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Moore, J.
This is an appeal from a decree dismissing a bill of complaint filed by a judgment creditor of Philip B. Loranger in aid of an execution.
In March, 1883, the complainant deposited money in the bank of Lafountain & Loranger. The partners composing this bank were Mr. Lafountain and the defendant Philip B. Loranger. Mr. Loranger shortly after this retired from the firm. In July, 1883, the bank failed, and passed into the hands of an assignee. Complainant received a portion of the amount due him from the assets of the bank. In September, 1885, he obtained a judgment for the balance due him, which judgment was sued over and put into a new judgment in November, 1895. The father of Philip B. Loranger died in 1872, leaving quite an estate. His will left the property to his wife as trustee. Upon her death, a portion of the property would, by the terms of the will, become the property of Philip B. Loranger. In October, 1895, Philip B. Loranger deeded his interest in his father’s estate to his wife, Minnie S. Loranger, the other defendant in this proceeding. This deed was recorded July 3, 1897. July 9, 1897, the mother of Philip B. Loranger died; and, within a few hours after her death, Philip B. Loranger made a quitclaim deed of his interest in his father’s estate to his wife. The bill in this case alleges these conveyances are fraudulent as to the complainant, and is filed to have them set aside, and the land conveyed subjected to levy and sale to satisfy complainant’s judgment.
It is claimed on the part of the defendants that the conveyances are not fraudulent, but were made for a proper purpose. The case was tried in open court, and nearly all the testimony was taken in the presence of the circuit judge. The testimony on the part of defendants shows they were married in 1870. It tended to show that one month thereafter $3,000 was paid to Mrs. Loranger by an insurance company upon a policy of insurance made for her benefit by her brother, who died shortly before her marriage. Two or three years after his marriage, Philip B. Loranger became a member of the firm of Lafountain & Loranger. This firm remained in existence until June, 1883. Mr. Loranger contributed his time. Mr. Lafountain was supposed to be the capitalist of the firm. The financial crisis of 1873 affected the business of the bank, and it suffered heavy losses. It was also the victim of a disastrous burglary. After the $3,000 was paid to Mrs. Loranger, it was put at interest, and mortgages were taken in her name. The interest on these mortgages was paid to Mr. Loranger, and used by him. He also used the principal — nearly all of it — for the use of the bank. The defendants allege the money was used upon an agreement that, if Mr. Loranger could not repay his wife sooner, he would pay her out of his interest in his father’s estate, when he should receive it. It is claimed by them that the conveyances which were made were simply the carrying out of this agreement, and that no fraud whatever was perpetrated upon anybody.
After the banking firm was dissolved, Mr. Loranger became interested in some mining property in Colorado, which he subsequently conveyed to his wife. The assignee of the banking firm filed a bill to have this conveyance set aside. It is said by the complainant that Mrs. Loranger’s answer in that proceeding is inconsistent with her present claim. The circuit judge found the transaction was not fraudulent; that the property conveyed did not exceed in value the amount of the indebtedness; and that the making of the conveyances was simply carrying out a proper agreement which was made at the time the money was borrowed from the wife by the husband. We think this finding was fully justified by the testimony. We have not overlooked the familiar rule of law that transactions of this character between husband and wife should be carefully scrutinized. We have also considered the provisions of Act No. 99, Pub.. Acts 1897, which provide that complainant shall make a prima facie case on a bill filed in aid of execution by introducing his judgment, execution, and levy, and proof of the conveyance complained of, and that thereafter the burden of proof shall be upon the judgment debtor, or persons claiming under him, to show that the transaction is in all respects bona fide. We do not deem it necessary to recite the testimony in detail. It will be sufficient to say it fully meets the requirements of the rule of law in relation to dealings of this character between husband and wife, and the provisions of the statute as well.
The decree is affirmed, with costs of this court.
Grant, C. J., Montgomery and Hooker, JJ., concurred. Long, J., did not sit. | [
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McAlvay, J.
The complainant the Germania Refining Company is a Pennsylvania corporation. The complainant the Independent Refining Company, Limited, is a limited partnership organized and existing under the laws of Pennsylvania. The former has its principal offices in the village of Rouseville, Fenango county, in said State, and the latter has its offices in Oil City, in said State. Both are engaged in operating oil refineries in the respective places mentioned, and in connection therewith each owns a large number of tank cars used in transporting their products by various railroad companies into and through the State of Michigan • and various other States. Each manufactures lubricating and illuminating oils and their products from crude petroleum, which are sold and shipped by them in their tank cars to dealers and consumers in several States, including the State of Michigan. The Germania Refining Company deals only with the citizens of the State of Michigan by selling its products to them delivered in its tank cars f. o. b. to the railroad companies at Rouseville, Pa., which cars are treated by the carriers the same as other cars, and, under the agreement with the transportation companies hereinafter mentioned, are taken and returned to complainant.
The Independent Refining Company, Limited, owns a business in Grand Rapids, Mich., known as the Grand Rapids Oil Company, which it prosecutes as a separate business and as its customer, and does not sell its products in Michigan to other concerns. Sales are made by it at Oil City, Pa., in the same manner as the sales above described made by the Germania Refining Company, and the products are transported in bulk in its tank cars in the same manner and under the same agreement with the carriers.
The defendant board of assessors for the years 1906, 1907, 1908, and 1909, claiming to be authorized by the Constitution and laws of this State then in force, assessed to these complainants taxes on these tank cars in due form as provided by law, and assessment rolls for the same were delivered to the defendant auditor general of this State, with the warrants of said board for the collection thereof duly attached, and the amount of the same now appears as unpaid taxes of the State of Michigan.
Complainants contend that in the profitable conduct of their business it is necessary for them to own and use tank cars which the railroads cannot furnish in sufficient number to fill the demand of the refineries. They therefore furnish their own tank cars, and have an arrangement with the railroads for the transportation of their products in such cars under which they pay regular freight charges on shipments, and are credited or paid by the railroads as compensation for the use of the cars three-quarters of a cent per mile between the railroad terminals, for both the loaded and empty haul, provided the empty haul is over the same line; otherwise the carriers charge four cents per mile for the haul of the empty car.
Complainants insist that the foregoing facts disclosed by this record show that their property is not subject to taxation under the laws of this State; that they have not been, and are not now, engaged in the business of transportation within the State of Michigan. Complainants therefore filed their bill of complaint in this cause in the circuit court for Ingham county, in chancery, asking that defendant auditor general be restrained from collecting, or attempting to collect, any of the aforesaid taxes; that complainants be decreed to be exempt from taxation in the State of Michigan under the laws thereof; that the warrants to the auditor general be decreed to be void; and that defendant State board of assessors be perpetually enjoined from assessing complainants’ tank cars.
This cause was heard upon pleadings and proofs taken in open court, and, after due consideration, a decree was entered against complainants dismissing their bill of complaint. The case is before this court for consideration upon an appeal by complainants from such decree.
The material facts in this case are not in dispute. The questions presented and argued before this court are questions of law, and relate to the consideration of a portion of article 10 of the Constitution, and also to the construction of a portion of Act No. 282, Pub. Acts 1905, as amended by Act No. 49, Pub. Acts 1909 (1 How. Stat. [2d Ed.] § 1955 et seq.). The portion of the Constitution involved necessary to be quoted is section 5 of article 10 of the Constitution, as follows :
“Sec. 5. The legislature may provide by law for the assessment at its true cash value by a State board of assessors, of which the governor shall be ex officio a member, of the property of corporations and the property, by whomsoever owned, operated or, conducted, engaged in the business of transporting passengers and freight, transporting property by express, operating any union station or depot, transmitting messages by telephone or telegraph, loaning cars, operating refrigerator cars, fast freight lines or other car lines and running or operating cars in any manner upon railroads, or engaged in any other public service business; and for the levy and collection of taxes thereon.”
The statute under which the .taxes in question were assessed and levied is Act No. 282, Pub. Acts 1905, as amended by Act No. 49, Pub. Acts 1909. Portions of sections 4 and 5 necessary to be quoted read as follows:
“Sec. 4. It shall be the duty of said board to make an annual assessment upon an assessment roll, to be prepared by said board, of the property, by whomsoever owned, operated or conducted, and having a situs in this State as hereinafter defined, of railroad companies, union station and depot companies, telegraph companies * * * and all other companies owning, leasing, running or operating any freight, stock, refrigerator, or any other cars not being exclusively the property of any railroad company paying taxes upon its rolling stock under the provisions of this act, over or upon the line or lines of any railroad or railroads in this State. * * *
“Sec. 5. The term property, as used in this act, shall be deemed to include all property, real or personal, belonging to the persons, corporations, companies, copartnerships and associations subject to taxation under this act, * * * _ and all other property used in carrying on their business and owned by them respectively, * * * [followed by certain provisions and exceptions not material]. The term company, corporation, copartnership, association, or person, wherever used in this act, shall apply to and be construed as referring respectively to any railroad company * * * [specifically naming other companies], and any other companies owning, leasing, running, or operating any freight, stock, refrigerator, or any other cars, not being exclusively the property of any railroad company paying taxes upon its rolling stock under the provisions of this act, over or upon the line or lines of any railroad or railroads in this State; and to any firm,' joint-stock association, co-partnership, corporation or any other association, or person, engaged in carrying on any business, the property of which is subject to taxation under this act. The term ‘property having a situs in this State’ shall include all the property, real and personal, of the persons, corporations, companies, copartnerships and associations enumerated in this act, owned, used and occupied by them within the limits of this State, and also such proportion of their rolling stock, cars and other property as is used partly within and partly without this State, as herein provided to be determined.”
Before we consider the application of the provisions of the Constitution and statutes to the complainants, their property and its use, within the State of Michigan, and determine whether it has been properly or improperly assessed for taxes, we should consider what, under the undisputed facts disclosed by the record, this property is, for what purpose and use it is brought into and taken out of this State, and for whose use and benefit it is operated.
In their bill of complaint complainants state that they are created and authorized to do business by virtue of the laws of the State of Pennsylvania, of which they are residents, and in which their places of business are located; that their business is refining and selling oils and lubricators; that for the profitable conduct of their business they own many large tank cars, each of 6,500 to 8,500 gallons capacity; that they sell their products in bulk loaded in such tank cars at their respective places of business to their customers f. o. b. these tank cars, where they are accepted by the transportation companies, and are taken by said carriers over their railroad lines to their -destinations in the State of Michigan, where the contents are delivered to the customers, for which haul, if returned over the same line, the carriers pay to the complainants for the use of each car three-quarters of a cent per mile for the round trip. If the return trip should be by another line, it is claimed that four cents per mile is charged complainants for the distance. The record indicates that usually, if not always, the three-quarters of a cent per mile is not paid complainants in cash, but credited to them on freight account, and also that these tank cars are in the possession and control of the carriers from the time of receipt by them until returned, and that complainants pay for all repairs thereon.
It appears from these facts that complainants’ cars are used exclusively by them in their business over the railway lines of the carriers to which they are delivered for the purpose and upon the terms stated.
Let us first consider the scope of the constitutional and statutory provisions involved and the intent therein contained as to the classes of property affected and the uses thereof which would bring such property clearly within the purview of the Constitution and law. There is no question involved of the constitutionality of the statute under consideration.
The provisions of section 5 of article 10 of the Constitution above quoted, are not complicated or difficult to be understood. This section simply empowers and authorizes the legislature by law to provide for the assessment, by a State board of assessors, of the property of corporations and the property by whomsoever owned, operated, and conducted, engaged in the business of
“transporting passengers and freight * * * transporting property by express, * * * operating refrigerator cars, fast freight lines or other car lines and running or operating cars in any manner upon railroads, or engaged in any other public service business; and for the levy and collection of taxes thereon.”
In pursuance of this constitutional authority, and for the purpose of carrying the same into effect, we find Act No. 282, Pub. Acts 1905, as amended by Act No. 49, Pub. Acts 1909, now in force and effect. Sec tion 4 of this act requires the State board of assessors to make an annual assessment, upon an assessment roll to be prepared by it,
“of the property by whomsoever owned, operated, or conducted and having a situs in this State, as hereinafter defined, of railroad companies * * * and all other companies owning, leasing, running or operating any freight, stock, refrigerator, or any other cars, not being exclusively the property of any railroad company paying taxes upon its rolling stock under the provisions of this act, over or upon the line or lines of any railroad or railroads in this State.”
Section 5 of this act deals with definitions of words used therein, as follows:
“The term property, as used in this act, shall be deemed to include all property, real or personal, belonging to the persons, corporations, companies, co-partnerships, and associations subject to taxation under this act. * * * ”
Also:
“The term company, corporation, copartnership, association, or person, wherever used in this act, shall apply to and be construed as referring respectively to any railroad company, * * * and any other companies owning, leasing, running or operating any freight, * * * or any other cars, not being exclusively the property of any railroad company paying taxes upon its rolling stock under the provisions of this act, over or upon the line or lines of any railroad or railroads in this State; and to any firm, joint-stock association, copartnership, corporation, or any other association or person, engaged in carrying on any business, the property of which is subject to taxation under this act.”
Also:
“The term ‘property having a situs in this State’ shall include all the property, real and personal, of the persons, corporations, * * * enumerated in this act owned, used and occupied by them within the limits of this State, and also such proportion of their rolling stock, cars and other property as is used partly within and partly without this State, as herein provided to be determined.”
Other sections of this act provide with particularity the details of making an assessment, and ascertaining the true cash value of property, and other matters which do not require to be stated because not necessary to the determination of the questions involved in this case.
While the principal contention of appellants is, as has already been stated, that the provisions of the statute in question are not broad enough to include the property belonging to them upon which it is sought to impose the taxes in question, yet, to a considerable extent, counsel have discussed in their brief the general power of the State to impose taxes, the question of the situs of the property which may be taxed, in connection with the maxim, “Mobilia sequuntur personam,” and State taxation in interference with interstate commerce. It does not appear to us that these questions require discussion. In cases similar to the instant case they have been discussed, as far as they have any bearing upon the questions here involved, in upholding the authority of State taxation upon the property of the class to which this is claimed to belong.
As was said by the learned trial judge in his opinion:
“The right of a State to tax cars owned out of the State by corporations causing them to come into the State, in carrying on the business done by railroads, or by individuals using the roads for their cars to transact business strictly railroad business, has been so thoroughly decided by the repeated decisions of the Supreme Court of the United States that it is no longer an open question.” Adams Express Co. v. Ohio, 166 U. S. 185, 17 Sup. Ct. 604; Pullman, etc., Car Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 876; Ameri can, etc., Transit Co. v. Hall, 174 U. S. 70, 19 Sup. Ct. 599; Union, etc., Transit Co. v. Lynch, 177 U. S. 149, 20 Sup. Ct. 631.
In some of the cases above cited the provisions of the statute relative to arriving at an equitable assessment of the property upon which the taxes were levied were practically the same as in the instant case. It is the contention of appellants that the statute in question applies only to such corporations and companies as are actually engaged in the business of owning and operating their cars in public service business and carrying freight in them, and that it is not broad enough to warrant a construction which will include their tank cars when used as shown by this record.
The constitutional authority to provide by law for such assessment of these taxes has been already briefly stated, and includes the property, by whomsoever owned, operated, or conducted, engaged in the business of transporting passengers and freight, and running and operating cars in any manner upon railroads. This was intended to include all cars of every person or corporation running or operating in any manner upon railroads in this State, upon which taxes were not already assessed.
The provisions of the statute are practically the same as those of the Constitution, limiting the assessment of such taxes to property having a situs in the State, as defined. There can be no question but that this statutory provision includes the property in question belonging to the appellants, provided it may be said to be included within its terms as
“property by whomsoever owned, operated or conducted * * * of railroad companies * * * and all other companies [defined as including persons] owning, leasing, running or operating * * * any other cars * * *■ over or upon the line or lines of any railroad or railroads in this State.”
The record shows that the tank cars of appellants by their directions alone, loaded with their products, are brought by the carriers into the State of Michigan, where they are unloaded, and then returned to Pennsylvania, for which use appellants are paid three-quarters of a cent per mile by the carriers; that these cars are operated over and upon certain railroad lines in this State for the sole use and benefit of the appellants.
Can the contention of appellants be sustained that, because this use to which they put their property in this State, and which is strictly railway business, -is accomplished by means of power furnished by the transportation companies these tank cars are not within the scope of the statute? Can it be said that appellants’ cars are not operated or conducted by appellants over and upon lines of railroad in this State? We are of the opinion that these questions must be answered against the contention of appellants, and that their property is clearly within the provisions of this statute and subject to taxation under it.
Appellants, by the use of their cars for the transportation of their products, receiving therefor an allowance or rental from the carriers, must be held to be engaged in the business of operating cars upon the railroads within this State.
In our opinion, there is no distinction in principle between the facts admitted by appellants in this case and in the Federal cases cited supra, viz.: American, etc., Transit Co. v. Hall, 174 U. S. 70, 19 Sup. Ct. 599; Union, etc., Transit Co. v. Lynch, 177 U. S. 149, 20 Sup. Ct. 631.
The decree of the circuit court is therefore affirmed, with costs.
Brooke, C. J., and Stone, Ostrander, Moore, and Steere, JJ., concurred. Kuhn and Bird, JJ., did not sit. | [
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McGregor, P. J.
This appeal is from the trial court’s finding plaintiff guilty of contempt of court for failure to carry out the court’s order relative to child visitation rights granted to defendant. The plaintiff husband was granted a divorce by the Oakland county circuit court in accordance with the order of the Michigan Supreme Court, on grounds that the defendant wife and mother was cruel to . their children: Maryann, horn August 1, 1955,’ and James, born September 24, 1956, and on other grounds not pertinent to the present issue. Jaikins v. Jaikins (1963), 370 Mich 488. On remand, plaintiff was granted custody of the children by the trial' court order of January 24, 1964. The court suspended the mother’s visitation rights' by order of, November 30, 1964, and then re-instated such rights, February 15, 1965. On March 1, 1965, the'plaintiff. father petitioned to suspend again the visitation rights of the mother.' Thereafter, a report from the friend of the court was received by the trial judge and on April 27, 1965, without consulting either party, the trial court issued an order scheduling visitation of the children by the mother, custody of the children remaining with the father. On September 15, 1965, defendant petitioned the court to find tbe father in contempt for violating the visitation order. The court heard testimony and argument of this matter at various times from April 19 until July 5, 1966. At the conclusion of these hearings the court ruled that the plaintiff father should retain custody and that the defendant mother’s visitation rights should be suspended, but that the father was in contempt of the court’s order of April 27, 1965, as further expanded by a letter from the friend of the court on May 4-, 1965. The court’s written findings were that the father “had a responsibility to see that the visitation plan was carried out and that his failure is to the extent of being in contempt of court.”
The court specified certain dates on which no visitation had occurred (May 23, June 6, June 13, June 23, June 27 and June 30, all in 1965) and suggested that there had been no visitation on certain other unspecified dates. A letter from the friend of the court dated May 4th established how and where the visitation was to occur and specified, among other things, that the children be “delivered” to the mother at Christ Church, Cranbrook, in Bloomfield Hills, Michigan.
After one mutually satisfactory visitation, the record indicates a conflict of testimony as to dates and surrounding circumstances of attempts by the defendant mother to see the children. There was testimony as to the misbehavior of the children, their becoming upset, and their refusal to go with their mother. A psychiatrist testified for the plaintiff father to the effect that the mother was unsure and tense with the children, but that the father could do more to make the visits with the mother successful. The court determined from disputed allegations of the parties that the father did not carry out his part of the visitation order.
After a series of hearings, concluding on July 8, 1966, the trial court issued an opinion, the pertinent part of which reads as follows:
“I am persuaded by the preponderance of the testimony * * * that Mr. Jaikins did wilfully fail to comply with the order of visitation. * * *
“Specifically, there was no visitation with the boy, James W. Jaikins, III [listing six dates as set out in the order of April 27, 1965].
“The custodial parent was the father, Mr. Jaikins. He was ordered and had a responsibility to see that the visitation plan was carried out. He did not do so. I conclude that he did thwart the plan of visitation. I do not believe that he did so in an insolent manner, but that does not alter the fact that he failed to carry out the court’s orders. * * *
“I do find Mr. Jaikins in contempt of court. He is sentenced to the Oakland county jail for 30 days and fined $250. He is assessed costs payable to the wife in connection with her expenses, attorney fees and so forth, $1,850.” (Emphasis added.)
It is this order, filed July 21, 1966, in compliance with the foregoing opinion, that is the subject of this appeal.
The plaintiff father contends that the contempt order should not be sustained because the court decision did not specify or inform him whether the contempt proceedings were civil or criminal in nature; that the court’s order of April 27, 1965, was indefinite and vague, and was erroneously expanded by the friend of the court.
Essentially, the difference between civil and criminal contempt is that the former seeks to change respondent’s conduct by threatening him with a penalty if he does not change it, while the latter seeks to punish him for past misdoings which affront the dignity of the court. Criminal contempt being for past misconduct, there is no way for one so convicted to purge himself of the contempt. In re Colacasides (1967), 6 Mich App 298, 301, 302.
“Every citizen, however unlearned in the law, by mere inspection of the papers in contempt proceedings’ ought to be able to see whether it was instituted for private litigation or for public prosecution, whether it sought to benefit the complainant ' or vindicate the court’s authority. He should not be left in doubt as to whether relief or punishment was the object in view.” Gompers v. Buck’s Stove & Range Co. (1911), 221 US 418, 446 (31 S Ct 492, 55 L Ed 417).
. If the contempt was criminal in nature, the plaintiff should have been advised of the potential criminal nature of the charge against him, either by having to respond to a petition independent of the originally litigated case, or at least be informed from the bench of the possibility of criminal sanctions.
“Another test of whether the contempt is civil or criminal involves consideration of subsequent con duct — an ‘after the fact’ determination. It may he summarized: Where the contemnor’s conduct of noncompliance with the court order has altered the-status quo so that it cannot he restored or the relief intended becomes impossible, there is criminal contempt; however, where the contemnor’s conduct of noncompliance with the court order - is such that the status quo can be restored and it is still possible -to grant the relief originally sought, there is civil contempt. See Green v. United States (1958), 356 US 165, 197, 198 (78 S Ct 632, 650, 651, 2 L Ed 2d 672, 695, 696).” Harvey v. Lewis (Appeal re List) (1968), 10 Mich App 709, 716, 717.
The trial court’s finding of contempt was based on the preponderance of the testimony, the standard of proof in civil cases:
“Without deciding what may be the rule in civil contempt, it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself.” Gompers, supra, 221 US 418, 444. (Emphasis added.)
In this case the trial court used the wrong standard of proof to find the father guilty of criminal contempt. In criminal contempt, the respondent retains the constitutional protection against self-incrimination. He cannot be compelled to testify. In the case at bar, the trial court stated at the close of petitioner’s proofs:
“I conclude, but only in a prima facie sense, there has been a violation of this order for visitation that requires the proofs of the custodial parent” (Emphasis added.)
Requiring the accused to testify is improper in criminal contempt cases.
“When the contempt consists of the omission to perform some act or duty which is still within the power of the party to perform, his imprisonment shall be terminated when he performs the act or duty * * * and pays the fine and the costs and expenses of the proceedings, which shall be specified in the order of commitment.” Revised judicature act, PA 1961, No 236, § 1715(2) (CLS 1961, § 600.1715 [2], Stat Ann 1962 Rev § 27A.1715[2]).
In civil contempt cases, the court may assess the accused for damages caused by his conduct, but attorney’s fees and other costs of litigation are not such “damages.” Holland v. Weed (1891), 87 Mich 584, 587, 588. The contempt at bar is civil rather than criminal and because it is civil contempt, the order appealed from is defective. If found in contempt, the plaintiff father must be given the opportunity in civil contempt to purge himself from the contempt, and it must be clear that he has the capacity to do so.
Accordingly, the opinion and order of the trial court holding the plaintiff in contempt of court were erroneous and are hereby vacated. Costs to plaintiff.
J. H. G-illis and A. C. Miller, JJ., concurred.
“At a session of court held at the court house in the city of Pontiac, county of Oakland and State of Michigan, on Tuesday, the-27th day of April, A.D. 1965.
“Present: Honorable William J. Beer, Circuit Judge.
“This court orders the following plan of visitation in re the children, Maryann Jaikins and James W. Jaikins, III, and their mother:
“Visitation for James W. Jaikins, III:
“Sundays — May 9, May 16, May 23, 1965
June 6, June 13, June 20, June 27, 1965
July 11, 1965
Prom 1:30 p.m. to 7:30 p.m.
_ “Visitation for Maryann Jaikins and James W. Jaikins, III:
“Wednesdays — June 23, June 30, 1965
July 7, July 14, 1965
Prom 10:00 a.m. until 8:00 p.m.
“All visitation, whether for vacation, overnight or otherwise, during the period from July 15, 1965, through the month of August, 1965, is left to the discretion and supervision of the friend of the eourt, guarded by the direction Marian E. Jaikins, mother of said children, is to have them in her custody continuously for a period of at least 10 days.
“Visitation for Maryann Margaret Jaikins and James W.'Jaikins, III: (continued)
“Sundays — September 12, September 19, September 26, 1965
October 10, October 17, October 24, October 31, 1965
November 14, November 21, November 28, 1965
December 12, December 19, December 26, 1965
Prom 1:00 p.m. to 7:00 p.m.
“Thursday — December 30, 1965 at 10:00 a.m. through
“Saturday, January 1, 1966, at 8:00 p.m. (This is a special holiday visitation for the mother and her children.)
“Sundays — January 9, January 16, January 23, January 30, 1966
February 13, February 20, February 27, 1966
March 13, March 20, March 27, 1966
“At the will of the mother, Marian E. Jaikins, the maternal grandparents may accompany her or be present during aforesaid visitation occasions.
“During the aforesaid visitation periods, Marian E. Jaikins, the mother, shall not administer eorporal punishment to either child. If there is a disciplinary problem, it should be brought immediately to the friend of the court for appropriate action and report to this court.
“Any future proceedings in this cause concerning custody or visitation with the children shall be en banc. See 370 Mich 488.
“/s/ William John Beer,
Circuit Judge”
Affirmed (1967), 379 Mich 69; application for hearing on bail denied, Colacasides v. Michigan (1967), 387 US 901 (87 S Ct 1682, 18 L Ed 2d 619). | [
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Neal E. Fitzgerald, J.
This appeal from a jury verdict for false arrest and slander, rendered against the defendant store whose agent stopped and questioned the plaintiff whom he suspected of larceny, surprisingly presents questions that are novel to the appellate courts of this jurisdiction.
The plaintiff, Mrs. Marion Bonkowski, accompanied by her husband, had left the defendant’s Saginaw, Michigan store about 10:00 p.m. on the night of December 18, 1962 after making several purchases, when Earl Reinhardt, a private policeman on duty that night in the defendant’s store, called to her to stop as she was walking to her car about 30 feet away in the adjacent parking lot.
Reinhardt motioned to the plaintiff to return toward the store, and when she had done so, Reinhardt said that someone in the store had told him the plaintiff had put three pieces of costume jewelry into her purse without having paid for them. Mrs. Bonkowski denied she had taken anything unlawfully, but Reinhardt told her he wanted to see the contents of her purse. On a cement step in front of the store, plaintiff emptied the contents of her purse into her husband’s hands. The plaintiff produced sales slips for the items she had purchased, and Reinhardt, satisfied that she had not committed larceny, returned to the store.
Plaintiff brought this action against Earl Reinhardt and Arlan’s Department Store, seeking damages on several counts. She complains that as a result of defendant’s tortious acts she has suffered numerous psychosomatic symptoms, including headaches, nervousness, and depression. Arlan’s Department Store filed a third-party complaint against Earl Reinhardt’s employer, Gerald Kaweck, doing business as Michigan Security Police Service, who defaulted. On the counts of false arrest and slander the case went to the jury, who returned a verdict of $43,750. The defendant’s motions for judgment notwithstanding the verdict, remittitur, and new trial were denied by the trial court.
' Numerous errors are alleged on appeal; we'consider those necessary to the disposition of the case.
• We conclude the plaintiff established a case entitling her to go to the jury on a charge of false arrest. But we conclude on the record before us tbat tbe cause of action on tbe ground of slander was not established with legal sufficiency because, as will be discussed infra, the proofs were not adequate to permit a jury’s finding of publication, an essential element of a cause of action for slander. Therefore there must be a new trial.
We first consider briefly the issue whether defendant, Arlan’s Department Store, can be held responsible for the acts of Earl Reinhardt, the private policeman employed by Michigan Security Police Service. Defendant Arlan’s Department Store had contracted with the third-party defendant to provide private police protection in its Saginaw store. The record makes it clear that the apprehension of shoplifters was within the scope of Earl Reinhardt’s authority and that, during the time he was on duty in the defendant’s store, his activities were under the direction of Arlans’ supervisory employees. Therefore, we agree with the learned trial judge that Earl Reinhardt, with respect to the incident giving rise to this action, was acting within the scope of his authority as the agent of Arlan’s Department Store, which must respond for his acts.
Defendant contends the charge of false arrest was erroneously allowed to go to the jury. There is dispute whether or not the judge’s final instruction to the jury actually included the charge of false arrest. We think it did. The trial court, in setting forth the claims of the parties to the jury, said:
“Briefly, this is an action brought by the plaintiff against the Arlan’s Department Store in which she claims damages for slander and false ar'fest, and before the attorneys introduce any evidence, each of the attorneys will make a full and fair statement of their case and the facts they intend to prove, but I merely briefly tell you what this case is about. The Axflan’s Department Store denies any slander or false arrest and therein lies the issue which you people are to decide.” (Emphasis suppliéd.)
And we find in the trial judge’s clear and careful instruction to the jury at the close of the evidence:
“Defendant Arlan’s Department Store claims that if Earl Reinhardt did stop the plaintiff that according to her testimony he only detained her for a period of four minutes and did not attempt to arrest her.” (Emphasis supplied.)
Although the trial court in its final instruction to the jury did not elaborate on this charge of false arrest that it had mentioned to the jury at the outset of the case and early in the charge, nevertheless at no point did the court remove the charge from the jury’s consideration, and therefore we conclude that in fact the charge of false arrest was left to them for consideration in their deliberations.
When Reinhardt called to the plaintiff to stop, he was clothed in the blue and black of a police officer, and was wearing a badge inscribed “Michigan Security Police”. These are facts warranting submission to the jury of the charge of false arrest.
Hill v. Taylor (1883) 50 Mich 549, argued by defendant, although not factually on point since it involved the problem of an arrest by a police officer on an invalid warrant, nevertheless provides dictum of Justice Campbell useful to our consideration of the issue of false arrest involved here. Justice Campbell said:
“There can be no such thing as an action for false imprisonment where the plaintiff has not been arrested; and while, as has been held, manual seizure is not necessary, there must be that or its equivalent in some sort of personal coercion.” 50 Mich 549, 552. (Emphasis supplied.)
From the facts of the incident established at trial, a jury could find such implicit coercion as would support a finding of that unlawful restraint of freedom of action which lies at the heart of a cause of action for false arrest. See also Justice Campbell’s opinion in Brushaber v. Stegemann (1871) 22 Mich 266. Therefore on remand this allegation may go to the jury in accordance with the rule we now set down.
To the common-law tort of false arrest, privilege is a common-law defense, and we recognize as applicable here a privilege similar to that recognized by the American Law Institute in the Restatement of Torts, 2d. In section 120A, the Institute recognizes a privilege in favor of a merchant to detain for reasonable investigation a person whom he reasonably believes to have taken a chattel unlawfully. We adopt the concept embodied in section 120A, and we state the rule for this action as follows: if defendant Arlan’s agent, Earl Reinhardt, reasonably be lieved the plaintiff had unlaAvfully taken goods held for sale in the defendant’s store, then he enjoyed a privilege to detain her for a reasonable investigation of the facts.
The Commissioners’ comment states the strong reason behind recognizing such a privilege:
“The privilege stated in this section is necessary for the protection of a shopkeeper against the dilemma in which he would otherwise find- himself when he reasonably believes that a shoplifter has taken goods from his counter. If there were no such privilege, he must either permit the suspected person to walk out of the premises and disappear, or must arrest him, at the risk of liability for false arrest if the theft could not be proved.” 1 Bestatement of Torts, 2d, page 202.
That the problem of shoplifting, faced by merchants, has reached serious dimensions is common knowledge, and we find compelling reason to recognize such a privilege, similar to that recognized in other jurisdictions. Collyer v. S. H. Kress Co. (1936), 5 Cal 2d 175, (54 P2d 20); Montgomery Ward & Co., Inc. v. Freeman (CA 4, 1952), 199 F2d 720.
In Montgomery Ward & Co., Inc. v. Freeman, the United States Court of Appeals for the Fourth Circuit, in a case arising in Virginia and involving a detention considerably longer than the detention here of Mrs. Bonkowski, reversed a verdict for the plaintiff because of the trial court’s too narrow instruction on the point of justifiable detention and sent the case back, stating that “the instruction should submit the reasonableness of the detention to the jury and should set out the facts which, if found, would constitute reasonable grounds for the defendant’s conduct.” 199 F2d 720, 724.
The privilege we recognize here goes beyond that set forth in the Restatement, for the Commissioners there stated a caveat that “the Institute expresses no opinion as to whether there may be circumstances under which this privilege may extend to the detention of one who has left the premises but is in their immediate vicinity.” 1 Restatement of Torts, 2d page 202.
In their comment, the Commissioners state that, by their caveat, in the absence of express authority, they intended to leave the question open. 1 Restatement of Torts, 2d, page 204. We think the privilege should be so extended here because we think it entirely reasonable to apply it to the circumstances of the case at bar, for the reason that a merchant may not be able to form the reasonable belief justifying a detention for a reasonable investigation before a suspected person has left the premises. - In Montgomery Ward, supra-, the court recognized the privilege as applicable even though the plaintiff was stopped by a manager after she had left the store.
. On remand on the cause for false arrest, therefore, it will be the duty of the jury to determine in accordance with the rule we have set down, whether or not the defendant’s agent, Earl Reinhardt, reasonably believed the plaintiff had unlawfully taken any goods held for sale at the defendant’s store. If the jury finds the defendant’s agent did so reasonably believe, then it must further determine whether the investi gation that followed was reasonable under all the circumstances. If the jury finds the defendant does not come within this privilege, then from the facts as discussed above, it could find a false arrest.
The allegation of slander poses further difficulty. We do not question that what took place in the parking lot adjacent to defendant’s store on December 18, 1962, could sustain a jury finding of actionable slander. The Pennsylvania Supreme Court, in Bennett v. Norban (1959), 396 Pa 94, 98 (151 A2d 476, 478), said of a similar incident:
“The direction to remove her [plaintiff’s] coat, the question about her pockets, the action of feeling in them and then searching her purse: these events formed a dramatic pantomime suggesting to the assembled crowd that appellant was a thief.”
We concur in this analysis and consider that the facts here could support a jury’s finding of a “dramatic pantomime”. See 71 ALR2d 808 “Defamation by Acts”, 3 Restatement of Torts § 568(2).
However, publication, an essential element of the tort of slander, was not established with legal sufficiency so as to make this charge proper. The testimony at trial established that, at the time of the incident, in addition to plaintiff’s husband, Prank Bonkowski, there were other persons present in the parking lot.
Unquestionably, according to the general principle, publication to a spouse of defamatory matter is sufficient to give rise to a cause of action for slander. Publication to one spouse, for example, of an imputation of adultery by the other spouse, is defamation of a most serious kind. But in the instant case, publication to plaintiff’s husband was not sufficient for the reason that, under the facts adduced at trial, there was no possibility that the defendant’s agent defamed the plaintiff in the eyes of her husband. The testimony brought out that it was plaintiff’s husband who paid the cashier for the items of costume jewelry plaintiff was suspected of taking unlawfully. At the scene in the parking lot, when Earl Reinhardt had stopped Mrs. Bonkowski and informed her of his suspicion, Frank Bonkowski responded “show him”. Frank Bonkowski was familiar with all of the facts of the transaction and knew full well his wife had not committed the crime of larceny. The purpose behind the law of libel and slander is the protection of reputation, and the gravamen of an action for slander is damage to reputation. Here what took place could not possibly have damaged plaintiff’s reputation in the eyes of her husband, and therefore, with respect to him, plaintiff was not slandered.
In Linck v. Driscoll (1895), 13 Ind App 279 (41 NE 463), the Indiana court of appeals affirmed a verdict for the plaintiff-wife accused of stealing eggs by the defendant-merchant although the defamation was published only to plaintiff’s husband who had not been present during the defamatory incident. The court’s opinion in Linclc, however, provides the inference that the proof of publication would not have been adequate and the result might have been different if the husband had been present during the incident and had therefore been familiar with the facts of the transaction, knowing his wife had not committed larceny. We find the facts here call for such an interpretation and such a result. Other cases interpreting the requirement of publication when only one third party was present to hear a slander can be found in 92 ALR2d 230, 237, § 9.
Testimony at trial established that there were other persons present in the parking lot at the time of the incident. But the plaintiff responded in the negative to defense counsel’s question whether or not she knew or could identify anyone who had been present. The testimony of only one person, Mrs. Elaine Filiatraut, plaintiff’s neighbor, could provide any possible inference that there had been a publication of the slander. Mrs. Filiatraut’s testimony went principally to the injury alleged by the plaintiff ; she merely testified that, whereas plaintiff had been a jolly, outgoing person, active in school, church, and neighborhood activities, after the incident Mrs. Bonkowski became depressed and introverted. Mrs. Filiatraut had no idea from whom she had heard of the incident. Her testimony is at least as consistent with the inference that she had learned of it from the plaintiff herself, her neighbor and friend of many years, as it is consistent with the inference that she learned of it from someone who witnessed the incident and who recognized the plaintiff. A plaintiff cannot recover for a defamatory statement made by a defendant, if it is the plaintiff, and not the defendant, who publishes the defamatory matter to third persons. Shinglemeyer v. Wright (1900) 124 Mich 230; Wilcox v. Moon (1892) 64 Vt 450 (24 A 244); 92 ALR2d 219.
The testimony of Mrs. Filiatraut, therefore, cannot establish the requisite element of publication, for as the Supreme Court ruled through the opinion of Justice Edwards in Poledna v. Bendix Aviation Corporation (1960), 360 Mich 129, concerning proof of damages in an action for slander, a jury cannot be allowed to speculate by piling inference upon inference. Causal links must be forged by evidence; they cannot be fabricated out of speculations.
Our ruling here does not mean to suggest that requisite publication of slander may never be presumed, as it can be in the case of publication of libel in a newspaper. Steketee v. Kimm (1882), 48 Mich 322. But the proofs here do not suffice.
In Tocker v. Great Atlantic & Pacific Tea Company (1963), 190 A2d 822, involving a defamation with facts similar to those before us, the court of appeals of the District of Columbia held that merely establishing the presence of others does not sustain the requisite burden of proof of publication. Since damage to reputation is the gravamen of an action for slander, there must be proof that the alleged defamation was published to someone who at least recognized the plaintiff. For other analogous interpretations of the requirement of publication, see Enright v. Bringgold (1919), 106 Wash 233 (179 P 844); Gnapinsky v. Goldyn (1957), 23 NJ 243 (128 A2d 697).
Defendant questions the admissibility of the testimony of Anthony Zarlengo, a former employee of Michigan Security Police Service who had been on guard in defendant’s Saginaw store in December, 1962. He testified that a contest was conducted among the private policemen at defendant’s store to spur them on to increased numbers of apprehensions of shoplifters, and that bonuses were awarded to those making record numbers of apprehensions. We think the testimony should be admissible since it is relevant to the question whether defendant’s agent, in calling to and stopping plaintiff, acted on reasonable belief or was actuated by malice. Objection is made that it was not shown Earl Reinhardt was aware of the contest, but we think it would be a fair and permissible inference for the jury to make that, if Reinhardt was a regularly employed guard in defendant’s store, he would have been aware of the contest.
Defendant objects to certain other of the trial court’s instructions to the jury, but from our review we conclude the learned trial judge was entirely correct in these instructions.
On motion for new trial and on this appeal, defendant attacks the verdict on the ground that James Bell, who served as foreman of the jury which returned the verdict for $43,750, had once been involved in a shoplifting incident. Defendant charges the verdict is grossly excessive and betrays the passion and prejudice of an inflamed jury. Our disposition of the case renders consideration of these issues unnecessary.
Reversed and remanded for new trial in accordance with this opinion. The award of costs to await final determination of the cause.
John W. Fitzgerald, P. J., and Burns, J., concurred with Neal E. Fitzgerald, J.
Although the distinctions are not always elearly set out in the authorities, false arrest, or unlawful arrest, is a speeies of the common-law action for false inprisonment. See 1 Restatement of Torts, 2d, § 35, comment a. 3?or a helpful analysis of the tort of false imprisonment, see the editor’s annotation in the footnote of Josselyn v. McAllister (1872), 25 Mich 45.
See, generally, Harper and James, the Law of Torts, Libel and Slander.
Earl Reinhardt died before trial. No question was raised at trial regarding the applicability to the testimony of the “dead man’s statute” then in force, GLS 1961, § 600.2160 (Stat Ann 1962 Rev § 27A.2160), repealed by PA 1967, No 263, effective November 2, 1967. Since the statute, regulating the admissibility of evidence at trial, does not affect the substantive cause of action, the new trial will be governed by the new statute, PA 1961, No 236, § 2166, as added by PA 1967, No 263 (MOLA .§ 600.2166, Stat Ann 1968 Cum Supp § 27A.2166) effective November 2, 1967. This statute will not pose difficulty at the new trial because of the important newly added clause “unless some material portion of his testimony is supported by some other material evidence tending to corroborate his claim.” The testimony of plaintiff was supported by the corroborating testimony of her husband, and therefore the fact of Reinhardt’s death should not render inadmissible the plaintiff’s testimony regarding the incident giving rise to the action.
See 92 ALR2d 15, “Principal’s Liability for Raise Arrest or Imprisonment caused by Agent or Servant.”
It is not dear on the reeord whether or not Reinhardt was carrying a gun at the time of the incident, but this is not determinative, since even absent a gun, the facts present a ease for the jury.
No suggestion is made in tlie record that Keinhardt was deputized hy any police authority.
As stated supra, note 1, false or unlawful arrest is a species of the common-law action for false imprisonment.
In certain jurisdictions, the legislatures have crystallized into statutory enactments the privilege recognized in the above cases in the form of a common-law defense. Eor eases interpreting such statutes, see 86 ALR2d 435.
Compare this common-law privilege with the legislative enactment, CLS 1961, § 600.2917 (Stat Ann 1962 Eev § 27A.2917) in which the Michigan legislature has regulated what are awardable damages in actions such as this. The trial court correetly instructed the jury on the applicability of the statute in this action.
Harper and Janies, the Law of Torts, § 5,IS,
Harper and James, the Law of Torts, §5.15; Lyle v. Clason (NY, 1804), 1 Caines 581. | [
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] |
J. H. Gillis, J.
Plaintiff, Buster Marion, obtained a judgment against Gerald B. Vaughn, principal defendant, who was a public school employee in the State of Michigan and as such was a member of the Michigan public school employees retirement system. Mr. Vaughn made contributions to the system by way of payroll deductions. After leaving the public school service, Mr. Vaughn applied to the garnishee defendant for a return of his accumulated contributions. Thereafter, plaintiff secured a writ of garnishment against the garnishee defendant in an attempt to reach funds of the principal defendant. .The garnishee defendant filed a disclosure denying that it had any assets belonging to the principal .defendant “except funds and/or benefits exempt from garnishment by § 25 of Act 136, PA 1945, as amended, being CLS 1961, § 38.225 (Stat Ann 1968 Rev § 15,893[25]).”
Plaintiff moved for trial of the statutory issue and the garnishee defendant moved for accelerated judgment. The court ruled that it had no jurisdiction over the property involved and granted accelerated judgment on June 8, 1966.
The sole issue for our determination is whether the accumulated contributions of the principal defendant are exempt from garnishment under this factual situation. Section 25 of the act provides:
“A pension, an annuity, or retirement allowance, any optional benefit, or any other benefits accrued or accruing to any person under the provisions of this chapter, the various funds created by this chapter, and all moneys and investments and income thereof,-are hereby exempt from any state, county, municipal, or other local tax, and shall not be subject to execution, garnishment, attachment, the operation of bankruptcy or insolvency laws, or other process of law whatsoever; and the right of a member to a pension, an annuity, or retirement allowance, any optional benefit, or any other benefits accrued or accruing to any such member or beneficiary under the provisions of this chapter shall be unassignable except as in this chapter specifically provided.”
Plaintiff contends that the portion of the act exempting “any other benefits accrued or accruing under the provisions of this chapter” does not cover accumulated contributions, urging that the accumulated contributions are not benefits since the member has made the contribution himself. However, in deciding this case we need not look this far in the act in order to arrive at our determination. This act specifically exempts “the various funds created by this chapter, and all moneys and investments and income thereof.”
Section 12 of the act provides:
“The funds hereby created are the annuity accumulation fund, annuity reserve fund, pension accumulation fund, expense fund and general fund.”
The annuity accumulation fund is next defined in §12 subd (a) as:
“* * * the fund in which shall be accumulated the contributions from the compensation of members for the purchase of annuities.”
"While we have quoted a sufficient portion of the act to support the lower court decision, perhaps we should point out that the purpose of the exemption clause would be defeated were we to hold otherwise. Any accumulated contributions would be subject to garnishment up to the date that the employee enters into retirement. The existence of the fund is a well recognized incentive to faithful discharge of duties during the period of active service. It is of great benefit to the employees to have their accumulated contributions protected both during their working years and those years thereafter when they are unable to perform service in their profession.
Affirmed. Costs to appellee.
Lesinski, C. J., concurred with J. H. G-illis, J.
CL 1918, § 38.212 (Stat Ann 1968 Rev § 15.893[12]). | [
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] |
T. G-. Kavanagh, J.
Some time prior to December, 1963, defendant borrowed $1,500 from plaintiff and did not repay the loan. The debt was listed and. discharged in bankruptcy.
On December 3, 1963, the defendant went to plaintiff’s office and signed an “application for loan” form and a promissory note form.
The plaintiff brought this suit on the note claiming that the defendant had executed the ■ note to “resecure” his credit -with the plaintiff, that cash was given to him to apply on the prior indebtedness and $77.78 in cash was credited to a savings account in defendant’s name.
The defendant admitted signing the instruments but asserted that the forms were not filled in when he signed them; that he explained to the loan manager that he .wanted to buy a car but did not know if he could get credit in view of his bankruptcy, which obligation he could not then repay; that plaintiff’s loan manager told him if he would sign the application he would submit it for loan committee approval and see if he could get credit to purchase an- automobile; that he did not kuQiy that the loan; was made and had no notice of the money said to be in his account.
At the trial the plaintiff produced only one witness, the current credit manager, who had no first hand knowledge of the transaction, but who explained the plaintiff’s record keeping procedure and identified the application, note and other records which were admitted as evidence.
The defendant was the only defense witness and he testified as indicated above.
At the conclusion of proofs the trial court ruled that he believed the defendant’s version of the transaction and gave judgment of no cause of action holding the defendant had sustained the burden of proof of his affirmative defense.
The appeal asserts the court erred in holding that the defendant’s testimony without independent supporting evidence could be held to establish fraud, and that accordingly the court erred in finding that defendant had sustained his burden of proof.
Argument similar to that advanced here by plaintiff was urged in Schiessler v. Pierce (1923), 225 Mich 91. In that case in support of the rule that the burden of proof is on the one asserting fraud, the following language from Hutchinson v. Poyer (1889), 78 Mich 337, 340 was cited:
“It is an elementary principle that he who impugns a transaction as fraudulent, which may or may not be so is not sustained by his own assertion alone in case he is disputed, but has the burden on him to make his allegation good by independent evidence; for he who alleges that a transaction was fraudulent must prove it.”
In Schiessler the court rejected the argument and stated (p 95):
“Counsel assume that under these holdings the denial by the defendants that they made the state ments testified to by plaintiffs precludes recovery, without additional proof, as a matter of law. We do not so read these decisions. It may be well said that where interested witnesses testify to facts tending to establish fraud and other witnesses, also interested, and for all that appears fully as credible, deny the truth thereof, the fraud is not proved. Allison v. Ward (1886), 63 Mich 128. Plaintiff’s case fails, not by reason of the want of testimony of witnesses other than the parties interested, but because the facts are not established by clear and convincing proof. The rule applies to the weight of the evidence and not to the character of the proof necessary to sustain the charge made. The words, ‘independent evidence,’ used in the Hutchinson Case, refer only to evidence outside the pleadings.”
Thus is it clear that fraud can be established by the testimony of but one interested witness if such evidence be not counterbalanced by equally convincing proof. Since interest in a witness only goes to his credibility and hence the weight of his evidence, the effect of his testimony is for the trier of the fact.
In this case there was no evidence denying defendant’s assertion of fraud, and the disposition of the proceeds of the loan by plaintiff in payment of the discharged debt rather than for the purchase of any auto clearly supports defendant’s testimony.
Affirmed, with costs to defendant.
Fitzgerald, P. J., and Levin, J., concurred. | [
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] |
T. G. Kavanagh, J.
The State highway commission, pursuant to the powers conferred upon it under CL 1948, § 213.194 (Stat Ann 1958 Rev § 8.195), offered for sale through public notice, excess land which it had previously obtained under the authority granted in CL 1948, § 213.193 (Stat Ann 1958 Rev § 8.194). The notice stated that the land would be sold subject to certain restrictions against its use for billboard advertisements, such restrictions to constitute a covenant running with the land. Plaintiff, an outdoor advertiser, contends that the highway commission lacks authority under the statutes to impose such restrictions on the unneeded portion of land to be sold, that by so acting the commission has exercised a power never delegated to it by the legislature, and that such unauthorized conduct has injured plaintiff’s business. The statute concerning the sale of excess land states:
“Whenever the whole of a lot or parcel of land is, or has been, taken by any board or the commissioner, as provided in the preceding section, such board or commissioner, or his or their successors in office shall have the right, and are hereby authorized, to sell and convey the portion not needed, on whatever terms such board or commissioner may deem proper.” CL 1948, § 213.194 (Stat Ann 1958 Rev § 8.195).
The highway commission argues that upon acquisition of the land it obtained a fee simple estate which incorporated the right to deal with the property as would any private owner, including a sale of that portion not needed subject to restrictive covenants. To support this position, the commission cites Winter v. State Highway Commissioner (1965), 376 Mich 11, and, along with that, points to the statutory right “to sell and convey * * * on whatever terms” are deemed proper.
In Winter, the Court held that the highway commission “acquired title in fee simple to the parcel in question. The act does not qualify the legal concept of ‘fee simple’ estate as embracing anything less than the entire bundle of rights including subsurface gas and oil rights” (p 19). It was held there to be within the power of the commission to convey title to gas and mineral rights as not needed portions of land, while retaining title to the surface property. Defendant contends, by way of analogy to the above holding, that the commission may sell that portion of its “bundle of rights” in land not needed, while retaining those rights it wishes to withhold from the grantee; in other words, that, as owner of the' fee simple, the portion of land not needed may be sold subject to a negative restrictive easement.
The analogy is inapt. The statute allows for a sale of that portion of land not needed, not for a sale of those rights not needed. “A negative easement is a right in the owner of the dominant tenement to restrict the owner of the servient tenement, in respect of the tenement, in the exercise of general and natural rights of property.” (Emphasis added.) 28 CJS Easements, § 3, p 630. As such it is a retained incorporeal right in the land conveyed by the grantor, thereby lessening that “bundle of rights” normally attached to land conveyed to a grantee. The statute provides that the highway commission take fee simple, but there is no statutory provision allowing for a sale of excess lands with less rights than those attached to the fee upon its acquisition. The commission has only such powers as the statute confers, and the placing of restrictive covenants in the deeds upon sale of excess lands was beyond the power granted to defendant in this section of the statute. As will be shown, it was not necessary, for the implementation of a statutory duty, that the commission find- implied such power in the legislature’s language.
That portion' of the statute allowing the commission “to sell and convey the portion not needed on whatever terms” deemed necessary, pertains to the terms of sale. In the absence of designated duties, to hold otherwise would provide the commission with far reaching powers in areas beyond its authorized purpose, allowing arbitrary discrimination in the absence of specific standards or controls. The statute must be read without such an implication in order to maintain its constitutional validity.
The highway commission next points to the provisions of that act enumerating its powers and duties, in particular the authority:
“(i) To acquire, own, and hold teal and personal property in the name of the state or the commission and to sell, lease or otherwise dispose of or encumber the same in connection with and in furtherance of its duties and the purposes of this act.
“(m) To do anything necessary and proper to comply fully with the provisions of present or future federal aid acts.” CL 1948, § 247.807 (Stat Ann 1968 Cum Supp § 9.216 [7]).
From these provisions, the commission claims it finds the power to place restrictive covenants on sale of excess lands in the exercise of its duties and in furtherance of the purposes of the act, including the duty to comply with the provisions of Federal aid acts.
It is not necessary, however, for the commission to look beyond statutory language or read powers into that language when the legislature has specifically provided the means to comply with Federal requirements. We refer to the enactment of PA 1966, No 333, effective September, 1966 which reads:
“In order to promote the reasonable, orderly and effective display of outdoor advertising, consistent with customary use no sign shall be erected or maintained, subject to the provisions of this section in an adjacent area after January 1, 1968, except the following: ‘Adjacent area’ means an area * * * within 660 feet of the nearest edge of the right of way of any interstate or primary highway.” CL 1948, §§ 252.255, 252.251 (Stat Ann 1968 Cum Supp §9.391 [55], [51]).
These provisions are similar if not identical to those requirements of the Federal government and the enforcement of this statute is properly a function of the commission. The specific language found here makes it unnecessary to find implied additional power in the language of the statute allowing for the sale by the commission of excess land. Therefore, the action by the highway commission was without-authority and, consequently, unenforceable.
Reversed. No costs as a public question was involved.
Lesinski, C. J., and Foley, J., concurred.
“The provisions of this chapter shall be deemed to extend to and include the right to acquire and take property and property rights * * * ; and to acquire and take the fee to the whole of a particular lot or pareel of land whenever in the opinion of the board or commissioner it is advisable to provide for the proper construction, improvement or maintenance of highways.”
42 Am Jur, Public Administrative Law § 26, p 316:
“Administrative boards, commissions, and officers Rave no common-law powers. Their powers are limited by the statutes creating (hem to those conferred expressly or by necessary or fair implication. General language describing the powers and functions of an administrative body may be construed to extend no further than the specific duties and powers conferred in the same statute.”
See O’Brien v. State Highway Commissioner (1965), 375 Mich 545, wherein the Supreme Court held that statutes allowing the highway commissioner to remove signs “that have not. been duly authorized” was devoid of any standards and, thus, constitutionally invalid. ’ ...
The Federal Highway Beautification Act provides that the Federal government may withhold funds in the event that billboards are located within a certain distance of highway right-of-way. See 23 HSCA § 131. | [
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] |
J. H. G-illis, J.
Plaintiffs, building contractors, agreed to and undertook the construction of a* residence for defendants. The parties had a falling out and broke off dealings before the house was completed. Plaintiffs brought this action to recover for the value of their materials and services over and above the amount defendants already paid on the contract. Prior to filing their answer, defendants moved for accelerated judgment (GCR 1963, 116.1) on the theory that plaintiffs were not licensed as residential builders and, therefore, under the terms of the residential building contractors’ act, were precluded from bringing an action, PA 1965, No 383, § 16 (MCLA, §§ 338.1516, Stat Ann 1968 Cum Supp § 18.86 [116]). The trial judge granted judgment for the defendants and this appeal followed.
Plaintiffs challenge the trial court’s ruling on the theories that (1) plaintiffs are not within the statute because they sue for the reasonable value of their materials and services and not upon an express contract, and (2) that the statute is constitutionally defective in denying equal protection of the láws and in bearing no reasonable relation to the. public health, safety or welfare.
These challenges are answered by looking to the terms of section 16 of the act and by our decision in Tracer v. Bushre (1966), 3 Mich App 494, citing in particular Alexander v. Neal (1961), 364 Mich 485.
Affirmed. Costs to appellees.
McGregor, P. J., and A. 0. Miller, J., concurred.
Section 16 provides in pertinent portion: “No person engaged in the business or acting in the capacity of a residential builder and/or residential maintenance and alteration contractor may "bring or maintain any action in any court of this state for the, collection of compensation for the performance of any act or contract for which a license is required hy this act without alleging and proving that he was duly licensed under this act at all times during the performance of such act or contract.” (Emphasis supplied.)
Affirmed, 381 Mich 282. | [
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] |
Per Curiam.
Mildred Lipton was injured at defendant theatre when, en route to the restrooms, she tumbled down a flight of stairs. It was plaintiffs’ contention that the presence of stairs was not publicized, that the area was poorly- lighted and that this setting - constituted negligence on defendant’s part which resulted in the injury. It was defendant’s position that no negligence existed as the stairs were adequately illuminated, and furthermore, that the injured party had failed to exercise due care when proceeding into the area, such failure constituting contributory negligence. Testimony was elicited at trial to support these positions.
The judge, when instructing the jury, commented on the evidence as follows:
“Apparently stairs were involved here. Apparently the plaintiff was aware, at least, of the fact that stairs were involved, where she negotiated a flight of these stairs with safety. "Whether she did so for the entire length of the stairs, having in mind the testimony given on both sides of this particular issue, is what the defendant claims she did not do, and that is, exercise reasonable care for her own safety and use precautions and that there were stairs there.”
The jury then retired for deliberations and, in its absence, plaintiffs’ counsel objected to this portion of the charge as no testimony existed that part of the stairs had been negotiated. In response to the objection the court answered:
“Well, that is as I understand it. I understand she got down the first steps and didn’t know which way to go. That was your comment, at least, because the light was confusing. * * * After all, I told them that my comment doesn’t amount to anything, anyway — don’t pay attention to me, don’t pay attention to you.”
The jury returned a verdict that plaintiff had no cause of action against defendant. Plaintiff appeals.
It is undisputed that the court, in its instructions to the jury, assumed the existence of certain facts when no evidence of such facts existed. Defendant argues on appeal, however, that as the trial was brief and the testimony clear, no prejudice resulted from the trial court’s erroneous comment.
We disagree. The evidence presented could not have been so very clear if it allowed for confusion in the court’s mind. It is impossible to ascertain the degree of influence which the misstatement of facts had on the jury, and therefore, we cannot say that no prejudice resulted. The court’s comments on facts found nowhere in the record constitute reversible error. See Wilkinson v. City of Grand Rapids (1924), 228 Mich 120; Hammock v. Sims (1946), 313 Mich 248; Lord v. Winningham (1943), 307 Mich 300; Fortner v. Koch (1935), 272 Mich 273.
Reversed and remanded. Plaintiff may tax costs.
T. G-. Kavanagh, P. J., and Holbrook and Beer, JJ., concurred. | [
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Levin, J.
The fundamental question presented by this appeal is whether a trial judge may properly reduce or enlarge a sentence based on the amount of the court’s time consumed before a defendant’s conviction.
The defendant Earegood pleaded not guilty to the charge originally lodged against him at the arraignment on the information, August 2, 1965. At the criminal calendar call October 12, 1965, the defendant demanded a jury trial. Shortly before he was given an opportunity to do so the trial judge made the following statement:
“I think it is about time to make my usual announcement, gentlemen. The purpose of this call is to get pleas. If you are going to plead or waive a trial by jury now is the time to do it, so we can schedule. The court has a long memory, and all this goes on record, and when it comes time for sen- fence, if yon plead or waive a jury at the last minute, it is a factor I take into consideration in sentencing. I am sure you all know the risk.”
Thereafter, on November 16, 1965, the information was amended to add the count of assault with intent to do great bodily harm less than the crime of murder, and the defendant pleaded guilty to that charge. The requirements of GCB. 1963, 785.3 (2) were complied with before acceptance of his guilty plea. The defendant was sentenced on December 17, 1965.
As we read Ms remarks of October 12, 1965, the trial judge told all in the courtroom, including the defendant, that those who dilly-dallied in offering a guilty plea might expect to be dealt with more severely should they later decide to offer one. "We take the judge at his word and assume he sentenced as he promised he would, and, thus, that Earegood’s sentence was increased because he dawdled before pleading. Because a sentence may not be enlarged or reduced depending on the alacrity with which the defendant pleads guilty, the sentence must be set aside.
But Earegood also contends the trial judge’s remarks influenced him to plead guilty. This contention presents several subsidiary questions:
— Did the trial judge’s remarks in fact influence the defendant to plead guilty?
— Is the plea insulated from attack because it followed negotiations and an agreement that the de fendant would offer a plea of guilty to an added lesser offense?
— May a trial judge validly increase or reduce a sentence based on whether the defendant was convicted following a trial or a plea of guilty?
I.
The courts hold with substantial unanimity that a trial judge may not properly encourage a defendant to plead guilty or impose a penalty in the form of an increased sentence upon one convicted after a trial.
Most judges would probably agree it is improper for a trial judge to influence a defendant’s decision whether to plead guilty and, thus, on this point at least, practice in general conforms to the judicial statements.
“The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. One facing a prison term, whether of longer or shorter duration, is easily influenced to accept what appears the more preferable choice.” United States, ex rel. Elksnis, v. Gilligan (SD NY, 1966), 256 F Supp 244, 254.
However, despite appellate court statements to the contrary (see footnote 4), many trial judges think it entirely proper to count against the defendant the fact that he has put the State to the expense of a trial, and sentence one convicted following a trial more heavily than if he had pled guilty.
This sentencing practice finds support in tlxe American Bar Association’s recently adopted Standards Eelating to Pleas of Guilty (standard 1.8; quoted in full in footnote 8). The standards state it is proper for a trial judge to grant sentence concessions to those who plead guilty as long as the judge himself does not participate in the bargaining (standards 3.3[a] and 1.8[a], discussed in part II, infra).
The commentary accompanying the standards takes no notice of either the relatively few supportive or the greater number of contrary judicial state ments (see footnote 4), but rather relies on its own exegesis.
In those jurisdictions where plea bargaining focuses on the granting of sentence concessions, the present high proportion of guilty pleas is no doubt in part explained by the practice of granting such concessions or at least leading defendants to believe they will be granted. In proposing as a national standard the practices followed in those jurisdictions, practices contrary to most appellate court statements on the matter, ABA guilty pleas standard 1.8 (discussed in part III, infra) offers a truly minimum standard. That standard does not — and we say this with sincere respect for the judgment of those who participated in the promulgation of the standards — represent the conscience of the law. It is inconsistent with fundamental principles concerning the judge’s role, with the maintenance of any standards at all, and lends respectability to practices which no court should allow.
The high regard we all have for the ABA may well lead to uncritical adoption of standards issued under its authority with the result that the minimum standard will become the common standard. This we feel would be most unfortunate, and, accordingly, we address ourselves to wbat we believe to be a serious threat to well-established principles concerning the use of judicial power.
II.
ABA Guilty Plea standard 3.3(a) states:
“The trial judge should not participate in plea discussions”
while standard 1.8(a) states:
“It is proper for the court to grant charge and sentence concessions to defendants who enter a plea of guilty”.
There is, of course, a difference in degree between overt and covert participation, the former clearly being more inconsistent with the judge’s role than the latter. But the fact that a particular judge grants sentence concessions to guilty pleaders is not the kind of fact likely to be kept secret. On the contrary, lawyers who properly represent their clients make it their business to learn the sentencing policies of the various judges before whom they appear. Thus, in a very real sense, the judge who adopts a practice of going lighter on guilty pleaders cannot avoid participation in the plea bargaining process. His practices may become so well known that it is unnecessary for him to inject himself in the process overtly, but this hardly means he does not participate. The judge’s sentencing practices are a fact, and they are no less a fact because there is no need to rearticulate that fact upon each arraignment.
Standard 3.3 (b) states that where a “tentative plea agreement has been reached which contemplates entry of a plea of guilty * # # in the expectation * * * that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement”, and he may indicate “whether he will concur in the proposed disposition if the information in the presentence report is consistent with the representations made to him.” It is further provided (standard 3.3 [c]) that, notwithstanding the prior plea agreement, the trial judge “should reach an independent decision.” And if the trial judge has concurred in the plea agreement (standard 3.3[b]) “but later decides that the final disposition should not include the * * # sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty”.
"We are convinced of the impossibility of the judge’s avoiding active participation in plea bargaining under the circumstances described by the standard. The length of sentence is the decision of the judge. Prosecutor-defense counsel bargaining over sentence concessions would be an exercise in futility unless the bargainers thought the result of their negotiations would influence the judge. Thus, without at least the judge’s tacit approval (i.e., his “participation”), such bargaining would not take place. If the prosecutor is willing to recommend, for example, 5 years, and the defendant is seeking 2-1/2 years, and they settle on 3-1/2 years, they must of necessity in such bargaining consider the judge’s attitude.
If the judge permits disclosure to him of the prosecutor-defendant agreement upon sentence (as the quoted ABA standard contemplates), how can he avoid stating the reason for any disagreement with the recommended disposition and, perhaps, indicating what sentence he would agree to consider, at least in those jurisdictions where the administration of criminal justice has come to depend on a steady flow of guilty pleas? Indeed, what purpose would be served by disclosing the arrangement to the judge if not determination of whether the bargainers áre on the beam? If a meeting of the minds or finalization of a previously negotiated agreement follows the judge’s statement of his reaction to the parties’ original proposal, surely the judge has participated in achieving that result and in the bargaining itself.
If upon full information the judge decides the proposed sentence is too lenient and (as the standards suggest) offers the defendant an opportunity to withdraw his guilty plea, would not the average defendant carefully consider whether rejection of the judge’s evaluation might lead to a higher sentence should he be convicted following a trial, regardless of whether the particular judge would visit such punishment upon the defendant? The judge’s decision to reject the original sentence agreement is, of necessity, based on the judge’s evaluation of both the offender and the charged offense. After the kind of negotiating' and bargaining which preceded confrontation with the judge, is it not reasonable to expect many, if not most, offenders would conclude both fair trial and fair sentencing have been forfeited?
“Time and again this court has said that justice must not only be done but must manifestly be seen to be done.” Rex v. Justices of Bodmin (1947), KB 321, 325.
III.
ABA guilty plea standard 1.8 needs to be examined in detail.
Considerations (i) and (vi) of standard 1.8 are present in every case where the defendant pleads guilty. Every guilty pleader makes his own punishment more certain and, by avoiding trial, expedites disposition of other cases. The net effect of considerations (i) and (vi) is to permit the trial judge to grant a sentence concession in every case where the defendant pleads guilty and, thus, considerations (i) and (vi) effectively cancel everything else in subparagraph (a) of standard 1.8. It would have been clearer simply to have said that sentence concessions may be granted to all guilty pleaders.
Consideration (ii), allowing sentence concessions to guilty pleaders on the ground “defendant has acknowledged his guilt and shown a willingness to assume responsibility for his conduct”, also applies in every case, if it applies in any case. If the defendant acknowledges his guilt in the expectation of a sentence concession, he is as likely to he trying to put himself in line for a sentence concession as to be truly repentant. Those who think “confession is good for the soul”, that acknowledgment of guilt and repentance is an important step on the road to rehabilitation, should be in the forefront of opposition to plea bargaining in any form, because only elimination of all concessions will remove the temptations which contaminate the moral surge of those truly repentant. Only then could we distinguish the truly repentant from those merely bargaining in the marketplace. Repentance and purchase are not coextensive concepts. The plea bargaining apologists themselves tell us that without the element of purchase there would be far fewer guilty pleas. A palpable inconsistency exists between the pragmatic basis of plea bargaining, the need to obtain guilty pleas, and the beatification of the guilty pleader.
And while we are focusing on remorse, it appears that the bargaining system may create as much recriminatory remorse as penitent remorse. If a defendant pleads guilty in the expectation of a sentence lighter than the one he in fact receives, he may well be left with feelings of both regret and having been cheated, feelings which, whether completely justified or not, are bound to occur in particular cases as long- as defendants are encouraged to believe it is to their advantage to plead guilty. Plea bargaining may then produce at least as much negative as positive remorse and may retard as well as promote rehabilitation.
The ABA standard also asserts (consideration [iii]) that concessions may be granted if they “will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction.” It is unclear whether that consideration is intended to have application to sentence concessions or whether it relates only to charge reduction concessions. In any event, such “better adapted” corrective measures could be achieved without exacting the plea in exchange for the concession — the charge or sentence could be reduced without regard to whether the defendant pleads guilty. It is not proper for a judge to deny correctional measures “better adapted to achieving rehabilitation, et cetera” merely because one has exercised his right to stand trial. Are those ‘'misguided souls who exercise constitutional rights less in need of such alternative correctional measures than those who waive them? On the contrary, it would seem those who perversely insist upon exercising constitutional rights have at least as great a need of “better adapted” correctional measures as the truly repentant who waive them.
Standard 1.8(b) concludes:
“The court should not impose upon a defendant any sentence in excess of that which would he justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law because the defendant has chosen to require the prosecution to prove his guilt at trial rather than to enter a plea of guilty.”
It seems then that the court may impose a lesser sentence than would be justified by any of those considerations upon a defendant who pleads guilty. Defenders of plea bargaining cannot have it both ways. Guilty pleaders cannot receive lighter sentences unless those convicted upon trial receive heavier sentences — disparity there must be. Any such disparity is nothing less than a judicially imposed penalty for the exercise of constitutional rights, however it is dressed and garnished, or however exalted and respected may be the imprimatur of the authority that defends it.
IY.
The sentencing power of the trial judge is enormous. If within the statutory range, the sentence generally is regarded as unreviewable on appeal, even if the defendant asserts and proves that the trial judge abused the discretion confided to him. A trial judge should not be permitted to use that awesome power to accomplish a waiver of fundamental guaranteed rights. One exercising a guar anteed right should not fear he may have to pay a price for doing so. He should not have to fear that if he demands a trial and is convicted his sentence will be higher than if he had waived his constitutional rights. A constitutional right may not be the subject of barter. Neither, in our view, should the exercise of judicial discretion.
“To no one will we sell, to no one deny or delay right or justice.” Magna Carta, Art 40.
Whatever one may think of plea bargaining for charge reductions between prosecutor and defendant, we have not, in tailoring justice to the realities of the docket and prosecutorial and judicial manpower, authorized the trial judge himself to exert any pressure on the defendant to plead guilty. We hope we never shall, whatever may he the backlog of untried cases.
The remedy for the backlog is not more pressure on prosecutors and defendants to strike deals, but increased public awareness of the need to provide adequate funds so there are enough assistant prosecutors and judges to try those whom the prosecutor believes guilty for the offenses he charges have been committed. The trenchant comments of a unanimous Court in R. R. Improvement Association v. Thomas (1965), 374 Mich 175, 187, are in point:
“Our metropolitan circuits being burdened as they are, it is better to let the work of the circuit get farther and farther behind than to crank a judicial meatgrinder the unjust output of Avhich is simply a great number of ‘cases disposed of.’ When such a choice — between contemplative and prompt justice on the one hand and assembly line justice on the other — must be made, it [the Court] is due for bitter criticism either way. But cases tried right, and then thoughtfully decided, amount of a certainty to better judicial service than that which is manifested in this and too many like appendices coming here.”
As things stand now, the experienced criminal assumes he can make a deal for a lesser charge than the one alleged in the prosecutor’s information. More likely than not, he can. Such a state of affairs will hardly inculcate respect for law and order. Participation by trial judges in the negotiating process would, no doubt, speed it up, but the public’s and profession’s esteem for the judiciary is bound to be diminished.
We should not take the next step backward and permit judges to enter the bargaining process. That is what appears on the record before us, and a new trial is ordered.
Y.
The defendant could reasonably understand the trial judge was saying he was a busy man with a long memory and those who run the gauntlet unsuccessfully will be dealt with more severely than those who plead guilty. Might not a defendant or his counsel reasonably conclude that if a penalty will be imposed on those who vex the court by delay in pleading guilty, those who stand trial and are convicted may expect at least similar and perhaps more severe treatment? This seems an entirely reasonable construction. Had we been in the courtroom, this is the message that would have come through to us. Surely the defendant should not be faulted for failing to interpret the judge’s remarks to mean that while those who delayed in pleading guilty, but ultimately did so, would be dealt with more harshly than those who pleaded guilty at the time of the criminal calendar call, those convicted by a jury after a possibly lengthy trial would be sentenced as if they had pled guilty at the criminal calendar call.
There is, of course, no way of knowing what influenced the defendant here to plead guilty. Most defendants who plead guilty are guilty and have been offered an opportunity to plead to an offense with a lower maximum sentence than the offense originally charged and in fact committed. Perhaps so in this case.
Where a defendant claims a promise or threat was made and this is denied, there must be a testimonial hearing to determine the truth of the claim. In this case the promise-threat appears on the ree ord. A hearing on whether the defendant was “influenced” by the promise-threat would be unproductive. The defendant cannot constitutionally be required to submit to questioning and his attorney’s lips are sealed. Any admissions made during the bargaining process with the prosecutor or during the examination by the judge at the time he accepted the plea could be explained away as having been offered to justify the prosecutor in recommending acceptance of the negotiated plea and the judge in accepting it. A hearing to determine if the judge’s remarks influenced the defendant to plead guilty would present a much more difficult factual question than that presented by a trial of defendant’s guilt on the original charge.
We hold that, once established, the promise-threat will ordinarily be presumed to have influenced the defendant. Any other approach would be impractical. We should not spend a great amount of time trying an extraneous issue when in nearly the same time we could try the real issue, the defendant’s guilt.
YI.
The view that sentence concessions should be awarded guilty pleaders is entertained, if not expressed with the candor that appears on this record, by many trial judges (see footnote 5), all of which is known to practitioners and prosecutors and soon becomes known to defendants and the public at large. That view is so widely held that many assume a judge .will go harder on a defendant who is convicted fol lowing trial. Thus, there is an implicit promise-threat in every case, which will not he removed unless, and until, the judiciary convincingly make it known that trial judges will not deal more harshly with a defendant who is convicted following a trial than one who pleads guilty, and all become convinced that is true.
It could be argued that since the promise-threat is implicit in every case, we should grant relief in no case, even this one where the promise-threat appears on the record. ¥e are not willing so to admit judicial impotence to correct unsound practice. That we do not do more is a poor reason for doing less.
Our disposition of this case makes it unnecessary for us to consider defendant’s claims that he was not credited with jail time on his sentence and that the trial court failed to certify the stenographic record of proceedings as required by GrCR 1963, 785.3(3).
The conviction and plea are hereby set aside and the cause remanded for trial.
T. Gr. Kavanagh, J., concurred with Levin, J.
CL 1948, § 750.84 (Stat Ann 1962 Eev §28.279).
It appears that on June 20, 1965, John Henry Parsons transported in his oar the defendant, Charles Lloyd Guenther, Carl Eugene Olmstead and an unidentified female. During the trip the car was stopped; defendant and the female got out and moved some distance from the car. Thereafter, at knifepoint, and with the assistance of Olmstead, Guenther took $2.50 from Parsons. A short time later, it appears that defendant assisted Olmstead and Guenther in throwing Parsons, tied hand and foot, into the river. Parsons survived the ordeal. The defendant, Olmstead, and Guenther turned themselves in to the police.
The 3 were originally charged in a single warrant with armed robbery (CLS 1961, § 750.529 [Stat Ann 1968 Cum Supp § 28.797]) and assault with intent to murder (CL 1948, § 750.83 [Stat Ann 1962 Eev § 28.278]).
