgment in his favor. Before judgment is entered, the plaintiffs shall be given a reasonable opportunity to obtain and file affidavits and depositions controverting the facts set forth in the affidavits or depositions filed by the defendant.”
The trial court, by entertaining the oral motion and allowing it to be brought without affidavit, deposition or any sworn statement, failed to comply with the terms of Rule No 21.
Moreover, we cannot agree that, as a matter of law, an implied agreement to return excess advances alters, changes, or is inconsistent with a written agreement to advance money against commissions. The two agreements may perfectly logically coexist without impinging on each other’s terms. The parol evidence rule is not designed to preclude proofs of other agreements between the parties not expressed in the writing or inconsistent therewith. A thorough review of this principle is found in Massachusetts Bonding & Insurance Co. v. Transamerican Freight Lines, Inc. (1938), 286 Mich 179, 198, citing in particular the rule expressed in Coverdill v. Seymour (1900), 94 Tex 1, 8 (57 SW 37, 39):
“It is sometimes the case that the writing represents only a part of the contract, the other parts ■being expressed orally; and in such cases, those parts not reduced to writing which are consistent with the writing, may be shown.”
As set up in the declaration and answer, and in plaintiff’s counsel’s opening statement, this is properly such a case, there being nothing inconsistent ■with the express agreement to make advances against commissions and the implied agreement to repay advances in excess of commissions due. Plaintiff should have been given the opportunity to present its case.
Reversed and remanded for trial. Costs to appellant.
Fitzgerald and McGregor, JJ., concurred. | [
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Quinn, P. J.
Defendant’s non-jury trial resulted in his conviction of first degree murder, and he was sentenced therefor. His motions for new trial were denied, and he appeals the conviction and sentence as well as the denial of the motions for new trial. The appeal raises questions of admission of testimony, validity of findings of fact by the trial judge, and abuse of discretion by the latter in permitting the prosecuting attorney to ask leading questions and in denying defendant’s motion for new trial based on a claim of newly discovered evidence.
On February 28, 1964, at about 9:30 a.m., defendant found his wife hanging in the basement of their home. She was pronounced dead by strangulation as the result of suicide. April 23, 1965, the body was exhumed, an autopsy was performed by Dr. Olsen, a pathologist, and defendant was charged with the murder of his wife.
At trial and at the beginning of Dr. Olsen’s testimony, he was being interrogated with respect to the manner by which he was called into the investigation which led to the order for exhumation. In the process, he was shown certain exhibits, some of which were photographs of the rope from which defendant’s wife was found hanging February 28, 1964. When the doctor was asked if he had formed an opinion as to the possible cause of death of defendant’s wife as a result of consultations and viewing the exhibits, the defendant objected as follows:
“I object, your Honor. I think that the doctor can state if he told anybody an opinion at that time.”
There is more to the objection but it is not pertinent to present discussion. The objection was overruled, and the doctor was asked:
“Q. I’ll ask you, doctor, whether on April 22, 1965, you appeared at a hearing before the coroner for the county of Oakland, Dr. Bernard Berman, on a petition for disinterment, and autopsy?
“A. Yes.
“Q. And did you there express to the coroner an opinion that you had formulated in support of such petition?
“A. Yes.
“Q. Will you state what that opinion was, and why you arrived at it, and to what extent these exhibits formed a basis for your opinion?
“A. The examination of these exhibits, suggested to me that it was possible or even very likely that Angela Foster had not taken her own life, as it was at first thought.
“Q. Will you refer specifically to the exhibits which you have at your side, doctor, exhibit two, and exhibits three through nine, inclusive, and point to any of these exhibits that specifically supported your opinion, and why?
“A. Exhibit five, and also exhibit three, show a bizarre group of knots tied about the pipe, appar ently a senseless tying for a person committing suicide.”
Then defendant objected as follows:
“I object, your Honor, and ask that answer be stricken. He’s giving his opinion and a conclusion about ropes. He’s an expert pathologist, and we don’t need any interpretation whether the knots were bizarre, normal or usual. He’s giving an opinion, and he’s not qualified to do so. I object, and ask the answer be stricken.”
This objection was overruled and defendant claims error. We do not find error. The doctor did as defendant indicated he could do in the first objection noted above. In addition, we believe the doctor’s opinion was admissible under GOB. 1963, 605, see People v. Woody (1966), 3 Mich App 729. Characterization of the knots in the rope as “bizarre” while stating the reasons for his opinion was not improper. We view it as a descriptive term of what the doctor saw in the exhibits, not as an opinion.
Defendant’s attack on the trial court’s findings of fact involves the interest and alleged bias of Dr. Olsen. The interest and bias of a witness go to the question of credibility and the trier of facts determines credibility. Bates v. Franson (1936), 276 Mich 79. We are not persuaded the findings objected to are clearly erroneous, GCB 1963, 517.1, and defendant did not object to calling Dr. Olsen as an expert.
With respect to defendant’s allegation of reversible error because the prosecuting attorney was permitted to ask a witness leading questions in obtaining from the witness testimony relating to damaging admissions made by defendant to the witness, the trial court has discretion in this area, CL 1948, § 768.24 (Stat Aun 1954 Rev § 28.1047), and this record does not demonstrate abuse of that discretion.
Over defendant’s objection, Dr. Olsen was permitted to characterize certain marks on the neck of defendant’s wife as “thumb mark” and “finger marks.” We are not persuaded this was reversibly erroneous; it is within the purview of OCR 1963, 605.
People v. Keiswetter (1967), 7 Mich App 334, states the rule on the granting of new trials on the basis of newly discovered evidence. One of the 4 factors required to be present for such a grant is there stated to be, “that the evidence is such as to render a different result probable on retrial.” In considering the motion in this case, the trial judge meticulously went through the new evidence and weighed it against the evidence at trial and found that the new evidence would not render a different result probable. With this finding we agree.
Affirmed.
T. Gr. Kavanagh and Corkin, JJ., concurred.
OL 1948, | 750.31(j (Stat km 1954 Rev § 28.548). | [
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Burns, J.
Defendant Warner moved for summary judgment under GCR Í963, 117.2(3)., . The Branch' county circuit court dismissed plaintiff’s action against Warner, an oil distributor, because it found as a matter of law that defendant Robson was not Warner’s' employee or agent and that Warner was not the “owner” of Robson’s truck. Undisputed facts, as disclosed by written interrogatories and discovery depositions, provided the basis for the circuit court’s determination and our review. •
Plaintiffs complaint alleged that on March 13, 1964, plaintiff suffered damages as the result of Robson’s negligent operation of a 1951 oil tanker truck. In December, 1963, Robson had purchased the truck and a fuel oil delivery route from Ray Warnock. Warner, who had supplied oil for Warnock’s route, had nothing to do with Robson’s purchase. It was possible for R'obson to haul products for any oil concern, but as a matter of fact he obtained oil only from Warner’s bulk plant up to the time of the accident.
The truck’s title was in Robson’s name and he paid the expenses of its operation and maintenance. Robson’s hours were self-determined. He would usually arrive at Warner’s place of business between 8:00 a.m. and 9:00 a.m., load the truck by himself and then make deliveries at his pleasure. Robson had his own customers and could solicit new customers, but he would also make deliveries at Warner’s request. Regardless of who secured the account, the customers paid either Robson or Warner. The invoices and receipts bore the name of “Warner Oil Company.” When Robson received payment, he turned the money over’ to Warner who carried all of Robson’s accounts receivable. On the first and fifteenth of each month Warner would then- pay Robson one to two cents, depending on the account, for every gallon of oil delivered. ■ Any delinquent accounts were deducted from Robson’s bimonthly check. Warner made no deductions from Robson’s checks for social security or income tax purposes nor did he report Robson as an employee under his workmen’s compensation insurance policy. Robson paid his own social security and premiums on a disability insurance policy.
Both Robson and Warner described Robson as a “contract hauler” — an independent contractor. The circuit court agreed with this characterization. Plaintiff contends that such characterization is erroneous.
At the present time the tort liability test for an independent contractor relationship is the right to control. Gall v. Detroit Journal Co. (1916), 191 Mich 405; Holloway v. Nassar (1936), 276 Mich 212. The facts now before us show that Warner could not exercise any supervision over Robson’s method of operation. Warner did handle the financial aspects of Robson’s accounts, but this limited involvement in the business does not amount to a right to control. See Sawtells v. Ekenberg Co. (1919), 206 Mich 246. The trial court was correct in holding that Robson was an independent contractor.
Plaintiff’s second contention on appeal is that because Robson hauled nothing but Warner’s oil from December, 1963, until the date of the accident, Warner had “exclusive use” of the truck and was therefore “renting” it within the meaning of CLS 1961, § 257.37 (Stat Ann 1960 Rev § 9.1837). We will not foster such a strained statutory interpretation. Robson’s title and unfettered control of his truck clearly demonstrate that Robson was the sole owner of the vehicle.
Affirmed. Costs to defendant-appellee.
J. W. Fitzgerald, P. J., and N. E. Fitzgerald, J., concurred. | [
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J. H. Gtllis, J.
Plaintiff Wallace Hope leased certain premises from Mr. and Mrs. Weiss. Mr. Hope failed to make payments for the rent dne for the months of May and June, 1963, and the Weisses commenced an action for recovery of possession of the premises. CLS 1961, § 600.5634 (Stat Ann 1962 Eev § 27A.5634); CLS 1961, § 600.5637 (Stat Ann 1962 Eev §27A.5637). Judgment for the Weisses was entered by the circuit court commissioner on June 7, 1963 and plaintiff’s eviction under a writ of restitution followed.
Mr. Hope brought this present action against Lilyan Victor, a notary public, for alleged improper notarization of the affidavit to the complaint before the commissioner and of the return on the proof of service of the notice to quit the premises. In both instances of alleged official misconduct by Lilyan Victor, it is claimed that she allowed her name to be affixed to the jurat by the affiant without having personally witnessed the signature or administered the oath as required by CL 1948, § 55.112 (Stat Ann 1961 Eev § 5.1046).
As to the signature on the affidavit attached to the complaint in the commissioner’s court, plaintiff alleges that Mr. Covensky did sign the affidavit as attorney for the Weisses and did also sign the name of Lilyan Victor as notary. The complaint states that Lilyan Victor authorized Mr. Covensky over the telephone to sign her name to the jurat and that Mr. Covensky never did personally appear before Mrs. Victor. Such conduct, it is claimed, was in violation of the duties of office of notary and was a proximate cause of the eviction which subsequently ensued.
Likewise it was alleged that the notarization on the return to the proof of service was made in the same manner, by Lilyan Victor giving permission to Maurice Victor to sign her name to the jurat. Mr. Victor was co-counsel for the Weisses.
Plaintiff’s action is for damages for injuries suffered by reason of the eviction. It is alleged that these injuries were the proximate result of Lilyan Victor’s misfeasance. The Ohio Casualty Insurance Company is joined as surety on Mrs. Victor’s notary bond and cross-claims against Lilyan Victor for indemnification for any damages it might be made to suffer in the principal lawsuit.
Defendants moved for summary judgment in the trial court under the provisions of GrCR. 1963, 117.2 (1) for the reason that plaintiff failed to state a claim on which relief can be granted because he has failed to show any proximate causal connection between the breach of duty by the notary and the eviction on the writ of restitution. The trial judge granted the motion and plaintiff here seeks review of that judgment.
The pertinent paragraphs of the complaint state:
“That as a direct result of her wrongfully exercising her duties as a notary public, Lilyan Victor caused the plaintiff, Wallace Hope, to suffer great damages.
“That as a direct result of her wrongfully notarizing the proof of service and affidavit to the complaint to recover possession, a writ of restitution was issued and plaintiff, Wallace Hope, was forced out of possession of the premises.
“That as a direct and proximate result of Lilyan Victor’s wrongfully notarizing the documents, Wallace Hope has been forced to suffer the following damages
The question now before this Court is whether, as a matter of law, on the allegations made, the breach of the notary and the defective jurats may be the proximate cause of the writ of restitution issued by the circuit court commissioner. We agree with the trial judge that the answer is in the negative and that without such proximate relationship the violation of duty of the notary is insufficient on which to base (an entitlement to) relief.
It is settled in this State (and indeed generally throughout the jurisdictions) that breach of the office of notary does not give rise to an action unless such breach was the proximate cause of the injuries sustained. MacBride v. Schoen (1932), 121 Cal App 321 (8 P2d 888); People, for Use of Doran, v. Butler (1889), 74 Mich 643. In People, for Use of Young, v. Nederlander (1913), 177 Mich 434, 436, the Court stated:
“If the officer who takes an acknowledgment makes a false certificate, an action on his official bond for the damages sustained by reason thereof will lie against him or his sureties, though it seems that such recovery may he had only where the damages sustained are the proximate result of the false certificate.”
The present case is novel in that the wrongful conduct was separated from the alleged injury by a final order of a court of competent jurisdiction: The causation of events were the defective jurat, the action of the circuit court commissioner, and the issuance of the writ of restitution.
We see no need to decide whether a false jurat to the return on the proof of service destroys the vitality of that instrument. GrCR 1963, 104(2) governs the requirements of proof of service. The committee comment to Rule 104 states that a defective return is not jurisdictional (1 Honigman & Hawkins, Michigan Court Rules Annotated [2d ed], p 64) and that the return is a mere formality where notice was transmitted to the defendant in fact. In this case no claim is made that the means of giving notice was not in accordance with the statutory procedures.
It is not claimed that Mr. Covensky did not in fact sign the complaint and affidavit made in the commissioner’s court or that another notary would not have verified the signature upon proper oath. In our opinion an improper notarization should not be regarded as the proximate cause of injury where the one who purported to sign the document did in fact sign, and was prepared to properly swear before a notary; and we so hold.
In Radcliff v. Clemons (1954, Tex Civ App), 265 SW2d 182, the court stated:
“The record contains no evidence that Shaw’s certification proximately caused appellant’s injury. On the contrary, the only evidence is to the effect that the certification was in fact true, there being no contention made that the prior owner did not sign the title certificate, which in itself negatives the contention that Shaw’s certification of that fact could have been the cause of appellant’s injury.”
Thus we find that the acts of Lilyan Victor were not the proximate cause. Covensky and Victor did in fact sign the documents and would simply have had them notarized anyway. In this regard our present ease is markedly distinct from a situation where the notary certified a forged signature to a document which led to the injury complained of (People, for Use of Doran, v. Butler, supra; People, for Use of Young, v. Nederlander, supra). We are in accord with, the general view that no liability-attaches for an improper notarization unless there be shown to be a causal relationship to the injury. North Detroit Land Co. v. Rominiecki (1932), 257 Mich 239; Annotation, 17 ALR2d 948.
We cannot say, nor allow a jury to find, that the eviction proximately flowed from an improper notarization where it appears that the signatures were in fact genuine and any other notary would have certified the same on the jurat.
Under the circumstances plaintiff has failed to state a claim for relief and summary judgment was proper.
Affirmed. Costs to appellee.
Lesinski, C. J., and Levin, J., concurred.
See 66 CJS, Notaries, p 626, § 11 et seq.
The eases may be read as holding the notary liable where a certification is made to a forgery because another notary, in the exercise of due care, would not have certified the forged signature and the injury would not have resulted. See United States Fidelity & Guaranty Co. v. State, for Use of Ward (1951), 211 Miss 864 (53 So 2d 11) and Koste v. Maryland Casualty Co. of Baltimore (1961, Mo), 344 SW2d 55. A similar situation is presented where the notarization gives legal effect to a true signature but not intended to be legally effective. State, ex rel Nelson, v. Hammett (1947), 240 Mo App 307 (203 SW2d 315), but it has been said that it must appear tliat the notarization rather than the signature itself was relied upon. Lowe v. Robin (1958), 203 Tenn 105 (310 SW2d 161).
In Atlas Security Co. v. O’Donnell (1930), 210 Iowa 810 (232 NW 121), an improper notarization of an automobile sales contract was held not the proximate cause of the purchaser’s injuries since the seller did not own the automobile and no lien would have been created even with a proper notarization. In Immerman v. Ostertag (1964), 83 NJ Super 364 (199 A2d 869), the improper notary was held not the proximate cause where the court found that the forger would have sworn the oath if so requested by the notary. In Governor of Wisconsin, ex rel. Kadin, v. Bristol (1938), 229 Wis 95 (281 NW 686) the court affirmed dismissal of a complaint against a notary for want of proximate causation. In that case the notary certified the statement of a surety but left blank spaces where he was to state assets and liabilities. Proximate causation, the court held, was the subsequent act of a third person in filling in the spaces with false information and not the act of the notary in making the certification. (281 NW, p 687). | [
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] |
J. H. Gillis, J.
This is an action to recover for injuries to a tractor rig and for other incidental damages allegedly caused by the failure of a trailer hitch manufactured by defendant. The hitch, a so-called “fifth wheel assembly” failed allegedly because of inferior cold rolled steel used in its manufacture. As a result of the failure, a trailer while being hauled broke loose and rolled over taking the tractor rig into the ditch with it. Damages were claimed for .injury to both vehicles along with costs of renting equipment to salvage the cargo being hauled and for other losses of use of the damaged trailer and tractor.
The action was based on an alleged breach of warranty that the trailer hitch would be fit for the ordinary purposes for which it was intended to be used. Plaintiffs claim that there was a defect in the steel used in fabricating the hitch, that defendant knew or should have known of this defect, and that by virtue of this defect the hitch was rendered unfit for the •ordinary purposes intended.
The accident which gave rise to the injuries claimed occurred in Ontario, Canada, on May 16, 1963. Action was instituted in the Ottawa county circuit court by complaint dated March 17,1967. Defendant made timely motion for accelerated judgment (GOB. 1963, 116.1) alleging that this action, brought more than 3 years after the accident, was barred by the statute of limitations. The trial court granted accelerated judgment and plaintiffs have presented this claim of appeal.
The sole issue raised on appeal is whether this action, sounding in breach of implied warranty, is barred by the 3-year limitation provision of CLS 1961, § 600.5805 (Stat Ann 1962 Bev §27A.5805).
Plaintiffs have attempted to raise a second issue on this appeal by asserting that the trial court should have applied the longer (4-year) statute of limitations contained in the Ohio uniform commercial code (UOC § 2-725) because the action arose under Ohio law. It is claimed by plaintiffs that the Ohio limitation is substantive (directly affecting the statutory right of action) and that it should govern the action. Plaintiffs cite as authority Maki v. George R. Cooke Company (CA6, 1942) 124 F2d 663.
This contention is not correct. In MaM, the longer foreign statute was applied because the action, arising under a foreign statute, was not barred under the forum rules of procedure. It is generally accepted that the forum will apply its OAvn shorter period of limitations to all actions regardless of where the actions arose. Home Life Insurance Co. v. Elwell (1897), 111 Mich 689. See, also, Baldwin v. Brown (ED Mich 1962), 202 F Supp 49, and Lewis v. Food Machinery & Chemical Corporation, John Bean Division (WD Mich 1965), 245 F Supp 195.
The rule has, moreover, been codified in this State in CLS 1961, § 600.5861 (Stat Ann 1962 Eev § 27 A-.5861) which provides:
“(1) As used in this section, ‘claim’ means any right of action which may be asserted in a civil action or proceeding and includes, but is not limited to, a right of action created by statute.
“(2) The period of limitation applicable to a claim accruing outside of this state shall be either that prescribed by the law of the place Avhere the claim accrued or by the law of this state, whichever bars the claim.
“(3) The periods of limitation prescribed in this section apply only to a claim upon which action is commenced more than 1 year after the effective date of this act.
“(4) This section shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
“ (5) This section may be cited as the uniform statute of limitations on foreign claims act,”
If, therefore, the Michigan 3-year limitation bars this action, other states’ limitations are immaterial. On the other hand, if the 3-year period does not apply to this action, then it is timely brought as we are apprised of no other statute which might bar the action 3 years and 11 months from the time it accrues. There is a nice question to be reached at another time as to when the cause of action for breach of warranty accrues. See annotation at 4 ALR3d 821. We need not reach that point however, for assuming that the action did not accrue until the May 16, 1963 accident, we find the action is governed by the 3-year limitation provision of CLS 1961, § 600.5805, supra, and barred by its terms. CLS 1961, § 600.5805 provides:
“No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.
“(1) The period of limitations is 2 years for actions charging assault, battery, and false imprisonment.
“(2) The period of limitations is 2 years for actions charging malicious prosecution.
“(3) The period of limitations is 2 years for actions charging malpractice.
“(4) The period of limitations is 2 years for actions against sheriffs charging misconduct or neglect of office by themselves or their deputies.
“(5) The period of limitations is 2 years after the expiration of the year for which a constable was elected for actions based on his negligence or misconduct as constable.
“(6) The period of limitations is 1 year for actions charging libel or slander.
“(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.”
The only other statutory period which might be applicable is the provision for actions for breach of contract, CLS 1961, § 600.5807 (Stat Ann 1962 Bev § 27A.5807). This section provides:
“No person may bring or maintain any action to recover damages or sums due for breach of contract, or to enforce the specific performance of any contract unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section. * * *
“(8) The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract.”
We are persuaded for 3 reasons that the shorter period governs this cause and that the dismissal based on the statute of limitations should be affirmed. Although the above-quoted statutory provisions are generally thought of as “tort” and “contract” provisions respectively, the provisions are not applied through any sense of magical language found in the pleadings. A party cannot invoke the longer statute by the mere expedient of calling a tort an implied contract; but an action for breach will not be limited to 3 years because the breach arose through defendant’s negligence. State Mutual Cyclone Insurance Company v. O & A Electric Cooperative (1966), 5 Mich App 452. (See 381 Mich 318, decided October 21, 1968, reversing 5 Mich App 452, but not in disagreement on this point.)
Following are enumerated what we consider to be the 3 governing criteria as to the applicable statute of limitations where the statutes themselves do not expressly provide for the type of action:
Allegation of an express contract: In State Mutual Cyclone Insurance Company, supra, this Court held that in the absence of an express contract, an action for injury to person or property must be brought within 3 years. We held at 5 Mich App 459:
“We perceive the rule to be that where an action is brought to recover damages for injury to person or property on a claim arising out of a tort or an implied contract the 3-year statute applies. If an action is brought on an express contract the 6-year statute applies, even though damages are sought for injuries to person or property.”
Nature of the injury: Because of the wording of the 3-year statute as pertaining to “all other actions to recover damages for injuries to persons and property” it has been argued and even inferred that all such actions must be commenced within the 3-year limitation. See Sweet v. Shreve (1933), 262 Mich 432. There is also a fairly strong inference to this effect in Kroes v. Harryman (1958), 352 Mich 642, 644. In Kroes suit was brought against a pharmacy for injuries caused when a bottle delivered to plaintiff burst and ignited. No point is made of the nature of the action brought but the Court leaves no doubt as to the applicability of the 3-year provision.
Substance of the pleadings: This factor is ever-present in actions for breach of warranty, breach of implied contract and breach of express contract. Many tort actions arise out of some relationship between the parties which could be said to be of a contractual or quasi-contractual nature. We are compelled by the decisions of the Supreme Court to look to the real nature of the wrong on which the suit is based. Even though the wrong arose by virtue of some implied agreement between the parties, unless that wrong constitutes a breach of some particular provision of that agreement, actions for in jury to person or property must be brought within 3 years. Coates v. Milner Hotels, Inc. (1945), 311 Mich 233; Baatz v. Smith (1960), 361 Mich 68, both of which are discussed by Judge Kavanagh in State Mutual Cyclone Insurance Company, supra, and further elaboration here is unnecessary.
We believe that the correct construction of these statutory provisions to be that where the injury is to specific property or persons, the 3-year limitation controls. The 6-year period may be thought of as an exception applicable to such actions wherein the injury is occasioned by breach of some express contractual provision. See for instance Stewart v. Rudner (1957), 349 Mich 459. On the other hand, in contracts of a commercial nature or where the breach injures one in his financial expectations and economic benefit rather than his person or specific property, then such actions may be brought within 6 years whether founded upon express or implied contract. Abbott v. Michigan State Industries (1942), 303 Mich 575.
In the present case, plaintiffs seek recovery for injury to property and the consequences occasioned thereby. No express contract is alleged or pleaded and the complaint in substance is couched in terms of a tortious wrong. This is, we believe, consistent with the holdings of our Supreme Court in Spence v. Three Rivers Building & Masonry Supply, Inc. (1958), 353 Mich 120; Manzoni v. Detroit Coca-Cola Bottling Company (1961), 363 Mich 235; and Piercefield v. Remington Arms Company, Inc. (1965), 375 Mich 85.
The action is barred by the 3-year provision and dismissal by the trial court was correct.
Affirmed. Costs to appellee.
Fitzgerald, P. J., and Bowles, J., concurred.
See PA 1962, No 174, § 2725 (MCLA § 440.2725, Stat Aim 1964 Eev § 19.2725) which is Michigan’s enactment of the same TJCC § 2-725. This act took effect in Michigan on January 1, 1964. Whether or not the limitations of section 2-725 would govern is immaterial ' since by its own terms it would be inapplicable to this action accruing prior to its enactment. | [
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McGregor,, J.
Plaintiff-appellant American Concrete Institute is a Michigan nonprofit corporation which owns, occupies and uses real and personal property in the city of Detroit. In January, 1965, the Institute protested to the Detroit board of assessors that its property owned on December 31, 1964, should be exempt from taxation under sections 7 and 9 of the Michigan general property tax act, for the reason that the owner was an educational and scientific institution. The assessors declined to exempt the property and the Institute appealed to the Detroit common council, sitting as a board of review. Upon being denied the exemption by the board of review, the Institute appealed to the Michigan State tax commission. The tax commission took testimony on September 9, 1965, and on March 17, 1966, entered an order finding that the American Concrete Institute was not a scientific or educational institution, as follows:
“* * * that the American Concrete Institute is not predominantly an educational or scientific institution and that it must share the common burdens of taxation imposed upon many altruistic and philanthropic persons, natural and legal.”
Upon application, this Court granted leave to appeal.
Should the real estate and personal property of the American Concrete Institute, situated in the city of Detroit, he exempt from property taxes, in accordance with sections 7 and 9 of the Michigan general property tax act, which exempts the property of educational and scientific institutions from taxation? The parties apparently agree that the Institute is not an educational institution and that the word “scientific” is the word which needs judicial interpretation.
Sections 7 and 9 of the Michigan general property tax act, supra, provide as follows:
“Sec. 7. The following property shall be exempt from taxation: * * *
“Fourth, Such real estate as shall be owned and occupied by library, benevolent, charitable, educational or scientific institutions * * * incorporated under the law of this state with the buildings and other property thereon while occupied by them solely for the purposes for which they were incorporated. # * *
“See. 9. The following personal property shall be exempt from taxation, to wit:
“First, The personal property of benevolent, charitable, educational and scientific institutions, incorporated under the laws of this state:”
The task of this Court is to determine whether or not the American Concrete Institute is legally a scientific institution.