Defendant was represented at the preliminary examination by counsel and ivas arraigned on the information on August 2, 1965, stood mute, and a plea of not guilty was entered by the court. At the criminal calendar call, October 12, 1965, defendant requested a jury trial; it was immediately preceding such request that the objected-to remarks by the trial judge were made. Subsequently, on November 16, 1965, amended informations were filed, one charging Olmstead and Guenther with armed assault with intent to rob (CL 1948, § 750.89 [Stat Ann 1962 Eev § 28.284]) and the other charging the defendant with assault with intent to do great bodily harm loss than the crime of murder (see footnote 1).
At the November 16, 1965, hearing an assistant prosecuting attorney stated that, insofar as Guenther and Olmstead were concerned, he thought the people could substantiate the amended charge of assault with intent to rob while armed, but that, as far as the defendant Earegood was concerned, he did not believe the people could prove either robbery armed or assault with intent to rob while armed. He added: “It isn’t quite clear in the history or in the lower court exam as to when Earegood was subsequently picked up again and when he became a party with the 3, but I do feel he had something to do with this man being thrown in the river, although there isn’t any testimony in the lower court exam by the complainant that at any time did William Joseph Earegood in any manner tie him up, and there isn’t any explanation as to when they did pick Earegood up again.”
Olmstead and Guenther then pleaded guilty to the amended charges against them. Earegood was then questioned by the court. He acknowledged he had discussed the proposed amended information with his attorney and knew the nature of the crime charged and that he had a right to a jury trial, and that the maximum penalty that could be imposed upon conviction was 10 years’ imprisonment. He then stated he wished to plead guilty. In response to inquiries from the court he stated that he pleaded guilty freely and voluntarily, he had not been threatened in any way to secure the plea and that no promises of favor or leniency had been made. The following colloquy then took place:
“The Court: What part did you play in this matter?
“Mr. Earegood: I was there to help put him in the -water.
“The Court: And did you help put him in?
“Mr. Earegood: Yes.
“The Court: What did you do ?
“Mr. Earegood: Just helped throw him in the water.
“The Court: You were right there pushing, helping, is that right?
“Mr. Earegood: Yes.
“Mr. Delaney [Earegood’s attorney]: I believe he lifted him out of the trunk, your Honor.
“The Court: Is that the part you played, you helped lift him out of the trunk?
“Mr. Earegood (indicating affirmatively).”
See Rogers v. State (1962), 243 Miss 219, 229 (136 So 2d 331, 335) (judge actively engaged in persuading defendant to plead guilty, made promises and held out hope of lenient treatment at penitentiary. The Mississippi supreme court said: “His lawful duty was just the opposite — to see to it that a plea of guilty was voluntary.”) See, also, Mesmer v. Raines (Okla Crim App, 1960), 351 P2d 1018 (“the court may not properly bargain with a prisoner to induce him to enter a plea of guilty”); State v. Benfield (1965), 264 NC 75, 77 (140 SE2d 706, 708) (“The fact that the court interrupted the hearing before all the evidence was in to express the opinion that the jury would convict defendant, followed by the statement that, if convicted, defendant could expect 'a long sentence/ necessarily leads, we think, to the conclusion that defendant changed his plea from not guilty to guilty because of what the judge said.”); MeClure v. Boles (ND W Va, 1964), 233 E Supp 928 (approving plea bargaining between prosecutor and defendant adding: “It goes without saying, of course, that the court cannot be party to such inquiries or arrangements”).
See, also, People v. Farina (1956), 2 App Div 2d 776 (154 NYS2d 501) (defendant entitled to withdraw his plea of guilty even though judge’s promise as to sentence length fulfilled); affirmed People v. Farina (1957), 2 NY2d 454 (141 NE2d 589). Similarly, see United States, ex rel. Elksnis, v. Gilligan (SD NY, 1966), 256 F Supp 244; People v. Guiden (1958), 5 App Div 2d 975 (172 NYS2d 640).
Accord: Letters v. Commonwealth (1963), 346 Mass 403 (193 NE 2d 578) (defendants told maximum sentences permissible would be given on conviction and lesser sentences would follow a plea of guilty). Similarly, see oft-cited Euziere v. United States (CA 10, 1957), 249 F2d 293, 295. And in another similar case, United States v. Tateo (SD NY, 1963), 214 F Supp 560, the court said defendant’s right to require the government to establish his guilt (p 567) “should not be exercised under the shadow of a penalty”. On re-trial, defendant’s claim of double jeopardy was rejected. United States v. Tateo (1964), 377 US 463 (84 S Ct 1587, 12 L Ed 2d 448), Justices Goldberg, Black and Douglas dissenting, stated that the defendant had been subjected to “judicial coercion”. 377 US 463, 473.
See, also, Commonwealth v. Senauskas (1937), 326 Pa 69, 71, 72 (191 A 167, 168) (“It may be stated generally that for a judge to make a bargain, engagement, or promise in advance of the hearing of a ease, irrespective of what the evidence might thereafter show the facts to be and as to what judgment he should render therein, would be judicial misconduct. Such agreements have uniformly been held to have no binding effect, and they are incompatible with the powers or duties of a judicial officer.”), followed in Commonwealth, ex rel Kerekes, v. Moroney (1966), 423 Pa 337, 349 (223 A2d 699, 705), where the court approved prosecutor-defendant plea bargaining, but opined that judge-defendant sentence bargaining should not be permitted; Waddy v. Heer (CA 6, 1967), 383 F2d 789, 793, dictum that “the promise of a lesser penalty by a judge as an inducement for a plea of guilty [was] properly condemned” in certain eases previously cited; compare Worcester v. Commissioner of Internal Revenue (CA 1, 1966), 370 F2d 713, 718 (“It is no answer to say that the defendant need not accept the court’s ‘offer’. The vice is that vis-a-vis the court he is in an unequal position.”)
Contrast: United States, ex rel. McGrath, v. LaVallee (CA 2, 1963), 319 F2d 308, where it was claimed the trial judge promised defendant consideration should he plead guilty. The court of appeals ordered an evidentiary hearing. On a subsequent appeal the trial judge’s determination that there was no coercion was sustained as not clearly erroneous. United States, ex rel. McGrath, v. LaVallee (CA 2, 1965), 348 F2d 373. Mr. Justice Marshall, then a Federal circuit judge, dissented from the first opinion stating that the transcript undisputably showed improper influence by the trial judge. The trial judge had stated to the defendant (p 320) : “If you are convicted as a second offender of robbery in the first degree, you will be entitled to no consideration of any land from me.” Mr. Justice Marshall declared (pp 319, 320) : “Our concept of due process must draw a distinct line between, on the one hand, advice from and ‘bargaining’ between defense and prosecuting attorneys and, on the other hand, discussions by judges who are ultimately to determine the length of sentence to be imposed. This is especially true ivhen, as hero, conference in chambers is ordered by the judge himself without any apparent request by either defendant or prosecutor.” See, also, United States v. Cariola (CA 3, 1963), 323 F2d 180, where the court, 24 years after sentence, refused to set aside a plea of guilty offered following a sentence commitment; the commitment and the sentence in fact meted out was for the defendant to spend the balance of the day of sentence in the courtroom; the majority stated it did not “condone” or deem “salutary” the practice followed. Chief Judge Biggs dissented because the plea was induced by a sentence promise from the judge himself. It is apparent from the report in People v. Darrah (1965), 33 Ill 2d 175 (210 NE2d 478), that an agreement regarding sentence had been reached before the guilty plea was offered and that the judge had at least discussed the matter with the defendant’s attorney before he pleaded guilty. Nevertheless, the court refused to set aside the plea because there was no proof the judge initiated the discussions.
Letters v. Commonwealth, supra, 405 (193 NE2d 578, 580): “a defendant, whatever his character, may not be punished for exercising ids right to trial and, therefore, the fact that he had done so should be given no weight in determining his sentence.”
In Thomas v, United States (CA 5, 1966), 368 F2d 941, 944, 946, at sentencing the trial judge stated that if defendant admitted his guilt the judge would take that into account and if he persisted in asserting his innocence that too would be taken into account. lie asked the defendant, “Which will it be?”; defendant responded, “I am innocent.” Defendant was sentenced to the maximum term permitted by law. In vacating the sentence the court of appeals stated : “When Thomas received harsher punishment than the court would have decreed had he waived his Fifth Amendment rights, he paid a judicially imposed penalty for exercising his constitutionally guaranteed rights. Upon that ground alone, we think that his sentence is 'subject to collateral attack’ ”,
In People v. Moriarty (1962), 25 Ill 2d 565, 566, 567 (185 NE2d 688, 689), at sentencing the trial judge indicated that had the defendant pled guilty instead of being convicted by a jury a lesser sentence would have been imposed. In vacating the sentence the supreme court of Illinois declared: “A defendant in a criminal case should not be punished by a heavy sentence merely because he exercises his constitutional right to be tried before an impartial judge or jury.”
In Gillespie v. State (1960), Okla Crim, 355 P2d 451, the cause was remanded for reconsideration of the defendant’s application for a suspended sentence which had been rejected solely because the defendant had tried his case before a jury. The court of criminal appeals of Oklahoma stated (p 456): “A policy designed to deny defendant a suspended sentence solely because he demanded a jury trial is contrary to law and an unjustifiable denial of defendant’s rights to have his application for a suspended sentence considered upon its merits ^
See, also, United States v. Wiley (CA 7, 1959), 267 F2d 453; United States v. Wiley (CA 7, 1960), 278 F2d 500; United States v. Wiley (ND Ill, 1960), 184 F Supp 679. In Wiley, a first offender went to trial in a relatively minor felony ease, was convicted and received a sentence of 3 years. His co-defendant, who had 4 prior felony convictions and pled guilty, received a sentence of 2 years. At sentencing the trial judge stated he did not consider probal ion for Wiley because he had been convicted following a trial. On appeal, Wiley’s conviction was affirmed, but the appellate court remanded the case to the district court for consideration of probation. The district court refused to change the sentence and on the second appeal the appellate court again remanded for resentencing, following which the district judge reimposed the 3-year sentence and suspended its execution.
The opinions of the appellate court in Wiley referred to the fact that Wiley’s defense was not frivolous. In People v. Morales (1967), 252 Cal App 2d 537 (60 Cal Rptr 671), it appeared a heavier sentence was imposed because the defendant, “although lacking a meritorious defense”, pled not guilty and demanded a jury trial. The California court of appeals ruled (p 677) “that a trial court cannot impose a more severe punishment on the basis of its conclusion that a defendant who has pled not guilty presented a frivolous defense or one which the court concludes was presented in bad faith. Any such implications in the Wiley case® are rejected by this court.”
Contrast State v. Tuttle (1963), 21 Wis 2d 147, 153 (124 NW2d 9, 12) (The Wisconsin supreme court said that although the defendant was not entitled to leniency for “confession and repentance”, the merits of the case warranted sentence in a lower range than that meted out; the court held it was improper to fine a trial-convicted traffic offender at upper level of statutory range because of his lawyer’s discourtesy to court); People v. Guiden, supra, 976 (172 NYS 2d 642) : “it is an abuse of judicial discretion to impose additional punishment upon a defendant either because his counsel refused to advise him to plead guilty, or as a warning or ‘barometer’ to members of the bar,” but “acceptance of pleas of guilty to lesser offenses with consequent lighter sentences is perfectly appropriate.” See, also, State v. Owens (1958), 21 Conn Sup 418 (158 A2d 867).
Compare People v. Mulier (1968), 12 Mich App 28 (imposition of a harsher sentence following a re-trial where no grounds therefor are shown in the record infringes Michigan’s constitutional right of appeal; in an opinion by Chief Judge Lesinski comprehensively reviewing the case law in other jurisdictions both favoring and opposing this view.)
66% of the Federal district judges who responded to a Yale Law Journal questionnaire considered defendant’s plea a relevant factor at sentencing, with the diminutions varying from 10% to 95% of the punishment which would ordinarily be given if the defendant were convicted following a trial. Note, The Influence of the Defendant’s Plea on Judicial Determination of Sentence, 66 Yale L J 204, 206 (1956). See, also, Newman, Conviction: The Determination of Guilt or Innocence Without Trial, p 89 (1966).
See, also, Pilot Institute on Sentencing under the auspices of tlio Judicial Conference of the United States (1959), 26 FED 231, expressing competing views of several judges who participated in the institute.
In Dewey v. United States (CA 8, 1959), 268 F2d 124, 128, the Court of Appeals took “judicial notice of the faet that trial courts quite generally impose a lighter sentence on pleas of guilty than in cases where the accused pleaded not guilty but has been found guilty by a jury.”
In Detroit, where plea bargaining discussions center around potential charge reduction, in contrast with other jurisdictions where it is customary to seek prosecutorial recommendations to the sentencing judge in exchange for a guilty plea, practice probably conforms with the appellate court statements, although there is a lingering belief on the part of counsel, defense and prosecutors, that stricter sentences will be meted out to those convicted following a trial:
“In bargaining for a plea of guilty to a lesser offense, the prosecutor may intimate to the defense that the faet the county is saved the cost of a contested trial will be taken into account in sentencing. Judges uniformly stated that they did not let insistence upon a trial influence their sentencing decisions, but defense counsel and prosecutors were of the impression that the judges, perhaps subconsciously, did indeed hand down stricter sentences when a trial was insisted upon and the evidence overwhelmingly established guilt.” Law Enforcement in the Metropolis, a working paper on the criminal law-system in Detroit, American Bar Foundation, p 156 (1967). The report concerns the recorder’s court of the city of Detroit.
Originally proposed in a tentative draft February, 1967, as part of the Association’s Project on Minimum Standards for Criminal Justice. The standards were partly revised in December, 1967, and were adopted by the governors of the American Bar Association in February, 1968.
1t is recognized that standard 1.8 (see fototnote 8 for full text) covers both charge and sentence concessions. The granting of charge concessions in exchange for guilty pleas has been largely approved by the courts. (See Judge Levin’s separate opinion in People v. Byrd (1968), 12 Mich App 186, 194). There is, however, an essential difference between charge and sentence concessions. The former are negotiated with the prosecutor, and the judge’s role is essentially passive. The sentencing power, however, is vested in the judge. No meaningful bargaining regarding sentence concessions can take place without at least his tacit approval. Covering both charge and sentence concessions in one standard obscures the difference between bai'gaining with the prosecutor and bargaining with the judge, a difference recognized by the standards themselves when they state (standard 3.3[a]) that the judge should not participate in the bargaining (see discussion, infra, part II), and by the courts (see eases collected in footnotes 3 and 4 and especially quotation above in footnote 3 from Mr. Justice Marshall’s dissenting opinion as a United States circuit judge in United States, ex rel. McGrath, v. LaVallee [CA 2, 1963], 319 F2d 308, 319).
“1.8 Consideration of plea in final disposition.
(a) It is proper for the court to grant charge and sentence concessions to defendants who enter a plea of guilty or nolo contendere when the interest of the public in the effective administration of criminal justice would thereby be served. Among the considerations which are appropriate in determining this question are:
(i) that the defendant by his plea has aided in ensuring the prompt and certain application of correctional measures to him;
(ii) that the defendant has acknowledged Ms guilt and shown a willingness tc assume responsibility for Ms conduct;
(iii) that the concessions will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;
(iv) that the defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial;
(v) that the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct;
(vi) that the defendant by Ms plea has aided in avoiding delay (including delay due to crowded dockets) in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional measures to other offenders.
(b) The court should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law because the defendant has chosen to require the prosecution to prove his guilt at trial rather than to enter a plea of guilty or nolo contendere
Along the same line, the award of sentence concessions has been defended on the ground that the defendant who pleads guilty has thereby avoided perjuring himself at trial, and, conversely, that it is appropriate to impose harsher sentences on those who 'testify and are nevertheless convicted, by a jury because the jury verdict establishes that they have perjured themselves. (See authorities and discussion in commentary accompanying ABA guilty plea standards, pp 43, 44). However, even if the defendant has testified and even if the jury’s verdict might be read as a determinaton that the defendant perjured himself in denying guilt, the judge may not properly punish for that offense until the defendant has been informed against, tried and convicted of that offense, and, conversely, the trial judge may not on that basis properly award to those who waive trial sentence concessions denied those who stand trial on the assumption that had they stood trial they would have testified falsely. See Baker v. State (1968), 3 Md App 251, (238 A2d 561, 566) (The trial judge may not consider defendant’s possible involvement in another crime for which he was neither charged nor convicted: “That a just sentence based on proper considerations is an essential element of a fair trial cannot be questioned”.)
Considerations (iv) and (v) are atypical and, therefore, do not support a system of plea bargaining in general. As to consideration (iv), saving the complaining witness the embarrassment of a trial, see Letters v. Commonwealth, supra, 404, 405 (193 NE 578, 580). (In a rape case trial judge said lie would impose consecutive life sentences “if it became necessary for the complainant to take the stand.” Defendant pled to a reduced charge. In reversing, the appellate court said: “In view ** * * of what is at stake for the defendant it would appear difficult to conclude that a decision not to plead guilty * * * is a significant reflection of character. The circumstances, if onlertainable at all, would be relevant at the time for sentencing and not before. But, plainly, a defendant, whatever his character, may not be punished for exercising his right to trial and, therefore, the fact that he has done so should be given no weight in determining his sentence.”)
As to consideraton (v), a defendant who turns State’s evidence, see Mr. Chief Justice Warren’s dissent in United States v. Hoffa (1966), 385 US 293, 313 (87 S Ct 408, 17 L Ed 2d 374), rehearing denied 386 US 940, (87 S Ct 970, 17 L Ed 2d 880), stating the use of informers is proper in some circumstances but was improper in Soffa.
See. Note, The Influence of the Defendant’s Plea on Judicial Determination of Sentence, 66 Yale L J 204 (1956).
The appellate courts of Michigan have denied themselves the power to review sentences unless the sentence imposed exceeds the statutory maximum. People v. Krum (1965), 374 Mich 356, 362; People v. Connor (1957), 348 Mich 456, 463; In re Doelle (1948), 323 Mich 241, 245; In re DeMeerleer (1948), 323 Mich 287, 289; People v. Harwood (1938) 286 Mich 96, 98; Cummins v. People (1879), 42 Mich 142, 144; People v. Pate (1965), 2 Mich App 66, 68; People v. Tetts (1967), 6 Mich App 254, 259.
It was not always thus. In People v. Murray (1888), 72 Mich 10, at a time when Michigan did not have an indeterminate sentence law and the defendant was required to serve whatever sentence was imposed unless pardoned, the defendant had been sentenced to 50 years in prison for statutory rape. The Supreme Court stated the sentence should not have exceeded 25 years, holding the trial judge had abused the discretion vested in him by the statute (pp 16, 17) : “the sentence imposed * * * is for 50 years, and will very likely reach beyond the natural life of the respondent * * * . We see nothing in this record warranting any such sentence, and it must be regarded as excessive. It will not do to say the executive may apply the remedy in such a case. We do not Tcnow what the executive may do, and it is but a poor commentary upon the judiciary when it becomes necessary for the executive to regulate the humanity of the bench.
“But the Constitution has not left the liberty of the citizen of any state entirely to the indiscretion or caprice of its judiciary, but enjoins upon all that unusual punishments shall not be inflicted.
“We are all of opinion that the present case shows an abuse of the discretion vested by the statute in the circuit judge in this respect.” (Emphasis supplied.)
The ABA has also adopted Standards Relating to Appellate Review of Sentence (February, 1968). These provide that “judicial review should be available for all sentences imposed in cases where provision is made for review of the conviction.” The accompanying commentary states, “Review of the merits of a sentence has actually been undertaken by an appellate court in only 21 States. The number in which review is realistically available in every serious case is much lower, something on the order of 15.” (p 13)
Those States providing for review do so either by statute or, in a few States, by reassertion of the court’s inherent judicial power. In those jurisdictions where appellate review exists, there is at least some opportunity for appellate courts to control sentence concessions negotiated under a plea bargaining system. But in jurisdictions not allowing for sentence review the practices of a bargaining system, except in the rarest case, will be obscured from appellate standards. Thus the ABA Appellate Review of Sentence proposals make somewhat more tolerable, in theory at least, the essentially regressive plea bargaining rationale of guilty plea standard 1.8.
See United States v. Jackson (1968), 390 US 570 (88 S Ct 1209, 20 L Ed 2d 138); Spevack v. Klein (1967), 385 US 511 (87 S Ct 625, 17 L Ed 2d 574); Garrity v. New Jersey (1967), 385 US 493 (87 S Ct 616, 17 L Ed 2d 562).
“Liberty and freedom partake more of the nature of articles of faith than articles of commerce.” People v. Robinson (1955), 344 Mich 353, 361, by Mr. Justice Talbot Smith, dissenting on an issue not dealt with in the majority opinion.
See People v. Byrd (1968), 12 Mich App 186, for a statement of Judge Levin’s views on plea bargaining with the prosecutor over charge reductions. See, also, People v. Hollman (1968), 12 Mich App 231.
The problem is not solely indigenous to Michigan, as shown by a recent article, City Courts Facing a Growing Crisis, The New. York Times, February 12,1968, p 41:
“Every few minutes the assembly-line in the city’s awesomely overloaded criminal court system lurches forward to produce a new defendant in an atmosphere of thinly masked impatience.
“He is like a factory product — ‘like a can of peas being processed,’ says an important criminal lawyer — to be labelled, handled briefly, then moved on, and often forgotten.
“The heavy volume forces such rapid handling — a dismissal, a guilty plea or an adjournment for a later hearing that everyone is under pressure to get out of the way for the next ease. * * *
“ ‘Instant justice’ is the way Justice Bernard Botein, presiding judge of the appellate division for Manhattan and the Bronx, describes the criminal court process. ‘We’re holding it together with Scotch tape and wire because of lack of manpower — lack of judges and court personnel,’ he explains.”
In O’Hara v. People (1879), 41 Mich 623, 624, the defendant was convicted by a jury, and then: “Some very extraordinary proceedings followed. The defendant was given by the judge to understand that he must submit to a severe sentence or else withdraw his plea of not guilty, enter a plea of guilty and immediately pay $400 and estop himself from bringing error. He accepted the last alternative and went through the form of withdrawing the plea on which he had been tried and convicted, and of pleading guilty, and paid in the $400.
“The attorney general very naturally declines to offer’ anything in defense of these proceedings. * * *
“The great impropriety of the later proceedings referred to is too manifest to justify extended comment.
“When a convicted person is brought up for sentence he has rights still, and it is specially incumbent on the judge to take care that they are fully observed and protected. No sort of pressure can be permitted to bring the party to forego any right or advantage however slight. The law will not suffer the least weight to he put in the scale against him, and any attempt cannot fail to he reprobated. Standing at the har to receive judgment the law surrounds him with its protecting principles and intends that his sentence shall he the reflection of its justice and as far as possible free from all taint of human frailty.” (Emphasis supplied.)
The later case of People v. Brown (1884), 54 Mich 15, cannot be read as an approval of the general practice of granting sentence concessions to those who plead guilty and imposing harsher treatment on those who do not. In People v. Brown, the Court found the defendant was not misled by the trial judge and reaffirmed its view that it is improper to induce pleas by promises or threats regarding the sentence to be imposed. The trial judge had been greatly importuned by many people. He acknowledged he had told the defendant if he (p 21) : “should plead guilty, I should view his case as one meriting less punishment than I should feel disposed to impose should he be convicted after a trial by jury.” The Supreme Court stated (P 29) :
“The most that can be fairly imputed to the judge is an excess of patience in listening to the importunities. It was a natural consequence that he should on one occasion have been imprudent enough to intimate a purpose to impose a lighter sentence in case of conviction on plea of guilty than upon conviction by a jury. The importunities drew out from him that much; and it may be assumed that it possibly had some effect upon respondent’s mind.
“Had an intimation of the sort been made by way of threat, and a plea of guilty been secured thereby, the judgment upon the plea ought to be set aside. O’Hara v. People, 41 Mich 623. And even though not given by way of threat, had a sentence of great severity followed, it might have been apparent that the defendant had been wronged.” (Emphasis supplied.)
Compare Bram v. United States (1897), 168 US 532, 543, 565 (18 S Ct 183, 42 L Ed 568); People v. Wolcott (1883), 51 Midi 612, 615.
The defendant Earegood described his acts of participation in the crime before the judge accepted his plea of guilty to the reduced offense (see footnote 2, supra). Those statements may have been entirely accurate; on the other hand, they may have been made in order to justify the trial judge in accepting the plea. See footnote 20, infra, and discussion in People v. Byrd, ante, part IV. See, also, People v. Zaleski (1965), 375 Mich 71, 83; Kercheval v. United States (1927), 274 US 220, 223 (47 S Ct 582, 71 L Ed 1009); Williams v. Kaiser (1944), 323 US 471, 475 (65 S Ct 363, 89 L Ed 398); Rogers v. Richmond (1961), 365 US 534, 544 (81 S Ct 735, 5 L Ed 2d 760). But see People v. Dunn (1968), 380 Mich 693.
Unless the defendant is willing to admit guilt to the lesser offense to which he is offered the opportunity to plead guilty, he will not be allowed to do so. People v. Barrows (1959), 358 Mich 267. See, also, additional cases collected in People v. Byrd, ante, footnote 23.
Harrison v. United States (1968) 392 US 219 (88 S Ct 2008, 2011, 2012; 20 L Ed 2d 1047, 1053).
“Even when there have been no explicit negotiations, defendants relying on prevailing practices often act on the justifiable assumption that those who plead guilty will be sentenced more leniently.” The President's Commission on Law Enforcement and Administration of Justice, Task Force Eeport: The Courts (1967), p 9. | [
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Sherwood, J.
In 1876 the Lake George & Muskegon River Railroad Company was organized under the general railroad laws of this State, with a capital stock of $60,000. The road to be constructed by said organization was about seven and one-half miles long, and mainly for logging purposes.
The first board of directors were E. H. Hazelton, W. S. Gerrish, J. Verree Watson, Leslie E. Gerrish, and William Stafford, and their offices were at Muskegon.
The road was constructed in 1877, and began to be used in hauling logs that year.
In the month of February, 1878, an attempt was made to increase the capital stock of the company to $100,000, and thereafter the transactions of the company seem to be all based on the amended articles and increase of one hundred thousand dollars capital stock, and the reports to the Auditor General of the State show a like increase. The articles of association were also amended, showing an increase of length of road to twenty-one miles or thereabouts.
On April 12, 1881, the company, by its board of directors, recognized its indebtedness to W. S. Gerrish “for money furnished the corporation to pay its current expenses, the purchase of rolling stock, and material for construction,” and by resolution authorized and instructed the president and secretary of the company to execute and deliver to Winfield S. Gerrish a mortgage on its road-bed, iron, spikes, ties, rolling stock, consisting of engines, cars, machinery, machine-shops, and all personal effects now owned and controlled by said cor poration, to tlie amount of fifty thousand dollars, payable at the office of the said company, in Muskegon, in one and one-half years from date, bearing interest at seven per cent, per annum.
On the nineteenth of April, 1881, the president and secretary of said company, pursuant to the resolution stated, executed the company’s mortgage and bond to W. S. Gerrish to ■secure him in the sum of fifty thousand dollars.
On the tenth of May the mortgage was duly acknowledged, and on the thirty-first of May, 1881, the same was •recorded in the register’s office of Clare county.
On the twenty-seventh of May, 1881, Winfield S. Gerrish, for the consideration of fifty thousand dollars, sold and ¡assigned said mortgage and bond to John L. Woods, of Cleveland, Ohio. The assignment was recorded in the register’s office of Clare county, in Liber 2 of Mortgages, page 311.
On the twenty-eighth of November, 1881, the railroad •company, by its board of directors, recognized the fact of the company’s indebtedness to John L. Woods, of Cleveland, Ohio, in the sum of fifty thousand dollars, and recite in their records:
“ Whereas, it appears to us probable that the company will be unable to discharge said indebtedness at maturity, and whereas, said John L. Woods has offered to cancel said debt on the execution and delivery to him of a conveyance of all the property, real and personal, of the company, Resolved, that the president be, and he is hereby, authorized to execute and deliver to said John L. Woods a conveyance of the road, rolling stock, and other property of this company (except its bills receivable and bills payable), on the suirender and discharge of the indebtedness aforesaid.”
On the same day, Woods discharged the mortgage assigned to him by W. S. Gerrish, and surrendered the bond secured thereby to the company, and received a deed of the property, and took possession thereof. He continued in possession and control thereof until he sold the same to the complainants, •on the second day of January, 1882, for the sum of $15,000.
The complainants’ deed was recorded March 18, 1882, in ¡the county of Clare, at about which time they were in the quiet and peaceable possession,of the property, when the sheriff of Clare county, claiming to be acting under a warrant from the Auditor General of the State, dated May 16, 1882, levied upon the property of complainants above.mentioned for the hereinafter mentioned taxes, interest, and penalties stated in the warrant, with his fees, and interest at 10 per cent., and to satisfy the same.
The levy was made on the fifth day of June, 1882, and complainants had been in possession of the property under their deed at that time since the early part of March previous.
The sheriff, who is the defendant, says in his return that the property levied upon was “the property of the Lake George & Muskegon River Railroad Company,” and that he advertised the same for sale, to satisfy the demand of his warrant, on the seventeenth of June, 1882, and at the time of his levy he filed notice thereof as lis pendens with the register of deeds of Clare county.
The warrant recites an indebtedness to the State of Michigan from the Lake George & Muskegon River Railroad Company for specific taxes for the year 18J9, payable July 1, 1880, $2,421.16 ; for the year 1880, due and payable July 1, 1881, $1,856.10; and with interest on both of said sums, making due a total of $1,681.99 the thirteenth day of April,. 1882, at the date of the demand claimed to have been made by the Auditor General.
The warrant further recites that a demand according to-law was made on the thirteenth day of April, 1882, for the payment of said specific taxes and the penalty of 2 per cent-per month.
The sale under the sheriff’s levy was adjourned from time to time until enjoined.
On or about the second of August, 1882, the bill in this cause was filed, and subpoena served, with an injunction to restrain the sheriff from further executing his warrant.
In addition to the foregoing, the complainants further claim that the said levy is illegal, unjust, and oppressive, and that at the time of purchasing the property in question they had no notice of any lien or claim of lien for taxes, and claimed to be bona fide purchasers for full value paid, to wit, $45,000, and were in the actual and peaceable possession of the property as a copartnership at the time of the levy, on the fifth of June, 1882 ; and they further show that they are not a railroad corporation ; had no interest at any time, and have not now, in the Lake George & Muskegon Eiver Eailroad Company.
The prayer of complainants’ bill is that the proceedings under the defendant’s warrant to sell the property levied upon and advertised to be sold may be perpetually restrained, and that the levy may be released and discharged, and for general relief.
The defendant answered the bill, and filed the same on the fifth of January, 1884, and the cause was placed at issue by the complainants’ general replication, filed January 21, 1884.
The defendant admits the levy by him as sheriff of Clare county upon the complainants’ property as stated in the bill, under and by virtue of the warrant from the Auditor General to obtain the taxes and other moneys claimed in the warrant, and that he advertised the complainants’ property for sale as stated, and avers his lawful right so to do; and, further answering, says that upon information and belief he alleges the truth to be that the Lake George & Muskegon Eiver Eailroad Company “ owned, had, and possessed, and used in operating said railroad,” and as appurtenant to it, all the property described in the warrant, “ and that this status of ownership, use, and possession continued, as to all the fixed and stationary property, throughout the years 18J9, 1880, 1881, and in 1882, and up to the commencement of this suit, or so much of the time aforesaid.
That all the said property became and was subject to liens in favor of the State of Michigan for all the moneys mentioned and claimed in the warrantand that “ the said corporation did continue to have such an interest in and relation to said property, and every part thereof, at and through such times.” *
That tlie liens of the State of Michigan, as aforesaid, did “ attach to said property,” and were valid and subsisting liens at the date of said warrant, to secure to the State of Michigan the moneys therein mentioned ; that such liens took precedence over all other claims, demands, or titles, either to or against said company’s property held by complainants, and that all steps necessary were legally taken by the State, and its officers and agents, to perfect its claim to the taxes levied under the warrant upon the corporation property; and that if said corporation ever transferred any or “all of the property aforesaid to said complainants, or to any person or persons under whom they claim, such transfer was either without consideration, or for grossly inadequate consideration, or was on some secret trust for said corporation or some of its officers, and was made and received with intent to delay and defraud the State of Michigan concerning the taxes, aforesaid, and with the intent to hinder, delay, and defraud creditors of said corporation, and that any such transfer or transfers were void by reason of fraud, and that of all the matters aforesaid the complainants have had due and timely notice.”
Defendant, further answering, says that neither complainants nor said corporation ever paid, or offered to pay, any portion of the taxes or moneys so claimed to be due upon the property mentioned in the warrant for such specific taxes.
The case was heard on pleadings and proofs, before Judge Hart, at the Clare circuit, on the fourteenth day of July, 1885, and on the 20th day of August following the circuit judge filed his decree in the case, denying the relief prayed in complainants’ bill; and he further finds, by his decree, that all the material facts and circumstances stated in the answer are true.
That the aggregate of the specific taxes, with the interest due and unpaid at the time of making the decree, was the sum of $5,685, and that the aggregate of the penalties due at the same time was $3,654, making a total aggregate of the specific taxes, interest, and penalties of $9,339, and that for the payment of this sum the State, held a first lien upon the property mentioned in the warrant, and that the State is entitled to enforce such lien by sale of the property, under the decree of the court in this case, to obtain payment of the sum last above stated.
That the complainants did take possession of and convert to their own use the said property, and sold and received pay for a portion of the same, amounting to $6,000, and by means thereof the complainants became liable to pay, and ought to pay, the claim made by the State, — the $9,339,— and the decree then proceeds to direct payment of said sum by the corporation to be made, with interest and costs in this suit to be taxed, including the defendant’s costs under his warrant; such payment to be made on or before the first day of October, 1885, and in default thereof that defendant take so much of the property as he could find within the State and get, in the county of Clare, into his possession, as might bí necessary to raise the amount so claimed by the defendant upon his execution, and sell the same at such place in the county of Clare as he might select, at public auction, after six weeks’ previous notice of the time and place of sale, and containing further directions in case of surplus or deficiency, as in case of foreclosure of mortgages on real estate.
From this decree the complainants take their appeal to this Court.
The record shows that on the thirtieth day of October, 1884, the defendant made a petition to the circuit court in this case, which was joined in by the Attorney General of the State, to be allowed to amend the answer in the case by the insertion therein of certain matters which it is claimed would be proper to bring before the court by cross-bill. This petition was made after the proofs in the cause were all taken, and the cause argued and submitted to the court. Eeally it would appear that the amendments, or rather the necessity for amendments, was suggested by the arguments made at the hearing.
These amendments were allowed to be made the same day the petition was presented, against the protest of counsel-for the complainants. The defendant claimed, under the amendments thus made to the answer, the benefit of a cross-bill under chancery rule No. 123. In the order allowing said amendments, no opportunity was given for the complainants to make answer or reply.
"We do not think these amendments were properly allowed to the answer. The defendant in this ease was the sheriff of the county of Clare, where the suit was instituted. As such sheriff, under the direction of the Attorney General’s warrant, he made his levy and took possession of the complainants’ property. By their bill the complainants ask to-have the sheriff enjoined from making sale of their property.
The defendant is a mere nominal party. It is the interest of the State that is to be affected, so far as the defense is concerned; and, whatever may be the exact relation, under his warrant, he sustains to the State, we need not consider, but it is quite certain he in no sense, in this suit, represents the interests of the State.
It is not claimed that, independently of rule 123, any such proceedings could have been had as have been taken in this case, and there is nothing contained in the rule which would warrant them. It was not the intention of the rule to deprive a party of auy of his substantial rights secured to him by resort to a cross-bill, but to preserve to him all the benefits to be derived from a cross-bill, by stating the substance thereof in the answer. Upon the filing of a cross-bill the-complainant had the right to demur or answer thereto, and take issue on the matter set up in the cross-bill, and support his defense by proofs; and there is nothing in the rule which deprives the party of the benefits of such an issue, or the complainant of any rights to- which he was entitled, in making defense-to the matter set up-in the answer, as fully as he could have done before the rule was made:
No such rights were permitted to the complainants in this case. They were given no time or opportunity to make response to the amended answer.. In. fact,, the amendments- ,were not tiled until after the canse had been heard and submitted to the court for final decree. This was error.
We have now considered the case regarding it as one-coming within the rule, but a more serious error was that of allowing the defendant to amend his bill at all. If, under the discretion of the court, an amendment might, in a proper case, whore all the rights of all the parties were properly guarded, at so late a stage of the proceedings before decree, be made, it is very clear this is not one of them. The-amendment was allowed with a view of affording affirmative-relief to the defendant under the amendment made under rule 123. The defendant’s answer was filed on the fifth day of January, 1884, and the rule was not made until the sixth day of March following, and it cannot be construed to apply to cases pending when the answer was in at the time it was adopted. The rule has therefore no application to this case.
The case, without the benefit to be derived from the rule, stands without any pleading on the part of the defendant to support the affirmative relief granted, and which relates to matters occurring after, as well, as before, the filing of the bill. This, of course, could not be legally done. It was error.
These errors now noticed would of course render a reversal of the decree necessary, but something more is necessary in. disposing of the case.
We do not think any case was made fora cross-bill, upon the showing in the record. A cross-bill can be sustained only on matters growing out of the original bill, and embraced in it: Story Eq. Pl. § 631; Adams Eq. 347, 402, 403; 2 Barb. Ch. Pr. 131; Jen. Ch. Pr. 388; Andrews v. Kibbee, 12 Mich. 96-7; Farmers’ & Mechanics’ Bank v. Bronson, 14 Mich. 361, 372.
The sheriff is the only defendant, and, as we have said,, does not in this suit represent the State. The State can only sue and be impleaded by its officers, and in the way and manner provided by law. In this case the sheriff is only concerned with rthe legal validity of his levy, and cannot bind the State if he would.
There is no right to file a cross-bill in any case when the complainant in it could not have filed an original bill for the same purpose.
There is no case where a sheriff can file a bill in aid of his execution, or to enforce a claim. If any party files such a bill, it must be done by the creditor, or by some person who is legally authorized to do so in his behalf. Such being the case, it becomes still more apparent that the defendant’s amendments to his answer should not have been allowed.
If the complainants’ bill in this suit was not proper, as is claimed by this defendant’s counsel, the only result should have been its dismissal. The defendant sheriff could claim no other relief.
We think, however, the bill should not have been dismissed. The sheriff’s warrant in this case differs in no essential particular from an execution, and under the statute it must be levied on the property of the defendant named in the warrant, and this of course would confine it to the property of the corporation.
We have no law that we have yet discovered, and certainly none has been pointed out to us, which authorizes the sheriff to levy upon the track or road-bed of a railway, even against the corporation. If any levy can be made upon the property of the company, aside from such goods and chattels as may be found and seized and taken into custody by the sheriff, it is only on the franchise of earning tolls as provided by the corporation laws.
The property taken in this case, or levied upon, was not the property of the corporation ; that is to say, the legal title was not in the railroad company. If there was any right to reach it at all, it could only be done by virtue of' the lien claimed under the statute. If that lien exists, it cannot, under the circumstances stated, be enforced by execution, unless it has been directed by a court of equity, after the right thereto has been adjudicated in a proceeding in such court in behalf of the State against the railroad company and the complainants. No such proceeding has been had, and the levy of the defendant, under his warrant, is therefore invalid, and the complainants are well entitled to have an injunction against further proceedings thereunder, and have it made perpetual as against this defendant. <
Whether the lien claimed against this property exists, and, if so, to what extent, or how far, if ever it existed, it may. have been modified by the acts or omissions of any of the parties, are questions which we do not now feel called upon,, by this record, to discuss. We.think the decree entered in the case by the circuit judge should be reversed, and a new decree entered in this Court, making the injunction issued in the case perpetual, but without prejudice to the State or Auditor General to take any action for the collection of the taxes due and collectible which may hereafter be deemed proper and necessary to preserve the interest of the State.
The other Justices concurred. | [
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Campbell, C. J.
This case comes up a third time on error from the Saginaw circuit, upon a claim disallowed by the •commissioners on the estate, but allowed at the circuit by verdict. The claim presented was for what remained due under a contract made November 23, 1878, between John P. Kroll and the decedent, whereby Kroll was to deliver 2,000,000 of white pine logs not less than 14 inches in smallest diameter, from section 12, the N. £ of section 13, and the N. E. ¿ of section 14, in town 20 N., of range 1 E. The price was to be five dollars a thousand feet; payable, three dollars when the logs were delivered within the Tittabawassee boom limits, and two dollars, November 1, 1879. -These logs were to be marked “T. E. N.,” and scaled by an .agreed scaler. Ten Eyck died in August, 1879. The logs were cut in the winter of 1878-79, and scaled that winter. .There was claimed to remain due abalance of $3,815.27, Ten Eyck having advanced during his life-time beyond what was due at the time.
The defense was chiefly based on offsets arising from the .sale by Kroll of logs belonging in whole or in part to Ten Eyck, to an extent exceeding any balance on these “ T. E. N.” logs ; and the. principal grounds of error relate to rulings by the circuit court upon the effect of certain contracts and . transfers, and the admission of testimony to do away with their force. There are several minor questions also.
Kroll was lumbering on several sections in the same neighborhood. Sections 11 and 12, and sections 13 and 14, in town 20 N., range 1 E., are the lands on which logs were cut. Ten Eyck, representing a special partnership of O. & E. Ten Eyck, of which he was the general partner, had considerable dealings in lumber with Kroll, had made advances-for him, and had purchased logs of him.
In October, 1877, Kroll made a bargain with George H. Ensley, whereby Ensley was to cut all the white and Norway pine on the N. E. i of section 14, and the N. W. i and .S. of the N. E. ^ of section 13, and bank and float it ready for the first water in the spring of 1878. Kroll could also, at any time before January 1, 1878, require Ensley to cut the' timber on the N. $ of the N. E. £ of section 13. For this, Ensley was to have $2.10 a thousand, payable in fixed sums-as the logs were skidded, banked, and set afloat. The-expenses of scaling were to be divided. O. & E. Ten Eyck guaranteed to Ensley, Kroll’s fulfillment of his obligations. In the same month of October, 1877, Kroll agreed with O. & E. Ten Eyck to sell them all of the common white pine logs to be cut under the Ensley contract, and deliver them-in the boom limits as early in spring as possible, for five dollars-a thousand, taken under the scale provided for by Ensley & Kroll. All sums paid or assumed to Ensley, or to Ortmann & Kothschild, were to apply on the five dollars, and if made before September 1, 1878, were to bear interest. This contract did not cover Norway or any but common white pine. In February, 1878, or perhaps in January, Ensley quit, having cut and skidded 3,769,665 feet, of which 2,200,-000 were banked. On this he had been slightly over-paid,, receiving in all $6,006.
On the twenty-third day of February, 1878, Kroll sold and conveyed to O. & E. Ten Eyck all his right, title, and interest in a lot of white pine saw-logs then being put into the Tittabawassee river under the Ensley contract, marked “J. P. K,” These “ J. P. K.” logs were small logs.
In the spring or summer of 1878 Kroll executed a contract, which has been prominent in both of the former rec~ ords as well as in this, inasmuch as he claims it was inoperative. It is an absolute conveyance of one-half of all the pine timber standing or being on section 12, and on five 40-acre tracts on section 11, and all the logs and timber cut on those lands that season, for $1,500 ; and it was provided that, inasmuch as Kroll was somewhat indebted on the purchase, the balance due from him might be paid from the proceeds of sale of the timber.
In this same contract Kroll agreed to cut, haul, mark, and deliver in the boom of the Tittabawassee Boom Company, all the logs thereby sold, and all cut, or to be cut, on the N. 4 of section 13, and the N. E. £ of section 14, and to be paid $2.75 a thousand, except about 2,000,000 feet put in by Ensley, for which he was to be paid $2.G0. All rent and charges for banking-ground were to be divided, and paid by each party, and the same as to boomage charges, unless paid by purchasers. Eor settlement purposes the scale on sale to third parties, or if not sold the scale under rope by some competent disinterested party, was to govern.
At this time C. & E. Ten Eyck appear, from these papers, to have owned absolutely the lot of Ensley “ J. P. K.” logs cut by Ensley up to February, 1878, from sections 13 and 14. They had a contract to purchase the rest of the white pine common logs cut by Ensley, at five dollars, on 13 and 14; and by this undated contract they owned an undivided half of the logs on and from 11 and 12, subject to $2.75 a thousand ; and were to pay on their former purchase of Ensley logs $2.60 a thousand for services, including delivery in the boom.
Things stood in this way, so far as the contracts show, in November, 1878, when the contract now sued upon was made. By this contract an agreement was made to furnish, at five dollars a thousand, 2,000,000 feet of white pine common logs, of a size to exceed 14 inches at the smaller end, which were to be cut from sections 12, 13, and 14. Of those claimed to have been cut. there were about half a million from section 12.
So far as these logs were to come from 13 and 14, it is entirely consistent with all the previous contracts. And, inas much as Kroll owned an undivided half of the timber on section 12, there was, so far as we can see, nothing repugnant as to that. Beyond that undivided interest, he was ■entitled to pay, for cutting and delivering at the boom, a sum which considerably exceeded the value of the logs themselves ■on the ground, as fixed by any of these arrangements. There is no legal reason why these contracts may not all stand ■together.
A point -was urged, both on the trial below and in this 'Court, to the effect that Ten Eyck did not take any action under the undated contract; and that although it was found in his possession, and, as we held previously, must be presumed to have been delivered and accepted, yet it could not become practically operative without some further action by him.
This contract was an absolute sale of the undivided half of the timber cut and uncut on sections 11 and 12, whether large or small, white or Norway, for $1,500. All of this was to be banked and boomed at agreed rates. But the contract expressly contemplated that sales would be made in the boom, and that the unpaid purchase money due from Kroll might be paid out of the proceeds. There is nothing contemplating that Ten Eyck was to make sales any more than Kroll, if at all; and there can be no doubt that if Kroll made sales, he must account for. them. There could be no call for action by Ten Eyck until in arrears to Kroll for services, and lie could not be in arrears if Kroll had funds belonging to him.
The principal controversy arose out of various matters which, it was claimed, were inconsistent with the rights which Ten Eyck would have had if full force should be given to the transfers of title under which he apparently held rights. These do not all appear to have been treated alike below, and should be, to some extent, kept separate.
It must be considered, in the outset, that every presumption must stand in favor of the full efficacy of these documents, until overthrown ; and it must also be assumed that they can only be impeached by the conduct of Ten Eyck him self, and that Kroll is not a competent witness as to matters between himself and Ten Eyck upon which Ten Eyck if living could have testified himself.
The circuit court allowed the jury to consider whether the -contract of February, 1878, whereby certain logs were transferred to Ten Eyck, was not given by way of security collateral to the guaranty to Ensley. We have found no testimony in the record which in any way tends to support such ■a theory. So far as anything appears on the subject, Ensley was already paid ; but, whether he was or not, the case does not show anything, which we have been able to discover, which would authorize this transfer to be treated as anything else than a transfer in fact.
Neither have we discovered anything to authorize the court below to lay any stress oh the alleged failure of Ten Eyck to advance money under the undated contract. As ■already suggested, it called for- no advances, and required no payment under any circumstances until logs should be delivered, and charges not otherwise provided for. Neither did it require any action on Ten Eyck’s part in the management of the business, and the charges on both these points were, we think, erroneous.
Testimony was given by one Bartow of statements of Ten Eyck which, it was claimed, referred to the timber covered by the undated contract, and which, if so referring, had some tendency to dispute the existence-of any claim under that contract; and, in connection with these statements, there was proof of a mortgage given by Kroll to Mr. Hoyt, taken, as claimed, on the faith of these representations.
We think this testimony was admissible for the purpose mentioned. While not legally conclusive, it was entitled to consideration. Some portions of it were, perhaps, open to objection as not sufficiently distinguishing between Ten Eyck’s and Kroll’s conversation, and it was not competent to show for what purpose Bartow went to see Ten Eyck, unless so far as it was explained to Ten Eyck ; but the subject itself was pertinent, and so was a considerable part of the testimony.
Similar considerations apply to the correspondence and dealings concerning the mortgage to Mr. Lockwood. That testimony was admissible as having some weight circumstantially in the same direction.
Some testimony was received from Mr. Kroll concerning the delivery of logs, of which he had no personal knowledge. The court seems to have received it on a statement that such knowledge would be shown; but, as he was then on the stand, that was the proper time to show it. It was also-incompetent to allow Kroll to testify why he wrote certain letters to Ten Eyck. This could only be competent" if brought home to Ten Eyck’s knowledge, and upon matters so known Kroll was not competent.
The same considerations apply to Kroll’s testimony about not seeing the contract after he signed it, except in Mr. "Wheeler’s hands, and what took place at that time.- The direct bearing of so much of -this as is pertinent at all was to impeach a paper by contradicting presumptions, on a matter in Ten Eyck’s knowledge as well as Kroll’s; and, in reference to this contract, we think the defendant was right in claiming that, if title once passed under this contract to Ten Eyck, it could not get out of him without some act of release or re-transfer. The real controversy here must have been whether or not the possession of the paper by Ten Eyck was by virtue of an effective delivery, or in some other way.
We think the evidence of scaling was not incompetent. From the nature of the business it cannot always be possible-to show more than was shown here : Smith v. Kelly, 43 Mich. 390.
The remarks of counsel concerning the books, made in the summing up, were outside of any proper issue for the jury,, and not authorized to be allowed to influence them. The court below took this view correctly.
We have referred to all the material points which were discussed on the argument, and think there was error in the particulars which we have specified. The judgment must, be reversed, with costs, and a new trial granted.
The other Justices concurred. | [
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Ziem, J.
A 1963 judgment of divorce which made the parties tenants in common of the marital home also provided for sale of said property upon the plaintiff wife’s remarriage, with the additional provision that from the sale she was to receive $2,560, and that the defendant husband was to receive the balance of the net proceeds from the sale. The plaintiff did remarry. The plaintiff claimed the defendant refused to cooperate in the sale of the home and petitioned to amend the judgment of divorce to grant her authority to proceed with a sale and to transfer the property to plaintiff subject to a lien in favor of defendant for any proceeds from the sale in excess of $2,560. Hearing on this petition was set for July 2, 1965, and a notice and the motion were served on the defendant on June 29, 1965. The defendant filed no answer to said petition and failed to appear for the hearing, and the court adjourned the matter for one week. An order amending the judgment was entered on July 9, 1965, and a copy of it was mailed to the defendant on July 12, 1965.
The judgment of divorce entered on August 9, 1963, provided in part as follows:
“It is further ordered and adjudged that the plaintiff, Eosa L. Harbin, and the minor child of the parties hereto shall have the right to remain in the home of the parties hereto until such time as the said minor child attains age eighteen (18) years or completes her high school education, or until the plaintiff shall remarry, whichever shall occur the sooner, at which time or as soon thereafter as is reasonable, having due regard to the market and other factors, said home shall be sold, and out of the net proceeds the plaintiff, Eosa L. Harbin, shall receive one-half of the present equity of the parties hereby determined to be in the sum of $2,560, and the defendant, Leon Harbin, shall receive the balance of the net proceeds of the sale of said home; provided, however, that plaintiff and/or the minor child of the parties may remain in the home during the period said home shall be listed for sale.
“It is further ordered and adjudged that until the said house shall be sold, the said house * * * shall be held by the parties hereto as tenants in common.”
The amended judgment of divorce entered on July 9, 1965, provided in part as follows;
“It is further ordered and adjudged that the said Rosa L. Harbin Austin shall forthwith list said home for sale, and as soon ‘as is reasonable’, having due regard for the market and other factors, sell said home., and she is hereby granted full authority to execute any and all documents, including purchase and sale agreement and deed to effectuate said sale.
“It is further ordered and adjudged that out of the proceeds of said sale, after payment of realtor’s commission and other expenses of sale, the plaintiff, Rosa L. Harbin Austin shall receive the sum of $2,560, and any sum in excess thereof shall be paid to the defendant Lee Harbin.”
The property was sold on land contract on June 3,1966. The total equity obtained after realtor commissions and other expenses of sale was apparently $1,562.49.
On July 25, 1966, the defendant filed a petition to set aside the amended judgment, which was denied by the trial court.
Defendant claims the court had no jurisdiction to amend the property settlement. Plaintiff asserts the defendant is barred by laches and further that the court did have jurisdiction and power to amend the judgment relative to property where the amendment affected only the procedural aspects of the settlement, not the substantive rights of the parties, and merely clarified the sale procedure.
Generally, the property settlement provisions of a divorce decree or judgment may not be set aside, modified, or altered in the absence of fraud, duress, or mutual mistake, or for such causes as any other final decree may be modified. Keeney v. Keeney (1965), 374 Mich 660, 663. However, if the person ordered to execute a deed or assignment refuses to do so, the court may appoint a suitable person to execute and deliver such instruments, 24 Am Jur 2d, Divorce and Separation, § 942, p 1076. In the instant case, the judgment provided that when the plaintiff remarried, that the home “shall” be sold. The property was being held in a tenancy in common and the conrt found that the defendant refused to cooperate in the sale of the property in accordance with the judgment. Under these circumstances, the court was empowered to appoint a suitable person to complete the sale as ordered in the judgment.
The court had jurisdiction and authority to clarify the original judgment by the entry of an amendment which did not alter the substantive rights of the parties, but merely provided for a procedural remedy when the defendant refused to comply with the terms of the original judgment. See Walker v. Walker (1950), 327 Mich 707.
The Supreme Court of Michigan has held it was proper to construe a decree covering property rights when clarification is required.
“The power of courts to construe a divorce decree and collateral proceedings is not challenged. We have frequently held it proper to construe a decree providing for an adjustment of property rights when the intended disposition requires clarification.” Mitchell v. Mitchell (1943), 307 Mich 366, 370.
In the case before the court, no change was made in the substantive rights of the parties. Both the original judgment and amendment provided that the property be sold and that the appellee receive the first $2,560 and the defendant receive all sums in excess of that amount. The change by means of the amendment was only to facilitate the carrying out of its terms in accordance with the court’s intent in the judgment. The action of the trial court in entering the amendment to the original judgment was within the jurisdiction and power of the court and did not alter the substantive rights of the parties.
In addition to the foregoing, the defendant’s motion was not filed until more than one year after the entry of the amended judgment of which amendment the defendant had full notice. In the meantime, third parties had purchased the property and had substantially changed their position in reliance on the validity of the amendment to the judgment of divorce. The defendant waited for over one year, being well aware that the property had been listed for sale with a realtor, and after he was well aware that the judgment had been amended to provide that the plaintiff should have the right to execute the documents necessary to transfer the property and effectuate a sale. See Curtis v. Curtis (1930), 250 Mich 105, and Cassidy v. Cassidy (1926), 235 Mich 223.
The court will not permit a person to wait until innocent third parties have changed their position in reliance on that person’s failure to act and then allow that person to apply to the court for relief.
“The Court may conclude that suit is not maintainable where, pending the complainant’s delay in asserting his claim * # * rights and interests of third persons have come into existence.” 27 Am Jur 2d, Equity, § 169, pages 713, 714.
The defendant was clearly guilty of laches for waiting one year from the entry of the order which he now seeks to attack and after the rights of innocent third parties had intervened.
For the foregoing reasons, the order denying the motion to set aside the amendment judgment is affirmed with costs to plaintiff-appellee.
Burns, P. J., and Quinn, J., concurred. | [
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McGregor, J.
At issue here is whether or not a circuit court has authority to amend a judgment of divorce to grant the plaintiff mother permission to permanently remove her two children from the State, when the judgment of divorce gave the support-paying father rights of visitation.
An uncontested divorce judgment granted July 20, 1964, gave the mother custody of the two children, gave the father reasonable visitation rights, and provided that the father pay $22.50 weekly for support of the children, plus group medical and hospitalization insurance for their protection. The judgment also contained the required language concerning the necessity of obtaining approval of the court to remove the children from the State of Michigan.
The mother’s petition for modification of the judgment of divorce was filed July 6, 1967, praying for permission of the court to remove the two children to California to live, and also for an increase in support payments. Such petition alleged that the defendant-father’s earnings had increased from $80 or $85 at the time of the divorce to $115 weekly at present. The father’s answer thereto admitted current earnings of $114 weekly, but denied that the reasons given by the mother could be the basis for a modification of the divorce judgment. Concurrently, the father filed a cross-petition for modification of the judgment of divorce, seeking custody of the two children.
On August 1, 1967, the court denied the father’s cross-petition and granted relief to the mother. The order allowed her to remove the children to California, increased the support payments required of the father to $34.50 per week, but provided that if and when the mother took the children to California the support payments should be reduced to $22.50 per week, to continue at the reduced amount so long as the children resided outside the State of Michigan. This modification also provided that the father should have the right to have the two children for six weeks during summer vacations if he had an approved home and paid their round-trip transportation for the visits.
Prom this order of modification of the divorce judgment the father appeals, contending the trial court abused its discretion and that GCR» 1963, 729.4 does not specify the basis of the modification nor provide any guidelines for determination of the appropriate circumstances permitting the removal of a child from this State.
In its comprehensive opinion, given from the bench, the trial court stated:
“The defendant husband remarried in April of this year. * * *
“Defendant * * * never contested this divorce case. * * * He did not contact the investigator to tell his side of the story so far as the children were concerned. * * * Although he was given liberal visitation rights under the terms of the judgment, he hasn’t exercised those rights. * * *
“He had the children 5 days in 4 years. * # *
“He has been indifferent in exercising his visitation rights, * * * he is not going to be greatly put out or concerned by not being able to exercise visitation rights afforded to him in a judgment of divorce in the future if the plaintiff moves to California. * * *
“The defendant has been paying far less than his present earnings would require.”
The court said of the plaintiff'mother, in relation to defendant’s claim of her mistreatment of the children:
“There is no basis for this finding from this court by the testimony presented.”
Neither the father nor the mother give any citations, common-law or statutory, in support of their contentions. It is basic in the law of this State that the trial court retains jurisdiction of the custody of the children in a divorce case, CL 1948, § 552.17; OLS 1961, § 552.17a (Stat Ann 1957 Rev §§ 25.97, 25.97[1]); Kanser v. Kanser (1967), 6 Mich App 26; Hentz v. Hentz (1963), 371 Mich 335, and that the findings of the trial court on modification will not be reversed unless there is an abuse of discretion, Puzzuoli v. Puzzuoli (1966), 3 Mich App 594; McLay v. McLay (1958), 354 Mich 19, which we do not have here.
Affirmed. Costs to appellee.
Fitzgerald, P. J., and J. H. Gtllis, J., concurred.
GCR 1963, 729.4: “Child Custody. The judgment awarding custody of a child or children shall provide:
“(1) That the domicile of the child shall not he removed from the State of Michigan without the approval of the judge who awarded custody, or his successor; and
“(2) That the parent awarded custody shall promptly notify the friend of the court whenever the child is moved to another address.” | [
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Campbell, C. J.
Complainant filed his bill to foreclose a mortgage made by the defendants Phenix to George P. Voorheis, for $4,500, September 29, 1883, to secure a note payable to his order in four years, with interest semi-annually. All the other defendants are brought in as subsequently interested, and no one contests the mortgage but Osborne, and the corporation of which he is head. It is .claimed, and the court found, that except as to $500 the mortgage should be postponed to an execution title held by them under a levy made after the mortgage was recorded, but (as it was held) before complainant obtained any complete equities.
By some mutual arrangement the parties have brought up in the same appeal certain proceedings had to determine their rights to the surplus money arising from the foreclosure of an earlier mortgage upon part of the same premises covered by complainant’s mortgage. That surplus was less than $500, and was directed by the court below to apply on complainant’s mortgage. Osborne & Co. appeal in right of their purchase of a judgment and levy in favor of P. P. Mast & Co., which was earlier than complainant’s mortgage, but which never passed to sale, and is claimed to have been discharged. That such a discharge was made there is no doubt, but it is claimed to have been never delivered, and rescinded for adequate reasons.
The mortgage held by complainant was made at its date to be negotiated, and, pending the negotiation, $500 was obtained upon it from Voorheis, concerning the amount and validity of which advance, there is, in our view, no question; and its record indicated to all persons levying that it was apparently, at least, valid for its full face amount, and there is nothing to show that on the execution sale bidders did not act on that assumption.
In January, 1884, this mortgage was assigned to Elliott G. Stevenson, with covenant that it was good for its face. Stevenson understood, apparently, how much had been ad vanced upon it, and took it to negotiate, in order to provide for liabilities, which appear to have been legal and valid. Stevenson raised from complainant $3,500 in cash upon it, and we are satisfied that complainant had no notice of any equities in derogation of it. A part of this money was used in taking up paper of the Phenixes held by a bank of which complainant was an officer, and the loan, which was his personal advance, was made with that understanding. But we find nothing in the record to destroy the force of his positive testimony that his money was advanced in good faith, and it has always been the law of this State that a person obtaining negotiable paper for a valuable consideration, and before maturity, is protected in its acquisition, unless obtained in bad faith, and the mortgage security in such a case is protected equally with the note. So far as the note is concerned, it was valid, beyond question, against the makers, for its face, and the court-below so held.
We can see no reason why the complainant should not be entitled to foreclose this mortgage for the full amount of his advances, as against the execution sale of defendants. He admits a payment of $1,000, and should have a decree enforcing it to the amount of $2,500, with interest from February 6, 1881.
As to the Mast levy, it appears that after it was made some new security was taken by the attorney for plaintiff, which was accepted as a discharge of the claim. The execution was never returned, and cannot be found. The levy was treated as discharged and the judgment paid, and was so marked on the abstract of title before complainant’s mortgage was made, and Mr. Stevenson was given to so understand when the mortgage was assigned to him. Osborne & Co., when they bought the Mast judgment, which was secured beyond this levy, gave only a small consideration for it, and no steps were ever taken to have the satisfaction rescinded or the levy restored. Under these circumstances, we think the purchasers of the judgment were not in condition to set up this levy.as a prior right of redemption, and; that the order giving priority to complainant was correct.
We have not found it necessary to consider the very informal way in which these proceedings to obtain surplus moneys have been brought before us, or the jurisdictional difficulties which might arise if we held a different view of the merits. This order will be affirmed.
The decree in the main case will be modified by giving complainant’s mortgage preference to the extent of $2,600, with interest from February 6, 1884, less the surplus money received by him under the order of distribution, and he will recover costs of the appeal as well as of the court below.
We have not thought it desirable to discuss the testimony at large, or to comment on it.
The other Justices concurred. | [
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Per Curiam.
Inasmuch as, under the statute, a foreign corporation having an agent served here may be held for a cause of action arising here, and service was had on such an agent in this case, we do not think a motion to quash the declaration was a proper remedy. The plaintiff is entitled to have such an issue fairly presented and passed upon under such general or other plea as defendant shall legally resort to. The declaration does not negative such a cause of action, as it is claimed by plaintiff; and, if there is such a defense, it must be disposed of so as to be open to review in the usual method at common law, by writ of error, based on the record or exceptions, if exceptions are settled so as to present it.
A mandamus must issue to set aside the order to quash, with costs of motion. | [
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] |
Champlin, J.
In 1882, Charles Gf. Yaughn, then of Douglas, Montcalm county, Michigan, was indebted to the plaintiffs, who were partners doing business at Stanton under the firm name of Turner & Reynolds, in the sum of §1,000; and to secure the payment of such indebtedness, with interest, on or before the first day of August, 1883, said Yaughn made and executed to them a chattel mortgage upon a certain horse and other personal property. This mortgage bore date July 31, 1882, but was not filed with the township clerk of Douglas until the second day of October, 1SS2. In the spring of the year 1883, the plaintiffs released from the operation of said mortgage all of the personal property, except the horse in question in this suit, to enable Yaughn to pay other indebtedness than that owing to plaintiffs.
An affidavit was made by Montgomery Reynolds, and filed with the town clerk of Douglas on the twenty-sixth of July, 1888, for the purpose of renewing the validity of the mortgage as notice under the statute.
Before the mortgage debt became due, Yaughn, without the consent of plaintiffs, removed the horse covered by the mortgage from the county of Montcalm, and took the property to Detroit, where he incurred expense for his keep, and on the twenty-ninth day of June, 1883, executed another chattel mortgage upon the horse to Henry Ouellett, to secure the payment of $350. The' residence of neither of the parties is given in the instrument, but the property is described as then being at George W. Yoorhis’ park stables, in the township of Hamtramck, Wayne county, Michigan, and the mortgage was filed the same day in the office of the city clerk of the city of Detroit. This mortgage was assigned on the day of its date by Ouellett to John K. White, and by White to defendant, George F. Case, both of which assignments appear to have been made before the mortgage was filed. A short time after the mortgage was given, Case seized the horse and took it into his possession, under the clause of the mortgage authorizing him to do so •whenever he deemed himself insecure, the mortgage debt not then being due. The plaintiffs then demanded the horse of Case under and by virtue of their mortgage; and upon the refusal of defendant to deliver the possession of the horse unless his mortgage debt, and a lien which he claimed to have for its keep, were first paid, the plaintiffs brought this suit in replevin.
• Upon the trial, the defendant claimed that his mortgage was entitled to priority over the plaintiffs’, because his mortgage was made and filed before the filing of the affidavit of renewal, and because of certain defects claimed to exist in the affidavit which rendered it void.
Whether ©r not the affidavit of renewal was of any validity, is immaterial. The mortgage was not filed until October 2, 1882, and was effective as notice of plaintiffs’ rights as mortgagees for one year from its date. The statute points to the date of filing, and not to the date ©f the instrument, as the time when it ojserates as notice to subsequent purchasers and encumbrancers; and it ceases to be effective or valid after one year from the date of filing, unless renewed as the statute requires. The attempt at renewal, filed on the twenty-sixth day of July, was of no force or effect whatever. The original filing was notice to defendant of plaintiffs’ mortgage, which was in full force at the time the second mortgage was made and filed. The defendant’s mortgage, to have been of any avail as against creditors or subsequent purchasers or encumbrancers, should have been filed in the township of Douglas, where the mortgagor resided.
The lien for the keep of the horse could not prevail over a valid, prior chattel mortgage, and'plaintiffs were not obliged to tender the amount of such claim for keeping the horse before they were entitled to his possession.
What the plaintiffs did with the horse after they obtained possession, could have no bearing upon the validity of their mortgage, and their right of possession under it, and the inquiry in this direction was rightly excluded.
The only other errors alleged relate to the charge of the court, and the rulings upon the admission or exclusion of testimony. A discussion.of the errors assigned upon them is not needful, as upon a careful examination of them we discover no error in such rulings or charge. The judgment must be affirmed.
The other Justices concurred. | [
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] |
Sherwood, J.
This is a case made, coming from the superior court of Grand Rapids. It calls for a review of the action of that court in sustaining a demurrer to the plaintiff’s declaration, and entering final judgment against him.
The declaration contains three counts, which are quite lengthy. The plaintiff’s case as stated in the first two counts is substantially as follows:
That the said defendant, before and at the time of the committing of the grievances complained of, was conducting and operating its railroad in the State of Michigan, through the township of Plainfield, in the county of Kent, through which Rogue river runs, which is crossed in two places by defendant’s road on bridges, one of which is called “ Bridge No. 1,” and the other “Bridge No. 2.” These bridges are about a half mile apart, No. 1 being about 14 feet above the water.
That the defendant had in its employ, on the day the injury complained of occurred, one George S. Powell, as a watchman, whose duty was to watch the said. bridges and the track between and near the same, between trains, and give notice at once to the defendant »of any defects in the bridges or track, and especially to stop locomotives and trains ■on their approach, and give the necessary signals for that purpose, and thus prevent injuries and accidents to persons and property.
The declaration then avers that the plaintiff, who was not connected with defendant’s company in any way, was, on the twenty-first day of August, 1878, requested by the said Powell to go north from bridge No. 1 to bridge No. 2 and stop the construction train which was soon to arrive, and inform the ■conductor of a broken rail in the road a short distance above bridge No. 1, while he, the watchman, went south to stop trains coming from that direction. Plaintiff was instructed as to the signals to make, and told to stop the train at all hazards, as there was imminent danger of the loss of the lives of some 30 men on the train, and great loss of property. Plaintiff, before starting, saw the broken rail, which was a piece about one foot long broken entirely out of the rail and fallen down at both ends. Plaintiff was only 21 years of age, but believing that such imminent danger existed, and that there was no other person who could avert it, undertook to stop the train, and, knowing that such danger did exist, he went to bridge No. 2, and when the train came in sight running backwards, with the conductor on the nearest car, he made the proper signal for the train to stop, and z’epeated such signal a number of times in plain view of the conductor, who saw all of the signals. The tz’ain slacked, bzit when opposite plaintiff it appeaz’ed that the eoizductor and train were going on to the place of danger, and the plaintiff, having but an instant to consider what he should do, as the tz-ain was going by him running slowly, acted on the impulse of the znoment and undertook to get on the forward platform of the caboose car for the purpose of giving information of the danger; that this actiozz on the part of the plaintiff was not rash or reckless, and only such chances of injury were taken as a prudent man would take under such circumstances to save life. The conductor did not obey the signal, and did not stop the train ; whereby the plaintiff was violently.thrown down and injuz’ed in the znanzzer stated in the declaz’ation, substantially disabling him for life.
The third count, in addition to what is stated above, avers that gravel had been permitted to be piled up by the defendant at the side of the track; which contributed to the plaintiff’s izijury by causing his footing to be insecure when attempting to get on the train, and by causing him, when thrown down, to roll against the oil boxes.
The demurrer was special, and the substance of the grounds is fully stated in the following paragraphs:
1. Ordinary care on the paz*t of said defendant did not, at the time and place in said counts mentioned, z’equire, and it did not then and thez’e become, and was not the duty of, the said defendant, on said signals being made, to stop the said train at once or at all, for the purpose stated in said count or otherwise.
2. The defendant did not disregard any duty, at the time and place in said count mentioned, in not stopping the said train at once or at all, and in not regarding or complying with the said signals.
3. The said defendant, by its agents and servants, did not, in continuing to run said train along said road, act willfully, recklessly, wrongfnlly, or negligently.
4. The alleged injuries of the plaintiff were not caused by the fault, neglect, or wrong of the defendant, its agents or servants, in any respect.
5. No relation existed between the defendant and the plaintiff which imposed upon the defendant, its agents or servants, any dnty to the plaintiff with respect to the running or the conduct of its said train at the time and place, and under the circumstances, alleged in said count, nor with respect to which any negligence or wrong can be imputed to the defendant.
6. It does not appear that the watchman, Powell, had any authority to direct plaintiff to perform the service in question.
7. The plaintiff was under no obligation to perform the service alleged to have been undertaken by him.
8. It does not appear bujfc that the conductor, or persons having charge of said train, were in the act of stopping said train, or intended to stop, when plaintiff attempted to board said train, and sustained the alleged injury.
9. It does not appear that said train did not stop.
10. No relation existed between the plaintiff and the defendant whereby any duty was imposed on the defendant, its agents or servants, to have the road bed of said road clear of obstacles, and not to have gravel and earth piled near its track at the time and place in said count stated ; or any duty-in regard to the condition of its road-bed and track at said time and place, or to stop said train, or any duty in relation to the conduct of said train, or to regard any signals made by the plaintiff.
11. Ordinary care and prudence on the part of the defendant, at the time and place in said third count mentioned, did not require, and it did not become and was not the duty of the defendant to have the road bed of said road clear of obstacles, and not to have gravel and earth piled near its track, so that persons whose duty it might be to go on said track, or near the same, should not be subject to any unusual danger thereby.
12. It was not the duty of the plaintiff to go onto said track, or near the same, at the time and place and under the circumstances in said count stated.
13. Ordinary care and prudence on the part of the defendant did not, at the time and place in said count stated, require, and it did not then and there become and was not _tlie duty of the said defendant to stop the said train at once ■or at all, on said signals being made for the purpose stated .in said count, or for any other purpose whatever.
In passing upon the questions raised in this case we can ■only consider the statements of fact made by the plaintiff, and from them, upon a proper application of the law, determine whether or not the plaintiff has a cause of action against the defendant. The demurrer admits the facts properly stated in the declaration to be true.
We are permitted to draw such conclusions only, from the facts stated, as would have come strictly within the province of the jury. We cannot consider any conclusion stated by the pleader in the declaration, based upon the facts or the circumstances surrounding them, which would not naturally and necessarily result therefrom, and these alone are the proper facts to be pleaded.
Keeping these rules in view we proceed to consider the averments made in the declaration, upon which the decision of the case is made necessarily to depend.
■ The plaintiff was not in the employ of the company, and it owed no duty to him on that account. It is true he had been requested to go north and signal the train to stop, by Powell, and, in making the request, he was told just what to do, and how to do it; but no part of the instructions given included a request that the plaintiff should make the attempt to board the train under any circumstances.
It does not appear that Powell had any authority to make the request. Be this as it may, however, it certainly appears the plaintiff exceeded the instructions given, and he was under no legal duty to obey them, however strong might be the claims of humanity and his moral obligation so to do. But under no circumstances would the duty springing from these latter obligations require him to imperil his own life, or subject himself to any great danger, however laudable and praiseworthy his efforts might be: Eckert v. Long Is. R. R., 43 N. Y. 502; 2 Thompson on Neg. 1174. We must, therefore, regard the case upon the facts stated as one in which the service attempted, and which resulted so disastrously to the plaintiff, was voluntarily assumed upon his part, and, therefore, necessarily at his own risk. Fearing that the signals' he had given, though seen by the managers of the train, had not been understood, or, if understood were to be entirely disregarded, to the great danger and imminent peril of the persons upon the train which was just then passing him at a rate of speed not exceeding four miles an hour, he rushed over a sandy embankment upon the side of the track to the caboose car and made an attempt to get upon its platform, and, failing in his effort, was knocked down by the cars, and in this manner received the injury of which he complains, and for which he seeks to recover damages of the company. TTpon these facts the circuit judge sustained the demurrer, and we think his ruling was correct.
It is claimed on the part of the plaintiff:
1. That it was the duty.of this plaintiff to make every effort he could to stop the train without being wantonly reckless.
2. That he was guilty of no contributory negligence in his attempt to enter the car in the running train.
3. That it was the duty of the defendant to have stopped its train when signaled by the plaintiff.
4. The defendant was guilty of wanton and willful negligence in not stopping the train, and in such case the contributory negligence of the plaintiff cannot be urged to prevent recovery.
5. That in any event, as the effort of the plaintiff was to save human life, in immediate peril, whether the act of the plaintiff was rash or reckless, was a question for the jury and not for the court.
The first point made by plaintiff’s counsel we have already considered.
The second point is not well taken. It has always been regarded as negligence for a stranger or a passenger to attempt to enter a car. in a running train, and, we think, rightly so; and especially must such be the ease where the attempt is made when the train is running across the country, at a point not in near proximity to a station or depot, and when all the surroundings are plainly seen, and forbidding in their character, as in this case : Knight v. Pontchartrain R. R. Co. 23 La. An. 462; Hubener v. New Orleans & Carrol. R. R. Co. Id. 492; Rensaler v. Saratoga R. R. 49 N. Y. 177; Chicago, B. & Q. R. R. v. Hazzard, 26 Ill. 373; Dumont v. New Orleans & Carrol. R. R. 9 La. An. 441; R. R. Co. v. Aspell, 23 Penn. St. 147; Ill. C. R. R. Co. v. Abel, 59 Ill. 131; Gavett v. Manchester & Lawrence R. R. 16 Gray 501; Jeff. R. R. Co. v. Hendricks' Adm. 26. Ind. 228; Id. v. Swift, Id. 459; Ill. Cent. R. R. v. Station, 54 Ill. 133 ; Lambeth v. N. C. R. R. Co. 66 N. C. 494; Jeff. Madison & Indianapolis R. R. Co. v. Hendricks, 41 Ind. 48; Eldridge v. Long Isl. R. R. Co. 1 Sandf. 89; Mich. Cent. R. R. Co. v. Coleman, 28 Mich. 440.
The facts stated bearing upon the third point, show the plaintiff’s signals were first obeyed, and that the engineer stopped his train north of bridge No. 2, and about 125 feet from the plaintiff. Apparently the signal was without cause. Such being the fact, and it coming not from an employe of the defendant but from a stranger, the conductor or engineer would hardly be expected to heed a second warning emanating from the same person. But an engineer is not required to heed the signal to stop his train given by a stranger, when no danger is in sight or may be reasonably apprehended : Mobile, &c. R. R. Co. v. Blakely, 59 Ala. 471; Packalinsky v. N. Y. Cent. R. R. 82 N. Y. 424; Tanner v. Louisville R. R. Co. 60 Ala. 621; East Tenn. R. R. Co. v. Swaney, 5 Lea (Tenn.) 119 ; Phila. & Reading R. R. Co. v. Spearen, 47 Penn. St. 300 ; Scudder v. Ind. Peru, &c. R. R. Co. 1 Ind. Superior Court Rep. 481; 2 Rorer on Railroads, 1032 ; Indianapolis, &c. R. R. Co. v. Horst, 93 U. S. 291; R. R. Co. v. Jones, 95 U. S. 439; Lewis v. Baltimore, &c. R. R. Co. 38 Md. 588.
Upon the fourth point, the facts as given in the declaration present the evidence relied upon of wantonness and willfulness in tlie defendant’s management of the train, but nothing of that kind appears therein, and the conclusion stated in the declaration upon these facts is entirely without foundation ; consequently, whether the rule stated is correct or not is immaterial, as it certainly cannot be applied to the facts stated in this case.
Upon the fifth and last point, we think the case stated shows not only a want of ordinary care but gross negligence on the part of the plaintiff, amounting to extreme rashness and recklessness, in his attempt to enter the caboose car in the manner he did. His act was voluntary and utterly uncalled for upon the facts stated. The judgment at the circuit must therefore be affirmed.
. Campbell, C. J., and Morse, J., concurred. Chahplin, J. i did not sit. | [
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] |
Champlin, J.
The declaration in this case is as follows:
“ State of Michigan, County of Wayne, City of Detroit— The Superior Court of Detroit.
“Henry J. Goodall, of Jackson, Michigan, plaintiff herein, by J. S. Dewey, his attorney, comes and files this declaration as commencement of suit, and complains of Peter Henkel, of the city of Detroit, in said State of Michigan, defendant herein: for that, whereas, the said plaintiff, on the sixth day of March, in the yean 1885, was possessed of the following real estate and premises, situate in the city of Detroit, county of Wayne, in said State of Michigan, ana being known and designated as the west twenty feet (20) of the east half of lot thirty-eight (38), in section numbered six (6), in the city of Detroit, in the county of Wayne, and State of Michigan, according to the governor and judges’ plan of said city; and he, the said plaintiff, being so possessed thereof, the said defendant afterwards, to wit, on the ninth (9th) day of March, in said last-mentioned year, entered into said premises, and anlawf ally withholds from said plaintiff the possession there of, to tlie damage of said plaintiff fifty thousand dollars, and! therefore he brings suit,” etc.
“ J. S. Dewey, Attorney for Plaintiff.
“Edgar Weeks, of .Counsel.”
A plea of the general issue and notice of the statute of limitations were interposed, and a trial had, which resulted in a verdict and judgment for the defendant.
The action of ejectment in this State is regulated by statute. Section 7794 of Howell’s Statutes provides that,
“ It shall be sufficient for the plaintiff to aver in his declaration, that on some day therein tobe specified, and which shall be after his title or right accrued, he was possessed of the premises in question, describing them as hereinafter provided ; and, being so possessed thereof, that the defendant afterwards, on some day to be stated, entered into such premises ; and that he unlawfully withholds from the plaintiff the possession thereof, to his damage, any nominal sum the plaintiff shall think proper to state.”
This section must be read in connection with section 7797, which enacts:
“ If the action be brought for the recovery of dower, the-declaration shall state that the plaintiff was possessed of the one undivided third part of the premises, as her reasonable dower as widow of her husband, naming him. In every other case the plaintiff shall state whether he claims in fee, or whether he claims for his own life, or for the life of another, or for a term of years, or otherwise, specifying such lives, or the duration of such term.”
The requirement of this section is mandatory, and the declaration is fatally defective without it complies therewith. The verdict must follow the declaration in this-respect: Section, 7815, sub. 7. In actions for the recovery of real property the declaration must' state the nature and extent of the plaintiff’s claim : Michigan Cent. R. R. Co. v. McNaughton, 45 Mich. 91; Kinney v. Harrett, 46 Mich. 90 ; Allie v. Schmitz, 17 Wis. 169-174 ; Ballance v. Rankin, 12 Ill. 420 : Tyler Ejectm. 39.
The defendant should have demurred to the declaration. Tlie error is such, however, that it calls for an affirmance of the judgment.
We have looked into the errors assigned upon the objections to the validity of the guardian’s sale, and we agree with the judge of the superior court that the five facts required to make the title of the defendant incontestible as against the plaintiff, under section 6102, How. Stat., appear from the record before .us, and therefore the learned judge was right in directing a verdict, for the defendant for that reason. The statute is essentially a statute of repose, and was first incorporated in our laws by the revision of 1838, in exactly the same language in which it exists to-day. It was retained in the revision of 1846, and has continued without1 change until the present time, — a period of nearly fifty years. It has become a rule of property in this State, and it is too late now to challenge its validity on constitutional grounds, if any such exist.
The judgment must be affirmed, and the case remanded to the superior court for the city of Detroit, in order that the plaintiff may take such further action under the'statute as he may be advised.
The other Justices concurred. | [
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Sherwood, J.
The bill in this case shows that the complainant is a resident of the state of New York; that on the second day of September, 1878, he loaned to John Hamilton, of Ionia, $500, and took his negotiable note, payable. to his order, due in one year from date, at seven per cent., therefor; that on the eleventh day of August, 1880, the maker paid one year’s interest on the note, and on the thirtieth day of the same month he died at Ionia, leaving the note still in the hands of complainant unpaid, and that ■complainant always has been and still is the owner thereof; that on the fifth day of July, 1881, Daniel Hamilton, of the county of Ionia, was duly appointed administrator of the estate of John Hamilton by the probate court of said county, and still remains acting as such ; that soon after the death of John, the plaintiff, being in Michigan on a visit to Ionia, as he was about to leave for home, indorsed his name upon the back of the note, and left it with George W. French, of Muir, for the purpose of having him present it to the commissioners on the estate, for allowance against the estate; that before the first meeting of the commissioners Margaret Curtiss, the defendant above named, and daughter of John Hamilton, went to the office of Mr. French, with the intent to wrong and cheat the complainant, and obtain possession of the note, and fraudulently obtained possession thereof, saying at the time to said French that she wanted to see the indorsement upon the same, and to see the signature, and that French handed the note to her for the purpose she stated; that as soon as she received the note from him, she put it in her pocket, and immediately left the room ; that she did this against his consent and protest, saying, as she left, “ Uncle owes me, and I am going to keep this note,” refused to give it np, and a short time thereafter carried it away with her to her residence in the state of Minnesota.
The bill of complaint further charges that said complainant did not owe’her anything; that she had no right to take the note, and had no interest whatever therein ; that, Mrs. Curtiss being out of the State, the complainant could not replevy, the note; that she is entirely insolvent, and ever since has been ; and that she and her husband reside in Minnesota.
' And complainant further avers that under advice of counsel, at the first meeting of the commissioners, he presented a claim upon said note for allowance, in the following form:
“The Estate of John Hamilton, Dr., to ¥m. H. McKinney for money loaned to said Hamilton on the second day of September, 1878, with interest at seven per cent, from date of loan, said loan having been made on a promissory note bearing date September 2, 1878, and signed by John Hamilton, which said note the said McKinney is not able to present at present. We claim to be due from estate, October 20, 1881, $574.65.
“ W. H. McKinney,
“By Morse, Wilson & Trowbridge, Attorneys.
“The note being the same one presented to commissioners by Mrs. Curtiss, which note we claim is now owned by said’ McKinney, and not by Mrs. Curtiss.
“Amount, - - - $500 00
2 years’interest, - - - - - 70 00
1 month, ------- - 2 91
18 days,.......- 1 45-
29
$574 65’r
The bill further charges that upon the hearing before the commissioners the defendant Mitchel acted as attorney for the estate, also as attorney for the defendant Mrs. Curtiss; that he appeared for her with said note in his possession, and asked that it be allowed in her favor and against the estate.
That complainant appeared by his attorney, and offered to show', as against the allowance of the note in favor of Mrs. Curtiss, and in favor of its allowance in his behalf, that the note did not belong to Mrs. Curtiss, and that she had no right thereto or interest therein, and that she obtained possession of the same by fraud, and that the complainant was the owner thereof, and entitled thereto ; that these facts, however, were objected to by defendant Mitchel, and that the commissioners would not allow complainant’s counsel to make such proofs, and allowed the note in favor of Mrs. Curtiss, and disallowed the complainant’s claim therefor as follows :
That on the back of the claim presented by complainant, the commissioners indorsed the following: “ Disallowed on the ground that the question of ownership of the said note is one that we have no right or jurisdiction to decide.”
And the bill further shows that the said Daniel Hamilton, administrator, is also a brother of Mrs. Curtiss, and that, on request of complainant, he refused to take an appeal to the circuit court from the allowance by the commissioner of said note in favor of Mrs. Curtiss, and that complainant took an appeal in both cases to said circuit court: that complainant’s case against the estate was heard in the circuit court, and the circuit judge made the same ruling as did the commissioners, and disallowed his claim, and that said defendant Mitchel appeared upon said trial as attorney for the estate; that said circuit court decided that it could not hear the testimony showing the complainant to be the owner of the note and that Mrs. Curtiss’ possession of the same was a fraud, and affirmed the report of the commissioners, and that this action of the commissioners and of the circuit court in the premises was subsequently affirmed in this Court (see 53 Mich. 497); that the case of Mrs. Curtiss appealed to the circuit has not yet been tried.
The bill further states, using its own language:
“ That the said Daniel Hamilton, combining and confederating with said William W. Mitehel and Margaret Curtiss to cheat and defraud your orator out of the just amount of said note, which belongs to him, will not resist the suit of Mrs. Curtiss, now pending on appeal, as hereinbefore set forth ; but will, unless restrained by this court, pay to her or the said William W. Mitehel the amount of said note out of the money in his hands as administrator of said estate of said John Hamilton, deceased.
And your orator further shows that said note belongs to him; that said Margaret Curtiss obtained and holds said note without right, and in fraud of your orator’s rights, and that in equity she holds it in trust for his benefit; that the estate of said John Hamilton, deceased, does not dispute the .genuineness of said note, or that it is a legal or valid claim against said estate; that said note is now on file in said probate court; and that in none of the proceedings as heretofore taken have the merits of the question as to who owns said note been tried or determined.
And your orator further shows unto the court that the said Margaret Cul’tiss obtained the said note in the way and manner she did for the express purpose of cheating and defrauding your Orator ouf of the same; that she was advised to do so by said William W. Mitehel, and that he, the said William W. Mitehel, has combined and confederated with her all through said legal proceedings, hereinbefore set forth, to defeat your orator in his attempt to recover the value of said note, or said note, at law, and that William W. Mitehel and said Daniel Hamilton, as administrator of said estate, are now combining and confederating together to still further harass and annoy your orator, and to defraud and cheat him out of his just rights in the premises, by taking means to have said administrator, Daniel Hamilton, pay over, or pretend to pay over, out of the funds of said estate of John Hamilton, the amount of this note and interest to said Margaret Curtiss, or their assignees, and destroy said note ; that your orator is informed and believes that the said William W. Mi toll el has already, since the decision of said Supreme Court, taken steps to induce said Daniel Hamilton •to pay the amount of said note to him, so that your orator could not reach it.
And your orator further shows 'that, unless enjoined by the order of this court, he is fearful that the amount will be so paid and the note destroyed, and his equitable rights to said note and its value entirely destroyed, and barred beyond all relief.”
The bill prays that a decree may bé entered decreeing the note to be the property of the complainant, and that Mrs. Curtiss holds the same in fraud of his rights and in trust for him, and that he is entitled to the claim allowed'her against the estate, and that the estate be decreed to pay the same to complainant; and also prays for general relief, and that defendants be enjoined from doing those things inconsistent with the relief prayed.
Defendants Hamilton and Mrs. Curtiss filed their joint and several answers, asking therein the benefit of a general demurrer. Defendant Mitchel filed a demurrer specifying four grounds, as follows:
“First. That all and every of the matters in the said complainants bill mentioned and complained of were matters which might be tried and determined at law, and with respect to which the said complainant is not entitled to any relief in a. court of equity.
Second. That the said right of action, if any ever existed, is barred by the proceedings at law brought to enforce the ■same.
Third. That the complainant, by his said bill, has not shown himself entitled to any relief in a court of equity.
Fourth. That the statements, charges, and allegations in said bill of complaint whereby this defendant is sought to be charged as party defendant thereto are too vague, uncertain, indefinite, to demand or require answer thereto.”
The case was heard at the Ionia circuit, before Hon. Vernon H. Smith, who overruled the demurrer, allowing defendant Mitchel twenty days in which to answer. Defendants all have taken their appeal to this Court.
I think the decree of the learned circuit judge is correct. The demurrer ought not to be sustained. I am not able to-discover any good reason why the judgment should be held a bar, found in the case in 53 Mich. 497. It must be remembered this case in this Court stands on the demurrers,, and, for the purposes of this decision, all the material facts-charged in the bill stand admitted by all the defendants.
Now, the following facts must be held conceded:
First. That the consideration given for the note by the' complainant was $500, in money, and that he is the owner thereof, and that the money is due to him thereon from the estate.
Second. That while the note was in the hands of the complainant’s -agent for the purpose of obtaining allowance thereof by the commissioners, and collection against the-estate, the defendant, who had no interest in the note whatever, with the intent to cheat and defraud the complainant out of his property, by false pretenses and fraud, and against the remonstrance and protest of the complainant’s agent, obtained possession of the note, and carried it away with her into a distant state.
Third. That by collusion with the administrator, who is her brother, she has obtained an allowance before the commissioners of the note in her favor; said commissioners refusing to allow complainant to make any proof before them that Mrs. Curtiss had no interest in the note, and that he was the owner thereof, and entitled to the possession thereof and to the pay thereon.
Fourth. That he has appealed from the decision of commissioners allowing the amount due upon said note in her favor, and that the case has not yet been tried.
Fifth. That he presented his claim upon said note to the commissioner for allowance, and that the said administrator and said Mitchel, as attorney for him, contested said claim,, and that he was not permitted to show his title to or ownership of said note so long as she had the possession of the same and claimed to be the owner thereof, and which position was afterwards sustained on appeal to the circuit and to this Court; that by such ruling he is unable to obtain an allowance of said note in his favor at law.
Sixth. That the defendant Mrs. Curtiss and the said Mitch-cl are now trying to obtain payment of defendant Hamilton, as administrator, to them, of said note, or intend to take some proceedings for that purpose, and that said Hamilton is- willing to make such payment, and complainant believes he will unless restrained.
Seventh. That the said Mrs. Curtiss is entirely insolvent.
Eighth. That in none of the proceedings had have the merits of the complainant’s right and ownership of the said note been passed upon, or been permitted to be litigated; and still it is claimed by all the defendants that his right to recover said claim is bound by the proceedings that have-been had; and,
Ninth. That said defendants have conspired and confederated together to cheat and defraud complainant out of his claim against the estate, and that the defendant Mitchel has advised the several proceedings to be taken with the intent to cheat and defraud the complainant out of his property in said note, and that he has no adequate remedy at law.
I think, taking these facts stated to be all true, the complainant has made out a case for equitable relief against all the defendants, although did the bill not charge defendant Mitchel with participating in the intention to defraud, and with wrongful interference with property charged as held in trust, independently of his acting as attorney for Mrs. Curtiss or the estate, the demurrer would have to be sustained as to him. I do not think, while such charge is not as strong and positive as could be made, it is insufficient upon that ground. Such charges should not be made, however, unless the proof is ample.
An attorney is not to be charged with participation in the evil intention of his client unless there is much stronger evidence of the facts than that he acts as attorney for such client when he is charged with fraudulent intent, or, it may be, when his acts shall turn out to be fraudulent. Of course, what proofs may be at hand in the case we have no means of knowing, but we think the suggestions not unworthy of consideration of counsel in this class of cases.
The demurrers in this case, I think, must be regarded as general, as each of the causes covers the entire bill.
The first ground relied on, that complainant has a- remedy at law which was adequate, cannot be sustained. The defendant Mrs. Curtiss is shown by the record to be entirely insolv ent, and there is nothing to prevent the administrator paying to her the amount of the note except this suit.
It has been decided by the court that the complainant cannot set up his claim in defense, or show that she is not entitled to the amount of the note by showing that the same belongs to him, before the commissioners; and this is the first proceeding that can be had at law, and the only one until the claim has been allowed by commissioners and payment thereof refused: McKinney v. Estate of Hamilton, 53 Mich. 497.
I did not concur in these views in that case, but such is the law of the State as established by this Court in that case, and I think it settled the question in favor of the complainant upon the first ground. But, further than this, it is clearly settled by the authorities that the remedy at law must be plain, adequate, and complete to deprive the party of his remedy in equity. It must be adapted to the particular exigency, or equity will maintain jurisdiction: Jennison Ch. Pr. 59, 17; High Inj. §§ 29, 30; Carroll v. Rice, Walk. Ch. 373; Ankrim v. Woodworth, Har. Ch. 355; Wales v. Newbould, 9 Mich. 45; Edsell v. Briggs, 20 Mich. 429; Story Eq. Pl. 473; and in cases of fraud or breach of trust, equity will retain jurisdiction even though a court of law might take cognizance of the matters: Story Eq. Jur. 695, 698; Carroll v. Rice, Walk. Ch. 373; Coates v. Woodworth, 13 Ill. 654; Norton v. Hixon, 25 Ill. 439; Truett v. Wainwright, 4 Gilman, 418; Thompson v. Brown, 4 Johns. Ch. 619.
As to the ground that the case before this Court heretofore is a bar, it only need be said that in no sense is a proceeding to have a claim allowed before commissioners, and the decision given by them, a common-law judgment; and no judgment in any legal proceeding can be held a bar unless the claim of the party which has been presented for adjudication has been passed upon, or the party has had the right in such proceeding to have the merits of such claim adjudicated. And it is not pretended that complainant’s claim has ever been adjudicated upon the merits, or that he has ever had the opportunity of having the merits thereof passed upon: Wales v. Lyon, 2 Mich. 276; Thompson v. Richards, 14 Mich. 172; Tucker v. Rohrback, 13 Mich. 73; Barker v. Cleveland, 19 Mich. 230 ; Jacobson v. Miller, 41 Mich. 90; Beeson v. Comly, 19 Mich. 103 ; Fifield v. Edwards, 39 Mich. 264; McEwen v. Bigelow, 40 Mich. 215; Allen v. Duffie, 43 Mich. 2; Adair v. Cummim, 48 Mich. 375; Franks v. Fecheimer, 44 Mich. 177; Jones v. Fales, 4 Mass. 255; Taylor v. Castle, 42 Cal. 371; Jordan v. Siefert, 126 Mass. 25 ; Houston v. Musgrove, 35 Tex. 594 ; Dickinson v. Hayes, 31 Conn. 417; Miller v. Manice, 6 Hill, 114; Stafford v. Clark, 2 Bing. 377.
The relief asked in this bill I think fully warranted. It seems very evident that the note was surreptitiously obtained from the complainant’s agent, and upon the facts stated in the bill it was fraudulently placed before”the commissioners, and in pursuance of the same wrongful act its allowance was obtained by defendant Curtiss in her favor, and through the same scheme of fraud and deception the complainant was, in his application to have it allowed in his favor, defeated. He seems to have been powerless in his efforts to make any headway against the defendants’ scheme of fraud in depriving him of his property. That he is entitled to the relief he asks, is shown by the following authorities: High Inj. e. 3, §§ 190, 193, 199; Pearce v. Olney, 20 Conn. 544; Wierich v. De Zoya, 2 Gilman, 385 ; Nelson v. Rockwell, 14 Ill. 375 ; Kent v. Ricards, 3 Md. Ch. 392; Greene v. Haskell, 5 R. I. 447; Mack v. Doty, Har. Ch. 366; Wales v. Bank of Michigan, Id. 308; Wixom v. Davis, Walk. Ch. 15; Burpee v. Smith, Id. 327; Rathbone v. Warren, 10 Johns. 587; Boyce v. Grundy, 3 Pet. 214; Hawkshaw v. Parkins, 2 Swanst. 539 ; Adair v. Cummin, 48 Mich. 376 ; Massie v. Watts, 6 Cranch, 148; Hale v. Chandler, 3 Mich. 531; Edson v. Cumings, 52 Mich. 52; Holbrook v. Campau, 22 Mich. 288; Tong v. Marvin, 26 Mich. 35.
Both on the grounds of the fraud charged and the insolvency of the defendant Mrs. Curtiss, she being charged substantially as a trustee in the premises, I think the complain •ant is entitled to relief, and that he should, not be subjected to any further litigation than is necessary in this suit to ascertain his rights as against the alleged fraudulent transaction ■of Mrs. Curtiss.
The decree entered by Judge Smith in this case should be affirmed, with costs, and defendant Mitchel allowed twenty ■days in which to answer, and the record should be remanded for further proceedings.
We dó not think the stipulation claimed by counsel for the defendant goes to the extent maintained by them. Certainly it concludes no action taken by the complainant in this ■case.
Campbell, C. J. and Champlin, J. concurred. Morse, J. ■did not sit, having been of counsel. | [
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] |
Bird, J.
Henry and Phila M. Sadler were husband and wife. They were farmers and resided in the township of Wyoming, Kent county. They owned and lived upon the west half of the southeast quarter of section 32. They had two children, Edwin- and Franklin Sadler. Edwin Sadler remained at home and worked the farm on shares. He was given to understand by his parents that the west 40 would be given to him. In 1882 he was married and afterwards built, with some help from his parents, a house on the west 40. On the 17th day of April, 1901, in pursuance of their promises to Edwin, the father and mother made a deed of the west half to Edwin and a deed of the east half to Franklin, and placed both deeds in the hands of Mr. Albert Burnham, a neighbor, with instructions to deliver them to Edwin and Franklin when they were both dead. After this Edwin made improvements upon the farm, aggregating about $1,000. In 1908, Edwin died, leaving a widow and one daughter. Not long after Edwin’s decease Henry requested Marie Sadler, the widow, to go to Mr. Burn-ham and get the deed to Edwin. She did so, and Henry destroyed it, and then he and Phila M. made a deed of the west 40 direct to Marie Sadler, and placed the same in the hands of Emma Brown, a neighbor, with instructions to deliver it to Marie when both he and Phila M. had passed on.
A year or so following this Marie married a Mr. Besard and went to Canada to live. After she was gone Henry sent for the deed to Marie and destroyed it and afterwards made a deed of the west 40 to his son Franklin. This is the deed in controversy. The parties are now all dead. Phila M., the mother, died in 1912. Franklin, the son, died in 1914, and Henry, the father, died in 1915.
This contest is between the heirs of Edwin, who are plaintiffs herein, and the heirs of Franklin, who are the defendants. The plaintiffs ask in their bill that the deed from Henry and Phila M. to Franklin in June, 1910, be set aside, and that plaintiffs, as heirs at law of Edwin, be declared to be the owners thereof in fee. It is. their theory that the deed from Henry and Phila M. was made and placed in escrow and passed a present interest to Edwin, and that the subsequent destruction of the deed by Henry was without law or authority. Defendants meet this by insisting that the circumstances attending the making and deposit of the deed with Mr. Burnham indicate that it was not his intention to place the deed beyond his control, and it is further insisted that the deed was testamentary in character and that Henry and Phila M. had lawful authority to revoke or recall it. Upon the hearing the chancellor was persuaded that the theory of plaintiffs was the right one and that Henry had no legal right to destroy the deed to Edwin after placing it in escrow. The decree gave title of the west 40 to plaintiffs, and, in addition, gave them $500 as the rental value of the 40 acres during the time defendants have been in possession of it. Defendants say this was the wrong conclusion and have appealed therefrom to this court.
The questions which appear to demand our attention are:
(1) Did Henry and Phila M. have the legal right to recall their deed to Edwin?
(2) Was the deed testamentary in character?
Mr. Burnham, with whom the deeds were deposited, was still living and present at the hearing. He testified as follows as to the facts and circumstances surrounding the deposit:
“I live in the township of Byron, Kent county, Michigan; I am most seventy-three years old; I knew Phila Sadler and her husband, Henry Sadler, in their lifetime; I remember their coming to my place and leaving some deeds with me, but do not know when it was, but it was about fourteen or fifteen years ago; that one of the deeds ran to Franklin Sadler and the other to Edwin Sadler; that they were both alike except as to descriptions. Henry Sadler and Phila Sadler both talked to me and said that they had some deeds there and they wanted me to keep them until they were both gone, and then deliver one to Franklin and the other to Edwin; that they remained with me 14 or 15 years; I gave one to Maria Besard and the other I gave to Hiram Minderhout; that I gave the one to Maria Besard' 3 years ago or better, and after her husband died; that I gave one to Minderhout about two years ago, after Phila and Henry Sadler had both died.”
On the question of depositing deeds in escrow it is observed by Gates on Michigan Real Property, § 547, that:
“When a deed which has been duly executed has been put into the hands of a third person to be, by him, delivered to the grantee at a future time or upon the performance of certain conditions or the happening of some event, it is said to be delivered ‘in escrow’ and the deed will not be effective unless the condition be performed' or the event happens, and the Michigan courts have consistently held that where a grantor makes a deed to another and deposits the deed with a third party, to be held by such third party until the grantor’s death and to be delivered to the grantee named in the deed, the grantor reserving no dominion or control over the deed during his lifetime, a valid delivery is thereby made and an immediate estate is vested in the grantee, subject to a life estate in the grantor.”
The circumstances detailed by Mr. Burnham are not such as to definitely determine the question one way or the other,- but wevare persuaded that his testimony, considered in connection with the other testimony in the case, indicates that when Henry and Phila M. left the deeds with him they fully intended to pass a present interest to Edwin Sadler of the premises in question. It will be noted that when the deed was deposited no conditions were attached to it reserving any right whatever in the grantors to control or recall it, and, indeed, they made no effort to control it as long as Edwin was alive. They appeared to be content with it until after he died, and after he died they were content to have it remain in Edwin’s family while the widow remained on the farm. It was only after she remarried and left the farm that Henry deeded the premises to his son Franklin.
The conditions as they existed when the deposit was made were that Henry and Phila M. were getting old; they had this property; they had these two boys, and their natural wish was to divide it between them. They did dispose of it, retaining the part they wanted, namely, a life use of it to themselves, and from that time on until after Edwin’s death no change was made or attempted. When Henry sent for the deed to Edwin it is a significant fact that he did not disturb the deed given to Franklin at the same time, and he never attempted to revoke that one, and it is quite evident to us he would not have disturbed the deed givep to Edwin if Edwin had outlived him.
Much is said by defendants’ counsel of the fact that Henry sent for the deed and destroyed it after Edwin’s death. It is argued from this that he kept control of the deed. We do not place much importance on this fact. Henry undoubtedly changed his mind after the death of Edwin, but this would give him no right to disturb the deed if his intent was, when deposited, to pass a vested interest to Edwin. Laymen do not generally understand the rules of law surrounding the placing of deeds in escrow. Many of them think they have a right to revoke the deed if they afterwards change their mind. Another fact lends some help in reaching this conclusion. After the deed was made and deposited Edwin finished his house, built substantial fences and planted an orchard on the west 40. In fact, he made improvements the same way a man would improve his own, or what was to be his own. This gives color to the claim that an understanding existed between him and his parents that he should have the west 40 as his own. Much support of our conclusion on this question will be found in the following cases: Loomis v. Loomis, 178 Mich. 221; Luscombe v. Peterson, 173 Mich. 165; Wagner v. Kirchberg, 166 Mich. 411; Cooper v. Cooper, 162 Mich. 304; Young v. Young, 157 Mich. 80; Hoagland v. Beckley, 158 Mich. 565; Meech v. Wilder, 130 Mich. 29.
Counsel for defendants have cited several Michigan cases which they think are controlling. The one most relied upon is Leonard v. Leonard, 145 Mich. 563. In that case it was the view of this court that the deed "never went from the control of complainant,” who was the grantor. That is the crucial point in all these cases. These questions usually turn upon their own peculiar facts. The circumstances surrounding the giving of this deed and the deposit thereof lead us to the conclusion that the deed was delivered in escrow with no intention to recall it.
It is argued that by reason of a certain clause in the deed it was intended that the gift was to be of a testamentary character and, therefore, revokable. The deed was an ordinary form warranty deed and in addition thereto contained the following clause, which appears in italics:
"And the said Henry Sadler and Phila M. Sadler, his wife, parties of the first part, their heirs, executors and their administrators, do covenant, grant, bargain and agree to and with the said party of the second part, his heirs and assigns, that at the time of the ensealing and delivery of these presents they were well seized of the above granted premises in fee simple; and that they are free from all encumbrances whatever, provided, that this instrument shall not take effect during the lifetime of said Henry Sadler or Phila M. Sadler, but at their decease shall become operative and in full effect, and that they will, and their heirs, executors and administrators shall warrant and defend the same against all lawful claims whatsoever.”
The ordinary mode of determining whether an instrument was intended to be a deed or a will is said to be:
“The courts in determining whether an instrument disposing of real estate is a deed or a will are guided by the following considerations: If the instrument, whatever its form or the mode of its execution, passes a present interest which vests from the time of its execution, it will be a deed, though the possession and enjoyment of the estate granted in it do not accrue to the grantee until a future time. On the other hand, if the instrument, though it is in form a deed, does not convey any vested interest, right, or estate until the death of the person executing it, it will be regarded as testamentary and revocable.” 1 Underhill on Wills, § 37.
This principle has been, cited and approved in Clay v. Layton, 134 Mich. 317, and Leonard v. Leonard, 145 Mich. 563.
It is quite evident from the papers themselves, together with the instructions to Mr. Burnham, as well as from the testimony at large, that Henry and Phila. M. did not intend to part with the use of said premises, during their lives. They were not giving the possession of the premises during their lives, to the boys but were giving the land, the possession of which would commence when they were both dead. We think the only object of adding this clause to the deed was to secure this, result and to prevent any question arising during their lives as to their right to the use and possession of the land. This was the view of the chancellor who heard the case and we agree with him. We think the conclusion reached by the chancellor was the right one and the equitable one.
The decree will be affirmed, with costs to the plaintiffs.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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] |
Bird, J.
This case is certiorari to the industrial accident board to review proceedings which led to an award of $4,200 to plaintiffs on account of the death of Elmer Bresee, husband and father of plaintiffs, in defendant’s manufacturing plant at Buchanan. It was shown to the committee of arbitration that Elmer Bresee was employed by defendant in its machine shop as an operator of a drill press. That while engaged in such work on December 19,1919, he stepped on a steel shaving which entered his foot near the little toe. He did not appear greatly concerned about it and worked until December 25th. On that day he became ill. From that time he rapidly grew worse and died on December 29th of tetanus. The committee of arbitration allowed plaintiffs a death award of $4,200. On appeal to the industrial accident board the award was affirmed.
Defendant has alleged numerous errors, but they are substantially all aimed at two propositions:
First. That there was no competent proof that Elmer Bresee received any injury in defendant’s shop arising out of and in the course of his employment.
Second. If he did receive such an injury as is claimed, it was not shown that he died from the effects of it.
It was shown by the plaintiffs that on the evening of December 19th Elmer Bresee came home and complained to Mrs. Bresee that he had stepped on a steel shaving, that he showed the injury to her and that she examined and treated it with peroxide and iodine. It was shown that he exhibited his foot to Dr. Curtis, to whom the company sent him when he reported the accident. It was shown that Mr. Bresee stated to him how it was caused and that Dr. Curtis examined it and. prescribed for him. That later he exhibited the injury to Dr. Bailey, and informed him how it was incurred, and that Dr. Bailey treated the injury until he died.' It was further shown that Mr. Bresee reported his injury to his foreman, and that his foreman made the first report to the industrial accident board. In this report, under number 12, is the following:
“Nature and Cause of Injury — Claimant alleges stepping on steel shaving, cutting right, foot,”
and further stating that Dr. Curtis was the attending physician. Subsequently, Mr. Hathaway, the superintendent, made the final report to the industrial accident board. In this report it stated:
“Cause and Manner of Accident — -Stepped on steel shaving.
“Nature and Extent of Injury in Detail — Cut his. right foot.”
It was further shown that after the accident MrBresee limped and favored his injured foot. Much is. said by counsel concerning the hearsay evidence in. the record, as to the cause of the injury. There is,, undoubtedly, some hdarsay testimony in the record! bearing upon that question, but we think that if this be eliminated there is still sufficient competent evidence to make a prima facie case, that Mr. Bresee was injured as claimed while pursuing his duties in defendant’s shop. This court has held that, even though there be hearsay evidence in the testimony, we will not reverse the conclusion of the board for that reason where there is sufficient comjpetent evidence of the fact, to make a prima facie case. Reck v. Whittlesberger, 181 Mich. 463 (Ann. Cas. 1916C, 771); Fitzgerald v. Lozier Motor Co., 187 Mich. 660.
It developed during the hearing that the deceased had, on December 1st, scratched or'punctured his foot by coming in contact with an old nail while doing some work in his cellar, and that the injury caused by the steel shaving was in the same place as the nail injury. It is argued at some length that the nail injury might cause tetanus, as shown by the medical proof, and that the death of Mr. Bresee could as well be ascribed to this injury as the subsequent one, and that if the death could be as well ascribed to one as the other, then no award could be legally made. The record discloses with much certainty that Mr. Bresee died as the result of lockjaw, or tetanus. The medical witnesses testified that he died from acute tetanus, and that acute tetanus usually developed in 6 or 7 days after the injury, and not longer than 9 days. If this were so, his death must have been caused by the subsequent injury as the first injury occurred over 3 weeks before the disease manifested itself. It was shown by cross-examination of the medical witnesses that the nail injury might have produced chronic tetanus, and had it not appeared by positive testimony that the deceased died from acute tetanus the argument of counsel might have some force. As has been stated, the medical witnesses testified that he died from acute tetanus and the board in its finding finds as a fact that he died from acute tetanus. This testimony would preclude any idea of his having met his death by chronic tetanus induced by the nail injury. The board’s finding as to this point we think was consistent with and supported by the testimony.
The award of the industrial accident board is affirmed, with costs to the plaintiffs.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. | [
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Stone, J.
The Lapeer County Bank is a banking corporation with its place of business at Imlay City, Lapeer county. Stuart B. Nicol was elected county drain commissioner for the county of Sanilac in November, 1916, and on December 6, 1916, he executed his official bond to the people of the State of Michigan in the penal sum of $5,000, signed by himself as principal, and by the defendants herein as sureties. Said bond was conditioned upon the faithful discharge by the said Stuart B. Nicol of the duties-of his office as- county drain commissioner aforesaid, and was duly approved and filed. On April 16, 1918, said Nicol, as such commissioner, let the contract for part of the construction work on what was known as the Frost drain to Ross Davis, and on August 28, 1918, he let to said Davis the contract for construction of the Ingles drain, so called. On April 19, 1918, Nicol as county drain commissioner, issued drain order No. 1,403 for $1,000, purporting to be for construction work on the Frost drain, and payable to-the order of Ross Davis. And on August 30, 1918, said Nicol, as such drain commissioner, issued order' No. 1,520 for $2,500, purporting to be for construction work on the Ingles drain, and payable to the order of Ross Davis.
No part of the construction work on the Frost drain had been done at the time order No. 1,403 was-issued; and no part of the construction work on the Ingles drain had been done at the time the order No. 1,520 was issued. On May 3, 1918, Ross Davis sold the order No. 1,403 on the Frost drain fund to the-plaintiff bank for $939.76, and on August 31, 1918, he sold to plaintiff bank the order No. 1,520 on the Ingles drain fund for $2,391.71. Both of said orders were made payable March 15, 1919, were duly presented for payment, and payment refused. At the time they were presented for payment, the county treasurer of the county of Sanilac had been served with injunction restraining payment.
Stuart B. Nicol, the county drain commissioner, died about December 15, 1918. This suit was brought against the sureties on his official bond to recover the money paid for the two orders above described, with interest at the legal rate from the date of their purchase by the plaintiff bank.
Section 4904, 1 Comp. Laws 1915, as amended by Act No. 316, Pub. Acts 1917, provides that it shall not be lawful for the county drain commissioner to issue orders on the fund of any drain exceeding two-thirds of the amount earned on any contract, until after the acceptance of said work by the county drain commissioner, and the said certificate of the surveyor or the drain commissioner is filed by said county drain commissioner. The'case was tried by the court without a jury, and the trial court filed findings of fact and conclusions of law. After a statement of the case, and that the drain commissioner was deceased, and Ross Davis was uncollectible, and after stating the claims of the defendants upon the trial, the court found as follows:
“No work had been done on the drains involved to any appreciable extent at the time of issuing said orders, and said orders were issued by said drain commissioner before the requisite amount of work had been done, under the contract as required by statute.
“The court finds that the law of this State holds a drain commissioner and his sureties liable for torts committed in his official capacity. The orders involved in this case were not negotiable paper, but it is common knowledge that contractors obtain financial aid from banks on these orders; they are not payable presently, but have to await the levy and collection of the tax, and the court finds that the signature of the drain commissioner on these orders was sufficient warrant for the bank to treat them, in the hands of the contractor, as lawfully issued; that the purchases were made in good faith, and full consideration paid for them by the plaintiff bank.
“The bank is not suing in this case as the assignee of Davis but for a wrong, committed by the drain commissioner in his official capacity.
“The claim that there was a judicial determination of the amount of work done is not backed by any record; the issuing of the orders was an administrative act, and the court must find that the commissioner issued these orders with knowledge that they were likely to be negotiated. His object was, possibly, to help finance the contractor and so secure construction of important drains, but the act was unlawful, notwithstanding.”
The court then finds the amount due the plaintiff and entered judgment therefor.
No amendments were proposed to the findings, but all of the findings both of fact and law appear to be excepted to. We think the only question raised by the exceptions is that the findings do not support the judgment; and we shall consider that question only.
The first contention of counsel for appellants is, that the issuing of the orders by the commissioner involved judicial decisions, and that no private action will lie against the commissioner or his sureties for any error in such decisions; and the following eases are cited in support of the proposition: Pawlowski v. Jenks, 115 Mich. 275; Amperse v. Winslow, 75 Mich. 234; Bailey v. Van Buren, Circuit Judge, 128 Mich. 627. These cases relate to the approval of liquor bonds by boards or bodies, and we think are not at all controlling of the question we are here considering.
We do not agree with the contention of counsel that the issuing of the orders by the commissioner was the result of a judicial determination. The trial court found, and there was evidence to support the finding, that no work had been done under the contracts at the time the orders were issued. It seems to us that the act of the commissioner in issuing the orders, under the circumstances shown in the case, was a wilful and intentional violation of his official duty; and we agree with the circuit judge that it was an administrative or ministerial act.
In Raynsford v. Phelps, 43 Mich. 342, it was held that a public officer is liable to private individuals for injuries resulting to the latter from his failure to perform ministerial duties in which the latter have a special and direct interest, and that he is also liable for the failure to perform duties of a judicial nature if. he neglects them maliciously.
The purchase of these drain orders by the plaintiff bank was a lawful transaction, and, as such purchasers, they had a direct interest in the duties of the drain commissioner attendant upon the issuing of the orders. As illustrating the general rule concerning liability of sureties on official bonds, the following cases are cited: People v. Treadway, 17 Mich. 480; Doran v. Butler, 74 Mich. 643; Curtiss v. Colby, 39 Mich. 456.
In People v. Treadway, where the action was brought against a county clerk and the sureties on his official bond, in speaking of certain moneys drawn upon an order wrongfully filled up and issued by the clerk, Justice Campbell, speaking for this court, said:
“It certainly is very plain that this money was obtained by a misuse of his official authority to sign warrants, and that wrongful act was an official act. If such an officer is to be regarded as acting unofficially whenever he violates his duty, it is not easy to see what object there can be in requiring official bonds. They are not meant to be mere formalities, and they can only be made to secure against the consequences of some sort of misdoings. Their object is to obtain indemnity against the use of an official position for wrong purposes, and that which is done under color of office, and which would obtain no credit except from its appearing to be a regular official act, is within the protection of the bond, and must be made good by those who signed it.”
The case of National Bank of Redemption v. Rutledge, 84 Fed. 400, in the United States circuit court for the northern district of Ohio, is a well considered case. Reading- from a headnote we find .the following:
“Any act which, if done genuinely and honestly by an officer would be an official act, is, if done dishonestly and fraudulently, an act done by virtue of his office, and the sureties on his bond conditioned for the ‘faithful discharge of the duties of his office’ are liable for injuries resulting therefrom.”
When the commissioner issued the orders before the work was begun, it was an act done by virtue of his office, and it seems to us clear that the sureties on his bond are liable to this plaintiff for the resulting injuries.
The second defense urged by appellants is that plaintiff’s assignor Davis, being a party to any error, mistake or fraud of the drain commissioner, could maintain no action either against his associate in such error, mistake or fraud, or the sureties on such associate’s official bond, and the act gave no greater right to his assignee than he possessed. Were this an action upon the orders there would be much force in this position of appellants, but it should be borne in mind, as stated by the circuit judge in his finding, that the bank is not suing in this case as the assignee of Davis, but for a wrong or tort committed by the drain commissioner in his official capacity. 22 R. C. L. p. 506. If that officer had performed his duty there would have been no orders issued, or purchased by the plaintiff, and hence no loss sustained by the plaintiff. While the drain orders were non-negotiable, yet they were choses in action, were signed by the commissioner officially, and were purchased, in good faith and for a valuable consideration, by plaintiff bank. Counsel cite in support of this claim Van Akin v. Dunn, 117 Mich. 421. This case is not controlling as to the contention of appellants, but the case is significant upon the question of judicial determination, and is authority against the position of appellants upon that subject.
The third claim of appellants is to the effect that neither the drain commissioner nor his sureties owed any duty, under the statute, to the plaintiff, and that the plaintiff cannot be heard to complain. We note the authorities cited by counsel upon this subject, but do not think they support the contention here made. The theory of the defendants seems to be that, although the issuing of these orders by the drain commissioner was a breach of his duty as a public official and contrary to the provisions of the statute, still, the purchasers of the order's have no right of action against the commissioner, or the sureties) on his bond, because they are not within the class for whose benefit the legislation imposing restrictions upon the authority of the commissioner to issue orders was enacted.
We held in Kent County v. Krakowski, 207 Mich. 631, that the bond of a public officer, to faithfully perform the duties of his office, is made for the benefit of any and all to whom he owes an official duty. See, also, City of Grand Rapids v. Krakowski, 207 Mich. 483.
We again refer to the case of National Bank of Redemption v. Rutledge, supra, where this question was considered. That was a case where county commissioners in the State of Ohio had authorized the issue of drain bonds in a certain amount, and the county auditor fraudulently issued bonds in excess of the amount authorized. We invite attention to that well considered opinion where the argument here- advanced is met and fairly answered. It was there held that such bond was not given simply to protect the funds and people of the county from loss by reason of the officer’s failure to discharge the duties of his office, but as well to protect the whole world from injury resulting from his abuse of his official position. Speaking of the contention that the plaintiffs were not of the class designed to be protected by the bond the court, in the last cited case, remarks, at page 407:
“But, even on that theory of protection only for the county and none others, surely the people are. just as much interested in protecting their credit as they are-in protecting their actual funds.”
We have examined the other questions urged as error at the trial, but think they are without merit. The trial court seems to have admitted in evidence a decree in another case in that court involving the question of these and similar orders. We are of opinion that if the same was erroneously admitted, it was error without prejudice to the rights of the-defendants. As to the form of the action upon the bond, the question was not presented in the lower-court, and we think it is without merit, as, under our broad, statute of amendments, the title of the case could be amended even in this court, as to the description of the plaintiff. It will be noted section 12353, 3 Comp. Laws 1915, relating to parties and actions in so far as it relates to an action- upon the bond of a public officer, is permissive as to the right of a party to sue in his own name thereon.
We find no error in the record, and the judgment, of the circuit court is affirmed.
Steere, C. J., and Moore, Wiest, Fellows, Clark, Bird, and Sharpe, JJ., concurred. | [
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Stone, J.
Applicant’s deceased husband, Ray Savage, for about 10 years prior to Saturday, January 31, 1920, had been employed as a fireman by the city of Pontiac, during the last 2 years of which time he had been a lieutenant. On the day aforesaid the fire department was called out to fight a fire on Oakland avenue about 9 o’clock a. m. and he remained on duty until about 3:30 p. m. with the other firemen, during which time he had attended 2 fires, and then returned to the fire hall. The deceased was an able-bodied man 32 years of age, and was in his usual condition when he went to work on the morning aforesaid. It was a very cold day, and, as a result, while the firemen were fighting the fire, the water sprayed back on them, and when deceased returned to the fire hall his clothes were wet and frozen, and a layer of ice had frozen on his neck behind his right ear, and it was discovered that one of his ears had been frozen. The layer of ice which had formed on the back of his right ear and neck was an inch thick, and was frozen from under his cap down his neck, and his condition in that respect was worse than that of any of the other firemen.
Deceased changed his clothes and went home for supper, and while there complained of pains in his neck below the right ear. He continued to work, however, until the following Wednesday, when he complained of being ill. When he returned home on Wednesday night he went to bed and continued there until his death on February 21, 1920. It appeared that at the fire deceased, with two other firemen, because of shortage of help, was compelled to handle 250 feet of hose, that was ordinarily handled by more men. A high wind was blowing which sent sprays of water over the firemen. The following testimony was given:
“Q. How many men were on your line?
“A. Three.
“Q. How long a line did you have?
“A. About 250 feet of hose.
“Q. How many lines were working on this fire?
“A. Four or five.
“Q. State whether or not it is customary to have more than three men on a line?
“A. Usually more unless there is a lack of men.
“Q. At this fire, were there any more available men?
“A. No, sir.”
There was no accident happened at either of the fires, and deceased suffered no exposure which was not suffered by the other firemen, and which was an incident to his employment. The following was in. testimony:
“Q. There was nothing unusual about getting your' clothing wet at a fire?
“A. Nothing, only this fire got the better of us and. it took longer to get it under control.”
During his illness deceased was treated by several physicians, among whom was Dr. J. J. Murphy, a. practicing physician of 23 years’ experience. He attended deceased several times, and after his death signed the death certificate, giving pneumonia-meningitis as the cause of death. Dr. Bernard TePoorten— a doctor of chiropractic — who attended deceased, testified that death was the result of the formation of ice at the back of deceased’s neck which caused a contraction of the muscles, displacing the axis and atlas vertebrae, which produced pressure on the spinal cord, resulting in paralysis and death. Dr. TePoorten testified:
“Q. What did the examination disclose?
“A. That the axis and atlas vertebras were displaced.
“Q. What was. the result of this displacement?
“A. They were pressing on the spinal cord.
“Q. What would produce that condition?
“A. Any contraction of the muscles that control these vertebrae.
“Q. Would ice on the back of the neck cause it?
“A. Yes, a formation of ice on the back of the neck could bring it about.
“Q. Was any part of his body paralyzed?
A. Yes, his throat and right side.
“Q. What was the cause of this?
“A. The displacement of the vertebras.
“Q. What was the condition of his throat?
“A. Paralyzed, so that he could not swallow. * * *
“Q. What did the conditions finally develop into?
“A. A paralysis of the body. * * *
“Q. In your opinion from your examination, what was the cause of the death of Mr. Savage?
“A. Paralysis caused by nerve pressure.”
This theory seems to have been the one adopted by the industrial accident board in its finding.
It is the claim of defendant city that no accident or accidental injury, within the meaning of the workmen’s compensation act, occurred in this case, and that the wetting and exposure received by deceased at the fires was an incident which, from the very nature of the employment, every fireman is subjected to in Michigan, during the severe wintér weather; and that the instant case is governed and ruled by the case of Landers v. City of Muskegon, 196 Mich. 750 (L. R. A. 1918A, 218). There was an award by the committee on arbitration in favor of the applicant' for full compensation for the death of decedent, and this award was affirmed by the industrial accident board, and the city has brought the record to this court by writ of certiorari for review.
The board in its finding sought to distinguish the instant case from the Landers Case, and among other things said:.
“The case at bar differs in several particulars from the Landers Case, and is easily distinguishable from it. The evidence in this case shows that the day in question was a bitter cold day, and all the firemen who testified were unanimous in testifying that the exposure was the worst in their experience. The testimony also shows that the deceased was forced to fight two fires practically simultaneously, without an opportunity to change, or dry his clothing (as the firemen always did after each fire). The record reveals that at the second fire, two houses were burning instead of one, and that as a result of the conditions, the fire got beyond the control of the department. This was due to shortage of men, broken hose, and frozen chemical apparatus. The testimony shows that the deceased and two other men were compelled to handle 250 feet of hose, that was ordinarily handled by more men; because of the shortage of help. It also shows that there was a high wind blowing which sent sprays of . water upon the firemen. As result of working under these disadvantageous conditions, the deceased suffered a frozen ear, and a thick layer of ice formed on his neck behind the right ear. In view of the foregoing circumstances, it is urged by the claimants that the unusual occurred and assert their position borne out by the testimony of the chief of the fire department, who testified that if firemen anticipated working under such conditions, it would be impossible to employ them. * * * The weight of the evidence clearly shows that the formation of ice on the back of decedent’s neck, behind the right ear, so affected his system that paralysis resulted and that he died as a result of the paralysis. * * * The authorities seem quite agreed that frost bite and freezing are compensatable injuries, where the injured workman is subjected to unusual exposure. The trend of the decisions is that where an injured workman is subjected to no more exposure than the average person in the same 'community, he is not entitled to com-pensation for frost bites or freezing. On the other hand, the decisions are practically unanimous that an injúred workman is entitled to compensation for frost bites or freezing where he is subjected to more extreme exposure than the average person in the same community.”
The board cites the following cases:
Larke v. Insurance Co., 90 Conn. 303 (97 Atl. 320, L. R. A. 1916E, 584); McManaman’s Case, 224 Mass. 554 (113 N. E. 287); Skougstad v. Star Coal Co., Fourth Annual Report (1915), Wis. Ind. Com. 31; 12 N. C. C. A. 309.
The board concludes its finding as follows:
“It is the opinion of the board that the injury resulting from the formation of the ice on the back of decedent’s neck, under the circumstances of this case, constituted a compensatable accident within the meaning of the workmen’s compensation law. It was an unexpected consequence from the continued work under extreme exposure while working at a disadvantage, and while exerting himself to an unusual degree. La Veck v. Parke, Davis & Co., 190 Mich. 604 (L. R. A. 1916D, 1277); Bayne v. Storage & Cartage Co., 181 Mich. 878.
“In the opinion of the board, the formation of the layer of ice on the back of decedent’s neck was an untoward and unusual event. Roach v. Kelsey Wheel Co., 200 Mich. 299.
“We must therefore find that the decedent sustained an accidental personal injury within the meaning of the act, and it therefore follows that the award of the committee on arbitration must be sustained.”
In fairness to the board we have here quoted at length from the finding.
It is the claim of the appellant that while many decisions can be found in the several States allowing compensation for injuries which occur to employees through manifestations of the laws of nature, an examination of the various compensation acts will show that compensation is paid in some States where the injury is received and “arises out of the course of the employment,” while in others, of which Michigan in one, the injury must be an “accidental” one.
In Bradbury’s Workmen’s Compensation (3d Ed.), p. 817, the author says:
“Some of the compensation acts provide for compensation when a workingman receives an ‘injury’ in the course of his employment, while others specify an ‘accidental injury’ or an ‘injury by accident,’ as the foundation for such claim. As interpreted by the courts, accident boards, industrial commissions and Federal authorities, the distinction seems to be an important one.”
In 1 Honnold on Workmen’s Compensation, pp. 274-278, it is said:
“A comparison of the various American compensation acts, discloses that some do not make ‘accident’ a condition to the right to recover compensation, while others, following the English act, describe not only that there shall be a personal injury, but that it shall be by accident. The word ‘accident’ refers to the cause of the injury, and is here used in its ordinary and popular sense as denoting an unlooked for mishap, or an untoward event which is not expected or designed by the workman himself, a physiological injury as a result of the work he is engaged in, an unusual effect of a known cause, a casualty. It implies that there was an external act or occurrence which caused the injury or death. It contemplates an event not within one’s foresight and expectation resulting in a mishap causing injury to the employee.”
The only distinction we are able to make between the instant case and the Landers Case is one of degree. The principle appears to he the same. The day was colder and the exposure was longer in the instant case than in the Landers Case, but there seems to have been no accident, or accidental injury in either. In its decision we believe that the board overlooked the distinction which is made between those acts providing for compensation for “accidental injuries,” such as our own, and those acts which provide compensation for injuries which “arise out of the course of the employment,” only. It will be found that nearly all of the cases cited by the board are collected in Bradbury (p. 644) under the title “Frostbite” as “injuries arising out of” and “in course of employment.”
An examination of the acts of the several jurisdictions discloses that the Wisconsin statute provides compensation “for personal injuries sustained within this State by an employee while engaged in the line of his duty as such, or for death resulting from personal injury so sustained.”
The Massachusetts act covers “all damage for personal injury sustained by an employee in the course of his employment, or for death resulting from personal injury so sustained.”
We have already recognized the distinction that exists in the decisions of the several States, owing to the different provisions of the several acts, and 'recently said of cases cited under the Massachusetts act:
“As ‘accident’ is the controlling word in our act, we do not think that the Massachusetts decision should be held to apply here, as the construction of that act has little, if any, bearing on the Michigan act.” Adams v. Acme White Lead, etc., Works, 182 Mich. 157, 169 (L. R. A. 1916A, 283, Ann. Cas. 1916D, 689).
And the same may properly be said of the Connecticut and Wisconsin acts. This is conceded by counsel for applicant, who say in their brief:
“We quite agree with the attorney for the appellant, that the cases in Massachusetts, Wisconsin and Connecticut are not decisive on the question in the case at bar, because ‘accident’ is not the controlling word of the statute in those States.”
We have been unable to find a case under any statute similar to our own, providing for compensation for “accidental injuries,” where compensation has been awarded an employee for an injury received in the course of his employment, through purely natural causes, where the employee was no more subject to the injury than others similarly employed. There are many English decisions to the effect that compensation under such circumstances will not be allowed, and the English act is very similar to our own. See Adams Case, at page 166.
We cite the following recent cases in this court upon the subject of accidental injury: Roach v. Kelsey Wheel Co., supra; Tackles v. Bryant & Detwiler Co., 200 Mich. 350; Guthrie v. Detroit Shipbuilding Co., 200 Mich. 355. The above cases and the cases therein cited show the construction which our statute has received.
We have examined the cases in other jurisdictions cited by counsel for applicant. The Minnesota cases cannot be considered as authority in this State, because of the statutory definition there of the word “accident.” Counsell for applicant well say:
“It might be well in passing to note that the word ‘accident’ is defined by statute in Minnesota, and that in addition to including in the definition the elements of making up that term as defined by our court in Adams v. Acme White Lead, etc., Works, 182 Mich. 157, it includes: ‘Happening suddenly and violently.’ ”
In the Adams Case we adopted the language in Fenton v. Thorley & Co., 72 L. J. K. B. 790:
“The expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.”
Being unable upon principle to distinguish the instant case from that of Landers v. City of Muskegon, and being of opinion that that case was properly decided, the award made by the industrial accident board is reversed and set aside.
Steere, C. J., and Fellows, Clark, Bird, and Sharpe, JJ., concurred with Stone, J. | [
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] |
Stone, J.
The following cogent facts appear in plaintiff’s statement of facts, and in the record: In 1909 the plaintiff was a farmer. Fred Judson and his brother, George Judson, were copartners in the produce business. In 1907 the plaintiff borrowed money from Fred Judson and gave'him three promissory notes as follows: One note was. dated July 24, 1909, was for $40, due 60 days after date with interest at 6 per cent. Indorsed on the back of this note was the following: “September 23, 1913. Received $50 on the within for interest.” The second note was dated October 28, 1909, was for $600, due six months after date with interest at 6 per cent. On the back of this note was indorsed the following: “September 23, 1913. Received $26.91 on the within to apply on interest.” The third note was dated November 8, 1909, was for $75, due 30 days after date with interest at 6 per cent. On the back-of this note was indorsed the following: “September 23, 1913. Received $25 on the within for interest.”
Pratt, from. 1910 to 1912, delivered produce and property to Judson, or Judson Brothérs, and also gave a check for $350 to apply on notes. It is the claim that the total so paid amounted to $821.88. None of the proceeds of the produce and property, or check, was, indorsed upon the notes, Fred Judson died June 4, 1917. His widow, then Edna Melissa Judson, now Edna Melissa Corns, was appointed administratrix of the estate of the said Judson, deceased. The administratrix sued Pratt on the notes in the circuit court for the county of Genesee in November, 1917. Pratt appeared and pleaded the general issue with notice of a set-off, and the statute of limitations, and filed a bill of particulars as follows:
1910, March 8, Sheep to Judson..................$174.30
1910, May 19, Check,to Judsop.................. 350.00
1911, April 29, Hay to Judson.................. $82.30
1912, July 1, Wool to Judson....................215.28
Total $821.88
It will be noted that all of the above items except the last (considered separately from the notes) were outlawed before Judson’a death, which, as we have said, occurred on June 4, 1917.
The trial occurred on May 6, 1919. It appears that on the trial attention was called to the case of Quinn v. McGovern, 97 Mich. 114, wherein it was held that in a suit brought by an administrator to recover a debt due the estate, the defendant cannot set off a counter claim which he has failed to present to the commissioners on claims. Thereupon, by permission of the court, the set-off was voluntarily withdrawn by Pratt’si counsel, and the case went to trial on the question of the statute of limitations only. The administratrix obtained a verdict and judgment against Pratt for $1,007.37, which was afterwards affirmed by this court on December 22, 1919. (See Judson v. Pratt, 208 Mich. 286.)
After the trial in the circuit court the plaintiff herein secured a revival of the commission on claims in the estate of Fred Judson, deceased, and presented the items of his set-off as a claim against s!aid estate. At the hearing before the commissioners on claims upon plaintiff attempting to prove the first three items of set-off, he was met by objection on the part of attorney for the administratrix that those items were all barred by the statute of limitations!; and as to the fourth item of set-off, the administratrix introduced testimony which satisfied the commissioners that it was paid. The commissioners held all other items to be barred by the statute of limitations, and totally disallowed plaintiff’s claim. The plaintiff appealed from the decision of the commissioners to the circuit court for the county of Genesee, and the case is now there pending. After the decision in this court plaintiff filed this bill, and the bill of complaint herein contains the' following:
“The plaintiff is advised and believes that he cannot, under the strict rules of the common law, prove his said items of set-off upon the trial of said appeal, and that he will be totally deprived of any relief arising out of the sums that he paid upon said notes, during the lifetime of said Fred Judson, because, the first three items, amounting to $606, when considered by themselves, without reference to the said notes, are barred by the statute of limitations.
“Plaintiff further represents that owing to the agreement that the said items of set-off should be allowed by said Judson as payments upon said notes, and owing to the friendly relations existing between plaintiff and said Fred Judson, plaintiff relied upon said Fred Judson to make the proper indorsements upon said notes for the items contained in plaintiff’s set-off. And plaintiff avers that the failure and neglect of said Fred Judson to make such indorsements upon said notes constitutes constructive fraud, and entitles plaintiff to relief in a court of equity.
“Plaintiff further avers that prior to the death of said Fred Judson he, plaintiff, had a plain, full and adequate remedy at law, with full right of set-off, but owing to the death of said Fred Judson, and the peculiar statute regarding claims against estates, and the construction placed thereon by the Supreme Court, plaintiff has been deprived of proving his said set-off. The result of the statute in regard to claims against estates, and claims in favor of estates is, that the claims in favor of estates are to be enforced in the circuit court, and claims against estates are to be enforced in the probate court. In this particular instance, because the payments were not indorsed upon the notes, those payments must be proved in a separate court, and are barred unless considered in connection with said notes, and the plaintiff is without adequate remedy, at law. Plaintiff avers that set-off originated in courts of equity and that such courts still have jurisdiction to -relieve and do relieve when the statutes of set-off fail to give adequate remedy. Plaintiff applies to this court to restrain the defendant from enforcing the unconscionable advantage that she has obtained by the failure of the statute to allow plaintiff to prove his off-set. This action in no way seeks a modification of the judgment, but merely asks that the defendant be compelled to do equity.”
The bill prayed that the defendant administratrix be restrained by the order and injunction of the court from proceeding to a collection of said judgment, and from forcing said appeal from the commissioners to trial during the pendency of this suit. Upon the filing of the bill of complaint and a bond, an injunction was issued as prayed for. The defendant filed a motion to dismiss, in the nature of a demurrer, upon the ground that the bill sets up no equitable ground for relief. The motion was heard in the court below and was granted in whole, and the bill of complaint was, dismissed for the reason that it set up no equitable ground for relief. The plaintiff has appealed.
It seems to us that to state the facts, in this case is virtually to decide it, and affirm the decree below. It appears from the statements contained in the bill that there was a distinct agreement on the part of Judson to accept the property and money in discharge of the debt, in whole or in part. Unquestionably it is this agreement that gives the character of payment, without which the transaction is regarded as matter of set-off. 21 R. C. L. p. 46.
It is significant that in the circuit court instead of pleading payment in full, or pro tanto, Pratt saw fit to give notice of set-off only. This set-off he voluntarily withdrew from the consideration of the court in that case, and sought a new forum. He went before the commissioners on claims and presented his case. An adverse decision having been rendered, he, claiming to be aggrieved thereby, has appealed to the circuit court, where the case is now pending. Whatever may have been the agreement, if any, on the part of Judston to apply as payments the property and money received from Pratt, there is no evidence or showing of any fraud or deceit practiced by him. By the statements in the bill it appears that the parties never got together to make a settlement, and the claims of Pratt, treating them as independent transactions, were outlawed before Judson’s death. Plaintiff never saw fit to bring suit upon them, or plead payment, but slept upon his rights. A party thus guilty of delay and laches has no standing in a court of equity.
It has been repeatedly said that in the matter of set-off courts of equity follow the law, and will not allow set-off in cases where the law will not, unless there be special equities, growing out of the transaction itself, requiring it. Lockwood v. Beckwith, 6 Mich. 168, 175. One who has let his legal remedy be outlawed cannot obtain relief in equity. Webster v. Gray, 37 Mich. 37. This doctrine has been frequently announced by this court.
We have examined the authorities cited by plaintiff’s counsel referred to in 19 Enc. Pl. & Prac. p. 718. Nearly every one of the cases there cited dealt with the question of insolvency or non-residence of parties. No such question is here involved. From the authorities cited by plaintiff we quote the following:
“This court has held in a number of cases, that a court of equity will set off an equitable demand against a legal demand (Downs v. Jackson, 33 Ill. 464; Raleigh v. Raleigh, 35 Ill. 512). But, ‘courts of equity will not enforce a set-off not allowed by law, unless the party seeking it can show some equitable ground for being protected against his adversary’s demand; The mere existence of cross-demands is not sufficient.’ Rawson v. Samuel, 1 Craig & Phil. 161.
“At first courts of equity assumed jurisdiction in matters of set-off because natural equities seemed to require that one demand should compensate another, and that it was iniquitous to demand and enforce more than the balance. But now courts of equity only exercise this jurisdiction when a legal demand is interposed to an-equitable suit, or when an equitable demand cannot be enforced at law and the other party is suing therein; or where the demands are purely legal and parties seeking the benefit of the statute show some equitable demand for being protected. The insolvency of the party against whom the set-off is claimed is a ground for the exercise of equitable jurisdiction. Gay v. Gay, 10 Paige Ch. (N. Y.) 376; Raleigh v. Raleigh, supra.” Houston v. Maddux, 179 Ill. 377 (53 N. E. 599).
In Barnes v. McMullins, 78 Mo. 260, it is said, quoting from 2 Story’s Eq. Juris, § 1436:
“ ‘A set-off is ordinarily allowed in equity only when the party seeking the benefit of it can -show some equitable ground for being protected against his adversary’s demand.’
“When the party has a plain redress at law, not merely by pleading but by an original suit, a court of chancery will generally refuse to assume jurisdiction, nor will equity take cognizance of a case or extend its jurisdiction to sustain as a set-off a sum so uncertain as to require a jury to be impanelled to liquidate it. But when the demand sought to be set off is certain and definite, and the insolvency of the adverse party is admitted, the chancellor has jurisdiction to retain the matter and give full and final redress by decreeing a set-off, or any other relief proper and consistent in the case.”
In Bathgate v. Haskin, 59 N. Y. 533, it is said:
“But while, as a general principle, courts of equity follow the rules of law in enforcing set-offs, they exercise an original jurisdiction over the subject, and in cases of peculiar equity and under special circumstances will enforce a set-off not within the letter of the statute. * * * The insolvency of a party against whom a set-off is demanded is often a decisive reason for interposition of a court of equity.”
We also quote the following from 1 Joyce on Injunctions, § 501:
“Set-off — Insolvency. Where plaintiff and defendant are mutually indebted to each other on negotiable notes, and defendant becomes insolvent, he may be enjoined for the purpose of set-off from transferring the note made by plaintiff if it is not yet due. The general rule is that when there are mutual demands between parties which cannot be set off under the statute, but may be set off in. equity without interfering with equitable rights, the fact that one of the parties is insolvent gives jurisdiction to a court of equity to enforce the set-off.”'
We think the plaintiff has elected his forum, and that the following language from 20 Corpus Juris, at page 41, is applicable here:
“The prosecution by plaintiff of an action at law to judgment, or a suit in equity to decree, with knowledge of his rights and of the facts, is held to be a conclusive election of the tribunal in which the action or suit is prosecuted, which will bar subsequent proceedings for the same cause in the other tribunal. The matter has then become res judicata. But the mere commencement of an action at law, or a suit in equity does not constitute a conclusive election, so as to preclude resorting to the other tribunal to enforce the same cause of action, especially where the actions are not inconsistent, although equity may, and ordinarily will, decline to assume jurisdiction, in the absence of special circumstances, where the action at law was first commenced; particularly where it would be inequitable to do so. The rule that in cases of concurrent jurisdiction the court that.first acquired jurisdiction ousts the jurisdiction of the other, has been applied in this connection.”
See, also, 24 R. C. L. p. 881; 7 Wait’s Actions & Defenses, p. 478; and upon the subject generally see 25 Am. & Eng. Enc. Law (2d Ed.), p. 543.
If the statute relating to set-offs, cited by counsel for plaintiff, is applicable to plaintiff’s claim, it is as available to him in the circuit court where his claim is pending as it would be in a court of equity.
Upon the whole record we are satisfied that the conclusion reached in the court below was the correct one, and that the plaintiff does not state a case for equitable relief in his bill of complaint. The rule is well stated in 19 Enc. Pl. & Prac. p. 719, as follows:
“The mere existence of mutual demands, distinct and independent in character, is insufficient to give to equity jurisdiction to compel a set-off. Some grounds for equitable interposition must be alleged, such as fraud, agreement to set off mutual demands, embarrassment in enforcing the demand at law, or special circumstances, such as insolvency or non-residence, which render it probable that one party will lose his demand, and be compelled to pay the demand <of the other.”
And on page 721:
“Equity will not order a set-off on the application of one who has a complete and adequate remedy at law.”
See, also, Bispham’s Equity, § 428.
And upon the subject of laches see 19 Enc. Pl. & Prac. p. 722.
The decree of the court below is affirmed, with costs.
Steere, C. J., and Wiest, Fellows, Clark, Bird, and Sharpe, JJ., concurred. Moore, J., did not sit. | [
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] |
Sharpe, J.
The bill of complaint herein is filed by plaintiffs to enjoin the defendants from carrying out certain contracts entered .into by the defendant Patterson as drain commissioner of the county of Kent with the other defendants. It appears that an application was made to the commissioner for the cleaning out, deepening, etc., of the Pratt lake drain and another for similar work on the Kilgus drain, a part of each of which was in the townships of Lowell and Bowne. In his final order of determination, the commissioner consolidated these drains. He afterwards advertised the letting of the contract for such work, by auction, stating therein, “reserving to myself the right to reject any and all bids.” On the day appointed (December 9, 1919), a number of bidders appeared. The first bid was 25 cents per cubic yard for earth removed. This was reduced by a number of bids, thej last one being made by Charles H. Montague at 14.4 cents. The defendant Woolman Construction Company had theretofore bid 14.5 cents. There being no other bids, the commissioner announced, in effect, that he rejected the last bid of Montague and “struck it off to Mr. Balhoff.” A contract was thereupon entered into with the construction company, for whom Mr. Balhoff was bidding, for the performance of the work. The commissioner had required that each bidder should deposit with him, before the bidding started, a certified check for $1,000 as security that he would enter into the contract, should it be awarded to him, and furnish the required bond for' performance. Both Montague and the construction company had made deposit of such checks.
Plaintiffs contend that the commissioner had no authority to enter into the contract because not awarded to the lowest responsible bidder. Section 3 of chapter 4 of Act No. 316, Pub. Acts 1917, under which the commissioner was acting, provides:
“The county drain commissioner shall thereupon proceed toi receive bids and let contracts for the construction of the sections, and make contracts with the lowest responsible bidder giving adequate security for the performance of the work.”
We have no doubt that the intent of the statute is to clothe the commissioner with a reasonable discretion in determining who is the “lowest responsible bidder.” Such discretion, however, must not be exercised arbitrarily. If exercised at all, it must be in the interest of the public and not that of a particular bidder. The commissioner had required the bidders to evidence their responsibility by the deposit of the certified checks. Doubtless, he had a right also to satisfy himself that Montague would be able to furnish the required security. But it is apparent from his own testimony that he did not reject Montague’s bid for this reason. He had permitted him to make bids and had no right to reject the last one made by him .unless satisfied that he was not a “responsible bidder.” The only reason assigned by him is that Montague was a stranger to him and that he knew by experience that the construction company would properly perform the contract. .We are impressed that the commissioner acted in good faith, believing that under his reserved power “to reject any and all bids” he was justified in rejecting that last made by Montague. Counsel for the defendants make no claim that the action of the commissioner' was justified under this reservation, so we do not consider it. They now urge that the proofs show Montague was not a responsible bidder and that therefore the action of the commissioner in rejecting his bid should be sustained. Without considering this disputed question of fact, it is sufficient to say that the commissioner at the time the bid was rejected made no such determination. As was said in McBrian v. City of Grand Rapids, 56 Mich. 95, what he was required to do—
“is for the benefit of the public; the object being to invite competition, and prevent favoritism and fraud in awarding contracts for public works. It was not the inténtion of the legislature to leave it discretionary with the board whether the contract should be made with the lowest responsible bidder.”
We are constrained to hold, as did the trial court, that the action of the commissioner in rejecting the last bid of Montague was unwarranted and that the award of the contract afterwards made to the construction company must be set aside. See, also, Twiss v. City of Port Huron, 63 Mich. 528; Brady v. Hayward, 114 Mich. 326; Fourmy v. Town of Franklin, 126 La. 151 (52 South. 249); Kelling v. Edwards, 116 Minn. 484 (134 N. W. 221, 38 L. R. A. [N. S.] 668); Connolly v. Freeholders, 57 N. J. Law, 286 (30 Atl. 548); Ross v. Board of Education, 42 Ohio St. 374; Times Publishing Co. v. City of Everett, 9 Wash. 518 (37 Pac. 695); American Pavement Co. v. Wagner, 139 Pa. St. 623 (21 Atl. 160); Chippewa Bridge Co. v. City of Durand, 122 Wis. 85 (99 N. W. 603, 106 Am. St. Rep. 931); Inge v. Board of Public Works, 135 Ala. 187 (33 South. 678, 93 Am. St. Rep. 20); People v. Gleason, 121 N. Y. 631 (25 N. E. 4).
The advertisement contained the following lan guage relative to the bridges to be built across said drain:
“Also the sale of the bridges, according to plans and specifications now on file and in my office.”
An amendment to section 1 of chapter 4 of Act No. 316, above referred to, adopted in 1919 (Act No. 308), provides that the notice of letting shall also state—
“the location, number, type and size of all culverts and bridges and the conditions upon which said contract or contracts will be awarded.”
This section further provides:
“In no case shall said notice contain the minutes of survey or table of cuttings which shall be kept on file in the office of the drain commissioner and be open to inspection by all parties interested at all times after the giving of said notice until the date therein set.”
It appears from the proofs that plans and specifications for the bridges had been prepared and were in the office of the commissioner and open to inspection at all times after the publication of said notice. We are not able to perceive in what manner the location of the bridges could be describéd in the notice with any degree of accuracy without a reference to the survey. The statute expressly provides that such minutes shall not be included therein. The purpose of the notice is to inform prospective bidders of the work to be done. It is apparent that no such specific information could be set out in such notice as would form a reliable basis on which to bid without an examination of the plans and specifications on file with the commissioner. After a consideration of the entire section and the purpose sought to be accomplished thereby, we are of the opinion that the notice as to the bridges was sufficiently specific and that the trial court was justified in the conclusion reached by him that the contract for building same should not be set aside.
It is insisted by counsel for the construction company that as the proportion of the difference in amount between the cost of the work on the drain under the two bids which would be spread on the townships at large would be less than $100, the plaintiffs are not entitled to seek relief therefrom in a court of equity. We think there is no question as to the right of the plaintiffs to file this bill. A part of the money to pay for the work done under these contracts, if performed, would be raised by spreading a tax on all the real estate in the townships. A lien would thereby be created thereon which might be enforced by a sale thereof. In McManus v. City of Petoskey, 164 Mich. 390, 394, it is said:
“Were this a case where the money to be paid would have to be raised by taxation, there would be no doubt of the jurisdiction, because of the possibility of its becoming a lien on such land to the. exte'nt of its proportion of the taxes, and of a sale to enforce collection. This is put beyond controversy by our decisions.”
See, also, Soule v. City of Grand Haven, 174 Mich. 276, and cases cited; Brandt v. Luce, 177 Mich. 184.
As both parties appeal, the decree will be affirmed without costs. •
Steere, C. J., and Moore, Wiest, Fellows, Stone, Clark, and Bird, JJ., concurred. | [
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] |
Clark, J.