By a ruling letter dated February 3, 1956, the United States Treasury Department held that the American Concrete Institute was exempt from Federal income tax under the provisions of section 501(c)(3) of the internal revenue code of 1954 [26 USCA § 501(c)(3)], as being “organized and oper ated exclusively for educational and scientific purposes.” Section 501(c)(3) of the internal revenue code exempts from income tax “corporations * * * organized and operated exclusively for. religious, charitable, scientific, testing for public safety, literary or educational purposes.” The word “scientific” is not defined in the internal revenue- code, but regulations by the United States treasury department provide as follows:
“(5) Scientific defined.
“(i) Since an organization may meet the requirements of Section 501(c) (3) only if it serves a public rather than a private interest, a ‘scientific’ organization must be organized and operated in the public interest * * * Therefore, the term ‘scientific’ as used in Section 501(c)(3) includes the carrying on of scientific research in the public interest.” Federal Tax Regulations, § 1.501(c) (3)-l(5) (i).
The position of the defendants' is that the Institute is not scientific because (1) the Institute has no laboratory, and (2) the Institute serves primarily the business interests of its members rather than the welfare of the general public.
The American Concrete Institute, in its attempt to prove that it is a scientific institution, offered the testimony of two witnesses at the hearing before the State tax'commission, and introduced 20 exhibits in evidence. The witnesses were Mr. William A. Maples, the executive director of the American Concrete .Institute, and Professor Elihu Geer of the College of Engineering at the University of Detroit. Professor Geer is a member of the Institute and uses its publications in teaching his courses at the University.
Plaintiff introduced into evidence the articles of incorporation of the American Concrete Institute, which state the purposes of the Institute as follows:
“To further engineering education and scientific investigation and scientific research by organizing the efforts of its members for a nonprofit, public service in gathering, correlating, and disseminating information for the improvement of the design, construction, manufacture, use and maintenance of concrete products and structures.
“It is the intention and purpose of the members of this corporation that the corporation shall be and remain exempt from all forms of taxation and that contributions to the corporation shall at all times be deductible by the contributor for purposes of federal income tax. The powers of the members and the directors are therefore restricted to those powers compatible with the accomplishment of the above purposes. This corporation is accordingly organized and shall be operated exclusively for educational and scientific purposes. * * *”
The executive director of the Institute since 1953 testified that:
“[He] supervises the work of the staff of employees and is responsible for the organizational meetings, publication of the monthly journal, the special publications, the organization of conventions, and meetings and coordination of the work of technical committees. * * *
“We have a technical director who is a licensed structural engineer # * * We have an editorial department consisting of four individuals under a managing editor who is responsible for the production of publications of which the principal one is the journal. * * *
“The real work of the institute is involved with the technical committees of which there are approximately 70 * * * The committees aim toward supplying scientific information for the use of the building code committee. * * *
“ * * * The ‘Journal of the American Concrete Institute’ * * * is the official publication of the society * * *. Each issue contains tech nical papers related to research, in concrete, design practice and construction practices. * * * This publication goes to each of our 13,000 members and approximately 1,000 subscribers which are principally libraries. * * *
“The function of the Research Committee is to report on research in progress. * * *”
The Institute introduced into evidence exhibits of a manual on concrete inspection, a manual on reinforcing concrete structures and other institute publications. One of these exhibits, “Lessons from Failures of Concrete Structures,” includes the following :
“ ‘This monograph is published in furtherance of ACI objectives in the fields of engineering education and technology. The Institute is not responsible, as a body, for the statements and opinions advanced in this publication; Institute authority attaches only to standards adopted as provided in the ACI By-Laws.’ ”
Plaintiff contends that, basically, the operations in the headquarters office of the Institute are to put into effect the policies adopted by its board of directors, which are in carrying out the basic charter of the Institute in the gathering, correlation, and dissemination of scientific information. All of the interchange of correspondence and reports are channeled through these headquarters. There is a research committee which has an executive group of individuals who establish the policy of the committee; the function of this committee is to report on research in progress.
Professor Elihu Geer, of the Department of Civil Engineering at the University of Detroit, teaches mainly structural courses such as The Theory of Structures I and II, and Reinforced Concrete Strue tural Design. He testified as to his use of books published by the American Concrete Institute:
“When I teach reinforced concrete or prestressed concrete I have in my hand, and the students have in hand, what has been referred to as the Code”;
and further that:
“* * * science, in a few words, is organized knowledge; it is knowledge which has been discovered, accumulated or gathered, evaluated and codified or systematized and published for the guidance of other people * * *. [A scientific institution] is one that develops this science, performs these operations in general * * *.
Q. “Is the work of the ACI that you have seen and participated in scientific in nature?
A. “Yes. * * *
“[Exhibit 15,] ‘Ultimate Strength Design of Reinforced Concrete Columns’ * * * is highly scientific in nature; *' * *
Q. “Is it your opinion that the organization that produced that exhibit was a scientific organization? A. “Yes.”
The entire record clearly demonstrates that the Institute gathers the results of research papers of others, principally members, evaluates them and subsequently publishes them and such handling and publishing of scientific materials is not itself scientific.
The State tax commission order stated as follows:
“The Detroit headquarters of the American Concrete Institute does not engage in experimentation. It assembles and evaluates studies relating to qualities of concrete products which are transmitted to the Detroit headquarters by its membership and by engineering schools of various universities. In a sense the Detroit property is headquarters for the membership and compiling information on concrete, a center for specialized information, a covenient meeting place for its membership, and people generally interested in the study of concrete.”
There is a clear statement of the four elements required to be proven by a claimant for exemption of real property set forth in the case of Engineering Society of Detroit v. City of Detroit (1944), 308 Mich 539, 550:
“(1) The real estate must be owned and occupied by the exemption claimant;
“(2) The exemption claimant must be a library, benevolent, charitable, educational or scientific institution ;
“(3) The claimant must have been incorporated under the laws of this State;
“(4) The exemption exists only when the buildings and other property thereon are occupied by the claimant solely for the purposes for which it was incorporated.”
The applicable statute then, as now, provided that:
“The following * * * property shall be exempt from taxation: * * #
“Fourth, Such real estate as shall be owned by library, benevolent, charitable, educational or scientific institutions * * * incorporated under the laws of this state with the buildings and other property thereon while occupied by them solely for the purposes for which they were incorporated.”
Plaintiff has substantially established three of the four prerequisites for exemptions of its real property as required by that case. The Institute has shown that (1) it owns the real property in question; (2) it is incorporated under the laws of this State; and (3) it occupies the real estate for the purposes for which it was incorporated and, in addition thereto, many other nonscientific purposes.
The record further shows that the Institute uses its headquarters in the city of Detroit as a center from which it organizes the efforts of its membership, and as a gathering and publication office for information useful in the art of concrete design, construction and manufacture. Its building is a national headquarters, and is used for many purposes which are not solely scientific, as contemplated by the language contained in the statutes. The Institute is incorporated to organize the efforts of its membership and arrange these efforts into a movement supporting engineering education and scientific investigation and research.
The amount of alleged scientific work done by the Institute in or on the premises actually is small in proportion to the volume and variety of other activities conducted there.
At its headquarters, the Institute employs 26 persons. Four of them constitute an “editorial department”, responsible for the production of publications, the principal one of which is the Journal of the Institute. Five employees are assigned to the “membership department,” charged mainly with keeping records concerning the 13,000 institute members. Six members constitute the “stenographic pool”, one employee is the “technical librarian,” and another is a janitor. These employees perform their work under the supervision of the executive director of the Institute, the assistant secretary, and a “technical director” who coordinates the work of the “technical committees,” which work is conducted elsewhere. The record shows that the American Concrete Institute does not conduct any research whatever upon the property for which it claims exemption.
The Institute’s income tax status does not affect or predetermine the taxable status of its property under the Michigan general property tax law, as it contends. The Institute’s exemption from Michigan ad valorem tax is not determinable by its qualification as an organization exempt from income tax under section 501(c) (3) of the internal revenue code of 1954, hut by the much more strict provisions of the Michigan general property tax act, supra, sections 7 and 9. A reading of the language of these two provisions (Federal and State) clearly demonstrates the difference. The Institute’s services are principally for its members, which eventually will benefit the public, but are not the kind of services to the general public which were contemplated by the legislative enactment for tax exemption.
The design, construction and manufacture of concrete products and structures are useful arts. The compilation, editing, handling and publishing of scientific data by the Institute are not sciences within the generally accepted meaning of that term. The Institute has, for its purposes, the “gathering, correlating and disseminating [of] information for the improvement of the design, construction, manufacture, use and maintenance of concrete structures and products.”
The rule is well stated in 2 Cooley on Taxation (4th Ed), § 672, pp 1403-1408:
“An intention on the part of the legislature to ■grant an exemption from the taxing power of the State will never be implied from language which will admit of any other reasonable construction. Such an intention must be expressed in clear and unmistakable terms, or must appear by necessary implication from the language used, for it is a well-settled principle that, when a specific privilege or exemption is claimed under a statute, charter or act of incorporation, it is to be construed strictly against the property owner and in favor of the public. This principle applies with peculiar force to a claim of exemption from taxation. Exemptions are never presumed, the "burden is on a claimant to establish clearly his right to exemption, and an alleged grant of exemption wall be strictly construed and cannot be made out by inference or implication but must be beyond reasonable doubt. In other words, since taxation is the rule, and exemption the exception, the intention to make an exemption ought to be expressed in clear and unambiguous terms; it cannot be taken to have been intended when the language of the statute on which it depends is doubtful or uncertain; and the burden of establishing it is upon him who claims it. Moreover, if an exemption is found to exist, it must not be enlarged by construction, since the reasonable presumption is that the State has granted in express terms all it intended to grant at all, and that unless the privilege is limited to the very terms of the statute the favor would be extended beyond what was meant.”
Exemption statutes must be strictly construed against the exemption claimant.
“Taxation, like rain, falls on all alike. True, there are, in any taxing act, certain exceptions, certain favored classes, who escape the yoke. But one claiming the unique and favored position must establish his right thereto beyond doubt or cavil.” In re Smith Estate (1955), 343 Mich 291, 297 (51 ALR2d 847). Also see City of Detroit v. Detroit Commercial College (1948), 322 Mich 142.
The conclusion is inescapable that within the intendment of sections 7 and 9 of the general property tax law’', supra, a “scientific institution” is one which performs a direct service — not to a. professional organization of private persons, but to the general public. The Institute in its use of the property, is not acting solely for the purposes for which it was incorporated as a scientific institution, but largely for disseminating information concerning concrete. This is supported in part by an admission in several of its publications that it did not vouch for matters published therein.
“It is not enough, in order to exempt such associations from taxation, that one of the direct or indirect purposes or results is benevolence, charity, education, or the promotion of science. They must be organized chiefly, if not solely, for one or more of these objects.” Attorney General v. Common Council of Detroit (1897), 113 Mich 388, 390.
Committees operating under the direction of plaintiff do not have laboratory equipment, nor do they conduct experiments. No such experiments are carried on in plaintiff’s premises. It is quite apparent that the property in question is substantially used for many purposes which are not solely scientific in nature. Many of the cases cited from other jurisdictions reveal statutory dissimilarities and their worth as precedent herein is dubious. From a careful inspection of all the exhibits and a reading of the record, it is inescapable that, in order to grant exemption to plaintiff, the meaning of the word “scientific” must be enlarged from its commonly understood and accepted definition. Likewise, the use of its property must be principally for purposes that are contemplated by the language of the statute, i.e., “while occupied by them solely for the purposes [scientific investigation and scientific research] for which they were incorporated.” It, therefore, follows that the plaintiff is not entitled to tax exemption.
The order of the State tax commission is affirmed. No costs, a public question being involved.
Burns, J., concurred with McGregor, J.
Michigan general property tax law, CL 1948, § 211.7, as amended by PA 1963, No 148, and § 211.9, as amended by PA 1964, No 275 (Stat Ann 1965 Cum Supp §§ 7.7, 7.9).
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Per Curiam.
In this cause a petition for review of the apportionment plan for the Huron County Board of Supervisors having been filed pursuant to PA 1966, No 261 [MCLA § 46.406 (Stat Ann 1968 Cum Supp § 5.359 [6])]; and oral arguments having been presented before this Court on July 1, 1968; and the parties having agreed on the same date to file a new apportionment plan more in conformance with the constitutional requirement for districts of substantially equal population; and the parties having filed such agreed apportionment plan on July 2, 1968; therefore,
It is ordered that the plan adopted and filed with this Court by the Huron County Board of Supervisors on July 2, 1968, be, and the same hereby is, the approved apportionment plan under which elections for the office of county board of supervisors in Huron county shall be conducted for the primary and general elections of 1968, and the approved plan shall be the official apportionment plan for Huron county until the next United States official decennial census figures are available.
It is further ordered that the approved plan shall be filed with the county clerk who shall forthwith file such plan with the secretary of State pursuant to the requirement of PA 1966, No 261.
It is further ordered that those candidates for the office of supervisor who have filed their candidacy under the apportionment plan originally filed with the county clerk on April 6, 1967, and filed pursuant to the filing deadline of Enrolled Senate Bill No 23 of the regular session of 1968, and are otherwise qualified under the laws of this State, shall he candidates for the district within which they reside under the plan approved by this Court this day.
It is further ordered that the sufficiency of the petitions and other qualifications for the candidacy of the office of supervisor for the 1968 elections only shall he controlled by the requirements that would have been necessary under the plan filed with the county clerk on April 6, 1967.
This order shall he delivered to the State Reporter and published in the official reports of the Court of Appeals.
Lesinski, C. J., and J. H. Emms and Levin, JJ., concurred.
SVSON
HURON
7 Districts (Adopted by Huron County Board of Supervisors District 1 4443 2 4475 6 4529 3 4849 - 18,296 or 53.8% 7 5167 4 5249 5 5294 - 15,710 34,006 on July 2, 1968). Maximum Population Variance Batió 1:1.19 Minimum Population Electing a Majority 53.8% Average Population of District 4858 Total = 34,006 Deviation of Largest District from Average 436 or 8.97% Total = 5294 Deviation of Smallest District from Average 415 or 8.54% Total = 4443
PA 1968, No 153. | [
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Burns, J.
An Oakland county circuit judge, sitting without a jury, found the defendants guilty of operating or maintaining a junk yard without a license in violation of Independence township ordinance No 8 (1952), as amended.
Defendants operated a gasoline service station and a towing service. One witness testified that he saw between 40 and 50 cars stored on defendants’ lot. Many of the cars did not have license plates or wheels, and were partially dismantled or badly damaged. Defendants admitted keeping automobiles on their premises for a period in excess of 15 days after which time they would apply to the secretary of state for title. Upon receiving title to the cars they would sell parts from the automobiles and eventually haul the remains to a scrap iron dealer.
Defendants’ activities clearly became subject to the township’s junk yard licensing ordinance when in 1963 the ordinance was amended by adding the following:
“A ‘junk yard’ as used herein is defined to he any establishment or premises where worn out or discarded material is bought, kept, sold and/or stored; any premise upon which two or more unlicensed used motor vehicles which cannot he operated under their own power are kept or stored for a period of 15 days or more shall he deemed to he a ‘junk yard’ within the meaning of this ordinance.”
Defendants claim that the amendment was outside the scope of the enabling statute, CL 1948, § 445.451 (Stat Ann 1964 Rev § 19.731). In Toebe v. City of Munising (1937), 282 Mich 1, 15, 16, the Court employed the following observation from 1 Dillon, Municipal Corporations (5th ed), § 237, pp 448, 449:
“ ‘It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied, in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, — not simply convenient, hut indispensable.’ ” (Emphasis in the original source.)
The State legislature has not defined “junk yard”, and, therefore, the township possessed the implied power to define the term. Blumlo v. Hampton Township Board (1944), 309 Mich 452.
"We do not pass on the question whether Const 1963, art 4, § 24, applies to municipal ordinances since we are of the opinion that the definitional amendment to the ordinance in question did not embrace more than one object as argued by the defendants.
Defendants’ assignments of error that the ordinance was not a valid exercise of the township’s police power and not related to the health, safety and welfare of the public, that the ordinance was in fact a zoning ordinance, that it discriminated against the defendants, that it attempted to license parting on private property, and that it was an attempt to legislate in a field pre-empted by the State, are all answered negatively in Netzel v. Township Board of Waterford Township (1934), 267 Mich 220, and Jourden v. Wyoming Township (1960), 358 Mich 496, and do not require additional comment. The remaining issues submitted by the defendants are without merit.
Affirmed.
Holbrook and Peterson, JJ., concurred. | [
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] |
Holbrook, J.
The plaintiffs are owners of property situated within the municipal limits of the city of Portage on the shore of Austin lake. They appeal from a circuit court order, entered November 25,1966, which granted the defendant an accelerated judgment.
By their action, which they denominated a class action in behalf of all property owners similarly situated on West and Austin lakes, the plaintiffs sought to permanently enjoin the city of Portage from proceeding with a special assessment project that would result in the construction of a pipeline through which the Upjohn company was supposed to supply “surplus water” that would be of value in maintaining a higher water level not only in Austin lake but also in the interconnected "West and Long lakes.
The plaintiffs asked the trial court to: “Declare said special assessment project, said special assessments, and also the said resolution of the city of Portage confirming the same wholly void”, and to issue a preliminary injunction during the pendency of the suit and a permanent injunction upon a final hearing that would prohibit the defendant' “from proceeding with said special assessment project and from the collection of the special assessments herein referred to.”
In their complaint plaintiffs alleged that their relief should be granted because in setting up the special assessment project the city had failed to follow certain procedures set forth as mandatory in the municipal charter of the city of Portage. The plaintiffs also complained the project would confer no benefit on the land being assessed and that the proposed pipeline could not be considered a “public improvement” subject to payment by way of special assessment. Plaintiffs further asserted that there was not any public necessity or need for the project.
Defendant’s motion for an accelerated judgment was based upon a claim that plaintiffs’ action was barred by the judgment entered by the Kalamazoo county circuit court in City of Portage v. Henry Westerville, docket No. 6-220B. In this earlier action the now defendant city sought a declaratory judgment on the question of whether it had the authority to create the special assessment district sought by various landowners whose property was situated around Austin, West and Long lakes. In an opinion issued January 24, 1966, the trial court concluded that the proposed project would be a public improvement and that a home rule city, if it fol lowed the necessary statutory, charter and ordinance requirements, could charge back by special assessment the cost of operating such a project. The court expressly withheld from ruling on whether the project as proposed would be carried out with all due formalities being observed and on whether the city could employ a front foot basis in computing the special assessment.
Thus in the first action the conclusion of the court was that the city had power to take some action that was contemplated. But the court did not determine whether the action being proposed would be carried out in accord with the various legal formalities imposed by constitutional, statutory, charter and ordinance provisions. A challenge to any such claimed defective action was properly reserved for future litigation and that is what the plaintiffs may have by their present action. In other words, the purpose of the present action is to determine whether such authority has been properly exercised.
Defendant argues that plaintiffs cannot challenge either the assessments or the method whereby they were levied because they were members of the class that was involved in the declaratory judgment action and although they failed to participate in the action directly they are bound by the decision. As a general proposition this point is beyond challenge. This Court has held that in a class action one or more persons may be permitted to maintain or defend an action for themselves and various other persons of the class. Theisen v. City of Dearborn (1967), 5 Mich App 607 (affirmed [1968] 380 Mich 621).
The class (defendants) in the action for declaratory judgment consisted of those persons including plaintiffs herein, who were owners of land on the lakes to be benefited and to be charged for the public improvement. The class including plaintiffs herein, was represented by 3 defendants who were officers of tlie respective lake associations affected. These defendants were represented by counsel who vigorously represented the interests of the class.
Plaintiffs assert that the decision in the prior action is not binding upon them because the notice given therein did not meet the test of due process. There were 3 named defendants representing the class in question and the trial judge ordered in accord with GCR 1963, 208.4 that notice be given to all other parties in interest by publication in the Kalamazoo Gazette, Portage Herald, and Portage Headliner, newspapers, all circulated within the city of Portage. There is no claim by plaintiffs herein that they did not have notice of the action. It is interesting to note from the record that one of the plaintiffs herein, Mr. Benjamin Wise, acted as counsel for the Allied Paper Company, also a defendant in the declaratory judgment action. He not only had constructive notice but actual notice of the fact that the 3 defendants were representing the class of which he was a member. The other plaintiffs herein can be deemed to have had sufficient notice under the ruling in the case of American State Savings Bank, Trustee v. American State Savings Bank (1939), 288 Mich 78, wherein Mr. Justice McAllister stated on pp 88, 89, in part as follows:
“The trial court ordered publication of the order setting forth the purpose of the bill and specifying the time and place of hearing, in the manner provided by Court Rule No. 77 (1933, adopted June 7, 1937). While such procedure is not required in class suits, for the reason that no service, by publication or otherwise, is necessary upon members of a class who are sufficiently represented in the proceeding, nevertheless, such practice is to be commended. Plaintiff’s rights were not prejudiced by the proceedings or the adjudication.”
The plaintiffs being members of the class and properly represented in the prior action — City of Portage v. Henry Westerville, supra—they are bound as to those matters actually litigated therein. Theisen v. City of Dearborn, supra; International Typographical Union v. County of Macomb (1943), 306 Mich 562; City of Saginaw v. Consumers Power Co. (1943), 304 Mich 491.
Plaintiffs have not been afforded an opportunity to challenge those matters not actually litigated in the prior action — including whether all due legal formalities were followed in carrying out the project; whether the city of Portage could employ a front foot basis in computing the special assessment; whether the special assessment district could be properly limited to property owners on Austin and West lakes so as to exclude property owners within the city limits on Long lake. Whether plaintiffs can prove their allegations pertaining to the matters not determined in the declaratory judgment action is uncertain. But the fact remains they must at least be accorded the opportunity to try.
Affirmed in part and reversed in part and remanded for further proceedings not inconsistent with this opinion. No costs, neither party prevailing in full.
Fitzgerald, P. J., and Burns, J., concurred.
GOB 1963, 116.
GOB 1963, 208.1(1).
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Lesinski, C. J.
Defendant Sears, Roebuck & Company appeals from a judgment totaling $17,250 on a verdict entered below for plaintiffs, Mary Lee Nash and Dan Nash. Sears seeks a reversal and remand for new trial, or, in the alternative, a setting aside of the judgment of “no cause” against it on its cross-claim against codefendant Heidt’s Protective Service, Inc., for entry of judgment against the latter, or a new trial on its cross-claim. The relief sought by defendant Heidt’s Protective Service, Inc., is a reversal of the judgment below in favor of the plaintiff and an affirmance of the judgment of “no cause” in its favor on the above-mentioned cross-claim.
The plaintiff brought action against Sears, Heidt’s and Arthur Keolian for false arrest, false imprisonment, and assault and battery committed by Keolian who was an employee of Heidt’s with whom Sears had contracted to furnish guard service at its store located at 8000 Gratiot at Van Dyke in Detroit. An amendment to plaintiff’s complaint added a further count of negligence against the two corporate defendants based on the employment of Keolian as a guard.
The incident which gave rise to plaintiff’s cause of action took place on September 4, 1962, when Keolian, in guard uniform, apprehended the plaintiff, a departing Sears’ customer, on the sidewalk adjacent to the store. Pie noticed she had loose merchandise and demanded to see receipts. Plaintiff was able to produce only one. Keolian tried to get her back to the store; however, she refused to go and struck Keolian with her umbrella and started to walk away. Keolian then shoved her to the ground, straddled her body and pinned her arms above her head. They remained in this position until a crowd gathered and the police arrived. A subsequent examination of plaintiff’s possessions by the police revealed that the shoplifting charge was without foundation.
According to Keolian’s testimony, he was summoned to the lingerie department in response to a bell call in the store. A saleslady told him that a woman had taken some merchandise, stuffed it into a shopping bag, and left the store. Keolian stated that when he was unable to find the suspected party on the basis of the sparse description of her attire given to him initially, he returned to get his informant, and that the saleslady accompanied him to the door and pointed the plaintiff out to him.
The plaintiff alleged and proved physical injuries' and expenses, as well as accompanying humiliation, pain and suffering resulting therefrom, none of which are at issue here.
The testimony showed that Sears and Heidt’s, through their agents, had entered into an oral contract in 1957 whereby Heidt’s was to furnish guards on a part-time basis to the Sears store at Gratiot and Van Dyke. Sears paid Heidt’s for this service at the rate of $2 per hour per guard supplied. Heidt paid the guards.
The first issue raised by Sears alleged that the court erred in directing a verdict against Sears on the counts of assault and battery and false arrest. The court determined that as a matter of law, there was an assault and battery and false arrest for which Sears was liable as a matter of general policy, because there is a nondelegable duty owed by any such business to the public. Sears does not contend that there was not, as a matter of law, an assault and battery and a false arrest, but rather argues that it was not liable therefor.
Sears’ argument is that Heidt’s was an independent contractor, for whose torts Sears, as employer, should not be held liable. On this point Sears cites two venerable Michigan eases, De Forrest v. Wright (1852), 2 Mich 368, and Riedel v. Moran, Fitzsimons Company, Limited (1894), 103 Mich 262. Both cases are factually distinguishable, in that in both DeForrest and Riedel the acts for which the plaintiff sought to hold the defendant liable sounded in negligence. The instant case involves, as to the counts here under discussion, intentional torts. Therefore, we are not required to consider the authorities cited as controlling.
Sears’ principal argument on this issue, however, is that the exception to the employer’s nonliability is found where the work delegated is intrinsically or inherently dangerous. Although this exception is well settled in Michigan law, it is not the exclusive exception as Sears would imply. We refer to the very title of section 35 in 13 Callaghan’s Michigan Civil Jurisprudence under the topic Independent Contractors, which is “Exceptions to the rule of non-liability,” and to the variety of cases cited in sections 35 through 42 of 13 Michigan Civil Jurisprudence, supra. The case on which Sears places heavy reliance in its argument is Cary v. Thomas (1956), 345 Mich 616. The Cary Case dealt with liability for the negligent act of the independent contractor in an allegedly inherently dangerous activity; since the trial court here did not direct a verdict on the theory of an “inherently dangerous” activity, but rather on the basis of public policy, and since the activity giving rise to liability here was not negli geixce but rather the ixxflictioxx of ixxjury through the commissioxx of intexxtional tort, the law in Cary is inapplicable.
Most important, however, is the line of authority cited by the plaintiff from the axxnotation in 92 ALR 2d 15, “Principal’s liability for false arrest or imprisonment caused by agent or servant” wherein it is stated at p 61:
“Generally the defendant has beexx held liable for a false arrest caused by such an agent [i.e., one under contract to defendant] where the contractual services to be performed by the agency consisted of the protection of the defendant’s property from theft or embezzlement by its customers or employees. In some of these cases, it has beexx expressly held or stated that defendant could not escape liability on the ground that the false arrest had been caused by an employee of a mere independent contractor.”