After marriage the parties lived with plaintiff’s parents who owned & large farm and conducted a considerable farming enterprise, with, we think, an understanding that when the parties had shown capability in the farming enterprise the parents would retire from the business and thereafter reside at Montague where they owned a dwelling. Several months after the marriage defendant, having visited occasionally her parents who lived 40 miles distant, went to the home of her parents where she remained from June until September. Shortly after her return a child was born and in March following she left-plaintiff, went again to the home of her parents where she has since resided, having the child and living apart from plaintiff. More than two years after such leaving the bill was filed seeking divorce for desertion.
Defendant answered. Plaintiff-had decree. The mother was awarded the custody of the child. Defendant has appealed complaining of the divorce and of the award of alimony. At the farm home as against plaintiff’s father no ill treatment is claimed. There was some slight unpleasantness between defendant and her mother-in-law caused by words and conduct of the latter which did not justify defendant’s desertion of plaintiff. And to justify it no failure or misconduct on the part of plaintiff is shown. Streicher v. Streicher, 202 Mich. 588, is authority for sustaining the divorce.
The decree makes a nominal provision in lieu of dower, requires the plaintiff to pay defendant’s taxable costs, including an attorney fee of $60, ancFdirects the payment by plaintiff for the child of $3 per week untilj the further order of the court.
At the time of the hearing plaintiff had no property. He was employed at farm labor, his wage being $50 per month. Defendant is a school teacher earning at the time of the hearing $105 per month. The child was then with defendant’s parents, prosperous farmers having a good home, where the keeping charge was $3 per week. As the parties were then circumstanced the decree is equitable. In the event of a material change in conditions the decree may be' modified upon petition to the circuit court.
Affirmed without costs.
Steere, C. J., and Moore, Wiest, Fellows, Stone, Bird, and Sharpe, JJ., concurred. | [
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Steere, C. J.
Defendant was convicted in the Bay county circuit court under an information charging that, on June 26, 1920, at the city of Bay City, in said county, he did then and there unlawfully have in his possession a quantity of intoxicating liquor “to wit 40 quarts of whisky * * * contrary to the form of the statute in such case made and provided,” etc. The initiative of these proceedings was a search warrant issued by a justice of the peace upon an affidavit sworn to before him by a police officer praying for the issue of a precept to search defendant’s residence, stating as ground therefor that “he has good reason to believe and does believe that certain intoxicating liquors are kept and concealed in the residence of Charles May-hew of this city, located at No. 604 East Vermont street in said city and county.” The search warrant commanded the officer, “together with the necessary and proper assistance, to enter into the residence of Charles Mayhew, No. 604 East Vermont street, in said city of Bay City, in the county aforesaid, and there diligently search for the said intoxicating liquors,” and to forthwith bring all intoxicating liquors found in such search before the justice, “to be disposed of and dealt with according to law.” An officer went to defendant’s residence on the afternoon of June 26, 1920, accompanied by proper assistance and equipped with the search warrant. He informed defendant and wife of Ms mission, authority and purpose to search their premises for intoxicating liquor, and told defendant that “if he had any liquor it would be better for him to show us where it was to save upsetting his house and having us all over the place.” Defendant made no denial and led the way to his supplies in that line. Of the event one of the officers relates: “Mr. Mayhew showed us into the bed room and we took two cases full, a five-gallon jug and the water bottle.” These were seized under and by virtue of the search warrant and turned over to the chief of police, as appears by the officer’s return indorsed on said warrant. The officer who made seizure testified on cross-examination:
“The place I searched is a dwelling house; it is not attached to any store, hotel, boarding house or anything of that sort; it was used as a dwelling house at that time. I saw nothing to indicate that they were conducting any business or anything in the house except using it as a dwelling house.” '
Section 30 of Act No. 53, Pub. Acts 1919, amending section 30 of the prohibition act of 1917 (Act No. 338), provides:
“No. warrant shall be issued to search a private dwelling, occupied as such, unless some part of it is used as a store or shop, hotel or boarding house, or for any other purpose than a private residence, nor unless such private dwelling is a place of public resort.”
Upon the trial some, if not all, of the liquor so seized was produced and introduced in evidence, against defendant’s objection. The cases were shown to have contained 20 bottles of liquor bearing labels stating they contained “Corby’s Canadian Whisky,” bottled in bond, certified by the provincial analyst of Ontario “to be a pure whisky of excellent flavor.” This legend found support in the testimony of the official chemist of Bay City who had analyzed the contents of one of the bottles and said: “The liquor is 33.6 alcohol and it is intoxicating, in volume.”
Prior to the trial defendant’s counsel presented a written motion to quash the information on the ground that the affidavit and search warrant were void, that search of defendant’s private dwelling is forbidden by statute and the seizure illegal. These objections were renewed at commencement of the trial, objections were interposed to admission of all evidence secured by service of the claimed void search warrant and objections to adverse rulings upon the questions raised were properly reserved for review by motions, requests and exceptions.
The proceedings were doubly void. The affidavit and search warrant were directed to a search and seizure of and in defendant’s residence. The affidavit did not state nor the proofs show the exceptional conditions specified in the statute which authorized the search of a private dwelling, or residence, occupied as such. It stated no facts or circumstances within the affiant’s own knowledge, but only, in the language of section 25 of the prohibition act as originally passed and as amended, “that he has good reason to believe and does: believe certain intoxicating liquors are kept and concealed” in defendant’s residence, refraining from even expressing a belief as to the intent or purpose for which they were kept or concealed. Evidence secured by virtue of a void search warrant issued pursuant to an affidavit made under said section 25 was inadmissible. In those particulars this case falls squarely under and is controlled by People v. DeLa-Mater, 213 Mich. 167.
The conviction and judgment must therefore be set aside, and defendant discharged.
Moore, Wiest, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred. | [
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Bird, J.
This case has been in this court before. It is reported in 210 Mich. 323. A reading of the opinion there mentioned will be helpful. In the opinion is the following language:
“We are also impressed that if defendant Clark is to be permitted to make a defense, we ought not to review plaintiff’s appeal until the whole controversy is before us. In view of these impressions, we have concluded to set aside that part of the order imposing the condition of opening default on condition that he file with the trial court a bond conditioned to pay any costs which may be finally adjudged against him in the litigation, and to order the record remanded to the trial court for such additional testimony as the parties may desire to offer, subject to the rules and practice of the court. The question of costs of this proceeding will be reserved until the final hearing.”
The case was remanded to the court below and again' heard. At the beginning of the taking of the testimony, the following occurred:
“Before any testimony was taken, Mr. Beckenstein addressed the court saying that he wished to know whether the plaintiffs desired to put in further proofs affecting the rights of defendant Beckenstein, and saying that if they did not, he felt it was unnecessary for him to attend the hearing further. After some discussion it was agreed in open court that the testimony should be confined to the right and liability between the plaintiffs and the defendant Walter H. Clark, and that the defendant Beckenstein be eliminated upon the hearing.”
So far as the defendant Beckenstein is concerned the case is here upon the record as made when the case was here before.
It was the contention of Walter H. Clark that he started the work as soon as the papers were signed and worked steadily until August, 1918, when he was compelled by plaintiffs to stop work, due to their failure to furnish the electric wiring which prevented him from testing the water mains, which test for leaks should be made of all water mains before the same are covered with earth. That plaintiffs never made any complaint until the bill was filed in this cause and that they were in default on their payments, and that plaintiffs have never declared the contract forfeited, nor have they served him notice to complete the work, at any time, and that the contract is still in force. It is the further claim that Walter H. Clark is.ready and, willing to make the test and to complete the work just as soon as the plaintiffs furnish this electric wiring.
It was the claim of the plaintiffs that what work was done was not according to the contract; that the sewer pipe was not buried deep enough, that it was not laid in a straight line but ran around stumps, that the pipe was not laid on a grade and could not be connected at the outlet properly. That the pipe was not covered, that the work was abandoned in June or July, and that what had been done was of no value whatever. It is also the claim of the plaintiffs that defendant Beckenstein stands in the place of defendant Walter H. Clark, and that he should not have had any relief in the decree.
After the evidence was in and arguments had, the court expressed himself in part as follows:
“The court finds and determines that said contract in its aim, scope and purpose was entire, indivisible and not severable.
“That the said defendant Walter H. Clark breached his contract in essential and controlling features and that the work, labor and materials furnished by him are of no substantial benefit to plaintiffs.
“That the cross-bill of defendant Walter H. Clark be dismissed, and that the decree of the court in favor of plaintiffs and against defendant Walter H. Clark be reentered in form and substance as heretofore embodied in the original decree.”
The original decree held that defendant Beckenstein was a bona fide purchaser and should be paid $6,000 and that if the plaintiffs paid this amount they should recover it against Walter H. Clark. The plaintiffs and Walter H. Clark both appeal. As between the plaintiffs and Walter H. Clark the deed and the three contracts of the same date constitute the arrangement between them.
When the trial court held that the contract was entire and not severable we think he overlooked the following provision:
“It is further agreed and understood that should said Walter H. Clark, for any reason or other, fail to complete all or any part of the work hereby undertaken, he will reconvey to said D. Adelbert, Clark and Jose W. Farrington the deed to the above mentioned ninety lots, and said D. Adelbert Clark and Jose W. Farrington is to pay to said Walter H. Clark the amount due for work done by him.”
The record is clear that defendant Clark failed to complete the contract. By the commencement of this proceeding plaintiffs seek to have the premises re-conveyed to them. When the bill of complaint was filed they evidently had in m'ind the provision of the contract which we have quoted, for in the bill of complaint is the following language:
“Another contract was entered into at the same time whereby it was agreed that should said Walter H. Clark for any reason fail to complete all the work * * * he would reconvey * * * to the plaintiffs. Whereupon they should pay to him the amount due him for the work up to that time performed.”
We quote further from the bill of complaint: “but being uncertain of their exact rights and liabilities said plaintiffs hereby offer and stand ready and willing to abide and perform any decree which this court may deem equitable and just in the premises.” In the prayer for relief is the following: “that the court * * * ascertain and determine to what extent, if at all, and to whom these plaintiffs are indebted by reason of the work performed by the said Walter H. Clark,” etc.
The difficulty we find in disposing of this branch of the case grows out of the very conflicting testimony. Testimony was given on the part of the plaintiffs that what was done was of no value to them. Testimony of a different character was offered on the part of defendant Clark. Some facts are clearly established, one is that Clark did not complete the contract. Second, that what he did was not done in a workmanlike manner, and third, that 2,600 feet of water main was put in under the contract, that the sewer crocks for nearly the entire length of the sewer are in the trenches, and that other work was done and material furnished. Under the paucity of the proofs we can only approximate what under the circumstances equity requires should be done. It is our conclusion that defendant Clark leave all material and work as it is, and that plaintiffs allow him therefor $4,400.
We now reach the question as to what shall be done with the defendant Beckenstein. At the outset it should not be forgotten that while defendant Walter H. Clark put his deed upon record plaintiffs did not put any of their three contracts on record. See 3 Comp. Laws 1915, §§ 11712, 11721.
The record shows that before dealing with Walter H. Clark, Mr. Beckenstein looked over the abstract and records and his testimony is that the only knowledge he had of the transaction was what was dis closed by them, and by the contents of the deed and the one land contract, which was assigned to him, and that he had no knowledge of the contents of the other two contracts.
The record also discloses that he had a second mortgage on a piece of property owned by Walter H. Clark, but not involved in this proceeding, which he had foreclosed, though the period of redemption had not expired. There was due on this mortgage $11,775.12. Mr. Walter H. Clark had put a $600-mortgage on the property involved here, which mortgage Mr. Beckenstein assumed. Mr. Clark then caused to be paid to Mr. Beckenstein $6,375.12, and Mr. Beckenstein discharged the second mortgage. We think the trial court was justified in rendering a decree in favor of defendant Beckenstein, and that Walter H. Clark should pay to the plaintiffs the difference between what they pay to Mr. Beckenstein and the $4,400 before mentioned. Defendant Clark will recover costs against plaintiffs as will defendant Beckenstein.
The case is affirmed as to defendant Beckenstein and modified as to the other parties.
A decree may be entered in accordance with this opinion.
Steere, C. J., and Wiest, Fellows, Stone, Clark, and Sharpe, JJ., concurred. Moore, J., did nob sit. | [
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Per Curiam.
Chrysler Corporation appeals by leave granted the decision of the Workers’ Compensation Appeal Board affirming the findings of a referee that plaintiff was entitled to workers’ compensation because he suffered from a work-related lung disability. We reverse and remand.
Chrysler first claims the wcab misapplied the applicable legal standards when it concluded that petitioner suffered a work-related lung condition. Chrysler claims that the wcab used proof of plaintiffs disability to support its conclusion that plaintiffs injury was work-related. See Kostamo v Marquette Iron Mining Co, 405 Mich 105, 116-118; 274 NW2d 411 (1979).
MCL 418.861; MSA 17.237(861) provides:
The findings of fact made by the board acting within its powers, in the absence of fraud, shall be conclusive. The court of appeals and the supreme court shall have power to review questions of law involved in any final order of the board ....
See also Const 1963, art 6, § 28; Aquilina v General Motors Corp, 403 Mich 206, 213; 267 NW2d 923 (1978); Woods v Sears, Roebuck & Co, 135 Mich App 500, 503; 353 NW2d 894 (1984), lv den 421 Mich 852 (1985). It has been held that the Court of Appeals may review the wcab’s findings of fact to determine whether there is any competent evidence in the record to support them. Id.; Burns v General Motors Corp, 151 Mich App 520, 527-528; 391 NW2d 396 (1986).
In order for this Court to discharge its appellate function, the wcab must sufficiently detail its findings of fact so that the Court can separate the facts it found from the law it applied. Kostamo, supra, pp 119, 136; Aquilina, supra, pp 213-214; Costa v Chrysler Corp, 152 Mich App 530, 532-534; 394 NW2d 6 (1986); Moreno v Campbell, Wyant & Cannon Foundry, 142 Mich App 648, 652-653; 369 NW2d 867 (1985), lv den 423 Mich 852 (1985). In Kostamo, supra, p 136, our Supreme Court noted:
[C]onclusory findings [by the wcab] are inadequate because we need to know the path it has taken through the conflicting evidence, the testimony it has adopted, the standards followed and the reasoning used to reach its conclusion.
Having reviewed the wcab’s opinion in this case, we find that we cannot perform our appellate function. The wcab merely affirmed the referee’s decision and summarized the expert testimony presented. It did not state which testimony it adopted, the standards it followed, or the reasoning it used to reach its conclusion. Id. Hence, we vacate the wcab’s opinion and remand this case to the wcab for further proceedings. Costa, supra.
Chrysler next claims that plaintiff failed to prove that his wife was in fact dependent upon him. Plaintiff testified that he was married and that he was the sole supporter of his family. On cross-examination, however, plaintiff admitted that his wife had worked for General Motors until December, 1979, when she was laid off.
MCL 418.353(l)(a)(i); MSA 17.237(353)(l)(a)(i) provides that the wife of an injured employee, living with him at the time of the injury, is conclusively presumed to be dependent upon him. The referee in this case followed the presumption. While this case was pending before the wcab, our Supreme Court decided that the conclusive presumption of dependency regarding a widow, MCL 418.331(l)(a); MSA 17.237(331)(l)(a), was unconstitutional. Day v W A Foote Memorial Hospital, 412 Mich 698; 316 NW2d 712 (1982). Chrysler then asked the wcab to reconsider the conclusive presumption of dependency contained in § 353(l)(a)(i) in light of Day. The wcab denied Chrysler’s request, finding:
Finally, on the issue of dependency of plaintiffs wife, we note that he testified that he was married on April 28, 1971, had three children, the whole family lived in one household and that he was the sole support of his wife and children. That testimony remained unchallenged on cross-examination and this is not the proper occasion to go into the actual amounts spent for the wife’s support.
Thus, it is unnecessary to remand the case to the Bureau for the purpose of litigation or stipulation of the wife’s dependency pursuant to Day v W A Foote Memorial Hospital, 412 Mich 698 (1982).
We believe that these findings were not supported by any competent evidence. First, plaintiff testified that he had one child; second, the question of whether plaintiffs wife was in fact a dependent of plaintiff was raised during cross-examination when plaintiff admitted that his wife was employed until December, 1979.
Furthermore, we agree with the recent decision of our Court in Costa, supra, pp 534-535, that the nearly identical wording of § 331(l)(a) and § 353(l)(a)(i) requires the latter statute to also be held unconstitutional. Moreover, the Costa panel held that its rule, as the rule in Day, should be applied to cases pending before the wcab which raised the dependency issue. Because the instant case is such a case, we remand to the wcab so that plaintiff may attempt to prove the dependency of his wife. Id., p 535.
The third issue on appeal concerns a stipulation between plaintiff and Chrysler. Plaintiff agreed to reimburse Aetna Life Insurance Company for sick ness, accident and extended disability benefits. See MCL 418.821(2); MSA 17.237(821)(2); Aetna Life Ins Co v Roose, 413 Mich 85; 318 NW2d 468 (1982). However, the referee only ordered that Aetna be reimbursed for sickness and accident benefits. The referee also ordered Aetna to pay its pro-rata share of plaintiff’s costs and attorney fees.
In its appeal to the wcab, Chrysler claimed that the referee’s order was erroneous because it failed to reimburse Aetna for extended disability benefits paid to plaintiff and because it ordered Aetna to pay a pro-rata share of plaintiff’s attorney’s costs when MCL 418.821(2); MSA 17.237(821X2) only provides that Aetna pay "a portion of the attorney fees of the attorney who secured the worker’s compensation recovery.” (Emphasis supplied.)
The wcab’s opinion never discussed these issues. Plaintiff concedes that the referee’s order should be modified to include reimbursement for extended disability benefits paid by Aetna. However, plaintiff does not address the issue of whether Aetna could be ordered to pay costs. In light of the unambiguous language of MCL 418.821(2); MSA 17.237(821)(2), we believe that the referee could only order Aetna to pay its proportionate share of attorney fees, but not costs. Nerat v Swacker, 150 Mich App 61, 64; 388 NW2d 305 (1986), lv den 426 Mich 857 (1986). On remand, the wcab should modify the referee’s order to include reimbursement for extended disability benefits, but to exclude Aetna’s liability for plaintiff’s costs.
Finally, Chrysler challenges the constitutionality of MCL 418.261(2); MSA 17.237(261X2) which provides:
Except as otherwise provided for in this act, a matter pending review before the appeal board shall be assigned to a panel of 2 members of the board for disposition, with each panel comprised of 1 member each from the employee and employer representatives, the employee and general public representatives, the employer and general public representatives, or 2 members representative of the general public. The decision reached by the assigned members of a panel shall be the final decision of the board. If the members of a panel cannot reach a decision, the chairperson of the board shall assign a third panel member to review the matter. The third member shall be from a designated representative group that is not already represented on the panel, except for a panel of 2 members representative of the general public in which case the third member shall be a representative of the general public. The decision of the third member shall be controlling and shall be considered to be the final decision of the board.
We note that the wcab reviews decisions made by a referee. MCL 418.255; MSA 7.237(255). Moreover, the wcab is composed of fifteen members, with five members representing employees’ interests, five representing employers’ interests, and five representing the general public’s interests. MCL 418.251; MSA 17.237(251).
The wcab panel which reviewed the referee’s decision in this case was composed of one employee and one general-public representative. Chrysler claims that this composition, with one-half of the board being predisposed toward plaintiffs interests, deprived it of its due process right to a hearing before a fair and impartial decision maker. US Const, Am XIV; Const 1963, art 1, § 17. Crampton v Dep’t of State, 395 Mich 347, 351; 235 NW2d 352 (1976), reh den 396 Mich 956 (1976).
This Court has previously ruled on the issue of whether the composition of the wcab deprived litigants of their right to due process. Ratliff v General Motors Corp, 127 Mich App 410; 339 NW2d 196 (1983), lv den 419 Mich 932 (1984); Vayiar v Vic Tanny International, 114 Mich App 388; 319 NW2d 338 (1982); Warren v Motor Wheel Corp, 110 Mich App 731; 313 NW2d 286 (1981), lv den 411 Mich 1049 (1981); Pitoniak v Borman’s, Inc, 104 Mich App 718; 305 NW2d 305 (1981), lv den 411 Mich 1049 (1981), app dismissed 455 US 901; 102 S Ct 1242; 71 L Ed 2d 440 (1982). At that time, the wcab was made up of fifteen members, with six representing employees’ interests, six res-presenting employers’ interests, and three representing the general public’s interests. The panels were composed of three members, who were chosen at random, and the vote of the majority controlled.
In Pitoniak, supra, the defendants challenged the constitutionality of a panel composed of two employees’ representatives and one general public representative. The Pitoniak panel first noted that a party, who challenges the impartiality of a tribunal need not show actual prejudice; instead, it is sufficient if the situation is one in which experience teaches that' the probability of actual bias on the part of the decision maker is too high to be constitutionally tolerable. See also Withrow v Larkin, 421 US 35, 47; 95 S Ct 1456; 43 L Ed 2d 712 (1975); Crampton, supra, p 351.
In Crampton, supra, our Supreme Court noted that some cases where actual bias could be presumed were those in which the decision maker: (1) had a pecuniary interest in the outcome; (2) had been the target of personal abuse or criticism by the party before him; (3) was enmeshed in other matters involving the petitioner; or (4) might have prejudged the case because of prior participation as an accuser, investigator, fact finder or initial decision maker. Applying these factors, the Pitoniak panel concluded that: (1) the wcab had no pecuniary interest in the outcome of a case because they received a salary 'Appropriated by the Legislature; (2) defendants had' not' personally abused or attacked the wcab panel; (3) the wcab panel had no other dealings with the parties; and (4) the wcab had no involvement in the case until it was appealed from the referee, and, therefore, it had no previous dealings-with the case.
The Pitoniak panel then discussed the due process balancing test announced by the United States Supreme Court in Mathews v Eldridge, 424 US 319; 96 S Ct 893; 47 L Ed 2d 18 (1976). In Mathews, supra, p 335, the Supreme Court held:
[Identification of the specific dictates of due process generally requires consideration of three distinct factors: 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.
Applying this test to the composition of the wcab panel, the Pitoniak panel ruled that, although the private interests of the defendants were great, there was "no evidencé indicating a risk of erroneous deprivation of such interests or that alternative procedures would offer greater protections.” Pitoniak, supra, p 728. The Pitoniak panel also noted that the state’s proprietáry and administrative interests in maintaining the present system were insubstantial. The Pitoniak decision was followed in Warren, supra, and Ratliff, supra.
In Vayiar, supra, another panel of this Court (including one member of the Pitoniak panel, who had changed his mind on the due process issue) disagreed with the conclusion reached in Pitoniak. The Vayiar panel first noted that the factors listed in Crampton, supra, to determine the possibility of actual bias were not intended to be exhaustive. The Vayiar panel then held that a situation where a majority of the decision-making panel is strongly identified and aligned with one of the parties, but not the other, amounted to a denial of due process. The Vayiar panel then found that representatives of employee interests were, by definition, aligned and identified with the interests of employees who appeared before the wcab. The Vayiar panel concluded that the defendants had been denied their due process right to a hearing before a fair and impartial decision maker when the wcab papel hearing their case was composed of two employee representatives and one employer representative. Finally, the Vayiar panel noted that under Mathews, supra, it would impose no greater financial burden on the state to provide for an alternative decision-making procedure which would greatly reduce the risk of prejudice: namely, providing for a panel composed of one representative from each of the three groups represented on the wcab.
Both parties in this case concede that the issue presented in Pitoniak and Vayiar involved a statute under which a majority of the wcab panel could represent the employees’ interests. In this case, under the present MCL 418.261(2); MSA 17.237(261)(2), the employee representative is only one-half of a team which includes a neutral representative of the general public. In the event that these two panel members cannot agree, an employer representative will cast the deciding vote. The parties agree that the Legislature reduced the number of members sitting on the wcab panel in order to eliminate its backlog of cases.
Even though we note that the holding in Vayiar is not directly on point, we agree with its reasoning and find that it applies in this case. First, we agree that the Crampton factors indicating the possibility of actual bias were not intended to be exclusive. Second, we agree that employee representatives are, by definition, aligned and identified with employee interests. Third, we hold that, even though the employee representative does not constitute a majority of the wcab panel but, in fact, is only one-half of it, Chrysler was nonetheless denied its right to a fair and impartial hearing because it must be presumed that the employee-representative was already aligned with plaintiffs position. We believe that the fact that an employer representative would be added to the panel in the event of a tie vote between one member already aligned with plaintiff and a neutral member is insufficient to overcome the initial partiality inher-. ent in the original two-member wcab panel. We further note that it would impose no greater financial burden on the state to provide an alternative decision-making procedure which would greatly reduce the risk of prejudice: namely, providing for two-member panels composed of either one employee and one employer representative or two general-public representatives. See Mathews, supra; Vayiar, supra. In either case, a split may be resolved by a general public representative. Id.
Hence, we vacate the opinion of the wcab’s two-member panel in this case and we remand this case to the wcab so that it may be considered by a two-member panel consisting of either one employer and one employee representative or two general public representatives in a manner consistent with this opinion. We further order that on remand this matter be given expeditious attention. We retain jurisdiction- | [
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] |
MacKenzie, J.
Plaintiff appeals as of right from a Court of Claims grant of summary disposition under MCR 2.116(0(10) to defendants, upholding the Department of Treasury’s decision not to pay a single business tax (sbt) refund of $60,013 to plaintiff for the taxable period July 1, 1979, through June 30, 1983, because plaintiff’s claimed "gross receipts” subject to the tax were incorrect. We affirm.
The facts are not in dispute. Plaintiff, a Michigan corporation, has as its principal function the management of Michigan Physicians Mutual Liability Company, a medical malpractice insurance company. Plaintiff manages the insurance company under a written services agreement which authorizes it to perform certain duties, including:
(1) to receive and process applications for insurance;
(2) to issue insurance policies;
(3) to bill, collect, and deposit premiums and other fees into a banking facility designated by the insurance company;
(4) to maintain appropriate reserves for claims;
(5) to administer claims;
(6) to maintain records and regularly report to the insurance company; and
(7) "to strictly abide by an operating budget set for the management firm by the company’s board of directors. Any management firm expenditures which will exceed the amounts set by said budget will have to be submitted to and approved by the company’s board of directors.”
Plaintiff receives compensation in two ways. Under § 4(l)(ii) of the services agreement, plaintiff receives a monthly fee at a fixed rate per policyholder. Under § 4(l)(i), plaintiff is reimbursed for reasonable costs incurred on the insurance company’s behalf, including but not limited to plaintiff’s salaries, wages, outside contractual services, and allocated overhead.
In filing its set return for the tax years ending June 30, 1980, through 1983, plaintiff included as gross receipts both its monthly fee and the sums received from the insurance company as reimbursements for expenditures. In May, 1984, plaintiff filed amended sbt returns, claiming that only the monthly fee, and not expenditures, constituted gross receipts subject to the tax. The department rejected plaintiff’s resulting refund claims for each tax year.
Plaintiff filed a complaint with the Court of Claims to recover the refunds. Thereafter, plaintiff filed a motion for summary disposition under MCR 2.116(C)(10). Plaintiff claimed that, under the services agreement, the reimbursements for expenditures which it received from the insurance company were received in an agency or other capacity so that they were not gross receipts as defined in subsection 7(3) of the Single Business Tax Act (SBTA), MCL 208.7(3); MSA 7.558(7)(3). That subsection provides:
"Gross receipts” means the sum of sales, as defined in subsection (1), and rental or lease receipts. Gross receipts does not include the amounts received in an agency or other representative ca- parity, solely on behalf of another or others but not including amounts received by persons having the power or authority to expend or otherwise appropriate such amounts in payment for or in consideration of sales or services made or rendered by themselves or by others acting under their direction and control or by such fiduciaries as guardians, executors, administrators, receivers, conservators, or trustees other than trustees of taxes received or collected from others under direction of the laws of the federal government or of any state or local governments. [Emphasis added.]
Subsection (1), referred to in the above definition, provides in pertinent part:
"Sale” or "sales” means the gross receipts arising from a transaction or transactions in which gross receipts constitute consideration: . . . (b) for the performance of services, which constitute business activities .... [MCL 208.7(1); MSA 7.558(7X1).]
The department filed a cross-motion for summary disposition under MCR 2.116(C)(10), contending that the reimbursed costs were payments for services provided by plaintiff pursuant to a cost-plus contract, and thus constituted gross receipts. This contention was based on the following departmental interpretation of gross receipts as defined in subsection 7(3) of the sbta, MCL 208.7(3) et seq.; MSA 7.558(7)(3) et seq., when payments are received by the taxpayer under a services contract:
(c) Where the parties enter into a cost-plus contract for the performance of a service, all payments received by a person for the performance of the service, whether it is a reimbursed expense or a monthly fee is considered part of the servicer’s gross receipts for purposes of calculating the single business tax. If the Single Business Tax Act were administered to exclude reimbursed expenses from the tax base, then the services would in substance be taxed only on gross profit.
The Court of Claims, giving deference to the department’s interpretation of gross receipts, granted summary disposition to the department.
The issue before us is whether the trial court erred in ruling that monies received by plaintiff as reimbursement for costs under the services agreement constituted gross receipts as defined in the sbta. The resolution of this issue requires both statutory construction of the term gross receipts, as defined in § 7 of the sbta, and an application of that definition to the "reimbursements” received by plaintiff.
In construing statutes the following principles apply. The primary objective of judicial construction is to ascertain and give effect to the Legislature’s intent. The language of the statute is the best source for ascertaining intent. In re Condemnation of Lands, 133 Mich App 207, 210-211; 349 NW2d 261 (1984), lv den 421 Mich 856 (1985). An act must be read in its entirety and the meaning given to one section arrived at after due consideration of the other sections so as to produce, if possible, a harmonious and consistent enactment as a whole. King v Director of the Midland Co Dep’t of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977). Long-standing administrative interpretations by those charged with administering a statute are entitled to considerable weight. See People v Dunn, 104 Mich App 419, 425; 304 NW2d 856 (1981); Magreta v Ambassador Steel Co, 380 Mich 513, 519; 158 NW2d 473 (1968). However, an administrative interpretation is not conclusive and cannot be used to overcome a logical reading of the statute. People v Dunn, supra, p 425. If an act is clear and unambiguous, then judicial construction or interpretation is unwarranted. Lake Carriers’ Ass’n v Director of the Dep’t of Natural Resources, 407 Mich 424, 429; 286 NW2d 416 (1979). If a statute is ambiguous or susceptible to two or more constructions that could cause reasonable minds to disagree as to its meaning, the statute must be interpreted. Shelby Charter Twp v State Boundary Comm, 425 Mich 50, 72; 387 NW2d 792 (1986).
We find no ambiguity in the meaning of gross receipts as defined by the sbta. The definition clearly excludes from gross receipts the amount received by a taxpayer solely in an agency or representative capacity, while including amounts received as consideration for the performance of personal services. Since the language of the statute is clear, the Court of Claims erred in giving deference to the department, as a matter of statutory construction, in finding that the reimbursement payments received by plaintiff were includable in gross receipts.
We turn, then, to the question of whether plaintiff’s reimbursement payments under the services agreement fit within the clear statutory definition of gross receipts. It is the substance of a transaction rather than the terms applied by the parties which determines how to characterize the payment for tax purposes. See Central Discount Co v Dep’t of Revenue, 355 Mich 463, 467; 94 NW2d 805 (1959). In a multiparty transaction, this Court should honor the allocation of rights and duties effected by the parties in an agreement, when supported by tax-independent considerations. Connors & Mack Hamburgers, Inc v Dep’t of Treasury, 129 Mich App 627; 341 NW2d 846 (1983).
Here, the department construed the services agreement entered into by plaintiff and the insur anee company as a cost-plus personal services contract and characterized plaintiff as an independent contractor in concluding that the reimbursement payments constituted gross receipts. Plaintiff, on the other hand, relied on the express language of the services agreement providing for the reimbursement of reasonable costs incurred on the insurance company’s behalf, and contended that it was acting in an agency capacity in making the disbursements subsequently reimbursed by the insurance company.
An agency relationship can be established by contract. Ayer v Devlin, 179 Mich 81; 146 NW 257 (1914). "Agent” was defined by our Supreme Court in Stephenson v Golden, 279 Mich 710, 734-735; 276 NW 849 (1937), as follows:
"An agent is a person having express or implied authority to represent or act on behalf of another person, who is called his principal.” Bowstead on Agency (4th ed), p 1.
"An agent is one who acts for or in the place of another by authority from him; one who undertakes to transact some business or manage some affairs for another by authority and on account of the latter, and to render an account of it. He is a substitute, a deputy, appointed by the principal, with power to do the things which the principal may or can do.” 2 CJS p 1025.
The term "agent” includes factors, brokers, etc. 2 CJS p 1025.
As said in Saums v Parfet, 270 Mich 165 [171-172; 258 NW 235 (1935)]:
" ' "Agency” in its broadest sense includes every relation in which one person acts for or represents another by his authority.’ 2 CJ p 419.
." 'Whether an agency has been created is to be determined by the relations of the parties as they in fact exist under their agreements or acts.’ 21 RCL p 819.
" 'The characteristic of the agent is that he is a business representative. His function is to bring about, modify, affect, accept performance of, or terminate contractual obligations between his principal and third persons. To the proper performance of his functions, therefore, it is absolutely essential that there shall be third persons in contemplation between whom and the principal legal obligations are to be thus created, modified, or otherwise affected by the acts of the agent.’ 1 Mechem on Agency (2d ed), p 21.”
Mindful of these definitions, we are of the opinion that when plaintiff received and deposited into bank accounts designated by the insurance company premiums and other monies it was acting as an agent; these funds were intended by the Legislature to be excluded from the meaning of gross receipts in § 7(3) of the sbta. However, the payments received by plaintiff as reimbursement for costs incurred in managing the insurance company’s business clearly were not. Plaintiff did not receive this money from the insurance company as a representative of the insurance company. Instead, the substance of the reimbursement payments for tax purposes was to compensate plaintiff for services provided in managing the insurance company’s business. The fact that the insurance company reserved the right to approve costs prior to making payments and required plaintiff to operate within an approved budget does not alter this conclusion. In this regard, the insurance company’s right to approve the amount of reasonable costs subject to reimbursement must be distinguished from plaintiff’s right to authorize the actual expenditures. Plaintiff’s contention that the insurance company "retained control” over costs fails to make this distinction.
As the department correctly contends, to accept plaintiff’s theory would result in only the monthly fees received by plaintiff, which are computed based on a fixed rate per policyholder, being subject to the tax. Since the monthly fees essentially represent gross profits above and beyond plaintiff’s costs, the purpose of the sbta to impose a tax on the value of business activity, and not its income, would be defeated. We therefore conclude that the Court of Claims, although erring in its decision to give deference to the department as a matter of statutory construction, was correct in its decision to grant summary disposition to the department. No genuine issue of material fact was asserted by the parties. From the plain language of the services agreement, the substance of the reimbursement payments should be characterized for tax purposes as consideration for the performance of services.
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] |
Per Curiam.
After a jury verdict for damages was rendered in favor of plaintiff, Janet Van Tassel, on one count of fraud, defendant, McDonald Corporation, moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. Defendant’s motion was denied and it appeals as of right.
In December, 1976, plaintiff met Charles Carver while vacationing with her aunt and uncle in Florida; Carver is the president of McDonald Corporation. Carver learned of plaintiff’s dissatisfaction with her job as an audiologist with Chrysler Corporation. He suggested that plaintiff consider acquiring an ice cream franchise; McDonald was the sub-franchiser of Baskin-Robbins Ice Cream Company. Carver told Van Tassel that she was the right type of person to run a store and that she had business knowledge. He told her that she would never make the amount of money at Chrysler that she would if she owned her own business and that Baskin-Robbins had an excellent product. He also told her that there were opportunities to make a great deal of money. Over and over Carver stated, "[T]here are no bad locations, only bad operators.”
After returning to Michigan, plaintiff looked into acquiring a franchise in Florida, and in June she decided to purchase a Baskin-Robbins store in Florida. She sold her home and moved to Florida before finding out how much the Florida store would cost. When she discovered the price was $77,000 she called Carver for his opinion. He told her the price was too high and that she could get two stores in Michigan for that price. Plaintiff did not purchase the Florida franchise.
She looked into acquiring a Bresler’s ice cream store, but Carver advised her that Bresler’s did not have as high a quality product or the same name recognition and that he could not help her acquire a competitor’s franchise.
Later in June, Carver told plaintiff that he thought he had an available store in the South-land Mall in Portage, Michigan. He described it as a gold mine and added that if it was not available he would find her another one that would make her just as much money. He told her it would not be long before she would be driving a big car and living in a big house and she would do all right if she stuck by him. He assured her he would not steer her wrong because he liked her. Carver told plaintiff that the people who were presently in the Portage store were not "doing right” by him. He predicted that she would own it for a year and then go to work for him at corporate headquarters. Carver reiterated that the Southland store was a gold mine.
Carver verified that the store was available and offered to fly plaintiff to Michigan at McDonald’s expense to look at the store. She declined. She did, however, move back to Michigan and begin training as a Baskin-Robbins operator. She told Carver she did not need to see the store, she trusted him and if he thought it would be right for her, she would take it. Carver told her that it was the right store for her and that all she will be doing is playing golf and making the bank deposits.
During her training, Carver told her she was not going to lose money and that this would be the best thing that would happen to her.
On July 29, 1977, Ray Brooks, McDonald’s regional director, took plaintiff to visit the Southland store and several other Baskin-Robbins franchises in Michigan. Brooks told her that the present managers were cheating Carver, but that the store was a good buy and with hard work she would make money.
On August 12, 1977, plaintiff purchased the Southland store. To do so she signed a $30,000 promissory note, which provided for repayment of principal and interest as a surcharge on ice cream purchases from defendant. She was not required to make any down payment.
During a meeting for all owners having franchises with McDonald in September, 1977, plaintiff voiced concern to Carver that business was not up to her expectations; Carver responded that she should not worry because the previous manager "ran it into the ground” and that it would take time to recover. Plaintiff alleged that this was the first she knew that the store had previous problems.
In October of that year, plaintiff purchased another Baskin-Robbins franchise about ten miles from the Southland store in the Maple Hill Mall. Plaintiff’s allegations of fraud leading to purchase of the Maple Hill store are not at issue.
Plaintiff closed both franchises on November 6, 1978. After a proposed sale of the stores by plaintiff fell through, McDonald sold the Southland store to Margie Hall Candela.
On February 13, 1979, plaintiff filed this action alleging breach of the Michigan Franchise Investment Law, MCL 445.1501 et seq.; MSA 19.854(1) et seq., and common law fraud in her purchase of the Southland and Maple Hill stores, and intentional interference with plaintiff’s proposed sale of the stores. Summary judgment was granted in favor of McDonald on both of plaintiff’s claims of breach of the Michigan Franchise Investment Law. Pursuant to stipulation of the parties, defendant Baskin-Robbins was dismissed.
At trial, plaintiff’s accountant testified that he had never prepared any summaries of plaintiff’s profits and losses, however, plaintiff’s federal income tax return for 1977 showed a net tax loss for both stores of $1,582.46 and for 1978 showed a net tax profit of $287.79. Plaintiff testified that time constraints had prevented her from keeping financial records according to procedures set forth in the Baskin-Robbins management guide.
At the conclusion of plaintiff’s proofs, McDonald moved for a directed verdict on the grounds that the proofs did not show that each of plaintiff’s two stores sustained a loss. The motion was denied. Following completion of the trial, the jury rendered a verdict in favor of plaintiff on the count alleging common law fraud in the sale of the Southland store, assessing $42,000 actual damages and $2,500 punitive damages. On McDonald’s counterclaim for breach of the franchise agreement, the jury awarded $2,400.
On December 22, 1981, McDonald filed its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. From the denial of that motion, defendant appeals.
On appeal defendant contends that all of its representations fell within the categories of (1) opinion, (2) puffing, or (3) statements pertaining to future events and that, viewed as such, they could not constitute actionable fraud. We agree.
An action for fraud may not be predicated upon the expression of an opinion or salesmen’s talk in promoting a sale, referred to as puffing. Windham v Morris, 370 Mich 188; 121 NW2d 479 (1963); Hayes Construction Co v Silverthorn, 343 Mich 421; 72 NW2d 190 (1955); Graham v Myers, 333 Mich 111; 52 NW2d 621 (1952).
In Graham, supra, a used-car dealer represented that an automobile was in "good shape — a nice, clean car.” Id., p 114. The automobile proved after its purchase by the plaintiff to have mechanical problems. In holding that a directed verdict against the plaintiff should have been granted, the Supreme Court relied on the rule that "[a] mere honest expression of opinion will not, although proved erroneous, be regarded as fraud.” Id., p 115.
In Schuler v American Motors Sales Corp, 39 Mich App 276; 197 NW2d 493 (1972), the defendants represented that the inventory of an automobile dealership consisted of "new, salable automobiles,” id., p 278. This Court affirmed the trial court’s grant of judgment notwithstanding the verdict for the defendants, characterizing the defendants’ representation as opinion and noting that the plaintiff could have readily discovered every material fact known to the defendants.
A variant of the rule regarding statements of opinion concerns puffing. In Hayes Construction Co, supra, the plaintiff purchased furnaces for a construction project on the basis of the defendant’s representations that the furnaces "would do the job,” use minimal amounts of fuel, and require little maintenance. Hayes, supra, p 426. In its affirmance of judgment for the defendants, the Supreme Court held that these representations were puffing, noting:
[W]e are here in the realm of what the common law has for years termed "puffing,” a salesman’s praise of his own property, involving matters of estimate or judgment upon which reasonable men may differ. Ordinarily these are not regarded as actionable, even though the vendee’s joys of realization fall short of those of his anticipation. The reason for this lies in the realities of commercial intercourse. [Id., p 426.]
The Court added that it is within normal expectations of commercial dealing for salesmen to "hype” their products beyond objective proof.
On appeal, McDonald also makes the separate but related argument that the statements made by Carver and others pertained to future events and that fraud may not be premised upon such statements. Examples of those statements include: "[y]ou won’t regret becoming a Baskin-Robbins owner,” if you work hard, "there was a lot of money to be made,” "[i]t won’t be long before you’ll be driving a big car and living in a big house,” "you [will] come and work for me in Ann Arbor.” The thrust of Carver’s alleged statements was that the Southland store would be a profitable business venture for plaintiff in the future.
In Hi-Way Motor Co v International Harvester Co, 398 Mich 330, 336; 247 NW2d 813 (1976), the Supreme Court stated:
[A]n action for fraudulent misrepresentation must be predicated upon a statement relating to a past or an existing fact. Future promises are contractual and do not constitute fraud.
In Hi-Way Motor Co, the defendant verbally promised the plaintiffs that the plaintiffs would have the exclusive heavy-duty truck dealership for the Alpena area so long as the plaintiffs did a reasonable job. When another dealer in that area was granted a franchise by the defendant, the plaintiffs brought an action for fraud. The Supreme Court affirmed this Court’s reversal of the trial court’s judgment for the plaintiffs.
In Roy Annett, Inc v Kerezsy, 336 Mich 169; 57 NW2d 483 (1953), the plaintiff brought a suit for specific performance of an option, and the defendants asserted fraud as a defense. The defendants alleged that they were induced to give the option in reliance on the plaintiff’s statements that an apartment building would be constructed on or near the property, that special assessments would be levied against the property, and that a road would be built through the property. The Court applied the rule that "erroneous conjectures as to future events” were not fraud. Id., p 172 (quoting 26 CJ, Fraud, § 25, p 1087). The trial court’s order enforcing the option was affirmed.
In the instant case, the evidence adduced by plaintiff of the alleged misrepresentations of Carver and others show every statement was purely opinion, puffing, or conjecture as to future events. Carver merely represented that plaintiff could make the store very profitable; he was apparently mistaken.
Carver’s opinion was that plaintiff was the right type of person to run a store, that plaintiff could make more money owning her own business than she could at Chrysler, and that there are no bad Baskin-Robbins locations, only bad operators. These reflect Carver’s own opinions. Carver also told plaintiff that the Southland store was a gold mine and that Baskin-Robbins has an excellent product; these statements are opinion or puffing. Carver’s descriptions of plaintiff’s bright future driving big cars, living in a big home, and golfing all day long are purely^speculation as to future events. Had Carver misrepresented to plaintiff that the current owners were making large profits owning that store, this case would be a different matter.
Furthermore, although plaintiff did not become rich owning the stores, her successor, Ms. Candela, apparently ran the business profitably. Candela, however, was not allowed to testify to the amount of profit because the trial court ruled the evidence irrelevant.
We also note that due to plaintiff’s deficient record-keeping methods plaintiffs damages are speculative, at best. Defendant has not and does not intend to collect its $30,000 promissory note from plaintiff.
Defendant’s motion for judgment notwithstanding the verdict should have been granted.
Reversed. | [
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] |
Per Curiam.
Plaintiff, David C. Davis, appeals from an order granting summary disposition to defendant Bronson Methodist Hospital. MCR 2.116(C)(7).
This controversy concerns the August 18, 1983, termination of plaintiff’s employment as Director of the Department of Human Relations at defendant hospital. On that date, plaintiff was given the choice between being terminated or resigning. He chose the latter option, signing an agreement whereby he released all claims he might have against defendant, including claims arising out of his employment and the events which gave rise to his resignation. In consideration, defendant paid plaintiff one month’s salary, accrued vacation and salary and continued his health insurance coverage until September 30, 1983.
Four days after signing the release, plaintiff had an appointment to speak to an attorney about the termination of his employment. On July 12, 1984, plaintiff filed suit, alleging that he had been wrongfully terminated and that the release had been signed under duress. Defendant’s answer included an allegation that plaintiff had engaged in sexual harassment, a major infraction justifying immediate dismissal. Defendant asserted the defense of release.
In a letter dated July 25, 1985, plaintiff’s attorney tendered to defendant’s attorney checks totalling $6,688.14, representing all amounts plaintiff had received pursuant to the release, plus interest. Defendant’s attorney rejected the tender.
Defendant moved for summary disposition, citing the release as a bar to plaintiff’s claim. MCR 2.116(C)(7). Defendant argued that plaintiff’s tender was untimely as a matter of law.
The trial court found that both the one-year delay between the filing of the complaint and the tender and the one-year eleven-month delay between execution of the release and the tender were unreasonable as a matter of law. We agree.
It is clear that plaintiff was required to tender back the consideration he received as a result of the August 18, 1983, release. Leahan v Stroh Brewery Co, 420 Mich 108; 359 NW2d 524 (1984).
We are persuaded of no reason why plaintiff should not have tendered back the consideration prior to commencing suit. See Randall v Port Huron, St C & M C R Co, 215 Mich 413, 423; 184 NW 435 (1921). In any event, there was no error in the court’s finding of unreasonable delay. Id., p 424. Plaintiff claimed duress, the existence of which he was fully aware at the time he signed the release. He sought legal advice immediately but did not tender back the substantial consideration he received until almost two years after execution of the release and one year after he commenced suit and put defendant to the very inconvenience and expense it had sought to avoid by paying plaintiff substantial compensation. Plaintiff has not offered, either in the trial court or in this Court, any persuasive explanation for the delay, which was unreasonable as a matter of law.
Affirmed. | [
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Per Curiam.
Ford Motor Company (hereinafter defendant) appeals from the May 17, 1985, Wayne Circuit Court judgment entered in favor of plaintiffs, Michael E. Harrigan and his wife Mathilda Harrigan, and from the denial of its motion for entry of a judgment of no cause of action and its motion for judgment notwithstanding the verdict for a new trial or for remittitur.
This controversy arises out of a July 25, 1980, single vehicle accident in the State of Kentucky. On that day, plaintiff Michael Harrigan, a Kentucky resident and truck driver, was driving an eighteen-wheel tractor-trailer which left the roadway as he went around a curve near Pikeville, Kentucky. The tractor, a Ford CLT 9000, was manufactured in Kentucky. Mr. Harrigan suffers quadriplegia as a result of the severe cervical spinal column and spinal cord injuries he sustained in the accident. It was plaintiffs’ theory that the accident was caused by a failure in the tractor’s air brake system. Defendant argued that it was Mr. Harrigan’s negligence in entering the curve at an excessive speed that caused the rig to roll over and leave the roadway. Defendant also presented evidence that Mr. Harrigan told the ambulance driver who transported him from the accident scene that he had fallen asleep at the wheel.
As reflected in the February 21, 1985, verdict form, the jury found that defendant manufactured the truck with a defect in the braking system which made the truck unreasonably dangerous, that the defect proximately caused plaintiffs’ injuries, that Mr. Harrigan sustained damages totalling $12,000,000, that Mrs. Harrigan’s damages for loss of consortium totalled $1,000,000, that Mr. Harrigan was negligent in operating the tractor, that his negligence was a contributing proximate cause of the accident, and that seventy-five percent of the total combined negligence was attributable to him.
On May 2, 1985, a hearing was held on defendant’s motion for entry of no cause of action. Defendant argued that Kentucky law governed and that, under Kentucky law, Mr. Harrigan’s contributory negligence barred recovery. The hearing was adjourned to May 9, 1985, when the trial judge, John H. Gillis, Jr., found that Kentucky substantive law controlled but that, in Kentucky products liability cases, the doctrine of comparative negligence applies. Defendant’s request for reconsideration was denied.
On May 17, 1985, judgment was entered for Mr. Harrigan against Ford Motor Company in the amount of $2,987,500, reflecting the reduction for his own negligence and the deduction of a $50,000 settlement with another defendant. Judgment was entered for Mrs. Harrigan in the amount of $250,000.
Defendant filed a motion for judgment notwithstanding the verdict, new trial or remittitur, renewing its argument that, under Kentucky law, judgment of no cause of action should be entered in its favor. Defendant further challenged the sufficiency of the evidence and the trial judge’s failure to instruct the jury as to Mr. Harrigan’s failure to use a seat belt. Defendant also argued that the verdict was so grossly excessive that defendant was entitled to a new trial. The motion was denied in its entirety on June 21, 1985.
On appeal defendant argues that, under controlling Kentucky law, Mr. Harrigan’s contributory negligence bars plaintiffs’ recovery. Plaintiffs do not disagree that Kentucky substantive law controls and, in light of the Kentucky Supreme Court’s decision in Reda Pump Co v Finck, 713 SW2d 818 (Ky, 1986), they do not disagree that Kentucky law mandates that a plaintiff’s contributory negligence bars recovery in a products liability case. Plaintiffs argue, however, that defendant is precluded from advancing a defense of contributory negligence as a total bar to recovery, having argued this case, and having agreed to submit it to the jury, on comparative negligence.
Review of the record discloses only two instances when "contributory negligence” was mentioned prior to submission of the case to the jury. In its August 27, 1981, answer to plaintiffs’ complaint, defendant asserted in its affirmative defense that "the plaintiff was negligent, contributorily negligent, comparatively negligent in failing to act as a reasonable, prudent person would under the circumstances.” Arguing forum non conveniens, defendant accompanied its answer with a motion asking the Wayne Circuit Court to decline jurisdiction and dismiss the complaint so that the case could be brought in Kentucky. In support of its motion, defendant argued, inter alia, that "Kentucky law as to negligence, contributory negligence and breach of warranty would control.” Pretrial judge Charles Farmer denied the motion without prejudice. The motion was later renewed, and denied by Judge Farmer. Neither at the original hearing on the motion nor on rehearing was there any mention of the doctrine of contributory negligence. Kentucky contributory negligence principles were not invoked in any other pretrial pleadings.
Review of the trial record discloses no reference to the affirmative defense of contributory negligence as a total bar to recovery. The parties and Judge Gillis, the trial judge, conducted the trial strictly on the assumption that the doctrine of comparative negligence would apply. On the first day of the three-week trial, for example, defendant argued that Kentucky substantive law controlled and asked that evidence of Mr. Harrigan’s failure to use a seat belt be admitted as relevant to the issue of his comparative negligence. The judge ruled that "testimony on comparative negligence on the part of the plaintiff for not wearing a seatbelt” would not be admitted.
The parties’ discussion about questions to be asked of prospective jurors on voir dire similarly reflects their mutual understanding that the case would go to the jury on comparative negligence.
The parties were given ample opportunity to submit proposed jury instructions to the trial judge. They agreed that the jury would be instructed on the doctrine of comparative negligence. In closing argument, defense counsel noted that the doctrine of comparative negligence would be applied. Without objection, the jury was given the standard jury instruction, and corresponding verdict form, on comparative negligence. SJI2d 11.01, 66.01. Not until seven weeks after the jury was discharged did defendant argue that Mr. Harrigan’s contributory negligence was a total bar to recovery.
As noted supra, the trial judge found that, under controlling Kentucky law, this case was properly submitted to the jury under the doctrine of comparative negligence. On the authority of Reda Pump Co v Finck, supra, we are constrained to find that the trial judge erred in ruling that Kentucky permits application of the doctrine of comparative negligence in products liability cases. We nevertheless find that application of the doctrine of comparative negligence in this case did not constitute error requiring reversal.
On appeal, parties are held to the theory upon which the case was tried without objection. Westman v Brumm, 248 Mich 387, 389; 227 NW 764 (1929); Gustin v Ziem, 289 Mich 219, 224; 286 NW 219 (1939).
The parties tried this case on a theory of comparative negligence. Evidence of Mr. Harrigan’s negligence was presented in support of that theory, not in support of a theory of contributory negligence as a total bar to recovery. There was no objection to the court’s comparative negligence instruction, which informed the jury that Mr. Harrigan’s negligence, if any, did not bar recovery. See SJI2d 11.01.
We are persuaded that any error in the trial judge’s failure to instruct the jury on contributory negligence as a total bar to recovery was precipitated by the parties’ deliberate choice of trial strategy. As the Supreme Court has observed, it is "elementary” that "[e]rror to be reversible must be error of the trial judge; not error to which the aggrieved appellant has contributed by planned or neglectful omission of action on his part.” Smith v Musgrove, 372 Mich 329, 337; 125 NW2d 869 (1964).
The concern of this Court is with whether the parties received a fair trial. We are not persuaded that the trial in this case was unfair to defendant, and we find no error requiring reversal in application of the doctrine of comparative negligence.
Challenging the trial judge’s denial of its motion for new trial, defendant next argues that the jury’s finding that a manufacturing defect contributed to the accident was contrary to the overwhelming weight of the evidence.
The grant or denial of a motion for new trial on the ground that the verdict is against the great weight of the evidence is a matter addressed to the sound discretion of the trial judge, whose exercise of that discretion will not be disturbed on appeal unless a clear abuse is shown. Bosak v Hutchinson, 422 Mich 712, 737; 375 NW2d 333 (1985), reh den 424 Mich 1201 (1985). The standard of this Court’s review of a trial judge’s denial of a motion for new trial recognizes the unique opportunity of the jury and trial judge to observe the witnesses:
The trial court, upon a motion for a new trial on the grounds here urged, determines in the first instance the question, and this court, upon such question being properly saved and presented for review, determines whether error was committed by the trial court on such grounds. But in the determination of the question in this court it must be borne in mind that this court is not the trier of the facts. We cannot invade the province of the jury. It must also be kept in mind that the trial judge heard and saw the witnesses, was in a position to judge of their credibility and their mental capacity; that the presumption that he correctly measured them must be considered, and that we may not set aside a verdict unless it is manifestly against the clear weight of the evidence. [Pachuczynski v Detroit United Railway, 202 Mich 594, 596; 168 NW 418 (1918).]
We have carefully considered defendant’s claim of error and are persuaded of no error in the trial judge’s rejection of defendant’s challenge to the adequacy of the evidence. It was plaintiffs’ theory that the rear tractor brakes failed because of a defective brake hose. Plaintiff Michael Harrigan testified that the brakes failed soon after he applied them upon entering the curve in the road. Plaintiffs presented expert testimony that the brake hose was defective and that the hose did not break in the accident. There was expert testimony that the configuration of skid marks supported plaintiffs’ description of the accident.
Although defendant presented extensive expert evidence which, if believed, would have cast considerable doubt on plaintiffs’ theory of the accident, the trial judge, who saw and heard the witnesses, declined to grant a new trial. Review of the record persuades us of no abuse of the trial judge’s discretion; the verdict is not manifestly against the clear weight of the evidence.
Defendant also challenges the trial judge’s refusal to allow introduction of evidence of plaintiff Michael Harrigan’s failure to use a seat belt. Defendant states that Kentucky law controls but observes that there is no Kentucky case which has decided this issue. In the absence of controlling Kentucky law, we look to pertinent Michigan law. Bostrom v Jennings, 326 Mich 146, 154; 40 NW2d 97 (1949). Under Michigan law, the ruling of the trial judge in this case was proper. Kirk v Ford Motor Co, 147 Mich App 337, 341-342; 383 NW2d 193 (1985), lv den 426 Mich 866 (1986); Hierta v General Motors Corp, 147 Mich App 274; 382 NW2d 765 (1985); Lowe v Estate Motors Ltd, 147 Mich App 523; 382 NW2d 811 (1985), lv gtd 425 Mich 872 (1986); DeGraff v General Motors Corp, 135 Mich App 141; 352 NW2d 719 (1984), lv den 422 Mich 852 (1985); Schmitzer v Misener-Bennett Ford, Inc, 135 Mich App 350; 354 NW2d 336 (1984), lv den 422 Mich 852 (1985).
Next, defendant claims that the total damages set unanimously by the seven-person jury— $12,000,000 for Mr. Harrigan and $1,000,000 for Mrs. Harrigan — are excessive and should shock this Court’s conscience. The trial judge, denying defendant’s motion for new trial or remittitur, rejected this claim.
The question of damages was fundamentally a question for the jury in this case; the scope of our review is limited by the presumption that, if the damages were excessive, the trial judge would have granted relief. Aho v Conda, 347 Mich 450, 455; 79 NW2d 917 (1956). The rationale for, and nature of, the limited scope of appellate review of jury awards was recently described by the Supreme Court:
[Decisions of this Court state that awards for personal injury should rest within the sound judgment of the trier of fact, particularly awards for pain and suffering, and recognize that there is no absolute standard by which to measure such awards. Such deference in part reflects recognition that the trier of fact observes live testimony, while an appellate court reviews a printed record. In a case tried to a jury, such deference may further reflect a reliance on the communal judgment of the members of the jury in awarding monetary compensation for such imponderables as pain and suffering.
In reviewing damage awards in cases tried to juries, this Court has asked whether the award shocks the judicial conscience, appears unsupported by the proofs, or seems to be the product of improper methods, passion, caprice, or prejudice; if the amount awarded falls reasonably within the range of the evidence and within the limits of what reasonable minds would deem just compensation for the injury sustained, the verdict has not been disturbed. [Precopio v Detroit, 415 Mich 457, 464-465; 330 NW2d 802 (1982).]
The evidence in this case establishes that, as a result of injury to his spinal column at the C-6, C-7 level, Mr. Harrigan was rendered immediately and irreversibly quadriplegic in the accident. He has no function of the muscles of his lower extremities, his hands, his trunk or his abdomen. He has very limited control of some arm and shoulder muscles. He is paralyzed from the collarbone down, and has no bladder or bowel control. His bowel is emptied by suppository stimulation. Bladder evacuation is by intermittent catheterization. He has some spontaneous, involuntary bladder voiding. Mrs. Harrigan has assumed primary responsibility for his bladder and bowel control. His ability to breathe and cough is diminished. He has lost sensation to pain, pressure and temperature. Sexual activity between Mr. and Mrs. Harrigan is no longer possible.
Mr. Harrigan is at great risk to develop pressure sores and must frequently move or be moved. In August, 1981, he underwent surgery to repair a pressure sore on his tailbone.
An attempt to align Mr. Harrigan’s spinal column surgically was unsuccessful and, in September, 1980, a halo traction device was attached by pins attached to his skull. That device likewise was unsuccessful in achieving correct anatomical configuration of his spine.
At the time of the accident, Mr. Harrigan was a healthy, 210-pound, six-foot, six-inch, active, twenty-seven-year-old father of a baby son. For the rest oí' his life, he will be paralyzed and in need of constant care and attention. Mrs. Harrigan has suffered the permanent loss of her husband’s active companionship and support. All agree that the catastrophic nature of their losses is not subject to precise economic evaluation. The jurors were nonetheless obligated to determine just compensation in monetary terms. The conscience of this Court is not shocked by the jury’s exercise of its communal judgment in that endeavor.
In its final assignment of error, defendant claims that the trial judge erred in refusing to instruct the jury that any award to plaintiffs would not be subject to income taxation. The Supreme Court recently acknowledged the practice, consistent with the majority rule, that juries are not instructed on the income tax consequences of damage awards. Kovacs v Chesapeake & OR Co, 426 Mich 647, 650-651; 397 NW2d 169 (1986), reh den 428 Mich 1201 (1987). See also Kirk v Ford Motor Co, supra, p 347. We are persuaded of no error in the trial judge’s adherence to the majority rule in this case.
Affirmed.
The Product Liability Act of Kentucky, Ky Rev Stat 411.300 et seq., (effective June 17,1978), provides in pertinent part:
In any product liability action, if the plaintiff failed to exercise ordinary care in the circumstances in his use of the product, and such failure was a substantial cause of the occurrence that caused injury or damage to the plaintiff, the defendant shall not be liable whether or not said defendant was at fault or the product was defective. [Ky Rev Stat 411.320(3).]
In Reda Pump Co, the Kentucky Supreme Court held that Ky Rev Stat 411.320(3) absolutely bars recovery in products liability actions where the plaintiff is contributorily negligent and the plaintiff’s negligence is a substantial cause of the occurrence which caused the injury; the court further held that the statute is not unconstitutional. 713 SW2d 821.
Defense counsel argued:
But more importantly, if the Court please, is that Kentucky —and we are dealing in this case with Kentucky law because all the substantive law in this case is from Kentucky this is a Kentucky case, it should be in Kentucky.
Judge Farmer, on at least six occasions, decided to transfer it to Kentucky and changed his mind.
Everything in this case is in Kentucky; the witnesses are all from Kentucky, with the exception of experts, and Kentucky law applies: the substantive law of Kentucky.
And the substantive law of Kentucky, insofar as we’ve been able to determine, is totally silent on the issue.
Last summer they first came in with comparative negligence; their supreme court adopted it and they are not totally silent.
I will submit to the Court, that every state that has adopted comparative negligence has then eliminated the exclusionary rule as to seatbelts and said it is a matter to be considered by the jury with the exception of Michigan.
I will also state that every state in the union that has excluded seatbelt evidence — the states that have excluded it, and I think this because I have argued it so many times — are the states with the wide open spaces.
The states that have excluded it are Nevada, Arizona, Colorado, Texas.
Those states that are populated that have decided the issue: Florida, New York, Pennsylvania, Maryland, California, have all decided against the exclusionary rule and have permitted seatbelt.
I submit that since Kentucky law is silent that we have to assume that they are going to adopt the majority view, which is that the failure to use a seatbelt can be considered by the jury.
It is not negligence per se, not negligence as a matter of law, but it can be considered by the jury in determining whether or not the plaintiff acted with reasonable care for his own safety and thus, whether or not it is sufficient to cause a reduction in the amount of his damages.
So, we strongly suggest to the Court that Kentucky law would permit this, Kentucky being a populated state and a mountainous state as opposed to a flat wide open state with highways that go for hundreds and hundreds and hundreds of mües with nothing and for some reason that seems to be the division between the states.
We request the Court’s permission to argue comparative negligence on the basis of the seatbelt.
We intend to argue it on other bases, too, but on the basis of the seatbelt included.
In the following exchange, plaintiffs’ counsel expresses dissatisfaction with a voir dire question proposed by defendant:
Mr. Finn [plaintiffs’ counsel]: Number 1, your Honor.
It is an incorrect statement of the law on the question of negligence because I think it is really one that must go back to the days when it doesn’t deal with comparative negligence.
Mr. Kruse [defendant’s counsel]: It doesn’t have to.
It is still the law that if the accident was caused solely by the plaintiff that they are not entitled to recover.
Mr. Finn: But that is not what it says. It says:
"If you find the plaintiff was negligent or caused her own injury or was the sole cause of the accident . . . .”
It is asking for an opinion from the jury in advance, which Mr. Kruse objected to on ours so at least I can return it.
Mr. Kruse: Well, I’ll only ask them if they find that plaintinff in this case was the sole cause of his own accident, could they return a verdict of no cause of action.
That’s all I’ll ask them.
Mr. Finn: I don’t have any objection to that one.
Mr. Kruse: All right.
The following is an excerpt from the parties’ conference with the trial judge concerning how the jury would be instructed:
Mr. Kruse [defendant’s counsel]: 15:02 is negligence of the plaintiff and goes to proximately contributed. So that would be proper.
Mr. Ricca [plaintiffs’ counsel]: But the—
Mr. Kruse: It goes along with 16.01, which I believe is comparative negligence — or 11.01.
Mr. Ricca: I think it’s 11.01.
That’s the only question I have there. We agree on the law, but I think it should be grouped differently, that 15.02 should be grouped, so it’s less confusing to the jury, with comparative negligence, because that’s what—
Mr. Stec [defendant’s counsel]: That will follow it.
Mr. Kruse: I think that would be the first one that follows it. 11.01 and then 16 — -11.01, then 15.02 — so they do go right together.
The Court: Yeah, 11.01 would be comparative. Then I would go to 15.02 definition of proximately contributed.
If Ford’s truck was defective, then under the rules of our country and our society, Ford should be obligated to pay this man some money. Not that money, but some money. And, of course, any fault of Ford would be decreased — any amount they owe would be decreased by the amount he himself contributed to the accident. The Judge will also tell you that.
Seven weeks after trial, in support of its notice of entry of judgment, defendant filed a brief in which it argued vigorously that plaintiffs contributory negligence was a complete bar to recovery under the Products Liability Act of Kentucky. Ky Rev Stat 411.300 et seq. There was no change in Kentucky law between the trial and the filing of defendant’s brief. If at the time of trial defendant were persuaded that it was in its best interest to proceed under a theory of contributory negligence, it could have made the same arguments it later made in support of its notice of entry of judgment. It did not do so. On the contrary, it actively and affirmatively proceeded on the theory of comparative negligence. We conclude, therefore, that it chose deliberately to proceed on that theory.
In Reda Pump Co v Finck, supra, as in the instant case, the jurors were instructed on comparative negligence. They found that both parties were negligent and prorated liability between them — 34.25 percent to the plaintiff and 64.25 percent to the defendant. The Kentucky Supreme Court reversed and directed that the complaint be dismissed, rejecting the plaintiffs argument that the case should be remanded for retrial:
Appellee contends that in the event the judgment is reversed, the case should be remanded for retrial. However, the issue of Finck’s negligence was submitted to the jury, and he was found to be contributorily negligent. We are not cited to any reason why that finding is erroneous except the postulation by appellee that if the jury had known a finding of contributory negligence would bar appellee’s recovery, the jury might have found him free of contributory negligence. We cannot countenance an argument premised upon á supposition that a jury being convinced of one state of facts would make a finding diametrically opposite solely in order to permit a recovery by the plaintiff.
The judgment is reversed with direction that the complaint and the intervening complaint be dismissed. [713 SW2d 821.]
We are not persuaded that a similar result is mandated in this case. The defendant in Reda Pump preserved the contributory negligence issue by asserting it at trial. 713 SW2d 819. We are persuaded that defendant chose to try this case as a comparative negligence case, and that the parties’ conduct of the trial was determined by that deliberate choice. Thus, notwithstanding the applicability of Kentucky law, which plaintiffs do not dispute, and the jury’s finding of Mr. Harrigan’s substantial negligence, we are persuaded of no error requiring reversal.
We disagree with the dissent’s statement that "[h]ad the trial court instructed the jury that a finding of contributory negligence was a defense and the jury returned a verdict of no cause of action, a serious appealable issue would have resulted.” The dissent’s reliance on Hilen v Hays, 673 SW2d 713 (Ky, 1984), and Lewis v Inland Steel Co, CCH Prod Liab Rep, ¶ 10,253, p 26,883 (Ky App, 1984), is, in our opinion, misplaced.
In Hilen, an auto accident case, the Kentucky Supreme Court replaced the traditional Kentucky rule of contributory negligence with the doctrine of comparative negligence in ordinary negligence cases. Addressing Ky Rev Stat 411.320, the Supreme Court stated that the question of whether the statute was to be construed as providing for contributory negligence as a complete defense to a product liability action remained open. 673 SW2d 715. In Lewis, a product liability case arising out of a 1973 accident, the Kentucky Court of Appeals, remanding for new trial on another ground, directed that, in light of Hilen, the jury instructions on retrial should conform to the doctrine of comparative negligence. The court’s opinion was modified on denial of rehearing (January 11, 1985), to provide: "To avoid any misunderstanding, we note that because the fatal injury in the instant action occurred before 1978, the provisions of KRS 411.320 are not applicable to this case.” Lewis, supra, p 26,886, n 2.
In Anderson v Black & Decker (US), Inc, 597 F Supp 1298, 1299, n 2 (ED Ky, 1984), a Kentucky product liability case, the federal district court rejected the plaintiff’s reliance on Lewis, and held that Ky Rev Stat 411.320 clearly and unambiguously provides that a plaintiff’s contributory negligence is a total bar to recovery.
Thus, in addition to the fact that the plain words of the Kentucky Product Liability Act provide for contributory negligence as a bar to recovery in product liability cases, prior cases construing Kentucky law were not inconsistent with the result reached in Reda Pump. We are persuaded that, if defendant had argued at trial that Michael Harrigan’s negligence totally barred recovery as a matter of law, and if the jury, instructed on that theory, had returned a verdict of no cause of action, no "serious appealable issue” would have thereby been presented. The jury instruction would have been supported by ample authority.
In this case, however, it was not until several weeks after discharge of the jury, and after presenting its case strictly on a comparative negligence theory, that defendant argued that recovery was barred as a matter of law by Michael Harrigan’s contributory negligence. For the reasons stated above, we are persuaded of no error requiring reversal or remand for new trial.
Plaintiffs have called our attention to the Kentucky Court of Appeals decision in Wemyss v Coleman, decided August 15, 1986 (Docket Nos. 85-CA-1645-MR, 85-CA-1794-MR) where the court acknowledged that the issue of the availability of a defense based on nonuse of a seat belt had not been decided in Kentucky, and where the Court concluded:
It is our reasoned opinion that as a tortfeasor must take his victim as he finds him and, more importantly, as one’s failure to use a seat belt in no way causes or contributes to the cause of the accident, the trial court was correct in denying the defendants the use of evidence bearing on this defense at trial. We further believe that the availability of expert testimony as it relates to the use or nonuse of a seat belt is an issue which should be decided by our legislature and not by case law. The other states are somewhat split on the subject, and some that approve of the defense of failure to use a seat belt have statutory authority to back them up. As the legislature has spoken on most other matters concerning vehicles, as fop exam- pie, in [Ky Rev Stat] Chap. 189 et seq., and [Ky Rev Stat] 304.39 et seq., we believe the legislature is the appropriate body to determine whether there is a duty to wear a seat belt and the consequences for the breach thereof. [Slip opinion, page 6.]
The Kentucky Supreme Court granted a motion for discretionary review in Wemyss, No. 86-SC-703-DG. The Kentucky Court of Appeals decision is thus not to be cited as authority in any Kentucky court. Kentucky Rules of Civil Procedure 76.28(4)(c). The Kentucky Supreme Court has rendered no decision in Wemyss, on which oral arguments were heard on March 6, 1987.
[The opinion of the Kentucky Court of Appeals will not be published unless publication is ordered by the Kentucky Supreme Court. Kentucky Rules of Civil Procedure 76.28(4)(a). — Reporter.] | [
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Per Curiam.
Defendant appeals as of right from his jury conviction of felonious assault, MCL 750.82; MSA 28.277. He was sentenced to from thirty-two to forty-eight months imprisonment. We affirm his conviction.
Defendant raises two issues on appeal. First, he claims that reversal is mandated because of a communication between the bailiff and the jury. During trial, the following colloquy occurred:
The Court: Mr. Stout, the Bailiff, went in to get the jury to bring them in here because I was going to send them home for the weekend and what was said to you, Mr. Stout?
Mr. Stout: They said they were almost finished.
The Court: So perhaps we should wait a few minutes.
Mr. Bailey: Given that, I prefer it’s another half hour to do that than have them come back Monday morning.
The Court: We’ll wait until no later than six o’clock.
Neither party raised any objection regarding the jury’s communication to the bailiff. Approximately ten minutes later, the jury returned with its guilty verdict.
We do not believe that the incident constituted error. We note that apparently there was no conversational exchange between the jury and the bailiff but that instead the jury was merely using the bailiff to pass along its message to the trial judge. Moreover, we agree with this Court’s holding in the recent case of People v Kent, 157 Mich App 780; 404 NW2d 668 (1987), that incidental contact between court personnel and a jury does not automatically mandate reversal. As the panel in that case stated, pp 791-192:
Broad rules of law designed to address especially egregious situations on occasion become petrified without additional analysis over periods of time. It makes little sense to have a rule so absolute that the potential result is reversal of an otherwise errorless trial because of an insignificant contact with a juror which does not even raise the concern of those who were present during the proceedings. . . .
Little enough confidence exists today in our institutions without further perpetuating its erosion by an automatic rule applied to court personnel who are under oath to obey the law where nothing more is revealed than an incidental contact unrelated to the case itself. The judicial system must demonstrate some confidence in those who are entrusted with its well-being and, in fact, have little interest in the outcome of a matter, when there is no showing of prejudice (or, after scrutiny, even a hint of such).
In Kent, the defendant claimed that error occurred because the bailiff entered the jury room during deliberations to take meal orders. The facts in the present case are even less egregious than those in Kent, since the bailiff apparently only knocked on the door to the room in which the jury was deliberating and then, in response to the jury’s request, informed the trial judge that the jury was almost finished deliberating. It is not apparent that the bailiff entered the room or that he interacted with the jury. He was merely a messenger. Reversal is not required.
Next, defendant claims that the trial judge erred in denying his motion for a directed verdict, since there was insufficient evidence that defendant specifically intended to kill the victim. In ruling on a motion for a directed verdict of acquittal, the trial judge must consider the evidence presented by the prosecution up to the time the motion is made, view it in a light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the elements were proven beyond a reasonable doubt. People v Petrella, 424 Mich 221, 268; 380 NW2d 11 (1985). Assault with intent to murder is a specific intent crime. People v Taylor, 422 Mich 554, 567-568; 375 NW2d 1 (1985). An actor’s intent may be inferred from the circumstantial evidence or from the facts and circumstances established beyond a reasonable doubt. People v Strong, 143 Mich App 442, 451-452; 372 NW2d 335 (1985); Taylor, supra.
The record contains more than sufficient evidence to persuade a rational trier of fact that the element of specific intent had been proven beyond a reasonable doubt. The facts when viewed in a light most favorable to the prosecution show that defendant was an aggressor in an assault during which he grabbed the victim by the hair, jerked her up onto her bed, held a knife to her throat, and screamed he was going to kill her. When the victim struggled, defendant dragged her into the kitchen, held her to the floor, and again held a knife to her throat and threatened to kill her. Contrary to defendant’s argument, we are not persuaded that defendant’s lack of specific intent to kill is evidenced by the fact that he did not slash or stab the victim but rather only inflicted a "superficial wound” onto her neck and by the fact that the victim did not require medical attention. A corpse is not necessary to establish the requisite intent.
Affirmed. | [
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Per Curiam.
Defendants Jackson County, Board of Park Trustees of Jackson County, and Summit Township appeal by leave granted from an order of the Jackson Circuit Court, which denied their motions for accelerated judgment. Defendants assert that they were entitled to accelerated judgment because they are immune from plaintiff Richardson’s tort claim under the doctrine of governmental immunity. The court concluded, as is argued by plaintiff, that defendants’ governmental immunity was abrogated by the defendants’ ultra vires act of operating a park swimming area contrary to law.
Plaintiff’s decedent, Louis Allen, drowned on July 24, 1979, while at a park owned by Jackson County and primarily maintained and operated by Summit Township. The park is located on Vandercook Lake, and has a designated swimming area. The swimming area is marked by buoys placed by the defendants. The defendants did not obtain a permit for the buoys prior to their placement, as required by statute.
The parties dispute whether the decedent, a nonswimmer, was inside or outside of the marked swimming area when he was last seen alive. There is testimony to support both parties. Apparently, the buoys are located very near a sharp drop-off of the lake bottom. The testimony conflicts as to whether the buoys are located before or after the drop-off. The decedent’s body was recovered in approximately fifteen feet of water, about twenty yards beyond the buoys.
Plaintiff, as personal representative of the decedent’s estate, commenced the present action on July 8, 1981. The complaint was originally filed in Wayne Circuit Court and alleged that the defendants’ operation of the public swimming area was not a "governmental function” as it was then defined in case law and set forth claims in ordinary negligence and nuisance.
By stipulation of the parties, venue was changed to Jackson Circuit Court. Jackson County and the Board of Park Trustees of Jackson County answered and asserted the affirmative defense of governmental immunity. Summit Township also raised the defense separately.
All of the defendants subsequently filed motions for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8). They argued that the recreational use statute, MCL 300.201; MSA 13.1485, precluded any claims arising from the operation of the swimming area except for claims founded upon gross negligence or wanton and wilful misconduct. The court granted the motions, as well as plaintiff’s motion to file an amended complaint to set forth the permissible claims. Plaintiff subsequently filed his amended complaint, to conform with the court’s ruling. By stipulation, all other claims were dismissed with prejudice.
In addition, on July 16, 1982, plaintiff applied for leave to this Court to appeal the circuit court’s ruling. By order dated November 16, 1982, this Court held the application in abeyance pending our Supreme Court’s resolution of the issue in Burnett v City of Adrian, 414 Mich 448; 326 NW2d 810 (1982). Following the issuance of the decision in Burnett, which supported the circuit court’s ruling, this Court denied leave to appeal by order dated February 4, 1983.
Jackson County subsequently moved for accelerated judgment on the basis that its ownership and operation of the park was cloaked with governmental immunity, as the term had been recently redefined in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), reh den 421 Mich 1202 (1985). Summit Township joined in that motion. Plaintiff answered and argued that by defendants’ failure to comply with the requirements of law regarding the placement of buoys, defendants had acted outside their powers and could not claim immunity. The court subsequently ruled that plaintiff was correct.
The sole issue on appeal is whether defendants’ failure to obtain and place swimming buoys as required by statute renders their operation of the Vandercook Lake park swimming area ultra vires and thus abrogates governmental immunity. Governmental immunity is broadly granted in MCL 691.1407; MSA 3.996(107), which at the time of the decedent’s drowning provided:
Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.
The case of Ross v Consumers Power Co (On Rehearing), supra, pp 608-609, consolidated the views of the Michigan Supreme Court justices and announced a controlling interpretation of "govern mental function.” Under Ross, all governmental agencies are immune from tort liability whenever they are engaged in the exercise of a governmental function. "Governmental function” is broadly defined as "an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law.” Id., p 620. Conversely, an agency’s ultra vires activities are not entitled to immunity. Id., p 591. An ultra vires activity is one which is not expressly or impliedly mandated or authorized by law. Id., p 620.
The conflicting positions of the parties in the instant case rest upon differing perspectives of this definition of "ultra vires” in conjunction with the Marine Safety Act, MCL 281.1001 et seq.; MSA 18.1287(1) et seq. Defendants maintain that their violation of the act was an omission of an act, rather than a commission, and that mere failure to comply with the law is not an affirmatively ultra vires act which divests them of immunity. Plaintiff argues that such a distinction is unmerited and that it is factually unfounded at any rate because defendants improperly view their act as a function of running a park rather than as the unauthorized operation of a swimming area.
There is no dispute that Jackson County and Summit Township are broadly authorized to operate public recreational areas. MCL 123.51; MSA 5.2421 provides as follows:
Any city, village, county or township may operate a system of public recreation and playgrounds; acquire, equip and maintain land, buildings or other recreational facilities; employ a superintendent of recreation and assistants; vote and expend funds for the operation of such system.
Similarly, the Jackson County Board of Park Trustees is empowered to acquire park lands, MCL 123.66; MSA 5.2436, and the county is authorized to acquire, maintain and operate public parks, playgrounds and recreational centers through a parks and recreation commission. MCL 46.351 et seq.; MSA 5.570(101) et seq. Thus, the establishment and maintenance of a park is a "governmental function” entitled to immunity. See Royston v City of Charlotte, 278 Mich 255, 257; 270 NW 288 (1936), and Meredith v City of Melvindale, 11 Mich App 208, 212; 160 NW2d 793 (1968), rev’d on other grounds 381 Mich 572 (1969).
Without considering the Marine Safety Act, supra, the logic of defendants’ argument is simple and well-founded. In determining whether an act is ultra vires, this Court has previously distinguished between omissions and commissions in the context of intentional torts. The intentional torts of governmental employees are not within the exercise or discharge of a governmental function, and are therefore not entitled to immunity. Mosqueda v Macomb Co Youth Home, 132 Mich App 462, 467; 349 NW2d 185 (1984). However, the omission of an act is not sufficient to render even intentional omission of a duty (i.e., negligence) into an ultra vires intentional tort. Williams v Michigan, 144 Mich App 438, 441; 376 NW2d 117 (1985), lv den 424 Mich 853 (1985). The commission of an act, rather than an omission, is required. Lowery v Dep’t of Corrections, 146 Mich App 342, 357; 380 NW2d 99 (1985), lv den 425 Mich 870 (1986).
Nevertheless, in the instant case a statutory scheme erodes defendants’ broad authority to operate parks. The Marine Safety Act, supra, provides as follows:
The owner or person in charge of a bathing beach maintained primarily for public usage shall not knowingly permit a person to bathe or swim from the bathing beach unless buoys are established in accordance with section 141, outlining a safe bathing or swimming area. [MCL 281.1192(1); MSA 18.1287(192X1).]
Section 141 of the act in turn requires that the operators of bathing beaches apply for and obtain permits prior to placing swimming buoys. A detailed system for inspection and approval of buoy placement is set forth in the act. MCL 281.1141; MSA 18.1287(141). This act applies to governmental entities. MCL 281.1006(e); MSA 18.1287(6)(e). Thus, the Marine Safety Act specifically prohibits defendants from operating a swimming area absent compliance with the buoy application, inspection, permit and placement system set forth in the act.
If defendants’ operation of the park is viewed broadly, noncompliance with the Marine Safety Act is merely a negligent omission for which defendants are immune from tort liability. However, if defendants’ activity is more narrowly viewed as the operation of a public beach, defendants have acted outside of their authority. We find the latter to be the proper view and determine that defendants’ failure to obtain a buoy permit renders their operation of the beach ultra vires.
First of all, the operation of a beach, as opposed to the operation of a park in general, is the proper focus for our analysis. In Ross v Consumers Power Co (On Rehearing), supra, our Michigan Supreme Court’s application of its definition of "governmental function” to the facts presented demonstrate that review of the separate functions at issue is appropriate. In Ross, the Court reviewed seriatim the facts and law of eight cases consolidated on appeal. As to each case, the Court focused upon the precise activity at issue to determine whether the activity was a governmental function. We adopt a similar approach here.
Secondly, two rules of statutory construction mandate that the Marine Safety Act controls the instant case. Defendants’ statutory authority to operate recreational parks is broad and general, while the Marine Safety Act specifically addresses public recreational swimming areas. The Marine Safety Act, being more specific, has precedence over the general language of the statutes regarding parks of all kinds. See Bill v Northwestern Nat'l Life Ins Co, 143 Mich App 766, 771; 373 NW2d 214 (1985). Further, the Marine Safety Act, 1967 PA 303, was enacted after the other provisions regarding recreational areas, 1913 PA 90, 1917 PA 156, 1953 PA 165 and 1965 PA 261. As the more recently enacted law, the Marine Safety Act controls. Capps v Michigan Dep’t of Social Services, 115 Mich App 10; 320 NW2d 272 (1982), lv den 417 Mich 923 (1983). These individual rules of construction are particularly persuasive where, as here, both are applicable. First Bank of Cadillac v Miller, 131 Mich App 764, 769; 347 NW2d 715 (1984).
We conclude that the legislative mandate that no person shall permit bathing at a public swimming area absent compliance with the Marine Safety Act demonstrates that defendants here were functioning outside of their authority. Their failure to obtain a permit cannot be viewed as an incidental, negligent omission. Rather, the failure to obtain the permit was a failure to satisfy a condition precedent to the statutory authority to operate a swimming area. Consequently, the operation of the swimming area was an illegal act, the commission of a wrong rather than a negligent omission. Under the circumstances, the trial court thus properly concluded that defendants’ operation of the swimming area was ultra vires. We therefore affirm the trial court’s ruling. Our decision applies only to the swimming area and not to the remainder of the park, to which the Marine Safety Act does not apply. There . is no abrogation of immunity regarding the rest of the park.
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] |
M. J. Kelly, P.J.
Defendant Michigan Basic Property Insurance Association (mbpia) appeals as of right from a judgment entered in favor of plaintiff Community National Bank of Pontiac on May 31, 1985. Mbpia also appeals from an order denying its motion for accelerated judgment, an order granting the bank’s motion for summary judgment on the issue of liability and an order denying mbpia’s motion to disqualify the trial judge. We affirm the orders and judgment as modified.
In 1976, Adil and Maryann Akrawi received a loan from the bank in order to purchase a grocery business later called the Seaway store. To secure the loan, the bank took a security interest in the contents of the Seaway store and required that the Akrawis insure the contents with the bank shown as the loss payee on the policy. Mbpia issued two policies of insurance, one to Maryann Akrawi for $175,000, which covered inventory and fixtures, and another to Adil Akrawi for $45,000, covering the building. The bank was named as the loss payee under the contents policy issued to Maryann Akrawi and was not so named under the policy covering the building. The Akrawis were purchasing the building and property on a land contract.
On January 3, 1978, while the policies were in effect, a fire destroyed the building and its contents. The Akrawis made claims under both policies issued by mbpia. The bank also sent a letter to mbpia advising it of the bank’s interest under the - contents policy and requesting that it be included in any disbursements. The Akrawis’ claim was denied by mbpia on grounds of fraud, false swearing and arson.
The Akrawis then brought suit to collect under their insurance policies. While that action was pending, the Akrawis executed a written agreement in June of 1981, which acknowledged their indebtedness to the bank for the loan on the Seaway store in the amount of $126,949.70. In addition, the Akrawis acknowledged their indebtedness to the bank on another loan relating to a grocery store known as the Palmer Park store. That agreement was later amended in September, 1982, to account for the accrual of additional interest. The Akrawis then owed $135,385.54 on the Seaway store and over $1.77,000 on the Palmer Park store. In both agreements, the Akrawis promised to prosecute their suit against mbpia in return for the bank’s promise not to enforce the notes pending the litigation.
On September 17, 1981, the day on which the Akrawis’ suit against mbpia was scheduled for trial, the parties reached a settlement agreement which was placed on the record. Mbpia then issued a settlement draft in the amount of $110,000, payable to the Akrawis, their attorney, Mid-West Fire Adjusters (their public adjusters), the State of Michigan (which held a tax lien on the property) and the bank. The Akrawis refused to accept the check and filed a motion to enforce the settlement, as stated on the record, demanding that the check be made payable solely to the Akrawis and their attorney.
Mbpia gave the bank notice of the hearing on the motion. The bank filed both a response and its own motion to intervene. However, the lower court denied the bank’s motion to intervene and ordered mbpia to issue two settlement drafts, one to the State of Michigan for $11,864.71, and one to the Akrawis and their attorney in the amount of $98,135.29. The bank points out that, since the Akrawis’ debt exceeded the amount of the settlement, less attorney fees, it would have received all of the net settlement proceeds ($98,000) had it been named on the check as required under the loss-payee clause.
The bank immediately commenced the instant action in January of 1982 against mbpia, the Akrawis, the state, the Akrawis’ business partner and the attorney who represented the Akrawis in the prior action, seeking recovery on the loans for both the Seaway store and the Palmer Park store. As against mbpia, the bank sought damages for mbpia’s failure to comply with the provision of the insurance contract which required that the settlement of any claim under the policy be made payable to both the insured and the bank to the extent of their respective interests. Mbpia responded to the complaint with a motion for accelerated judgment based on the one-year period of limitation contained in the policy and in MCL 500.2832; MSA 24.12832. At a hearing held February 19, 1983, mbpia argued that the bank’s cause of action arose in January of 1978, when the fire occurred. The bank argued that its cause of action did not accrue until September of 1981, when mbpia issued the settlement draft which excluded the bank. The trial court denied mbpia’s motion.
The bank then reached a settlement with the Akrawis, whereby the Akrawis agreed to pay $50,-000 against their indebtedness to the bank. The bank promised not to sue them for the balance, but reserved its right to proceed against others.
On October 23, 1984, the bank filed a motion for summary judgment pursuant to GCR 1963, 117.2(3) as to the issue of mbpia’s liability. The trial court granted summary judgment in the bank’s favor, and a subsequent motion by mbpia to set aside the order was denied. Judgment was entered May 31, 1985, and defendant mbpia now appeals.
Defendant first argues that the trial court erred in denying its motion for accelerated judgment based on the statute of limitation. Defendant had issued Maryann Akrawi a standard fire insurance policy providing, as required by MCL 500.2832; MSA 24.12832, that "[n]o suit or action on this policy for the recovery of any claim” shall be commenced later than "twelve months next after inception of the loss.” In Ford Motor Co v Lumbermens Mutual Casualty Co, 413 Mich 22, 38; 319 NW2d 320 (1982), the Supreme Court interpreted this provision in light of other provisions required in the standard fire insurance policy, and held that although the twelve-month period commences running from the date of loss, it is tolled from the time the insured provides notice of loss until the insurer formally denies liability.
It is undisputed in this case that the Akrawis filed notice of loss almost immediately after the fire in January of 1978 and that defendant formally denied liability on the policy shortly thereafter. The Akrawis then filed suit within twelve months after the date defendant formally denied their claim. The instant action was not filed until January of 1982. Defendant argues that as loss payee plaintiff was also obligated to file suit within twelve months after the claim had been denied and that its failure to do so now bars the instant action. We disagree.
The status of a loss payee has recently been described by this Court as follows:
The entity designated as loss payee is merely an appointee who receives the proceeds to the extent of his interest. The validity of the contract is not dependent upon the existence of an insurable interest in the loss payee. Under an open loss clause, the policy is subject to any act or omission of the insured which might void, terminate, or adversely affect coverage. If the policy is not collectible by the insured, as in this case because it was can-celled by the insured, the loss payee also cannot recover. [Gallant v Lake States Mutual Ins Co, 142 Mich App 183, 187; 369 NW2d 205 (1985).]
Thus, the bank’s right to recover from mbpia as a loss payee is dependent upon and no greater than the right of the Akrawis to recover on the underlying claim. The Akrawis’ timely lawsuit adequately informed mbpia that there was a dispute regarding its liability on the fire loss. The bank had also informed mbpia in writing of its interest under the policy as a loss payee. There is no evidence that mbpia denied the bank’s right to recover as a loss payee in the event the Akrawis’ claim was valid. Once the Akrawis filed their lawsuit, any action by the bank against mbpia would have been redun dant. Since mbpia is charged with knowledge of the provisions of its insurance contract, we fail to see any advantage to mbpia in requiring the bank to file a suit identical to that filed by a named insured.
A similar scenario was presented in Ford Motor Credit Co v Aetna Casualty & Surety Co, 717 F2d 959 (CA 6, 1983), where plaintiff Ford received a security interest in certain industrial equipment as collateral for two promissory notes. A standard casualty insurance policy was issued by defendant Aetna to the owner of the industrial equipment covering the same. After a fire occurred damaging the equipment, the owner filed a timely proof of loss statement with the defendant, and later brought suit. At a jury trial, a verdict was returned in favor of the defendant based upon the commission of fraud by the owner.
While the dispute between defendant and the owner of the industrial equipment was pending, plaintiff Ford sent a letter to defendant requesting payment under the insurance policy. A proof of loss statement was filed by Ford pursuant to the defendant’s request, and when defendant failed to honor its claim, Ford filed suit. 717 F2d 961. After both parties brought motions for summary judgment, the trial court found that Ford was a "mortgagee” under the insurance policy and thus (unlike a loss payee) its rights under the policy were unaffected by the owners’ fraud. Nonetheless, summary judgment was granted in favor of Aetna due to Ford’s failure to bring the action within twelve months from the date of loss, based on MCL 500.2832; MSA 24.12832.
On appeal the federal appeals court reversed, finding that plaintiff Ford could rely upon the fact that the insured owner of the equipment brought suit against Aetna within the one-year limitation period. The court noted that the owner’s suit "rendered a similar suit by Ford duplicative and unnecessary.” 717 F2d 962. The court concluded that any ambiguity in the limitations clause must be construed in favor of plaintiff Ford and against the insurer. Id.
We find that a similar result is appropriate in the instant case. We see no reason to interpret MCL 500.2832; MSA 24.12832 as requiring two separate and identical lawsuits on a claim for a single fire loss. When the Akrawis timely filed their lawsuit, the twelve-month period of limitation was satisfied with regard to the question of whether the Akrawis had suffered a loss insured by mbpia. Defendant’s breach of the loss-payee clause of the insurance policy did not occur until defendant issued a check to the Akrawis omitting the bank as loss payee. We hold that plaintiff had twelve months from that date within which to file suit. Plaintiff’s complaint filed in January of 1982 was timely and the trial court properly denied defendant’s motion for accelerated judgment.
Defendant’s remaining arguments are without merit. The affidavit submitted by defendant’s attorney fails to establish any material factual disputes on the issue of defendant’s liability. Although there are factual disputes existing between these parties, defendant has failed to establish that the disputes are relevant or material to its defense of the instant action. To the extent that some of these disputes were not raised before the trial court, we decline to consider them at the appellate level. "There can be no disputed issue of material fact where the dispute is not brought to the attention of the trial court.” Frank v Equitable Life Assurance Society of the United States, 136 Mich App 616, 619; 358 NW2d 21 (1984).
Defendant also argues that there are material facts and disputes with respect to the amount of plaintiffs damages. We disagree. In awarding damages, the trial court relied upon the affidavit offered by plaintiff setting forth in detail the calculations relied upon in assessing damages. The judgment of $144,020.05 represents the $98,000 recovered by the Akrawis in the prior action ($110,000 minus $12,000 in attorney fees) plus prejudgment interest authorized by statute. We are not persuaded that the $50,000 paid by the Akrawis to plaintiff in settlement of this action should be deducted from the judgment entered against defendant. Plaintiff in this action sought to recover from the Akrawis an indebtedness under two separate loan agreements of over $300,000. For the sake of clarification, however, we amend the judgment to read $98,000, exclusive of interest and costs. We leave it to the parties to work out the amount of interest owed. If they disagree resort may be had to the trial court. We do not retain jurisdiction.
Nor are we persuaded that the trial court’s order of summary judgment should be reversed because defendant’s obligation to pay plaintiff under the insurance policy was rendered either impossible or impractical by the trial court’s order enforcing the settlement agreement from the prior litigation. Defendant was well aware of the loss-payee clause in the policy issued to the Akrawis and could have interpleaded plaintiff in the prior litigation.
We decline to consider the remaining issues set forth in defendant’s brief since they were either not raised below or are given only cursory treatment in defendant’s brief with little or no citation of supporting authority. In re Futch, 144 Mich App 163, 166; 375 NW2d 375 (1984).
Affirmed as modified.
Application of a twelve-month rather than a six-year period of limitation is not in dispute. We note that in Hearn v Rickenbacker, 428 Mich 32; 400 NW2d 90 (1987), the Supreme Court considered the twelve-month limitation period contained in MCL 500.2832; MSA 24.12832, though in a different context, and held that it applied to any action premised on the breach of a duty imposed under an insurance contract. Where the duty breached exists "independent of and apart from” the insurance contract, the twelve-month period of limitation does not govern. 428 Mich 40. In both the original and amended complaint, plaintiff in this case asserts an action for breach of the insurance contract.
Plaintiff incorrectly argues in its brief on appeal that the loss payee cannot file an independent action against the insurer. We do not agree. Although the loss payee’s right of recovery is dependent upon the recovery rights of the insured, the loss payee may separately sue on the policy. An essential element of any such action would be proof that the named insured had a right of recovery. 5A Appleman, Insurance Law & Practice, 1986 Cum Supp, § 3335, p 25.
We decline to consider the propriety of deducting attorney fees since no one has questioned this computation on appeal.
The bank probably could have appealed from the trial court’s denial of its motion to intervene in the prior litigation but we are not called upon to deal with that record or that strategy. | [
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M. R. Knoblock, J.
Pursuant to a plea bargain, defendant pled nolo contendere to four counts of armed robbery, MCL 750.529; MSA 28.797. He was sentenced to concurrent prison terms of from twenty-five to seventy-five years on each count and appeals as of right, raising two issues.
Defendant first claims that the sentencing judge abused his discretion in sentencing him to a minimum term which exceeds the range specified by the sentencing guidelines and in failing to state reasons for this departure on the record. We find this claim to be without merit.
In accordance with the plea bargain agreement, in exchange for defendant’s nolo contendere plea, the prosecutor did not proceed on a companion felony-firearm charge and recommended to the court that the minimum sentence not exceed twenty-five years. The sentencing guidelines specified a minimum range of five to eight years. At sentencing the trial judge acknowledged that he was exceeding the guidelines range:
I notice the sentencing guide line report is five year to eight years — sixty months to ninety-six months, and whoever wrote that up set that — set the guides to determine that as the guide line sentencing range is just not acquainted with reality. Apparently they think robbery is some sort of a game that’s played.
To discipline the defendant in as much as he’s not been inclined to impose self-discipline, and as a deterrent to discourage others from committing this type of offense, and to punish the defendant for committing a crime, and to provide an environment in which the defendant may obtain or en hance vocational skills, and to place the defendant in an environment where controlled substances will not be available, we hope, and to protect society from his criminal tendencies, the following sentence is imposed. The court noting that this type crime is too prevalent in this community, and also noting that the very light supervision afforded by probation is deemed insufficient to control his tendencies toward antisocial behavior. In each of these — for each of these convictions the defendant is sentenced to serve the following in the state prison: not less than twenty-five years nor more than seventy-five years. These sentences shall be served concurrently, and against each the defendant shall be credited with the number of days he was incarcerated prior to today ....
Clearly, the sentencing judge was of the opinion that the sentencing guidelines range was too low and, in fact, appeared to be offended by its leniency. Considering the fact that defendant was convicted of four separate counts of armed robbery, all of which provide for maximum possible sentences of life imprisonment, and considering his prior record as disclosed by the presentence report, including a 1977 conviction for murder, we cannot quarrel with this conclusion. It is not error for the sentencing court to depart from the guidelines if the court is of the opinion that a minimum sentence within the guideline range is inappropriate, provided the court states adequate reasons for the departure on the record. People v Fleming, 142 Mich App 119; 369 NW2d 499 (1985); Sentencing Guidelines, Departure Policy, Ch 27, ¶ 3. We find the trial court’s statement that the guideline range was too low, combined with its articulation of reasons for the sentence imposed, to be a minimally sufficient explanation of why, in the trial court’s opinion, justice required a sentence outside the guideline sentence range.
Finally, considering the gravity of the four offenses of which defendant was convicted, his prior violent and assaultive record, and that the prosecutor’s recommendation pursuant to the plea agreement was not exceeded, we find defendant’s claim that the sentence imposed shocks the conscience to be without merit.
Affirmed.
Shepherd, J., concurred.
Cf. People v Good, 141 Mich App 351; 367 NW2d 863 (1985). | [
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Black, J.
This is a so-called pedestrian case. The jury returned a verdict for plaintiff in the sum of $3,000. Defendant’s motion for judgment notwithstanding the verdict was granted for reasons given by the trial judge as follows:
“The Court: "Well, sometimes in these cases, of course, when a jury renders a verdict, that is final, if it is warranted by the facts. There are 2 elements here. In the first place, the facts do not warrant that verdict, in the opinion of the court, and in the second place, in the opinion of the court the jury considered it was not warranted, because they came back and asked this question, which is very peculiar: ‘If both parties are guilty of negligence, could the plaintiff recover.’ The court told them in the negative. They were out for some time and returned with the verdict given, apparently showing that it is either a compromise or sympathy verdict on the part of the jury, and not in accordance with the facts adduced in the case, so a verdict of no cause for action will be entered, non obstante.”
On motion for directed verdict — and necessarily on motion for judgment notwithstanding verdict— we have said from time to time that the trial judge must guide his deliberation and decision by this rule; that the proof and all fair inferences arising from that proof must be viewed in light favorable to the party constituting target of the motion. For a measure of gently reproving comment to the point, see Mr. Justice Voelker in Shaw v. Bashore, 353 Mich 31. Here, in the case before us, is the proof a.nd inference so viewed.
North Saginaw street, in Flint, is the heavily-traveled main thoroughfare leading toward Detroit in a southerly direction and Saginaw in a northerly direction. Three and sometimes 4 lanes of traffic pass regularly in each direction. At the intersection of Baker street traffic is controlled by conventional traffic control signals. Some 100 to 135 feet north of Baker plaintiff undertook to cross North Saginaw, from east to west, at a time when both sides of North Saginaw were temporarily free of traffic. When he started across northbound traffic was held at Baker by the traffic signal. It was released shortly after plaintiff started.
Plaintiff reached the center line of North Saginaw prior to imminent approach of the cars theretofore released by the Baker street signal. At that time and place, realizing that southbound traffic was bearing down on his intended path, plaintiff stopped to await passage of such southbound traffic before attempting to pass further toward the west curb. He says that he stood on the center line, watching southbound traffic, and that he was struck by a northbound car he did not see. This car, as it turned out, was the one driven by defendant.
Defendant motorist testified he was driving north, on North Saginaw, in the lane of traffic “next to the center line;” that he recalled stopping, by command of a traffic control signal, south of the point where the accident occurred; that as he approached such point another car was preceding his car, which preceding car was “straddling the lanes” (between the traffic lane nearest the center line and the one next to defendant’s right); that he was between a half car length and three-quarters of a car length behind the car so preceding him, and that he was then driving at the rate of 20 to 25 miles per hour.
Defendant did not see the plaintiff until the approximate time the latter was struck. He testified that the motorist ahead “momentarily slammed on his brakes and swerved to one side” (the right) immediately prior to the collisive impact, and that he, defendant, thereupon applied brakes with result that his car was brought to a near stop prior to such impact. The point of impact was at or near the left front headlight of defendant’s car. Plaintiff was thrown to the pavement and injured.
We turn now to the questions brought here— whether on favorable-to-plaintiff view of the proof and inferences from that proof the jury was entitled to find causal negligence on defendant’s part and freedom from contributory negligence on plaintiff’s part.
As to the first question we need but say that the jury could infer negligence, and causal connection between such negligence and plaintiff’s injuries, from defendant’s testimony that he was following another car, at a speed of 20 to 25 miles per hour, with an average distance of no more than 10 to 15 feet separating the 2 cars. If the jury believed such' testimony, and if it believed the related testimony of plaintiff that he was standing at or near the center line of the street, it (the jury) was amply justified in reporting an affirmative finding with respect to this initial issue which is common to every negligence case.
As to the question of contributory negligence: Concededly plaintiff’s conduct did not amount to a high degree of care. But that is not our test. As was said in Ware v. Nelson, 351 Mich 390, 396:
“If our test of contributory negligence was whether or not plaintiff had done all that he conceivably could have done, or even all that, in retrospect, it is obvious he should have done,for his own safety, no negligence action could ever he maintained.”
We need say no more. Arnold v. Goldstein, 344 Mich 103; Rutledge v. Gillespie, 338 Mich 335; Watroba v. City of Detroit, 334 Mich 182; Staunton v. City of Detroit, 329 Mich 516; Straub v. Andrews, 295 Mich 129; Carter v. C. F. Smith Co., 285 Mich 621; and Rents v. Anhut, 284 Mich 695, govern' the presented question and uniformly rule, for these “pedestrian in center of street” cases, that the question of contributory negligence is usually for the jury. As was said in Carter, supra (p 625 of report) :
“A pedestrian attempting to cross a busy street or highway must frequently wait for traffic coming one way to pass him, then go to the middle of the street and wait for traffic coming from the opposite direction to pass him, and if he does so he is not guilty of negligence as a matter of law. Bosma v. Daniels, 250 Mich 261. Such pedestrian has a right to assume that the driver of a motor vehicle will not run him down and that such motor vehicle driver approaching will give proper warning sigfial indicating his approach. Reynolds v. Knowles, 223 Mich 70. Plaintiff was not guilty of negligence as a matter of law in standing in the middle of the street in question waiting for southbound traffic to clear.”
Reversed and remanded for entry of judgment on the verdict of the jury. Costs to plaintiff.
Kelly, Smith, Edwards, Voelker, and Kavanagh, JJ., concurred with Black, J.
Dethmers, C. J., and Carr, J., concurred in the result.
“Before a verdict can be properly directed by the court for the defendant, all the testimony in favor of the plaintiff bearing upon the issues, given by him and his witnesses, and all making a ease for him given on the part of the defendant, if accepted as true, must fail to make out a prima facie ease, after the most favorable construction that can be possibly given to such testimony for the plaintiff.” (Gibbons v. Farwell, 63 Mich 344, 348 [6 Am St Rep 3011.)
“In determining this question (of contributory negligence advanced by motion for directed verdict), we must look at the case as it appears from the plaintiff’s own testimony, unqualified by any which was offered on the part of the defendants, and must concede to him any thing which he could fairly claim upon that evidence. He had a right to ask the jury to believe the ease as he presented it; and, however improbable some portions' of his testimony may appear to us, we cannot say that the jury .might not have given it full credence.” (Detroit & Milwaukee R. Co. v. Van Steinburg, 17 Mich 99, 117.) | [
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Cavanagh, J.
We consolidated these cases to resolve a conflict within the Court of Appeals regarding the applicability of the statutory presumption of work-related personal injury found in MCL 418.405; MSA 17.237(405). Compare Spears v Hazel Park, 131 Mich App 457; 346 NW2d 340 (1984), with Achtenberg v East Lansing, 134 Mich App 108; 351 NW2d 268 (1984). We hold that the statute requires application of the presumption only when a claimant is not awarded any form of pension benefit. For the reasons set forth below, we reverse the judgment of the Court of Appeals in Spears and affirm the judgment in Achtenberg.
I
Henry Spears was a firefighter for the City of Hazel Park for nearly 19 years. On October 12, 1973, he felt dizzy while climbing a fire truck ladder. Two days later, he suffered a heart attack while on a fishing trip.
Richard Achtenberg was an East Lansing firefighter for 23 years. Approximately 20 hours after completing his last shift, he suffered a fatal heart attack at home on February 29, 1976.
Both cities provide their firefighters with pension plans which afford employees duty-related or non-duty-related benefits. Both plaintiffs applied for both types of benefits. The pension boards ultimately awarded the plaintiffs non-duty-related benefits. Plaintiffs argue that they are also entitled to workers’ compensation benefits due to the statutory presumption that the heart attacks were work-related.
MCL 418.405; MSA 17.237(405) (hereafter § 405) provides:
"(1) In the case of a member of a full paid fire department of an airport run by a county road commission in counties of 1,000,000 population or more or by a state university or college or of a full paid ñre or police department of a city, township, or incorporated village employed and compensated upon a full-time basis, a county sheriff and the deputies of the county sheriff, members of the state police, conservation officers, and motor carrier inspectors of the Michigan public service commission, 'personal injury’ shall be construed to include respiratory and heart diseases or illnesses resulting therefrom which develop or manifest themselves during a period while the member of the department is in the active service of the department and result from the performance of duties for the department.
"(2) Such respiratory and heart diseases or illnesses resulting therefrom are deemed to arise out of and in the course of employment in the absence of evidence to the contrary.
"(3) As a condition precedent to ñling an application for beneñts, the claimant, if he or she is one of those enumerated in subsection (1), shall ñrst make application for, and do all things necessary to qualify for any pension beneñts which he or she, or his or her decedent, may be entitled to. If a ñnal determination is made that pension beneñts shall not be awarded, then the presumption of 'personal injury’ as provided in this section shall apply. The employer or employee may request 2 copies of the determination denying pension benefits, 1 copy of which may be filed with the bureau.” (Emphasis added.)
In both cases, the hearing referee and the Workers’ Compensation Appeal Board concluded that the injuries were not duty-related. They also declined to apply the § 405 presumption. However, the Court of Appeals reached conflicting conclusions regarding application of the presumption.
II
The Spears panel embraced the plaintiff’s argument that § 405 should be read in conjunction with MCL 418.161; MSA 17.237(161) (hereafter §161). That section states:
"Police officers, fire fighters, or employees of the police or fire departments, or their dependents, in mu nicipalities or villages of this state having charter provisions prescribing like beneñts, may waive the provisions of this act and accept like beneñts that are prescribed in the charter but shall not be entitled to like beneñts from both their local charter and this act.” (Emphasis supplied.)
The Spears panel concluded that the term "like benefits” found in § 161 was equivalent to the term "any pension benefits” found in § 405(3). Spears, supra, p 464. Furthermore, the Court found that the benefits received by Spears were not "like benefits.” Accordingly, the Court of Appeals reversed the WCAB decision and remanded with an order to apply the presumption of work-relatedness. Id.
The Achtenberg panel read § 405 differently. The majority held that the term "any pension benefits” precluded application of the § 405 presumption because the plaintiff received some form of pension benefit, i.e., non-duty-related benefits. The Achtenberg majority also called for legislative action to clarify whether §§ 405 and 161 should be read together.
Ill
When the language of a statute is clear, courts must apply it as written. See Bannan v Saginaw, 420 Mich 376; 362 NW2d 668 (1984); Dussia v Monroe County Employees Retirement System, 386 Mich 244, 248-249; 191 NW2d 307 (1971). We believe that the meaning of the phrase "any pension benefits,” as found in §405(3), is clear. The presumption of work-related personal injury is found in § 405(2). However, § 405(3) limits operation of the presumption. Before filing an application for workers’ compensation benefits, the claimant shall do all things necessary to qualify for any pension benefits to which the claimant may be entitled. If pension benefits are not awarded, then the § 405(2) presumption shall apply. Therefore, the presumption of work-related personal injury only applies if the claimant is not awarded any form of pension benefits.
In enacting § 405, the Legislature chose not to distinguish between various types of pension benefits. Instead, by using the phrase "any pension benefits,” the Legislature indicated that the presumption would not apply if a claimant received any one of various forms of pension benefits.
Although interpretation of legislative intent is not required under this analysis, we think it is instructive in light of prior decisions in this case. The Legislature was aware of the difficulties involved in establishing a causal relationship between respiratory and heart diseases, and the rigors of firefighting. The Legislature wanted to guarantee that firefighters, police officers, and other workers enumerated in § 405(1) would receive some disability compensation in the event they were injured but were not covered by a pension. For example, in Achtenberg, the WCAB noted that the statutory presumption would be applied when an injured employee’s pension rights were not vested. Likewise, in the case where a city pension plan did not cover respiratory and heart diseases, the presumption arose. In these situations, for example, firefighters and other workers were assured of at least workers’ compensation benefits.
Plaintiffs argue that Spears properly departed from a literal construction of § 405 by elevating the spirit of the section over its letter. See Spears, supra, pp 462-463. Such a departure may be justified when a literal construction would produce absurd and unjust results and would be inconsistent with the purposes and policies of the act. However, our literal interpretation produces none of these results. The plaintiffs are not placed in a disadvantaged position vis-á-vis other employees. Plaintiffs received non-duty pension benefits. They were allowed to present evidence that they were entitled to duty-related benefits. In both cases, the WCAB concluded as a matter of fact, that the plaintiffs failed to establish work-relatedness. Neither plaintiff now argues that the evidence supports a contrary conclusion. This is why operation of the presumption is so important to their case.
We reject the analysis employed in Spears since we do not agree that the term "any pension benefits” is equivalent to the term "like benefits.” While § 405 and § 161 are generally similar in purpose, the intended scope of each is clearly different and does not warrant the implication that two different phrases have an identical meaning.
IV
Finally, in Achtenberg, we decline to address the argument that the decedent’s children are separately entitled to benefit of the presumption. We have declined to review issues which were not presented before the WCAB or the Court of Appeals. See Turner v Consumers Power Co, 376 Mich 188, 191-192; 136 NW2d 1 (1965); Louagie v Merritt, Chapman & Scott, 382 Mich 274, 282; 170 NW2d 13 (1969). The record indicates that the question now sought to be reviewed was not properly raised before the WCAB or the Court of Appeals.
In Spears, the decision of the Court of Appeals is reversed. In Achtenberg, the decision of the Court of Appeals is affirmed.
Williams, C.J., and Levin, Ryan, Brickley, Boyle, and Riley, JJ., concurred with Cavanagh, J.
Leave granted 419 Mich 879 (1984).
Spears proceeds on her own behalf. Achtenberg’s claims are advanced by the decedent’s widow and to a lesser extent by his minor children. We collectively refer to these claimants as "plaintiffs.”
Judge Cynar, a member of the unanimous panel in Spears, dissented in Achtenberg and adhered to the result reached in Spears. 134 Mich App 115.
We note with interest that, at the time of this writing, no such legislative activity has arisen. The proposed amendment (House Bill 4630) noted in Achtenberg, supra, pp 114-115, was not adopted as of the last legislative session ending December 31, 1984. We are aware of no other legislative activity regarding § 405.
Under different circumstances, general rules of statutory construction have mandated that the term "any” be deemed to be all inclusive. Cf. McGrath v Clark, 89 Mich App 194, 197; 280 NW2d 480 (1979) (use of phrase “any money judgment” in MCL 600.6013; MSA 27A.6013, is considered all-inclusive); In re Certiñed Questions, Karl v Bryant Air Conditioning Co, 416 Mich 558, 569; 331 NW2d 456 (1982) (use of word "any” requires construction, without further legislative inquiry, that comparative negligence applies to any and all products liability actions). We believe that these rules are equally applicable here.
See Achtenberg, supra, p 114, citing Schave v Dep’t of State Police, 58 Mich App 178; 227 NW2d 278 (1975), lv den 394 Mich 765 (1975). Plaintiff’s reliance on Schave is misplaced. There, the Court noted that the plaintiff could not be entitled to pension benefits since, in part, he had returned to active duty. Therefore, submitting an application for benefits in compliance with § 405(3) would have been a useless act. Here, however, it was clear that both plaintiffs were potentially entitled to some form of pension benefit.
Since we conclude that Spears erred when it deemed "like” benefits equivalent to "any” pension benefits, it is unnecessary to address recent decisions construing § 161. See, for example, Bannan, supra, and Vasser v Muskegon, 415 Mich 308; 329 NW2d 690 (1982). Our decision in the case at bar is based on the clear meaning of § 405 read alone. | [
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Boyle, J.
This action arises under the Michigan civil rights act, MCL 37.2101 et seq.; MSA 3.548(101) et seq., and focuses upon the policies and practices of the private owners of an apartment complex as they relate to and affect the civil rights of families with children. The issue we must resolve in this appeal is whether the owner of a multi-building apartment complex may lawfully restrict families with children to certain designated areas.
I
Facts and Procedural Background
The Beznos Corporation is a privately held Michigan corporation which owns and operates a 928-unit apartment complex known as "Muirwood Apartments” in Farmington Hills, Michigan.
Proceedings in this matter were initiated in the summer of 1978 by the Michigan Department of Civil Rights in response to the complaints of three families residing at Muirwood Apartments. The residents filed complaints with the department alleging that their children had been denied access to the swimming pool, and two of the families complained that eviction proceedings had been commenced against them because they had taken their children to the pool in violation of the landlord’s policy. The department filed a complaint in the Oakland Circuit Court, as provided by MCL 37.2603; MSA 3.548(603), to enjoin the eviction proceedings as well as enforcement of the rule prohibiting the children’s use of the pool facilities.
Following a hearing on August 11, 1978, the Oakland Circuit Court issued a temporary injunction halting the eviction proceedings and modifying the pool rule to permit use by children of age four or older, pending a complete investigation by the department and a full hearing and determination by the Michigan Civil Rights Commission.
The department proceeded to conduct an investigation of defendant corporation, and filed a "charge” against it with the commission on May 21, 1979, alleging in pertinent part that defendant’s practice of setting aside certain designated buildings for families with children, and restricting use of the pool facilities violated the age discrimination provisions of the Michigan civil rights act, MCL 37.2502 et seq.; MSA 3.548(502) et seq.
After various administrative proceedings, on February 26, 1980, the commission issued an opin ion finding defendant’s policies restricting children’s use of the pool facilities and designating certain buildings for families with children violative of the age discrimination provisions of the civil rights act. Defendant was ordered to give up those policies and practices at Muirwood Apartments and all other rental complexes it operated and to pay damages and attorney fees to the individual complainants. The order also imposed detailed reporting requirements upon defendant for a period of two years and forbade enactment or enforcement of any rule, regulation, designation, or restriction based upon age.
The Beznos Corporation then filed a timely appeal in the Oakland Circuit Court pursuant to its rights under MCL 37.2606; MSA 3.548(606). Prior to trial, the circuit judge ordered submission of the issue of damages awarded to the individual claimants by the commission to a mediation panel, whose recommendation was accepted by all parties. Plaintiff and defendant also agreed upon a swimming pool rule that was not based upon age. Therefore, both parties agreed, and stipulated, that the only issue remaining for determination by the circuit court was:
"May the owner of a multi-building apartment complex lawfully restrict families with children to certain designated buildings?”
After a trial de novo on November 25, 1981, the Honorable Francis X. O’Brien of the Oakland Circuit Court, noting that he was restricting himself to the issue presented, held that:
"The restriction — or restricting of families with children to certain designated buildings within a multi building complex, in this Court’s opinion, is not per se unlawful under the [Michigan] Civil Rights Act.
"It’s the Court’s opinion that the legislative intent is to apply a practical, rational reasoning. However, on the facts of a given case, the reasons for the restriction and the manner of application may violate the Statute.”
"The Court’s ruling in the first instance with regards to not being per se violative, is if the action is taken by the landlord in the interest of the comfort and safety of all of the tenants.”
Pursuant to its holding, in an order entered February 11, 1982, the circuit court dissolved the order of the Michigan Civil Rights Commission and dismissed proceedings against defendant by the Michigan Department of Civil Rights.
The department filed a timely claim of appeal, and on May 4, 1983, the Court of Appeals, in a 2-1 decision, affirmed the decision of the circuit court. 125 Mich App 500; 336 NW2d 494 (1983). The majority concluded that because the statute did not by clear terms prohibit disparate treatment of families with children, it could not imply a legislative intent to do so. Id., p 503. The dissenting judge disagreed, arguing that the statutory inclusion of "age” as a category, precluded any ambiguity or search for legislative intent, and provided a sufficiently clear basis for proscribing defendant’s practices in this case. Id., pp 506-510 (Mackenzie, J., dissenting).
On February 28, 1984, this Court granted the department’s application for leave to appeal. 418 Mich 949 (1984).
II
Analysis of the Trial Court and Court of Appeals Opinions
We think Judge O’Brien’s narrow decision on the question before him was correct, but granted leave because we do not subscribe to the analysis of the issue by the Court of Appeals, and believe that further guidance from this Court is required.
It is important to note at the outset the precise contours of the trial court’s holding. In answering the stipulated question the trial court ruled that
"[t]he restriction — or restricting of families with children to certain designated buildings within a multibuilding complex ... is not per se unlawful under the [Michigan] Civil Rights Act.”
The court did not hold that such designation could never be violative of the act, or even that the designations of defendant at Muirwood Apartments could not be found to be a violation of the act. It merely held, in answer to the question presented by the parties, that the designation itself does not necessarily constitute a violation of the statute per se.
In fact, after answering the question presented, Judge O’Brien went on to explain that "on the facts of a given case, the reasons for the restriction and the manner of application may violate the Statute.”
In affirming the trial court decision, the Court of Appeals analyzed the statute in question, and distinguished discrimination on the basis of chronological age from disparate treatment of families with children. See 125 Mich App 503. The Court of Appeals refused to imply legislative intent to prohibit discriminatory treatment of families with children in the absence of clear language to that specific question. Id., p 505. Thus, in affirming the decision of the trial court, the Court of Appeals issued a much broader ruling than the trial court issued or even had before it. Indeed, the Court of Appeals ruling could be used to support the proposition that the discriminatory treatment of families with children could never be a violation of the statute in question. We do not agree, but find it unnecessary in the context that this case is presented to address such considerations. Our review is restricted to the issue as stipulated by the parties:
"May the owner of a multi-building apartment complex lawfully restrict families with children to certain designated buildings?”
As Justice Levin has so aptly observed: "Often the answer to a question is determined by the way it is asked.” Smith v ER Squibb & Sons, 405 Mich 79, 98; 273 NW2d 476 (1979) (Levin, J., dissenting). The stipulated question presupposes, of course, that defendant does in fact restrict families with children to certain designated buildings within its multi-unit apartment complex and that such restrictions do not constitute complete exclusion. However, it does not raise questions as to the number or proportion of units so designated, or of the need for family housing within the general geographic area. Therefore, the circuit court did not consider evidence or make findings on these matters, as they would have been irrelevant to answering the question presented. Our review on appeal is of the circuit court decision, not that of the commission, under the "clearly erroneous” standard of GCR 1963, 517.1. See Civil Rights Comm v Chrysler Corp, 80 Mich App 368, 372-373; 263 NW2d 376 (1977). Thus, the commission cannot now ask us to go beyond the issue it agreed to in the lower court and to review its evidence and findings to determine whether defendant’s particular practices may be violative of the statutes in question. In the context that this case is presented to us, we cannot now decide what designations or restrictions of families with children may be permissible, but only whether any such restrictions and designations may ever be permissible. Furthermore, if our answer to the latter question is in the affirmative, our inquiry in this case must end, for we will have answered the question presented.
Ill
Statutory Analysis
The pertinent section of the statute in question, MCL 37.2502; MSA 3.548(502) prohibits both refusing "to engage in a real estate transaction,” MCL 37.2502(1)(a); MSA 3.548(502)(1)(a), and discrimination "in the terms, conditions, or privileges of a real estate transaction or in the furnishing of facilities or services in connection therewith,” MCL 37.2502(1)(b); MSA 3.548(502)(1)(b), whenever such practices are based on the "religion, race, color, national origin, age, sex, or marital status of a person or a person residing with that person.” MCL 37.2502(1); MSA 3.548(502)(1).
Refusing to rent to a protected class of prospective tenants is proscribed by subsection (a). It constitutes refusal "to engage in a real estate transaction.” See Shaw v Cassar, 558 F Supp 303 (ED Mich, 1983). Restricting a protected class of tenants to particular apartments violates both subsections (a) and (b). It not only constitutes discrimination "in the terms, conditions, or privileges of a real estate transaction,” it also amounts to a refusal "to engage in a real estate transac tion” with respect to those apartments from which members of the protected class are excluded. See United States v Mitchell, 580 F2d 789 (CA 5, 1978). We agree with the amicus curiae, the American Civil Liberties Union Fund of Michigan, that if a landlord were to restrict persons of a particular religion or race to particular buildings, there would be absolutely no doubt that members of these protected classes, who had been told they could only rent in a particular building reserved for persons of their "sort,” would be entitled to complain about refusal to rent other available apartments as discrimination "in the terms, conditions or privileges of a real estate transaction.” MCL 37.2502(1)(b); MSA 3.548(502)(1)(b). The Michigan civil rights act also proscribes housing discrimination when based on the religion, race, color, national origin, age, sex, or marital status of a person or a person residing with that person. MCL 37.2502(1); MSA 3.548(502)(1) (emphasis added). Again, we agree that it would clearly violate the statute to refuse to rent to a prospective tenant living with other persons of a particular religion or race, or to segregate tenants living with other persons of a particular religion or race. Id. See also 1976 Journal of the House 1322.
We do not agree, however, that the position is necessarily the same where a landlord segregates tenants on the basis of the age of a child living with a parent or guardian. Although we do not dispute that minors are within the protection of the act, we do not agree that the act requires identical treatment of children and adults in every situation.
A "literal application of the [statutory] prohibition against age discrimination would outlaw many regulations, rules, laws and policies designed to protect children.” It would, for instance, require landlords to rent apartments to minor children. Such a requirement would overrule the long-established rule that minors, lack the legal capacity to contract. Moreover, it would drastically alter the norms relating to the role and functions of children in our society. It defies reason that the Legislature would so radically alter traditional practice and law without extensive study and debate. Yet, the legislative history of the civil rights bill contains no reference to such a requirement, let alone any debate on the merits or desirability of such a rule. Given this, we do not believe that the Legislature intended such a result.
We believe that the Legislature intended to apply a practical rule of reason to the prohibition of discrimination on the basis of age. As we have often stated, construction of a statute in a way that would produce absurd and undesirable results should be avoided. See, e.g., Salas v Clements, 399 Mich 103; 247 NW2d 889 (1976). It has been said that "[i]n prohibiting age discrimination, the act contemplates only that 'similarly situated people’ be treated equally,” Cheeseman v American Multi-Cinema, Inc, 108 Mich App 428, 440; 310 NW2d 408 (1981), lv den 413 Mich 890 (1982). There are circumstances in which children and adults are not "similarly situated” — as in their mental and emotional capacity to assume the obligations and responsibilities involved in contracts — and here the act does not prohibit distinctions based on age. As we have pointed out, "[s]pecial rules for children are not unusual,” Moning v Alfono, 400 Mich 425, 445; 254 NW2d 759 (1977). This fact is the result of the inescapable reality that children are, in many respects, different from adults. Where such differences are relevant, and the special nature and characteristics of children reasonably require such "special rules,” the act does not prohibit them. Thus, the civil rights act does not prohibit differential treatment of minors per se where such treatment is reasonably necessitated by the special nature and characteristics of children.
Clearly, then, the requirement that one "engaging in a real estate transaction” not discriminate based on the "age ... of a person” does not require landlords to enter into rental contracts with children, due to their mental and legal incapacities. Had the Legislature intended a more stringent and absolute prohibition to apply with respect to "a person residing with that person” than applies to the contracting party itself, it surely would have made this intention manifest. Yet this section of the act contains no indication whatsoever that a more stringent rule should apply here. Indeed, where the main party protected by the section — the contracting party — is subject to reasonably necessary differential treatment on the basis of age, it is unlikely that the Legislature would intend a more absolute and stringent prohibition to apply with respect to "a person residing with that person.” We therefore conclude that the Legislature intended the same practical rule of reason to apply with respect to "person[s] residing with,” as to the contracting "person[s]” themselves. Thus, this section of the act does not prohibit per se, in real estate transactions, differential treatment of persons reasonably necessitated by the special nature and characteristics of children residing with such persons.
IV
Conclusion
In concluding, we express again our agreement with the trial court’s finding that the Legislature intended "to apply a practical rational reasoning” to the interpretation of the age discrimination provisions of article 5 of the Michigan civil rights act.
Such reasoning recognizes that children and adults are not the same for all purposes and that what might otherwise be unlawful age discrimination is permitted by law where it represents a reasonable method of accommodating other common-law, statutory, or constitutional duties with the rights of families with children to nondiscriminatory treatment in access to rental housing. Therefore, we hold that the conclusion of the circuit court that "restricting of families with children to certain designated buildings within a multi-building complex ... is not per se unlawful” is not clearly erroneous.
The decision of the Court of Appeals is affirmed. No costs, as the determination of a public question is involved._
Williams, C.J., and Kavanagh, Levin, Brickley, and Cavanagh, JJ., concurred with Boyle, J.
The complaint of a fourth family residing at another complex owned and operated by the defendant was dismissed by stipulation of the parties prior to administrative proceedings herein. See fn 2.
An administrative hearing was conducted on June 8, 19, 20, 22, and July 11, 1979 before a hearing referee of the Michigan Civil Rights Commission, who took testimony of various witnesses and other evidence related to Muirwood Apartments. The referee issued an opinion which included proposed findings of fact and recommendations on November 6, 1979. After defendant filed objections to the opinion of the referee, the matter was heard by the Michigan Civil Eights Commission on December 18, 1979.
Cf. Marina Point Ltd v Wolfson, 30 Cal 3d 721; 180 Cal Rptr 496; 640 P2d 115 (1982); O’Conner v Village Green Owners Ass’n, 33 Cal 3d 790; 191 Cal Rptr 320; 662 P2d 427 (1983) (involving complete exclusions).
Cheeseman v American Multi-Cinema, Inc, 108 Mich App 428, 433; 310 NW2d 408 (1981), interpreted the age discrimination prohibitions in the context of the public accommodations provisions of the act. MCL 37.2301(a); MSA 3.548(301)(a). Although the public accommodations provisions contain an express exemption limiting protections where the prohibited acts are "otherwise permitted by law,” we do not think the Legislature intended the housing provisions to be interpreted irrationally merely because they did not include such an express exemption.
See, e.g., Cheeseman, supra, and eases cited therein; Moning v Alfono, supra, and cases cited therein discussing special duties owed children in the context of the attractive nuisance doctrine, negligent entrustment, and sale of potentially dangerous instrumentalities; Quinliven v Great Atlantic & Pacific Tea Co, 395 Mich 244, 267; 235 NW2d 732 (1975), Kreiner v Yezdbick, 22 Mich App 581; 177 NW2d 629 (1970), and Butler v Watson, 193 Mich 322, 329; 159 NW 507 (1916), discussing duties of landlords to those on their property. See, also, Home Life Ins Co v Breslerman, 168 Misc 117; 5 NYS2d 272 (1938), discussing duties of landlord to residential tenants who disturb each other. | [
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Cavanagh, J.
Defendants were convicted by a jury of first-degree felony murder, MCL 750.316; MSA 28.548, and were sentenced to the statutorily mandated term of life imprisonment. The Court of Appeals affirmed their convictions, and we granted defendants’ applications for leave to appeal.
I. Facts
On January 12, 1978, at about 10:30 p.m., O’Dell Cheatham was beaten and stabbed in a Detroit alley. An eyewitness saw two men, whom he could identify, beating and kicking the victim near a car. That witness also saw a third man, whom he could not identify, seated in the car in the driver’s position. The witness contacted the police and relayed descriptions of the assailants and of the car. Shortly thereafter, only a few blocks from the scene of the crime, police officers on routine patrol saw three men standing near an apparently disabled vehicle. At that time, defendant Howard stated to the police that the disabled vehicle was his. Within minutes, the patrol officers received a radio dispatch that three men were wanted for the felonious assault on O’Dell Cheatham. Defendants Mallory and Lewis and the disabled vehicle fit the descriptions relayed with the dispatch. As a result, the patrol officers arrested defendants. It was around 11 p.m. Subsequently, it was discovered that a small sum of money and a watch were missing from Cheatham’s person. Cheatham died the following afternoon of injuries inflicted during the assault.
During the morning of January 13, 1978, a police sergeant obtained a "reverse writ” from a magistrate. A reverse writ was a unique procedure through which Detroit police sought to justify detention of arrestees. See People v Casey, 411 Mich 179; 305 NW2d 247 (1981). Another police officer obtained a second reverse writ the following morning because each was thought to be valid for only one day. At that time, the officer noticed what he thought might be blood on Mallory’s shoes.
Around 5 p.m. on January 14, 1978, defendants were placed in several lineups. The eyewitness identified Mallory and Lewis as O’Dell Cheatham’s assailants. The witness also remarked that the assailants appeared to have jumped on Cheatham as he lay on the ground. On the basis of that statement, around 8 p.m., a police officer seized Mallory’s shoes from him while he was in detention. The officer did not have a search warrant.
Also during the evening of January 14, Howard’s sister arrived at the police station to visit her brother. One of the investigating officers accompanied Howard from his cell to a visiting area. During the course of that brief journey, the officer remarked to Howard that Mallory and Lewis had been positively identified as Cheatham’s assailants. In response, Howard stated that if they were identified, he was identified, because he had been with them the entire evening of January 12. Howard had been advised of his right to remain silent sometime the previous day by another officer.
Arrest warrants were issued, and defendants were finally arraigned on the morning of January 15, 1978. Defendants were charged with first-degree felony murder, predicated on an underlying larceny, and were tried jointly.
At trial, all defense counsel rigorously cross-examined the eyewitness to O’Dell Cheatham’s beating in an attempt to show that the witness’ identifications of defendants and of the car were suspect. In response, the prosecution moved that the jurors be taken to the crime scene so that they could observe firsthand the view which the eyewitness had from his apartment. The trial judge permitted the jury view, but, although all defense counsel were present during the view, did not allow defendants to accompany the jury.
During the course of trial, Mallory’s shoes were admitted into evidence. Expert testimony established that the victim’s blood type was the same as that found on the shoes and that Mallory’s blood type was different. Howard’s statement to the police officer regarding identification was also admitted into evidence. The jury returned a verdict of guilty as charged.
II. Issues
Defendants raise a plethora of issues for our consideration. They all allege that the trial court erred so as to require reversal by: (1) excluding them from the jury view of the crime scene, (2) failing to instruct the jury that the underlying larceny for purposes of felony murder must have been a felony, (3) instructing the jury so as to remove from its consideration the element of malice, (4) admitting testimony that the victim was dying of cancer, and (5) employing the struck jury selection method. Howard and Lewis also challenge the voluntariness of Howard’s statement to the police and claim that their trial counsel rendered ineffective assistance. Individually, Mallory claims that evidence of his shoes and the associated blood tests should have been suppressed; Howard claims that his motions to quash the information, for a directed verdict, and for a new trial were improperly denied; and Lewis challenges his detention under the reverse writs.
A. Reverse Writ.
The reverse writ procedure under which defendants were held for approximately 60 hours before being arraigned on proper complaints and warrants was "without legal effect and may not be employed to justify the detention of a citizen,” i.e., "[i]t is a nullity” having no constitutional or statutory bases. Casey, supra, pp 180-181. Defendants Mallory and Howard challenge the admissibility at trial of several major pieces of evidence against them which were obtained by the police from defendants during detentions pursuant to the two reverse writs.
When a person is the subject of a felony arrest without a warrant, two statutes require that the person be brought promptly before a magistrate for arraignment on a complaint and warrant.
"A peace officer who has arrested a person for an offense without a warrant shall without unnecessary delay take the person arrested before a magistrate of the judicial district in which the offense is charged to have been committed, and shall present to the magistrate a complaint stating the charge against the person arrested.” MCL 764.13; MSA 28.871(1).
"Every person charged with a felony shall, without unnecessary delay after his arrest, be taken before a magistrate or other judicial officer and, after being informed as to his rights, shall be given an opportunity publicly to make any statement and answer any ques tions regarding the charge that he may desire to answer.” MCL 764.26; MSA 28.885.
Similarly, if with less specificity, the state constitutional guarantee of due process of law requires an arrestee’s prompt arraignment. Const 1963, art 1, § 17. Both the constitutional and statutory requirements are designed to advise the arrestee of his constitutional rights and the nature of the charges against him by an impartial judicial magistrate, to insure that the arrestee’s rights are not violated, and to afford the arrestee an opportunity to make a statement or explain his conduct in open court if he so desires. Further, prompt arraignment is of particular importance when, as here, a person is arrested without a warrant. In such situations, arraignment provides a judicial determination of probable cause which would not otherwise occur until the preliminary examination. Finally, prompt arraignment affords the arrestee an opportunity to have his right to liberty on bail determined.
Since the aforementioned statutory right to prompt arraignment was violated by the reverse writ procedure, defendants’ detentions were unlawful. The next step is to determine whether Mallory’s shoes, the results of the blood tests performed on them, and Howard’s statement should have been suppressed. In the past, we have imposed the exclusionary rule as the appropriate remedy whenever a statutorily unlawful detention has been employed as a tool to extract a statement. See People v White, 392 Mich 404, 424; 221 NW2d 357 (1974), cert den sub nom Michigan v White, 420 US 912; 95 S Ct 835; 42 L Ed 2d 843 (1975), and the authorities cited therein. These statements are excluded, even if they were given voluntarily, because they might never have been made by the detainee but for the illegal prearraignment delay. Physical evidence, in contrast, often exists regardless of the length of the prearraignment delay. However, if the primary purpose of the White exclusionary rule is to deter police misconduct in obtaining evidence against a detainee, the nature of the evidence which is impermissibly obtained should not be determinative. If the physical evidence would not have been discovered but for the exploitation by the police of the illegal prearraignment delay, suppression is required.
We therefore hold that the White exclusionary rule shall be applied whenever a statutorily unlawful detention has been employed as a tool to directly procure any type of evidence from a de tainee. See People v McCoy, 29 Mich App 589, 591-592; 185 NW2d 588 (1971). Moreover, the exclusionary rule will bar any other evidence which would not have been discovered but for that direct procurement.
Obviously, not all evidence acquired directly or indirectly from a detainee during a statutorily unlawful detention will be procured by exploiting that detention, e.g., a statement volunteered absent police prompting or questioning, White, supra, pp 424-425, a voluntary statement made shortly after a lawful arrest, People v Stinson, 113 Mich App 719, 730-731; 318 NW2d 513 (1982); People v Ricky Smith, 85 Mich App 32, 46-47; 270 NW2d 697 (1978); People v William Turner, 26 Mich App 632, 638-639; 182 NW2d 781 (1970), the inadvertent discovery of physical evidence on the detainee’s person or in the detainee’s personal effects absent a general plan or pattern to marshal evidence against the detainee, People v Griffin, 33 Mich App 474, 477-478; 190 NW2d 266 (1971), or any evidence obtained by means sufficiently distinguishable to be purged of the taint of the unlawful detention. The exclusionary rule will not bar the admission at trial of evidence which has been acquired absent exploitation of a statutorily unlawful detention. Cf. People v Walters, 8 Mich App 400; 154 NW2d 542 (1967).
Turning first to Mallory’s shoes and the blood tests performed on them, we find that that evidence was improperly admitted at trial. Unquestionably, the shoes were seized during a period of unlawful detention. Further, we conclude that the police employed the detention as a device to generally marshal evidence against the defendants. The shoes were seized 45 hours subsequent to the arrests, after two reverse writs had been obtained and a lineup conducted. Likewise, the blood tests performed on the shoes would not have been obtained but for the seizure of the shoes, i.e., they were not obtained by means sufficiently distinguishable to be purged of the primary taint of the unlawful detention. Accordingly, Mallory’s shoes, and the associated blood tests, were inadmissible at trial because they were the fruit of the poisonous tree. See, e.g., Wong Sun v United States, 371 US 471, 488; 83 S Ct 407; 9 L Ed 2d 441 (1963).
Likewise, Howard’s statement that he had been with Mallory and Lewis the entire evening was improperly admitted at trial. The statement was obtained during a period of unlawful detention. Further, we conclude that the delay in arraignment was employed not only as a device to generally marshal evidence against the defendants, but as a tool to extract statements from defendants. Howard’s statement was obtained only after the lineup had been conducted and he was confronted with the fact that Mallory and Lewis had been positively identified. When a statutorily unlawful detention is employed as a tool to extract a statement, we have traditionally imposed the White exclusionary rule. _
B. Jury View.
In response to the prosecution’s motion for a jury view of the crime scene, defense counsel pointed out that lighting and weather conditions would not be the same, i.e., Cheatham’s beating occurred at 10:30 p.m. on January 12, 1978, during snowy conditions, while the proposed view would occur during daylight hours in May, 1978. Accordingly, defendants opposed the view, claiming that it would be "confusing and prejudicial.” Nevertheless, the trial court permitted the view so that the jury could become acquainted with "line of sight and distances.” However, the trial judge ruled that defendants could not be present at the view because he thought "[w]e have a problem of security” and "we have a problem as to whether they are prejudiced if they go to the scene in handcuffs.” Before the jurors departed for the scene, the trial judge reminded them of the differences in lighting and weather conditions.
The Court of Appeals panel reviewing Mallory’s conviction did not address the issue of the jury view, although it was raised, instead stating "[w]e have reviewed defendant’s other allegations of trial court error and find that no reversible error exists.” However, the panel reviewing the convictions of Lewis and Howard found that the trial court had erred by excluding defendants from the view. Nevertheless, the error was harmless because there was no reasonable possibility of prejudice from defendants’ absence. People v Hughie Lewis, 97 Mich App 359, 365-366; 296 NW2d 22 (1980).
Permitting the jury to view the crime scene is a matter within the discretion of the trial court. GCR 1963, 513; MCL 768.28; MSA 28.1051; People v Pizzino, 313 Mich 97, 106-107; 20 NW2d 824 (1945); People v Greeson, 230 Mich 124, 142; 203 NW 141 (1925); People v Frontera, 223 Mich 258, 260; 193 NW 782 (1923); People v Winney, 196 Mich 347, 366-367; 163 NW 119 (1917); People v Auerbach, 176 Mich 23, 46; 141 NW 869 (1913). That discretion exists even after the jury has begun its deliberations. Pizzino, supra. Although a trial court does not abuse its discretion by refusing a jury view when conditions at the crime scene have changed between the time of the crime and the time of trial, Frontera, supra, we cannot say that the trial court abused its discretion in permitting a view in this case because lighting and weather conditions were not identical. The jurors were fully apprised by the trial judge and by defense counsel of those differences. Further, on the basis of the evidence which the jurors had already heard and on their own common knowledge, they would have been alerted to any such differences. The view properly helped the jurors to better understand the distances involved and to weigh the evidence admitted at trial, especially the credibility of the eyewitness.
We must now decide whether defendants were entitled to be present at the jury view. A criminal defendant has a specific statutory right to be present during his or her trial:_
"No person indicted for a felony shall be tried unless personally present during the trial . . . .” MCL 768.3; MSA 28.1026.
In People v Auerbach, supra, pp 47-48, this Court recognized a defendant’s right to be present at a jury view. However, our decisions have generally turned upon a determination that the defendant had waived this right by failing to appear at the view while free on bail, People v Connor, 295 Mich 1, 6; 294 NW 74 (1940); People v Kasem, 230 Mich 278, 283; 203 NW 135 (1925); Auerbach, supra, p 47. No question of waiver is presented here since each defendant requested that he be present during the view.
Auerbach did not specifically articulate the source of a defendant’s right to be present at a jury view. Although jurisdictions are split over whether a jury view is part of a trial, see 21A Am Jur 2d, Criminal Law, § 915, pp 379-380; 75 Am Jur 2d, Trial, §§ 72-86, pp 181-190; 30 ALR 1357; 90 ALR 597; 6 Wigmore, Evidence (Chadbourn rev), § 1803, p 342, and cases cited therein, we are persuaded that it is. A defendant has a right to be present during the voir dire, selection of and subsequent challenges to the jury, presentation of evidence, summation of counsel, instructions to the jury, rendition of the verdict, imposition of sentence, and any other stage of trial where the defendant’s substantial rights might be adversely affected. See, e.g., Snyder v Massachusetts, 291 US 97, 106-108; 54 S Ct 330; 78 L Ed 2d 674 (1934); People v Medcoff, 344 Mich 108, 115-117; 73 NW2d 537 (1955), overruled on other grounds People v Morgan, 400 Mich 527; 255 NW2d 603 (1977), cert den sub nom Cargile v Michigan, 434 US 967; 98 S Ct 511; 54 L Ed 2d 454 (1977); 21A Am Jur 2d, Criminal Law, §§910-924, pp 374-388, and cases cited therein. Thus, the right to be present at trial is independent of and considerably broader in scope than the right of confrontation. 21A Am Jur 2d, supra, § 902, p 368.
A jury view may provide a defendant with an opportunity to render assistance to defense counsel at, during, or after its occurrence. For example, by being present, a defendant might ensure that the jurors do not engage in improper conduct by reporting to defense counsel improprieties which the latter did not observe. Further, any familiarity a defendant has with the area of the jury view might lead to recognition of significant changes in the area which should be pointed out to the jurors by later testimony or argument. Although a defendant can impart knowledge of the area to defense counsel prior to the view, the defendant’s presence will make it more likely that any significant observations of aid to the defense are made. Finally, and most importantly, even a defendant unfamiliar with the area of the view may make observations of that area during the view which can be passed on to defense counsel and which might directly aid the defense.
As previously noted, a defendant may waive his right to be present at a jury view by affirmative consent or by failing to appear at the view when he is at liberty to do so. Furthermore, if the defendant’s conduct during trial is so disorderly or disruptive that his trial cannot be continued while he is present, defendant may lose his right to be present at a jury view entirely. See Illinois v Allen, 397 US 337, 342-343; 90 S Ct 1057; 25 L Ed 2d 353 (1970).
The trial judge expressed two reasons for denying defendants’ presence at the jury view: (1) security problems, and (2) potential prejudice to defendants because the jury would see them in handcuffs. This Court has recognized that:
" 'Freedom from shackling and manacling of a defendant during the trial of a criminal case has long been recognized as an important component of a fair and impartial trial. 14 Am Jur, Criminal Law, § 132. Ordinarily such procedure should be permitted only to prevent the escape of the prisoner or to prevent him from injuring bystanders and officers of the court or to maintain a quiet and peaceable trial.’ ” People v Duplissey, 380 Mich 100, 103-104; 155 NW2d 850 (1968), quoting Odell v Hudspeth, 189 F2d 300, 302 (CA 10, 1951), cert den 342 US 873; 72 S Ct 116; 96 L Ed 656 (1951). Also, People v Anderson, 389 Midi 155, 190-191; 205 NW2d 461 (1973), affirming 29 Mich App 578, 582-583; 185 NW2d 624 (1971).
Consistent with those principles, a trial court may, in the exercise of its discretion, determine that shackling of the defendant when in the presence of the jury at a view is necessary on the basis of previous conduct of the defendant or other manifest circumstances. Nevertheless, in most instances, the presence of armed guards should be sufficient. See, generally, Allen, supra, pp 343-344; People v Kerridge, 20 Mich App 184, 186-188; 173 NW2d 789 (1969); People v Havey, 11 Mich App 69, 76; 160 NW2d 629 (1968), lv den 381 Mich 756 (1968); People v William L Thomas, 1 Mich App 118, 126; 134 NW2d 352 (1965); 21A Am Jur 2d, Criminal Law, § 846, pp 295-302.
The trial judge did not articulate why he be lieved that defendants’ presence at the jury view would pose such a security risk that defendants’ right to be present should be denied. Since retrial is required, we need not decide whether this decision constituted reversible error. If a jury view is held upon retrial, the trial court should take all reasonable steps necessary to protect defendants’ right to be present, as well as the safety of the jurors and community at large.
C. Other Issues.
Several other issues also merit our attention. First, graphic testimonial evidence that the victim had terminal brain cancer, resulting in the loss of use of his right arm, was admitted at trial over the objections of defendants. We fail to see any logical or legal relevance that this evidence had to defendants’ first-degree felony murder prosecution. As aptly stated by the Court of Appeals when reviewing the convictions of Howard and Lewis:
"In the case before us, the victim’s physical condition was completely irrelevant to any issue in the case. There was no contention of self-defense or that the decedent was the aggressor. There was eyewitness testimony concerning the brutality of the beating that resulted in Cheatham’s death. There was no need to bolster the mother’s testimony that decedent’s money was in his left pocket by bringing up his illness. We find that the testimony was erroneously admitted, as its only purpose was to appeal to the sympathy of the jury.” Hughie Lewis, supra, p 367.
The panel reviewing Mallory’s conviction did not address this issue, although it was raised. Although we may have found this error to have been harmless beyond a reasonable doubt in a trial free of other errors, especially as to Mallory and Lewis who were positively identified by the eyewitness, we do not decide that question. Rather, we merely point out that this evidence should not be admitted at any retrial involving any of the defendants.
Finally, we believe that if any errors occurred in the trial court’s jury selection methods or its jury instructions regarding felony murder, they will not occur at any retrial involving any of the defendants. See People v Miller, 411 Mich 321; 307 NW2d 335 (1981), and People v Aaron, 409 Mich 672; 299 NW2d 304 (1980), respectively.
III. Conclusion
Defendants’ convictions are reversed and this case is remanded to the Recorder’s Court of Detroit for proceedings consistent with this opinion. If the defendants are retried, the shoes seized from Mallory during his unlawful detention pursuant to two reverse writs and the blood tests performed on those shoes are inadmissible as evidence. The statement regarding identification obtained from Howard during his unlawful detention pursuant to two reverse writs is also inadmissible as evidence. Evidence that the victim had terminal brain cancer is inadmissible against all of the defendants. Although the trial court did not abuse its discretion by ordering a jury view of the crime scene, defendants are entitled to be present at any view which is ordered.
Williams, C.J., and Kavanagh and Levin, JJ., concurred with Cavanagh, J.
People v Mallory, unpublished opinion per curiam of the Court of Appeals, decided November 26, 1979 (Docket No. 78-2377); People v Hughie Lewis and People v Howard, 97 Mich App 359; 296 NW2d 22 (1980).
People v Hughie Lewis and People v Charles Howard, 417 Mich 885; 331 NW2d 224 (1983); People v Mallory, 417 Mich 886; 331 NW2d 224 (1983).
Prompt arraignment prevents police officers from conducting secret interrogations. Mallory v United States, 354 US 449; 77 S Ct 1356; 1 L Ed 2d 1479 (1957); Upshaw v United States, 335 US 410; 69 S Ct 170; 93 L Ed 100 (1948); People v Hamilton, 359 Mich 410, 415-416; 102 NW2d 738 (1960).
The dissent maintains that a judicial determination of probable cause was made after defendants’ arrests when the complaint was filed and arrest warrants were issued. Regardless of whether this determination satisfied constitutional requirements, it clearly did not satisfy MCL 764.13; MSA 28.871(1). Furthermore, this determination occurred three days after the arrests. The arraignment statutes require not only a judicial determination of probable cause, but a prompt one.
The dissent states that since the magistrate at the reverse writ proceeding had the authority to set bond, defendants were afforded an opportunity "by their appearance” to have the issue of bond considered. We disagree. As described in Casey, supra, 411 Mich 180, fn 1, the reverse writ procedure was generally informal and without any documentation. The only purpose of the proceeding was to keep the arrestee in custody without issuing an arrest warrant. It therefore would have been extremely unlikely that the magistrate who allowed the police to detain defendants without the benefit of a warrant would have also allowed defendants to be freed on bail.
For purposes of our analysis, we assume that the police had probable cause to arrest defendants and that those arrests were efiectuated in a lawful manner. However, we do not decide those questions.
In the event of a prompt arraignment, bail might have been set and Mallory would not have been in custody. Remember that the victim did not die until the afternoon of January 13,1978. Defendants were arrested for felonious assault on January 12, 1978. Thus, a prompt arraignment would have seen defendants charged with a bailable offense. See Const 1963, art 1, § 15. Accordingly, the blood on the shoes might not have been discovered as it was.