In the absence of Michigan case law on the question of whether or not this fact situation presents a nondelegable duty, we coxxsider the authority cited from out-of-state and find it valid.
The responsibility owed the public by storekeepers to keep invitees safe from attacks such as was suffered by the plaintiff here cannot be delegated by axx invitor so as to free the invitor froxn liability when its contractor, through its agent, commits a •wrongful act. The language ixi one of the cases in the above-cited axxnotation is particularly apt. These words, from Adams v. F. W. Woolworth Co. (1932), 144 Misc 27 (257 NY Supp 776, 782), have beexx frequently cited:
“This is not the case of a eoxxtraetor doing his work negligently. Where negligence is the sole basis of the liability, the doctrine of respondeat superior has been held inapplicable to independent contracts. Negligence does not enter into the tort of false arrest. * * * Immunity from vicarious liability -would permit any store keeper to subject his customers to the hazards of an irresponsible detective agency without peril to himself. * * * The opportunities for gross injustice afforded by such a doctrine are too manifest to permit its incorporation into the jurisprudence of our state, without compelling reason.”
Thus the first issue raised by Sears must be determined in the plaintiff’s favor.
Next we discuss the issue raised by defendant Heidt’s relative to the court’s determination that the intentional torts were proved as a matter of law. Heidt’s alleges that there was conflicting evidence as to the false arrest, and that therefore a jury question was presented. It notes that under the shoplifting statute, 6 any larceny is a felony. On this point, Heidt’s is correct. Heidt’s then states that a private citizen may arrest without a warrant where the person arrested has in fact committed a felony even though it was not committed in his presence. Again, Heidt’s is correct. However, Heidt’s employs these rules of law to reach a conclusion which is fallacious. Heidt’s says that since there was unobjected-to hearsay evidence to the effect that the saleslady said some merchandise was taken, this evidence of a felony should have gone to the jury, because if believed by the jury, there would have been no false arrest. Heidt’s misinterprets the admission of the evidence here discussed. The evidence was not admitted as hearsay — to prove the truth of the matter asserted — but rather to prove the fact of an assertion — that the saleslady said something relevant to the cause at issue. There was no testimony that a theft had been committed— no evidence therefore of a felony, and the trial court correctly found that there was a false arrest — an arrest without legal authority. There was, according to the undisputed evidence, an assault and battery. The trial court committed no error in so finding and charging. Heidt’s assignment of error as to this issue is without merit.
Sears additionally contends that the court erred in refusing to direct a verdict for Sears on its cross-claim. Sears says, in effect: ~We had an oral contract with Heidt’s, one of the provisions of which was that no guards furnished by the latter were to make apprehensions unless they witnessed the transaction themselves; the existence of this provision is not in dispute; and this contractual agreement was breached. Sears then says Heidt’s did not properly instruct its servant in the method of performance and that the court erred in not holding Heidt’s liable to Sears for injuries caused a third person through its negligence in this regard. Sears states that the court found Heidt’s negligent as a matter of law and liable to the plaintiffs for failure to properly instruct its employees, but refused to apply the same rule as to Heidt’s liability to Sears. It is Sears’ contention that Heidt’s was liable on either a contract or negligence theory. It further urges that if the court had determined that Sears was liable on a “loaned employee” theory, which it did not, then Sears, whose liability was predicated on passive negligence, would be entitled to indemnification from Heidt’s — the actively negligent party. Sears’ theory, as summarized above, raises several issues.
Sears says that the trial court determined that Heidt’s was negligent as a matter of law as to Mrs. Nash, and erred in failing to hold Heidt’s negligent ■ — and hence liable — to Sears as well. The trial judge, in refusing to grant motions for a new trial or judgment notwithstanding the verdict some two months later, erroneously stated that he had deter mined that it was negligence as a matter of law for a private detective agency to employ uniformed guards and send them out without instructions. He was speaking, at that time, from his recollection of the instructions previously given. A rereading of the instructions shows that what the trial court said was that if the jury found that Keolian was a loaned employee — which question was correctly sent to the jury on proper instruction — then it might next decide that Heidt’s was negligent in the selection and training of Keolian. Sears cannot gain reversal on this allegation.
Sears’ other contention in the negligence area is that it was entitled to indemnity on the active-passive negligence theory as it was held liable without fault. We agree that the law is well settled that where one is held liable without fault, he is entitled to indemnity from the actively negligent party. And, we agree with Sears that active negligence on Sears’ part cannot be based on the conduct of the Sears saleslady as this did not constitute participation in the arrest under Michigan law. See Simpson v. Burton (1950), 328 Mich 557; and Howard v. Burton (1953), 338 Mich 178. Sears was not held liable for the “active negligence” of Heidt’s, but rather for the breach of a nondelegable duty to protect its invitees from an intentional tort by one held to have been acting for Sears at the time of the incident. Because of the manner in which the matter was submitted to the jury, we cannot now determine if Heidt’s was held liable on the basis of liability without fault on the same theory as Sears, except as the provider of the service, or on the basis of negligence in the selection and training of the employee who caused the injury.
Sears’ other contention involved in this issue deals with the contractual relationship between Sears and Heidt’s. The court explained that the contract was oral and the jury had to determine if one of the things agreed to was that the guard sent must he qualified, and if so, if that agreement was breached. Then the court explained that the other aspect of this contract to be determined is the “no arrest agreement.” The court said, “the question is whether at the time the original contract or agreement was made between Mr. Heidt and Sears there was an understanding between them that this would not be done and if it was done it would be a breach or violation of the contract.”
The testimony revealed that the parties to the contract discussed the fact that guards were not to apprehend for shoplifting if they did not see the transaction. However, it was never made clear by any witness that instructions to the guards relative to “no arrest” were a contractual provision. The issue of the existence of the contract and its specific terms was properly left in the province of the jury. We find no reversible error in the court’s instructions on this point and we will not disturb the findings of the jury which inferentially must have found that the “no arrest” agreement was not part of the contract for services.
Sears’ final issue on appeal asserts error in the court’s failure to give an instruction requested by Sears to the effect that Heidt’s had a duty of due care in selecting, training and instructing the guards it sent to Sears.
Sears’ proposed instruction relative to this point was properly rejected by the court. It reads in part:
“If you find that Heidt’s did not use due care and that this was the proximate cause of the incident with Mrs. Nash, then you may require Heidt’s to reimburse Sears.”
Heidt’s responsibility, if any, to Sears could only be founded on contract. The issue, consequently, was whether the kind of guard contracted for was provided. The instruction requested by Sears based on tort and the matter of proximate cause has no bearing on the breach or nonbreach of the contract.
We find that the question of the court allowing the jury to consider the amount paid to Heidt’s by Sears for the service rendered as a factor in determining the qualifications of the guard contracted for was not properly preserved at trial, nor was the issue properly raised on appeal. While it may be true the trial court offered counsel a blanket exception to the charge, it was not accepted nor would it have been proper had it been so accepted.
For the reasons above stated in discussing Sears’ appeal, there is no need for us to lengthen this opinion unduly by a discourse involving the merits of Heidt’s cross-claim against Sears, nor its appeal. It suffices to add that Heidt’s theory of the case was sufficiently presented to the jury and that the trial court properly rejected Heidt’s requests to charge which were denied.
Affirmed. Costs to appellee.
Burns, J., concurred with Lesinski, C. J.
Por convenience, defendant Sears, Roebuck & Company, will hereinafter be referred to as Sears; defendant Heidt’s Protective Service, Inc., will be referred to as Heidt’s, and the plaintiffs, Mary Lee Nash and Dan Nash will be referred to in the singular as the plaintiff — meaning Mrs. Nash. It was she who sustained 1ho injuries complained of for which relief was granted below in the amount of $16,250. The damages sought by Mr. Nash for medical expenses and loss of consortium, which the jury valued at $1,000, were dependent upon the verdict and judgment favorable to her.
Arthur Keolian, the third defendant named in this cause, was served with summons and complaint. He filed no appearance. The resulting default was explained to the jury by the court in his instructions. Koolian testified at the trial. He was called by Heidt’s for cross-examination as an adverse party under the statute, and further eross-examined by the other parties -to the litigation.
The saleslady, whose identity was known to all parties, was not called as a witness below.
This contention is one of Heidt’s issues, and will be developed infra.
CL 1948, § 750.360 (Stat Ann 1954 Bov § 28.592).
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Morse, J.
The defendant, on the twenty-eighth day of January, 1885, sold to the husband of the plaintiff one plush-parlor suit and one marble-top table, for $90, taking his due-bill therefor. The plaintiff was with her husband, and helped to select the articles. After selection the furniture was set out to one side. The next morning plaintiff and her husband went to the store of defendant to find out why he did not deliver the furniture. The defendant replied he could not .do so, as one Yalentine Schroeder had garnished him. Mr. ITanselman then said to defendant: “I don’t see why you shouldn’t deliver the furniture; it belongs to me, and is household property.”
Schroeder had sued Banselman, and served a gai’nishce upon defendant, the same day of the purchase of the furniture.
Banselman confessed judgment in the suit of Schroeder, and the defendant, on the seventh day -of February, the return day of the writ, disclosed that he held in his possession the aforesaid furniture, of the value of $90, of the goods and chattels of said Banselman.
Plaintiff made several demands of the property of defendant orally, and on the twelfth day of February served a written notice upqn him that the property was exempt under the statute, and that lie must not deliver it to Schroeder until a trial of the garnishee suit was concluded, as she claimed a distinct interest in the property.
A second summons in the garnishee proceedings was served upon defendant to show cause why judgment should not be entered against him upon his disclosure in favor of Schroeder, and, March 2, 1885, judgment in such proceedings was rendered in favor of the defendant against Schroeder.
In the meantime, and on the nineteenth day of February, the plaintiff commenced this action of replevin against the defendant before a justice of the peace, in which suit the justice rendered judgment for the defendant, March 14, 1885.
Plaintiff then appealed to the circuit court for Wayne county, where the case was tried before a jury, and judgment rendered in her favor. The plaintiff perfected her appeal from justice’s to circuit court March 19, 1885. After the judgment against her in justice’s court, and before her appeal, she called at the store of the defendant, on the seventeenth day of March, 1885, and again demanded the goods.. The defendant loaded them on his wagon, and his men took them to the plaintiff and her husband’s house. About the-time the wagon with the goods arrived at the house, an officer came there, and, as the furniture was unloaded from defendant’s wagon, seized the property from the sidewalk, or in the yard of the house, under an execution against plaintiff’s husband in favor of Schroeder, and carried it away.
Subsequent to this levy the plaintiff and her husband commenced a suit against the officer and Schroeder, claiming the property as exempt from execution, in which suit judgment was rendered against plaintiff and her husband.
The errors assigned by defendant all relate to the instructions of the court below to the jury, and the refusal of the circuit judge to charge as requested by his counsel on the trial. The request refused was as follows:
“ That by the plaintiff and her husband following the goods in question into the hands of the. officer who levied upon them, and trying to recover them from the officer and "Valentine Schroeder, in a suit against them, she acquiesced in the delivery made by the defendant, and is now estopped from denying that a delivery was made by him.”
The portions of the charge objected to by defendant are:
1. That plaintiff had a right to commence her suit while the garnishee proceedings were pending.
2. The court below erred in charging the jury that if there was any understanding and arrangement between the defendant and the officer, whereby the possession of the goods in question, instead of passing from the defendant to the Hanselmans, should pass from the defendant to the officer, and that such delivery took place to the officer in pursuance of that arrangement, then the jury might find that there was no delivery in fact or in law to the Hanselmans.
3. The court belowerred in submitting to the jury the question as to whether there was collusion between defendant and the officer that the officer was to levy on the goods in question at the time defendant delivered them at Hansel-man’s house.
4. The court below erred in instructing the jury that they 'might find an unlawful detention of the property.
5. In charging the jury as follows; “I think the jury may find that there was an unlawful detention of the property, and assess the damages, and determine the value of the property, unless it be admitted here.”
The bringing of the second replevin suit against the officer and Schroeder was not inconsistent with plaintiff’s claim against defendant.
By some sharp practice upon the part of the defendant, the property could not be found at the time of the service of her writ of replevin. She might well have preferred the possession of the property to a judgment for its money value, and when she saw it in the possession of another party, had a right to endeavor to reclaim it as against such person without abandoning her suit against defendant.
If the property had been delivered to her under her writ in the first instance, and had been in her possession at the time of the levy by the officer, she would certainly have had a right to bring replevin against the officer, or to have sued him in trespass, without abating her original suit against defendant; and, as she accepted no delivery from the defendant, she was at liberty to follow the officer, and endeavor to get possession of the furniture, without thereby discharging the defendant from the wrong he had before done her in refusing to deliver the property in the first place.
The suit at bar must be considered as having been pending at the time - this attempted delivery was made, and we -cannot see why her conduct in bringing replevin against the -officer can alter the status of the parties in this suit, which must be determined by. their rights when the ease was commenced. If she had recovered the property, that fact could have been received in mitigation of damages; but failing to get it, her action has not prejudiced the defendant in any way. She has done nothing that can be urged in the way of an estoppel of her right to still proceed against the defendant. Neither by her words nor her conduct has she given the defendant cause to believe that she had no claim against him for the property, nor has he been induced to do, or not to do, anything to his disadvantage by her pursuit of the officer. The action against him was begun before the seizure under the levy was made, and all that he has done of which she complains, or for which she seeks a remedy in this suit, was done before she brought suit against the officer, and whatever redress she has sought or obtained in the case at bar has not been affected by her acts subsequent to the ■bringing of her suit against defendant. Nor under the charge of the court as given were defendant’s rights impaired in the slightest degree by her attempt to reclaim the property from ■the levy. In fact, if she had succeeded, he would have been benefited to the extent of the value of the property in this action.
It is further urged that plaintiff had no right to bring her suit while the garnishee proceedings were pending against the property in question as the goods and chattels of her husband. It is claimed because she does not claim the furniture in her own sole right, but as the exempt household goods of her husband under the statute, the bar of the garnishee statute attaches to her as it would to her husband. The statute reads : “No suit shall be maintained or recovery had by such defendant [in the principal suit] against the garnishee for the amount of money sworn, proved, or admitted to be due from such garnishee to the defendant, or for the property, or the value thereof, money, or effects in the hands of such garnishee as aforesaid, while such proceeding is pending.”
There was no dispute upon the trial of the case as to the-nature of the property. No question was raised as to its-being exempt, and the whole trial proceeded upon the theory that it was exempt as household property.
The proceedings under the garnishee statutes are in derogation of the common law. Not only must the statutes be strictly construed, but there is no authority for any action, or prohibition of action, outside of them. The statute above quoted does not, by its terms, forbid the pendency of this suit by the wife. The remedy given her does not depend upon the action of her husband. He has no more power to defeat her rights in the premises than any other person. She may join him in her suit, it is true, if she choose, but she is not obliged to do so. She has a perfect right of action in her own name independent of what he may see fit to do.
If he cannot defeat her action or destroy her rights, certainly no person claiming under, through, or by him ought to be allowed to do so. To place the bar of the statute, which in terms only applies to her husband, in her path, would defeat the exemption the law gives her, and place her right to household goods at the mercy of his creditors. The court was therefore right in refusing to instruct the jury that she had no right to commence this action because of the pendency of the garnishee proceedings: Ingersoll v. Gage, 47 Mich. 121.
In regard to the instructions of the court as to the delivery of the goods, or pretended delivery, at the house of defendant, the charge was proper. There was evidence tending to show a collusion and arrangement between the defendant and the officer to make a sham delivery, really for the benefit of Schroeder. The jury found specially, upon a properly submitted question, that the intention of the defendant was to make a pretended delivery of the property to the Hansel-mans, but really, at the time of and by such pretended delivery, to pass the property into the hands of the officer holding .■Schroeder’s execution against the husband.. In such case, it would not be a delivery to her in fact or in law.
The question of delivery, however, under our view of the case, would only affect the amount of damages, as it could ■not, if delivered in good faith, be a bar to relief for the original wrong. The jury also found, specially, that there was no delivery.
The court did not err in charging the jury that they might find an unlawful detention of the property. The goods being conceded for the purposes of the trial to be-exempt, and she having a right to bring her suit for them notwithstanding the garnishee proceedings, the original detention was unlawful, and a subsequent delivery in good faith could not prevent her recovering for the damage of the detention before such delivery: Hanmer v. Wilsey, 17 Wend. 92; Vosburgh v. Welch, 11 Johns. 175; Gibbs v. Chase, 10 Mass. 128; Otis v. Jones, 21 Wend. 394.
The statement of the court that they might find the value •of the property at $90 was made upon the admission of one of defendant’s counsel that such was the value.
The jury, finding specially that there was no delivery of the property, were warranted in bringing in a verdict for the value of the same at $90 against the defendant.
The jury also, under the charge of the court, found the damages for the detention of the property, at a fair use for the same, to be the sum of $25.
The goods not being taken upon the writ of replevin, and the plaintiff proceeding for damages, it is claimed that the recovery of the same is governed by the same principles which apply in an action of trover, and that the amount of damages should have been limited to the value of the goods, and the interest thereon from the date of detention to the time of verdict.
Our statute authorizing the proceeding in case the property is not taken upon the writ, provides that the plaintiff may proceed in the action for the recovery of the property or the value thereof. How. Stat. § 8327.
“ In case he shall recover upon the whole record, he shall be-entitled, in addition to his damages and costs, to a further judgment that such goods and chattels be replevied and delivered to him without delay, or in default thereof, that such plaintiff do recover from the defendant the value of such goods and chattels as the same shall have been assessed:” How. Stat. § 8343.
The execution commands the sheriff to levy and collect the damages and costs as in other executions against property, and also to replevy the goods and chattels, if they can be found within his county, and deliver them to plaintiff. If not found, then he is to levy the value of the same, and collect with the damages and costs : How. Stat. § 8344,
It is claimed by plaintiff’s counsel that the use of the word “ damages” in this connection, in the last two sections of the statute cited, plainly implies that the matter of damages' is to be kept distinct and separate from the value of the property,, or the interest thereon, and is to be considered and found the same as if the property had been recovered upon the writ of replevin.
It will be seen by the statute first cited (How. Stat. § 8327) that the plaintiff may elect to recover the property or the value thereof. The record shows that upon the trial the plaintiff elected to take a judgment for the value.
The authorities seem to be uniform that in such case the measure of damages is the value of the property at the date of conversion, and interest upon such value to date of verdict : Cow. Treat. (5th ed.) § 622 ; Wells Repl. §§ 520, 537, 543, 580; McGavock v. Chamberlain, 20 Ill. 220 ; Allen v. Fox, 51 N. Y. 564; Garrett v. Wood, 3 Kan. 231; Brewster v. Silliman, 38 N. Y. 423 ; Brizsee v. Maybee, 21 Wend. 144.
We think the rule thus established to be the correct one, and applicable in the case at bar. The plaintiff cannot elect to treat the title of the property as having passed to the defendant by suing for its value, and at the same time claim the use of it as if it were hers. It is only while it is her property that she can claim compensation for its use; and the- rule is a fair and reasonable one as applied to the case at bar. The law in replevin usually, as in other actions, in the absence of fraud or malice, simply aims at a just compensation in damages, the object being to restore the plaintiff, as far as possible, to the condition she was in before the act complained of was committed: Wells Nepl. § 530.
If she had enjoyed the use of the furniture, for which use she received $25 by the verdict and judgment in this case, the property would have necessarily, from its nature, been decreased in its value by such use. By this verdict and judgment, then, she receives the full value of the property when new, and $25 in addition thereto. A fair compensation to her at the date of the wrong would, have been the payment to her of the value of the property, so that she could have obtained like goods of like value, or a delivery of the goods to which she was entitled by her husband’s purchase. Therefore it seems to me that the fair rule of damages would be the $90, and the interest thereon.
The verdict and judgment should have been for the value of the property ras found, $90, and interest at seven per cent, from the nineteenth day of March, 1885, to the date of the verdict, September 26, 1885.
As this is a mere matter of computation, judgment will be entered in this Court in favor of the plaintiff and against the defendant for the $90, and interest from March 19, 1885, to date, amounting in all to $96.75, with costs of this Court to defendant and of the court below to plaintiff.
The other Justices concurred. | [
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Morse, J.
Charles H. Porter and Samuel B. Taylor formed a copartnership pnder the name of Porter & Taylor, to conduct a retail grocery business in the city of Lansing.
The capital stock put in was $1,000 each; Henry E. Porter giving his son Charles H. his share, and loaning Taylor his share, taking from Taylor a note for $1,000, signed by Taylor individually, and also by Charles H. Porter as surety.
The firm became indebted largely and financially embarrassed, and while in this situation Taylor went to Detroit, and, without the knowledge or consent of his copartner, executed a mortgage in the firm name to the plaintiff as •trustee for certain Detroit creditors therein named, including also the claim of Henry E. Porter at $900.
The plaintiff took possession of the property under the mortgage, and ran the store a few days, when he advertised the stock for sale under the power of sale contained in the mortgage.
While the proceedings to foreclose the mortgage were pending, and before sale, the defendant levied three writs of attachment upon a portion of the stock, and carried the goods away, for which goods the plaintiff brought this action of replevin.
The circuit judge instructed the jury that the chattel mortgage was void because it secured the claim of Henry E. Porter, which was not a partnership debt, but the individual liability of Taylor, and directed a verdict for the defendant. The correctness of this ruling is the only question involved in the record.
The mortgage was so drawn as to specify the amount of indebtedness to each creditor specifically, and the plaintiff was by its terms made trustee for the' collection and payment of the amount owing to each. There is no legal objection to such a mortgage: Adams v. Niemann, 46 Mich. 137. And we think each mortgagee could enforce his own claim under the mortgage, his separate debt being clearly stated : Herm. Chat. Mortg. 357; Burnett v. Pratt, 22 Pick. 556; Gilson v. Gilson, 2 Allen, 115.
The inquiry then arises, conceding the Henry E. Porter indebtedness to be the individual liability of Taylor, and not a copartnership obligation, whether the insertion of his claim in the mortgage invalidates the whole transaction, and renders the security of the other creditors named therein void as against the attaching creditors. It is admitted that the plaintiff, the trustee named in the mortgage, knew the real character of the indebtedness secured to Henry E. Porter. , Put it does not appear from the record that in the insertion of his claim in the mortgage any fraud in fact was intended either by Taylor or the plaintiff. There is no doubt that the object of the mortgage, upon the part of the Detroit creditors, was to secure their valid and subsisting claims against the firm of Porter & Taylor ; and if they had supposed the joining of the Porter claim in the security would in law have invalidated the entire instrument, it would not have been so joined. It was a fraud in law rather than in fact; and it is a fraud as against creditors only because of the insolvency of the firm.
It does not seem equitable that the remaining bona fide creditors of the firm, who took this security for the very proper and legitimate purpose of securing their honest claims, should lose their security because of the illegal attempt of Taylor to secure his benefactor ; and, under the authorities, we think this joint mortgage, by its terms and conditions, can be treated in law the same as separate simultaneous mortgages of the different creditors, filed at the same time: Herm. Chat. Mortg. 357; Jones Chat. Mortg. § 50.
Therefore, the security of the others being valid, the defendant had no right to levy in the way he did, treating the whole mortgage as void. He should have levied subject to the mortgage, and in that event he could have proceeded as if the portion of the mortgage securing the Porter claim were invalid; but as it is, the defendant was not entitled to the instruction given by the court to the jury: Baldwin v. Talbot, 46 Mich. 19; Laing v. Perrott, 48 Mich. 298; Worthington v. Hanna, 23 Mich. 530 ; Harvey v. McAdams, 32 Mich. 472; Wilson v. Montague, 57 Mich. 638.
It is argued by the defendant’s counsel that the mortgage was fraudulent as against creditors, for various reasons assigned in their brief; but the questions of fraud therein raised were such as to require the intervention of a jury.
The judgment, therefore, must be reversed, and a new trial ordered, with costs.
The other Justices concurred. | [
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Campbell, C. J.
The purpose of this application is to obtain payment of a balance claimed to be due relator as holder of bills of the Government Stock Bank. The charter of that bank was adopted in 1819, and amended in 1850. Under the amended act, the bank was allowed to deposit government stocks with the state treasurer, and to have bills issued to the value of the stocks, countersigned by the state treasurer. New bills could be issued on the return of old ones to the treasurer. It appears from the public documents to which relator refers that the amount of bills lawfully outstanding at any one time did not exceed a little over $100,000.
During the year 1854 the stocks had been reduced by redemption and return of bills to between $30,000 and $40,-000. The bank not paying its bills on demand, proceedings were had in 1855 to sell the stocks, and notice was given tobillholders to present their bills for redemption within a time specified. In answer to this call, relator, on March 12, 1855, presented and had proved before the treasurer $1,384.75, and received a certificate to that effect. Upon the coming in of the bills it was discovered that, by some means or other, there was in circulation an amount of between $50,000 and $60,000 beyond what there should have been, so that the proceeds of the stocks only paid forty per cent, of the face of the bills. No judicial determination ever ascertained just how this happened, but it was practically established that the' excess was caused by stealing from the treasury vault — but when, or how often, or by whom, was not known — bills which had been returned and redeemed either by re-issues or by surrender of bonds. Delator has received his dividend of forty per cent. He now has demanded the balance from the state treasurer, who has no funds applicable to that purpose, and refuses to pay. This refusal is the occasion of the present application for a mandamus.
jit is extraordinary for a claimant to wait over thirty years before urging his demands, and we doubt very much whether any court would be justified in considering so stale a claim, unless where the public officers had been kept in condition to respond to it. But the ground on which relator plants himself would preclude judicial action entirely.
No mandamus can issue to a state officer to compel him to-perform any but some unquestionable and legally defined duty. Where a party has a right under statute to have the state treasurer pay him some definite amount, a mandamus may lie to require it. But where the liability of the State is not recognized by the State, no suit will lie to determine it, and what cannot be’done against the State directly cannot be done under color of suing a state officer: Michigan State Bank v. Hastings, 1 Doug. 226; Michigan State Bank v. Hammond, Id. 527 ; Ambler v. Auditor General, 38 Mich. 746; People ex rel. Chas. N. Ayers v. State Auditors, 42 Mich. 427. If such a claim as is now set up is not a definite and direct obligation which the State has not only assumed but authorized some one to pay, no judicial interference by mandamus or otherwise would be lawful.
The State never became responsible to make good the failure of the bank to pay its debts. The only responsibility it assumed was to receive and apply the bonds deposited to pay bills certified by the treasurer, as far as they would go towards satisfying them ; the balance being a personal debt against the bank stockholders, concerning whose solvency we know nothing, but whose liability has become outlawed by five full periods of limitation. There is no allegation and no reason to believe that any bills were ever issued by the treasurer in excess of the securities. The claim can only rest on the idea that the State is liable as an insurer against thefts from its treasury vaults, or that it is liable for the possible negligence of some of the treasury officials in not guarding their documents and vouchers, and stands like a private bailee who is supposed to have been negligent enough to be responsible. Tlfe facts, so far as laid before us, indicate that the vault was robbed, as far as they indicate anything.