Neither Hancock v Nelson, 363 F2d 249 (CA 1, 1966), cert den 386 US 984; 87 S Ct 1292; 18 L Ed 2d 234 (1967), nor United States v Edwards, 415 US 800; 94 S Ct 1234; 39 L Ed 2d 771 (1974), requires a different result. In Nelson, defendants filed a habeas corpus petition challenging the admissibility of their bloodstained clothes, which had been surrendered during a detention that was illegal under state statutory law. The first circuit held, as a matter of federal constitutional law, that the clothes were properly seized during a lawful search incident to arrest. Nelson, supra, pp 252, 255. However, the court noted that as a matter of federal procedural law, a violation of the federal prompt arraignment statutes would have resulted in suppression under Mallory, supra, and McNabb v United States, 318 US 332; 63 S Ct 608; 87 L Ed 819 (1943). The Nelson Court also noted that a state could similarly exclude evidence obtained during statutorily unlawful detentions either by judicial decision or statute, although no state had yet done so. Nelson, supra, pp 253-254. However, Nelson was decided eight years before this Court adopted the White exclusionary rule.
In Edwards, the United States Supreme Court held that as a matter of federal constitutional law, once an accused has been lawfully arrested and is in custody, his clothes may be lawfully searched and seized without a warrant, even if the search and seizure occurs well after the arrest and administrative processing, and even if no probable cause to search exists. Edwards, like Nelson, based this conclusion on the "search incident to arrest” exception to the warrant requirement. Edwards, supra, pp 802-805. However, no statutorily unlawful prearraignment delay had occurred in Edwards. If there had been such a delay, the federal McNabb-Mallory rule could have required suppression.
An identical result is reached when the starting point is a constitutionally unlawful detention. A statement which is solely the product of an illegal arrest is constitutionally inadmissible. Wong Sun, supra, p 491. Although Howard’s statement may have been voluntary under US Const, Am V, and Const 1963, art 1, § 17, it was still illegally obtained for purposes of US Const, Am IV, and Const 1963, art 1, § 11. See Dunaway v New York, 442 US 200, 217; 99 S Ct 2248; 60 L Ed 2d 824 (1979). The inquiry with respect to the latter two constitutional provisions is whether there was a causal connection between the unlawful detention and the statement. Brown v Illinois, 422 US 590, 602; 95 S a 2254; 45 L Ed 2d 416 (1975). To answer that inquiry, we look at: (1) the time lapse between the arrest and the statement, (2) the flagrancy of official misconduct, (3) any intervening circumstances, and (4) any antecedent circumstances, i.e., events occurring before the arrest. See Dunaway, supra; Brown, supra, p 603; People v Emanuel, 98 Mich App 163, 177; 295 NW2d 875 (1980), lv den 414 Mich 871 (1982), cert den sub nom Emanuel v Michigan, 459 US 1220; 103 S a 1226; 75 L Ed 2d 461 (1983).
In this case, the time lapse between Howard’s arrest and his statement regarding identification was in excess of 40 hours and there were no intervening circumstances during that time period tending to ameliorate the delay. Rather, the only intervening circumstances of significance were the several lineups conducted, which were part of the general police plan to marshal evidence against defendants and at which Mallory and Lewis were positively identified. Howard’s statement was a direct result of those identifications. Those identifications would not have taken place but for the unlawful detentions of all defendants. A lineup "is not the kind of intervening circumstance which tends to dissipate the taint” of an unlawful detention. People v Casey, 102 Mich App 595, 604, fn 6; 302 NW2d 248 (1980), aff’d 411 Mich 179; 305 NW2d 247 (1981). Finally, we endorse the comments of the Court of Appeals made in another case involving reverse writs:
"We also conclude that the official misconduct here was 'flagrant’ in the sense that it was extremely conspicuous. If one carefully examines the proceedings in this matter, the illegality of the arrest is obvious. By so finding, however, we do not wish to imply that we believe the officers in question intentionally acted improperly.” Casey, supra, p 604.
Accordingly, Howard’s statement was inadmissible at trial because it was the fruit of the poisonous tree.
"When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts.” Dunaway, supra, p 218.
This state has had a similar statute for almost 140 years. See RS 1846, ch 165, § 10; 1857 CL 6077; 1871 CL 7956; How Stat 9569; 1897 CL 11952; 1915 CL 15825; 1929 CL 17321; 1948 CL 768.28.
Like the jury view statute, this statute has a long history. See RS 1846, ch 165, § 9; 1857 CL 6076; 1871 CL 7955; How Stat 9568; 1897 CL 11951; 1915 CL 15824; 1929 CL 17296; 1948 CL 768.3.
Similarly, an accused’s right to be present at trial is impliedly guaranteed by the federal and state Confrontation Clauses, US Const, Am VI; Const 1963, art 1, § 20; Illinois v Allen, 397 US 337, 338; 90 S Ct 1057; 25 L Ed 2d 353 (1970), the Due Process Clauses, US Const, Am XIV; Const 1963, art 1, § 17; Snyder v Massachusetts, 291 US 97, 105-106; 54 S Ct 330; 78 L Ed 2d 674 (1934), and the right to an impartial jury, Const 1963, art 1, § 20; People v Medcoff, 344 Mich 108, 113; 73 NW2d 537 (1955), overruled on other grounds People v Morgan, 400 Mich 527; 255 NW2d 603 (1977), cert den sub nom Cargile v Michigan, 434 US 967; 98 S Ct 511; 54 L Ed 2d 454 (1977). The right of presence is also grounded in common law. Snyder, supra, p 107.
In Snyder, the Supreme Court held that the presence of a defendant at trial is required by the Due Process Clause to the extent that a fair and just hearing would be thwarted by his absence. Id., pp 107-108, 115. However, neither the Due Process nor the Confrontation Clauses required the defendant’s presence at a jury view since a view is neither a part of trial nor evidence for purposes of these clauses. Id., pp 107-108, 113-115, 118-122. Nevertheless, the Court specifically noted that each state is free to regulate the procedure of its courts, in accordance with its own conception of policy and fairness, and may provide more protection to a criminal defendant. Id., p 105. Most states which had decided the question at the time Snyder was decided had done so on the basis of their state constitutions and statutes. Id., pp 118-119. We too base our decision today upon our interpretation of MCL 768.3; MSA 28.1026, and related case law, pursuant to our supervisory authority over the administration of criminal justice in our courts. See United States v Walls, 443 F2d 1220, 1223, fn 3 (CA 6, 1971).
In People v Raider, 256 Mich 131, 137-138; 239 NW 387 (1931), there was a factual dispute as to whether defendant was present at the view. Although the issue was raised in People v Hull, 86 Mich 449, 465-466; 49 NW 288 (1891), this Court reversed defendants’ convictions on the grounds of jury misconduct during the view.
Defendants have not claimed, nor do we decide, that the refusal to allow defendants to be present at the jury view denied them the right to effective assistance of counsel.
However, courts must indulge every reasonable presumption against the loss of the right to be present during trial. Furthermore, if the right is lost, it can be reclaimed as soon as defendant is willing to conduct himself in an appropriate manner. Allen, supra, p 343.
If the defendant waives or forfeits his right to be present at a jury view, it is clear that no additional evidence can be introduced at the view. Raider, fn 11 supra, 256 Mich 138; People v Winney, 196 Mich 347, 366; 163 NW 119 (1917); Auerbach, supra, 176 Mich 47; Hull, supra, 86 Mich 466. In light of our holding that a jury view is part of trial, we need not decide whether the view itself is evidence. Although our prior decisions have uniformly held that the purpose of a jury view is only to enable the jury to better understand, apply, and weigh the evidence admitted at trial, People v Woods, 227 Mich 403, 405-406; 198 NW 891 (1924); People v Harrigan, 218 Mich 235, 240-241; 187 NW 306 (1922); Winney, supra; Auerbach, supra, other jurisdictions and authorities have concluded that a view is evidence. See 21A Am Jur 2d, Criminal Law, § 915, pp 379-380; 75 Am Jur 2d, Trial, § 86, pp 189-190; 3 Jones, Evidence (6th ed), § 15:24, pp 60-63; McCormick, Evidence (2d ed), § 216, pp 537-539; 6 Wigmore, Evidence (Chadbourn rev), § 1803, pp 340-346, and cases cited therein. | [
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Boyle, J.
We granted leave in this case to consider the appropriate standards for granting preliminary injunctions in civil service employee discharge cases. Our holding addresses the required showing of irreparable injury necessary to support the issuance of a preliminary injunction in such cases.
I. Facts
Plaintiff Lyn Jones is a state civil servant who supports herself and her son by working as a registered nurse in the children’s unit of the Clinton Valley Center, an inpatient facility operated by defendant Michigan Department of Mental Health. On September 13, 1980, while plaintiff was the nurse in charge of the unit, a 17-year-old patient drowned in a bathtub, apparently as a result of suffering an epileptic seizure. After an investigation into the death, three employees— plaintiff, the head nurse of the children’s unit, and the child care worker who had taken decedent to the bath and shower room — were dismissed for patient neglect. _
All three employees filed grievances and, in addition, on October 3, 1980, brought suit in the circuit court seeking a preliminary injunction to prevent their dismissals until completion of the grievance procedure. In her verified complaint, plaintiff alleged irreparable injury resulting from a violation of her due process rights, and from the loss of her and her child’s sole source of support. After a hearing on October 8, 1980, consisting solely of the arguments of counsel, the circuit court granted the preliminary injunction "until further order of the Court.”
Defendant appealed. While the cases were pending before the Court of Appeals, plaintiffs dismissal was reduced to a six-month suspension, and she was ordered "otherwise reinstated with full back pay and benefits,” at the fourth level of the grievance procedure.
The Court of Appeals upheld the grant of the preliminary injunction, finding that plaintiff had "established the type of irreparable injury necessary to support” issuance. In particular,
"[s]he provides the sole financial support for [her] child, has no savings, and would have no means of supporting herself and her child if terminated from her job. In addition, if defendant is permitted to fire plaintiff employee for alleged patient neglect, it is unlikely that she will be able to obtain employment elsewhere as a registered nurse.” MSEA v Dep’t of Mental Health, 120 Mich App 39, 44-45; 328 NW2d 11 (1982).
We granted leave to appeal.
II
Whether a preliminary injunction should issue is determined by a four-factor analysis: harm to the public interest if an injunction issues; whether harm to the applicant in the absence of a stay outweighs the harm to the opposing party if a stay is granted; the strength of the applicant’s demon stration that the applicant is likely to prevail on the merits; and demonstration that the applicant will suffer irreparable injury if a preliminary injunction is not granted. See GCR 1963, 705.7(1)(b)(i). This inquiry often includes the consideration of whether an adequate legal remedy is available to the applicant. Our analysis in this case is limited to the question whether a sufficient showing of irreparable injury was made to justify the issuance of a preliminary injunction where wrongful discharge from civil service employment was alleged.
Ill
The legal protection of employee interests in job security is the exception, rather than the rule, in this state. In the absence of contractual agreements to the contrary, see, e.g., Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), and of unlawful reasons for discharge such as race or sex discrimination, private sector employees are terminable at the will of their employers.
The need to create a stable pool of public em ployees providing continuous meritorious service led to the adoption of different rules for public employees. Before the introduction of the merit civil service system in Michigan, the high rate of state employee turnover created economic and efficiency losses for the state due to the loss of experienced employees, as well as wasted money and time spent training new employees. Meritorious state employees were "cynical about the fruits of industry” partially because they were "fairly certain that they [wouldn’t] be working for the State for any extended period.” A study of the civil service system further found that many employees lacking politically powerful and influential sponsors felt compelled to spend much of their work time preserving and currying favor with persons able to influence their prospects of retaining their jobs. Report of the Civil Service Study Commission, pp 42-44, 36, 40 (1936).
In response to these problems, the patronage system was abolished, and the merit civil service system was introduced, by constitutional amendment in 1940. Const 1963, art 11, § 5. See also Council No 11, AFSCME v Civil Service Comm, 408 Mich 385, 397-401; 292 NW2d 442 (1980) (discussing the history of the constitutional amendment). One element of the new system was the protection of civil servants from termination except for just cause.
The purpose of job tenure in the civil service is not primarily to provide a benefit to public employees. Instead, job tenure is a means by which to promote economy and efficiency in the civil service. See 15A Am Jur 2d, Civil Service, § 1, p 6; State ex rel Stoer v Raschig, 141 Ohio St 477, 486; 49 NE2d 56 (1943). Providing job security to capable and efficient employees promotes these objectives in several ways: it attracts capable and effi cient persons to public employment, ensures their retention by prohibiting arbitrary or improperly motivated dismissals, and provides an incentive to the employees for continued efficiency and industry. See 15A Am Jur 2d, supra; 67 CJS, Officers, § 16, p 258; Odau v Personnel Board of State, 250 Wis 600, 604; 27 NW2d 726 (1947). Moreover, the guarantee of job security and fair treatment is important in maintaining a faithful and motivated public employee work force with high morale. Toussaint, supra, pp 613, 619.
The protection from mistreatment provided by the requirement of just cause for dismissal would be undermined if civil servants were routinely subject to the severe burdens of wrongful dismissal. Such a system might undermine the purpose of merit civil service, in that it could lead to a deterioration of the morale of public employees and a reluctance of capable people to enter the civil service. Economy and efficiency might also be reduced, since new employees would have to be trained, and wrongfully discharged employees would receive back pay for time they had not worked. It is for this reason that the protection of job tenure provided by the civil service system cannot be interpreted as a mere guarantee of reinstatement and back pay in the event of wrongful discharge.
Job security is obviously an important benefit to the employee. The guarantee of job tenure absent just cause for dismissal under the Michigan civil service system creates a property right for public employees which the state may only take away in accordance with due process, Board of Regents of State Colleges v Roth, 408 US 564; 92 S Ct 2701; 33 L Ed 2d 548 (1972); Perry v Sindermann, 408 US 593; 92 S Ct 2694; 33 L Ed 2d 570 (1972); Arnett v Kennedy, 416 US 134; 94 S Ct 1633; 40 L Ed 2d 15 (1974). Job security is thus an important benefit of public employment.
This Court has recognized the significance of an individual’s work in his or her life:
"Every [person’s] employment is of utmost importance to him. It occupies his time, his talents, and his thoughts. It controls his economic destiny. It is the means by which he feeds his family and provides for their security. It bears upon his personal well-being, his mental and physical health.” Lowe v Hotel & Restaurant Employees Union, Local 705, 389 Mich 123, 148; 205 NW2d 167 (1973).
Discharge from public employment may make it almost impossible to obtain other work.
"Employability is the greatest asset most people have. Once there is a discharge from [government employment], dismissal may be a badge that bars the employee from other [government] employment. The shadow of that discharge is cast over the area where private employment may be available.” Sampson v Murray, 415 US 61, 95; 94 S Ct 937; 39 L Ed 2d 166 (1974) (Douglas, J., dissenting).
Yet, despite the discharged employee’s inability to obtain other employment, the employee may be ineligible for unemployment benefits because the "cause” for termination may constitute "misconduct” under MCL 421.29(1)(b); MSA 17.531(1)(b).
Further, the injury caused by the effects of wrongful discharge may not be fully remedied by reinstatement and back pay. As Justice Marshall pointed out:
"The availability of a backpay award several years after a dismissal is scant justice for a Government employee who may have long since been evicted from his home and found himself forced to resort to public assistance in order to support his family. And it is little solace to those who are so injured to be told that their plight is 'normal’ and 'routine.’ ” Sampson v Murray, supra, 102.
Recognition of the policy favoring a stable public work force, and of the injurious effects of discharge on the employee and his or her dependents, are, however, but two of the factors in the issue to be resolved. To these factors must be added the competing policy interests mandating expeditious discharge of unsuitable civil servants.
The promotion of economy and efficiency in the civil service, and the protection of the public interest, also require that unsuitable employees not enjoy job tenure, and that they instead be dismissed from public employment. The very life of one or more human beings can sometimes depend upon the conscientious and capable performance of a civil servant’s duties. The retention of such unsuitable employees might undermine the morale and motivation of other civil servants by indicating that competence and industry are unnecessary to retain a job in the civil service. Thus it is also in the interest of the state and its taxpayers that unsuitable employees be removed from the public payroll as quickly as possible.
We are faced, then, with competing interests and policy goals. On the one side is the state’s interest in the expeditious removal of unsuitable employees. On the other side are the employee’s interest in avoiding the injuries of discharge and the state’s interest in avoiding the costs and consequences of wrongful termination: the unnecessary cost of training new personnel, the waste of paying back wages for time the reinstated employee has not worked, as well as the potential harms of reduced public employee morale and motivation, and of reluctance on the part of potential recruits to enter the civil service, due to the risk of injury from wrongful discharge.
IV
Procedures created to ensure against unjust and erroneous action do not — and perhaps cannot — operate perfectly and without error. Indeed, increased protection of one interest can often be obtained only at the expense of its competing opposite interest. The distribution of the burdens and risks of error is a decision of public policy.
The United States Constitution has struck an initial, and minimum, balance between the competing interests in the area of public employee discharges by requiring that due process be accorded. Beyond this, the people of this state have delegated to the Civil Service Commission the power to "regulate all conditions of employment in the classified service,” Const 1963, art 11, § 5. It is thus the constitutional duty of the Civil Service Commission to establish, in accordance with due process requirements, the proper balance between the need to protect civil servants’ job security and the need to rid the service of unsuitable employees.
While the courts provide review in the last resort to protect a civil servant’s job, our role is constitutionally limited. Const 1963, art 6, § 28. The determination of whether a discharge was rightful or wrongful is left primarily, and in the first instance entirely, to civil service procedures. Final decisions terminating a civil servant are subject only to limited judicial review, determining "whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record,” id.
While civil servants are entitled to protection from the burdens and injuries inflicted by wrongful discharge, discharged public employees are not entitled, under current civil service procedures, to remain on the public payroll pending exhaustion of remedies. Where a public policy decision has been made that the state and its employees shall bear some risk, and some of the burdens, of erroneous and wrongful discharge, it is not for the courts to extend, through the device of preliminary injunction, the protections against erroneous terminations beyond those provided by the people’s delegates. The routine grant of preliminary injunctions in public employee discharge cases pending exhaustion of all remedies would destroy the balance that has been struck between the competing interests involved. This the courts may not, and must not, do.
The United States Supreme Court has held that federal civil servants seeking a stay preventing their discharge "must make a showing of irreparable injury sufficient in kind and degree to override [those] factors cutting against the general availability of preliminary injunctions in Government personnel cases,” Sampson v Murray, supra, p 84. The factors discussed by the Sampson Court involve federal law as to preliminary injunctions and the rights of federal civil servants, and are thus not applicable in Michigan law. However, we consider the requirement that our courts not undermine the balance which has been struck by the people’s delegated representatives between the competing interests involved in civil servant terminations to be a factor analogous to the federal "factors cutting against the general availability of’ stays in such cases.
While it is clear that in many cases a wrongfully discharged employee will suffer severe injury only inadequately remedied by a later award of reinstatement with back pay and benefits, the suffering of the rightfully discharged public employee is likely to be indistinguishable from that of the wrongfully discharged employee. Superficially, therefore, the needs of judicial administration might appear to necessitate a choice between two extremes in interpreting the "irreparable injury” requirement: either an interpretation which makes a stay available in all such cases, or an interpretation which precludes a finding of such injury in any civil servant discharge case. We do not believe that the alternatives are so limited. To the extent that Sampson appears to have been understood as a preclusion per se to a finding of irreparable injury in civil servant discharge cases, we decline to adopt that rationale. We are convinced of the ability of trial courts to properly apply the irreparable injury requirement, in combination with the other traditional requirements for grant of preliminary injunctions, in light of the competing policy considerations involved in civil servant discharges.
Defendant has not argued that Const 1963, art 6, § 28, limits the traditional power of the judiciary to issue preliminary injunctions in civil servant cases; nor could such a claim prevail in the absence of a provision expressly so providing. See, e.g., Gilley v United States, 649 F2d 449, 453 (CA 6, 1981). The traditional equitable power of the judiciary to issue such injunctions, provided for in MCL 600.601; MSA 27A.601, is available in appropriate cases. However, we hold that, where civil service procedures have been followed, and constitutional requirements met, a preliminary injunction to stay the discharge of a civil servant during the pendency of grievance procedures should issue only in extraordinary circumstances.
V
The question in this case, then, is whether the injuries alleged rise to the level of a showing of "irreparable injury” supporting the issuance of a preliminary injunction in public employee discharge cases.
We can envision a variety of circumstances which might, in appropriate civil servant discharge cases, warrant a finding of irreparable injury sufficient to support the grant of a prelimi nary injunction. In all cases, the injury must be evaluated in light of the totality of the circumstances affecting, and the alternatives available to, the discharged employee.
While the plaintiff’s verified complaint alleged violations of her due process rights, this claim was not pursued on appeal. The verified complaint Otherwise contained the following allegations of irreparable injury:
"9. Plaintiff Jones is a divorced mother with a nine year old son who resides with her. She is the sole support [of] that child. Further, she has an apartment upon which she must pay rent and she must make monthly payment upon her automobile, dental bills, furniture bills, school loans and other debts. She must otherwise support and feed herself and her son. She has virtually no savings. Plaintiff Jones will be unable to support herself and her son and meet her other financial obligations. . . .
"10. Plaintiff Jones will suffer immediate and irreparable harm in that she will be unable to feed and support herself and her son unless this Court restrains the Defendant from discharging her and stopping her Pay.”
The only other showings of irreparable injury were counsel’s representations that plaintiff might be unable to obtain other employment as a nurse due to the reasons given for her discharge, and that plaintiff might be ineligible for unemployment benefits since the charge against her might constitute "misconduct” under MCL 421.29(1)(b); MSA 17.531(1)(b). The trial court took no testimony, admitted no other evidence, and made no findings before granting the preliminary injunction.
We do not hold that the absence of usable resources and of obtainable alternative sources of income with which to support one’s self and one’s dependents, coupled with the prospect of destitution, serious physical harm, or loss of irreplaceable treasured possessions, could never support a finding of irreparable injury in an appropriate case. We merely hold that the issuance of a preliminary injunction preventing discharge pending final decision in the civil service grievance procedures must be determined under the standards articulated herein.
The order of the circuit court and the judgment of the Court of Appeals are reversed and the case is remanded to the circuit court for further proceedings.
Williams, C.J., and Levin, Ryan, and Brickley, JJ., concurred with Boyle, J.
Kavanagh and Cavanagh, JJ., took no part in the decision of this case.
The record does not show whether any of the discharged employees were aware that they might be charged with neglect of the patient before the day of their termination. Prior to that day, in addition to the investigation by a fact-finding committee, the head nurse of the children’s unit, who had not been on duty on the day of the drowning, had been questioned by the Clinton Valley Center (CVC) director. On September 19, 1980, the CVC personnel director received the fact-finding committee’s report, which consisted of a summary of the evidence and testimony taken, as well as a memorandum on the interview with the head nurse. Within the next three hours, the three employees were fired. Each employee was summoned from duty on the children’s unit to the personnel director’s office and given a copy of one of the reports; the record does not show whether they were informed of what specific acts or omissions they were charged with. Each employee was then permitted to confer with their union representative, Mr. Berkhousen, and was represented by him in individual meetings with the CVC director and personnel director. Soon after these meetings, each employee was informed of their dismissal for "Class I Neglect.”
The circuit court did not address this constitutional claim. However, the Court of Appeals held that "due process does not require a civil service employee to be given a full evidentiary hearing before he or she is dismissed for cause,” commenting that "[t]he United States Supreme Court, the Michigan Supreme Court, and this Court have [so] held . . . .” MESA v Dep’t of Mental Health, 120 Mich App 39, 46-47; 328 NW2d 11 (1982). The Court cited Arnett v Kennedy, 416 US 134; 94 S Ct 1633; 40 L Ed 2d 15 (1974), Rockwell v Crestwood School Dist, 393 Mich 616; 227 NW2d 736 (1975), and Rogers v Trenton Bd of Ed, 61 Mich App 682; 233 NW2d 141 (1975). As the Court of Appeals and the parties recognized, the holdings of the Supreme Court of the United States as to the rights of federal civil servants are not determinative of the rights of Michigan civil servants. See MSEA, p 43. ("[T]he Court was dealing only with rights that should be accorded to federal employees under the federal civil service statutes. Michigan has a different civil service system. . . .”) Enough members of the Arnett Court considered the procedural protections accorded federal employees under federal civil service regulations sufficient to satisfy due process to form a majority upholding the constitutionality of the denial of a full evidentiary pretermination hearing. As Justice White pointed out, " 'full adjudication,’ including presentation of witnesses and cross-examination, need not be provided in every case where a pretermination hearing of some kind is required by due process,” Arnett, pp 200-201 (emphasis added).
Rockwell involved the dismissal, without prior hearing, of striking teachers under PERA, legislation regulating public employee collective bargaining rights and prohibiting strikes. The only determination necessary to discharge a public employee under the statute was whether the employee was striking or not. In Rogers, the Court of Appeals applied the rationale of an Arnett plurality which was specifically rejected by the other six justices. See Arnett, pp 166-167 (opinion of Powell, J., joined by Blackmun, J.), p 185 (opinion of White, J.), and the dissents (Douglas, J., Marshall, J., and Brennan, J.).
The issue of the procedural due process protections accordable to discharge Michigan civil servants is not on appeal before us and has not been briefed or argued by the parties. Consequently we do not decide this question.
Plaintiffs dismissal was reversed in August 1981, almost a year after her discharge. The other two employees were ordered reinstated with full back pay and benefits in April and June of 1981. These two employees’ cases were dismissed as moot by the Court of Appeals.
Defendant-appellant argues that the Court of Appeals decision must be reversed because it does not mention the requirement of a strong showing of likelihood of success on the merits. The likelihood of success on the merits was argued by plaintiff at the trial court level, and not refuted in any way by the defendant, who objected that "the merits of the dismissals are for the grievance procedure and not for this Court.” Defendant’s objections to proposed orders, filed after the hearing, and objecting that the Court had not made certain required findings in its oral decision from the bench, did not raise the question of a finding of likelihood of success on the merits. The Court of Appeals decision does not address this issue, therefore, because it was not properly before it. We also find the other issues raised by defendant to be without merit.
None of the parties or amicus curiae in this case, and neither of the courts below, considered the question whether MCL 24.301; MSA 3.560(201); GCR 1963, 705, 706.3, are applicable to this case, and the issue was not argued before us on appeal. Thus, we do not consider this question.
As the Civil Service Study Commission noted in 1936, "experience has shown that when employees are mistreated, the service invariably suffers through the ill effect on other employees’ morale and the discouragement of good material from entering the service. It follows that dismissal procedures must be fair to the employees to be good for the service.” Report of the Civil Service Study Commission, supra, p 40.
Studies have linked unemployment with increased mental health problems, substance abuse, mortality rates, and family problems. See, e.g., Work in America (Cambridge, Mass: MIT Press, 1973), pp 7-8, 82, 86-87, 89-90, 182-184; Halvorsen, How It Feels to Be out of Work, Newsweek, vol 96, September 22, 1980, p 17; Rubenstein, Brother Can You Spare $3SK?, Psychology Today, vol 16, December, 1982, pp 6-7; New Health Hazard — Being out of Work, U.S. News and World Report, vol 92, June 14, 1982, pp 81-82; Miles, Joblessness and Health —The Hidden Cost of Unemployment, World Press Review, vol 30, July, 1983, p 58.
"[W]hat due process . . . require[s] under any given set of circumstances ... [is determined by] the precise nature of the governmental function involved as well as . . . the private interest that [is] affected by governmental action,” Cafeteria & Restaurant Workers Union, Local 473 v McElroy, 367 US 886, 895; 81 S Ct 1743; 6 L Ed 2d 1230 (1961), and "the risk of an erroneous deprivation of such interest,” Mathews v Eldridge, 424 US 319, 335; 96 S Ct 893; 47 L Ed 2d 18 (1976).
See, e.g., Ekanem v Health & Hospital Corp of Marion County, 589 F2d 316 (CA 7, 1978); EEOC v Janesville, 630 F2d 1254 (CA 7, 1980); Ciechon v Chicago, 634 F2d 1055 (CA 7, 1980); Dos Santos v Columbus-Cuneo-Cabrini Medical Center, 684 F2d 1346 (CA 7, 1982).
In certain circumstances, for instance, the loss of health insurance benefits where there is a serious immediate or ongoing need for medical treatment might be sufficient. See, e.g., Gonzalez v Chasen, 506 F Supp 990 (D PR, 1980). We also do not exclude the possibility that, in an otherwise strong case, the certainty that a long-term investment in a treasured possession will be lost — such as by the foreclosure of the mortgage on a long-time family home — might constitute sufficient injury.
The denial of the minimum protections accorded by constitutional due process, of course, in and of itself constitutes a severe injury: burdens and deprivations are imposed in violation of constitutional rights. Moreover, the denial of due process increases the likelihood of success on the merits, since the absence of sufficient protective procedures increases the likelihood that the termination was erroneous and wrongful.
Plaintiff alleged that she had "virtually no savings.” But what does this mean: $10, $100, $1,000, $10,000? Alternatively, if plaintiff had almost no savings, might she and her son qualify for welfare benefits? Plaintiff alleged only that she might not qualify for unemployment benefits; how certain or likely was this? Was the plaintiffs allegation that she could not obtain other employment as a nurse supported by experience or facts, or mere speculation? Was alternative employment providing an adequate income — as, for example, a factory worker, waitress, secretary, or laboratory worker — obtainable?
We note that even in those federal cases involving an extremely high likelihood of success on the merits, the showings and findings of irreparable harm were far more detailed and extensive than those made in this case. See, e.g., United Steelworkers of America, AFL-CIO v Fort Pitt Steel Casting Division, 598 F2d 1273 (CA 3, 1979); Truck Drivers v Almarc Mfg, 553 F Supp 1170 (ND Ill, 1982); Gonzalez v Chasen, 506 F Supp 990 (D PR, 1980); Schrank v Bliss, 412 F Supp 28 (MD Fla, 1976); Keyer v Civil Service Comm of New York City, 397 F Supp 1362 (ED NY, 1975); American Federation of Government Employees, Local 1858 v Callaway, 398 F Supp 176 (ND Ala, 1975); Assaf v University of Texas System, 399 F Supp 1245 (SD Tex, 1975). | [
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] |
Cavanagh, J.
I
Defendant Larry Hayes was convicted by a jury of first-degree murder, MCL 750.316; MSA 28.548, and sentenced to life imprisonment for the killing of his common-law wife, Bobbie Kelly. On the basis of his failure to cooperate during psychiatric examinations, the trial court granted the prosecutor’s pretrial motion to bar evidence relating to an insanity defense.
At the time of trial, MCL 768.20a(4); MSA 28.1043(1)(4) stated:
"The defendant shall fully cooperate in his examination by personnel of the center for forensic psychiatry and by any other independent examiners for the defense and prosecution. If he fails to cooperate, and that failure is established to the satisfaction of the court at a hearing prior to trial, the defendant shall be barred from presenting testimony relating to his insanity at the trial of the case.”
We granted leave to determine the following issues: (1) whether application of the preclusion provision of MCL 768.20a(4); MSA 28.1043(1)(4) unconstitutionally infringed on defendant’s right to present a defense, and (2) whether MCL 768.20a(4); MSA 28.1043(1)(4) is unconstitutionally vague. We answer no to both questions.
II
On November 12, 1978, two state troopers were called to the defendant’s trailer home. They were met outside by Bobbie Kelly’s brother, who informed the troopers that his sister lay dead inside. Once inside, the troopers encountered the decedent’s parents and the defendant. According to one of the troopers, defendant seemed relatively calm. However, defendant’s speech was not always understandable, and he occasionally spoke to what he referred to as "spirits” who were "not in the room.” When one of the troopers asked defendant what happened to Bobbie, defendant allegedly responded, "I did it, I think it was on Thursday.” The policeman gave defendant his Miranda warnings, and arrested him. During the ride to the state police post, defendant instructed the troopers to tell the media that he killed Bobbie.
Prior to trial and upon stipulation, defendant was ordered committed to the Center for Forensic Psychiatry to determine whether he was competent to stand trial and the extent of his criminal responsibility due to the possibility of mental illness at the time of the alleged offense._
Defendant met with Center staff psychologist Dr. Harley Stock on February 7, 1979. Dr. Stock testified at the initial pretrial competency hearing that the defendant failed to cooperate during the examination. For example, defendant refused to fill out the forensic history questionnaire, and refused to sign the informed consent notification form. However, defendant did sign a form releasing his past medical records after he was informed that they would be needed for his insanity defense. Defendant also signed a document informing the jail about his physical complaints. In response to Dr. Stock’s initial questioning, defendant related his past psychiatric history. However, defendant "got sick” and "clammed up” when asked about his actions leading up to the alleged crime. Defendant was allowed to lie down in the emergency treatment room until he calmed down. The interview resumed, and defendant gave his account of his actions on the day Bobbie died. Dr. Stock concluded that defendant was only providing as much information as defendant thought was in his best interests.
Defendant exhibited similar behavior at a second examination held on February 22, 1979. According to Dr. Stock’s testimony and his formal report, defendant completely refused to interact with Dr. Stock at that time. Defendant would not give any socio-cultural history, and refused to undergo psychological testing.
The prosecution later moved to bar any testimony regarding defendant’s possible insanity on the basis of his failure to cooperate at the prior examinations. MCL 768.20a(4); MSA 28.1043(1)(4). The trial court ordered one final examination at the Center.
Dr. Stock received the aid of a second staff psychologist at defendant’s third examination. However, all efforts to initiate meaningful discussion proved fruitless. Dr. Stock concluded that defendant’s behavior was wholly volitional, and that defendant was competent to stand trial. This conclusion was partly based on defendant’s ability to differentiate between the legal forms that appeared to be in his best interests, and those that did not. However, Dr. Stock was initially unwilling to make a formal conclusion regarding defendant’s criminal responsibility at the time of the offense, since he was unable to complete the clinical examination. When pressed for a conclusion, Dr. Stock recommended that the defendant be adjudicated criminally responsible for his actions. However, at the final pretrial competency hearing held on May 29, 1979, Dr. Stock testified that he did not have all the information that he would like, and that his opinion might have been altered on the basis of further information.
The trial court found defendant competent to stand trial. It also granted the prosecution’s motion, and barred defendant from offering evidence of insanity at trial.
Although defendant was not allowed to offer evidence of insanity, he testified at trial, and the trial court felt that the issue had been implicitly raised through the defendant’s mannerisms and actions at trial. Accordingly, the jury was in structed on the distinction between legal sanity and mental illness. The jury was also instructed that they could return four possible verdicts: guilty, guilty but mentally ill, not guilty by reason of insanity, and not guilty.
The jury returned a guilty verdict, and defendant was sentenced to life imprisonment. The Court of Appeals affirmed the conviction in an unpublished per curiam opinion. People v Hayes, decided April 13, 1981 (Docket No. 47321).
Ill
Defendant argues that the preclusion sanction found in MCL 768.20a(4); MSA 28.1043(1)(4) violates his Sixth Amendment due process right to present a defense. US Const, Ams VI, XIV; Const 1963, art 1, §§ 17, 20. There is no question that a criminal defendant has a state and federal constitutional right to present a defense. Although not asserted by the defendant, Const 1963, art 1, § 13 provides:
"A suitor in any court of this state has the right to prosecute or defend his suit, either in his own proper person or by an attorney.”
"The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” Washington v Texas, 388 US 14, 19; 87 S Ct 1920; 18 L Ed 2d 1019 (1967). (Emphasis supplied.)
We note that other attempts to address the constitutionality of similar preclusion sanctions, specifically those involving alibi notice statutes, have evaded direct review, and have been decided on nonconstitutional grounds. See People v Merritt, 396 Mich 67, 71, 76; 238 NW2d 31 (1976), and cases cited therein.
Although the right to present a defense is a fundamental element of due process, it is not an absolute right. The accused must still comply with "established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973). Although Chambers involved the right to present a witness on one’s own behalf, we believe that the above-quoted limitation is equally applicable to the instant statute. Furthermore, although MCL 768.20a(4); MSA 28.1043(1)(4) is specifically concerned with the determinations of competency to stand trial and criminal responsibility, it is clearly a statute designed to assure both fairness and reliability in the ultimate verdict.
We are also persuaded by the argument that there is no constitutional right to assert an insanity defense. See Powell v Texas, 392 US 514, 536; 88 S Ct 2145; 20 L Ed 2d 1254 (1968) (Marshall, J.: "Nothing could be less fruitful than for this Court to be impelled into defining some sort of insanity test in constitutional terms”); see also Note, The Fifth Amendment and compelled psychiatric examinations: Implications of Estelle v Smith, 50 Geo Wash L R 275, 291 (1982). The Legislature has created definitions of mental illness, MCL 330.1400a; MSA 14.800(400a), and insanity, MCL 768.21a; MSA 28.1044(1). Since these definitions were created by statute, the Legislature’s limitations of the circumstances within which they apply do not necessarily raise questions of constitutional proportions. In MCL 768.20a(4); MSA 28.1043(1)(4), it is clearly the Legislature’s intent to give discretion to the trial court to determine whether the defense should be barred on the basis of a failure to cooperate.
Defendant initially urges us to adopt a flat proscription against preclusion of evidence of insanity. See United States v Davis, 639 F2d 239 (CA 5, 1981). In Davis, the trial court prevented two defense witnesses from testifying because their names were not on the witness list provided to the prosecution pursuant to a pretrial discovery order. The Davis court held that the Sixth Amendment prevented the exclusion of the two witnesses’ testimony solely as a sanction to enforce discovery rules or orders. Davis, supra, p 243.
We believe that a flat proscription is inappropriate here. MCL 768.20a(4); MSA 28.1043(1)(4) is not comparable to the pretrial discovery order in Davis. The Davis court noted that "discovery orders are designed to prevent surprise, not to protect the integrity of the evidence sought to be presented.” Id. Although a purpose of requiring notice of intent to assert the defense of insanity is to prevent surprise, People v Giuchici, 118 Mich App 252; 324 NW2d 593 (1982), the statute involved here is clearly designed to also protect the integrity of the evidence regarding an insanity defense. Full cooperation is required. Only then will both parties and the court have a fair and accurate evaluation of the defendant’s competency to stand trial and criminal responsibility.
Even the Davis court acknowledged that an overriding policy consideration could justify a preclusion sanction. We believe that an overriding policy consideration exists here.
In People v Martin, 386 Mich 407, 428; 192 NW2d 215 (1971), cert den 408 US 929 (1972), we held that a defendant who pleads not guilty by reason of insanity must submit himself to an examination by the people’s experts as ordered by the trial court. Similarly, we find here that an overriding policy consideration exists which forms a reasonable basis for the statute’s mandatory bar. In Michigan, once the defendant presents evidence of insanity, the prosecution is required to prove defendant’s sanity beyond a reasonable doubt. People v Murphy, 416 Mich 453; 331 NW2d 152 (1982). This burden is particularly difficult to meet in the context of an insanity defense. Indeed, we have noted that the unique characteristics of the insanity defense require that the defendant be evaluated and probed by a medical expert. Martin, supra, p 427. Since the defendant’s cooperation is essential to the process, the preclusion of testimony on the basis of a failure to cooperate is not too harsh a sanction. The flat proscription advanced in Davis, supra, is therefore inappropriate here.
The defendant alternatively requests us to adopt a balancing approach similar to the one noted in Fendler v Goldsmith, 728 F2d 1181 (CA 9, 1984). There, the accused failed to comply with a state criminal discovery rule which required him to provide the prosecution with addresses of certain witnesses. The trial court applied the rule’s sanction, and prevented those witnesses from testifying. Fendler argued that the sanction violated his Sixth Amendment right to present a defense. Rele vant factors under the balancing approach espoused in Fendler include the effectiveness of less severe sanctions, the importance of the precluded witness’ testimony, the amount of prejudice and surprise forced on the prosecution, and whether the violation was wilful. Fendler, supra, p 1187.
We are not persuaded that Fendler’s balancing approach is appropriate here. First, MCL 768.20a(4); MSA 28.1043(1)(4) mandates preclusion if non-cooperation is established to the trial court’s satisfaction. Second, even the Fendler court recognized that preclusion sanctions were appropriate when the integrity of the evidence was threatened:
"In those cases where preclusion of testimony by defense witnesses is permitted, it is usually because the integrity of the evidence involved has been threatened. In cases involving defense violations of witness sequestration orders, for example, courts may preclude the witnesses involved from testifying if their testimony was tainted by the lack of sequestration. See, e.g., Holder v United States, 150 US 91; 14 S Ct 10; 37 L Ed 1010 (1893); Braswell v Wainwright, 463 F2d 1148 (CA 5, 1972). Discovery rules, on the other hand, have no effect on the probative value of otherwise admissible evidence. As the Fifth Circuit has noted, 'discovery orders are designed to prevent surprise, not to protect the integrity of the evidence sought to be presented.’ Davis, 639 F2d at 243.” 728 F2d 1186.
As noted previously, compliance with MCL 768.20a(4); MSA 28.1043(1)(4) is essential to the integrity of the evidence of insanity. The defendant is required to fully cooperate so that the examining psychologist can accurately determine the defendant’s competency to stand trial and criminal responsibility at the time of the offense. Here, Hayes’ lack of cooperation prevented a definitive conclusion regarding his criminal responsibil ity. When, as here, the integrity of the evidence of insanity is threatened, the preclusion sanction is warranted.
We therefore hold that MCL 768.20a(4); MSA 28.1043(1)(4) does not unconstitutionally infringe on a defendant’s right to present a defense. We reject the approaches taken in Davis and Fendler, as unworkable in the present context. The preclusion sanction of the statute is an appropriate means of protecting the integrity, accuracy, and credibility of evidence of insanity.
IV
Defendant also argues that the statute is unconstitutionally vague. The appropriate test to be applied to this issue was enunciated in Woll v Attorney General, 409 Mich 500, 533; 297 NW2d 578 (1980):
"A statute may be challenged for vagueness on the grounds that it
" — is overbroad, impinging on First Amendment freedoms, or
" — does not provide fair notice of the conduct proscribed, or
" — is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed.”
See People v Howell, 396 Mich 16, 20, fn 4; 238 NW2d 148 (1976), citing Grayned v City of Rockford, 408 US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972).
Since the defendant does not assert that his First Amendment rights were violated, the first ground in Woll is inapplicable.
We do not read MCL 768.20a(4); MSA 28.1043(1)(4) in a vacuum, but look to the entire text of the statute to determine whether the requisite certainty exists. See Winters v New York, 333 US 507, 518; 68 S Ct 665; 92 L Ed 840 (1947); Joslin v Campbell, Wyant & Cannon Foundry Co, 359 Mich 420, 426; 102 NW2d 584 (1960). Whenever possible, courts should construe statutes in such a manner as to render them constitutional. Bohn Lumber Products Co v Michigan Public Service Comm, 317 Mich 174, 184; 26 NW2d 875 (1947). For the reasons set forth below, we hold that MCL 768.20a(4); MSA 28.1043(1)(4) is not unconstitutionally vague.
A
The statute provides fair notice of the conduct proscribed. We find that the statute gives a person of ordinary intelligence "a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned, supra. Here, the "conduct proscribed” is conduct that interferes with the appointed psychologist’s ability to perform a statutorily mandated duty. MCL 768.20a(6); MSA 28.1043(1)(6) requires the psychologist to render a professional opinion regarding a defendant’s sanity at the time the alleged offense was committed. MCL 768.20a(4); MSA 28.1043(1)(4) quite clearly informs the defendant that non-cooperation will bar the defendant’s attempt to present evidence of insanity.
By choosing to assert this defense, a defendant elects to undergo the requisite psychiatric examination. The necessity of full cooperation logically follows from such an election, and it is not at all unreasonable to charge a defendant with notice of such a requirement.
It is apparent from the record before us that Hayes had fair notice of the proscribed conduct. Dr. Stock informed Hayes that the failure to cooperate would bar evidence of an insanity defense. The trial court admonished Hayes on each occasion before sending him back for further evaluation. Although the defendant stated that he was cooperating to the extent of his ability, the trial court had "no doubt” that defendant’s non-cooperation was voluntary.
We agree with the Court of Appeals that one of the relevant circumstances is whether a defendant’s non-cooperation is in fact caused by mental illness. We can think of certain situations where the failure to cooperate truly will be a result of insanity or mental illness. In those situations, our reasoning that the decision to assert the defense is made with the understanding that cooperation is required does not follow. The statute protects defendants in those situations, by requiring an independent hearing solely to determine whether the defendant fully cooperated. However, such is not the situation before us. This record demonstrates that Hayes’ non-cooperation was selective and voluntary.
Under these circumstances, we find that Hayes had fair notice of the conduct proscribed. In this case, such conduct included defendant’s refusal to submit to psychological testing, and to answer questions regarding his mental state prior to his wife’s death. We note, however, that the statute requires the non-cooperation to be established to the trial court’s satisfaction at a hearing prior to trial. Therefore, what specific conduct is prohibited must be determined on a case-by-case basis.
B
We further find that the statute does not give the trier of fact unstructured and unlimited discretion to determine whether impermissible conduct occurred. Woll, supra. The mere fact that the Legislature left this determination up to the trial court does not necessarily mean that the statute is unconstitutionally vague. Considering the statute as a whole, we think its meaning is clear. The statute requires the full cooperation necessary to allow the psychologist to conduct a proper evaluation and reach an opinion regarding either defendant’s insanity, mental illness, or mental retardation. MCL 768.20a(6); MSA 28.1043(1)(6).
Defendant argues that there is virtually no act of compliance that is beyond attack for being less than fully cooperative. Furthermore, defendant points to a perceived lack of minimal standards or guidelines to govern law enforcement. See Kolender v Lawson, 461 US 352; 103 S Ct 1855; 75 L Ed 2d 903 (1983).
In Kolender, the Court applied the vagueness doctrine to a criminal statute that required persons who loiter on the streets to provide "credible and reliable” identification. The Court held that the statute was unconstitutionally vague because it encouraged arbitrary enforcement by failing to sufficiently describe what a suspect must do to satisfy the statute.
Kolender is distinguishable from the present case. Neither the First Amendment nor the right to freedom of movement is involved here. Furthermore, the dangers of arbitrary law enforcement do not come into play here, since the statute only operates after an accused has been charged with a crime. Unlike the statutes in the cases appellant cites, MCL 768.20a(4); MSA 28.1043(1)(4) has nothing to do with a law enforcement official’s decision to charge a person with a crime.
Defendant asserts that the statute encourages arbitrary enforcement of the preclusion sanction on the basis of the individual whims of the psychologist and trial judge. However, we do not agree that the statute gives unstructured and unlimited discretion to determine the existence of non-cooperation. Instead, the statute allows the trial court to make such a determination on the basis of the psychologist’s written report and testimony, as well as the court’s personal observations. The psychologist is required to submit a detailed analysis, and substantiate any conclusions that the defendant failed to cooperate. Here, both Dr. Stock and the trial judge went to great lengths to assure themselves that the defendant failed to cooperate. The defendant was examined on three separate occasions.
It also should be noted that the Center for Forensic Psychiatry is an independent branch of the state government. Both parties have the option of obtaining an independent psychiatric examination. The statute requires full cooperation at these independent examinations, as well as any occurring at the Center. Thus, the statutory scheme is intended not only to protect and benefit the public, but also to benefit the defendant by providing for a full and fair determination of competency to stand trial and of criminal responsibility.
Under the statute, the trial court’s discretion is sufficiently structured to avoid the constitutional challenge for vagueness.
V
The defendant’s constitutional right to present a defense was not violated. Furthermore, the preclusion sanction of MCL 768.20a(4); MSA 28.1043(1)(4) is not unconstitutionally vague. Defendant’s conviction is affirmed.
Williams, C.J., and Ryan, Brickley, and Boyle, JJ., concurred with Cavanagh, J.
As amended by 1983 PA 42, § 1. The amendment made certain minor changes which do not change the result reached here.
418 Mich 894 (1984).
"Based on the information available to this clinician through clinical interviews and collateral data, this clinician does not feel there is enough clear and convincing evidence to offer an opinion that the defendant was either mentally ill or legally insane on the day of the alleged crime. That is, the defendant refused to cooperate enough in multiple clinical examinations so that this clinician would have an adequate base of information in order to form an opinion supporting exculpability. Therefore, based on the above, it is the opinion of this certified forensic examiner that the defendant, Larry Hayes, was neither mentally ill nor legally insane on the day of the alleged crime and it is recommended that he be adjudicated criminally responsible for his actions.” Forensic Opinion on Criminal Responsibility, May 2, 1979.
We only address here the propriety of the trial court’s application of MCL 768.20a(4); MSA 28.1043(1)(4). We note that we are currently addressing the constitutionality of the guilty but mentally ill verdict. People v Ramsey, 89 Mich App 468; 280 NW2d 565 (1979), Iv gtd 414 Mich 864 (1982).
See footnote 3.
The Court of Appeals opinion stated:
"The term 'cooperate’ has been defined as follows:
" 'to act or work with another or others to a common end: operate jointly ... to act together: produce an effect jointly . . . .’ Webster’s Third New International Dictionary, p 501 (Unabridged, 1970).
"In our judgment, the term 'cooperate’ has a clearly understood meaning. There is nothing vague about the requirement that a Defendant fully cooperate with the request of those conducting the psychiatric evaluation. Under the statute, it is the function of the trial court to determine whether the Defendant has cooperated within the circumstances of a particular case. We note that one of the relevant circumstances is a Defendant’s mental capability to participate in the examination process.”
"Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine 'is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.’ Smith [v Goguen, 415 US 556, 574; 94 S a 1242; 39 L Ed 2d 605 (1974)]. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’ Id., at 575; 94 S Ct, at 1248.
"Section 647(e), as presently drafted and construed by the state courts, contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a 'credible and reliable’ identiñcation. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisBed the statute and must be permitted to go on his way in the absence of probable cause to arrest. An individual, whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets 'only at the whim of any police officer’ who happens to stop that individual under § 647(e). Shuttlesworth v City of Birmingham, 382 US 87, 90; 86 S a 211, 213; 15 L Ed 2d 176 (1965). Our concern here is based upon the 'potential for arbitrarily suppressing First Amendment liberties . . . .’ Id., at 91, 86 S Ct, at 213. In addition, § 647(e) implicates consideration of the constitutional right to freedom of movement. See Kent v Dulles, 357 US 116, 126; 78 S Ct 1113, 1118; 2 L Ed 2d 1204 (1958); Aptheker v Secretary of State, 378 US 500, 505-506; 84 S Ct 1659, 1663-1664; 12 L Ed 2d 992 (1964).” 461 US 357-358. (Emphasis supplied.)
We likewise distinguish Thornhill v Alabama, 310 US 88, 97-98; 60 S Ct 736; 84 L Ed 1093 (1940), and Papachristou v City of Jacksonville, 405 US 156, 170; 92 S Ct 839; 31 L Ed 2d 110 (1972), on similar grounds. | [
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] |
Bird, J.
In September, 1917, plaintiff exchanged his farm of 240 acres at Harrietta at a value of $13,500 for an equity which Jacob Pokojski and wife owned in a 4-family flat situate on Dubois street, in the city of Detroit. Plaintiff took possession of the same in November, 1917. Maryan Jaszczynski and his wife, Maryana, were Pokoj ski’s vendors. About the time that plaintiff made the exchange with Pokojski, Jas zczynski and wife placed their contract with defendant Dusza to secure the payment of $600, which they owed him. After the assignment was made by way of security, plaintiff having no knowledge of it, he paid to Jaszczynski the sum of $322.86 to apply on his contract. After he learned that the contract had been assigned to Dusza he paid him $75 to apply thereon, and Dusza promised to wait for the payment of the $322.86, which was due, until he, plaintiff, could get it back from Jaszczynski. Dusza did not keep his promise but instead, a short time thereafter, he went before a circuit court commissioner and started summary proceedings to put plaintiff out of possession. In this proceeding he secured a judgment of ouster and a statement in the judgment that there was due on the contract the sum of $481.86. It'was shown that this sum included the payment which plaintiff had made to Jaszczynski. Dusza then said to plaintiff move or pay rent. Plaintiff thereafter for a time paid rent as a tenant. When plaintiff learned that defendant Dusza was claiming to own the premises and asserting that plaintiff had no interest in them he consulted counsel and these proceedings were begun to establish his rights and have the judgment before the commissioner vacated.
The record shows that plaintiff is of Polish extraction and is unacquainted with the English language. Defendant is also Polish, but he was not only well versed in English, but was well acquainted with our business methods. The amount of property which plaintiff put into the contract was $11,600. He was proceeding to make his payment of the balance at the rate of $75 per month. The defendant, Dusza, knew these facts, yet he proceeded to pursue a course which, if successful, would wipe out all of plaintiff’s equity in the property and leave him penniless. He did not demand immediate payment from the plaintiff He did not serve any notice of forfeiture of plaintiff’s rights in the premises, but proceeded to take out process from the commissioner’s court, and had it served on plaintiff, and then misrepresented to him as to what it was done for. Plaintiff went before the commissioner as commanded, but he did not understand the proceedings. He says he was told by Dusza that it involved the question of commissions. He was not represented by counsel. Dusza testified that he was the owner of the property and that plaintiff was in default in his payments. This enabled him to obtain judgment as there was no defense.
The chancellor found as a fact that Dusza was not the owner of the premises, that he simply held a contract as security for the payment of $600 which Jaszczynski owed him. The chancellor also found that the judgment of restitution and the statement of the amount due upon the contract were obtained' by the fraud of defendant and accordingly set them aside. He further found that Dusza forced plaintiff, by his fraudulent' methods, to become his tenant. We are in accord with the conclusions reached by the chancellor. The record is very persuasive that defendant undertook to, and did, take an unconscionable advantage of one of his ignorant countrymen who was unacquainted with our language and our methods of transacting business, the result of which was to extinguish his entire interest in a property for which he had recently paid upwards of $11,000. Unless counsel can agree upon the state o'f the account, the case will be remanded for further proofs.
The decree is affirmed.
Fellows, C. J., and Wiest, Clark, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Moore, J.
Each of the plaintiffs sued the defendant. The cases were tried together. From a directed verdict in favor of the defendant the case is brought here by writ of error. On November 11, 1918 (Armistice day), the two plaintiffs were proceeding north in a Packard truck operated by one Parker on Lincoln avenue, Detroit. Before the truck approached the intersection of Forest avenue where defendant operates a single track west-bound street railway, one of defendant’s cars passed. At that time Mr. Parker slowed down the truck to about 5 to 7 miles per hour and proceeded towards the intersection. A house on the southeast corner of the intersection obstructed the view to the east. At about 25 feet from, the track one can see easterly on defendant’s track a distance of about 175 feet. It is claimed that after the house was passed Mr. Parker looked east and saw defendant’s second car coming at a high rate of speed, the first car having passed on; that the front of the truck extended in front of Mr. Parker a distance of 6 feet and when he saw the second car for the first time, the front of the truck was about 19 feet from the track; that the truck could have been stopped in about 18 to 20 feet, going at the speed and under the conditions of that day; that if Mr. Parker stopped the truck, the front of it would be on defendant’s track or be struck by the over-hang of the car, which is 1% feet; to avoid which he turned westerly on Forest avenue, applied more speed to the truck and attempted to run down the track ahead of the car, thinking that if defendant slowed down or stopped the car he would reach a place of safety; that defendant’s car did not stop nor slow down but continued at high speed and struck the truck on the side at the westerly curb line of Lincoln avenue.
It is the claim of the defendant that the street car was under control, that the truck as it approached the intersection was going as fast or faster than the street car, and that, instead of the street car' running into the truck, the truck ran into the street car. There were witnesses who sustained this contention. As a result of the impact the two plaintiffs were thrown out of the truck and sustained many fractured bones and other serious injuries. After all the evidence was in the court directed a verdict for defendant on the ground that Mr. Parker, the driver of the truck, was guilty of contributory negligence, and that the doctrine of gross negligence or “last clear chance” did not apply to the case, citing the case of Miller v. Railway, 200 Mich. 388.
A verdict having been directed in favor of the defendant the court must consider the evidence in the most favorable' view possible upon the question of whether an issue was presented for the jury. Krouse v. Railway Co., 215 Mich. 139.
Counsel say:
“But assuming, but not conceding, for the sake of argument, that the plaintiffs’ evidence showed them guilty of negligence in the first instance, we submit that the question of defendant’s gross negligence should have been submitted to the jury under proper instructions.
“Plaintiffs’ evidence, and in fact all of the evidence, presented this, issue for the jury, viz.: Was defendant guilty of gross negligence in failing to stop or slow down its car after plaintiffs’ position of peril was,' or in the exercise of due care should have been discovered by defendant’s motorman? The motorman was negligent in not stopping or slowing down the speed of the car.”
It goes without saying that the motorman could not see the truck until it had arrived at a position where the driver of the truck could see the car. We think there is no room for the application of the subsequent negligence doctrine in this case. There is no proof that the perilous position of the truck was known or ought to have been known to the motorman for such a time previously that he could have stopped his car and avoided the accident.
In Champaign v. Railway, 181 Mich. 672, this court said:
“The rule of discovered negligence can have no application here. This turn upon the track was made when the car was less than 30 feet away. As soon as an intention to cross was first made apparent, the motorman did everything possible to give warning, stop the car, and avoid the accident.”
In Fritz v. Railway Co., 105 Mich. 54, it was said:
“This rule has been applied by this court in street railway cases. * * * In each of these cases the situation of plaintiff was such that it was apparent to the motorman that, if the car continued in its course, a collision would be inevitable, and this was apparent to him for a considerable time before the collision. Do these cases necessarily rule the present? “In this case it is apparent that the collision was of a sudden. The motorman did not see in advance that the plaintiff was about to cross the track, nor until a very few seconds before the collision actually occurred.”
See, also, Knickerbocker v. Railway Co., 167 Mich. 596; Putt v. Railway Co., 171 Mich. 216; Buxton v. Ainsworth, 138 Mich 532 (5 Ann. Cas. 146).
The case then must turn upon the question of whether Mr. Parker, the driver of the truck, was guilty of negligence as a matter of law. Mr. Parker, the driver of the car, testified that after the first car passed he slowed down to 7 miles an hour, that a house on the southeast corner of the intersection cut off his view so that he could not look up the track in the direction from which the cars came until he got within 25 feet of the track, that he was 6 feet back of the front of the truck, that the overhang of the street car was 1½ feet and that he saw he could not stop the truck before it would reach the track, and for the purpose of avoiding the collision turned to the left hoping to run ahead of the car, and that he had hardly started to turn before the collision occurred.
On the cross-examination he said in part:
“Q. I say, you knew if he did not slacken, you could not go across?
“A. I couldn’t tell whether I could or not.
“Q. If you had stopped when you first saw the car, you would have had five feet to spare?
“A. I would have stopped on the track in front of the car. If I had approached that track at the rate of 4 miles an hour, I could have stopped the truck in 12 feet, I should think. If I approached it at 3 miles an hour, I could have stopped the truck. I couldn’t say exactly, 6 or 7 feet.
“Q. Then, it was the speed that you were approaching the track that caused you not to be able to stop within 20 feet wasn’t it?
“A. Speed at 7 miles an hour?
“Q. You say yourself if you had been going 3 or 4 miles an hour you could have stopped in 12 feet, 8 feet to 12 feet?
“A. Yes.
“Q. But you were going at such a speed when you got out from behind that building and you saw the street car, that you could not stop without going upon the track?
“A. Well, I don’t know for sure whether I could stop or not. You see, I figured if I had stopped, I would have been right in front of the car.
“Q. Then you knew if you figured you would be right in front of the track, if you did stop, you knew well that it would not do for you to go' straight ahead?
“A. Unless I swung so that if he did hit me, he would hit me in the back of the truck.
“Q. When you got out from behind that building and saw things the way they were, saw the street car coming, you knew that you could not stop if you went straight ahead until you got on the track?
“A. I figured I couldn’t stop in time, that’s all. I figured that he could slow up. So I made a turn to the west, diagonally to the northwest.”
The other testimony of the plaintiffs was to the effect that after the driver of the truck reached a point where he could see a street car approaching the intersection of Forest avenue and Lincoln avenue, he could not stop the truck before it would reach the street car track.
The case is unlike Calvert v. Railway, 202 Mich. 311; Reichle v. Railway, 203 Mich. 276; and other cases cited by counsel for appellants as will appear by an examination of those cases.
The instant case is more like a line of cases, examples of which are Donlin v. Railway, 198 Mich. 330; Colborne v. Railway, 177 Mich. 139; Miller v. Railway, 200 Mich. 388, and the cases cited therein.
The judgment is affirmed, with costs to the appellee.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred.
The late Justice STONE took no part in this decision. | [
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Fellows, C. J.
Plaintiff by this proceeding in the nature of quoi warranto seeks to have determined the validity of an election held on July 14, 1921, and purporting to be held under the provisions of Act No. 226, Pub. Acts 1917, as amended, and by which election the rural agricultural district of Swartz Creek, made up of five districts in Genesee county, was established. Defendants are the trustees of said school district. Plaintiff does not claim to be entitled to such office. He does not allege in his petition that he is a taxpayer or resident of the district, although no point seems to be made of this omission. The trial judge sustained the contention of defendants’ counsel that the proceedings were not maintainable against the individual defendants, that the petition should be filed against the municipality, and, more than 30 days having elapsed after the election, declined to permit an amendment to the petition making the municipality a party. Judgment was thereupon entered dismissing the petition.
The legislature in passing the judicature act (Act No. 314, Pub. Acts 1915) collected with some modifications the provisions having reference to in-formations in the nature of quo warranto in chapter 38 of the act. To the then existing provisions three sections were added; they are sections 28, 29 and 30 of this chapter (3 Comp. Laws 1915, §§ 13551, 13552 and 13553) and are as follows:
“SECTION' 28. A petition may be filed in the circuit court of any county of this State whenever it shall be made to appear that material fraud or error has been committed at any election in such county at which There shall have been submitted any constitutional amendment, question, or proposition to the electors of the State or any county, township or municipality Thereof.
“Sec. 29. Such petition shall be filed within thirty days after such election by the attorney general or the prosecuting attorney of the proper county on his own relation, or on the relation of any citizen of said county without leave of the court, or by any citizen of the county by special leave of the court or a judge thereof. Such petition shall be filed against the municipality wherein such fraud or error is alleged to have been committed.
“SEC. 30. After the filing of such petition the procedure shall conform as near as may be to that provided by law for informations in the nature of quo warranto.”
The legislature by adopting these three sections, evidently intended a change in the practice; otherwise nothing was accomplished. A reading of these new sections clearly evidences, we think, this legislative intent: That where it is claimed there was fraud or there was error, invalidity, in an election at which any constitutional amendment, question or proposition has been voted upon, the proceedings to test the election must be against the municipality affected by the proceedings and must be brought within 30 days after the election. The purpose of the change is clearly apparent; the municipality to be affected by the proceedings should have an opportunity to be heard, and public policy requires that there should be a speedy determination of the validity of the election before engagements are entered into by such municipality. We repeat what has heretofore been adverted to, that this is not a contest between rival claimants to an office; plaintiff makes no claim that he is entitled to the office held by any of the defendants; his claim being that they are not entitled to hold such offices because the proceedings by which the municipal corporation was established are erroneous and invalid. To assail such proceedings he must do so in the manner pointed out by the statute.
Nor do we think the court erred in refusing plaintiff leave to amend by making the municipality a party. The application for leave to amend was made at the hearing and more than 30 days after the election. To have permitted the amendment would have allowed plaintiff to do by indirection what the statute inhibited him from doing directly.
The judgment will be affirmed.
Wiest, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Steere, J.
On March 12, 1917, the city of Detroit through its board of health leased from plaintiff a building known as the Irwin apartments, to be used as nurses’ quarters for the period of one year thereafter at an annual rental of $14,400 payable monthly in advance, or at the rate of $1,200 per month. An epidemic of scarlet fever was then prevalent in the city of Detroit, resulting in an overcrowded city hospital near by not having capacity to accommodate its nurses and the building was secured to house them. The lease contained in customary form a provision that the city of Detroit would at its own expense during the continuance of the lease “keep the said premises and every part thereof in as good repair and at the expiration of said term yield and deliver up the same in like condition as when taken, reasonable use and wear thereof and damage by the elements excepted.” Having occupied the building for the purpose stated during the year the lease ran the city vacated the premises at the end of the term and delivered the same over to plaintiff. He claimed that after the place was surrendered an examination of its condition disclosed serious unrepaired damage done to the building during the city’s tenancy, for which it was liable under its covenant to keep and return the premises in good repair as when taken, etc. Claiming it would require an expenditure of over $2,000 to place the building in as good repair as when taken over by the city, he presented his claim to the board of health therefor. After investigation and inspection, of the building the board refused to recognize his demand except as to a few minor items.
On October 25,1918, plaintiff commenced this action against the city to recover the amount of his claimed damages, filing and serving upon defendant’s counsel a bill of particulars amounting to $2,287.30, which included a month’s rent of $1,200 to cover the time the building was idle while undergoing necessary repairs. His declaration was upon the common counts in assumpsit with a special count covering defendant’s claimed violation of its lease in the particular related.
Defendant first pleaded the general issue, and thereafter by amended plea gave special notice of defense under its charter as follows:
“That the claim of this plaintiff was never áudited, allowed or rejected by the common council of the city of Detroit as provided in said charter. That the affidavit .attached to the petition filed with the common council of the city of Detroit was not in accordance with the charter of said city; that the petition filed with the said common council sets forth the sum of $2,175.37, whereas the bill of particulars in above entitled cause sets forth the sum of $2,287.30, and in the declaration filed herein this plaintiff is asking damages in the sum of $5,000; that the said claim of $2,287.30 nor the $5,000 above set forth were never presented to the common council for audit and allowance as prescribed by the city charter.”
The city charter in force at the time of this lease provides as follows:
“The common council shall audit and allow all accounts chargeable against the city, but no unliquidated account, or claim, or contract shall be received for audit or allowance unless it be accompanied with an affidavit of the person rendering it, to the effect that he verily believes that the services or property therein charged have been actually performed or delivered, for the city, that the sums charged therefor are reasonable and just, and that, to the best of his knowledge and belief, no set-off exists, nor payment has been made on account thereof, except such as arc-included or referred to in such account or claim. It shall be a sufficient bar and answer to any action or proceeding in any court for the collection of any demand or claim against said city, that it has never been presented to the common council for audit or allowance, or if on contract, that it was presented without said affidavit and rejected for that reason or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it."
Plaintiff’s declaration contained no allegation that the above condition precedent had been complied with and he offered no testimony to that effect during the trial. At the conclusion of plaintiff’s testimony defendant’s counsel moved for a directed, verdict on the ground among others that plaintiff’s claim had never been properly presented or audited, as indicated in defendant’s notice under the plea of the general issue. The motion was denied and renewed again at the close of all the testimony, with added requests to charge fully covering plaintiff’s failure in pleadings and proofs to comply with the charter requirements quoted, which were refused. Plaintiff recovered a verdict with judgment thereon for $2,000.
The question raised and argued in counsel’s briefs is whether plaintiff’s action should fail because his claim was neither alleged in his declaration or shown by his proofs to have been presented to the common council of the city of Detroit for audit, etc., as the charter requires. That during the entire trial of this case plaintiff’s pleadings and proofs were silent as to and entirely ignored the quoted provisions of the charter is beyond denial on the record before us, but plaintiff’s counsel points to defendant’s special notice under its plea of the general issue and asserts that by it defendant admits the claim was presented to the common council, accompanied by an affidavit of the claimant, and that
—“the claim was never rejected for the reason that it was presented without an affidavit, or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it.”
The following singular statement, in view of the record, is also made in plaintiff’s brief:
“On the 31st day of July, 1918, a petition was filed with the clerk of the common council asking for damages sustained to the building through the occupancy of the board of health, a copy of said petition being served upon the corporation counsel and a copy also mailed to the secretary of the board of health. From that date on, there was no action taken by the common council in the way of allowance or rejection of the claim. Therefore upon the 25th day of October, 1918, this suit was started in the circuit court for the county of Wayne.”
No copy of the petition or affidavit appears in this record or is shown to have been offered in evidence or produced on the trial. Accepting as true the above quoted statements in plaintiff’s brief (off the record except as appears in defendant’s special notice) it can only be suggested that if those facts were alleged in the declaration and sustained by proof upon the trial they might materially alter the aspect of the case.
It is first contended for plaintiff that the infirmity in the declaration claimed by defendant being apparent on the face of the pleading it should have been raised by demurrer; that it was not only waived by pleading the general issue, but not having given special notice of the ground of objection until long after, nor raised the question during the trial until plaintiff rested, it comes too late to be entertained.
In City of Detroit v. Paving Co., 38 Mich. 358, a like provision of the city charter was before the court. Holding that to present a claim against the city to its common council for audit and allowance as required by its charter was a prerequisite to an action for its recovery, the court said in comments sustaining that view:
“The statute designs, as far as possible, to avoid the bringing of lawsuits, and to require an attempt to settle as a condition precedent to suing. It does not require any plea to be put in asserting that the claim was never presented, and inasmuch as the plaintiff must always know whether or not this was done, he cannot need to be informed of it by notice.”
In Springer v. City of Detroit, 102 Mich. 300, the question was again before the court on a like provision of the charter. The declaration failed to allege the claim, had been presented to the common council. In that case defendant’s counsel nevertheless did under his plea of the general issue give notice that he would insist in its defense upon the trial “that plaintiff’s claim was never presented to the common council of Detroit for audit and allowance as required by its charter.” On the trial he early objected to plaintiff’s evidence on that ground which was overruled, and at the close of the testimony he requested a directed verdict in defendant’s behalf because it had not been shown that statutory requirement had been complied with, which was denied. Plaintiff had judgment and on review after discussing questions not material here it was said of this objection, “our own court has settled this in favor of the contention made by defendant,” and the judgment was reversed.
In Selden v. Village of St. Johns, 114 Mich. 698, the question arose under a similar provision of the statute as to villages. An inadequate attempt was made to comply with the statute by serving notice in writing upon the village clerk. The original record also shows an allegation in the declaration that a verified paper in writing stating the nature of plaintiff’s claim and that he intended to “hold the village of St. Johns liable for such damages” was served upon the clerk. Defendant’s counsel filed only a plea of the general issue. When plaintiff sought to. prove the allegation in his declaration and offered the notice filed with the village clerk defendant’s counsel said he had “no objection to its going in evidence now but might have some objections to offer later.” At the close of plaintiff’s testimony he moved for a directed verdict on the ground that the statutory prerequisite had not been complied with, which the court overruled and plaintiff had judgment. On review in this court plaintiff’s counsel claimed, as is claimed here, that the objection came too late and was waived upon the trial. It is said in the opinion:
“One ruling was sufficient, and it was not necessary for the defendant to again raise the point.”
The judgment was reversed for the reason that plaintiff had failed to show compliance with the statutory prerequisite.
The only disturbing element in this case, because novel, is defendant’s notice of special defense garnished with the admission of an “affidavit attached to the petition filed with the common council,” the saving grace of which is, however, that the notice asserts it “was not in accordance with the charter of said city.” Counsel for defendant impute this special notice to the provision in Circuit Court Rule No. 23 which requires special notice to be given of an affirmative defense. To contend that plaintiff has failed to make out a'case is not an affirmative defense.
Previous decisions make plain that the burden of proof rests upon plaintiff in an action against a municipality to show compliance with such charter or statutory prerequisites as are under consideration here before recovery can- be had. A superfluous special notice admitting that a petition with affidavit attached was filed with the common council but charging it was not in accordance with requirements of the charter is not an admission that the mandatory provision of the charter had been complied with.
For the foregoing reasons the judgment is reversed, with costs to defendant, and the case remanded for such further proceedings as the trial court may determine in harmony with this opinion.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Moore, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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] |
Sharpe, J.
The plaintiff, a real estate dealer in Detroit, visited the automobile show in that city in January, 1918. He there saw an Abbott touring car, specially painted, in the exhibit of the defendant, who was distributor of that make of car, then manufactured in Cleveland. Plaintiff concluded to purchase the car, if he could turn in an old Studebaker car he had as a part of the purchase price. He claims his attention was called to some spots of mud on the bottom of the car and that he said to Mr. Stuber, with whom he was negotiating, “That is not a second-hand car, is it?” and Mr. Stuber answered, “Why, no; don’t think for a minute that we should put in a second-hand car when we could sell one that is new. * * * It is dirty on account of it having been driven from Cleveland to Detroit, and we were late and didn’t have time to wash it up good. That is the way the mud is under there now.” Plaintiff testified that he “relied upon his statement that it was a new car.” The deal was consummated, the defendant accepting plaintiff’s car at a valuation of $650, plaintiff making an additional down payment of $100 and executing 10 notes, payable monthly, for the balance of the purchase price of $1,695. These notes were turned over to the Metropolitan Security Company of Cleveland, with the chattel mortgage on the car securing them. The plaintiff paid four of them, when he discovered, as he claims, that the car he had got had been theretofore used. After satisfying himself of this fact, he went to Mr. Stuber’s office and told him,
“ T have an old car and I don’t want your old car. I paid the price for a new car and I would rather have my money back. I don’t want to pay that money for an old car.’ He says: ‘What are you talking about? I sold you a new car, and this is a new car.’ I said, ‘You stand on what you said?’ and he said ‘Absolutely.’ ”
Leo N. Orton, who accompanied plaintiff, testified as to what was then said:
“Mr. Kawecki said, ‘You sold me a second-hand car. I did not pay you money for a second-hand car, I don’t want that car, I want the money back and the car is in my garage and you can get it.’ And Mr. Stuber wanted to laugh, and he said, ‘I sold you a new car and not a second-hand one. I know nothing about it, about the foolish talk you are talking about.’ And Mr. Kawecki was excited and walked out and we were not there only about five or six minutes.”
Mr. Stuber testified as to this conversation:
“I don’t recollect in detail the conversation had with him on that occasion. My recollection is that he came into the office and claimed that he had discovered he had a car that had been used. I don’t remember, and I don’t believe he ever made a demand. He just made a statement or claim and walked right out again. I don’t think he came in more than a minute or so.”
And further:
“Q. Do you deny that he said that he wanted the car — he wanted you to take the car back and you could have the car?
“A. No.
“Q. And he wanted his money back?
“A. No, I will not deny it.”
The plaintiff soon after began suit to recover the amount paid by him and the value of his old car, and had verdict and judgment for $1,401.88. After suit was begun, the car in question was taken and disposed of by the security company under its chattel mortgage. The defendant insisted that the car sold plaintiff was a'new car. This issue was fairly presented to the jury, who found with plaintiff.
The first error discussed by counsel was the denial of defendant’s motion for a directed verdict because no sufficient tender back was made to entitle plaintiff to rescind. Defendant’s counsel insists that in order for plaintiff to rescind he must have returned or offered to return the car within a reasonable time and in substantially as good condition as it was when delivered to him, unless the deterioration or injury is due to the breach of warranty complained of. We think this a fair statement of the rule of law governing rescission in such cases as laid down by section 69 of our uniform sales act (3 Comp. Laws 1915, § 11900) and the authorities construing it. The applicable subdivisions of section 69 are:
“(1) Where there is a breach of warranty by the seller, the buyer may, at his election: * * *
“(d) Rescind the contract to sell or the sale, and refuse to receive the goods, or if the goods have already been received, return them or offer to return them to the seller and recover the price or any part thereof which has been paid. * * *
“ (4) Where the buyer is entitled to rescind the sale and elects to do so, the buyer shall cease to be liable for the price upon returning or offering to return the goods. If the price or any part thereof has already been paid, the seller shall be liable to repay so much thereof as has been paid, concurrently with the return of the goods, or immediately after an offer to return the goods in exchange for repayment of the price.”