We do not propose, on this motion, to consider whether such liabilities are recognized by governments at all, or, if so, under what circumstances. No private person or corporation could be sued after such a lapse of time, and it is not presumable that testimony now exists which could explain all the facts, so as to lead to a safe judgment upon them. We certainly cannot intermeddle, and, even if we thought the claim reasonable, we should decline the request to make any suggestion to the board of auditors. We cannot -undertake to say or to deny that they have authority to consider it. Relator must determine for himself whether he will seek their action.
The mandamus is denied.
The other Justices concurred. | [
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] |
Champlin, J.
Plaintiffs recovered judgment in the circuit court for the county of St. Clair in a suit commenced by attachment. The affidavit was made and writ issued January 18, 1884, and returnable February 5th of that year.
No personal service was obtained upon the defendants, but property belonging to the defendants was attached, and the proceedings thereafter to judgment were in conformity to the statute in cases where property is attached and no personal service is had.
Various irregularities are alleged in the proceedings, by reason of which it is claimed that such proceedings are rendered void for want of jurisdiction. The objection most relied upon is that the writ was prematurely returned. The return day was the fifth day of February, 1884. The-sheriff’s return states that “ I have, on this eighteenth day of January, A. D. 1884, attached the following property,” etc., and then it concludes: “ And I do further return that I am unable to find the defendants in said attachment named in the limits of my bailiwick. The answer of F. L. Follensbee, Sheriff.” This writ, with the return indorsed thereon, was filed in the clerk’s office on the fifth of February, that being the return day thereof.
It is insisted, that the return shows that the return of the sheriff that he was unable to find the defendants was made upon the eighteenth day of January. In this counsel for defendants is mistaken. The date at the commencement of the return refers to the time of seizure, and the further-return has no reference to the first date, but takes effect from the filing, which was on the return day. This construction is the natural one, and has its support in the presumption that the officer has done his duty.
It is further objected that the return should have stated ■that neither of the defendants could be found, and that a return that the defendants could not be found is not suffi-' cient; but we think that the greater includes the lesser, and, where there is more than one defendant, a return that the .sheriff cannot find the defendants in the attachment is equivalent to saying that neither could be found, and would be false if one was found or could be served.
Objection is also made by the defendants to the sale made by the sheriff under the execution.
The statute provides that when a copy of the attachment shall not have been served, and the defendant shall not have appeared in the suit, judgment shall be rendered, and execution may issue in the same form as if such copy had been personally served; but such judgment shall not be conclusive against the defendants, and such execution shall only Authorize the officer to whom it is directed to sell the property attached in such suit; and the attorney issuing the execution shall indorse thereon or annex thereto a description of the property so attached, with a direction to the officer to .sell the same, or so much thereof as may be sufficient to satisfy the execution, and not to levy the same, or any part •thereof, upon any other property: How. Stat. §§ 8008, '8009.
In this case the execution was issued upon the judgment and levy made upon the property attached, but without the indorsement thereof by the plaintiffs’ attorney required by .statute. This was a proceeding after the judgment was perfected, and it is not perceived how this objection can be taken advantage of upon writ of error. It certainly could ■not render the judgment and prior proceedings void, and while such non-compliance and proceeding under the execution might not afford a protection to the officer or attorney from damages for any injury arising from a failure to comply substantially with the terms of the statute, it does not ■constitute a ground for a reversal of the judgment.
There appearing to be no error in the record anterior to judgment, it is affirmed.
The other Justices concurred. | [
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Smolenski, J.
The prosecution appeals by right the trial court’s suppression of cocaine evidence obtained after a search of defendant Richard Reese’s car and the dismissal of the related charge against him for possession with the intent to deliver more than 50, but less than 450, grams of cocaine. MCL 333.7401(2)(a)(iii). On appeal, we must determine whether the discovery of a preexisting warrant, which was discovered only after the disclosure of Reese’s identity during an illegal arrest, is a sufficient intervening and untainted event to justify a subsequent search of Reese’s car. We conclude that, under the facts of this case, the preexisting warrant was an intervening, untainted justification for the search of Reese’s car. For that reason, we reverse the trial court’s orders suppressing the cocaine evidence and dismissing the charge against Reese and remand the case for further proceedings. This appeal has been decided without oral argument under MCR 7.214(E).
I. PACTS AND PROCEDURAL HISTORY
In September 2007, two Inkster police officers conducted a routine patrol of an apartment complex known for narcotics trafficking. When the officers arrived at the complex, they observed Reese in a taxicab parked in front of the complex. As the officers approached the cab, Reese shut off the engine and got out of the cab. An officer testified that, even before they asked him any questions, Reese asked, “What are you fucking with me for[?]” The officer stated that they informed Reese that the area was known for drug trafficking and asked him why he was there. Reese responded that he was visiting a friend. The officer testified that he then told Reese, “[EJither you’re going to go visit your friend, or you[’re] going to leave the area.” But Reese refused to do either. The officer stated that they informed Reese that he might be loitering if he remained. The officer described Reese as agitated, upset, and very nervous. He stated that, even after warning Reese that he might be loitering, Reese continued to hurl profanities at them and did not leave the area. So the officers arrested Reese for loitering.
After placing Reese under arrest for loitering, the officers asked Reese for identification, which he provided. The officers ran Reese’s information through the Law Enforcement Information Network (LEIN) and learned that Reese had an outstanding misdemeanor warrant. An officer informed Reese that he was also under arrest pursuant to the outstanding warrant. After arresting Reese and placing him in the police car, the officers called for a tow truck and performed an inventory search of Reese’s car. During the search, the officers found a duffle bag between the driver’s seat and the front passenger’s seat. The duffle bag contained men’s clothing and a brown paper bag with more than 120 grams of cocaine.
At Reese’s preliminary examination, the district court expressed its belief that the officers did not have grounds to arrest Reese for loitering. Nevertheless, the district court concluded that the officers had the right to search Reese’s car incident to his arrest pursuant to the outstanding warrant. For that reason, the district court bound Reese over to the circuit court on the charge of possession with the intent to deliver cocaine.
Reese’s counsel then moved to suppress the cocaine evidence and quash the information. The circuit court also expressed doubt about Reese’s arrest for loitering and remanded the case to the district court for a determination whether the police officers had probable cause to arrest Reese for loitering. On remand, the district court determined that Reese’s arrest for loitering was invalid.
After the district court’s determination, the circuit court heard further arguments concerning Reese’s motion to suppress the cocaine evidence. The circuit court concluded that, because Reese’s initial arrest was illegal, everything discovered as a result of that arrest had to be suppressed. For that reason, the circuit court granted Reese’s motion.
The trial court later dismissed the charges against Reese. The prosecution appealed.
II. SUPPRESSION OF EVIDENCE
A. STANDARD OF REVIEW
On appeal, the prosecution argues that the circuit court erred when it determined that the cocaine evidence had to be suppressed. Specifically, the prosecution argues that the only thing derived from the illegal arrest for loitering was Reese’s identity, which is not evidence. Because the police officers properly arrested Reese pursuant to the outstanding misdemeanor warrant, the prosecution further contends, the police could properly search Reese’s car incident to that arrest. This Court reviews a trial court’s factual findings in a suppression hearing for clear error, People v Jenkins, 472 Mich 26, 31; 691 NW2d 759 (2005), but reviews de novo the trial court’s ultimate ruling on the motion to suppress, People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005).
B. THE EXCLUSIONARY RULE
Both the United States Constitution and the Michigan Constitution protect persons against unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11; Jenkins, supra at 31. In order to lawfully arrest a person without a warrant, a police officer must “possess information demonstrating probable cause to believe that an offense has occurred and that the defendant committed it.” People v Champion, 452 Mich 92, 115; 549 NW2d 849 (1996). Once police officers lawfully arrest a person, the officers may search that person without further justification. Id. The permissible scope of a search incident to lawful arrest includes a search of the passenger compartment of a car recently occupied by the person arrested. People v Mungo, 277 Mich App 577, 585-586; 747 NW2d 875 (2008), citing Thornton v United States, 541 US 615, 622; 124 S Ct 2127; 158 L Ed 2d 905 (2004); see also New York v Belton, 453 US 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981).
However, evidence discovered in a search incident to an unlawful arrest may be subject to the exclusionary rule as the “fruit of the poisonous tree.” See Wong Sun v United States, 371 US 471, 487-488; 83 S Ct 407; 9 L Ed 2d 441 (1963). The exclusionary rule is a “judicially created remedy designed to safeguard against future violations of Fourth Amendment rights through the rule’s general deterrent effect.” Arizona v Evans, 514 US 1, 10; 115 S Ct 1185; 131 L Ed 2d 34 (1995). For that reason, its application has been restricted to “those instances where its remedial objectives are thought most efficaciously served.” Id. at 11. And whether application of the exclusionary rule is appropriate in a particular context is a separate inquiry from whether the police actually violated the Fourth Amendment rights of the person invoking the rule. Id. at 10. Further, not “all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” Wong Sun, supra at 488. Rather, whether the evidence must be suppressed depends on whether the evidence was discovered through “ ‘exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Id. (citation omitted); see also People v Lambert, 174 Mich App 610, 616-617; 436 NW2d 699 (1989).
In this case, the prosecution does not contest the district court’s determination that the police officers did not have probable cause to arrest Reese for loitering and, therefore, that that arrest was illegal. Hence, whether the circuit court properly suppressed the cocaine evidence depends on whether that evidence was only “ ‘come at by exploitation’ ” of the illegal arrest for loitering “ ‘or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun, supra at 488 (citation omitted).
C. INTERVENING CIRCUMSTANCES
After the officers unlawfully arrested Reese for loitering, they obtained Reese’s name and conducted a LEIN check. The LEIN check revealed that Reese had an outstanding misdemeanor warrant. On the basis of this information, the officers also arrested Reese for the misdemeanor. It was only after the officers informed Reese of this additional ground for his arrest that they proceeded to search his car and discovered the cocaine. Because the officers could lawfully search Reese’s car incident to his arrest pursuant to the outstanding warrant, Mungo, supra at 585-586, we must determine whether the discovery of this preexisting warrant constitutes an independent basis, which dissipates the taint from the initial illegal arrest, for conducting the search of Reese’s car.
On appeal, Reese notes that the police officers would not have been able to perform a LEIN check had they not learned his name, which they learned only after his illegal arrest. Because the discovery of his name was tainted by the illegal arrest, the discovery of the warrant was similarly tainted. For this reason, Reese contends, this Court must conclude that there was no basis for the search of his car. Although there are apparently no Michigan authorities directly on point, several foreign jurisdictions have confronted factual situations similar to this one.
A leading case on this issue is United States v Green, 111 F3d 515 (CA 7, 1997). In Green, two police officers on routine patrol observed a car ahead of them that one of the officers recognized as having been parked in front of the residence of a person wanted on a federal warrant. Id. at 517. The officers decided to follow the car on the chance that the wanted person might be in it or that the occupants might know that person’s whereabouts. After turning a corner, the driver of the car made a U-turn, turned abruptly onto another street, and stopped on a driveway. The officers followed the car and blocked the driveway with their car. Id.
The driver of the car, David Green, got out and began walking to the house, but stopped after one of the officers hailed him. Id. While one of the officers obtained David’s identification, the other obtained identification from David’s passenger, who turned out to be David’s brother, Avery. After checking the brothers’ identities in their computer system, the officers discovered that Avery had an outstanding warrant. Id. The officers then searched the car and discovered crack cocaine and a gun. Id. David was later convicted by a jury of charges related to his possession of the cocaine and the gun. Id. at 518.
On appeal, David argued that the trial court erred when it refused to suppress evidence of the gun and the crack cocaine seized after the illegal stop. Id. The court agreed with Green’s contentions that the stop was illegal and that “ ‘but for’ the illegal traffic stop, the police would never have discovered the cocaine and gun.” Id. at 520. But, citing Wong Sun, supra at 487-488, the court noted that the Supreme Court had rejected a simple causation analysis: “Thus, ‘[e]ven in situations where the exclusionary rule is plainly applicable, [the Supreme Court has] declined to adopt a “per se” or “but for” rule that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest.’ ” Id., quoting United States v Cecolini, 435 US 268, 276; 98 S Ct 1054; 55 L Ed 2d 268 (1978). Rather, the court stated, the proper question is whether the evidence came to light through exploitation of the illegal conduct or by means sufficiently distinguishable to be purged of the taint from the illegal conduct. Id. at 520-521, citing Wong Sun, supra at 488. The court further noted that “[e]vidence may be ‘sufficiently distinguishable to be purged of the primary taint’ if ‘the causal connection between [the] illegal police conduct and the procurement of [the] evidence is “so attenuated as to dissipate the taint” of the illegal action.’ ” Green, supra at 521, quoting United States v Liss, 103 F3d 617, 620 (CA 7, 1997), quoting United States v Fazio, 914 F2d 950, 957 (CA 7, 1990). The court then noted that there were three factors for determining “whether the causal chain has been sufficiently attenuated to dissipate the taint of illegal conduct: (1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of the intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” Green, supra at 521, citing Brown v Illinois, 422 US 590, 603-604; 95 S Ct 2254; 45 L Ed 2d 416 (1975).
In analyzing these factors, the court noted that the first factor weighed in favor of suppression, but that it was not dispositive on the question of taint. Instead, the court focused on the second and third factors. Green, supra at 521. With regard to the second factor, the court concluded that the discovery of the arrest warrant for Avery was an intervening circumstance that was not outweighed by flagrant official misconduct and, consequently, dissipated any taint caused by the illegal stop.
It would be startling to suggest that because the police illegally stopped an automobile, they cannot arrest an occupant who is found to be wanted on a warrant — in a sense requiring an official call of “Oily, Oily, Oxen Free.” Because the arrest is lawful, a search incident to the arrest is also lawful. The lawful arrest of Avery constituted an intervening circumstance sufficient to dissipate any taint caused by the illegal automobile stop. [Id.]
Finally, the court turned to the third factor, which it noted was “ ‘tied to the rationale of the exclusionary rule itself ” and aimed at exploring whether the police exploited their illegal conduct. Id. at 523, quoting Fazio, supra at 958. The court concluded that under the facts of the case, the police misconduct was not flagrant. The court explained that, although the stop was illegal, there was no evidence of bad faith on the part of the officers and the purpose of the stop was not to obtain evidence against the Greens. Green, supra at 523.
Nor did the police exploit the stop in order to search the automobile. Rather the search only came after they learned that Avery was wanted on a warrant and arrested him. While the officers learned of the outstanding warrant only after continuing the illegal detention, the arrest of Avery was not an exploitation of the illegal stop. [Id.]
For these reasons, the court concluded that Green was not entitled to have the cocaine and gun evidence suppressed. Id.
Courts in several jurisdictions have come to the same legal conclusion on facts analogous to those of Green. Of those courts, the Alaska Supreme Court’s analysis in McBath v State, 108 P3d 241 (Alas, 2005), is particularly informative.
The defendant in McBath was the passenger in a truck that was stopped for having an expired license plate. McBath, supra at 242. After stopping the truck, the police discovered that the driver was intoxicated and they arrested him. The police told McBath that he was free to go. Id. However, McBath then called out to the driver and asked him if there was anything that McBath should remove from the truck before it was towed. The driver asked McBath to remove a toolbox and an unopened 12-pack of beer. Id. The police were willing to permit McBath to remove the items, but insisted that he give his name first. When McBath first refused and later provided an unlikely name, the police decided to detain him. Id. at 242-243. McBath then revealed his real name and, after a computer search, the officers discovered that McBath had an outstanding warrant. The officers then arrested McBath on the warrant and searched his person only to discover methamphetamine. Id. at 243.
On appeal, McBath argued that the methamphetamine should have been suppressed as the fruit of the illegal stop. Id. The court in McBath examined Green, as well as severed foreign authorities, and concluded that the proper test for determining whether the methamphetamine should be suppressed must be determined by examining the Brown factors. Id. at 248, citing Brown, supra at 603. However, the court noted that the first Brown factor will invariably favor suppression because, in cases involving the discovery of a preexisting warrant, there will almost always be very little time between the illegal stop and the discovery of the warrant. Yet the court stated that “the courts that have considered this question have all but unanimously concluded that, in this kind of situation, the first Brown factor is outweighed by the others.” McBath, supra at 248.
The following rule emerges from these cases: If, during a non-flagrant but illegal stop, the police learn the defendant’s name, and the disclosure of that name leads to the discovery of an outstanding warrant for the defendant’s arrest, and the execution of that warrant leads to the discovery of evidence, the existence of the arrest warrant will be deemed an independent intervening circumstance that dissipates the taint of the initial illegal stop vis-a-vis the evidence discovered as a consequence of a search incident to the execution of the arrest warrant. [Id.]
Because it was persuaded that this rule was consistent with the policy behind the exclusionary rule, that is, to deter police misconduct, the court in McBath adopted the rule that “a pre-existing arrest warrant can (de pending on the circumstances) dissipate or attenuate the taint of a prior illegal stop.” Id. at 249. Because the police conduct was not flagrant or egregious under the circumstances and the search occurred only after the discovery of the arrest warrant, the court concluded that any taint from the illegal stop was too attenuated to affect the admissibility of the methamphetamine. Id. at 249-250.
We agree with the reasoning in McBath and Green and join those jurisdictions that hold that discovery of an outstanding arrest warrant can dissipate or attenuate the taint of an initial illegal stop or arrest. As the court in Jacobs v State, 128 P3d 1085, 1089 (Okla Crim App, 2006), aptly noted:
Our decision balances a defendant’s right against illegal search and seizure with the community’s expectation that a valid arrest warrant may he served upon a subject, even if police learned about the arrest warrant after an illegal stop. This rule discourages police from flagrantly illegal, investigatory seizures. At the same time, it does not attempt to punish police for mistakes or errors made in good faith. Such punishment would be unlikely to deter police misconduct.[ ]
D. APPLICATION OF THE LAW TO THE FACTS
Although courts confronted with this issue should examine each of the factors from Brown, whether the discovery of a preexisting warrant dissipates or attenu ates the illegality of the initial stop or arrest will usually depend on two main points: “(1) what evidence did the police obtain from the initial illegal stop before they discovered the outstanding arrest warrant, and (2) whether that initial illegal stop was a manifestation of flagrant police misconduct — i.e., conduct that was obviously illegal, or that was particularly egregious, or that was done for the purpose of abridging the defendant’s rights.” McBath, supra at 248 (emphasis in original). Purposeful and flagrant misconduct exists where “(1) the impropriety of the official’s misconduct was obvious or the official knew, at the time, that his conduct was likely unconstitutional” but engaged in it anyway, or where “(2) the misconduct was investigatory in design and purpose and executed ‘in the hope that something might turn up.’ ” United States v Simpson, 439 F3d 490, 496 (CA 8, 2006), quoting Brown, supra at 605. But where the police only discover the defendant’s identity as a result of the initial illegal stop or arrest, and the police misconduct was not particularly egregious or the result of bad faith, the discovery of a preexisting arrest warrant will constitute an intervening circumstance that dissipates the taint of the initial illegal stop or arrest. As such, evidence that is discovered in a subsequent search incident to the lawful arrest need not be suppressed.
In the present case, there is no evidence that the officers’ decision to initially speak to Reese was motivated by an improper purpose or that they improperly detained him. Indeed, the officers not only made it clear to Reese that he was free to go, they actually asked him to leave at least twice. There is also no evidence that the officers’ ultimate decision to arrest Reese for loitering was motivated by an investigatory purpose — a desire to discover Reese’s identity for a LEIN check or as a pretext to search his car. And, although the decision to arrest Reese for loitering may have been influenced by Reese’s belligerent refusal to move along, there is also evidence that the officers genuinely believed that Reese committed the offense of loitering. See Simpson, supra at 496. Hence, the misconduct at issue was not flagrant or particularly egregious and may have been the result of a mistaken belief about the nature of the loitering offense. Furthermore, even though the officers placed Reese under arrest for loitering, they did not immediately search his car. Instead, they obtained his name and conducted a LEIN check, which revealed an outstanding misdemeanor warrant. It was only after the officers placed Reese under arrest pursuant to the outstanding warrant that they searched his car and discovered the cocaine.
Because the officers’ initial misconduct — the arrest for loitering — was not particularly egregious or motivated by bad faith and only yielded Reese’s identity, the subsequent discovery of the preexisting arrest warrant was not tainted by the illegality of that initial arrest. As such, the discovery of the preexisting warrant constituted an intervening circumstance that broke the causal connection between the illegal arrest and the discovery of the cocaine evidence. Because the search was independently justified as a search incident to the lawful arrest on the warrant, Reese was not entitled to have the cocaine evidence suppressed.
III. CONCLUSION
In the absence of egregious conduct on the part of the arresting officers, the discovery of the preexisting war rant dissipated any taint occasioned by Reese’s illegal arrest for loitering. Accordingly, the circuit court erred when it concluded that the cocaine was the fruit of Reese’s illegal arrest and suppressed the cocaine evidence and dismissed the possession of cocaine with the intent to deliver charge on the basis of that conclusion. Therefore, we reverse the circuit court’s decisions to suppress the cocaine evidence and dismiss the charge against Reese, and we remand the case for further proceedings consistent with this opinion.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
On appeal, Reese argues that he did not actually have a misdemeanor warrant outstanding at the time of his arrest. However, even if we were to conclude that the LEIN check was inaccurate, that alone would not necessitate the exclusion of evidence discovered after a search incident to an arrest based on that information. See Arizona v Evans, 514 US 1, 15-16; 115 S Ct 1185; 131 L Ed 2d 34 (1995) (refusing to apply exclusionary rule to evidence found after a search incident to an arrest based on a quashed warrant where there was no evidence that “the arresting officer was not acting objectively reasonably when he relied upon the police computer record”); United States v Leon, 468 US 897; 104 S Ct 3405; 82 L Ed 2d 677 (1984) (refusing to apply the exclusionary rule to evidence found in the execution of a search warrant, which was later determined to be invalid, where the police officers acted in objectively reasonable reliance on the search warrant); see also People v Goldston, 470 Mich 523; 682 NW2d 479 (2004) (adopting a good faith exception to the exclusionary rule). Instead, if the police officers relied in good faith on the information provided by the LEIN check, the evidence would not be subject to the exclusionary rule. Evans, supra at 15-16. Because there is no evidence that the arresting officers were not acting objectively reasonably when they relied on the information provided by the LEIN check, even if the arrest based on the warrant disclosed by the LEIN system were unlawful, the cocaine evidence discovered as a search incident to that arrest would not be subject to the exclusionary rule. For that reason, the primary issue on appeal remains whether the discovery of the cocaine was the result of the exploitation of Reese’s illegal arrest for loitering.
See, e.g., State v Mien, 222 Or App 71, 79; 191 P3d 762 (2008) (noting that the discovery of outstanding arrest warrants and their execution are intervening events that interrupt the causal connection between the seized evidence and the prior illegal stop); Myers v State, 395 Md 261; 909 A2d 1048 (2006); State v Frierson, 926 So 2d 1139, 1144-1145 (Fla, 2006) (relying on Green and refusing to suppress the evidence because, although the officer made a mistake in the enforcement of the traffic laws, there was no evidence that the stop was a pretext or made in bad faith); United States v Simpson, 439 F3d 490 (CA 8, 2006) (citing Green with approval and concluding that, where the officers did not knowingly act unconstitutionally and did not purposefully act in an effort to gain evidence, the discovery of a preexisting warrant will constitute an independent basis for questioning and searching the defendant); Jacobs v State, 128 P3d 1085 (Okla Crim App, 2006); State v Page, 140 Idaho 841, 846; 103 P3d 454 (2004); Hardy v Commonwealth, 149 SW3d 433, 436 (Ky App, 2004); Quinn v State, 792 NE2d 597 (Ind App, 2003); Fletcher v State, 90 SW3d 419 (Tex App, 2002); State v Jones, 270 Kan 526, 529; 17 P3d 359 (2001) (relying on Green and concluding that, because there was no evidence of bad faith on the part of the officer, once he discovered the outstanding warrant, the officer had the right and duty to arrest the defendant and effect a subsequent search); People v Murray, 312 Ill App 3d 685, 691-692; 728 NE2d 512 (2000) (characterizing the notion that the police cannot arrest a person on a valid warrant after an illegal stop as “illogical and nonsensical”); State v Hill, 725 So 2d 1282, 1287 (La, 1998); Ruffin v State, 201 Ga App 792; 412 SE2d 850 (1991); State v Thompson, 231 Neb 771; 438 NW2d 131 (1989); State v Lamaster, 652 SW2d 885 (Mo App, 1983); People v Hillyard, 197 Colo 83; 589 P2d 939 (1979); State v Rothenberger, 73 Wash 2d 596, 598; 440 P2d 184 (1968) (stating that the suggestion that officers may not make an arrest on a valid warrant after an illegal stop as “indescribably silly”); see also United States v Hudson, 405 F3d 425, 438 (CA 6, 2005) (approvingly citing Green, but concluding that a stop to see if the person stopped is the person named in a warrant is illegal and that the evidence discovered incident to a subsequent arrest must he suppressed); State v Soto, 143 NM 631; 179 P3d 1239 (2008) (concluding that a search subsequent to discovery of a preexisting search warrant was tainted where the purpose of the stop was to run a warrant check). But see Sanchez v State, 803 NE2d 215, 222 (Ind App, 2004) (declining to follow Quinn).
We are also mindful of the serious implications that would follow from a contrary holding: “For example, if the police illegally detain a suspect and discover arrest warrants, may they release the suspect and re-arrest him and then conduct a legal search? If not, is he forever immune from the consequences of a search incident to a subsequent arrest under those same warrants? If so, when can they re-arrest him? After he steps outside the door of the police station? A block away? The same day?” Fletcher, supra at 421.
Had the officers searched Reese’s car under authority of the illegal arrest and only later discovered the preexisting warrant, the discovery of the preexisting arrest warrant could not have served to dissipate or attenuate the illegality of the arrest and, accordingly, the cocaine evidence would clearly have been the “fruit” of the illegal arrest. See McBath, supra at 249. | [
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Whitbeck, J.
In this case involving the termination of parental right to an Indian child, respondent Theresa Finfrock appeals as of right the trial court order terminating her parental rights to her daughter Ashtyn Jasmin Roe. The trial court terminated Finfrock’s rights after finding that her rights to another child had been terminated because of physical abuse and that prior attempts to rehabilitate her had been unsuccessful. As the Indian Child Welfare Act (the ICWA) requires, the trial court further found that continued custody by Finfrock was likely to result in serious emotional or physical damage to the child. On appeal, Finfrock argues that the trial court erred by failing to require petitioner Department of Human Services (the Department) to prove that it made “active efforts” to provide the remedial services and rehabilitative programs that the ICWA required. Finfrock further argues that the trial court clearly erred when it found that Finfrock’s continued custody was likely to result in serious emotional or physical damage to the child. We conclude that the ICWA requires the trial court to make findings regarding whether the Department made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and regarding whether those efforts proved unsuccessful. Because the trial court did not make these findings, we vacate its order terminating Finfrock’s parental rights and remand the case for further proceedings consistent with this opinion.
I. BASIC FACTS AND PROCEDURAL HISTORY
Ashtyn Roe was born to Finfrock and Samuel Roe in October 2007. Ashtyn Roe was Finfrock’s third child. Finfrock’s first child, Daniel Finfrock, was born in April 1997. Finfrock’s second child, Aliyah Bertrand, was born in August 2000.
Daniel Finfrock had several developmental handicaps and required considerable care. In January 2005, he died from intracranial trauma. Finfrock and her then-boyfriend, Steven Perrault, were Daniel Finfrock’s only caregivers on the day that he sustained his injuries. Daniel Finfrock’s death was later ruled a homicide.
After Daniel Finfrock’s death, the Department sought the termination of Finfrock’s parental rights to Aliyah Bertrand. And in July 2005, a tribal court terminated Finfrock’s rights to Aliyah Bertrand after Finfrock failed to comply with her service plan.
Shortly after Ashtyn Roe’s birth, the Department petitioned the Chippewa Circuit Court, Family Division, to terminate Finfrock’s parental rights to this child. In the petition, the Department alleged that Daniel Fin-frock died from intracranial trauma that was later ruled a homicide. It further alleged that Finfrock and Perrault told tribal police and the FBI that they were the only caregivers for Daniel Finfrock on the day he was injured. The petition noted that the criminal investigation into Daniel Finfrock’s death remained unresolved. The petition also alleged that Finfrock’s parental rights to Aliyah Bertrand had been terminated in July 2005 and that Finfrock had failed to comply with the service plan put in place for her at that time. Finally, the petition alleged that Samuel Roe was convicted of attempted fourth-degree criminal sexual conduct with a 14-year-old in 1996 and that he and Finfrock still resided together. On the basis of these allegations, the Department asked the trial court to terminate Fin-frock’s parental rights to Ashtyn Roe under MCL 712A.19b(3)(i). At a December 2007 hearing, Finfrock admitted these allegations and agreed to the trial court’s jurisdiction.
The trial court held a termination trial in January 2008. At the trial, Robyn Hill, who was the foster care worker assigned to Finfrock’s case in 2005, testified that the tribal court had terminated Finfrock’s parental rights to her older daughter, Aliyah Bertrand. Hill also testified about her work with Finfrock. Hill noted that Finfrock had a history of choosing relationships with men that had histories of domestic violence. Hill expressed concern about Finfrock’s new relationship with a man who had a criminal sexual conduct conviction.
David Babcock testified that he was a protective services worker for the Department. He stated that he was concerned about Finfrock’s new relationship and by her recent conviction for furnishing alcohol to a minor. Babcock indicated that Daniel Finfrock’s death was a serious concern because Finfrock may have had a direct role in his death or, at the very least, contributed to it through her relationship with a man that she knew was abusive. Babcock opined that Finfrock’s newest relationship was another poor choice and reflected a continuing pattern of behavior that placed her children at risk. Babcock testified that Finfrock minimized the risks posed by her relationships. Babcock also expressed concern that, although she was able to reiterate the things that were taught to her in her parenting and substance abuse classes, Finfrock did not seem to be able to incorporate those concepts into her day-to-day living.
Lori Tomkinson, the foster worker assigned to this case, testified that Finfrock stated that she did not really know why her parental rights to her older daughter were terminated, but later admitted that she did not comply with the plan’s requirement that she leave Perrault. Tomkinson stated that Finfrock also admitted that she left her handicapped son with a man who was abusive towards her.
Martha Snyder testified as an expert on Indian child law. She stated that Finfrock’s conduct was definitely not within the parental norms of the tribal community. She testified that Finfrock appeared to put her own needs first and that she doubted that Finfrock could ever place her children’s needs ahead of her own. Snyder opined that, if returned to her mother, Ashtyn Roe would be in danger of serious emotional, physical, and mental harm. She also indicated that she believed that the Department had met the reasonable requirements to keep the family intact, given Finfrock’s knowledge of or involvement in Daniel Finfrock’s death.
In addition to this testimony, there was testimony that established that Finfrock had obtained some mental health services and had successfully participated in a drug court program. Indeed, Finfrock’s therapist testified that Finfrock had been discharged from therapy and that she had begun to realize that she did not need another person to make her whole. Further, Finfrock’s mother testified that Finfrock had changed her lifestyle and that she was not making the same choices that she used to make. She also stated that she knew Samuel Roe and that he did not exhibit the controlling and violent behavior that Perrault did. Finally, Finfrock herself testified about the changes she had made for herself. Finfrock stated that she had worked on the issues that had plagued her in the past and that she would now live her life in a good way.
In February 2008, the trial court issued its opinion from the bench. The trial court found that the provisions of MCL 712A.19b(3)(i) had been proved beyond a reasonable doubt, stating, “There had been a case service plan. There had been a death of one child, neglect of the other, and efforts to rehabilitate the [mother] were unsuccessful, resulting in termination ... so that part of the statute has been complied with beyond a reasonable doubt.” The trial court then turned to the ICWA’s requirements. After summarizing the record evidence, the trial court concluded that “the evidence establishes beyond a reasonable doubt... that the custody of this child by the respondent mother is likely to result in serious emotional or physical damage to the child.” For this reason, the trial court terminated Finfrock’s parental rights to Ashtyn Roe. Finfrock now appeals as of right.
II. THE ICWA
A. STANDARD OF REVIEW
Finfrock argues that the trial court erred when it terminated her parental rights to Ashtyn Roe without requiring the Department to prove beyond a reasonable doubt that it made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of her Indian family and that these efforts proved unsuccessful. More specifically, Finfrock alleges three specific errors in this regard. First, she contends that the trial court failed to make specific findings regarding whether active efforts were made and had proven unsuccessful before it proceeded with the termination. Second, she argues that the efforts the Department provided as part of a prior termination case will not satisfy the requirements of § 1912(d) of the ICWA. Rather, she argues, the Department must provide new efforts for each case, which the Department did not do in this case. Third, she argues that the evidence the Department presented at trial was insufficient to prove beyond a reasonable doubt that the efforts the Department actually provided were unsuccessful. Each of these errors, Finfrock contends, warrants reversal of the trial court’s decision to terminate her parental rights.
This Court reviews for clear error a trial court’s decision terminating parental rights. “A circuit court’s decision to terminate parental rights is clearly erroneous if, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.” However, this Court reviews de novo questions of law, such as the proper interpretation of the ICWA.
B. THE ICWA REQUIREMENTS
Congress enacted the ICWA in response to evidence of abusive child welfare practices in the states that resulted in the separation of large numbers of Indian children from their families and tribes. The ICWA does not entirely displace the application of state child custody laws to proceedings involving Indian children. But it does impose certain mandatory procedural and substantive safeguards. Thus, although due process normally only requires that a state prove a ground for termination by clear and convincing evidence, under the ICWA, “[n]o termination of parental rights may be ordered... in the absence of a determination, supported by evidence beyond a reasonable doubt ... that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Additionally, under the ICWA:
Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.[ ]
It is undisputed that the provisions of the ICWA apply to this case involving an Indian parent and her child.
C. THE TRIAL COURT’S FACTUAL FINDINGS ON ACTIVE EFFORTS
As stated, under the plain language of § 1912(d) of the ICWA, the Department had the burden of proving that “active efforts have been made” to prevent the breakup of Finfrock’s family and “that these efforts have proved unsuccessful.” Further, because the Department must “satisfy” the trial court that the active efforts were made and were unsuccessful in order “to effect” the termination, the trial court had to find specifically that the Department had made active efforts and that these efforts were unsuccessful before it could proceed with the termination of Finfrock’s parental rights.
Contrary to the contentions of the Department, the child’s guardian ad litem, and the Sault Ste. Marie Tribe of Chippewa Indians (the Tribe), the trial court did not make the findings required under § 1912(d) of the ICWA. The Department and the Tribe correctly note that the trial court mentioned that there “had been a case service plan” and that “efforts to rehabilitate the [mother] were unsuccessful.” But the trial court did not make these statements as part of findings concerning the requirements of § 1912(d) of the ICWA. Rather, the trial court made these remarks in the context of its finding that the Department had proved the statutory grounds for termination under MCL 712A.19b(3)(i). Indeed, there is nothing in the trial court’s opinion that even suggests that it was aware that it had to make findings under § 1912(d) of the ICWA. Manifestly, therefore, the trial court failed to make the requisite findings under § 1912(d) of the ICWA.
Because the trial court did not make the requisite findings under § 1912(d) of the ICWA, it lacked the authority to proceed with the termination of Finfrock’s parental rights. Therefore, we reverse the trial court’s decision to terminate Finfrock’s parental rights to Ashtyn Roe and remand this case to the trial court for the necessary factual findings under § 1912(d) of the ICWA.
Given our resolution of this issue, we decline to address Finfrock’s contention that the trial court clearly erred when it found that her continued custody of Ashtyn Roe would likely result in serious emotional or physical damage. On remand, the trial court will again have the opportunity to consider the facts and make a finding concerning the likelihood of serious emotional or physical damage. However, because the parties disagree about the nature of the findings required by § 1912(d) of the ICWA and the proper burden of proof, and because those disagreements are likely to reoccur on remand, we address the parties’ remaining arguments on the proper application of § 1912(d) of the ICWA.
D. THE APPLICABLE STANDARD OF PROOF
The parties disagree about the standard of proof applicable to the trial court’s findings under § 1912(d) of the ICWA. Finfrock contends that the requirements of § 1912(d) must be proven beyond a reasonable doubt. In contrast, the Tribe and the child’s guardian ad litem contend that the Department’s burden under § 1912(d) need only be proven by clear and convincing evidence and that this Court’s previous applications of a beyond a reasonable doubt standard were incorrect.
We note that this Court, in In re Morgan, simply adopted the beyond a reasonable doubt standard applied by the South Dakota Supreme Court in In re SR without actually analyzing whether that was the proper standard. In that case, the South Dakota Supreme Court noted that Congress did not specify a standard of proof for determinations made under § 1912(d) of the ICWA. Nevertheless, without engaging in any analysis, the court stated that it “assume[d] that the same burden required to prove serious emotional or physical harm under § 1912(f), beyond a reasonable doubt, would also be required to prove active efforts by the party seeking termination.” Other states, however, have rejected application of that standard. For example, in In re Walter W, the Nebraska Supreme Court rejected application of a beyond a reasonable doubt standard to determinations under § 1912(d), explaining:
Congress did not intend in 25 USC § 1912 to create a wholesale substitution of state juvenile proceedings for Indian children. Instead, in § 1912, Congress created additional elements that must be satisfied for some actions but did not require a uniform standard of proof for the separate elements. As discussed, Congress imposed a “beyond a reasonable doubt” standard for the “serious emotioned [or] physical damage” element in parental rights termination cases under § 1912(f). Congress also imposed a “clear and convincing” standard of proof for the “serious emotional or physical damage” element in foster care placements under § 1912(e). The specified standards of proof in subsections § 1912(e) and (f) illustrate that if Congress had intended to impose a heightened standard of proof for the active efforts element in § 1912(d), it would have done so.[ ]
Because Congress did not provide a heightened standard of proof for § 1912(d) of the ICWA, the Nebraska Supreme Court declined to read the beyond a reasonable doubt standard into the statute. Instead, the court determined that the default standard of proof for all termination of parental rights cases applied.
We agree with the Nebraska Supreme Court’s analysis: Congress clearly demonstrated its ability to impose a particular standard of proof for the elements required under the ICWA. But Congress chose not to do so for the § 1912(d) “active efforts” determinations. Therefore, we conclude that this Court in In re Morgan and in In re Kreft incorrectly adopted a beyond a reasonable doubt standard of proof for these determinations. This Court issued both of these decisions before November 1, 1990, and there are no published decisions after that date applying the beyond a reasonable doubt standard to determinations under § 1912(d) of the ICWA. Therefore, we are not bound by precedent to apply this standard of proof. We hold that the proper standard of proof for determinations under § 1912(d) of the ICWA is the default standard applicable to all Michigan cases involving the termination of parental rights. That standard is proof by clear and convincing evidence.
E. THE “ACTIVE” EFFORTS REQUIREMENT
The parties also disagree about whether the active efforts must be part of a service plan offered in connection with current proceedings. We conclude that formal or informal services provided before the current proceeding may meet the “active efforts” requirement of § 1912(d) of the ICWA. Further, we conclude that, where there is clear and convincing evidence that the provision of additional services would be futile, that finding can meet the requirements of § 1912(d).
Subsection 1912(d) of the ICWA clearly places the burden on the party seeking termination to satisfy the trial court that active efforts to provide the required services have been made and that they were unsuccessful. But the statute does not provide guidance concerning the nature or extent of the active efforts necessary to satisfy the requirement or the timing within which those efforts must be made. The statute merely requires proof that “active efforts have been made to provide remedial services or rehabilitative programs” to prevent the breakup of the Indian family at some point before termination and that the efforts “proved unsuccessful.” Hence, there is no precise formula for determining what constitutes sufficient “active efforts.”
Our colleague in her thoughtful dissent concludes that the term “active efforts” “embodies a temporal component” and should be interpreted as requiring current, or contemporaneous, rehabilitation efforts. We respectfully disagree. We acknowledge that the term “active” may be “characterized by current activity, participation, or use.” However, because a Michigan court has not yet interpreted the term “active efforts,” we may look to other jurisdictions for guidance. In keeping with the majority of jurisdictions that have previously addressed this issue, we hold that the Department need not show temporally concurrent “active” efforts with each proceeding under the ICWA.
Most notably, in In re KD, the Colorado Court of Appeals explicitly concluded that the “ ‘active efforts’ required by § 1912(d) of the ICWA need not be part of a treatment plan offered as part of the current dependency proceedings.” Accordingly, the court held that, because of the extensive, but unsuccessful, services that the social services department provided to the father during two previous dependency cases, it would be an “ ‘exercise in futility’ ” to offer another treatment plan.
Several other jurisdictions have also held that, although § 1912(d) of the ICWA requires “active efforts,” it does not require a social services department to “ ‘persist with futile efforts.’ ” For example, in EA v Div of Family & Youth Services, the Alaska Supreme Court held that where parental rights have already been terminated with respect to one or more children, the court “may consider the degree of the state’s efforts to prevent the breakup of the entire family in assessing whether that effort was sufficient under ICWA.” The court noted that the Division of Family and Youth Services (DFYS) had “expended substantial efforts over the last decade to prevent the breakup of [the] family, without success.” The court further stated that, therefore, “[t]here [was] no reason to think that either an additional psychological evaluation or an additional seven months of intervention would have prevented” the termination.
Similarly, in Letitia V v Superior Court of Orange Co, the California Court of Appeals addressed “whether ‘active efforts’ within the meaning of ICWA require reunification services be provided for each individual child or, put another way, whether the state is free to consider what it defines as recent but unsuccessful reunification efforts with the same parent but a different child sufficient to satisfy the mandate of [25 USC 1912(d)] with regard to a sibling.” Stating that “[t]he law does not require the performance of idle acts,” and noting the drain on resources that the provision of further services would put on an already strained dependency system, the court held that additional services were not necessary where the service provider had already spent years providing unsuccessful services that did not benefit the parent.
In keeping with these jurisdictions, we conclude that the ICWA does not require current active efforts “ ‘if it is clear that past efforts have met with no success.’ ” Thus, where a parent has consistently demonstrated an inability to benefit from the Department’s provision of remedial and rehabilitative services, or has otherwise clearly indicated that he or she will not cooperate with the provision of the services, a trial court’s finding that additional attempts to provide services would be futile will satisfy the requirements of § 1912(d) of the ICWA. Nothing in § 1912(d) precludes the Department from seeking termination of parental rights where active efforts to reunite the family have proven unsuccessful in the past. “ ‘A child should not be required to wait for parents to acquire parenting skills that may never develop.’ ”
Thus, we conclude that nothing within § 1912(d) of the ICWA requires the Department to provide duplica tive remedial or rehabilitative services. Subsection 1912(d) does not specify the time within which the active efforts must have been made. Rather, it only requires that the trial court be satisfied that the Department, in fact, made such active efforts before the trial court may proceed. Construed in context, § 1912(d) only requires “that timely and affirmative steps be taken to accomplish the goal which Congress has set: to avoid the breakup of Indian families whenever possible by providing services designed to remedy the problems which might lead to severance of the parent-child relationship.” For these reasons, the fact that the Department provided particular services in connection with a prior proceeding does not necessarily preclude such services from meeting the “active efforts” requirement in a current proceeding. Rather, the Department “may engage in ‘active efforts’ by providing formal or informal efforts to remedy a parent’s deficiencies before dependency proceedings begin.” Whether the prior services were timely and sufficient will depend on the facts specific to the case.
Accordingly, we decline to employ a definition of “active” that stresses a temporal requirement. In the context of the ICWA, we read the term “active” as being “marked by or disposed to direct involvement or practical action.” In other words, we read the “active efforts” requirement as imposing an obligation on the Department to take an involved, rather than a passive, approach when providing remedial services and reha bilitative programs to an Indian family. We note that in AA v Div of Family & Youth Services the Alaska Supreme Court specifically adopted this active versus passive interpretation, stating:
Passive efforts are where a plan is drawn up and the client must develop his or her own resources towards bringing it to fruition. Active efforts, the intent of the drafters of the Act, is where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own. For instance, rather than requiring that a client find a job, acquire new housing, and terminate a relationship with what is perceived to be a boyfriend who is a bad influence, the Indian Child Welfare Act would require that the caseworker help the client develop job and parenting skills necessary to retain custody of her child.[ ]
Similarly, in In re JS, the Oklahoma Court of Civil Appeals explained as follows:
Used in § 1912(d) as an adjective modifying “effort,” the common and ordinary meaning of “active” means “characterized by action rather than contemplation or speculation” or “participating,” Webster Third New International Dictionary 22 (1986), and “causing action or change,” “effective,” or “active efforts for improvement,” The American Heritage Dictionary 7 (1986). As the Alaska Supreme Court in A.A. v. State of Alaska recognized, the opposite or antonym of “active” is “passive.” See The New Webster Encyclopedic Dictionary of the English Language (1980).[ ]
Stated another way, “active efforts” requires more than simply pointing the parent in the right direction, it “requires ‘leading the horse to water.’ ”
We further note that the majority of jurisdictions interpret “active efforts” as imposing a higher burden than various states’ “reasonable efforts” requirement, and that numerous courts have required that the service provider “provide culturally relevant remedial and rehabilitative services to prevent the breakup of the family.”
In sum, on remand, the trial court must determine whether there was clear and convincing evidence that the Department met its burden under § 1912(d) of the ICWA. In doing so, the trial court should consider the adequacy of the past provisions of remedial services to Finfrock, taking into account the extent of the Department’s efforts and their cultural relevance. The trial court may also consider evidence that the provision of additional services to Finfrock would be futile.
III. CONCLUSION
Because the trial court failed to make the factual findings required by 25 USC 1912(d), it could not proceed to terminate Finfrock’s parental rights to Ashtyn Roe. Consequently, we reverse the trial court’s decision, vacate the termination order of February 1, 2008, and remand for further proceedings consistent with this opinion.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
MARKEY, EJ., concurred.
MCL 712A.19b(3)(i).
25 USC 1901 et seq.
See 25 USC 1912(f).
See 25 USC 1912(d).
See 25 USC 1912(d).
MCR 3.977(J); In re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407 (2000).
In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003).
In re Fried, 266 Mich App 535, 538; 702 NW2d 192 (2005).
25 USC 1901; Mississippi Band of Choctaw Indians v Holyfield, 490 US 30, 32; 109 S Ct 1597; 104 L Ed 2d 29 (1989).
Mississippi Band of Choctaw Indians, supra at 36; In re Elliott, 218 Mich App 196, 201; 554 NW2d 32 (1996).
Santosky v Kramer, 455 US 745, 747-748; 102 S Ct 1388; 71 L Ed 2d 599 (1982).
25 USC 1912(f).
25 USC 1912(d) (emphasis added).
See 25 USC 1903.
In re SD, 236 Mich App 240, 244-245; 599 NW2d 772 (1999) (noting that active efforts are normally required before termination of parental rights, hut concluding that § 1912[d] did not apply to the facts of the case because termination would not break up an Indian family). See also In re Walter W, 274 Neb 859, 862-863; 744 NW2d 55 (2008) (noting that, in addition to the state elements required to terminate parental rights, the ICWA imposes two additional elements: the active efforts element and the serious emotional or physical damage element); In re JS, 177 P3d 590, 591 (Okla Civ App, 2008) (noting that the active efforts requirement is a predicate finding that the trial court must make before a termination case may proceed).
In re SD, supra at 244.
See 25 USC 1912(f).
See In re Kreft, 148 Mich App 682, 693; 384 NW2d 843 (1986); In re Morgan, 140 Mich App 594, 604; 364 NW2d 754 (1985).
In re Morgan, supra at 604, citing In re SR, 323 NW2d 885 (SD, 1982).
In re SR, supra at 887.
Id.
See In re Walter W, supra at 864 n 9, 864-865 (listing jurisdictions that have rejected the heyond a reasonable doubt standard for determinations made under § 1912[d] and joining that group). See also In re Michael G, 63 Cal App 4th 700, 709-712; 74 Cal Rptr 2d 642 (1998) (rejecting the line of authorities that impose a heightened burden of proof on determinations under § 1912[d]).
In re Walter W, supra at 864-865.
Id. at 865.
Id.
MCR 7.215(J)(1).
See In re Trejo Minors, supra at 356-357.
See In re Walter W, supra at 865 (noting that the language “sets out praiseworthy but vague goals for the courts to enforce,” which fail to give guidance “in determining whether the Department’s efforts were sufficient to meet ICWA’s mandates”).
25 USC 1912(d).
Post at 122.
Random House Webster’s College Dictionary (1997) (citing as examples, “active member” and “active account”).
People v Rogers, 438 Mich 602, 609; 475 NW2d 717 (1991).
In re KD, 155 P3d 634, 637 (Colo App, 2007).
Id. (stating that “the court may terminate parental rights without offering additional services when a social services department has expended substantial, but unsuccessful, efforts over several years to prevent the breakup of the family, and there is no reason to believe additional treatment would prevent the termination of parental rights”).
Id., quoting In re JSB, 691 NW2d 611, 621 (SD, 2005), and citing In re PB, 371 NW2d 366, 372 (SD, 1985) (stating that a social services department is not charged with “the duty of persisting in efforts that can only be destined for failure”). See also In re Nicole B, 175 Md App 450, 472; 927 A2d 1194 (2007) (“[T]he requirement of ‘active efforts’ does not require ‘futile efforts.’ ”).
EA v Div of Family & Youth Services, 46 P3d 986, 991 (Alas, 2002).
Id.
Id., citing NA v Div of Family & Youth Services, 19 P3d 597, 603-604 (Alas, 2001) (stating that there is no reason to think that the DFYS’s failure to enroll the parent in yet another residential dual-treatment program would have resulted in a more successful outcome),.and KN v Alaska, 856 P2d 468, 477 (Alas, 1993) (noting that “[although ... DFYS might have done more, it is unlikely that further efforts by DFYS would have been effective in light of [the parent’s] attitude”).
Letitia V v Superior Court of Orange Co, 81 Cal App 4th 1009, 1016; 97 Cal Rptr 2d 303 (2000).
Id., citing AA v Div of Family & Youth Services, 982 P2d 256, 262 (Alas, 1999) (additional services not required where parent demonstrates “lack of commitment to treatment”); AM v Alaska, 945 P2d 296, 305 (Alas, 1997) (in determining sufficiency of remedial efforts, court may consider a parent’s demonstrated lack of willingness to participate in treatment); In re Annette P, 589 A2d 924, 928-929 (Me, 1991) (finding prior remedial efforts sufficient where parents failed to cooperate with case worker or demonstrate interest in reunification); In re ARP, 519 NW2d 56, 60-62 (SD, 1994) (finding that the efforts made in siblings’ cases were sufficient to justify the termination of parental rights without the provision of additional remedial services); In re SR, supra at 887 (finding active efforts within the meaning of the ICWA after repeated but unsuccessful steps were taken to encourage the mother to take advantage of available treatment programs); CEH v LMW, 837 SW2d 947, 957 (Mo App, 1992) (additional remedial programs not required where prior “efforts became futile and proved unsuccessful”); State ex rel Juvenile Dep’t of Multnomah Co v Woodruff, 108 Or App 352, 357; 816 P2d 623 (1991) (additional services not required by ICWA where parents with long history of alcohol and drug abuse had received prior services).
In re KD, supra at 637, quoting In re Adoption of Hannah S, 142 Cal App 4th 988, 998; 48 Cal Rptr 3d 605 (2006).
See Wilson W v Office of Children’s Services, 185 P3d 94, 101-103 (Alas, 2008) (holding that the Office of Children’s Services was not required to keep trying to provide services to a violent and uncooperative parent once it became clear that the attempts would be futile).
See In re Romano, unpublished opinion per curiam of the Court of Appeals, issued December 11, 1998 (Docket No. 207482). Although nonbinding, we find this statement from this unpublished opinion persuasive. MCR 7.215(C)(1); Dyball v Lennox, 260 Mich App 698, 705 n 1; 680 NW2d 522 (2003).
In re ARP, supra at 62 (quotation marks and citation omitted).
See Letitia V, supra at 1016.
Id.
In re KD, supra at 637.
Wilson W, supra at 101; In re Walter W, supra at 865.
Random House Webster’s College Dictionary, p 13 (citing as example, “active support”).
AA, supra at 261 (quotation marks and citation omitted). See also In re AN, 325 Mont 379, 384; 106 P3d 556 (2005) (“The term active efforts, by definition, implies heightened responsibility compared to passive efforts. Giving the parent a treatment plan and waiting for him to complete it would constitute passive efforts.”).
In re JS, supra at 593.
Id. at 594.
In re Nicole B, supra at 471 (“The majority of courts that have considered the ‘active efforts’ requirement... have determined that it sets a higher standard for social services departments than the ‘reasonable efforts’ required by state statutes.”). See also Winston J v Dep’t of Health & Social Services, 134 P3d 343, 347 n 18 (Alas, 2006); MW v Dep’t of Health & Social Services, 20 P3d 1141, 1146 n 18 (Alas, 2001); In re Walter W, supra at 865; In re JS, supra at 593.
Carson P ex rel Foreman v Heineman, 240 FRD 456, 474, 500 (D Neb, 2006) (emphasis added). See also In re Walter W, supra at 865 (“[A]t least some efforts should be ‘culturally relevant.’ ”); In re Michael G, supra at 714 (stating that “the court should take into account “the prevailing social and cultural conditions and way of life of the Indian child’s tribe,” and that remedial services should “involve and use the available resources of the extended family, the tribe, Indian social service agencies and individual Indian care givers”) (quotation marks and citation omitted); In re Welfare of Children of SW, 727 NW2d 144, 150 (Minn App, 2007) (stating that “active efforts” are “thorough, careful, and culturally appropriate efforts”) (quotation marks and citation omitted). | [
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Fead, J.