The question is whether plaintiff’s proofs show a compliance therewith. We think the testimony heretofore quoted, which is substantially all that was said about it, fairly establishes the fact that plaintiff as soon as he was satisfied that the car delivered to him was a used car, offered to return the car and demanded the payment of what he had paid on the purchase price. In view of the defendant’s insistence that the car was as represented and his statement—
“I sold you a new car and not a second-hand one. I know nothing about it, about the foolish talk you are talking about”—
we think the jury might well have found that the physical tender back of the car would have been an idle ceremony. The rule is thus stated in 24 R. C. L. p. 293:
“If he would rescind the contract, he must return or tender back the goods to the seller at the place of delivery, unless on making the offer so to do he is relieved of the obligation by a refusal to receive them if tendered. An offer to return, where it is refused, answers the same purpose as an actual return, provided the property is retained for the benefit of the seller whenever he may choose to receive it.”
No claim is made by Mr. Stuber that he would have accepted the car had it been offered to him at his place of business. The declaration of Mr. Stuber may well be treated as a refusal to receive the car if tendered. 35 Cyc. p. 150. While the plaintiff had used the car for some time, there is no evidence tending to show that he misused it. The deterioration in its value was due to such use, and its use by plaintiff was due, under his claim, to the fraudulent action of the defendant in selling him a used car for a new one. We think the offer to return was timely. Gridley v. Tobacco Co., 71 Mich. 528, 533.
Defendant sought to show what the car in question was worth to the plaintiff in his business. The refusal of such offer was based on the failure of defendant to give notice of set-off. This action is not brought to recover damages due to a breach of the contract. The plaintiff, by rescission, treats the contract as terminated and sues to recover what he has paid defendant and for which he has received no consideration. While plaintiff had used the car for some time, it also appears that he had been compelled to expend a considerable sum in its repair. The plea was the general issue. We think plaintiffs counsel are right in their contention that when attention was called to the plea by the trial court defendant’s counsel abandoned such claim.
Error is assigned upon the court’s instruction as to the measure of. damages. Under it the jury were permitted to allow plaintiff the amount he had paid on the Abbott car and the price agreed upon as the value of the Studebaker car. The rules and authorities governing an action for damages for breach of warranty have no application here. By reason of the fraud practiced on plaintiff, as found by the jury, he rescinded the contract. The damages to which he was entitled are fixed by subdivision 4 of section 69, above quoted, as the amount which he had already paid on the contract. This was the rule before the adoption of this statute. Barker v. Cleveland, 19 Mich. 229, 236.
Defendant further insists that the price at which the Studebaker car was taken was but a trading value and' not conclusive evidence of its real value and that they should have been permitted to show its actual value. We find no offer to make such proof in the record.
Complaint is made of the “prejudicial remarks of the court.” We think counsel too critical in this claim of error. Without cumbering this opinion with a lengthy quotation of the ruling of the court and the colloquy with counsel relied on to support it, we are of the opinion that no prejudicial error resulted therefrom.
The charge of the court is said to have been “inconsistent, ambiguous, prejudicial to the defendant and misleading to the jury.” We have read the instructions with care and are not so impressed. The court specially pointed out that the two questions for the jury to determine were, first, whether the car was a new or used one, and, second, whether the plaintiff offered to return it within a reasonable time. On the record as made, these were the determinative questions and we think the jury must have so understood and determined them in plaintiff’s favor in reaching their verdict.
The other assignment discussed does not, in our opinion, merit consideration.
The judgment is affirmed.
Fellows, C. J., and Wiest, Clark, Bird, Moore, and Steers, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Sharpe, J.
There is but one question presented on this record which we find it necessary to consider. May an insurance company, carrying the risk for an employer, operating under the provisions of the workmen’s compensation act (2 Comp. Laws 1915, § 5423 et seq.), bring suit in its own name against a third party, claimed to be a wrongdoer causing the injury, for the amount paid the employee as compensation under the act? Section 5463 reads as follows:
“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person.”
This section confers a right of recovery on the employer. It provides that he “may enforce for his benefit or for that of the insurance company carrying such risk” the liability of the wrongdoer to the employee. No assignment is necessary. The statute confers the right by way of subrogation. Such right, however, is conferred upon the employer only, though it may be exercised for his own benefit or for that of the insurance company carrying his risk.
Plaintiff’s counsel in his brief concedes that an action brought in the name of the insurance company could not have been maintained prior to the enactment of the judicature act. Section 2 of chapter 12 of that act (3 Comp. Laws 1915, § 12353) reads as follows:
“Every action shall be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the action is brought: Provided, That any person to whom a cause- of action shall accrue upon the bond of any public officer, required to give bond to the people of this State, may prosecute a suit for recovery on said bond in his own name: Provided further, That actions upon any bond, contract or undertaking lawfully made with any officer of this State, or of any county, township, school district, city or village, or to enforce any liability or any duty enjoined by law to said officer, shall be brought in the corporate name of the body for whose benefit such contract was made, or such liability or duty enjoined.”
Under the former statute (3 Comp. Laws 1897, § 10054) the assignee of a chose in action might, at his option, bring suit in his own name or in that of his assignor, except that in the case of negotiable instruments assigned without indorsement the assignee must sue in the name of his assignor. Under the present statute this exception no longer exists. Besides, what was formerly permissive is now mandatory. All suits must be prosecuted in the name of •¿he real party in interest.
The question presented is whether section 12353 modifies section 5468. The workmen’s compensation act is special legislation, enacted for a specific purpose. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8. Under it an employer is compelled to pay compensation to an injured employee when not otherwise legally liable to do so. His obligation is statutory ' and contractual in its nature. The act becomes operative only in case both employer and employee elect to come under its provisions.
It is a general rule that special legislation is not affected by a later statute of general application unless the legislative intent is clearly apparent. People v. Wenzel, 105 Mich. 70; Maclam v. City of Marquette, 148 Mich. 480; Edwards v. Auditor General, 161 Mich. 639; Boos v. Scudder, 163 Mich. 678; Hopkins v. Sanders, 172 Mich. 227; Port Huron Engine, etc., Co. v. Port Huron Township, 191 Mich. 590.
In 36 Cyc. p. 1092, it is said:
“A special act providing a special or summary mode of procedure in a particular casei is not affected by a subsequent general act relating to procedure, unless there is found in the subsequent act a direct indication of an intent to repeal such special act.”
Section 5468 is found in part 3 of the act, which deals with' “procedure” under it. We feel constrained to hold that this provision of the judicature act, it being a statute of general application, and in no way referring to section 5468, should not be held to be amendatory thereof or to enlarge the rights conferred thereby.
It follows that! the verdict for defendant was properly directed and the judgment entered thereon is affirmed, without prejudice.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Moore, and Steeee, JJ., concurred.
constitutionality of workmen’s compensation and industrial insurance statutes, see notes in 34 L. R. A. (N. S.) 162; 37 L. R. A. (N. S.) 466; L. R. A. 1916A, 409; L. R. A. 1917D, 51. | [
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Per Curiam.
Plaintiff appeals as of right from a March 18, 1985, order of the Macomb Circuit Court granting defendant Community Hospital Foundation’s summary-judgment motion as to all claims of vicarious liability for the actions or omissions of codefendants Dr. Merle Haney, M.D., and Dr. Merle Haney, M.D., P.C. We affirm.
On August 9, 1979, at approximately 9:00 a.m., plaintiff went to Almont Community Hospital, owned and operated by defendant, seeking treatment for a severe stomach ache. Plaintiff had not experienced this type of pain or received any treatment for this problem prior to August 9, 1979. Plaintiff did not call his physician, codefendant Dr. Haney, before going to the hospital.
Upon arrival at the emergency room, plaintiff was examined by Dr. Vivas, the emergency room physician on duty, who diagnosed a possible urethral stone blocking the tube connecting the kidney to the bladder and gave plaintiff a pain medication. Following defendant’s bylaws, Dr. Vivas requested consultation with an Almont staff physician. As an emergency room physician, Dr. Vivas did not have admitting privileges and therefore consulted with Dr. Haney, who authorized plaintiffs admission to the hospital.
Following several diagnostic tests, Dr. Haney performed exploratory abdominal surgery on August 14, 1979. A tumor was found in plaintiffs right pelvis. Despite the desire of his assistant, Dr. Chalela, to conduct a biopsy of the tumor before its surgical removal, Dr. Haney chose to exercise the whole tumor without biopsy. Postoperatively, plaintiff complained of pain, numbness and tingling in his left leg. These symptoms persisted for the next three days during which time his leg became cooler and the pulse when felt from the leg became weaker.
On August 17, 1979, plaintiff was transferred to William Beaumont Hospital in Royal Oak for an urgent arteriogram. This study revealed that plaintiffs left external iliac artery (main artery from pelvis to left leg) was totally occluded. Because this artery is the major blood source for the leg, emergency surgery was performed to restore the leg’s blood circulation. A ligature or suture tie was found on the external iliac artery, which had been allegedly severed by Dr. Haney, who made no attempt to reconnect the leg’s blood supply.
At Beaumont Hospital, a physician placed a plastic arterial graft, restoring the circulation and saving plaintiffs left leg. However, because his leg was without adequate blood supply for approximately three days, plaintiff has suffered irreversible nerve damage, which he claims has caused his total disability. The tumor removed from plaintiffs pelvis proved to be a malignant seminoma, a metastasis from a testicular tumor. Plaintiffs expert, Dr. Robert Baker, claims that the recognized treatment for such a tumor is radiation, not surgery.
On May 20, 1981, plaintiff filed a complaint against defendant, codefendants Dr. Haney, M.D., Dr. Haney, M.D., P.C. and Dr. Chalela. Plaintiff alleged that all defendants committed acts of negligence. Dr. Chalela was voluntarily dismissed by plaintiff on April 7, 1983. On January 4, 1984, plaintiff was granted leave to amend his complaint naming plaintiffs wife, Cathleen, as a party and alleging that defendant, Community Hospital Foundation, was vicariously liable for the acts or omissions of its agent, Dr. Haney. Subsequently, Cathleen Sasseen’s loss of consortium claim was dismissed because she was not married to plaintiff at the time of the alleged malpractice.
On February 1, 1985, defendant moved for summary judgment on the ground that there is no genuine issue of material fact regarding the independent contractor relationship between Dr. Haney and defendant and the preexisting physician-patient relationship between Dr. Haney and plaintiff. On March 18, 1985, the trial judge granted partial summary judgment in defendant’s favor as to all of plaintiff’s claims of vicarious liability. On May 8, 1985, the court entered final judgment following the parties’ settlement and stipulation to the dismissal of plaintiff’s remaining "direct liability” claims against defendant.
The parties’ briefs raise a single issue on appeal, viz.: whether the trial court erroneously granted summary judgment, pursuant to GCR 1963, 117.2(3), in favor of defendant hospital on the issue of vicarious liability for the negligent actions of codefendant Dr. Haney. Plaintiff contends that at least some of the facts show that Dr. Haney was defendant hospital’s employee or ostensible agent, and therefore the question of agency should go to the jury. Defendant hospital argues that, although Dr. Haney had not previously treated plaintiff for the same complaint, the prior long-established independent physician-patient relationship in itself precludes any finding that Dr. Haney was an employee.
A motion for summary judgment based on the absence of any genuine issue of material fact tests whether there is factual support for the claim. Feldman v Green, 138 Mich App 360, 367; 360 NW2d 881 (1984), lv den 422 Mich 961 (1985); GCR 1963, 117.2(3), now MCR 2.116(0(10). The court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Rizzo v Kretschmer, 389 Mich 363, 374; 207 NW2d 316 (1973); Feldman, supra.
Before granting summary judgment, the court must give the benefit of every doubt to the party opposing the motion and must be satisfied that it is impossible for the claim to be supported at trial because of some deficiency which cannot be overcome. Jackson Dist Library v Jackson Co #1, 146 Mich App 392, 400; 380 NW2d 112 (1985). Here, the trial court reviewed plaintiffs affidavit, plaintiffs deposition and the depositions of all defendants and experts.
The standard by which to determine whether a hospital is vicariously liable for the negligence of a physician who has staff privileges at the hospital but is not directly employed by the hospital is described at length in Grewe v Mt Clemens General Hospital, 404 Mich 240; 273 NW2d 429 (1978). There, as in the case before us, the hospital contended that the physician in question merely had staff privileges at the hospital, was not in the employ of the hospital, that the hospital exercised no control over the treatment given by the physician, and therefore no agency relationship could be found to exist. The Court said:
Generally speaking, a hospital is not vicariously liable for the negligence of a physician who is an independent contractor and merely uses the hospital’s facilities to render treatment to his patients. See Anno: Hospital-liability-neglect of doctor, 69 ALR2d 305, 315-316. However, if the individual looked to the hospital to provide him with medical treatment and there has been a representation by the hospital that medical treatment would be afforded by physicians working therein, an agency by estoppel can be found. See Howard v Park, 37 Mich App 496; 195 NW2d 39 (1972), lv den 387 Mich 782 (1972). See also Schagrin v Wilmington Medical Center, Inc, 304 A2d 61 (Del Super Ct, 1973).
In our view, the critical question is whether the plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as the situs where his physician would treat him for his problems. A relevant factor in this determination involves resolution of the question of whether the hospital provided the plaintiff with Dr. Katzowitz or whether the plaintiff and Dr. Katzowitz had a patient-physician relationship independent of the hospital setting.
The relationship between a given physician and a hospital may well be that of an independent contractor performing services for, but not subject to, the direct control of the hospital. However, that is not of critical importance to the patient who is the ultimate victim of that physician’s malpractice. In Howard v Park, supra, the Court of Appeals quoted with approval from the opinion in Stanhope v Los Angeles College of Chiropractic, 54 Cal App 2d 141 [146]; 128 P2d 705 [708] (1942). We too find the California Court’s analysis of this area enlightening:
"An agency is ostensible when the principal intentionally or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.’ § 2300, Civ Code. In this connection it is urged by appellant that 'before a recovery can be had against a princi pal for the alleged acts of an ostensible agent, three things must be proved, to wit’ (quoting from Hill v Citizens National Tr & Sav Bank, 9 Cal 2d 172, 176; 69 P2d 853, 855 [1937]): "[First] The person dealing with the agent must do so with belief in the agent’s authority and this belief must be a reasonable one; [second] such belief must be generated by some act or neglect of the principal sought to be charged; [third] and the third person relying on the agent’s apparent authority must not be guilty of negligence. 1 Cal Jur 739; Weintraub v Weingart, 98 Cal App 690; 277 P 752 [1929].” [404 Mich 250-251, 252-253. Emphasis added.]
Similarly, in Wilson v Stilwill, 411 Mich 587, 609-610; 309 NW2d 898 (1981), the existence of an independent physician-patient relationship prior to the hospital’s treatment for the same medical problem and the fact that the jury found no cause of action against the defendant physician required the Supreme Court to find that the hospital was not vicariously liable. In Revitzer v Trenton Medical Center, Inc, 118 Mich App 169, 174-175; 324 NW2d 561 (1982), lv den 417 Mich 995 (1983), the plaintiff sought to hold the lessor of defendant medical clinic liable for the malpractice of one of the leasing physicians. Plaintiff’s theory was vicarious liability premised on a principal-agent relationship allegedly existing between the clinic and the offending physician. As in the instant case, the trial court granted summary judgment for defendant clinic under GCR 1963, 117.2(3).
On appeal our Court affirmed, noting, inter alia, that plaintiff had been receiving health care services from the alleged offending doctor for fifteen years prior to visiting him at defendant clinic. Annual Survey of Michigan Law, Business Associations, 30 Wayne L R 255 (1983), comments on the Court’s opinion as follows:
As stated by the court, an ostensible agency arises when circumstances are such as to cause a third party to reasonably rely upon the existence of an agency relationship so as to estop the alleged principal or agent from denying the agency. The most important factor considered by the court in making this determination was whether the plaintiff viewed the medical center as providing her with treatment or whether the plaintiff viewed the medical center solely as the place where her own physician treated her. Other factors utilized by the court included (1) whether the plaintiff was referred to the physician by the lessor, (2) whether the plaintiffs entire treatment occurred at the lessor’s clinic, (3) whether the physician represented himself as a clinic member, (4) whether the plaintiff had reason to believe that the physician was merely an independent contractor, and (5) whether the physician’s bill was issued on the clinic’s stationery.
Since the plaintiff had utilized the physician for almost fifteen years before being treated by him at the defendant’s clinic and because the court had no evidence from which to conclude that the plaintiff had relied on any of the defendant’s activities in continuing to visit the physician, the court found that the defendant’s clinic was no more than the situs for treatment and had provided the plaintiff with no independent benefits.
Application of these principles of law to the affidavits and depositions in the case at hand disclose that the trial court did not err in granting summary judgment. While plaintiffs affidavit and deposition state that when he went to Almont Community Hospital he believed he would be treated and cared for by hospital personnel and did not look to Dr. Haney for care and treatment until after Dr. Haney had been assigned to take care of him, there is nothing which indicates that plaintiff honestly believed Dr. Haney was the hos pital’s agent rather than his own longtime personal physician who had staff privileges at the hospital. When asked if he knew why Dr. Haney would be taking care of him, plaintiff responded, "He’s my family doctor.”
Q. Did you tell anyone that Dr. Haney was your doctor?
A. I don’t know.
Q. Could you have told anyone that Dr. Haney was your personal doctor?
A. It’s possible.
Q. You don’t know of any other reason why Dr. Haney would appear to take care of you?
A. He’s my family doctor.
As so clearly indicated by the foregoing cited authorities, agency does not arise merely because one goes to a hospital for medical care. There must be some action or representation by the principal (hospital) to lead the third person (plaintiff) to reasonably believe an agency in fact existed. Howard v Park, 37 Mich App 496, 499-500; 195 NW2d 39 (1972), lv den 387 Mich 782 (1972). In the instant case there is no showing of any act or statement by defendant hospital which would have led plaintiff to believe that Dr. Haney was anything other than an independent contractor performing services for, but not subject to the direct control of the hospital. Based on affidavits and depositions in the instant case, we find that defendant did not act in such a manner as to allow plaintiff to honestly rely on the fact that Dr. Haney was acting as the hospital’s agent. Accordingly, the grant of summary judgment was proper.
Affirmed. | [
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Per Curiam.
These consolidated cases involve appeals as of right from Michigan Tax Tribunal decisions upholding sales tax assessments for the taxable periods of June 1, 1978, through February 28, 1982, for petitioner Tulsa Oil Corporation and September 1, 1978, though January 31, 1982, for petitioner By-Rite Oil Company. The petitioners contend that the Tax Tribunal erred in granting summary judgment to the Department of Treasury under GCR 1963, 117.2(3), now MCR 2.116(0(10), because a genuine issue of material fact did exist. The main issue on appeal is the formula used by the department to compute petitioners’ motor fuel tax deduction.
Petitioners Tulsa Oil Corporation and By-Rite Oil Company are wholesale distributors and retailers of gasoline for use in motor vehicles. In addition, By-Rite sells a gasoline and alcohol blend referred to as gasohol. As retailers, Tulsa and By-Rite are required to remit sales tax to the state as provided in the general sales tax act, MCL 205.51 et seq.; MSA 7.521 et seq. That act provides that the tax is to be collected from persons engaged in the business of making sales at retail for the privilege of engaging in business, based on four percent of gross proceeds. As wholesale distributors, Tulsa and By-Rite are required to pay motor fuel tax to the state as provided in the motor fuel tax act, MCL 207.101 et seq.; MSA 7.291 et seq. That act provides that the motor fuel tax is imposed upon owners and drivers of motor vehicles for the privilege of using the public roads and highways of the state, and that it is to be imposed on "all gasoline sold or used in producing or generating power for propelling motor vehicles . . . .” The tax rate during 1978 was nine cents per gallon. 1972 PA 326, § 2. The tax rate beginning January 1, 1979, and continuing through the remainder of the taxable periods at issue was eleven cents per gallon. 1978 PA 426, § 2.
The department, pursuant to its rule-making authority provided by MCL 205.3(b); MSA 7.657(3)(b) promulgated rules permitting the retailer to deduct motor fuel tax paid to the state in computing its sales tax liability. 1979 AC, R 205.83 and R 205.128.
The instant disputes arose because § 8 of the motor fuel tax act, MCL 207.108; MSA 7.298, as amended through 1969 PA 70, provided that "in computing the tax, a deduction of three percent of the quantity of gasoline received shall be deducted for evaporation and loss.” In short, Tulsa and By-Rite pay a motor fuel tax on the gasoline they receive, but are allowed to deduct three percent of the gallons received to account for evaporation. The companies are also responsible for a sales tax on all gross proceeds, but are permitted to deduct the amount of motor fuel tax paid. The problem develops in how to account for the three percent shrinkage allowance in figuring the amount to deduct for motor fuel tax.
In computing their sales tax liability for the period in question, Tulsa and By-Rite computed the motor fuel tax deduction by multiplying the number of gallons of gasoline sold at retail by the motor fuel tax rate (nine cents for 1978, eleven cents for the remaining tax period). The department rejected this formula and instead computed the motor fuel tax deduction by multiplying the gallons sold at retail by the motor fuel tax rate, less the three percent shrinkage allowance (an effective tax rate of 8.73 cents per gallon for 1978; 10.67 cents per gallon for the remaining tax period). The difference between the formulas resulted in significant sales tax deficiencies for both companies.
The Tax Tribunal granted summary disposition to the department in both cases and the petitioners appeal.
Petitioners claim that the department’s formula is arbitrary and capricious because it reduces the motor fuel tax deduction by the shrinkage allowance. If in fact shrinkage actually occurs between receipt of the gasoline and its sale, then the three percent shrinkage allowance is already accounted for in the smaller number of gallons sold, and the department is reducing for shrinkage twice. According to petitioners the department’s formula is only accurate if no shrinkage actually occurs, thus a material issue of fact exists as to whether shrinkage occurs.
Petitioners’ argument is more easily seen through a hypothetical used by By-Rite. If By-Rite (or Tulsa) purchased 100,000 gross taxable gallons during January, 1979, the company would reduce the amount by three percent or 3,000 gallons and pay the state $10,670 (97,000 gallons x $0.11). If this three percent shrinkage actually results, then Tulsa or By-Rite would have only this 97,000 gallons to sell. They would, therefore, collect sales tax on these gallons and deduct the eleven-cent motor fuel tax paid on each gallon for a total deduction of $10,670. The department, on the other hand, would multiply these 97,000 gallons by only $0.1067, the eleven-cent motor fuel tax rate minus the three percent shrinkage allowance, for a deduction of only $10,349. Thus, the petitioners would have paid $10,670 in motor fuel tax but only be allowed to deduct $10,349 from their sales tax.
Petitioners’ figures are correct only if three percent shrinkage actually occurs. We find that the department is not applying the rule allowing deduction for the motor fuel tax in an arbitrary or capricious manner.
This Court’s review of Tax Tribunal decisions is limited to determining whether they are authorized by law and whether the factual findings are supported by competent, material, and substantial evidence on the whole record. MCI Telecommunications Corp v Dep’t of Treasury, 136 Mich App 28, 30; 355 NW2d 627 (1984), lv den 422 Mich 883 (1985); Const 1963, art 6, § 28.
Petitioners’ claim is that a genuine issue of fact existed as to whether evaporation and loss, in fact, occurred between the time of purchase and the time of sale at retail. However, neither the formula applied by petitioners nor the formula applied by the department took into account actual evaporation and loss. Rather, all parties took the three percent allowance provided for in the motor fuel tax act and applied it in their respective formulas for computing the deduction. Moreover, the three percent allowance does not purport to represent the actual percent of shrinkage that takes place for each wholesaler/retailer each month.
The effect of the department’s formula is that in the event that evaporation or loss occurs, then the taxpayer is not permitted a full deduction, because there will not be enough gallons sold to fully recoup the motor fuel tax paid. It would not, however, seem reasonable to impose the heavy burden of requiring the department to consider actual evaporation and loss for each taxpayer. Additionally, the formula utilized by Tulsa and By-Rite is flawed in that it assumes three percent shrinkage actually occurs. If less shrinkage occurs, then the taxpayer will be able to deduct more for the motor fuel tax than was actually paid; if the shrinkage is greater, then the taxpayer will be unable to claim a full deduction. The fair and practical approach seems to be that of the department.
This Court accords deference to the construction of a statute given by those charged with administering it. The construction should be upheld unless clearly wrong or another construction is plainly required. Acco Industries, Inc v Dep’t of Treasury, 134 Mich App 316, 322; 350 NW2d 874 (1984), lv den 421 Mich 857 (1985). Administrative rules must be liberally construed in light of their purpose. Bentley v Associated Spring Co, 133 Mich App 15, 20; 347 NW2d 784 (1984), lv den 419 Mich 938 (1984).
By-Rite raises two other issues. First it contends that no ten percent penalty should be imposed upon it, because its understated sales were not due to negligence or intentional disregard of the law. The department, however, informed the Tax Tribunal that in the interest of justice the penalty would be waived, therefore the penalty is no longer at issue.
By-Rite’s last contention is that the department erred by reducing By-Rite’s motor fuel tax deduction by five cents per gallon on its gasohol sales. We find By-Rite’s contention without merit.
From January 1, 1981, through January 31, 1982, after paying the eleven-cent per gallon motor fuel tax to the state on the gasoline received and used in blending with alcohol to produce gasohol, By-Rite claimed a refund of the tax in the amount of five cents per gallon as permitted by law. MCL 207.102; MSA 7.292. By-Rite claims that it should be able to deduct the full eleven cents even though it received a five-cent refund. The department allowed only a six-cent deduction; we agree with the department that By-Rite’s deduction should not be greater than its net tax paid.
Affirmed.
Effective January 1, 1983, the allowance for evaporation and loss was reduced to two percent. 1982 PA 437. | [
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Per Curiam.
Defendant’s first trial ended in a hung jury. Upon a second jury trial, defendant was convicted of first-degree criminal sexual conduct, MCL 750.520b(l); MSA 28.788(2)(1), and unarmed robbery, MCL 750.530; MSA 28.798. Defendant was sentenced to a term of imprisonment of from sixty to one hundred years on the esc charge. On the unarmed robbery charge, defendant received a concurrent term of from ten to fifteen years.
The complainant was a passenger in an automobile that became disabled on an expressway. A man, whom the complainant later identified as defendant, stopped and offered help. Defendant convinced the complainant to go with him to a nearby gas station where he said a friend was working who would lend him tools. Defendant stated that the friend would be more likely to lend him the necessary tools to repair the car if one of the two women accompanied him as proof that there was in fact a disabled vehicle. After the complainant agreed to accompany the defendant, he drove to a dead end street. When she initially refused his demands, defendant produced a knife and held it to her throat. Some time during the sexual assault, the knife was removed from sight and not seen again. A short time after the conclusion of the assault, defendant asked the complainant for money, and she gave him three dollars. When defendant was not satisfied with that amount, the complainant signed her paycheck over to him. With respect to the taking of the money and the check, the information alleged armed robbery. However, the jury found defendant guilty of the lesser included offense of unarmed robbery.
Defendant argues that the trial court improperly instructed the jury on the elements of unarmed robbery. Defendant argues that the unarmed robbery instruction was misleading and incomplete because it failed to inform the jury that there had to be a larcenous intent at the time of the assault and that the force and violence used to accomplish the sexual assault would not be sufficient to satisfy the force requirement of the unarmed robbery statute if the taking of the property was merely an afterthought. Defendant asserts that, if the jury had been properly instructed, it is likely defendant would have been convicted of a larceny crime no greater than larceny from a person, MCL 750.357; MSA 28.589.
Defendant did not object to the unarmed robbery instruction and reversal is therefore inappropriate unless manifest injustice has occurred. People v Kelly, 423 Mich 261, 271-272; 378 NW2d 365 (1985). We find that manifest injustice did not occur.
Larceny from a person is defined by statute, MCL 750.357; MSA 28.589, as follows:
Any person who shall commit the offense of larceny by stealing from the person of another shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years.
Unarmed robbery is defined by statute, MCL 750.530; MSA 28.798, as follows:
Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years.
In support of his contention that larcenous intent must exist at the time of the forceful act, defendant relies upon People v LeFlore, 96 Mich App 557, 561; 293 NW2d 628 (1980), lv den 409 Mich 927 (1980), and People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), the case upon which the LeFlore Court relied.
In Chamblis, the defendant, his brother and another man broke into the victim’s apartment. Once inside, one man struck the victim in the head with a pistol, knocking him unconscious. While the victim was unconscious, one of the men took money from the victim’s person. The jury found defendant guilty of a lesser included charge of larceny from a person. This Court reversed, concluding that there was no evidence produced to establish the crime of larceny from a person and that the jury should have returned a verdict of either guilty or not guilty on the armed robbery charge. People v Chamblis, 60 Mich App 721; 231 NW2d 527 (1975). The Supreme Court reversed this Court’s decision and reinstated defendant’s conviction. The Supreme Court found that there was evidence introduced at trial which could have supported the jury’s verdict:
In light of the evidence adduced at trial, the jury could have believed defendant’s story that he was reluctant to return to the house and intended to rob no one, and that the initial pistol crack across complainant’s head by the brother was in retribution for the earlier cane beating defendant had suffered. They could have believed the complainant became unconscious and the men only then decided to take his money. If the money were taken from the complainant under those circumstances, the offense would be larceny from the person. MCLA 750.357; MSA 28.589. [395 Mich 425.]
In LeFlore, the two defendants began kicking and hitting the victim after she came out of a store. During the assault, the victim’s blouse was torn open and money fell from her brassiere. One of the two defendants picked the money up and the struggle continued until the two eventually made their escape. This Court held:
In the instant case, there are insufficient factual findings as to the defendants’ intent, so it is impossible to determine if adequate evidence was presented to support the unarmed robbery convictions. It is necessary then to remand to the trial court for more specific findings of fact on whether defendants intended to force complainant to part with her money by assaulting her prior to or at the time of taking, or whether, following the taking, force was purposefully inflicted to ensure complainant’s loss of possession. In either case, unarmed robbery would be established. If however, the violence was perpetrated upon complainant with no larcenous intent and the intent to steal only occurred at the time of the taking, only larceny from the person and assault would be proven. People v Jackson, 390 Mich 621, 627; 212 NW2d 918 (1973). [96 Mich App 562-563.]
We read both Chamblis and LeFlore as requiring that larcenous intent exist at the time of the forceful act. _
However, Chamblis and LeFlore are distinguishable on their facts. An unarmed robbery may be committed, either by "force and violence, or by assault or putting in fear.” People v Berry, 112 Mich App 79; 315 NW2d 199 (1981). In both Chamblis and LeFlore, the robbery charges were based upon the force employed. In the instant case, it is apparent that the victim surrendered the money and her paycheck "out of fear.” When a person is induced to part with property out of fear, the test to determine whether a robbery has been committed is whether "the party robbed has a reasonable belief that he may suffer injury unless he complies with the demand.” People v Kruper, 340 Mich 114, 121; 64 NW2d 629 (1954). Thus the test is objective and from the victim’s perspective. See, e.g., People v Laker, 7 Mich App 425, 428-429; 151 NW2d 881 (1967) (where this Court found that the circumstances of a man with hands in pocket, ordering a waitress who was alone in a diner to empty the cash register and lie down on the floor, was sufficient proof of the inducement of fear).
There is no doubt in the instant case that the victim held a reasonable belief that she might suffer harm if she did not comply with defendant’s request.
We believe that it is appropriate to distinguish Chamblis from situations where, as in the instant case, a victim surrenders property upon demand without protest or struggle after the person making the demand has subjected the victim to violence or threats of violence. It is evident from the request itself that the person making such a demand is relying upon the continuing effect of the fear he or she has created to effect compliance. Regardless of whether the defendant had planned to commit larceny when he committed the act of violence or uttered a threat of violence, the fact remains that the defendant purposely used the fear already present to accomplish the larceny. In our opinion, such is sufficient to constitute unarmed robbery. Accordingly, we decline to extend the rationale of Chamblis and LeFlore to the instant situation. We hold that, when unarmed robbery is accomplished through fear, it is not necessary that the defendant have had a larcenous intent at the time the defendant committed the act which initially induced the fear.
Because the jury was properly instructed on unarmed robbery "by putting in fear”, the type of unarmed robbery which most closely fits the facts of the instant case, we find that the jury instructions did not create manifest injustice.
Defendant next argues that the trial judge who conducted the second trial abused his discretion by failing to review, when requested, a ruling by the first trial judge which permitted the prosecutor to impeach defendant with evidence of a prior conviction.
This claim of error is not factually supported in the record. There is no indication that defendant did, in fact, request the second trial judge to suppress evidence of defendant’s 1981 conviction of assault with intent to commit great bodily harm. The initial pages of the transcript of the second trial indicate that a discussion was held in chambers before the proceeding commenced. When the judge and the parties adjourned to the courtroom, defense counsel stated on the record:
I should indicate that in chambers, before coming out here, the Court had asked if there were any preliminary matters or motions. I would indicate to the Court that this is a re-trial of a case that was a mis-trial. . . .
That case was in front of Judge Roberts. It is my understanding that Judge Roberts made a ruling to the effect that the conviction of Assault With the Intent to Do Great Bodily Harm Less Than Murder can be used to my understanding.
It is my belief that it is probably the law of the case and that Your Honor can no way in the world —you can get around the decision by Judge Roberts, and I would just indicate that it was my statement that was made in chambers.[ ]
The prosecutor responded to defense counsel’s argument by asserting that the second trial judge still had the authority to exercise his discretion and requested that he do so by continuing the ruling of the first trial judge and allowing the use of evidence of a prior assault conviction for impeachment purposes. Defense counsel responded and again asserted that the trial court could not modify the ruling of the prior judge:
I don’t think under Pallie, P-a-l-l-i-e, there is any discretion or latitude in this matter. To be frank, you are stuck with these rulings of a Judge of equal status as yourself.
The trial judge stated that he agreed with defense counsel and then concluded, "I don’t know what other convictions there are exactly, but if that’s all that was ordered at the first trial, we will stay with that.”
Accordingly, we find that defense counsel did not request the second trial judge to reconsider the prior court’s ruling permitting the introduction of evidence of defendant’s assault conviction for impeachment purposes. To the contrary, the record indicates that defense counsel urged the court not to reconsider the prior ruling. It cannot be said that the trial court erred by failing to exercise his discretion when he was never requested to do so.
We also find that admission of evidence of the prior assault conviction does not rise to the level of manifest injustice. Evidence of the conviction was presumptively probative of credibility as it is the type of evidence which MRE 609 permits to be introduced for such purposes. The evidence of the prior assault conviction is not especially prejudicial, since it involved an offense dissimilar to the one for which defendant was on trial. Credibility was an important issue at this trial. Since defendant presented an alibi defense, he had a means of presenting his defense without taking the stand himself. Thus, the first trial judge correctly determined that the factors set forth in People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978), weighed in favor of admission.
Next, defendant argues improper rebuttal testimony was presented. One of the issues at trial concerns the operability of a 1972 Chevrolet owned by a member of defendant’s family. This was the vehicle in which the assault allegedly occurred. Defendant’s parents testified that the vehicle had been inoperable for at least a week before the date of the offense. As rebuttal, the prosecution presented Curia Thomas, a neighbor of defendant, who testified he had seen the vehicle being driven within the time frame defendant’s parents had testified it was inoperable.
Operability of the vehicle was not a fact which the prosecutor was required to prove as an element of the charge against defendant. Rather, operability of the vehicle was raised as a defense. Thomas’ testimony was responsive to that defense. Thus, it was a proper subject for rebuttal and not a subject which the prosecutor was obligated to present in his case in chief. Kelly, supra, p 281. Our opinion is not changed by the fact that defendant presented the same defense in the first trial. The prosecutor was not obligated to anticipate that defendant would use the same defense at the second trial and to refute it before it was presented.
Defendant’s next argument is that the trial court erred by failing to set forth his reasons for departing from the sentencing guidelines on the esc charge. The guidelines recommended a minimum sentence of fifteen years to life. The trial court imposed a sixty-year minimum sentence. While it appears that sixty years falls within the range established by the guidelines, defendant argues that it does not if the figures are converted to their earliest possible dates of parole. There is nothing in the guidelines which would permit such a reworking. Defendant’s sentence does not exceed the guidelines. Thus, the factual basis of this claim fails.
Next, defendant argues that he must be resentenced because the trial court failed to mention the sentencing guidelines during the sentencing hearing and failed to inform defendant of the sentence range into which he had been placed. Defense counsel never requested that the trial court explain the basis of its sir scoring. Nor has defendant alleged that the sir was in fact inaccurately completed.
The sentencing guidelines are to serve merely as a tool for the trial judge in the exercise of his sentencing discretion. Their adoption by the Supreme Court does not give substantive rights to defendants. People v Green, 152 Mich App 16, 18; 391 NW2d 507 (1986). Accordingly, we hold that the trial court is not required to explain sua sponte how each variable was scored.
Finally, defendant argues that the presentence report failed to comply with the statutory requirements because it did not contain a "specific recommendation” for disposition as required by MCL 771.14; MSA 28.1144. Even though the presentence report did recommend "incarceration,” defendant argues that since esc i is "non-probational,” MCL 771.1; MSA 28.1131, the recommendation of incarceration amounted to no recommendation at all.
To satisfy the statute, a simple recommendation of incarceration is sufficient. People v Joseph, 114 Mich App 70; 318 NW2d 609 (1982), lv den 417 Mich 877 (1983); People v Arney, 138 Mich 764; 360 NW2d 291 (1984). The statute does not indi cate that greater specificity is required for non-probational offenses than for probational offenses.
Defendant’s conviction and sentence are affirmed.
However, we question the wisdom of such a holding. In both cases, it is clear that the defendants specifically intended to permanently deprive the victims of property. In both cases, the defendants gained the opportunity to take possession as a result of force which they had applied. The plain language of the unarmed robbery statute does not appear to require more. However, Chamblis and LeFlore required that the larcenous intent exist both at the time of the taking and at the time of the forceful act. Chamblis cites no authority to support this conclusion. LeFlore relies on Chamblis.
When this Court has set forth the elements of unarmed robbery, no such continuous intent requirement has been included. People v Spry, 74 Mich App 584; 254 NW2d 782 (1977), lv den 401 Mich 825 (1977), People v Tolliver, 46 Mich 34; 207 NW2d 458 (1973), and People v Denny, 114 Mich App 320; 319 NW2d 574 (1982), lv den 417 Mich 860 (1983). Nor is such a requirement contained in the Michigan Criminal Jury Instructions. CJI 18:2:01. Finally, we note that such a rule is contrary to that followed by the majority of other states:
Concerning the required concurrence of the defendant’s conduct and state of mind, there is a question as to the robbery liability of one who strikes another, perhaps intentionally but with no intent to steal (or who intimidates another, though without an intent to steal), and who then, seeing his adversary helpless, takes the latter’s property from his person or his presence. In other words, does robbery require that the defendant’s violence-or-intimidation acts be done for the very purpose of taking the victim’s property, or is it enough that he takes advantage of a situation which he created for some other purpose? The great weight of authority favors the latter view, holding that under the circumstances it is robbery .... [La-Fave & Scott, Criminal Law, § 94, pp 701-702.]
Why a defense counsel would argue that a trial judge could not reconsider a ruling which permitted the impeachment of his client is somewhat unclear. However, we surmise that defense counsel feared that if the issue were reopened, the second trial judge might permit impeachment with evidence of two other prior felony convictions in addition to the conviction previously allowed. The two other convictions were esc convictions. Since the offenses for which defendant was on trial also included a esc charge, defense counsel could have reasonably believed that introduction of such evidence would have been extremely prejudicial. | [
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M. R. Stempien, J.
Plaintiff appeals as of right from an order of the Ingham Circuit Court of January 2, 1986, which denied plaintiff’s motion to reinstate this medical malpractice action. Plaintiff originally filed this case on March 6, 1984. Defendants filed an answer on April 23, 1984, and served interrogatories on plaintiff on approximately April 30, 1984. Thereafter, nothing further was done in the file.
According to the calendar entries filed with this Court, the case was placed on the no-progress calendar in July of 1985. After the no-progress docket was published and sent out, plaintiff filed her answers to the interrogatories on September 13, 1985. Two weeks later, plaintiffs counsel filed an affidavit with the court to save the action, stating that plaintiff had a meritorious claim and that the case had been allowed to become dormant inadvertently by plaintiff’s counsel.
On October 1, 1985, at the calendar call for the no-progress docket, plaintiffs counsel stated on the record that the case had gone by unnoticed because of a problem with the office filing system and had become dormant by mistake. Plaintiffs counsel indicated that if the case could be saved plaintiff would be ready within a ninety-day period to either have the case mediated or set for trial. The trial court dismissed plaintiffs suit with prejudice for no progress due to a lack of diligence on the part of plaintiff. Plaintiffs motion to reinstate the action was denied by an order from which plaintiff appeals.
The issue presented for our consideration is whether dismissal with prejudice for lack of progress was proper under MCR 2.502 given the circumstances of this case. We conclude that dismissal was not the proper disposition of this admittedly neglected lawsuit in light of MCR 2.301 and MCR 2.501. We conclude that this case does not come within the parameters of MCR 2.502. We reverse and remand for further proceedings.
A preliminary determination is whether the 1963 court rules or the 1985 court rules apply. MCR 1.102 provides:
These rules take effect on March 1, 1985. They govern all proceedings in actions brought on or after that date, and all further proceedings in actions then pending. A court may permit a pending action to proceed under the former rules if it finds that the application of these rules to that action would not be feasible or would work injustice.
It has been recognized that the norm is to apply the newly adopted court rules to pending actions unless there is reason to continue applying the old rules. Davis v O’Brien, 152 Mich App 495, 500; 393 NW2d 914 (1986), lv den 426 Mich 869 (1986). We further note that the trial court relied upon the 1985 court rules below, and the parties have argued MCR 2.502 on appeal. Thus, we proceed by applying the 1985 court rules.
Although the parties and the trial court have focused upon MCR 2.502, we believe that an expanded application of the court rules is necessary to properly review and decide this case. Specifically, we turn to the framework established by MCR 2.301 and 2.501. This new framework marks a significant departure from the 1963 court rules, particularly with respect to the type of cases suitable for dismissal.
MCR 2.301(A) provides:
(A) Discovery must be completed 1 year after an answer has been filed unless the court sets another date by order
(1) on its own initiative,
(2) on motion of a party, or
(3) at a pretrial conference.
The pertinent portion of the Staff Comments provides:
MCR 2.301 covers the time for completion of discovery. The corresponding provision of the General Court Rules is GCR 1963, 301.7, which sets the discovery cutoff at the pretrial conference or the waiver of a pretrial conference. Under MCR 2.301 discovery must be completed 1 year after an answer is filed unless the court sets another date.
The history of this court rule is offered on pages 146-147 of 2 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed):
Though the General Court Rules of 1963 were silent on point, it wasn’t long before the various courts in this state began imposing cut-offs on discovery proceedings in an attempt to control their ever growing docket problems. Rule 2.301 owes its origin to a long series of general and local rules, all establishing some cut-off date for discovery proceedings. As early as 1971, with the adoption of GCR 301.7, which required all discovery to be completed by conclusion of the pretrial conference, the courts have experimented with permitting different periods of time for discovery proceedings. GCR 314 (applicable only in Wayne County) even went so far as to establish two different dockets, a regular docket and a special docket. Discovery on the regular docket had to be completed within 6 months after service of the summons and complaint on all defendants. If the case was on the special docket, 15 months was permitted for discovery. Rule 314 was repealed in 1978, and new local rules established permitting discovery until 4 months prior to trial. In areas outside of Wayne County, GCR 301.7 presumptively terminated discovery on completion of the pretrial conference. Yet in practice this was not true as many circuits, relying on the authority of GCR 301.8, eliminated the pretrial conference by local rule or administrative order.
The very existence of a time limit on discovery proceedings is and will continue to be the subject of an ongoing controversy between the members of the practicing bar and the court officials and administrators in this state. Most attorneys feel that discovery should be permitted up to the date of trial, while most all court personnel, particularly those on the state level, indicate that any effective docket control system must, at a minimum, be able to determine which cases on the docket are ready for trial. Unless some arbitrary discovery cut-off exists, there is no way of knowing whether or not the parties are prepared for trial in that particular action.
Studies have also indicated that, particularly in complex actions, early involvement of the trial judge serves to simplify matters, keeps the action progressing, and expedites trial of the action. In the ordinary action, however, early intervention of the trial judge is not necessary, and even a pretrial conference serves little useful purpose. The problem is one then of identifying those complex actions which will benefit from early judicial intervention. A requirement that the parties seek court permission for extended discovery is one method to bring the desired cases to the attention of the trial court.
Rule 2.301 reflects a compromise on the part of all parties involved in the judicial process. The one year cut-off is lengthy enough to accommodate most normal actions, yet not so long as to disrupt the trial schedules of circuits in less populated areas of this state. It is also a sufficiently lengthy period of time for counsel to recognize that additional time may be necessary in an individual case, and to apply to the court for the time needed.
Applying MCR 2.301 to the instant case, the one-year cutoff would have occurred in April of 1985, one year after the answer was filed. If plaintiffs counsel had found this inactive case, a motion to extend discovery could have been filed . MCR 2.301(A)(2). It has been noted that the court rule places no minimum or maximum time limits on when a motion requesting additional discovery may be filed. 2 Martin, Dean & Webster, supra, p 150. The timing of the motion may be taken into consideration by the trial court in its determination of whether the motion should be granted. Id.
As a sidelight, we note that the relatively barren court file found by the trial court in this case may become the norm under the 1985 court rules. Under MCR 2.302(H)(1), requests, responses, depositions and other discovery materials may not be filed with the court, with certain exceptions (not applicable here), unless a particular rule requires filing of discovery materials. This is a new provision which differs from prior Michigan practice and from the federal rules. MCR 2.302, Staff Comment. Thus, the court file will not always reflect the amount and extent of pretrial activity and will not always disclose which cases are proceeding with discovery and which cases have become lost in a law office’s filing system.
MCR 2.501(A)(1), the court rule central to our analysis, provides:
Following the time for completion of discovery as determined under MCR 2.301, the court shall schedule a pretrial conference under rule 2.401, schedule the action for mediation under MCR 2.403, or schedule the action for trial.
The background and evolution of MCR 2.501(A)(1) are described by 3 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), pp 2-3:
Although it is a fairly short rule, MCR 2.501 plays a central role in the processing of cases through the Michigan court system. Even though it was patterned after GCR 501, the new rule really bears little resemblance to its former counterpart. The rule was designed not only to establish a somewhat uniform method by which cases are scheduled for trial, but also to eliminate some of the abuses that had arisen in the trial scheduling procedures of the various courts over the past 20 years. As experience under the rule is limited, only time will tell whether this rule will be observed more in its breach, than in its compliance.
At the time that the original drafts of what would become the Michigan Court Rules of 1985 were prepared, the amount of criticism directed at the case processing procedures existing in the various counties dictated that an in-depth study be made as to the actual manner in which cases proceeded through the trial courts, from time of filing to entry of judgment. That study revealed that (1) there was little uniformity in the methods by which cases were actually scheduled for trial and disposition; (2) there was no way to tell exactly how many cases in the Michigan court system were actually ready for and awaiting trial at any given time; (3) severe backlogs in the court system did exist; (4) courts in which the trial judge became involved in the case early in the action normally had smaller backlogs; (5) attorneys frequently received too little advance notice of the actual trial date; and (6) the responsibility for processing actions through the court system should rest with the court, not with the attorneys and parties.
In an attempt to at least identify, if not cure, the actual problems present within the system, it was first decided that the new rules must contain some sort of discovery cutoff, after which point in time it could at least be presumed that the parties were ready for trial. Without such a time limit, it would be impossible to tell whether the existing delays were attributable to pretrial preparations (as claimed by the bench), or to the actual inability to obtain a true trial date (as claimed by the bar). Rule 2.301 thus came into existence.
The application of MCR 2.501(A)(1) is described by Martin, Dean & Webster, supra, pp 4-5, this way:
MCR 2.301 provides that, unless otherwise ordered by the court, all discovery in an action must be completed within 1 year from thé time that an answer is filed. At the conclusion of the time permitted for discovery, the rule requires that the court take one or more steps to move the case towards final disposition. The court must either:
a. Schedule the action for trial. It may do so by placing the case on a list of actions awaiting trial (trial calendar), by setting a trial date, or by another method in use in that court. MCR 2.502(A)(3) places only one limitation on the actual method utilized by the trial court, thus giving the trial courts wide latitude in this matter. The limitation imposed is that, whatever the method used, it must not depend upon a party’s request, i.e., the court may not utilize a system by which trial of a matter is not scheduled until one or both parties file a "Demand for Trial”, "Trial Praecipe”, or like document. The court is to place the matter on the trial calendar, or other method used to schedule trials, "without the request of a party.”
b. Schedule a pretrial conference under MCR 2.401. At any pretrial conference held after the completion of discovery the court shall direct that the action be scheduled for trial. MCR 2.401(H)(1). Trial scheduling, however, does not preclude the scheduling of additional pretrials the court may deem necessary.
c. Schedule the action for mediation under MCR 2.403. If the mediation evaluation is rejected, the matter shall proceed to trial in the normal fashion, i.e., the court must schedule the matter either for pretrial or trial. See MCR 2.403(N)(1).
The Michigan Court Rules of 1985 presume that, by the close of discovery, the attorneys and parties are sufficiently familiar with all facets of the case to begin procedures designed to facilitate or effectuate final disposition. Rule 2.501(A) mandates that the court then step into the action and order that those steps most likely to achieve a prompt and fair disposition of the action be taken. The ideal manner by which the court should make the determination of which step to take is by actual review of each action pending before it. The rule does not prohibit, however, a standing order that, upon the close of discovery, all actions be ordered to mediation, scheduled for pretrial, or scheduled for trial.
Although the Ingham Circuit Court may utilize a docket system by which one or both parties file a demand for trial, a request for pretrial conference or the like, our review of the Local Rules of the Thirtieth Judicial Circuit contained in the Michigan Court Rules of 1986 by West Publishing Company discloses no rule approved by the Supreme Court governing the scheduling of trial or pretrial conference. Michigan Rules of Court of 1986, West Publishing Company, pp 755-760. It does appear, however, that the Ingham County Local Court Rules require a party to file a demand for a pretrial and trial before a case will be put on the docket calendar. Denham v University of Michigan, 151 Mich App 77, 80; 390 NW2d 204 (1986). If the trial court is to continue to utilize this system, MCR 8.112(A)(2) would require the local court rule to be approved by the Supreme Court before the practice could be enforced.
We are not unaware of the burden that the 1985 court rules and this decision place upon oiir circuit courts. This is especially true since a number of the circuit courts are in the process of switching over to a computerized docket system which will better enable the courts to comply with the 1985 court rules. By our decision we wish to send to courts with backlogged dockets a sign encouraging them to move and clear their dockets by the methods authorized by MCR 2.501 and MCR 2.502. From our reading of the 1985 court rules, the circuit courts must follow the mandatory language of MCR 2.501 or may utilize another docket management system which has been adopted as a court rule and approved by the Supreme Court. In the instant case, neither circumstance exists.
Our reading of MCR 2.502, the Staff Comment, and Commentary suggests that the court rule governing dismissal for lack of progress is not properly invoked in this case. MCR 2.502(A) and (B) provide:
(A) Notice of Proposed Dismissal. At least once in each calendar quarter, the court may notify the parties in those actions in which no steps or proceedings appear to have been taken within one year (182 days in district court) that the action will be dismissed for lack of progress unless the parties appear as directed by the court and show that progress is in fact being made or that the failure to prosecute is not due to the fault or lack of reasonable diligence of the party seeking affirmative relief. The notice shall be given in the manner provided in MCR 2.501(C) for notice of trial.
(B) Action by Court.
(1) If a party does not appear as directed by the court, or does not make the required showing, the court may direct the clerk to dismiss the action for want of prosecution. Such a dismissal is without prejudice unless the court specifies otherwise.
(2) An action may not be dismissed for lack of progress
(a) if it is set for trial,
(b) if a pretrial conference is scheduled, or
(c) before the date specified for completion of discovery under MCR 2.301.
3) If an action is not dismissed under this rule, the court shall enter orders to facilitate the prompt and just disposition of the action.
A discussion of the background and application of the court rule may be found in 3 Martin, Dean & Webster, supra, pp 10-11:
MCR 2.502 is one of the involuntary dismissal rules and it provides for the dismissal of actions due to a lack of progress. The current no progress rule draws its origins from GCR 501.3, though it retains the time provisions previously found in DCR 501.3 for actions commenced in the District Court. Under the case processing system basically set forth in MCR 2.301, MCR 2.401, and MCR 2.501, however, considerably fewer cases will find themselves subject to dismissal for lack of progress than were found under the 1963 rules.
1. Cases Subject to Rule
A limited number of cases may be dismissed for lack of progress under MCR 2.502. The rule itself provides that an action may not be dismissed for lack of progress if
(a) it is set for trial;
(b) if a pretrial conference is scheduled; or
(c) the time set for discovery has not yet passed.
As discussed in the Authors’ Comment to Rule 2.501, discovery time limits are automatically imposed upon an action on the filing of an answer to the action. At the conclusion of the time set for discovery, the court must set the action for pretrial or trial. Thus all actions in which an answer has been ñled are precluded from the operation of MCR 2.502 until trial or other disposition of the action is completed. This leaves only two categories of actions subject to dismissal for no progress. The first category is those actions in which a complaint has been served on the defendant, but no answer is filed or other action taken thereafter to secure final judgment. The second category of cases is those in which a final disposition of the action has been made, through trial, mediation award, or otherwise, yet the prevailing party has not taken steps to secure the entry of a final judgment. As the reader may note, both categories of cases involve actions in which one of the parties is free to secure a final disposition, but for some reason has neglected the steps necessary to do so.
In this case, it appears that the Ingham Circuit Court has a local court rule which requires that one of the parties file a demand for trial, etc., before trial or pretrial is scheduled. However, it further appears that the local court rule has not been approved by the Supreme Court, contrary to MCR 8.112(A)(2), and has not been published in the Michigan Rules of Court of 1986, supra. Consequently, we do not believe that the trial court could properly dismiss this action under MCR 2.502 when it had not complied with MCR 2.501 or MCR 8.112(A)(2).
The result we reach is supported by the discussion of the proper application of MCR 2.502 contained in 3 Martin, Dean & Webster, supra, pp 11-12:
2. Notice of Proposed Dismissal for Lack of Progress
Once every three months the courts will prepare a list of those cases in which no steps or proceedings appear to have been taken within one year (182 days in the District Court). The parties whose cases appear on that list (the no progress calendar) will be notified that unless the parties appear as directed by the court and show that progress is in fact being made, or that the failure to prosecute is not due to the fault or lack of reasonable diligence of the party seeking affirmative relief, the action will be dismissed for lack of progress.
A party has a right to advance notice that the action may be dismissed for lack of progress, and the court may not dismiss the action without first notifying the party of the date and time that the no progress calendar will be called. See Flack v Waite, 18 Mich App 339; 170 NW2d 922 (1969). The court must give the required notice in the same manner in which it gives notices of trial assignments, i.e., by mailing or delivery of the notice to the attorneys and parties in pro per. See MCR 2.501(C) and MCR 2.107(C).
3. Action by the Court
The court will call the cases on the no progress calendar on the date and time specified in its notice to the parties. When each case is called, any party may present proofs to show that the action was erroneously placed on the calendar, that progress was in fact being made in the case, or that the failure to prosecute the action was not due to the fault or lack of reasonable diligence of the party seeking affirmative relief.
As noted above, the types of cases heard by the court on the no progress calendar should differ considerably from those it encountered under the 1963 rules. The court should not be confronted with those actions in which the parties have not proceeded in a reasonable fashion towards trial. Other rules, principally MCR 2.401 and MCR 2.504, have been designed to deal with those cases. Rather, the rule anticipates that the court will face only those cases in which one of the parties has failed to complete the paperwork necessary for the court to close its file in the action. In such instances, MCR 2.502(B)(3) suggests that the court direct that the necessary steps be taken within a limited period of time, and that on the party’s continued failure to do so, the action be dismissed.
The ultimate decision as to whether or not an action should be dismissed for lack of progress rests within the sound discretion of the trial court. If the party seeking affirmative relief fails to appear as directed by the court, the rule anticipates that the court will dismiss the action. If a party appears and fails to make the required showing, the court may also order dismissal. In the latter instance, however, unless the proofs evidence a complete disregard for the action by the party, the authors suggest that the wisest action for the court to take is to grant the party a limited period of time within which to complete the action. It is most likely that the party’s request to save the action from dismissal is uncontested, and that the party’s desire to save the action is opposed only by the court’s desire to clear its docket. MCR 1.105 would suggest that justice is best served by such an order in these instances.
By our decision we seek to emphasize the policy behind the 1985 court rules, namely, uniformity of procedure and the encouragement of affirmative steps taken by the trial courts to keep cases moving toward trial or other disposition. Although the 1985 court rules may not have been designed with the express purpose of saving a forgotten case, one unintended result may be that a forgotten case will not fall onto the no progress docket. Instead, a forgotten case may be swept onto the court docket for trial. A party who has failed to engage in discovery may either suffer the penalty or may move for additional time for discovery from the court, MCR 2.301.
Our decision may be in conflict with the decision reached by the panel in Sand v General Motors Corp, 155 Mich App 330; 399 NW2d 510 (1986), lv den 428 Mich 888 (1987). Although that decision was purportedly made under the 1985 court rules, we note that the published opinion did not consider the effect of MCR 2.501 or the other court rules. Further, that decision relied upon cases decided under the General Court Rules of 1963. Thus we disagree with the reasoning of that decision to the extent that a conflict exists.
In light of our decision that this case does not fall within the parameters of MCR 2.502, we do not address the issues addressed by the parties, namely, whether the trial court recognized it had discretion under MCR 2.502(C) in dismissing the action and whether it abused that discretion.
Reversed and remanded for further proceedings.
R. M. Maher, J., concurred in result only.
The trial courts may, by local rule, adopt such a procedure. Such local rules, however, have to be approved by the Supreme Court. See MCR 8.112.
The reason for the restriction is basic. If the trial demand is not filed by the parties the case will get lost in the system until such time as it appears on a no progress docket or otherwise comes to the court’s attention. Once again, the actual number of cases waiting for trial is unknown. To a lesser extent, the same reasons apply in situations in which the demand is filed, but is not filed promptly after the close of discovery. An uncontrolled variable is again introduced, making it impossible to accurately determine the number of cases ready for trial.
Rule 2.502(A) is one of the few rules which requires that the court (or the court clerk) take some affirmative action with respect to a case without that case first being brought to the court’s attention by means of some document filed by a party. For this reason, the author anticipates that many counties will continue to require (at least informally) that the parties notify the court when a matter is ready for trial. As the court dockets become more and more computerized, however, this practice may change. In fact, demands for statistical data imposed upon the trial courts by the state and other units of government may dictate that it is in the court’s own best interest to comply with the provisions of MCR 2.501(A). [Footnote 5 omitted; emphasis added.]
In circuits which have approved local court rules requiring that one of the parties file a demand for trial, etc. before trial or pretrial is scheduled, those cases in which no such demand is filed within one year from the close of discovery are also subject to dismissal under the provisions of Rule 2.502. The authors would note, however, that the individual circuit must have passed a local court rule altering the provisions of MCR 2.501(A) before it may dismiss a case under MCR 2.502. If it has not, but simply possesses an informal procedure calling for such filings, the authors question how the court may dismiss an action when the basis for dismissal is the court’s own noncompliance with MCR 2.501, i.e., if the court had complied with MCR 2.501 and independently set the case for trial, the case would not be subject to dismissal under MCR 2.502. [Footnotes 2-5 omitted, emphasis added.]
Actions previously dismissed for lack of progress under the 1963 rules for failure of the parties to attend pretrial, mediation, or to respond to trial calls are still subject to dismissal under the MCR, but not under MCR 2.502. See Banta v Serban, 370 Mich 367; 121 NW2d 854 (1963). [Footnotes 6 and 7 omitted.] | [
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] |
Dethmers, C. J.
Plaintiff filed her bill, complaining of the defendant city commission that it adopted an ordinance authorizing acquisition and construction of parking facilities and issuance of self-liquidating revenue bonds to pay the costs thereof .and to refund outstanding bonds of a previous parking revenue bond issue and providing for retirement of the bonds to be issued from revenues of the'parking system; that it adopted a resolution pursuant thereto for the sale of said refunding' and improvement revenue bonds, which are to be payable, under the ordinance, out of net revenues of the parking system and are not to be general obligations of the city; that refunding of the outstanding earlier bonds will necessitate payment of a premium for their premature calling and also payment of a higher interest rate on the new bonds issued for refunding purposes than, is called for on the old bonds to be refunded thereby, and that this will result in the waste of public funds. The ordinance authorizing the original bond issue and the one authorizing the new proposed issue proceeded under the authority of PA 1933, No 94, as amended (see CL 1948 and CLS 1956, § 141.101 et seq. [Stat Ann 1949 Rev and Stat Ann 1957 Cum Supp § 5.2731 et seq.]). Plaintiff prays that the issue and sale of the proposed bonds be enjoined.
Defendants moved to dismiss. Prom the trial court’s denial of their motion, on leave granted, they have taken an appeal here in the nature of mandamus, praying for a writ directing the court below to enter an order dismissing the case.
The allegations of plaintiff’s bill of complaint do not cause it to appear .that issuance of the revenue bonds would injure her rights as a taxpayer or serve to increase or affect the taxes levied or to be levied on her property. Menendez v. City of Detroit, 337 Mich 476, is conclusive of a holding that her bill does not make out a case for injunctive relief or show her to be a proper party plaintiff in a suit for the relief sought. Accordingly, defendant’s motion to dismiss, based on that and other grounds, should have been granted.
Reversed and remanded for entry of order dismissing. Costs to defendants.
Carr, Kelly, Smith, Black, Edwards, Voelker, and Kavanagh, JJ., concurred. | [
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Voelker, J.
The defendant was stopped for speeding on the Detroit expressway and it was discovered that he had no operator’s license in his immediate possession, an offense under State law (PA 1949, No 300, § 311 [CDS 1956, § 257.311, Stat Ann 1952 Rev § 9.2012]) for which he was charged, tried, convicted, and sentenced to serve 90 days in jail. Upon leave granted he has appealed here.
Defendant’s major claim for relief is planted on the ground that the reason he admittedly failed to have his operator’s license in his immediate possession was that it had some 2 years earlier been “unlawfully and illegally confiscated without right” by the traffic and ordinance division of the recorder’s court for the city of Detroit following his conviction for the violation of a traffic ordinance.
We gather from the truncated record before us that this is what happened: back in 1954 defendant was ticketed for driving with defective brakes and later tried under an ordinance on- this subject by a referee of the traffic and ordinance division of the recorder’s court. The referee appears promptly to have found him guilty and written on the back of his ticket “6 months probation, no driving,” following which the court clerk asked for and took possession of defendant’s operator’s license, where it apparently still reposes.
Thereafter, and within the 6-months’ probationary period above mentioned, the defendant was prosecuted and convicted under State law for driving without an operator’s license. Por this he was given 10 days in jail in addition to probation for 1 year with no driving. Thereafter'and within-a year, the defendant was again prosecuted and convicted under State law for again driving without an operator’s license and this time was given 20 days in, jail with 2 years’ probation and no driving. During this 2-year period the present offense was committed, which is the only conviction of the foregoing series from which the defendant has taken any appeal.
It is the defendant’s contention that the original taking of his operator’s license was unlawful; that his so-called original probation was faulty and a nullity (largely because of the failure actually to place him under the statutorily contemplated supervision of a probation officer); that in any case the traffic referee is not a judge and therefore lacked the power to place him on probation; and finally that the taking of an operator’s license is never a lawful order under probation. He seeks also to attack the constitutionality of the legislation creating referees of the traffic and ordinance division of the recorder’s court. In fact he seeks to question the legality of many, if not the entire present traffic procedures before the referees of that court, calling it in effect a scandalously rushed and crowded legal treadmill from which the last vestiges of any concern for even elementary due process have long since flown. Finally, it is his claim that since his original conviction and sentence was unlawful and void that all interim convictions, including the last, must fall. With this final proposition we cannot agree.
However interesting and possibly meritorious the questions may be of whether or not certain trial and probationary procedures before the referees of the traffic and ordinance division of the recorder’s court for the city of Detroit are faulty and illegal, they cannot be raised as the defendant seeks here to raise them. We therefore do not pass on them nor do we undertake to say precisely how they may be raised, but it appears likely it would have to be on Some sort of direct appeal from the conviction complained of, or possibly in some appropriate proceeding addressed directly at recovering the allegedly wrongfully confiscated operator’s license, but certainly not obliquely and collaterally and several years (and convictions) later, as here. That all of these convictions happened to occur in one area is coincidental. Had this same defendant instead been last arrested for this offense while touring in the distant Upper Peninsula we doubt that a village justice of peace there would or should be expected to grapple with or pass on a defense contention attempting to attack an old Detroit conviction, however faulty, as well as the legality of the referee traffic system in Detroit. We think the defendant should timely have pulled the laboring oar himself. This would doubtless be true even if someone had stolen his operator’s license. His conviction below must, accordingly, be affirmed.
Dbthmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred.
See CLS 1956, § 257.904 (Stat Ann 1952 Rev § 9.2604).—Re-porter. | [
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Kavanagh, J.
This case was originally submitted at the October, 1957, term of Court. On the 24th day of December, 1957, the holding of the circuit judge was sustained by a 4-4 decision (Weller v. Mancha, 351 Mich 50). Subsequently a motion for rehearing was timely made. It was granted for presentation at the present term of Court (April).
The facts with respect to this case are clearly and adequately set out in the opinion written by Mr. Justice Black in the original opinion. I do not believe that any good purpose would be served by a restatement. I do believe appropriate, however, to point out that Mr. Justice Carr, in his December opinion, makes several assumptions with reference to the testimony that are not supported in the briefs and appendices, and which appear to be the basis for his final legal conclusion.
First, he states that:
“The testimony in the case indicates that each driver approached the intersection without considering possible traffic on the intersecting road.”
There is no testimony which could lead anyone to infer positively that plaintiff’s decedent failed to observe in the direction of the approaching Mancha car.
Secondly, my Brother states:
“It is a fair inference also that the automobiles of the parties entered the intersection at approximately the same time.”
The only testimony in this regard is the testimony of plaintiff’s witness Bylsma, who indicated that plaintiff’s decedent entered the intersection and passed practically by the imaginary center line of Tyrone road at the time of the impact. His testimony was further that plaintiff’s decedent had slowed down from the speed he was driving when he passed the witness, and was driving not more than 30 miles per hour. The other testimony in the case indicated that the Mancha car had approached at a speed of at least between 45 and 50 miles per hour.
The third inference with respect to which I would like to comment is:
“The inference to be drawn from the proofs [that decedent looked or that the other car changed direction or speed] is that neither occurred. If Mr. Weller made the observations that due care required of him he was guilty of negligence as a matter of law in not acting accordingly for his own safety.”
It seems to me that the first inference made by Mr. Justice Carr is only 1 of 3 fair inferences that might be drawn from the proofs, particularly since we are dealing with a motion for a directed verdict, and under such circumstances the testimony must be considered most favorably for the plaintiff. The second inference would be that plaintiff observed the approaching Mancha car and taking into consideration its speed formed an opinion that he would be able to pass the intersection in safety, considering that he had the right-of-way under the statute. Certainly the question of whether or not such a deduction on his part was that of a reasonably prudent man under the same or similar circumstances would be a question of fact for the jury to decide. The third inference that might be drawn from the proofs would be that he made the observation, but because of the gray color of the car, the snow on. the ground, and other factors, including speed, failed to see the approaching Mancha car. The question of whether a reasonably prudent person would have failed to see the approaching Mancha car under similar circumstances would be a question of fact for the jury to decide.
The fourth assumption is based on the following:
“The testimony of plaintiff’s witness, above mentioned, indicates that decedent neither decreased nor accelerated his speed, nor sought to turn to his right to avoid a collision with defendants’ car.”
I have searched in vain in the record to substantiate the portion of the above quote, which reads as follows:
“nor sought to turn to his right to avoid a collision with defendants’ car.”
Plaintiff’s witness merely testified that he did not know whether he turned to the right or left, and that he did not observe him do so.
Without these assumptions, I do not believe that Mr. Justice Carr would have reached the conclusion that plaintiff’s decedent was guilty of contributory negligence as a matter of law.
Although in view of the new amendment adding section 3a to Court Pule No 23, changing the burden of proof with respect to contributory negligence, the number of cases in which the rule cited in Schillinger v. Wyman, 331 Mich 160, applies will be fewer in number, it would appear that under certain circumstances on defendant’s motion for directed verdict, made at the close of proofs iu a death case, the motion assigning contributory negligence (proved to some extent in the defendant’s case) as a ground for granting the motion, the question would arise: Should the presumption of due care be submitted to the jury along with the defendant’s proof of contributory negligence, or should a verdict be directed on the motion? Even the rule established in Schillinger is entitled to proper burial, and it appears to this Court that the members of the bench and bar are entitled to know that it has been properly interred with its progeny — Marchlewics v. Morrisette, 332 Mich 271; Ludwick v. Hendricks, 335 Mich 633; Hoag v. Hyzy, 339 Mich 163; Erickson v. Vendzah, 340 Mich 556; Earley v. Sutherby, 341 Mich 77; Hett v. Duffy, 346 Mich 456; Detroit Automobile Inter-Insurance Exchange v. Powe, 348 Mich 548; Steger v. Blanchard, 350 Mich 579.
Justice Voelker in the prevailing opinion on rehearing, filed June 12, 1958, in the case of Steger v. Blanchard, 353 Mich 140, has expressly overruled Schillinger v. Wyman, 331 Mich 160, and along with it its progeny, above mentioned, at least so far as it is in conflict with Gillett v. Michigan United Traction Co., 205 Mich 410, and as restated by Justice Black’s dissent in Hett v. Duffy, supra.
For these reasons, and the many others ably presented by Justice Black in his opinion, including the citations of authority, I believe the lower court erred in granting the non obstante veredicto judgment.
The trial court in its opinion on motions for judgment notwithstanding the verdict and plaintiff’s motion for partial new trial indicated that the verdict was clearly the result of compromise; that such error taints the entire verdict and requires a new trial as to all issues in the case. He concludes the opinion by saying:
“I assume that this case will probably reach the Supreme Court. In the event that that Court should reverse this decision, there will remain the question of a partial new trial. Inasmuch as, in the first instance, the granting of such a new trial is a question of discretion in the trial court I will indicate my opinion on that matter.
“The verdict here was in the exact amount of the out-of-pocket expense for medical, hospital and funeral bills and damage to the automobile, nothing was allowed for pain and suffering and nothing for loss of support.
“Decedent was 60 years of age, in good health and had an expectancy of approximately .14 years. He was earning $56 per week and had some additional income from a farm. He had a wife and a 13-year-old daughter who were dependent upon him. If a motion were made for a complete new trial the Court would have felt under obligation to have granted it on the ground that the verdict was the result of a compromise. Zielinski v. Harris, 289 Mich 381.”
In the case of St. John v. Nichols, 331 Mich 148, in the words of Chief Justice Dethmers, this Court said (p 158): '
“This Court possesses inherent power, however, to order a new trial whenever it deems that the ends of justice so require.”
I agree with the statement of the trial court in regard to possible new trial. The jury verdict was for the exact amount of the stipulated special damages of the deceased. It is apparent that no consideration was given by the jury to the additional elements of the pain and suffering of the deceased and the future damages of the widow and minor child, and, therefore, the damages awarded to plaintiff were overwhelmingly against the evidence, and, under the evidence, grossly inadequate.
This case should be reversed and remanded for complete retrial. Costs to plaintiff.
Smith, Black, Edwards, and Voelker, JJ., concurred with Kavanagh, J.
See 352 Mieh xiv.—Reporter.
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Kavanagh, J.
Plaintiff brought suit in circuit court to recover damages for personal injuries to his wife, claimed to have resulted from defendant Richard E. McCarthy’s negligence in the operation of a truck. One declaration was filed by plaintiff, Ira Hicks, as administrator of the estate of Lennie B. Hicks, deceased, seeking damages for pain and suffering, loss of earnings, and expenses; the other by plaintiff, Ira Hicks, in his individual capacity, alleging that as a result of the negligence of defendant Richard E. McCarthy’s operation of defendant B & B Distributors truck, causing said truck to run into the back end of the car driven by plaintiff’s wife, injuries were sustained which resulted in her death, and he had become liable for medical, hospital, funeral, and burial expenses, Plaintiff sought to recover for these and for the loss of his wife’s services, as well as for damage to his automobile.
The declaration alleged that on or about the 27th day of July, 1954, at or about 4:10 p.m. of that day and date, the plaintiff’s wife, Lennie B. Hicks, was operating plaintiff’s Plymouth automobile in an easterly direction on Peterboro avenue at and near Cass avenue in the city of Detroit, Wayne county, Michigan; that on the day and date and time aforesaid, defendant Richard E. McCarthy was operating a Dodge truck in an easterly direction on Peterboro avenue; that the truck was owned by defendant B & B Distributors, Inc.; that defendant McCarthy was driving- said truck with the knowledge, consent, and permission of the said B & B Distributors, Inc. ; that said defendant McCarthy so operated his vehicle as to run into the back end of plaintiff’s automobile while said automobile was standing and stopped waiting for a red light on Cass avenue near Peterboro avenue in the city of Detroit, Michigan; that plaintiff’s wife received serious injuries, and subsequently died as a result thereof. It was further averred that plaintiff’s wife at the time of the accident was free from any contributory negligence, and that defendant McCarthy’s negligence was the proximate cause of the accident.
The cases were consolidated and tried before a jury on the declarations and answers. During the trial a dispute arose over some distances on a map prepared by an engineer relative to the intersection involved. The pretrial statement indicates that counsel for both parties had agreed that the map should be prepared and admitted in evidence. When it was offered, the'attorney for defendant objected to what he alleged were incorrect distances on the map. Other testimony was introduced to show the map was incorrect,
At the conclusion of proofs both sides moved for a directed verdict. Both motions were denied. The jury returned a verdict of no cause for action, and judgment was entered in the consolidated cause by the trial judge. Motion to set aside the verdict of the jury and grant a new trial was made by the plaintiff. The trial court denied the motion.
Plaintiff lias appealed to this Court, claiming the lower court erred in the following manner: (1) the charge of the court was erroneous and prejudicial to plaintiff; (2) the court erred in permitting a disputed map to be taken into the jury room during the deliberations; (3) the court erred in refusing to direct a verdict for plaintiff; (4) the court erred in denying plaintiff’s motion for a new trial in that the verdict was against the great weight of the evidence, and defendant failed to sustain the burden of proving that the decedent was guilty of contributory negligence; (5) the court’s instructions to the jury were contrary to law.
At defendants’ request the trial court instructed the jury concerning the so-called sudden-emergency rule in the following language:
“Counsel for defendant has also asked me to give you a request to charge. In this case there was a claim by the defendant driver that the deceased driving her car came to a sudden stop in front of him. The defendant driver claimed she came to a sudden stop. There is testimony in support of each claim, both that he did not see what he was doing or he ran into her without his car under control because he did not keep his car under control so he could stop in the safe clear distance ahead; and also testimony that she came to a sudden stop. So that is a controversial issue in the case.