The action is for negligence in causing the death of James LeDuc, six years old. Defendant had directed verdict.
A vacant lot in Detroit had been used as a playground by the neighborhood children for some years. In the fall, the boys would cut and burn the grass and weeds, the city would flood the lot with water, and nature would make a skating rink. For a few days prior to Sunday, November 28,1926, defendant had been engaged in repair work in the street corner immediately adjoining the lot. In the course of its operations it used a work cart holding a supply of gasoline. The faucet was operated by a removable key and could be opened by such a key as is used in the home on water taps. On Saturday, the cart was left for the week-end on the parkway between the sidewalk and street, on the same side as the vacant lot but across an alley.
Sunday afternoon, 15 to 20 boys, ranging from 14 years of age down, were engaged in pulling' and burning grass and weeds on the lot. An 8-year old boy had a mouse in a bottle and was using a water key as a stopper. Some one of the boys suggested they get gasoline to aid the burning. One of the older boys, unidentified, took the water key from the boy with the mouse and several gathered cans nearby, went to defendant’s cart, the older boy opened the faucet, and many carried gasoline to the fire. James LeDuc came up and watched the burning but had no part in it. As a 10-year old boy was bringing a can of gasoline to the lot, a 14-year old boy tried to take it from him, in the struggle he struck the can, the contents splashed over James, caught fire, and he was burned so severely he died from the injuries.
We are unable to find in the record any testimony supporting the claim that there had been a fire on the lot while defendant’s employees were working in the vicinity, nor that they had seen any children burning weeds or grass thereon at any time.
The case takes us into the field of ‘ ‘ attractive nuisances” and related law, upon which the conflict of judicial opinion ranges from ostensible repudiation of the doctrine to its acceptance to an extreme degree. All sorts of instrumentalities and conditions have been held attractive nuisances, from the most common objects to a charming girl. Johnson v. Atlas Supply Co. (Tex. Civ. App.), 183 S. W. 31. The liberal decisions took impetus from the so-called “turntable cases” (Railroad Co. v. Stout, 17 Wall. [U. S.] 657), from which later, however, the court found it proper to partially recede (United Zinc & Chemical Co. v. Britt, 258 U. S. 268 [42 Sup. Ct. 299, 36 A. L. R. 28]). And several of the courts have expressed the opinion that the doctrine has gone too far and should be restricted rather than extended. The subject is exhaustively annotated in notes in 36 A. L. R. 34; 39 A. L. R. 486; 45 A. L. R. 982; 53 A. L. R. 1344; 60 A. L. R. 1444.
This court has recognized and applied, but conservatively, the law of attractive nuisances. The doctrine has not been permitted to seriously impair the rule that a property owner owes no duty to protect trespassers, adult or infant, from injury other than wanton or wilful, as has been done in some States.
The attractive nuisance doctrine was announced in Powers v. Harlow, 53 Mich. 507 (51 Am. Rep. 154), but seems to have hibernated for a season. The turntable cases were expressly disapproved in Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310, 92 Am. St. Rep. 481), and the trespass rule was applied to children both in going upon real property (Peninsular Trust Co. v. City of Grand Rapids, 131 Mich. 571), and in playing upon a flat car in the street (Kaumeier v. Railway Co., 116 Mich. 306 [40 L. R. A. 385, 72 Am. St. Rep. 525]). See, also, Stark v. Muskegon Traction & Lighting Co., 141 Mich. 575 (1 L. R. A. [N. S.] 822); Preston v. Austin, 206 Mich. 194.
Both doctrines were considered in O’Leary v. Michigan State Telephone Co., 146 Mich. 243 (two justices dissenting). Defendant was working in the street with block and tackle. The operators knew children were playing about the snatch block, but left it unguarded. A child took hold of the rope near the block while it was at rest, the team was started without warning to the children, and plaintiff’s hand was drawn into the pulley. The court differentiated the two lines of cases in these words:
“The case of Powers v. Harlow is an authority in this State, and is supported by the great weight of authority in this country and in England. The present case differs from Kaumeier v. Railway Co. and other cases cited in appellant’s brief in that here the owner of the property was present, operating the property, and the plaintiff was where he had a right to be. The plaintiff was in the public highway, where he had as much right to be as defendant’s employees, and while his laying his hand upon the cable was technically a trespass, it was no more so than taking the exploder cap from the box in the case of Powers v. Harlow. Plaintiff’s mere technical trespass did not set in motion, as in the cases cited, the agencies which caused his injury; those agencies were brought into operation and controlled by defendant’s employees. There is reasonable ground for distinction between a case where something is left in the highway which can only injure a child by his meddling with it and putting it into operation in the absence of the owner or person having it in charge and a case like the present when the owner is present operating the apparatus and has actual notice that the children are attracted by the tackle and will play with it unless prevented.”
Thereafter the doctrines had a vigorous battle. The court divided evenly in Iamurri v. Saginaw City Gas Co., 148 Mich. 27, where children climbed on a gas wagon in the street and caused an explosion by dropping a match into an open, vent. The trespass rule was applied in Reid v. Harmon, 161 Mich. 51 (turntable), but the attractive nuisance theory prevailed over it in Anderson v. Newport Mining Co., 202 Mich. 204 (three justices dissenting), (dynamite cap); Jaworski v. Detroit Edison Co., 210 Mich. 317 (poles negligently piled in the street to form a teeter); and Butrick v. Snyder, 236 Mich. 300 (dynamite cap). However, the cases affirming liability recognized the trespass rule and the point of dis tinction is this: Where the child is where he has a right to be, as in the street or as a licensee on private premises, and his trespass is technical rather than wilful, i. e., consists of playing with or taking the property of another as the spontaneous and natural act of an irresponsible child immediately attracted to the object, recovery is not barred by the trespass.
This court has been conservative also in declaring objects, especially common things, attractive to children as á basis for imposing upon the owner a duty to guard them against injury. The attraction has been denied in Kaumeier v. Railway Co., supra (flat car in street); Czarniski v. Security Storage & Transfer Co., 204 Mich. 276 (moving van); Jackson v. Mills Baking Co., 221 Mich. 64 (26 A. L. R. 906), (electric truck); Belisle v. Jones, 224 Mich. 191 (automobile).
The accident at bar was most distressing, but defendant cannot be held responsible for it except for negligence in failing to perform a legal duty. Butrick v. Snyder, supra. The immediate cause of the injury was the act of the other boys in taking defendant’s gasoline and their negligence in spilling it over plaintiff’s decedent. Their acts control plaintiff’s right of recovery, because, even if defendant had been negligent, the intervening acts of the boys broke the legal connection between defendant’s conduct and the injury, unless the boys were irresponsible agents or mere conduits to carry the effect of defendant’s negligence to James LeDuc.
The case may be disposed of under our decisions on the ground that the cart did not constitute an attractive nuisance, and the trespass of the boys in opening the faucet and taking the gasoline was actual and not technical. They were not attracted to the cart in play, nor did the train of events which led to the injury start from a spontaneous and irresponsible taking of an enticing object. The cart was a thing apart from their activities, and they went to it merely as a source of supply for the predetermined purpose^ of obtaining gasoline. Nor were the agencies which caused the injury “brought into operation and controlled by defendant’s employees,” as in O’Leary v. Michigan State Telephone Co., supra.
However, even under the liberal doctrine of attractive nuisances, the case lacks so many of the conditions of liability stressed by the courts as to clearly preclude recovery. Thus —
It was not shown, as in Peirce v. Lyden, 85 C. C. A. 312 (157 Fed. 552), and Shaffer Oil & Refining Co. v. Thomas, 120 Okla. 253 (252 Pac. 41), relied on by plaintiff, that prior to the accident children had been playing around the cart and taking gasoline, from which defendant knew or was chargeable with notice of the practice and incurred the duty to anticipate a continuance of the custom and to take special precautions against injuries to children therefrom.
It was not shown that the manner of guarding, which need not be “child proof,” 45 C. J. p. 782, was not considered in the business a careful practice, nor that it had been insufficient in other cases.
Plaintiff left upon the cart or accessible no tool to open the faucet, and it was not shown, nor can the court take notice, that the instrument used was an ordinary part of the contents of a boy’s pocket, varied as they usually are, or was commonly possessed by children.
The faucet was not opened in- the course of the investigation and experimentation of an irresponsible child but by an instrument, the intentional selection and use of which demonstrated a considerable degree of mechanical skill and intelligence.
The gasoline was not taken in the ordinary course of childish play about the machine but as the deliberate, understanding and conscious appropriation of the goods of another for a definite use elsewhere.
The boy who opened the faucet and induced the taking of the gasoline was not identified and shown to have been of tender years.
The injury to plaintiff’s decedent did not result from any effect of the gasoline unknown to the boys who took it, nor different from the purpose for which it was taken, nor from any inherent danger ignorantly released.
Between defendant’s acts and the injury was the intervening conduct of the boys, who knew the effect of the contact of the gasoline and fire, in opening the faucet, taking the gasoline to another place where it became dangerous, and their negligence in handling it. Jackson v. Mills Baking Co., supra; Beetz v. City of Brooklyn, 10 App. Div. (N. Y.) 382 (41 N. Y. Supp. 1009); 23 L. R. A; (N. S.) 249, note.
Individually, some of these elements are not vital but others are, and, in combination, they are fatal to recovery. Imposition of liability on defendant in this case would carry the doctrine of attractive nuisance beyond that of any reported case and would result substantially in creating a duty upon owners of vehicles in the highway to insure children against the opportunity to hurt themselves.
Judgment is affirmed, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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Potter, J.
Plaintiff sued defendant in assumpsit to recover unpaid rent due under a lease of premises in Detroit. Defendant appeared, pleaded the general issue, and gave notice of the special defenses of novation, set-off and recoupment. Plaintiff had summary judgment. On defendant’s motion this judgment was set aside, whereupon plaintiff again had summary judgment. Defendant brings error, claiming his affidavit of merits was sufficient to entitle him to a trial; that no evidence was introduced entitling plaintiff to summary judgment; that the court should have allowed defendant’s claims of set-off and recoupment. Defendant’s affidavit of merits sets forth the facts tending to show a novation, hut this seems to have been adjudicated in a prior suit between the same parties from the judgment in which suit no appeal was taken. Defendant’s affidavit of merits contains allegations of plaintiff’s slander of defendant, damages resulting from which are sought to be set off, but damages resulting from slander cannot be set off in defense of an action of assumpsit. 3 Comp. Laws 1929, § 14132. Defendant claimed he had been garnisheed for the rent due .plaintiff. This defense, it has been held, cannot be raised. Jackson Reinforced Concrete Pipe Co. v. Central Contracting & Engineering Co., 253 Mich. 157. Defendant had judgments, for costs against plaintiff which he sought to set off. While this was permissible (3 Comp. Laws 1929, § 14132), it was not necessary to establish defendant’s right of set-off. Defendant could issue execution on these judgments. Executions between the same parties may be set off against each other by the sheriff. 3 Comp. Laws 1929, § 14550. No other questions need discussion. Judgment affirmed, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred. | [
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Potter, J.
Plaintiff sued defendant Midwest Commercial Credit Company in municipal court of Jackson in trespass on the case for the conversion of two automobile trucks. Subsequently defendant Gilbert Loomis Motors Company was joined as a defendant. Both defendants pleaded the general issue.' Plaintiff recovered a judgment in the municipal court against the Midwest Commercial Credit Company, which appealed to the circuit court, where the trial judge directed a verdict for the Midwest Commercial Credit Company against plaintiff, who brings error. Plaintiff gave a chattel mortgage to the Gilbert Loomis Motors Company for $695 on the truck here in question, which chattel mortgage was assigned by it to the Midwest Commercial Credit Company. This chattel mortgage was collateral to a promissory note of like amount, payable $69.50 June 10,1910, and in like amount each month there after. The note contained the usual acceleration clause and was likewise assigned. June 12, 1930, plaintiff offered to pay the first payment.
Defendant Midwest Commercial Credit Company, upon default made in payment on time, declared the whole amount due upon the chattel mortgage and repossessed itself of the property, and, plaintiff says, gave him a few days in which to get the money. Defendant’s agent says he told plaintiff he- would give him ten days to do so. If plaintiff had 'made a tender of the amount due upon the mortgage before the property was sold on the chattel mortgage, it would have discharged the lien of the Midwest Commercial Credit Company. The question is whether, under the circumstances, the making of a tender by plaintiff was excused. Plaintiff testifies, and it is not disputed, that he procured the money, so he was later ready, able, and willing to make a tender, and went to the office of the Midwest Commercial Credit Company to do so. At that time there had in fact been no foreclosure of the chattel mortgage; no sale either public or private of the* property mortgaged. The property was under the control of the defendant Midwest Commercial Credit Company. Its agent falsely stated to plaintiff the property had been sold and it was too late for him to redeem. If the property had been sold in pursuance of the chattel mortgage, the right of redemption would have been extinguished, and plaintiff could not recover; but, under the chattel mortgage to be foreclosed by the sale of the property either at public or private sale, the plaintiff was entitled to redeem therefrom upon' paying at any time before sale the amount due.
Can defendant, who had not in fact sold the property when its agent told plaintiff it had sold it, now insist a tender should have been made by plaintiff'? Defendant cannot take advantage of the false representations by its agent to plaintiff. It cannot gain a benefit from its own wrong. It cannot profit by its own fraud. It cannot insist upon a lien which would have been discharged by tender but for the false representations of its agent. We must treat the chattel mortgage at the time plaintiff sought to make a tender as unforeclosed; hold a tender made would have discharged defendant’s lien; the subsequent sale by defendant of the property amounted to a conversion thereof, and defendant is liable to the plaintiff for its conversion. Defendant cannot, after its agent made the false representations, under circumstance's leading the plaintiff to rely thereon, be heard to say plaintiff ought not to have been misled.
The truck was not sold until June 25, 1930, when it was sold for $800. The testimony shows the truck was worth from $1,200 to $1,500'. The mortgage provides that, upon taking possession of the truck, the mortgagee may sell the same either at private or public sale. Plaintiff claims under the circumstances appellee is liable for a conversion of the truck. Defendant claims it was not guilty of a conversion by refusing to turn the truck over; that trover will not lie against one in actual possession of property which he has a right to retain for the satisfaction of his lien. Card v. Fowler, 120 Mich. 646.
"We must treat "the parties as if a tender had been made before sale. Defendant is liable to plaintiff in damages. Judgment reversed, with costs, and new trial ordered.
Butzel, C. J., ánd Wiest, Clark, McDonald, Sharpe, North, and Fead, JJ., concurred. | [
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] |
Fead, J.
This is a bill, filed February 25, 1930, in aid of execution. The court accepted defendants ’ testimony, which was substantially undisputed, and dismissed the bill.
On July 9, 1929, plaintiffs brought suit against Lester Gitre for rent due on a lease expiring in 1932. About October 11th the attorneys, Lester Gitre, and his son Stanley had a- conference, in which Lester proposed surrender of the lease and his own discharge from further liability on it. The offer was refused, plaintiffs ’ attorney insisting on the obligations of the lease, pointing out that Lester was financially respqnsible through ownership of a large number of lots.in Gitre Park subdivision in Detroit, and that plaintiffs would look to the lots for satisfaction of the rent due and to become due.
On November 5th, Lester conveyed, partly to Stanley and partly to his nephew Delos, the Gitre Park lots and other property in Michigan, California, and Canada. There was some indefinite testimony of his retaining a piece of land near Niles, Michigan, which he later sold, but the property was not identified as to character, value, or time of sale sufficiently to warrant its consideration here in mitigation of the effect of the conveyances at bar.
Plaintiffs levied on the Gitre Park lots which, in his pleadings, Stanley stated are worth $100,000. The separate value of the lots deeded to Stanley and Delos respectively was not shown. Plaintiffs claimed the transfers were in fraud of creditors. Defendants claimed, they were tona fide and for valuable and adequate consideration. Lester Gitre did not testify. As the conveyances present different considerations, they will be treated separately.
Delos Gitre Deeds
Delos claims to hold as trustee for his father, George Gitre. In 1926, George transferred these Gitre Park lots to. Lester in at .least partial fraud of creditors. On the same day, Lester deeded them back to George. George said he held the deeds unrecorded to prevent his wife and her children from taking an interest in them. When Lester became financially involved in 1929 and something had to be done about the record title, instead of recording the deeds a new conveyance was made from Lester to Delos in verbal trust for George, in order to escape the wife’s claim. The unrecorded deeds were destroyed by the attorney who conducted the conveyances. The trust has become written by the pleadings in this case.
The testimony did not show that Lester was given credit by plaintiffs upon the strength of the record title of these lots, and the question of the rights of the parties, had such credit been given, is not before us. Nor are we here concerned with the rights of George’s wife. We agree with counsel for George and Delos Gitre that, through the unrecorded deeds, George had title, it was not restored to Lester by the destruction of the deeds, and George is still the owner of the lots. Tabor v. Tabor, 136 Mich. 255. As Lester did not own the lots, they are not subject to execution against him.
As to this property the decree will be affirmed, but without costs.
Stanley Gitre Deeds
Defendants claimed they paid fair consideration for these conveyances, running both from Stanley and his mother to Lester, The deeds covered sey eral lots in Ontario as well as those in Gitre Park. The claimed considerations were:
First: Debt owing by Lester to Stanley for work. Stanley was born in 1907. Prom the time he was 14 years old he worked in his father’s drug stores after school, Saturdays, and during vacations, receiving board and room and wages of $18, increasing to $35 per week, until about 1925. He attended school and a military academy until he was about 18, when he was sick for approximately six months, and then worked on his father’s poultry farm until it was sold, some seven months after Stanley became of age. He said his father promised him for his labor a $12,000 drug store and the $70,000 chicken farm. On receiving the deeds in 1929, he released his father from the oral agreement and all claims for labor and otherwise. The value of his services was not shown.
Second: Debt owing by Lester to his wife for labor. When Lester and Mrs. Gitre were married, they were poor and Mrs. Gitre worked for their mutual benefit, aiding her husband in accumulating his property. She took boarders and roomers to finance an education for him and later worked in the drug stores. She claimed the value of her services as part consideration for the transfer to Stanley, but offered no evidence of their worth.
Lester and his wife were not happy together. Mrs. Gitre had filed suit for divorce in 1926, and later discontinued it. She testified that, in connection with the reconciliation in 1926, Lester promised to put all of his property in their joint names. However, no conveyances were actually made to her, as in the cases relied on by defendants, and the oral agreement neither gave her title nor created a debt from her husband to her.
Third: Property settlement on wife. In connection with the conveyances on November 5, 1929, Lester and Stanley executed an agreement, not referred to in the deeds, reciting that Lester was about to remove from the city, wanted to permanently provide for the support of his wife, Stanley was willing to assume the burden in consideration of the transfer of the property, that the transfer was accordingly made, Stanley agreed to support his mother for the balance of her life, the obligation to be charged against the real estate conveyed, and Stanley should always hold at least $10,000 in fair value of the real estate for the protection of Lester and the mother in the faithful performance of the agreement of support. Mrs. Gitre executed a consent to the instrument, in full of all her claims for dower, alimony, support, and share in the real estate and property accumulated by Lester and herself through their joint efforts.
Fourth: Defendants claimed Stanley gave his father $390 and Mrs. Gitre gave him $1,500 to invest in some lots with the understanding that title would be taken in their joint names, but Lester did not do this, and the property was later disposed of by him.
Plaintiffs made a prima facie case under 3 Comp. Laws 1929, § 14617, and the burden then rested on defendants to show that the conveyances were bona fide. This means that defendants had the burden of producing credible evidence of a bona fide conveyance. It is true that when such showing is made the presumption vanishes and is not to be weighed against the evidence (Schick v. Levine, 247 Mich. 595; Corbett v. Williams, 248 Mich. 541), but this does not relieve defendants of the burden of pro ducing evidence of the existence 'of every essential of good faith.
From the sequence of events, it is plain that both Lester and Stanley intended to put the property beyond plaintiffs’ reach. Their evident purpose was to make a property settlement with Mrs. Gitre, provide for Stanley, and leave plaintiffs’ claim unpaid.
Where no rights of creditors intervene, a transfer from father to son in payment of services is lawful and the adequacy of the consideration unimportant. Even a gift is legal. But where creditors are interested, the transaction is subject to close scrutiny and the fairness of the consideration material. Where it assumes to be in payment of an antecedent debt, the consideration must be not ‘ ‘ disproportionately small as compared with the value of the property or obligation obtained.” 3 Comp. Laws 1929, § 13394.
There was no evidence of the value of the services performed by Stanley nor of the worth of the property received by him from which the fairness of the consideration may be found. The proposition that the services of a schoolboy have been of sufficient value to his father to constitute an adequate consideration for the properties Stanley claimed his father agreed to convey to him is so far outside the ordinary run of human experience that the court cannot take judicial notice of the adequacy, but affirmative evidence would be required to justify a holding that it was fair. First National Bank v. Engel, 245 Mich. 185. Defendants did not sustain the burden' on this item of consideration.
Aside from the fact that there was no. evidence of their value, the services performed by Mrs. Gitre for her husband afforded no consideration for the transfer.- The right of a married woman to the “earnings acquired by any such married woman as the result of her personal efforts,” 3 Comp. Laws 1929, § 13061, covers services performed by her for others than the family as well as apart from her household duties. Gregory v. Oakland Motor Gar Co., 181 Mich. 101; Sorensen v. Sorensen, 211 Mich. 429; In re Moon’s Estate, 219 Mich. 104. The statute does not convert the marital relationship into a business partnership nor raise a money debt from husband to wife for her services to him, even though they take her outside the strict ambit of the domestic circle, and consist of aid to him in his business.
Nor did the agreement of the son to support the mother furnish a consideration for the transfer. The contract purported to release Lester Litre from performance of a future duty to his wife, so he would retain the continuing benefit of his property, a benefit which belongs to his creditors. Aside from the exemptions allowed by law, all property of a debtor is subject to the claims of creditors, and those claims cannot be defeated by a conveyance which secures to the grantor the future fruits of the property. Walker v. Cady, 106 Mich. 21; Rynearson v. Turner, 52 Mich. 7; 27 C. J. p. 559; Annis v. Bonar, 86 Ill. 128; Bank of Versailles v. Guthrey, 127 Mo. 189 (29 S. W. 1004, 48 Am. St. Rep. 621).
In view of the court’s acceptance of defendants’ testimony and the failure of- plaintiffs to present circumstances which tend to contradict the cash items of $390 and $1,500, respectively, they must be held proved. However, it was not shown that the Ontario real estate is not ample to compensate for these advances and they cannot be allowed as against the Litre Park lots.
As to the conveyances to Stanley Gitre, the decree will be reversed and one may be entered subjecting the property to plaintiffs’ levy, with costs against both Lester and Stanley.
Attachment Proceedings
On March 3, 1930, plaintiffs commenced another action against Lester Gitre for rent due and to become due under the lease, and levied an attachment on the Gitre Park lots. Stanley Gitre filed petition for dissolution of attachment under 3 Comp. Laws 1929, § 14810, which changed the former law, 3 Comp. Laws 1915, § 13075, to permit such petition to be filed by “any other person not a party to the suit” whose property is attached. After partial hearing, counsel stipulated that the testimony given in the chancery suit be used as a basis for determination of the petition. On finding Stanley’s title good, the court dissolved the attachment and plaintiffs review by certiorari, submitted herewith.
Counsel raised many points as to practice, which need not be considered because, as we have found that Lester Gitre’s deed to Stanley is void as to creditors, it follows that the order dissolving the attachment will be set aside, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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McDonald, J.
(dissenting). This is an appeal by the defendants from a decree awarding damages to the plaintiffs against defendant Charles Jirasek for $60,623.09 and setting aside as fraudulent a quitclaim deed from him to Joseph Jirasek and Julia, his wife.
The controversy grew out of an alleged conspiracy between Charles Jirasek, Gustav Peeters, and two bank tellers of the Detroit Savings Bank which resulted in a loss to the bank of $59,777.67. The plaintiffs had furnished the bank with indemnity bonds. They paid the loss and took an assignment of the bank’s claims against Peeters and Jirasek and the two tellers. Jirasek is the only one of the parties concerned in this suit. The plaintiffs began attachment proceedings against him in the Wayne circuit court and attached certain land in Oakland county known as the Sylvan Shores property. They subsequently learned that Sylvan Shores had been deeded by Charles Jirasek to his brother Joseph Jirasek and wife. Alleging that this transfer was fraudulent as to creditors, this bill was filed to have the deed set aside and for a money decree against Charles Jirasek. The attachment suit in the Wayne circuit court has been brought to an issue and is now pending awaiting trial by jury.
The vital proposition in the case is whether this deed is fraudulent as to creditors, and, in discussing that question, it will be necessary to make a further statement of the facts.
The defendant Charles Jirasek was engaged in the real estate business, associated with John C. Hoskins of Pontiac, Michigan. They organized and operated real estate corporations, bought and sold property, and were generally successful. Jirasek had relatives in the city of Detroit who became interested in the business to the extent that they advanced money^in various sums which Charles was to invest for them. It was taken and used by him for the firm in the purchase of real estate with the understanding that when a sale was made of any property, to the purchase of which they had contributed, the amount of their contributions together with their share of the profits should be paid to them. In some transactions there were large profits, but Mr. Hoskins wanted to retain all of the money in the business. He .recognized their interest but deferred payment. Finally Jirasek secured a power of attorney from each of the relatives and began suit against Hoskins for an accounting. A settlement agreement was reached by which the Sylvan Shores property, valued at $200,000 but subject to liens amounting to $42,000,. was deeded to Jirasek in full for his interest and that of his relatives. They received no money. Charles Jirasek testified that while negotiations for settlement were pending,
“I discussed with my relatives the proposed settlement as agreed upon and it was agreed between us that Sylvan Shores property was to be security for the amount owing to them.
“Q. And in that discussion between you and your relatives, state what was agreed upon between you with reference to the giving of the quitclaim deed * * * by you to Joseph Jirasek and his wife. * * *
“A. We have discussed that and I was to give them the deed as security and then handle the property and sell it until they will be paid, to pay their claims and whatever will be over that, why, will be mine. ’ ’
Joseph Jirasek is attorney for the Studebaker Corporation in Detroit. He also had invested in the business. He testified as to how it came that he received the deed.
“Ever since the time when Charlie received a settlement in the case against Hoskins, the settlement consisted of the Sylvan Shores subdivision, there was talk between me and my relatives, who had an interest in this Sylvan Shores subdivision, as to the necessity for some sort of security to be given by Charlie, inasmuch as this money was in his hands for a long period of time. * * *
“Q. State if that was the talk. * * *
“A. The talk was some security should be given by Charlie for us all to protect ourselves in case something should happen to him * * *. In talking with Charles I spoke that it would be the thing to give a quitclaim deed solely as security for the obligation he owed my relatives and myself.
“Q. State whether or not you were looking after the matter for your relatives.
“A. Yes, sir.
“Q. State whether or not they left that matter in your hands.
“A. They did.
“Q. Now, * * * • state the amount you claim is owed to you and your relatives for the payment of which that deed was given. * * *
“A. $120,000, * * * consisting of the invest ments, original investments, plus the profits ever since the moneys have been handled by Charles.”
The settlement with Hoskins was máde in December, 1928. The deed was made to Joseph January 22, 1929, and delivered to him at his office in Detroit on the same day. On January 30, 1929, the plaintiffs attached an automobile belonging to Charles and served process on him. On the following morning, he told Joseph he was going to Pontiac and offered to take the deed and have it recorded. It was recorded at 8:40 a. m., and at 2:30 p. m. the plaintiffs attached the land conveyed. On these facts, the trial court found that the conveyance to Joseph was not made in good faith to secure an indebtedness to the relatives, that it was fraudulent' as to creditors and should be set aside. We are unable to agree with his finding.
The indebtedness to the relatives of Charles Jirasek was not something framed up for a defense in this case. It had existed for several years. At the insistence of Hoskins, it had been carried along by the firm until the suit for an accounting. At the time of the settlement, Charles Jirasek receipted for the relatives and they surrendered to Hoskins certain shares of stock which they held in one- of the firm’s corporations. They received no money; but all understood that they were to be paid out of the Sylvan Shores property which was deeded to Charles by Hoskins. It is true that the deed to Joseph was not given until about the time when plaintiffs levied their attachment, but, under the circumstances, that fact is not inconsistent with good faith in giving the conveyance. It is quite probable that Joseph, who represented himself and the other relatives, was willing to leave matters as they were so long as Charles was successful in his real estate business. But, when financial difficulties arose, he concluded that, with the title in Charles, their interests in the Sylvan Shores property might be in danger. He discussed the matter with the relatives and it was decided to ask for a quitclaim deed as security. There is no doubt that at this time Charles Jirasek owed Joseph and the other relatives a large sum of money, a considerable portion of which had gone into the purchase of the Sylvan Shores property. It was not only proper that he should ask for security but it was good business. If Joseph Jirasek’s testimony is true, there can be no question as to the good faith of the transaction. We see no reason to doubt it. He and the other relatives were bona fide creditors. Their claim was pre-existing. Charles Jirasek had a right to secure them by this conveyance though his act in doing so was to prefer them to other creditors. Shelton v. Mann, 85 Mich. 265; Fassbender v. Donohue, 184 Mich. 52; Jordan v. White, 38 Mich. 253; Iosco County Savings Bank v. Barnes, 100 Mich. 1; McMorran v. Moore, 113 Mich. 101.
While the deed in question is absolute on its face, the testimony shows that it was given as security for a debt and is therefore held to be a mortgage. On this ground it is sustained. It was not fraudulent as to creditors.
In view of this disposition of the case, it will not be necessary to discuss any of the other questions presented by the record. Ño relief can be granted.
In the opinion filed by my Brother North he has reached a wrong conclusion in holding that this quitclaim deed given to secure a debt is fraudulent as to other creditors. That there was no fraud even in his view of the facts is apparent from the following statement which I quote from his opinion :
“We think it conclusively appears that the quitclaim deed (mortgage) was given in good faith to secure payment of an antecedent debt due from Charles to his relatives, and it cannot be said from this record that the amount of the debt was disproportionately small as compared with the value of the property mortgaged. Charles had the right to give preference to certain of his creditors ■ if he so desired.”
If this is a correct statement of the facts, and there is no doubt of it, how can it be said that the deed is fraudulent? My brother’s conclusion is inconsistent with' his findings on the facts. Though he says that the quitclaim deed was given in good faith to secure a debt; that it was for a fair consideration; and that Charles had a right to thus secure this debt in preference to the debts of other creditors, he holds that it was fraudulent as to these other creditors. How he reaches this conclusion appears in the following statement quoted from his opinion:
“There was absolutely no consideration for Charles’ conveyance of his equity over and above the amount he owed to his relatives.”
The obvious answer to this statement is, that the instrument is a mortgage and there was no. conveyance of an equity. Charles still owns an interest in the property and that interest is covered by the attachment filed before the commencement of this suit. All he did by executing the quitclaim deed was to give his relatives a lien to secure their debt; It is difficult to follow my brother in his attempt to find fraud in an instrument which he says is a legally perfect mortgage.
In my judgment, the quitclaim deed is not fraudulent as to creditors and therefore the plaintiffs cannot ask to have their claims determined on the equity side of the court. All the relief which under my brother’s theory they could obtain in equity can be obtained in the pending attachment suit. Their re lief is for a money judgment. In the absence of fraud, equity cannot retain jurisdiction to grant that relief. Koontz v. Bay Circuit Judge, 224 Mich. 463; Wisper v. Dix-Ferndale Land Co., 241 Mich. 91.
A decree should be entered dismissing the bill, with costs- to defendants.
Clark, J., concurred with McDonald, J.
North, J. (for modification). I am unable to agree with the conclusion of Mr. Justice McDonald that plaintiffs ’ bill of complaint should be dismissed. In an opinion filed by him the circuit judge made the following determinations:.
(1) That the defendant Charles Jirasek was a party to the fraudulent conspiracy which rendered plaintiffs herein -liable to the Detroit Savings Bank for the resultant loss.
(2) That the quitclaim deed of property known as Sylvan Shores in Oakland county from Charles Jirasek to his brother Joseph is in fact and in law a mortgage, that, it was not made in good faith as security for prior indebtedness of Charles Jirasek to his relatives and is void as against plaintiffs’ claim.
(3) That “it is true relatives (of Charles Jirasek who now claim prior rights under this quitclaim deed as a mortgage) had advanced considerable sums of money to Jirasek during a period of over ten years.” (The undisputed proof shows these advancements are still unpaid.)
(4) That notwithstanding a prior attachment suit to recover the same amount here claimed by plaintiffs had been started by them in the circuit court of Wayne county, the circuit court of Oakland county, in chancery, has jurisdiction under the so-called uniform fraudulent conveyance act, Act No. 310, Pub. Acts 1919 (3 Comp. Laws 1929, § 13392 et seq.), to hear and determine the issues presented by the bill of complaint; and plaintiffs are entitled to the relief sought.
A careful examination of the record convinces us that the determination of the circuit judge should be sustained except that portion of paragraph 2 above wheréin it is held the quitclaim deed (mortgage) was not made in good faith as security for a prior indebtedness and that it is void as against plaintiffs’ claim.
We think it conclusively appears that this quitclaim deed (mortgage) was given in good faith to secure payment of an antecedent debt due from Charles to his relatives, and it cannot be said from this record that the amount of the debt was disproportionately small as compared with the value of the property mortgaged. Charles had the right to give preference to certain of his creditors if he so desired. (See cases cited in the opinion of Justice McDonald.) But this quitclaim deed from Charles to Joseph purported to divest Charles of all his interest in the Sylvan Shores property, thus defeating plaintiffs’ right to obtain satisfaction of any judgment or decree secured against Charles who possessed no' other property, of value. I fully agree with Mr. Justice McDonald that “the vital proposition in the case is whether this deed is fraudulent as to creditors,” particularly as to plaintiffs. If the conveyance is fraudulent, plaintiffs’ bill should not be dismissed on the ground of lack of equity jurisdiction. Whether or not it is fraudulent should be determined in the light of the provisions of the uniform fraudulent conveyance act (3 Comp. Laws 1929, § 13392 et seq.) which provides:
“ ‘Creditor’ is a person having any claim, whether matured or unmatured, liquidated or unliquidated, absolute, fixed or contingent. ‘Debt’ includes any legal liability, whether matured or unmatured, liquidated, absolute, fixed or contingent. (3 Comp. Laws 1929, § 13392.)
“A person is insolvent when the present fair salable value of his assets is less than the amount that mil be required to pay his probable liability on his existing debts as they become absolute and matured. * * * (3 Comp. Laws 1929, § 13393.)
“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 fair consideration.” (3 Comp. Laws 1929, § 13395.)
There can be no question but that by giving this, deed to his brother, Charles Jirasek became insol-' vent within the meaning of the act quoted. In this particular the circuit judge made the following finding:
“At the time of giving the deed practically all of the property possessed by the defendant Charles Jirasek of any value, including his automobile, was in the name of his brother, Joseph.”
Because the conveyance rendered Charles Jirasek insolvent, it was fraudulent as to creditors if made “without fair consideration.” The undisputed proof is that there was absolutely no consideration for Charles’. conveyance of his equity over and above the amount he owed to his relatives. Within the meaning of the act plaintiffs are creditors of Charles Jirasek and he is their debtor.
, “One who has a cause of action based on a tort is a ‘creditor’ within the meaning of the uniform fraudulent conveyance act.” (Syllabus) Dutcher v. Van Duine, 242 Mich. 477.
The obvious purpose of this legislation was to make available to a “creditor,” as defined in the act, an adequate remedy which theretofore was not available until the creditor had first reduced his claim to judgment. This statute provides:
“Sec. 9. (1) Where a conveyance or obligation is fraudulent as to a creditor, such creditor, when his claim is matured, may * * *
“(a) Have the conveyance set aside or the obligation annulled to the extent necessary to satisfy his claim. * * * (3 Comp. Laws 1929, § 13400.)
“Seo. 10. Where a conveyance made or an obligation incurred is fraudulent as to a creditor whose claim has not matured, he may proceed in a court of competent jurisdiction * * * and the court may,
“(a)' Restrain the defendant from disposing of his property,
“(b) Appoint a receiver to take charge of the property,
“(c) Set aside the conveyance or annul the obligation, or _
_ “(d) Make any order which the circumstances of the case may require.” (3 Comp. Laws 1929, § 13401.)
The act is remedial. It should be given a liberal construction. It has been so construed in courts of other States wherein this uniform act has been adopted. In American Surety Co. v. Conner, 251 N. Y. 1 (166 N. E. 783, 65 A. L. R. 244), Chief Justice Cardozo writing for the court said:
“We think the effect of these provisions is to abrogate the ancient rule whereby a judgment and a lien were essential preliminaries to equitable relief against a fraudulent conveyance. The uniform act has been so read in other States (Gross v. Pennsylvania Mtg. & Loan Co., 101 N. J. Eq. 51 [137 Atl. 89]; United Stores Realty Corp. v. Asea, 102 N. J. Eq. 600 [142 Atl. 38]; Morse v. Roach, 229 Mich. 538; Lipskey v. Voloshen, 155 Md. 139 [141 Atl. 402]). * * * The reading seems to be inevitable, aside from any precedent. The act is explicit that a creditor may now maintain a suit in equity to annul a fraudulent conveyance, though his debt has not matured. * * * He (the creditor) may seek the aid of equity, and without attachment or execution, may establish his debt, whether matured or unmatured, and challenge the conveyance in the compass of a single suit.”
See, also, Conway v. Raphel, 102 N. J. Eq. 531 (141 Atl. 804); Adams v. Wallace, 94 Okla. 73 (220 Pac. 872).
While technically it may be dicta, this court, speaking through Justice Wiest, in the case above cited by Chief Justice Cardozo, said:
“With the adoption of the uniform fraudulent conveyance act * * * the troublesome question of whether a levy should be made and a bill in aid of execution filed, or a creditor’s bill filed upon return of an execution, or a bill with double aspect filed, has departed. Now, in case a conveyance is fraudulent as to a creditor he may” have relief under this act. Morse v. Roach, supra.
It is of no consequence in this equitable proceeding whether plaintiffs’ recovery from Charles Jirasek is based on fraud and deceit or that it is considered as in assumpsit upon waiver of a tort. Charles Jirasek’s fraudulent conveyance of his property rendered him insolvent, and under the uniform fraudulent conveyance act the equity court áequired jurisdiction of the whole subject-matter in litigation. This case is unlike our recent decision in Farrell v. Hannan Real Estate Exchange, 251 Mich. 669, wherein the court found the plaintiff was not entitled to equitable relief of any character whatever but only to damages recoverable, if at all, in an action at law. Under such circumstances the proceeding in equity was properly dismissed. But in the instant case, as against all the defendants, plaintiffs have established a clear right to injunctive and other equitable relief provided they maintain their conspiracy charge against Charles Ji rasek. Under the circumstances of this record, to hold that these plaintiffs do not have a right to equitable relief in this case is to say that the uniform fraudulent conveyance act affords a defrauded victim no remedy which he did not have prior to the enactment of this statute. For all practical purposes it would nullify the act. To make available the remedy provided by this legislation we should hold and do hold that the court of equity has and retains jurisdiction to adjudicate the whole controversy between these litigants.
Defendants’ contention that since plaintiffs first instituted attachment in Wayne county they have elected their remedy and cannot proceed in equity in Oakland county is not well founded. At the time the decree was taken in the circuit, the suit at law in Wayne county had not proceeded to trial. In fact, the alleged fraudulent conveyance which gave the court in equity in Oakland county jurisdiction had not been recorded at the time the suit at law was started in Wayne county,-and plaintiffs then had no knowledge thereof. The mere starting of an action at law or suit in equity does not constitute an election. 15 Cyc. p. 264. This court has said:
. “But a lawsuit pending and not determined is not a bar to a suit in equity upon the same subject. At a proper stage of the cause, the court in equity may and will, on a motion for that purpose, determine whether the interests of justice require a complainant to be put to his election of remedies. He will always be allowed to elect his equitable remedy-if he chooses. Story’s Equity Jurisprudence (6th Ed.), § 889; 2 Daniell’s Chancery Practice, 961, and seq. and notes.” McGunn v. Hanlin, 29 Mich. 476, 480.
See, also, Morse v. Roach, supra.
The pending suit at law in Wayne county did not constitute a conclusive election which barred- plain tiffs from instituting the equity case in Oakland county under the circumstances here presented. Nor do we find anything in the record which constitutes an estoppel against or a waiver of plaintiffs’ right to pursue their equitable remedy. Defendants’ claim that partial restitution by one of the. other joint tort-feasors or the giving of security incident to an agreement to make restitution constitutes an estoppel barring plaintiffs from resorting to the remedy in equity is not well founded.
■Since we hold the quitclaim deed constitutes a valid mortgage lien prior to plaintiffs ’ claim, adjudication of the latter’s rights necessitates both the determination of the amount of Charles Jirasek’s liability to plaintiffs and also the amount of his indebtedness to his relatives, payment of which is secured by the quitclaim deed (mortgage). On the face of the present record it seems to appear that Charles Jirasek has a very substantial equity in this property over and above his indebtedness to his relatives. This equity should be held liable for the payment of the amount found due from Charles to plaintiffs. Because of his holding that the quitclaim deed (mortgage) was wholly void as against plaintiffs’ claim, the trial judge made no determination of the exact amount of Charles’ indebtedness which it secured. We are unable to determine from the record before us whether or not the amount claimed was in excess of the actual bona fide indebtednéss of Charles to his relatives. This should be determined upon a further hearing before the trial judge. The case will be remanded for such further hearing and final determination, and decree in accordance herewith. Costs of this court to the appellants.
Butzel, C. J., and Wiest, Potter, Sharpe, and Bead, JJ., concurred with North, J. | [
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Fead, J.
Under contract and agreed plan of construction and maintenance, plaintiff and the county road commission of Wayne county undertook the widening to 120 feet of a 66-foot street in the village of Crosse Pointe Shores; plaintiff to secure the right of way. The plan contemplated a street of boulevard style, with 22-foot parkways on the outside, two 27-foot driveways, and a 22-foot parkway in the center. Some of the abutting owners conveyed lands to plaintiff for the street on forms drafted by the village attorney. Defendants conveyed and dedicated lands “for the purposes of a highway known as Lake Shore Road” by a different form of deed prepared by their own lawyers. The dedications were formally and unconditionally accepted by resolution of the village council.
Both forms described the street planned, and provided that the east and west parkways shall always remain unpaved. The action arises over the following special conditions in defendants’ deeds:
“(6) No sidewalk, ' storm-water sewer, water-main, or underground public utility conduits or any other future installed public utility shall occupy the easterly 22 feet of the road, all of which, if and when installed shall be placed, as far as practicable, in or under the unpaved parkway between the two paved roadbeds, otherwise may be placed under the pavement or in or under the westerly 22 feet of the road. The three parkways of approximately 22 feet shall for all time be continued as such parkways and shall never be used for widening the paved portions of said roadbeds.
“(7) Should said highway ever be widened by condemnation proceedings or 'by other than voluntary dedication, or any of the terms of this conveyance and dedication be violated, or any portion of said parkways ever be used for widening the paved portions of said roadbeds, then the property herein conveyed and dedicated with all improvements thereon, shall automatically revert to said first parties, their heirs, executors, administrators or assigns. The express conditions hereof shall be strictly complied with and shall be construed in favor of the first parties, and is the moving and principal consideration hereof.
“ (8) For the purpose of clarity, it is understood that this dedication is made by the first parties with the distinct understanding that the consideration for it is a road with two distinct paved roadbeds and an unpaved boulevard parkway between as shown by the blueprints hereto attached; that the first parties would not make a .free dedication and give to said village said land for any other kind of roadway other than that shown in the blueprints hereto attached, and that if and/or when said village or its municipal successor or successors impose any other plan of roadway or otherwise violate any of the provisions of this deed of dedication, then and in that event the property herein dedicated shall automatically revert to the first parties their heirs, executors, administrators or assigns.”
This is a proceeding under the declaratory judgment law, 3 Comp. Laws 1929, § 13903, to determine and declare the effect of these conditions, which plaintiff contends are void and defendants urge are valid. The circuit court held with plaintiff. The first consideration is to define the issue.
A requisite to the proceeding is an actual controversy over a specific issue to he set up in the pleadings, in order that a binding declaration of rights may be made thereon. The proceeding is special, is not a substitute for the regular actions, and is not an exercise of general equity jurisdiction in which the court may grant consequential relief under a general prayer or upon general equitable considerations. Washington-Detroit Theatre Co. v. Moore, 249 Mich. 673 (68 A. L. R. 105); 50 A. L. R. 42; 19 A. L. R. 1124; 12 A. L. R. 52, notes.
In the pleadings, plaintiff alleged and defendants admitted that the deeds and acceptance “constitute a good and valid dedication of the land described therein for highway purposes.” Hence the issue is upon the'validity of conditions subsequent in an effective dedication to plaintiff.
Defendants’ claim, upon the oral testimony, that the acceptance of the dedication was tainted with fraud and the grant should be annulled is not within the scope of the action. The claim is that, before accepting the dedication, plaintiff had advice of counsel that the above conditions were void and did not affect the grant, and then accepted it although defendants, in delivering the deeds, had insisted upon their rejection in case the conditions were not satisfactory to plaintiff. To raise such issue would require pleadings which would convert the proceeding into a regular action by .proper allegations of fact and a prayer for affirmative relief. Defendants did not so plead.
The court will not decide as to future rights, especially where, by reason of extraneous circumstances creating estoppel or otherwise, the situation may becoime so changed that a declaration now might be obsolete when the need for it arises. Washington-Detroit Theatre Co. v. Moore, supra. A change in the present plan of the street by which parkways will be paved or the street widened is not now contemplated by any of the parties, and its possibility is too remote to afford a basis for a declaration of rights at this time. The pleadings and proofs disclose no actual controversy between the parties regarding the conditions of the dedication except in respect of the installation of gas, water, lighting, and telephone systems in the east parkway, which was immediately intended under the plan of construction. Such controversy presents the specific and only issue.
The gist of defendants’ contention is that the dedication should be divided into two separate parts, one covering the three parkways to be governed by the law applicable to the parks, and one including the two driveways to be controlled by the law of highways, the force of conditions in the dedication of parks and of highways being different in many respects. If the land had been dedicated for park, purposes, the parkway could be treated as a park. In re City of Detroit, 227 Mich. 132. But ordinarily a parkway is not a park but a street or part of a street. Kleopfert v. City of Minneapolis, 90 Minn. 158 (95 N. W. 908); Municipal Securities Corp. v. Kansas City, 265 Mo. 252 (177 S. W. 856); Kupelian v. Andrews, 233 N. Y. 278 (135 N. E. 502). And a dedication expressly for parkway purposes to widen a street renders the land dedicated part of the street and subjects it to later conversion into a driveway within the power of the constituted authorities. State, ex rel. Townsend, v. Board of Park Com'rs, 100 Minn. 150 (110 N. W. 1121, 9 L. R. A. [N. S.] 1045). The grant here was for the purpose of a highway. This established the character of the dedication and the provisions regarding parkways were merely attempted restrictions upon the use and control of the street by the village.
The control of streets is conferred on a village .by Constitution and statute. It is to be used by the authorities for the public good as the need arises and cannot be bartered away. In the Matter of Opening First Street, 66 Mich. 42; Whitcomb v. City of Boston, 192 Mass. 211 (78 N. E. 407); Vandalia R. Co. v. State, ex rel. City of South Bend, 166 Ind. 219 (76 N. E. 980, 117 Am. St. Rep. 370); Penley v. City of Auburn, 85 Me. 278 (27 Atl. 158, 21 L. R. A. 657).
The dedication of property for the purpose of a highway carries the right to public travel and also the use for all present and future agencies commonly adopted by public authority for the benefit of the people, such as sewer, water, gas, lighting, and telephone systems. Warren v. City of Grand Haven, 30 Mich. 24; Magee v. Overshiner, 150 Ind. 127 (49 N. E. 951, 40 L. R. A. 370, 65 Am. St. Rep. 358); Wood v. National Water Works Co., 33 Kan. 590 (7 Pac. 233); Julia Building Ass’n v. Bell Telephone Co., 13 Mo. App. 477. In this connection attention may be called to the fact that the dedication of the east parkway is not a new gift but is in fact a rededication, because all of it was within the limits of the old road. The point suggests itself that the village had no power to contract away its right to lay pipes and erect poles in territory which had' been and continued to be part of the street. But as the point was not briefed by counsel and is not necessary to decision it will be passed.
A condition in a deed of dedication prohibiting the uses above stated or circumscribing the future freedom of action of the authorities to devote the street to the wants and convenience of the public is void, as against public policy or as inconsistent with the grant.. And where the condition in the dedication for a street is void as against public policy or as inconsistent with the grant, the dedication is effective but the condition is inoperative. Leggett v. City of Detroit, 137 Mich. 247; Dickerson v. City of Detroit, 99 Mich. 498; Richards v. City of Cincinnati, 31 Ohio St. 506; Wood v. National Water Works Co., supra; 4 McQuillin, Municipal Corporations (2d Ed.), § 1670; 18 C. J. p. 71; Moser v. Greenland Hills Realty Co. (Tex. Civ. App.), 300 S. W. 177; Haight v. City of Keokuk, 4 Iowa, 199; Bradley v. Railroad Co., 79 Wash. 455 (140 Pac. 688); Neagle v. City of Tacoma, 127 Wash. 528 (221 Pac. 588); State, ex rel. Townsend, v. Board of Park Com’rs, supra; Vandalia R. Co. v. State, ex rel. City of South Bend, supra; Riddle v. Town of Charlestown, 43 W. Va. 796 (28 S. E. 831); Julia Building Ass’n v. Bell Telephone Co., supra. The exceptions to this rule, which apply to reservations for public utilities, need not be considered.
We must, therefore, hold that the above condition of the deed at bar is void and inoperative, but the dedication remains in force.
Upon the issue here decided, the decree is affirmed, but the declaration of other rights will be reversed as not now presenting an actual controversy; without costs.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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Fead, J.
This is a bill for partition of a lot in Detroit. Defendants, by cross-bill, claimed plaintiff was barred by laches from asserting title, and they had decree. The charge of laches is that plaintiff stood by for many years and saw her former husband, Vasile Huja, and grantees through him dealing with the property and made no claim of title.
The oral testimony is quite uncertain and fragmentary and the record evidence, therefore, is of particular weight. May 22, 1917, plaintiff, then 17 years of age, and Huja, then her husband, took title to the lot by the entireties. The deed was duly recorded May 24, 1917. The same summer Huja filed a bill for divorce and had decree February 21, 1918. The decree did not dispose of the lot, and, under 3 Comp. Laws 1929, § 12767, the parties held title thereafter as tenants in common. Nevertheless, on August 3, 1918, Huja, as a single man, deeded the whole lot to Vasile Faje. Huja testified that plaintiff had signed a land contract on sale to Faje, but it was not produced, and the circuit court evidently gave no weight to the claim. On June 27,1919, Faje conveyed to Aaron and Rosa Fiaeska and they to defendant Smith in 1925. Fiaeska built a house on the lot, but it does not appear when. The evidence disclosed no other improvements made upon the property at any time. Plaintiff became of age May 10, 1921. In 1923, Fiaeska visited her in Ohio and offered to purchase her interest in the lot, but she refused to sell until she should return to Detroit.
Plaintiff knew of Huja’s sale of the lot to Faje, perhaps about the time it' occurred. She was then a minor, and, it is apparent, did not know much about the title. It does not appear that she knew of the sale to Smith until shortly before suit brought, when she had the title examined. , It is uncertain whether she knew in 1923 that Fiaeska had actually bought or discovered it later.
Faje is dead. Fiaeska was available to defendants but was not produced. Smith testified he did not know anything about plaintiff’s interest in the property when he bought, but he did not disclose whether he had examined an abstract nor that he had paid valuable consideration nor that he thought he was obtaining a clear title to the whole premises when he purchased.
The doctrine of laches is founded upon long inaction to assert a right, attended by. such intermediate change of conditions as renders it inequitable to enforce the right. Epstean v. Mintz, 226 Mich. 660.
"Where the right is not an executory one but is a vested legal title, the doctrine of laches has little, if any, application; 21 C. J. p. 215. This is particularly true where the title is of record for the world to see.
Plaintiff lost no right to relief through nonaction during her minority, as laches does not run against an infant. Putnam v. Tinkler, 83 Mich. 628; Dragoo v. Dragoo, 50 Mich. 573.
Fiaeska’s recognition of' her title obviated the necessity of her asserting it against him'by action. 21 C. J. p. 243.
No equities run against her in favor of Smith, as he bought with constructive notice of her title and she brought suit shortly after learning of the con veyance to him. The case is not accompanied by elements of estoppel and plaintiff cannot, under the circumstances, be held guilty of laches.
Decree is reversed, and one may be 'entered for partition upon prayer in the bill, with costs.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and North, JJ., concurred. | [
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North, J.
By their bill of complaint plaintiffs seek rescission of a land contract by which they purchased from the defendant a 67-apartment building known as the Venetian Garden Apartments in Detroit. The total consideration was $400,000. Plaintiffs received an initial credit of $80,000 in consideration of a transfer of their vendees’ interest in a land contract for the purchase of real estate located in Kent county. This interest, however, was transferred direct from plaintiffs to a real estate agency in payment of its commission for consummating this sale of the Venetian Garden Apartments. The remaining $320,000 Was payable in monthly installments of $1,800 during the first year of the contract and somewhat larger monthly payments thereafter. Plaintiffs base their right to relief on alleged fraudulent misrepresentations. We quote from their brief:
“The outstanding representations'are the number of apartments, the condition of the apartments, the size of the apartments, the monthly and annual income, the cost of insurance, the cost of coal, the cost of light and power and the amount of taxes.”
The defendant answered, and in a cross-bill alleged that plaintiffs were in default in the payments due under the contract, and prayed for foreclosure and the appointment of a receiver.
In reporting his findings of fact and conclusions of law, the circuit court commissioner, to whom the case was referred, held that plaintiffs were not in court with clean hands, found against plaintiffs’ contention of fraud, and recommended dismissal of plaintiffs’ bill of complaint. He also found defendant was entitled to foreclosure as prayed in its cross-bill.
Plaintiffs excepted to the commissioner’s findings of fact and conclusions of law and after hearing before the circuit judge decree was entered sustaining plaintiffs ’ contention, granting cancellation, and giving plaintiffs a lien upon the property for $76,406.05 which he found due from defendant to plaintiffs. Defendant has appealed.
At the threshold of plaintiffs’ case we are confronted with defendant’s contention that plaintiffs are not in court with clean hands and therefore are not entitled to equitable relief. This is based upon defendant’s claim that incident to the negotiations leading to the purchase of this property by plaintiffs and as bearing upon their acceptability,as contract purchasers of this valuable income-prodticing- apartment, Mr. Chanler submitted to defendant or its agent a financial statement. Prom this statement Chanler appeared to be worth upwards of $100,000 exclusive of the property transferred as an initial payment in this transaction. At first Chanler admitted he signed this financial statement, and he made' a pitiful attempt by his own testimony to establish the truth of certain of the items contained therein. As to other substantial items he frankly admitted the statement to be wholly false; $75,100 of this financial showing consisted of equities in two pieces of real estate in which Chanler had no interest whatever. Later he testified that the signature attached to this statement was not his. Without reviewing in detail the testimony pertinent to this phase of the case, suffice it to say we have no doubt as to the genuineness of Chanter’s signature on this financial statement, or that it was submitted to and considered by the defendant’s officers in connection ■with the consummation of the contract with plaintiffs. The falsity of the financial statement is clearly established by the record. Defendant’s officers considered it and relied upon it. It had a very material bearing upon the transaction in that a contract purchaser of income-producing property who has substantial independent means is obviously much more acceptable than one who is financially irresponsible. This not only bears upon the prospective ability of the purchaser to perform; but in the event of nonperformance and foreclosure of the contract a decree for deficiency could not be enforced against a financially irresponsible vendee. We are constrained to hold that because of their failure to come into court with clean hands plaintiffs are not entitled to equitable relief; and it follows that the bill of complaint must be dismissed.
Because of alleged fraudulent misrepresentations made by the agent through whom this sale was consummated, it becomes necessary to determine the controverted question as to which of these parties the agent represented. Review of the record establishes the fact that the real estate agency was acting in behalf of defendant. It must be so held because defendant accepted the services rendered by the agency and paid for it by turning over to the agency the initial contract payment, which was made by the transfer of a vendee’s interest fixed at $80,000 in resort property located in Kent county, Michigan, and known as the Maston Lake property. Further, in a written agreement executed by it at the time, defendant definitely recited it was “indebted to” the agency “for its commission in effecting a sale of Venetian Garden Apartments.” It follows that the defendant is bound by the representations made by the employees or representatives of this real estate agency in negotiating and consummating this sale to plaintiffs.
In this connection, the agent furnished plaintiffs with a “set-up” containing the following pertinent information relative to the Venetian Garden Apartments :
67 Apartments — lot 120 x 150 — built-in tub and shower baths — pedestal washstands — 16, 5 rooms and bath — 51, 4 rooms and bath — total rooms 67.
Income — present income $3,335 monthly, annually $40,020.
Expenses — salaries $2,280 — insurance $320 — water $339.44 — coal (200 tons at $7) $1,400 — light and power $900 — city, State and county taxes $5,785— total expenses $11,024.44.
Net Income — $28,995.56.
While we are not at all impressed with plaintiffs’ claim as to some of the alleged misrepresentations made by defendant’s agent, as to the other items we think it clearly appears that the agent made material false representations to plaintiffs by which they were déceived. We will not review all of the claims of fraud, but note briefly only the following:
Insurance: $320 was the represented cost, obviously per year. The undisputed proof shows that between January and August, 1929, this item amounted to $1,368.06.
Fuel: Represented cost was $1,400 per year. The record discloses that defendant’s agent expended from July to December, 1928, inclusive, for “fuel burned” $1,347.52. From January 15, 1929, during the balance of the heating season plaintiffs’ fuel expense was in excess of $1,500.
Taxes: The “ set-up ’ ’ delivered to plaintiffs fixed this item at $5,785. In fact the 1928 taxes amounted to $6,559.51; and taxes for 1929 to $6,476.19.
These discrepancies were very material; and the false representation of defendant’s agent relative thereto cannot be palliated. Defendant urges that the delay of plaintiffs after discovering these misrepresentations before moving for rescission constituted laches barring equitable relief. We cannot so hold. Plaintiffs went into possession of this property January 15, 1929. Their bill of complaint was filed August 29, 1929. Full knowledge of the above misrepresentations and of others which we do not detail came to plaintiffs only by degrees. It is fair to infer from this record that it was the culmination of the numerous misrepresentations which finally caused plaintiffs to seek rescission.
“The law does not require action to rescind before the defrauded person is reasonably certain that he has been defrauded. If he acts with reasonable promptness thereafter, it is sufficient. The law of laches should be used as a shield and not as a sword.” Barron v. Myers, 146 Mich. 510.
See, also, Adams v. Grant, 247 Mich. 60; Lurie v. Schoenberg, 252 Mich. 90.
We think the record sustains the finding of the circuit judge that plaintiffs relied upon the above-noted misrepresentations and they were deceived thereby and defrauded in consequence thereof. It follows that the defendant,must be charged with the fraud which its agent perpetrated. Thus we have in this case the rather anomalous situation of two opposing litigants in equity neither of whom in a technical sense is entitled to relief, because neither is in court with clean hands. Were it not for unusual conditions here presented, each would be summarily dismissed from court. But by reason of their having instituted this suit, plaintiffs are responsible for this proceeding being in the court of equity. At the time the suit was commenced the defendant unquestionably had a legal right to proceed at law to terminate this contract on which plaintiffs were then in default. While this suit was pending defendant could not proceed at law because it was restrained by order of the court. Plaintiffs continued to collect rentals for these apartments until September 28, 1929, when a receiver was appointed. The trial judge found, and we think correctly so, that plaintiffs have collected rentals from this property to the amount of $6,642.84 in excess of their disbursements. Further, plaintiffs continued to occupy one of the apartments rent free until they were ordered to vacate by the circuit court, August 15, 1930. Not only is this property under receivership, but it is subject to an underlying mortgage of $160,000. And in the event of default and foreclosure of this mortgage, which would be the natural result of delay in final decision of the controversy now before the court, the interest of all the parties concerned would be cut off. Hence we think a final adjudication should be here made which will afford each of these parties substantially the same rights as they would have had incident to the termination of this contract by proceedings at law. To accomplish this purpose, a decree of foreclosure may be taken by defendant for the unpaid portion of the contract price with interest, unpaid items of insurance or taxes, if any, which plaintiffs should have paid under the terms of their contract; but plaintiffs will have 30 days from and after the date of the decree within which to pay defendant the amount so found due with accrued interest thereon as a condition of reinstatement of the contract. To obtain a result substantially in conformity with termination of the contract by proceedings at law, defendant will not be permitted to take a deficiency decree upon foreclosure. Subject to the above determination by this court, the case must be remanded to the circuit court for the purpose of supervising and making final disposition of the receivership pending herein. Costs to appellant.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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North, J.
This is an appeal from an award made to plaintiff under the workmen’s compensation law (2 Comp. Laws 1929, § 8407 et seq.). An appeal has been perfected in behalf of defendants and it is asserted that the award should be vacated because: (1) There was no competent testimony that the death of plaintiff’s husband resulted from an injury which arose out of and in the course of his employment; and (2) Plaintiff did not make a claim for compensation within six months after her husband’s death as required by statute. 2 Comp. Laws 1929, § 8431.
Review of the record satisfies us that there was testimony supporting the finding of the commission that the accident suffered by plaintiff’s husband arose out of and in the course of his employment and was the cause of his death. It is undisputed that plaintiff’s deceased husband while in the employ of William Horner sustained a serious injury to his left leg on January 14, 1929. Compensation was paid for 19 weeks, whereupon a settlement receipt was signed and filed; but this receipt does not seem to have been approved by the department. Infection developed in the injured limb and plaintiff’s husband died June 9,1929. There is testimony that previous to the injury he had been afflicted with high blood pressure and had suffered dizzy spells. The death certificate reads: “Cause of death, * * * chronic myocarditis * * * contributory * * * myocardity with hypertension.” Plaintiff testified that prior to the accident Mr. Sharp enjoyed good health. She claims that the injury and resulting infection lowered the vitality of her decedent and was the cause of his death. In this particular Dr. Perry, who had known Mr. Sharp for a number of years, testified in part as follows:
“A. * * * He (Mr. Sharp) never regained his health after the accident.
“Q. Was he ever a well man after the accident?
“A. No.
“Q. What is your opinion as to the cause of Lloyd Sharp’s death?
“A. I think the accident was the contributory cause.
“Q. This accident hastened his death?
“A. Yes.”
This and other competent testimony presented an issue of fact, and the finding of the commission thereon is conclusive.
So far as appears in this record appellant did not urge either before the deputy commissioner or on review by the commission that plaintiff’s claim for compensation was not timely presented. Appellants assert that this question was raised by the denial of liability on the ground that: “A proper claim for compensation was not made.” This indefinite assertion was not sufficient notice to plaintiff that defendants expected to urge as a defense that her claim for compensation was not filed within the statutory period. The statute of limitations cannot be urged as a defense unless reasonably definite no tice thereof is given. This is not only a matter of common practice but it is covered by the following rule of the department:
“If the employer or insurer desires to deny liability an answer to the plaintiff’s claim shall be filed with the department in writing * * * which answer shall set forth with reasonable detail and certainty all of the essential grounds of defense without unnecessary repetition, upon which the defendant relies as its defense to said claim, serving a copy of same upon the plaintiff and filing with the department proof of such service. The defendant will be limited to those grounds of defense so stated on the hearing of said matter, and also on review before the commission.”
Referring to the power of the board to limit by rule the defense to such as was stated in the denial of liability, in Reno v. Holmes, 238 Mich. 572, we quoted with approval the following:
“The rule in question was within the power of the board to adopt. It is reasonable and valid; it not _ only binds the board, and litigants before it, but it binds this court. Being reasonable and within the power of the board, this court must follow it and recognize it in cases coming here for review.”
See, also, Roach v. Kelsey Wheel Co., 200 Mich. 299.
The award is affirmed, with costs to appellee.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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Butzel, C. J.
On November 27, 1925, plaintiff, a corporation organized for ecclesiastical purposes under the laws of this State, borrowed from defendant Berkshire Life Insurance Company, a Massachusetts corporation, the sum of $75,000 to complete the construction of a new church building and stores attached thereto. In order to secure the loan, plaintiff gave defendant a mortgage on the property on which the building under construction, the old church building, an oil station, etc., were situated. Its description is as follows:
“Lots numbered one (1), two (2), three (3) and four (4) of Allendale Subdivision of the southerly ten (10) feet of lot four (4) and lots seven (7), eight (8), eleven (11) and.twelve (12) of Tireman’s Subdivision of part of lot five (5) of Subdivision of quarter sections 50, 51 and 52, Ten Thousand Acre Tract and fractional section 3 town two (2) south range 11 east, Greenfield, according to the plat thereof recorded in the office of the register of deeds for said county of Wayne in liber 23 of plats on page 70, said premises being- located in the city of Detroit, Wayne county, Michigan.”
The mortgage contained the usual power of sale in the event of default in payments. Plaintiff defaulted in its payments and foreclosure proceedings by advertisement were instituted. On November 12, 1928, the premises were sold as an entirety to defendant for the amount due on the mortgage. Exactly one year later, on the last day of redemption from sale, plaintiff filed a bill asking that the foreclosure proceedings be set aside and the sale held for naught. Plaintiff claims it is entitled to the relief sought, because (a), there was no service of notice of foreclosure on the occupants of the premises as provided for by the law in force at the time the mortgage was given; and (b), the property was not sold in separate parcels but as an entirety.
(a) At the time of the execution of the mortgage, the statute providing for foreclosure by advertisement (Act No. 383, Pub. Acts 1925), required personal or registered mail service of the notice of foreclosure upon occupants of the mortgaged premises. This act was approved May 27,1925, and went into effect August 27, 1925, two months prior to the execution of the mortgage. The act, however, was short-lived and was repealed at an extra session of the legislature by Act No. 16, Pub. Acts 1926, which, according to its provisions, took immediate effect. The sole purpose of this act was to repeal Act No. 383, Pub. Acts 1925, and in referring to it, provided that:
“Any proceedings to foreclose a mortgage since said act became effective shall not be held invalid because of failure to comply with any provision thereof.”
Plaintiff asserts that, notwithstanding said repealing act, it was nevertheless absolutely necessary to comply with the provisions of the repealed act in order to foreclose a mortgage given while said act was in full force and effect; that said Act No. 383, supra, gave a substantive right to mortgagors in providing that occupants of premises must be duly served either personally or by registered mail with notice of foreclosure sale 30 days before the date of the sale. It is admitted that no such notice was given. The record shows that plaintiff was duly advised by numerous letters that foreclosure proceedings were about to be begun, and later was informed when the equity of redemption would expire. Plaintiff does not claim surprise, lack of knowledge, or any fraudulent conduct on the part of the defendant. It insists, however, that foreclosure by advertisement is a harsh remedy provided by statute and that any deviation from the prescribed procedure at the time the mortgage is given vitiates the entire proceedings; that the right to be informed by service of the notice of foreclosure proceedings is a substantial one that accrued at the time that the mortgage was given and that such right could not be abrogated by statute; and that in taking away this right, the repealing statute was unconstitutional in that it deprived plaintiff of its rights without due process of law, impaired the obligation of the contract, and was an ex post facto law. The procedural change,in doing away with service of notice made a change in the remedy but did not deprive plaintiff of any substantial right. The foreclosure proceedings were legal and proper. It was not necessary to follow the provisions of the repealed law in regard to the remedy.
Plaintiff relies mainly on the case- of Cargill v. Power, 1 Mich. 369. In that case, the legislature sought to cut down the time of equity of redemption from two years to one year, and it was held that this could not be done so as to effect the foreclosure of a mortgage executed prior to the time that the act became effective. In the instant case, however, the change was merely in procedure. No rights have been taken away from- plaintiff. The remedy merely has been changed. Provisions affecting possession of mortgaged premises are matters of substance, but those affecting the remedy in order to secure possession may be changed from time to time. In Sturges v. Crowninshield, 4 Wheat. (U. S.) 122, 200, the court said:
“Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.”
In Mundy v. Monroe, 1 Mich. 68, it was said:
“It seems to be conceded by all who have written on this subject, that where the law sought to be invalidated affects the remedy only, and does not touch the right of the party secured by the contract, it is not repugnant to that provision of the Constitution which declares that no State shall pass any law impairing the obligation of contracts. ’ ’
In State Savings Bank v. Matthews, 123 Mich. 56, it was held that the statute which amended the mortgage foreclosure law by authorizing a sale after the lapse of six months (instead of one year as theretofore provided) from the filing of the bill, but al lowed the mortgagor six months from the time of sale to redeem at any time, affected the remedy only. It did not impair the obligation of the contract in existing mortgages foreclosed under the amended act. The court quoted the following rule, laid down in Tennessee v. Sneed, 96 U. 8. 69:
“The rule seems to be that in modes of proceeding and forms to enforce the contract the legislature has the control, and may enlarge, limit, or alter them, provided that it does not deny a remedy, or so embarrass it with conditions and restrictions as seriously to impair the value of the right. ’ ’
For other cases providing that the remedy as to existing causes of action may be changed provided that they do not create, enlarge, or destroy any substantial rights, see Judd v. Judd, 125 Mich. 228; C. H. Little Co. v. L. P. Hazen Co., 185 Mich. 316. In Conley v. Barton, 260 U. S. 677 (43 Sup. Ct. 238), the court, in holding that a law requiring the filing of an affidavit within three months after the expiration of the redemption was remedial and valid as to mortgages executed prior to the enactment of the law, said:
“It is recognized that the legislature may modify or change existing remedies or prescribe new modes of procedure without impairing the obligation of contracts if a substantial or efficacious remedy remains or is given, by means of which a party can enforce his rights under the contract.”
In James v. Stull, 9 Barb. (N. Y.) 482, the law affecting the method of foreclosure by advertisement was changed after the mortgage was given by shortening the length of the time of publication from 24 weeks to 12 weeks. The court, in holding that the constitutional rights of the mortgagor were not violated, said:
“To hold this act unconstitutional would he to' deny to the legislature, virtually, all power to legislate in regard to the practice of courts and proceedings on the part of creditors, to collect debts;— a power which must always exist and be frequently called into exercise in every commercial and advancing community, to meet peculiar exigencies, and keep the organization of courts and their proceedings in harmony with the demands of business and the substantial progress of society.”
To like effect are Strand v. Griffith, 63 Wash. 334 (115 Pac. 512); Hopkins v. Jones, 22 Ind. 310. In the instant case, it was not necessary to serve the notice of foreclosure sale personally or by registered mail on the occupants of the premises, and the repeal of Act No. 383, Pub. Acts 1925, in no way affected plaintiff’s rights.
(b) The other question raised by plaintiff is whether the mortgaged premises should not have been sold in separate parcels instead of as an entirety. Section 14431, 3 Comp. Laws 1929, provides as follows: •
“If the mortgaged premises consist of distinct farms, tracts, or lots not occupied as one parcel, they shall be sold separately, and no more farms, tracts, or lots shall be sold than shall be necessary to satisfy the amount due on such mortgage at the date of the notice of sale, with interest and the costs and expenses allowed by law but if distinct lots be occupied as one parcel, they may in such case be sold together.”
The description of the plot and the individual lots can best be seen from the map (Exhibit 8), which is appended to this opinion. The property consists of four lots situated on the southwest side of Grand Biver avenue at the corner of the north side of Allendale avenue. Lots 1 and 4 are triangular in shape; lots 2 and 3 are both rectangular, except
that a small portion of lot 3 is lopped off. The lots adjoin one another and constitute one piece of property, which fronts 157.06 feet on Grand River avenue, 137.31 feet on Allendale avenue, 116.77 feet on the alley in the rear, and 151.02 feet on the most westerly side.
In erecting the buildings and improvements upon the property, the original lot lines have been completely lost sight of. Each building or improvement is situated on parts of more than one lot and none of them occupy the whole of one or more lots. The old church of plaintiff with the entrance facing on Allendale avenue, and a walk leading to the street, occupies parts of lots 2, 3, and 4. The new church and stores occupy parts of lots 1, 2, and 3. The vacant plot occupies parts of lots 2, 3, and 4. The walk from Allendale avenue to the old church also leads to the new church. The oil station occupies parts of lots 3 and 4. The stores fronting on Grand River avenue on the northwesterly side of the lot, although separated from the new church by a fire wall, are part of the same structure. The most westerly ten feet or thereabouts of the store building consists of a long hallway leading into the new church with a rather elaborate front entrance on Grand River avenue. The upper floor of the store building is not occupied, but may be rented for general purposes. The larger part of the basement under the stores is used by the tenants of the stores. The rear portion of the basement, however, is walled off and used by the church as a kitchen.
At the time the mortgage was given, the old church and the oil station stood on the premises. The oil station was not occupied by the tenant now in possession. The tenant of the oil station was required to pay taxes on the property occupied by it, the remaining property being used for church purposes and exempt from taxation. There is situated on the oil station a small concrete one-story building, with the gasoline pumps in front and oil and gasoline tanks sunk below the ground level. The intake pipes for the gasoline are in the rear of the property. The oil station is fenced off by a lattice fence. It is uncertain from the manner in which it is occupied just what property is leased to the oil station. The city tax receipts would indicate that it has a frontage of 90 feet on Grand River avenue, 53 feet on Allendale avenue, and 18 feet on the northwest side. The lattice fence appears to be 56 feet from Allendale avenue, but the lower court found that the station used some of the property in the rear of the fence for its intake pipes to the storage plants; that the lease covered only 76 feet on Grand River avenue and 45 feet on Allen-dale avenue; that it was offered by the plaintiff’s real estate agents as a piece having a frontage of 75 feet on Grand River avenue. A former lease submitted to the tenants calls for 78 feet on Grand River avenue. It is thus impossible to tell just exactly what should be included for the oil station.
The testimony further shows that if the shallow piece of property fronting on Grand River avenue and used by the oil station were treated as a separate parcel and cut off from the deep lots, the value of the remaining property would be diminished much more than the amount realizable from the sale of the oil station; that the only way of realizing the greatest amount from the property would be to combine the oil station property with that in the rear, in accordance with the plan under which the property was subdivided and as described in the mortgage; that the property occupied by the oil station is irregularly shaped, unplatted, and covers parts of several lots, and the exact amounts that should be allotted to the oil station are indefinite. Even were plaintiff’s theory correct, just what to do with the vacant piece of property in the rear of the oil station remains an uncertainty. Whether it should be sold as a separate parcel or in conjunction with the oil station or with the church, we would be unable to determine from the record. The difficulty would become still greater if it were necessary to sell as a separate unit the store building, part of which consists of the main entrance of the new church.
Plaintiff stresses its claim that it was the legal duty of defendant to sell the oil station separately, but pays no attention whatsoever to the lines of the lots as described in the mortgage and plat. The testimony shows that the sale of parts of the several lots described in the mortgage would most seriously impair the value of the remaining property, realize less on the mortgage debt, and change the security as given by the mortgagor. It was further shown that there was another oil station in the vicinity and that the corner was far too valuable to be used permanently for an oil station. If plaintiff is correct in its theory, then the building and leasing of a cheap lunch stand, shoe shining parlor, or almost any other kind of temporary structure, commonly known as a “taxpayer” on the front part of a corner lot, without any regard to the lot lines as described in the mortgage and plat, would obligate the mortgagee to sell such front part of the property for whatever could be obtained for it and the rear part for far less than it would be worth if combined with a part of the property having a valuable frontage. We can readily see how the contract rights of the mortgagee would be thus seriously impaired.by lessening the value of the security. We are not con sidering a case where a lot or lots used and leased for distinct purposes in their entirety were required to be separately sold. Many cases are cited by plaintiff where the situation is entirely different; they are not applicable to the present case. We believe that the rule laid down by Mr. Justice Fead in the case of Security Trust Co. v. Sloman, 252 Mich. 266, is the correct one and is controlling’ in the present situation. In that case, the question was a practical one. The court said:
“While a mortgagor’s right of redemption of part of the premises is to be safeguarded, it is not superior to the right of the mortgagee to collect the debt. We think the premises constituted one known parcel, and the sale as such was proper.”
It is claimed that this latter case was a foreclosure in equity and not at law under 3 Comp. Laws 1929, § 14627. It will be found, however, that the provisions in regard to sale, while not identical, are similar. Distinctions without differences are pointed out to us. The practical application in each case depends upon the facts. In the instant case, the 'only, practical and proper way in which the property could be sold was to follow the lines of the lots as described in the mortgage, and, inasmuch as the lines had been obliterated by the improvements, it was proper to sell the property as an entirety.
The decree of the lower court dismissing the bill is affirmed, with costs to defendant.
Wiest, Clark, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred. | [
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Noeth, J.
The main question presented on this appeal is clearly outlined and a proper decision reached in the following portion of the circuit judge’s opinion:
“In this cause plaintiff filed her bill to foreclose a lien on certain real estate belonging to defendant, alleging that said lien was established in a divorce decree made May 8, 1928, in this court, and that there is now due upwards of $400. Defendant answered admitting these facts, but alleging that since the entry of said decree the identical parties have remarried, and that therefore the lien has become abrogated. * * *
“The facts as agreed upon by the attorneys for the respective parties are, that at the time the divorce decree was made, defendant, John A. Wilson, was required to pay to plaintiff, Florence Wilson, the sum of $600 in full of dower rights and also her rights in certain real estate then held by the en tirety; and that plaintiff was required to and did release her interest in all this real estate, and that the lien now sought to be enforced is for a portion of said $600, that it covers the property formerly held by the entirety. It was also agreed that the parties have since remarried and have again separated, but are still husband and wife. This brings us squarely to the question of whether plaintiff by her last marriage to defendant and subsequent cohabitation with him lost the right to enforce the lien given her in the divorce decree. * * *
“In the ease at bar the plaintiff released all her interest in the real estate held by the entirety at the time the divorce decree was made. When she married the defendant the last time she did not become reinvested with her interest in that real estate, and to now hold that she lost her lien but did not receive back what she had released would be inequitable. If dower only was involved, a different result might be reached.
“At the time of this last marriage the parties were in law strangers to each other. The plaintiff might have sold her lien to some outside party, and in such case the remarriage of these parties would have had no effect upon it. If defendant at the time of this last marriage desired to have this lien released he should have made some new arrangement with his former wife by which she would have been reinvested with her interest in the land, with right of survivorship, in consideration of giving up her lien. He did not. see fit to do that, and to now wipe out her lien and leave him sole owner of the land with a possible dower interest only in his wife would be unfair to her, and should not be done unless some positive rule of law requires it. No such rule has yet been laid down in this State; and hence an order may be made in accordance with this opinion.”
As bearing upon the above question, see Miller v. Miller, 227 Mich. 684; Kistler v. Kistler, 141 Wis. 491 (124 N. W. 1028); In re Mallory’s Estate, 300 Pa. 217 (150 Atl. 606); Brenner v. Brenner, 48 Ind. 262. For a contrary holding, see Carson v. Carson, 143 Okla. 274 (288 Pac. 475).
Appellant’s contention that since plaintiff was a married woman her suit should have been brought by a next friend is not tenable. 3 Comp. Laws 1929, § 14013. Nor are we in accord with his further assertion that since defendant was willing to support his wife she could not maintain a suit against him for the recovery of her separate property. The right which plaintiff seeks to enforce is based' upon contract. It is a property fight which was acquired by her previous to her present marriage to defendant. By reason of defendant’s default a right of action has accrued to her.
“Whenever a cause of action shall accrue to, or arise against any married woman, she may sue or be sued in the same manner as if she were sole.” 3 Comp. Laws 1929, § 14014.
The decree of the lower court is ’affirmed, with costs to appellee.
Butzel, C. J., and Wiest, Clark, McDonald, Potter, Sharpe, and Fead, JJ., concurred. | [
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