“If the plaintiff came to a sudden stop without giving ample warning to the defendant driver, then the jury could find she was guilty of contributory negligence; or the jury could find that under the circumstances the. defendant driver was faced with a sudden emergency and was not negligent in colliding with the plaintiff’s car. That is taken from 310 Michigan page 219.”
The charge failed to advise the jury that a party is entitled to the benefit of the sudden emergency-rule only if the emergency occurs through no fault or negligence of his own.
Such an instruction as the one above has been considered by this Court on several occasions, and the failure to advise the jury that a party is entitled to the benefit of that rule only if the emergency occurs through no fault or negligence of his own, has,, in each instance, been held to constitute reversible-error. Socony Vacuum Oil Co. v. Marvin, 313 Mich 528; Hansel v. Hawkins, 326 Mich 177, and cases to-the same effect therein quoted by Chief Justice Dethmers, including Walker v. Rebeuhr, 255 Mich 204; Lagassee v. Quick, 273 Mich 295; Anderson v. Bliss, 281 Mich 323; Murner v. Thorpe, 284 Mich 331.
In Lepley v. Bryant, 336 Mich 224, 235,- Justice-Carr incorporates .in his opinion a paragraph from Huddy on Automobiles, taken from Walker v. Rebeuhr, supra, and, also, refers to' the cases cited by Chief Justice Dethmers, supra, in support of thócontention that the request to charge by the defendant in that case (which was similar to the one in the instant case) did not constitute a complete and proper statement of the sudden emergency rule, and,, therefore, the trial court correctly refused to give it..
It is the contention of defendant that no complaint or objection to the charge was made by the plaintiff, either at the time of trial or in the argument for new trial, and that, therefore, he cannot now object to the instruction as given. Such is not the rule. Pierson v. Smith, 211 Mich 292; Hansel v.. Hawkins, supra. Failure to give a proper charge constituted reversible error.
The order denying the motion for new trial is reversed. A new trial is granted, with costs to plaintiff.
In view of the fact that the other alleged errors are not likely to occur in a new trial of the case, we deem it not necessary to discuss them.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Voelker, JJ., concurred.
Resnilc y. Irumbull-Chevrolet Sales Co., 310 Mich 214.—Reporter. | [
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Dethmers, C. J.
(dissenting). Defendants were convicted by jury in circuit court of the crime of knowingly making open and indecent exposure of their persons in violation of CLS 1956, § 750.335a (Stat Aun 1954 Rev § 28.567[1]). The court placed them on probation for 2 years, making it a condition thereof that each serve 30 days in the county jail and pay a $250 fine and $100 costs. They appeal.
Two State police officers had gone on business to “Sunshine Gardens,” a nudist camp operated on private property in a secluded area. While there they had seen certain nude persons, secured their names and obtained warrants for their arrest. Thereafter, 1 of those 2 officers, in company with another officer, went to the camp with the warrants to arrest the persons therein named. While there, they saw other naked men, women, boys, and girls, out of doors, some standing, some sitting, some walking around, several in the vicinity of a pool, all exposed to the view of each other. Included were the defendants, adults, and also 4 girls then 8, 10, 11 and 12 years of age, respectively, and a 17-year-old boy, before whom the 4 defendants stood nude with private parts exposed. The officers then and there arrested defendants. Their prosecutions ensued.
We decline to take the excursion into the field of the definitions, desirability, and delights of nudism, psychiatric considerations or purportedly applicable quotations from the Scriptures suggested in the briefs, or the flights of fantasy to which the subject may beckon. Consideration will be limited to questiohs of law raised by appellants, of which most are ■scarcely novel and none deserving of extended discussion. ■
It is urged that there was illegal search and arrest on private property; that the statute is vague, indefinite, fails to define “open” or “indecent” exposure, is not sufficiently explicit to inform persons as to what conduct will render them liable to its penalties, and that it is, for these reasons, repugnant to the due process clause of the 14th Amendment and void; that it does not, by its terms, apply to the organized practice of nudism; that it is not violated by nakedness on private property; that nudity, per se, is not obscene and every exposure of the person not indecent, particularly when the exposure does not offend the morals or sense of decency of those present and there are no other overt acts of indecency or obscenity aside from the bare fact of nudity. These points have been considered and answered in People v. Ring, 267 Mich 657 (93 ALR 993), and the cases therein discussed. The distinguishing-feature in that case that there was testimony that one couple was engaged in what appeared to be improper conduct was not treated as of such controlling importance or so vital to the reasoning and holdings in this Court’s opinion in Ring as to render them inapplicable here. Nor are they any less so because the statute then in effect prohibited designedly making an open or indecent or obscene exposure, while, by reason of subsequent amendment, it now is-directed to knowingly making an open or indecent exposure. • The comments on the Ring Case, commencing at 33 Michigan L Rev 936, do not persuade-us that it ought now to be overruled. They do clearly indicate that Ring governs and applies to the-factual situation presented here.
Though the term “exposure,” qualified by such adjectives as “open,” “indecent,” “obscene,” “immodest,” or others of like import, be difficult of' definition, the practice need not for that reason be permitted to run rife in Michigan. As indicated in Ring and cases therein considered, the average jury, composed of members of the community, can be expected to represent and embrace a cross section of the community thinking and moral standards which are first reflected in the legislative enactment by the people’s chosen representatives and, once again, in the statute’s application to the facts of the case by the jury in arriving at its finding and verdict that certain conduct is violative thereof. That a jury found it to have been violated by defendants’ exposure of their persons to the young children in this case and the exposure of the children themselves should be surprising to neither the pure in heart nor the lewd.
In Roth v. United States, 354 US 476 (77 S Ct 1304, 1 L ed2d 1498), the court considered statutes couched in the same general terms as those of the statute before us, the words “obscene” and “indecent” having been employed there, as here, without further definition. The court held that the statutes, applied according to the proper standard for judging obscenity, do not violate constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. The court further held that obscenity is not, as defendants here claim for nudism, within the area of constitutionally protected freedom of speech and, finally, that the proper standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the conduct in question has a tendency to excite lustful thoughts. The Michigan statute depends, for its force in proscribing indecent exposure, upon employing that precise standard which inheres, as we have seen above, in jury application of the statute to the facts at bar under court instructions entirely consistent therewith, as they were in this case. The logic of Roth with respect to inapplicability of the guarantee of freedom of speech is as persuasive in a consideration of the applicability of the right to peaceably as semble, which defendants contend is violated by their convictions in this case. Nakedness has not, until now, been held an essential element of that right, and obscenity should prove as severe a limitation on that right as it was held, in Roth, to be on the right of free speech.
The claim of prejudicial remarks by the prosecuting attorney, entitling defendants to a new7- trial, is without merit, it neither appearing that the jury comprehended them nor that they were préjudiciai in character.
The convictions should be affirmed.
Carr and Kelly, JJ., concurred with Dethmers, C. J.
See Const (1908), art 2, § 2.—Reporter. | [
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Black, J.
The plaintiff fidelity insurers, having duly succeeded to the presently unveiled rights of the Commonwealth Bank of Detroit, filed this bill for declaration of a constructive trust and related relief against defendants Calmar M. Stordahl and Grace A. Stordahl, husband and wife. The chancellor, following trial of issues made by the bill and separate answers filed by Mr. and Mrs. Stordahl, entered a decree vesting title to 3 lots (comprising in all the home premises of Mr. and Mrs. Stordahl) in plaintiffs as designated tenants in common and as beneficiaries of a trust identifying Mr. Stordahl as trustee ex maleficio. By the decree plaintiffs were required to pay Mrs. Stordahl the total sum of $1,293.12, representing decree-determined payments made by her (from her own earnings following Mr. Stordahl’s arrest in 1951) toward retirement of the home purchase money mortgage. In addition to the 3 lots, plaintiffs by the decree were awarded title to an automobile of the defendants and 26 shares of the capital stock of the bank, which stock theretofore was owned by Mr. and Mrs. Stordahl and valued (in the decree) at the sum of $4,524. Other lesser items of personal property were similarly awarded to plaintiffs.
For many years Mr. Stordahl was a teller, and later an officer, of the bank. Between 1933 and the date of what is known in the record as his confession, Mr. Stordahl embezzled funds of the bank amounting net to $130,313.07. Mrs. Stordahl had no knowledge of her husband’s conduct in such regard. The chancellor’s finding, of innocence on her part, is fully sustained by the record. Evidence was adduced tending to show that the “defalcation was wasted on horse racing and other forms of gambling.” The chancellor found, as against such proof, that Mr. and Mrs. Stordahl did not, during the presently described period of home-acquisition, have sufficient funds with which to live and at the same time acquire “some of these assets” without making use of “part of the embezzled money.” Accordingly, and having found circumstantially that the 3 lots in fact were purchased by and with misappropriated funds of the bank, the chancellor in appropriate terms constructed the trust outlined above.
We are concerned here only with Mrs. Stordahl’s claimed rights and interests in and to the mentioned real estate. It is said that the testimonial record does not sustain outright award thereof to plaintiffs, over and above the lien so granted her. Such is the issue we are asked to resolve — an issue which turns more on evidentiary facts than a controlling point or points of law.
The Stordahl home was originally constructed on lot 3038 (of the designated subdivision) by a Dr. Madison. The Stordahls became tenants of the home in 1937. They negotiated at the time for its purchase, only to find that Dr. Madison, although willing to sell, was unable to do so on account of pending mari■tal trouble. It ajipears without dispute that the ' Stordahls orally arranged with Dr. Madison at the time that they “would have the first opportunity to buy it” when the doctor was ready to sell and, by further arrangement, that the Stordahls would be allowed to make repairs and improvements with purchase in mind as they remained tenants. The’ Stordahls ultimately purchased (by warranty deed naming them as tenants by entirety) said lot 3038 in August of 1945, having previously purchased from separate grantors adjacent and vacant lots 3039 and 3040. The purchase of lot 3038 was for the stated consideration of $8,100, $2,100 of which was paid down with the remainder financed by a purchase money mortgage in the sum of $6,000. The 3 lots are now, by finding and order below, valued at the sum of $24,500.
First: This Court, having declared itself unequivocally in Massachusetts Bonding & Insurance Co. v. Josselyn, 224 Mich 159, is firmly committed to these rules:
“Where money held upon trust is misapplied by the trustee and traced into an unauthorized investment in property of any nature, the investment thus made, in the absence of a claim of bona fide ownership by a third person, may be treated by the cestui que trust as made for his benefit. The consideration for the investment is trust money and the beneficiary of the trust becomes the equitable owner of the property purchased therewith. His right is a property right, not one created by a court of equity, and if such money has been used in the purchase of real estate or personal property of any kind, the title of which is taken in the name of any other person except a bona fide holder for value, such property, irrespective of whether it has increased or decreased in value, may be seized upon as the property belonging to the trust” (Long v. Earle, 277 Mich 505, 525, 526).
Have plaintiffs sustained the burden, exacted by their bill and the rules just quoted, so as to justify a decree awarding them outright title to the 3 lots in question? If they have, the required proof must be found in tenuous if not imaginary circumstances. The chancellor said:
“No proof was offered directly tracing any of the embezzled funds into these assets, and probably none was available. There was no proof of commingling of embezzled funds with other funds in a common fund. However, there was proof, which established to the satisfaction of this court, that from 1943 to 1951 the Stordahls did not have sufficient money to live and acquire some of these assets without making use of part of the embezzled money.” t
To justify a finding that the subject matter of an alleged constructive trust was exclusively acquired through utilization of misapplied trust funds, fair certainty of tracing such funds into the exact property in question must be testimonially established. Further, where the rights of an innocent third person are involved, it is not enough to prove, or to infer circumstantially from proof, that some undetermined portion of the misapplied funds was used to acquire some unidentified portion of variant types or descriptions of the target property, in order to obtain a decree bringing all such property within the trust perimeter. Here the most one may say for plaintiffs’ proofs, as applied to the 3 lots, is that a major part of the total down payment, on the .home lot proper, by fair inference came from a then recent peculation of $2,000 rather than from a sale of Investors’ Mutual stock (as testified by Mr. Stordahl); that Mrs, Stordahl thereafter and until she' resumed work in 1951 had no income in her own right, and that the interim mortgage payments must have come from funds of the bank whether such payments constituted embezzled funds or not; the applicable legal theory being that Mr. Stordahl’s salary earned during such interim, belonged — considering his previous and unacquitted embezzlements — to the bank.
All this, considering Mrs. Stordahl’s evident interest in the realty subject matter, is insufficient to support the decree as entered below. We proceed:
Mrs. Stordahl, her innocence of wrongdoing established, stands before us clothed with the protection equity provides in favor of all bona fide purchasers of interests in property. It was shown by her testimony, and we find no reason in the record for disbelief thereof, that she contributed $400 from her own funds to the making up of the mentioned down payment. It was shown further, quite without dispute, that Mrs. Stordahl herself did considerable work upon and about the home in the way of permanent improvement thereof. The labor done by her included carpenter work, carrying of cement, laying of tile and assisting in the construction of a fireplace. Work of such nature, to say nothing of the daily toil a dutiful wife and mother contributes to the necessary preservation and maintenance of the family home — without which in this instance it is doubtful that any property would have become available for trust impressment, — is as much an “investment” therein (contending values being equal or substantially so) as is money earned or embezzled by her husband and devoted by him to its acquisition. Equity will no more countenance defeat of this wife’s real investment in that home than it will permit frustration of the bank’s original and now assigned right to beneficially trace its “invested” funds into the same subject matter. Each has rights, and each is entitled to appeal to the grace of our maxims.
Second: We are apt, if not vigilant, to overlook the true status of the defendant husband and the defendant wife when they undertook acquisition by entirety of the home lot. Though they intended otherwise the husband, having utilized the bank’s funds for such purpose, received by force of equitable principles an interest in the lot as trustee for the bank. The wife in turn and by the same force received a separate interest. Why did they not become tenants by entirety? Because, “As neither one was seised of the whole, but both held' by distinct titles, they could not have been tenants by the entirety” (Pegg v. Pegg, 165 Mich 228, 230 [33 LRA NS 166, Ann Cas 1912C, 925]). As was held later in Wright v. Knapp, 183 Mich 656, 658, 659:
“An attempt undoubtedly was made to create an estate in entirety, but it failed, because the formalities of the law were not observed in its creation. Pegg v. Pegg, 165 Mich 228; * * * Cameron v. Steves, 9 N Brunswick, 141. This being so, the conveyance must be regarded the same as though made to strangers, and not to man and wife.”
Following Pegg and Wright, it is ruled that Mr. and Mrs. Stordahl became and yet remain tenants in common of the home lot; Mr. Stordahl holding an undivided interest as trustee of and for the plaintiff beneficiaries, and Mrs. Stordahl holding an undivided interest in her own right. As to the separately acquired lots (Nos. 3039 and 3040), we find no evidence supporting a finding that funds of the bank were employed in supplying the comparatively smaller purchase consideration thereof. This brings up the pointedly final question: What is the proportionate interest of the trust beneficiaries on the one hand, and that of Mrs. Stordahl on the other, in and to the home lot (No. 3038) ?
Viewing the testimonial record from its 4 corners, and according plaintiffs the unfettered inference that Mr. Stordahl utilized funds of the bank with which to supply $1,700 of the mentioned down payment plus the sum of all mortgage payments made between ■August of 1945 and the time of his arrest in 1951 (approximately $4,800), we find ourselves unable to say that the invested equity of the one tenant (the -trustee) adds to a greater amount than that of the other. One invested funds of the hank aggregating the approximate sum of $6,500. The other invested her own funds totalling $1,693.12 plus the indeterminable value of her labor and about-the-house contribution to upkeep of the home and augmentation of its value. In these circumstances we are constrained to rely upon, and apply to decision of this case, the presumption of equality of contribution by the defendant husband (as trustee) and of the defendant wife individually. This Court did so in the quite similar case of Newlove v. Callaghan, 86 Mich 297 (24 Am St Rep 123), rehearing 86 Mich 301, and we are disposed to enter the same decree here as was directed on remand of that case.
Reversed and remanded for entry of decree adjudging the plaintiff beneficiaries to be owners of an undivided 1/2 interest in said lot 3038 and adjudging defendant Grace M. Stordahl owner of an undivided 1/2 interest in the same lot; decreeing that plaintiffs are possessed of no right or interest in and to said lots 3039 and 3040, and determining that plaintiffs collectively on the one hand, and defendant Grace M. Stordahl on the other, shall hear equally the burden of retiring the balance of the mentioned purchase money mortgage as same stood at the time of trial below, such then balance being $3,850.25. Provisions of the chancellor’s decree not affected by this opinion shall remain intact. Costs of this Conrt to defendants.
Dethmers, C. J., and Carr, Kelly,- Smith, Edwards, Voelker, a'nd Kavanagh, JJ., concnrred.
The instrument, written on a date and memo sheet of a calendar (the date being August 21, 1951), reads as follows:
“This is to certify that all my ill doings are my own. The staff or no one else new about any of my transactions or assisted me in know way. God spare my wife and child.
• /s/ C. M. Stordahl”
The actual consideration was $9,100, the Stordahls having been •allowed, by'Dr. Madison, .the sum of $1,000 for repairs previously made by them.
Por various declarations and applications of this rebuttable presumption that common estates are presumed to be co-equal, see Taylor v. Taylor, 310 Mich 541 (157 ALR 559) ; Hill v. Reiner, 167 Mich 400; City of Detroit v. Jacobs, 145 Mich 395; Michigan Beef & Provision Co. v. Coll, 116 Mich 261; Eberts v. Fisher, 44 Mich 551, and annotation, 156 ALR 515. | [
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Smith, J.
This case involves the measure of damages recoverable upon the breach of a lease agreement.
The parties entered into a written agreement under the terms of which plaintiff leased to defendant a juke box. The term of the lease was for 3 years from and after March 11, 1954. The rental payable was $20 per week. No rentals were ever paid. After 2 or 3 weeks the lessee told the lessor to remove the machine. “He said he didn’t want any arguments about it, just take the machine out.” At this time another machine was “hooked up” and plaintiff’s was “down at the other end of the bar.” The machine was accordingly removed and installed elsewhere at a lesser rental. Subsequently it was sold.
Action was brought in assumpsit in the common pleas court of the city of Detroit for the difference between rental specified in the lease, less the expenses of servicing the machine. Plaintiff had judgment in the sum of $1,624 and costs, which judgment was affirmed upon appeal to the circuit court for the county of Wayne.
Upon appeal to us the appellant raises substantially the same questions brought before Judge McCree of the circuit court for the county of Wayne upon appeal to such court from the trial court. The opinion of Judge McCree is both accurate and succinct and we adopt it as our own. It holds, in part, as follows:
“Defendant appeals, raising the following questions :
“1. Was the rental contract between the parties terminated by plaintiff’s repossession of the leased property?
“2. Was there a failure of consideration created by the plaintiff’s repossession of the leased property?
“3. Does the acceleration of the rental payments, for the full 3-year term constitute punitive damages?'
“4. The plaintiff having made himself whole by selling the leased property, did he completely mitigate his damages?
“5. Does the breach of a rental contract that specifies rental payments at specified times in the future mature such payments?
“The first 2 questions raised by defendant are not properly presented by the facts. The record shows clearly that plaintiff did not repossess the chattel. On the contrary, it shows unmistakably that defendant, after breaching the contract, re- ■ quested plaintiff to remove the chattel and that plaintiff did so, reserving his right to enforce the contract. Such action could not and did not terminate the contract, nor did it constitute a failure of consideration. The third question raised by defendant-appellant is not in accord with the theory of the case. Plaintiff is not suing for future instalments of rent. He is suing for his expectation interest, the profit he would have enjoyed had not defendant breached the contract. To determine this amount it is necessary to subtract plaintiff’s expenses from the consideration he would have received from defendant. Thus the amount of future rental is important only for the purpose of this computation, it being clear that plaintiff may not recover the contract price but only damages for breach thereof. (Mount Ida School for Girls v. Rood, 253 Mich 482 [74 ALR 1325].)
“Defendant’s fourth contention is not in accord with rule for measuring damages in cases of this sort. Plaintiff is still entitled to his bargain which he would have realized but for defendant’s breach. He is not required to maintain an ever-present ability to perform once his performance has been unequivocally repudiated by defendant. Were it not for defendant’s breach, at the expiration of 3 years plaintiff would have realized his profit and still possess his chattel. Having disposed of it, he has instead its value and should still be entitled to realize his profit.
“Defendant’s fifth contention again misappreheiids plaintiff’s theory of recovery. Plaintiff is suing not for future rentals hut for the difference between what he would have received and the expense of his performance. This seems to he the proper rule of damages and the judgment of the lower court is affirmed.”
We affirm the judgment of the circuit court. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Black, Edwards, Voelker, and Kavanagh, JJ., concurred. | [
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Edwards, J.
The Duluth, South Shore & Atlantic Railroad Company is a Minnesota corporation engaged primarily in hauling iron ore and freight to and from Minnesota and Wisconsin and Michigan’s upper peninsula. Five hundred and fifty-eight miles of its tracks, 81% of the total, are within the borders of Michigan. Of all net ton miles of revenue freight hauled in 1951, 532,709,000 miles, or 78%, were hauled in Michigan. Most of this freight moved between States with only 61,031,000 miles of it, or 9% of the total, representing freight miles between loading and unloading points located in Michigan.
In 1952 the Michigan legislature sought to include railroads under then-existing legislation (CL 1948, § 450.301 et seq. [Stat Ann § 21.201 et seqj]) requiring the payment of a franchise and privilege fee by each domestic and foreign corporation. These amendments which are applicable to railroad corporations were PA 1952, Nos 183 and 270 (CLS 1952, §§450.304, 450.305b, 450.82 [Stat Ann 1953 Cum Supp §§ 21.205, 21.208(2) ]). These amendments were given immediate effect as of April 29 and J une 12j1952.
On August 28, 1952, appellant filed a report and paid under protest the sum of $5,908.45 which it claimed to be the amount due under PA 1952, No 183, if such was constitutional.
On April 13, 1953, the corporation and securities commission issued a determination rejecting the railroad’s computation and computing the tax as follows:
“April 13, 1953
“Duluth, South Shore & Atlantic Railroad Company 1824 First Natl. Soo Line Bldg.
Minneapolis 2, Minnesota “Gentlemen:
“On September 2 we received your 1952 Michigan annual report with $5,908.45
“The privilege fee is computed on the paid-in capital and surplus as shown by the books of a corporation as of close of its fiscal or calendar year next preceding the time for filing. TJ.S. Government securities and paid-in capital surplus are not allowable deductions from surplus in computing the fee.
“We find the average ratio to be .798943. Applying this to paid-in capital of $10,500,000 and surplus of $1,693,500 at rate of 4 mills on the dollar results in $38,969.64 including $2 filing fee. Kindly remit balance due of $33,061.19.
“Very truly yours,
/s/ Ann Sawasky, “Director, Annual Reports”
The railroad then appealed this determination to the Michigan corporation tax appeal board which, after hearing, approved the fee as computed by the commission; and from this decision the railroad brings this appeal to this Court.
Before we detail and deal with the issues presented on appeal, some additional facts must be stated:
The appellant railroad was incorporated under the laws of Minnesota on October 19, 1949, and on November 1, 1949, it acquired the assets of Duluth, South Shore & Atlantic Railway Company and of Mineral Range Railroad Company. This acquisition was pursuant to a reorganization of these 2 railroads under section 77 of the United States bankruptcy act, as amended, by virtue of which appellant purchased these assets. It paid for them by the issue o'f<'2fOy00.G' shares of stock of no par value hut with ;a-statedvalue of! $501 á share,i!áhdi$5,’000,OODxifr face value of 4 % bojúks? Hhasússuédoho ad'ditiónhl stock so that at the time df^filirígíifs 'EnUháhihp'dit for 1952, its ..outstanding .paid-in capital coh'sistbd 'o’! jiL'l'C íridi rí. rían íil-'iUU t>‘ Si a OtJ 14„C,k > these ,!21&;060 :sháír!éé. ^^^o^hí^ stptík'wás'iBspM to and is owned by. 1hetCaná?dÍ&n'^a¿mó/j^ ■ ní co avJn‘;í» mccw';! nomíímoo mí opT-ic'rtnm* hí nü'i • pany. , Nonecof .it has. ever been sold. This reoxgani■‘Av.yA , :>;*» o ¡i» ;us 1 vrj_¡: m»,i>, m:, -xij'nuw nsi Qf!,fhg.,.as|,pi'|s sp^jqqt,..^ the > jappp Qvalfj an^paythfiFfe^ipíl-l fláíAft > Q.ommeMce>íc:pniinissÍQ3í andffee idietriét«cbp¡iítepf -tfe. United, SiM§&*&>r>4lhe} district-.pfr-Minné’sót'ay fb.híth division? cm íí00,í)(/(;„(í• A "U> tetiquo üi-fx.cq oS' mv
r’éb’igafiízhtí'á pl'án facts • AN. l<- on!) oomPm:
“The debtor wrpdrate's lipes of railroad extending frdm:qSSultmSte? Marie; i'i Michigan, and from St. Ignaee,, Michigap, westward to Soo Jiinction, Mpchighi'' ^lidfyNhey'jolh’; dMhée'ytésíWard fhVoiglPMkrquett'é; -Mibliigaíi,! Oto " Nesto'fiá? »fMichigan;1 -- then'cb northward' *‘fardill1' Ne stdriW No'! Ho'ughton;t1 'Michigáify and westward fromNestbEia to: Marengo; iWiscdnsiny, thence westward through ••AhhlandjcíW^iscohsiny;. and Superior,) ‘Waseohsiny ft®■.PulpthyiMinpegotay pqaip.xisingj425í;milpsip£;maín,;line,¡fgh jmileai.pfJ.^)ra,p(;h,lin^, pud l-Q2,.piilp?-p,í,leased,- l'ipe, ^fotaLpf ra^prp^imatply of’ land aid'rights' |ari¡Lpuhteá(' tjd,^ih,717,941?;'ah1 b,f pW5é&beV:f^íT'944yt'áfe¿pf9ümfg 'f bs the'hupdrf df^the literst&td"’comméfóéi1 doiinliisidi'?'s¿ b'ür'éau df'whli^ ktionh!' f,[t coibií ’ííov'io >-i ts r.;i bcmichm c.v* mW
’ * :“The} fcbrtidh1 df* ft/e lineé > extending:. ‘from-.- Mam quettfe thrdttghoNebtoriajlo'' Houghton >waá -£oppajeply o^whed.and!operated by theyMarquetfepljpugiitop;.^ Ontonagon — Railroad Company, and is-known-as MH&O mortgage ;ñiétrfct:-c^heAf§íoiklin'íñg'''í)0'ftrbns of, the .debtor’s” railroad, extending • westward .from Nestoriá and eastward frorh■ Márqhette,, áre collecknown as the,DSS&A
connection'!rith'the abode pailrM’t^ Mineral .Range, 2b milés lóhg,-' exfendiiig froil ÉoughtóñlMichiganj through ’Háñdó'ek'*tp'Cajifnaietj*.* ’The'’ cost óf xdpimdu^ifíhAf 'the/^tóiri^ralNahge'ljarlróadj, léiss déprebia&&f* 'jpliafe1 H)¿,lW(‘óf land' !áhd; pights', was $797,917 a‘á[ ¿hpptíember ‘31) l94l; accórárhg'ío' tíre re^orttotl’.lhb'/^^ df; vahíatioiis] This ídilt'b'ad'has'Válíie 'bnhcibally'aF'a ''feedérí'tb the ’debtor’s liriesf'1"t,,f*s ,r'::ií v i;i' Arr»
..“Qn January 2, 1937,,the debtor began this:píocpódíng1' by: 'fi|ih¿! ‘ íñ 'líiia $du£t*:,á' petition5’ hhóydpg that ’it 'wás hínábie1 fp. ihpet ithdéht^ds^d^ mkthrbd áñd!fthat'-ít desíyed íó!; effect ''a'plah'pf, r'épfgahi2á~ tidh; piirsñaht to,' Aectiod" 775 of’ lbs1 haufeiiptcy ‘ apt. The,' debtor’^' obligations) ;at ;thát lime inclüdedópü addífioh to’ large1 ■ amoiifi'tó cóf üíi’s'ócuféd,! d'óbt';the ibF lowing amounts of debt secured b‘y' 'b'utstáhdirig mortgages - of ,it^:,properties:- .¡..g a
“■Bonds;¡secured by ;the. ;MH&0 $.%;.-m.or.tr:anhr. b ;m•.«i ••■•jgage .of 1885t.(hereinafter called,Sixes),gw , g ¡\„ assumed by the principal debtor......$.1,400,000
“Bop^s.ipdarel.by fhe ^S.S&N.b^^r^t ; ,...ihortgage [pf 1887 .{.hereinafter- called y‘"\ Fives)..,...;^dl/,,,..';;i,. :... ' 4,ooo[ooo
“Bonds 'secured oy‘ '[•fliq'.í&^&AÍ^cdA'édlí- r(‘"/ !,t”' iS dated mortgage' of ’ 1890 ’ (h'eféihafteF ír‘;;;rrw: wt palled Fours) .... •. ..... .;í;g.. .g....:,;... /15,1Q7-,Q00 “Fnpaid ipter;esf pn.Fóurs> ,.g.i. ,¡,,Sh... ¿(¡21,599,315
;,, ■ i->c ‘-Total. ,:... uw<'...hgA
■ “On danhary 30,: 1937, Ihe corirt-appbinted^.-tru'sitees in bankruptcy! Hi. 'dñiheh'ilk. Ilomire whx> was nominated bygConhSellorlhe’ Brudénfial' Insurance Company whiéh -'owned ¡ ’-$416)000! :'of >th© Fives): -and MrV B/A. Whítiha'h%hó''wa& nominated‘.hy'-cohrlsOl for the Canadian5’ Pacific -'Railway CompanyiA..'Mr. Homire has since resigned, and Mr. Whitman is deceased. Mr. P. L. Solether is now the sole trustee.
“On July 1, 1937, the Mineral Range filed in this court a petition showing that it was unable to meet its debts as they matured, and praying that it be allowed to effect a plan of reorganization in connection with the plan to be effected for the debtor. The outstanding obligations of the Mineral Range at that time included, in addition to large amounts of unsecured debt and equipment trust obligations, $1,598,-675 of principal and $231,912 of unpaid interest owing on bonds secured by mortgages of its properties.
“Persons other than the Canadian Pacific held $3,-199,000 of the debtor’s Fives; an individual bondholder held $4,000 (reduced to $2,800 by subsequent payment) of Mineral Range bonds; and the Canadian Pacific owned directly or indirectly all of the other outstanding bonds of both the debtor and the Mineral Range.”
As indicated above, the great majority of bonded indebtedness was due the Canadian Pacific Railway, with $3,203,000 held by other persons or insurance companies.
After lengthy discussion of various proposed plans for reorganization, the Federal court approved a new capitalization plan proposed by the interstate commerce commission, as follows:
“Turning now to the plan approved by the commission, it contemplates that all properties of the principal and subsidiary debtors be vested in the reorganized company, which will then issue $5,000,000 of new 4% contingent interest bonds secured by a first mortgage on all properties of the reorganized company, and $10,500,000 of new capital stock consisting of 210,000 shares of common stock without par value but having a stated value of $50 per share. $500,000 of this stock is to be issued on the basis of the re organized company’s acquisition of the properties of the Mineral Eange.
“In support of such capitalization, the commission’s report referred inter alia, to the evidence establishing the following facts. The debtor’s average net income available for fixed charges as adjusted, for the years 1928 to 1945 (excluding the so-called depression years of 1930 to 1933, inclusive, and the so-called boom years of 1942 to 1945, inclusive) was $312,468. On the basis of studies made by the officers and staff of the trustees and debtors, it was estimated that net earnings of the future normal year would amount to $312,468. Deducting from the anticipated normal year’s net earnings of $312,468, $200,000 of interest on new bonds, Federal income taxes at 38% on the remainder, and $25,000 as a sinking fund payment on the new bonds, there would be about $44,730 available for dividends on the new stock in the future normal year, or about 21 cents per share. On the basis of net earnings equal to those of 1936 or 1941, the income available for dividends ■on the new stock would amount to over $1 per share. Capitalized at 4%, $312,468 produces $7,811,700 and the 1936 and 1941 earnings produce $15,569,850 and $16,055,400 respectively. The commission’s bureau of valuation estimates of cost of reproduction less depreciation plus the value of land and rights for the 2 debtors produce a total of $16,515,858.
“The court concludes that it should approve the new capitalization as approved by the commission.
“The commission’s plan proposed (in addition to cash distributions hereafter mentioned) the following divisions of the proposed issues of new bonds and stock as between (a) the $3,199,000 of Fives which were held on the effective date of the plan, January 1, 1945, by persons other than the Canadian Pacific, and (b) the holder of $4,000 of the subsidiary debt- or’s bonds, and (c) the Canadian Pacific as the then owner of $801,000 of Fives and of all other securities of the debtor and of all other securities of the Mineral Eange.
¡ f <- ¡ Cíí' h. ■ K>! I!S' [ ">'.i B ÓjbtlS}'■ ■ ■ ' ' Stocks ■ “To holders of $3,199,000 .‘'■•.‘■sváí ;s"r<>: ;,’■ f: . ; of , .Fivqs ¡. £¡,.,.^1^9^09^,...^,-.. • “To ..riqlders.ri'q^.'^OQÜ .pf.J. i a 111 ¿i<o¡
’'Thq effect'bf this rbbrganizatibh'is shb'wnlri fe^híbitlál'the aoM^riíjal'i^h'báldíiqé1 sheafs1 bf'4he pí'e'déces“br rail?óacís..ancí .the dué£y¿éof !t!ai$qtó ¡fár'íitíe yfé&r showed' bn 'ended..December', 31, l-949'.V. Tidái.erfpit,Y.T, the;|i-ss,ehi gide,, a 4 repnctipn'.ppdhe, .¡Bgijces,, p.tat{3d, £or .\tqt,al, -inyqstHréiit.s>, lqss ;V-ijepo^deí ;.dqprepiatiqn; and ;aipor:tózhtibn,:;f.rqipo$46í73,8j97Q! ¿0,;|>16:,'03,7,6561..;,. On ¡the--liability, side, it showed'. a; ■ reduction - .of '.capital '■stock'from.‘$22,000,í0OO<ítio/$Í®/5.OO,-O@0iVa’-riedhcti©níof Ibng-teí'ni débtf iban $Q6!,176y972’t'o‘ $6>7€1;272;< arid -the 'wiping off'the ‘bobit's-bf $32,85’4,b73!bf Siriter‘est!iii; de'fáriít. !'5 odi (fl0r -;o u.-N >.-»
; Triq.!i*égnlt,ri''of' .trié' rieriucompáriy ^dowri.!©,.1 J)éqepil'bE.'M] '$pi&f’balance'.’sheet ..pryo^to-(tfl,e. ta^jepr.,in .parablq total inyéstipqntofi-giWiqy legp rpeqqrdédj-depreciation and ,,.ahippti£atioip i.s..ishqwp.uas.'inprie^sed to ■ !$17",198466. I -The! -capital istockáb) 'shown -a>b t-hé .'Same hgurej-'^lO'500',000, fend^theiriotal sh^lhsrishows' -an > ■ínbréa'Sé'-’ Pf! %1,!000,-00@' lo; ¡'$1'693,501.
'■ :The ftíbV^¿T^bfe‘)tóyd'^e6tirifieSi'8ólñíídi^^da'!tó‘ók 'thesé ■l'áiét''fig'rire'é,,dallhé':'!p^id^típicdp'ital'hri¿[' <súi?<pfe;íbf|Lé'piiípBseybl í^cb^phtgilóri!oMffe "■jipe .nridjep'spci^^ "• .¡Anp -1^3;CÍnriy Sjípp 3 3 ’ t ■
-<..sThe;appellant ;rat|^p^dpfiftrs ,3> a^gllj>rient.i&.,in,..tliis ..appeal';-) indio iví '/o Ui\n yo/il ‘jo íh}04íCf-l;; ‘io '•-■-uyai
¡V (l)bTihat tithe:;commission.sand-«fax,jappeab hoard erred in the determination of paid-up. capital, and snrplns.,as stated pboye.;-,, .K.,p/ ; 2
,.T;hai.ngtitonip^e§iip^’i^Vs',^les fpCigh’tj transported, hy-itiinj Michigan. ;cama¡qt h;e used iq pleasure 'that- pó'idioni,offpái'd-np7éapit,alvand swjpfeis. ¡whiehds taxable'.im-Michigan* ;■ without, wiblatidmof the commence’ clausUOf ithc TFirited states 'Constitution.;;- »•/» '('3');'That-Púíd úepaiPaíe-^ibfimds' BAj Í'952/Nb 183, is úhéonStitutióhál’ lnthé''própóseah|jpNhátioñ‘'td appellant railroad, nncler the Michigan Constitution ‘ (1908).'"- v''; -d bad ''i^k,hvq id 'i'[ bdM' I . •
- 1/1 'We’shall -exUrniPb these>eont'entions¡d!n.:ithis; order.
1 * ids'to the-first’i-ssne lr:aise'd, the appellant ¡railroad contends that the corporation and securities, commission "erred ddmccbptingv appellant's > own 'book "figures hs tó!!capitar;an&'Surplus.■••'■It -coíitendíb that--its „book .figurq?., areycputepllOidí by, ipt§ESjfcf$g, -qoipaerce • commission, accounting! naethods apd ibylfitle .49, .§ 20 ,-ai, Of the-UiiitediSthteb'codejfiand .relies.-¡upon In.r.e ' 'Appeal of Hó¡sldf¿s»Mdnfg:-.Go.¡ ^i.OiMich.hQaj.where‘-iri'th'isdCoUrt'St^édíon'r'g'enérhlvrn'le .-(<pp 5,96,• 597):
>?-f #A¡9 0e State- is justified ip-holdijig that-thej, tap as ¡ ¿etqrmined ‘from ¡■the, corporate bAPliS-í ^ithe; statulejdoe^inqt^proyidp, in express language qp.by puthorizajioñi bf ..expense, ■ fopthe impractical prqecdure.o^nii^ anc|-appraisal -of,, each corpo-rafiqn .each sy.ear ,f>y‘, .tlilj .gtáte.;Tlt cpn.templates that .the.-tax ^hall ibe .fopiid.from ’thelah,,.nual .report,.,of,,the corporation., f b.,0$)'sn'cir étary' pf .State,. snppierne,ntecl,(by, tlje .further-'f.kefs; dém^ndjsd -under BÍl 19.31, ,t!o¿27,^§ ^tqlleá ,^nd ', exact Information -8 lÓtítój ; ¡Qhyiouslyjthé-source -fáct.s;íg the corporate hoohs¿Mwhich'bhentatutp assnihcsi, and, requires, shall be kept' correctly. 'Obviously, also, the h'óbks■"réprbsfent'the'>aotíon''o£.tbe‘Corpbrátibn ihlVal uing its assets and it has little cause to complain of such book values.
“But, because humans may err, there are exceptions to such rule. The State itself holds the balance sheet final only in the absence of fraud or error. Such exception is reasonable and proper if ‘error’ is given the broad meaning of ‘incorrectness’ and works to the protection of the taxpayer as well as the State. The law should be read and administered to secure to the State all sums justly due it, but no more.”
It should be noted in passing that the Hoskins rule was applicable only to computation of “surplus” and did not involve any dispute concerning “paid-in capital.”
The statutory provisions under which paid-in capital and surplus are computed are as follows:
“For the purpose of this act only, each share of no par value shall be deemed to have the value of at least $1, or such value as shall have been fixed by the corporation for the sale of such stock, or the book value as determined by the Michigan corporation and securities commission, whichever may be the higher. In any case where the capital of a corporation is not divided into shares, the whole property thereof shall be deemed to be the authorized capital stock for the purposes of this act.
“The term ‘surplus,’ as used in this act, shall be taken and deemed to mean the net value of the corporation’s property, less its outstanding indebtedness and paid-up capital; but in no case, either as to domestic or as to foreign corporations, shall any deduction be made from the item of paid-up capital, in computing the franchise fee thereon, by reason of any impairment of the same.” CLS 1952, § 450.304 (Stat Ann 1953 Cum Supp § 21.205).
The statutory language above, plus the interpretation placed thereon in In re Appeal of Newton Packing Co., 279 Mich 139, lends weight to appellees’ contention that appellant’s fair value argument is applicable only to the surplus item. Nonetheless we will discuss the issue as appellant poses it.
Appellant’s brief cites the evidence upon which it argues that the commission’s finding of paid-up capital and surplus overstated the actual value of its assets:
“As will be remembered, in the course of the reorganization certain creditors of the old railroads desired to receive bonds of the corporation resulting from the reorganization (this petitioner) rather than the shares of its stock to which they would be entitled under the plan. It was agreed between them and the Canadian Pacific Railway Company that the stock to which they would be entitled would be exchanged for some of the bonds to which that railroad company would be entitled. It was, therefore, necessary to fix a true value for the stock and a true value for the bonds. After arm’s length negotiations, it was determined that the value of the stock was $7.50 per share and the value of the bonds $70 per $100 of face value. These values were approved both by the I.C.C. and the court.
“Again, at the hearing petitioner gave evidence that the stocks of railroads comparable to petitioner had a market value about equal to 7.78 times their annual earnings per share. It also showed that the annual earnings of petitioner in 1951 were about $1 per share. On this basis, the value of each share of the no par stock of petitioner was $7.78 per share which is very close to the value assigned to this stock by the I.C.C. at the time of reorganization.
“This means that the actual value of the assets received by petitioner at the time of its incorporation was actually no more than $5,133,800 even allowing a value of $7.78 per share to the stock.
“210,000 shares at $7.78 per share......$1,633,800
“$5,000,000 of bonds at 70% of face value 3,500,000
$5,133,800”
..J TNftjífiusk computation" íappell£j,iitJ:r.élie's<'.,í6n'>'was rpade piiiOfitO/tboriOutryiióifi-.tbLe réorgariizatibh» order.. The opinipjiKnp.oaii wMéh|th;ati order .iwasi based,i;aá iVé hay e; fiiotedy <slaied.the>f'aii valuelof'íthe'.phybi'eaNasse.tg qfj theiíappepáñtuás-tíMySlé^SSS) -alidrauthoiized ca'Pífahzihtioriíatjí$10j5'00',DO@J>-'o aijUyi ua
The record discloses no protests at the hearing in
1 ' MPF» r\ /-> -v> I TT y\ +-lv z-v yi w /-, 1*4- n -r-w -i -*-v m 4~ ,— fair.! mate nailnoadí stocks :'ol!7y.>78 times.;qaa?nip.gS.í.‘! i^ppailarikiñrgeá thát.'this; formula should ibeeaccbpteotíto'>áhbwothev'tbtal!fívú;lUé-'íoíríthe c'ápitáb iétoikí ¡ámdoth'ístíút 1 shétilfij.'bS^pliái Ho> 19$1 earning’^bnlyy i* .i¡>oi.iiííh,> od bfuov.' viioqu-o-í ru.ír»
'■'•Wé5 ho'tfe -thht- d¥ r'|t^j6«IÍk±íJ,^.*íaí;íiíáSf1 i‘¿ q'ikiíb^TyífeW^fi^Rdiaii^Pácifití^NHílw^y CompEny, ■Wb ’ftot?¿ !th9Lt,'tipnfe_ ‘tíájs Wé nBfé mák‘Nie,$Í per.sjíare eáimngsPnqwHhefihpi »yt\(nj/xtn 'rnw iwTffdv oesítrt:. .'«dn <■ Son l lo jj.í >'¡. yjt, ject oí- appellants eo^|ii)l,ai,^ts,t)ar.e .^i^^taj^allyjirtlie i,te.-^ftí>í?8§4l9?tt)Ít&]ft?a^í>hAc.-d/8 utjifiY Jy.-j'.íia-i í: i
. .“in Support pi,,such capitalization, the, eommissiU^'WfcJMMa «n<¿^ 4é^Tjywl^’1112 -PiliikkAv; n=J¥á„4iJ ^'TtóVi¿fá-™-’« V,i ¿U fbi‘ the^ye^y’H’^W'fe Islo (excluding ^hétsó-c'áíle , •'.(uu/ilMac^MiUi© “WSW*'^ e* ..ov.8.:. yqT,¿ $3Í¿',“4$ál ’°'0n ^VS|í^^o?'$tt^4s^ipáy^yn5tA.e’pfiic^is"‘‘ailcLfstaff QÍ-'H^é^fr-ustees1 and 'aéb^orá’-'ifcwas. estimated, ..tháíwií^%yf^^^'j|.^e0|úfe^!!!í)^ííÍB^ anticipated normal year’s net earnings of $312,468, O.Q,[email protected] interest on new bonds, Federal income taxes at ,38:%! An ,• th©» remainder/candr $25)000'ríás1 -a , sjinkfflg fundpayntent. qmfhe Tiewhbnds',? there , would he, abopt $4f for, dividends-,op -the: .peyr stock, in'the fntphe: ng,f)nal njp^ah.qiiic^l'v ce^ts per Share.'.'' .,Onf the ."libáis., of: bet ,'eafhings, e$pal> b'o ‘those 0£'1936?0^ Í911,'thédhhóijie qyáíjáhleffór dividends ’ 6ii 'tM 'hé$ sfbplFwóhi'd 'ámo'iiht' t’q óyex, '$1'per share. • Oápitáliáed ai 4%,’$312; 108‘produces $7',f8lír 700 and the Í936 ájddfÍ9M;daMh¡ig^ jjfbdúce $lb?4§9,-850 'arid ;$16Th5,400LRésp'e'ctÍvélyv- 'Thé'hoihhii!sSip'h’'S bureau of valuation; estimate 'of’cost óf fépfodricúoh le'ss,. depreciation plus, the value Oof - land l-an'd ? fights for the 2;debtqrh;prpdnce^ábotalm£':$16',b;15,:858.':’’i' •
-•'The" to'the capital* ax'hppéahbbhrdbumM^izedits holdings, as disputed computation óf' appellant’s paid-tip tis.n.v' ' • rim; m-maíma -me UmC yemmem
. /Tn.determiningbhe amquntpf-capital of- appbllánt created, by ih,etcpnir4hutipiis ,of the shareholders, the áppiélleé/cdfiniissipininfilis case.nsedbhe;-bpp:,kriypi]ie óf $10,500,’ÓO'O as returned by the ebrporation .pn its 1952 annual report. There i.s evidence in. the record in the pfpcb'é'din|-s: before 'the. ‘interstátV' pqmfnprc^ CommiSsióbfánd' the',’ Féjlé^&T, dist'fict’ courif ’ from which' theboirinlissíóN cdhld' hhdbd’oii'M that 'fhb bom tributiriris’ ;pftbe'P'sbáré'hóldefs 'tdbapiikf b^iial'ed'of exceeded ibis'.'stated figütfeV-'» íTbb’ te'Stiihóh.y_ of blib witness; Weston búppórthbhé ¿ppellfeeiri-bhiS'regard! Upon this tr.ócord'.fMredsvüo’.evidehce;‘-from!'which this appeal board can find* that-brichidefermiriátion! by iV.thó'. 5appe%e..',commissipn .wáSiperrpnaousUor amounted to an abusive exercise^er- itsrdiscrietipii.' Therefore; tip?! ^ ^^pea.l^.Uo.^nd.^aonghuijie^; that.;on. this issue the determination.of^cabitaimade,hw, the borno-. ration and seCu: is approved.’’.' ‘‘ ¿ ' i *. -he y< • ;iée: commission ?w,asf pr.pper and, it !yf; jí'70:p¡iífí (o ‘í'C'Tsn ."JUí! ;r--ii.-eOT
As to the dispute about the.-¡surplus::figure? eimployed, by the commission in? computing'the. -disputed tax,, appellee iagainepoiptsj tobhefact fhát it accepted'' appellant’s^ o.-wp-fi-gukesb AppellántfebasiCla^guménb' on this point follows that just outlined above — namely, that at the time of the reorganization plan the total equity in the new railroad should be measured by 7.78 times $210,000 (at $1 a share earnings), plus 70% of the value of $5,000,000 worth of bonds, or a total of $5,133,800. As a consequence, appellant contends that the surplus of $629,110 reported in its 1949 balance sheet was unrealistic and nonexistent and should be deducted from the surplus of $1,693,-501 reported in its 1951 balance sheet.
In the end, appellant’s argument pertaining to the computation of its paid-up capital and surplus amounts to the assertion that its own balance sheet figures overstated the value of its physical assets, including land and buildings and trackage and equipment, by $9,500,000.
■ Yet, in a supplemental statement dated December ■31, 1953, exhibit 11 in this proceeding, appellant shows its “transportation property” valued at $18,-970,629.
This is an appeal in the nature of certiorari from a decision of the Michigan tax appeal board. In such a case we do not disturb the findings of fact of the board when they are supported by competent evidence. Udylite Corporation v. Corporation & Securities Commission, 319 Mich 1; Chicago, Duluth & Georgian Bay Transit Co. v. Corporation & Securities Commission, 319 Mich 14.
See, also, Royal v. Ecorse Police & Fire Commission, 345 Mich 214.
We do not find the “error” or “incorrectness” refferred to in the Hoskins Case, supra. There was competent evidence to support the determination of appellant’s paid-up capital and surplus made by appellee commission.
We now turn to what is, in our view, the most significant constitutional issue presented by this casé. It is appellant’s claim that the formula applied by the commission to appellant’s paid-np capital and surplus to determine the portion thereof which is allocable to Michigan is offensive to the commerce clause of the United States Constitution.
The formula objected to as set forth in the 1952 amendment as section 5b (CLS 1952, § 450.305b [Stat Ann 1953 Cum Supp §21.208(2)]) is as follows :
“For the purpose of determining the annual franchise fee, the tax payable by a railroad company shall be measured by that portion of its paid-up capital and surplus determined by the average of the following 2 percentage ratios: The net ton miles of freight handled in this State to the total net ton miles of freight handled within and without the State; the number of miles of all track over which it operates within this State to the total number of miles of all track over which it operates within and without the State.”
It is appellant’s contention that the appellee commission could not constitutionally employ, in determining “net ton miles of freight handled in this State,” any net ton miles of freight which had moved in Michigan in interstate commerce. The practical importance of this argument is shown in the following calculations of the percentage of appellant’s paid-up capital and surplus to be allocated to Michigan for the purpose of computation of the franchise tax. The first calculation is that of appellee commission, and the second as proposed by appellant railroad :
• pirbidsíb'h0^ lhbnNñíftéd:; St^teáiiCbfi.btitütfón * rélíb4J,tipbni%y’“áríphllaiít is* "as*‘foiló^^í1'‘:>J*’’* 1
b.v,:;í JJfePcPíWmM.-te »rf¿ ^«RS; - “3. To regulate, commerce»with, foreign ^nations, ayá^amóng me “s'eyeral States,! anb:'witlj,''t4ie',In'áife!n ‘inks?11#'(i^'fffi,í!!5l,,'son í,fti
Few provisions in our Constitution have provided as much ground for debate as to interpretation, or provoked as much litigation. And the supreme court has divided closely and repeatedly from early, down to recent, history upon the general question presented by this case, pertaining to the extent of restraint imposed by these words upon a State’s power tbvt'a£’,aí%'tí^ihekS't7'hitílri^ b%Lgág,e&4h4n'te’r§t'atéJ-eóm,.,or JV'» ¡f If [láV ,T '¡V* fV£>i [='\ &> W*' K'M f:.)I Í rip \,'yi >tv\ rtiGrcck 1 -■ el */;■ ¿\j ' h o^-; lf,» <41.. s ^i>w-.r \ •. •
It should perhaps be noted at thb'lbúts^tUHhb-'thé Wúrds-bl^liéffebMfiiu^ceíblÉkS'é 'fdb^^'iñifhemáéíves specifically-1 iPté^'dict^ State “taxation» »-'of--'interstate commeréb-/ lilíefUiiile'd1 Si/dfes^áhpi’éhi-e' cbUrtVUh•tbr^rétatiofi' bUihb'blaufee líks/lib^fev'ér• hél'd» cOhstrtutionally offensive certain general classifications8 of Stkte thxdsU1 Afiitíííg ‘thes'e ¡dlksbifiCatibn’S- thb fóllówiáíg'*lna^'b'é'5<^^'»k^-#i^M^ií|»Jto^dÉ[e<-ae¿hé'e‘'ú3pfóíQ oiir present •pikibhmi:8- i tUííJ -iC: ,'v,v\y;
- ($1) ■Pritilb'ga ^ákesUequarin^'pa^m'éht as k'siinpe'jeSiíditibh; prbcedbnh'ftíí'-caíryíh’g fin1 excfásively interstate commerce. Ozark Pipe Line Corporation v. Monier, 266 US 555 (45 S Ct 184, 69 L ed 439); Puget Sound Stevedoring Co. v. State Tax Commission, 302 US 90 (58 S Ct 72, 82 L ed 68); Spector Motor Fuel Service, Inc., v. O'Connor, 340 US 602 (71 S Ct 508, 95 L ed 573); Railway Express Agency, Inc., v. Virginia, 347 US 359 (74 S Ct 558 98 L ed 337, 757).
-U(«2) ®if eht'i'ta^es»'upmr;='éith,er’'’int@f s-tkte 'bbñimé'rCe Or'v 'grbss; (réeéipts; ftfomOahtérstkfé "sáleá-C-at' ¡dé&st WhebU siich» fkMbsC^drélhbt)rS'asóÍfdbÍy~a^)?pb'rti'bhéíd. Ratterman v. Western Union Telegraph Co., 127 US 411 (8 S Ct 1127, 32 L ed 229); Meyer v. Wells, Fargo & Co., 223 US 298 (32 S Ct 218, 56 L ed 445); East Ohio Gas Co. v. Tax Commission of Ohio 283 US 465 (51 S Ct 499, 75 L ed 1171); Cooney v. Mountain States Telephone & Telegraph Co., 294 US 384 (55 S Ct 477, 79 L ed 934); J. D. Adams Manfg. Co. v. Storen , 304 US 307 (58 S Ct 913, 82 L ed 1365, 117 ALR 429); Freeman v. Hewit, 329 US 249 (67 S Ct 274, 91 L ed 265).
See, also, United States Glue Co. v. Town of Oak Creek, 247 US 321 (38 S Ct 499, 62 L ed 1135, Ann Cas 1918E, 748).
(3) Taxes which it held unreasonably burdensome upon interstate commerce. Western Union Telegraph Co. v. Kansas, 216 US 1 (30 S Ct 190, 54 L ed 355); Ingels v. Morf, 300 US 290 (57 S Ct 439, 81 L ed 653).
(4) Taxes which it held discriminatory in effect as between interstate and intrastate commerce. Webber v. Virginia, 103 US 344 (26 L ed 565); Walling v. Michigan, 116 US 446 (6 S Ct 454, 29 L ed 691); Memphis Steam Laundry v. Stone, 342 US 389 (72 S Ct 424, 96 L ed 436).
On the other hand, the same court has upheld as not offending the commerce clause State taxes in at least the following classifications:
(1) Property taxes levied on property located within the taxing State and used for interstate commerce. Western Union Telegraph Co. v. Attorney General of Massachusetts, 125 US 530 (8 S Ct 961, 31 L ed 790); Adams Express Co. v. Ohio State Auditor, 166 US 185 (17 S Ct 604, 41 L ed 965); Baker v. Druesedow, 263 US 137 (44 S Ct 40, 68 L ed 212); Ott v. Mississippi Valley Barge Line Co., 336 US 169 (69 S Ct 432, 93 L ed 585).
(2) Taxes levied upon net income of business engaged in interstate commerce where the portion of net income taxed was reasonably apportioned as to the taxing State. United States Glue Co. v. Town of Oak Creek, supra; Underwoood Typewriter Co. v. Chamberlain, 254 US 113 (41 S Ct 45, 65 L ed 165); Bass, Ratcliff & Gretton, Limited, v. State Tax Commission, 266 US 271 (45 S Ct 82, 69 L ed 282).
(3) Taxes levied directly upon interstate commerce (or gross receipts therefrom) but held reasonably related to occasioning interstate commerce to pay its own way in the taxing State. Postal Tele graph Gable Co. v. City of Richmond, 249 US 252 (39 S Ct 265, 63 L ed 590); Interstate Busses Corporation v. Blodgett, 276 US 245 (48 S Ct 230, 72 L ed 551); Western Live Stock v. Bureau of Revenue, 303 US 250, see cases cited, p 254 (58 S Ct 546, 82 L ed 823, 115 ALR 944).
See, also, Wisconsin v. J. C. Penney Co., 311 US 435 (61 S Ct 246, 85 L ed 267, 130 ALR 1229).
(4) Privilege or franchise taxes levied upon the right to do intrastate business, including where the business concerned was engaged in both inter- and intrastate commerce, provided only that the tax or fee was reasonably related to the value of the intrastate business done by the taxpayer in the taxing State. St. Louis-San Francisco R. Co. v. Middlekamp, 256 US 226 (41 S Ct 489, 65 L ed 905); Hump Hairpin Manfg. Co. v. Emmerson, 258 US 290 (42 S Ct 305, 66 L ed 622); International Shoe Co. v. Shartel, 279 US 429 (49 S Ct 380, 73 L ed 781); Ford Motor Co. v. Beauchamp, 308 US 331 (60 S Ct 273, 84 L ed 304); International Harvester Co. v. Evatt, 329 US 416 (67 S Ct 444, 91 L ed 390); Interstate Oil Pipe Line Co. v. Stone, 337 US 662 (69 S Ct 1264, 93 L ed 1613).
Against this background of instances where the commerce-clause objection to a State tax has been sustained or denied, we consider our instant tax.
The specific facts frequently determine whether or not a State tax as applied to a specific taxpayer is held repugnant to the commerce clause. Five relevant facts distinguish our instant case from the cases relied upon by the appellant:
(1) The appellant is a railroad corporation which has most of its trackage and other physical facilities located in Michigan and hence makes year-round use of the services and protection of this State;
State'* iai’trkátatéi:c'óilimérce
Ttñ'éJ‘• coiasu3ater<^M¿Í-afti^©'f*. &fgttifiehtl advanced’1 bys apioelíaíif) ndTlaiAMT advanced tífat the $38,969 tax is unreasonable and 4bis-feéo'rd-¿amply isu^)p0rtsi¿ ’nOfit-Mry finding' of1 ‘fa'etv'0f IlrdMichigan corpofálión'fax^a^pballhoábdp'_’-;H ,<}*& )•) <1 lo>
■* ” ''(4y:Thé'táxÍsdeVi6d'úponrall hüslnéks ¡organized fór ¿profit ,añd-dOlng-5bdkine^sf-*WitMai'ítbe> Staté.'.of 'Michigan knd'<is! pláiñly: >nondiáci,iMinatory‘ias 16 tbiáít=axpkyéí'f! í!l¡o b'>!>r *<■ n; /a-;. ; "io- -ü/í>-■■■■
a r(5<)‘ t Tliectk&'Is’fiioi ■ leVibd-'tip'on’ .'any.’part '‘-of the interstate bór&xü.eriSé'iófíihé'.'kppellant/--dr-¡©¡by*direct pródiíbt -thereofybut -np6nv'¡appellant^ privilege' -of doing bfiteilfess1 vntliiiilMibbi^ant) S: i cb,K pp f! Tlfi’sdast point *b!eái’S'lél‘ücidati6n, sinboitls-Official •tto *oiiV 'de&ihttttófeiii:''''*\ ¡y, ■. I hi; .'V::; ,i-P h
;; (The1‘tax* complainkd of '••fids -been'1'interpreted'-’by ÜfiiS' ©Bíir^'ás^ fraiicbiSé''fax' ibiftosed'Upoiillíe ‘right -t'o do intrastate 'bfisiness — Vitfi tliat;pfivilegefhieasnfeddDy'-tife1 amBuni’ of-=^uid-up» eaifiit'klJaiadtstfrplus 'fikksóáia'bl'y allbcáble'to-M-icliigan; '■<■■■' '.»*> ; s-'v,v-./.«
matter counsel,lqse sip . legesought ‘tolbeTblléfitefi/* Tt is‘nb't‘a’ upon ' " It •those ...... .... ..... ‘by daw-fob th'ó'privslege! óf< esmMSi®.grits¡ falanbldse - and of transacting its busme'sSiovithin.fhi'S State.’1'* The i distinction; hepweehisubhca fee án.d;ía;r-tax upon'property i W&sLcle,arljy! pointedi-onf. Union Steam Pump Sales Co. v. Secretary of State, 216 Mich 261, and later in In re Truscon Steel Co., 246 Mich 174, and in In re G. H. Hammond Co., 246 Mich 179. The ques tidn .presented risv^o .cleprly; disposed ;pf do, In re Detroit & Windsor Ferry Co., 232 Mich 574, that further discussion seems unnecessary." In re Detroit International Bridge Co., 257 Mich 52, 59.
See, also, Holland, Hitch Co. v. State Michigan, 318 Mich 474.
v*Mr. 'Jpstíce ÍStiÍTHj th'! a'Vdcdnti debisidh Of; this tiiburt interpreting‘.the ‘sk^'^^^'falWeif'T^iff&rem allocation foxhiula') ? held: ; " ‘
of the ex’érc;sé.p£a State land wé ascertain that value through the application- of property,'payroll) !and;sal’fesbfactjdr>s too the-.-fair; ay.erage ¡stock Cleveland-Cliffs Iron Co. v. Corporation & Securities Commission, 351 Mich 652, 682.
.,."7|)yér‘'ánpC.fftoye $Jj&’^e^4^^!!|,tíí|e^xií ^ (Stat Ann 1953 Cum Supp § 21.205), and,.the hjteiTr pretation thereof by this Court just cited, the intrastate 1ahá^áctéiíiof 1Éie"t$ík)Is hhfetijpórttiáyed By- Section. 5e pjhthe statute :-'-';,5!3'/ ‘"ílíí!! l^'tc if-mn
; ,“If,-it..§li!a]l5ja^pefí. pn sthe jappjipatipii,. o^(thef'taxpayer^pr] pthe^i^p. ]{Íi^t ’§in;^lócafióhj f'áptoh dbterpayef feakoffaktyAiiriMptibfe 'tó'ffilé,BthtP'', IHd••¿¡éÜii*r'!>y ^'.«1 w!f
Excluding "í?dr ihohé''-_&f;ífhétig£etb“és óí”añy 'ObmppÍieiitiíherbdfí;''i''d ?.s*r *>»0 •rohín ■y>'.'my.vo‘i -oIncllidihg^li oromorerothei3xfáctoiísvísuch;í.as -ékpenses,!pnrchasss>;’eOntract.válliesr(,:ihihlis.>su;hpp.h-
tract.vallfes).hrn hi „•/ ,. ,.h ,-.vh.d -■nwuhn-h'i ht\ “(3) Excluding',0®ro;pp;’tionatetly( 1 jpr^^ojp^asspt , it-pmsein ,$nd.,,pr-
“"(4) Apply any other similar 'mp^oépglSfP^tp^lo effect a fair and proper allocation A' J- receipts, activity, business and capital reasonably attributable to this State.” (Emphasis supplied.) CLS 1956, § 450.305e (Stat Ann 1957 Cum Supp § 21.208 [5]).
Under all of these facts, Michigan’s right to levy the tax here contested would be supported by many of the previous holdings of the United States supreme court to which we have already referred.
The cardinal question, however, which appellant submits • pertains to the allocation formula and the use therein of a factor of interstate commerce. As stated by appellant, the crucial question is:
“Can the net ton miles of freight transported in interstate and foreign commerce by petitioner and appellant (a railroad) in the State of Michigan be considered and used together with other factors for the purpose of measuring the portion of such railroad’s capital and surplus that is taxable by the-State of Michigan for purposes of the annual franchise tax?”
The question is not a new one and it has been answered many times before.
In Maine v. Grand Trunk R. Co., 142 US 217 (12 S Ct 121, 35 L ed 994), a State excise tax for the privilege of doing business in Maine was levied upon all gross receipts of the railroad, apportioned according to- the number of miles operated in Maine.. The tax was held not offensive to the commerce clause although, obviously, there was an interstate-commerce factor in the tax formula. The case has-been cited and approved many times since. See Interstate Oil Pipe Line Co. v. Stone, supra, 666; Central Greyhound Lines, Inc., v. Mealey, 334 US 653, 658, 663 (68 S Ct 1260, 92 US 1633).
In the Interstate Oil Pipe Line Case, Mr. Justice-Rutledge, speaking for the majority of the court,, said (pp 666, 667)
“The statute is not invalidated by the commerce clause of the Federal Constitution merely because, unlike the statute attacked in Memphis Natural Gas Co. v. Stone, 335 US 80 (68 S Ct 1475, 92 L ed 1832), it imposes a ‘direct’ tax on the ‘privilege’ of engaging-in interstate commerce. Any notions to the contrary should not have survived Maine v. Grand Trunk R. Co., 142 US 217, which flatly rules the case at bar. That case sustained a State statute which imposed upon an interstate railroad corporation ‘an annual excise tax [measured by apportioned gross receipts], for the privilege of exercising its franchises in this State.’ The Grand Trunk decision has been approved by this court as recently as the other controlling case of Central Greyhound Lines v. Mealey, 334 US 653, at 658, 663, in which the court permitted New York to impose a tax on the gross receipts from the operation of an interstate bus line, provided that tax was apportioned according to mileage traveled within the State. The Mealey Case is not distinguished by saying that it involved only a tax on gross receipts and not a tax on interstate commerce itself, for gross receipts taxes have long been regarded as ‘direct’ in cases which are supposed to support the proposition that ‘direct’ taxes on interstate commerce are invalid under the commerce clause.”
In International Harvester Co. v. Evatt, supra, the United States supreme court considered an Ohio privilege tax described as follows (p 419):
“The tax is computed under the Ohio statute in the following manner: Section 5498 prescribes the formula used in determining what part of a taxpayer’s total capital stock represents business and property conducted and located in Ohio. To determine this, the total value of issued capital stock is divided in half. One half is then multiplied by a fraction, the numerator of which is the value of all the taxpayer’s Ohio property, and the denominator of which is the total valué ,of all itsTpiPpertyyhéféver'ówú'ed'. ' ' The dthpi:‘Nal£.-Tk mhltipHfedyhy-'anbthérlfractíoñ5 '«vhósé rititiléfatbNi's thdtdtal valúe* 5f( the h'úhihess:done?iin tde/S^ate; and *.údibsé' 'denómihhibr imcóünthy-widd Bubihe'sA5 ‘Additioh bf these !2 prbd'uéts' 'give's-the tax Bkéeywhi.chy WheU'ihtiltiplied By‘the'tax- ráté-of 1/10> of tKé ÚMbúrit'Of'thd franchise tax*. •
y xej¡¿t úú^élra’toiy 4he State in-ól'úded; as *‘ fá!i phrt! bf - -‘Ohio’ BUsiñeSs: ah • amount' equal tp"Üfe-'sálésíp‘íb,pé'é<i§'>bf5’á" láfígé púlt';o'£-'the goods maüúf-a’ctute’d5 at ,'appbll'aniffe 'Oteo plants, ¡nib -matter Miéré ‘the; foods' had Bé'éir sold - oh1 delivered!.”' • »'•
. J^^l?,l^pfedor.a»i|nai^mQ,iil?;.cop]rt,. said as .-folloys' (p-42,1): ". '« '■ =•> -■-.■> ; ....
!».''<ítJí’9b/rééV‘'^é>;éb^^éfeel'felát's^;á¡6es;i^ot',:^ár a $tate, fi’pmhihpOEing'a ti^ h^pd'bh^Hé ''Vfdjié bf thé pfiviíégé1 fo btísih$%&éf ély Béé’aúsb it also’ does’án intéfsHté’1rasihésé. Ford Motor Co. v. Beauchamp, 308 US 331, 336 (60 S Ct 273, 84 L ed 304). Á ‘Nóffdg&s; tyié 'fcick fmf d éb'rúfíúíütioti spch * as; tíiat yndeC'Óííid’g 'ttim in'éíicdbó ffeóeffgi's 'frÓffC'mtbrb, slate[gate's ‘affect ilíeá’ fair''ápp'ó'riio.nmentJ4 'See, e.g., Hump Hairpin Manfg. Co. v. Emmerson, 258 US 290 (42 S Ct 305, 66 L ed 622); Underwood Typewriter Co. v. Chamberlain, 254 US 113 (41 S Ct 45, 65 L ed 165); American Manfg Co. v. St. Louis, 250 US 459 (39 S Ct 522, 63 L ed 1084); International Shoe Co. v. Shartel, 279 US 429, 433 (49 S Ct 380, 73 L ed 781); Western Cartridge Co. v. Emmerson, 281 US 511 (50 S Ct 383, 74 L ed 1004). And helé'; It clearly' áppéars' ffom thé-haélíg'rouñd of Ohio’-s'-tax? legislation'thia-t the'vrhólé'pu'rpOse 'of thé Stát'é'fbridülai'Vyús'/tP-■arrivé/úuthóút undúé’cOmplieatioúy.at/á -fáir Bohcliisi'óii as %6-!'W'Káti'W,ás M;hé‘-yaihté d£ théi'ihtrastatshüsíhdss'hof'-‘'whi’ch'-itS'lfailchise-'waS g'fantéd.”'p‘(Emphasis1 ísupplié'd:)- y oA' >0
..¡¡See, ,a¿¡-sp¿; the-. piscu,ssph!,of.dhe.,.comna.e.rce-elause problem-in Mr. Justice-Smithes opinionin- Cleveland Cliffs, supra, ‘6M'''ff;''
■In a.reéenf.yíell-óonsidferpdMenision/.upholding a Massachusetts '-excise; itkx wherein.-the,allocation dpTr? muía likewise, contained; inteustateffac,tors,; the rM^-r, sachusettu.;sup.reiu'0;-cou-rt.;said: :><,i »,: ,..T-
■'(f‘Th’eshude!Oisiohs1' 'of the ! sh^reriid’" ■cdhrt bf • ttfé’. United' Stakes’,3 as’’ yk untíérskaiid!theim, * sustain the5 cdhstitu’tiohality■ arid'ér ■ the'^bhrmOrfee olausé'-’bf a-Skate'1 excise» (like' that iuc/tihe'pr.eshnk;ca’Se-')cG®a' 'd©¿> mestió- corporation ?:for >J)ossessihg' -or- exercising, if scoxpóráth'drikileges,'- if’measured -by net'income,) áp-;' portioned,-; as i-Urfhepi'eseut case;1, úna practical way* (which., neudynot by,.any roeans;he precisp); to;giyena: reasonable andj,F0Itg'hLvk.RprQ?Wll.atipfl5 ,®f y-aj(ues.taj;tributat)le to.the taxing/ $’tate, priyil'egefs-. The. fact, that,net income •.fróñí(iiñier§j^t:fce,,traii^acT' tións ’ (and the’ value 'given 'io m"tr asíate priylegpSby’ them) may be taken.,iMo. account reasonably in (the3 tax' coiripntatiohs’ ih' immaterial.” Stae Tax Commission v. John H. Breck, Inc., 336 Mass 277 (144 NE 2d 87, 101).
Wé*recognize, - o’f courseA'that tlíe’précise' formula with which we deal’ in the instant case ’is- somewhat different from the formulae in cases just cited. "But we áre unable io-’find any ‘.distinction1 in -the constitutional" Wmciples.’n]Spliekble. <*■ • >f- i>' .chM; "wo
’ 'We cón'strú'é' the ’-fóílhüla in' s'e'ctióll-’hh rib having-as3 its purpose’" the '°f" ri 'fair1 proportion3 -of rippélíaiííy’p^^ shrplu’b kildcahlh' to’ Michigan (for purpose’ c>f .ítórd^tlájípéllán^s!(njjiítí to carryonóts.iny'astatesBúsinépsi,(
-Appellant relies; heavilyirpon the ’Michigan,pases, of Gartland Steamship Co. v. Corporation & Securities Commission, 339 Mich 661; and Panhandle Eastern Pipe Line Co. v. Corporation & Securities Commission, 346 Mich 50.
Both of these cases may be distinguished from our instant case on their facts. Gartland had no property in Michigan and did what the Court apparently regarded as only an inconsequential intrastate business in Michigan. Over 90% of Panhandle’s pipe line, properties and activities were located outside of Michigan. In addition, Panhandle involved the continuous flow of gas from the wellheads in the Southwest to Michigan customers. See Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 US 157 (74 S Ct 396, 98 L ed 583). Neither case involved the identical formula objected to here. And in both cases, this Court, while rejecting the specific formula, upheld the right to levy the tax and ordered recomputation under section 5e to achieve a reasonable result.
It is obvious that what the State offered in service and protection to the Gartland and Panhandle taxpayers in return for the tax was substantially different (particularly in the Gartland Case) from the fact situation considered herein. This distinction has been cited as a decisive one:
“The Constitution is not a formulary. It does not demand of States strict observance of rigid categories nor precision of technical phrasing in their exercise of the most basic power of government, that of taxation. For constitutional purposes the decisive issue turns on the operating incidence of a challenged tax. A State is free to pursue its own fiscal policies, unembarrassed by the Constitution, if by the practical operation of a tax the State has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred by the fact of being an orderly, civilized society.” Wisconsin v. J. C. Penney Co., 311 US 435, 444 (61 S Ct 246, 85 L ed 267, 130 ALR 1229).
Both Gartland and Panhandle opinions, however, relied upon Cooney v. Mountain States T. & T. Co., 294 US 384 (55 S Ct 477, 79 L ed 934), for constitutional authority. Both failed to distinguish between the direct taxation of interstate commerce (which Cooney ruled out) and the employment of an interstate-commerce factor in the formula for determining the amount of paid-up capital and surplus to be allocated to Michigan in computing the fee to be assessed for doing intrastate business in Michigan.
We find no United States supreme court precedent which interprets the commerce clause as forbidding use of such an allocation formula unless the result is shown to be unreasonable or discriminatory.
We now limit the application of the opinions in Gartland and Panhandle and hold that there is no constitutional barrier to the use of an interstate-commerce factor in the allocation formula for determining the portion of paid-up capital and surplus allocable to Michigan for computation of a franchise tax for the right to carry on intrastate business in Michigan where, as here, there is no showing that such formula reaches an unreasonable or discriminatory result.
As to the third group of issues wherein appellant argues that this tax violates 4 separate provisions of the State Constitution, we can be more concise.
The essence of appellant’s contention is that the instant franchise tax is in fact a tax upon the same subject of taxation as is taxed by a much older stat utey-P!á)á£[05pE»>p82.5(.©ErlM8 áaa&<Ml9Sá, 4=307.1 et.''seq: fiStátYAsiiá/ I960;'íféi. and5»’1963'-’ ©uta SSufcp §¡7-/2§l at"se{qST- te P» ted-. •*'1 te; -'-i ^
oExarnteatioiii» @£ tfósi ¡earlier! statute tedicd-t'Chube-* yond¡questiOnYThatdt fe* iiiteb-.sehsd»afihx!típoai>ili'é right. t©'>do'/b-rá;piii'ess'i i ©mtpe»eán£rary,¡¿tds: plainly an ;ad< waldcem éta Jiipomi theivaTueyoT The <pr©]3 brfy ¡óf railroad 'andi e&rtaiaivo-theitfthaiisportati'bíl ?s«i« ¡6@m-municatibnncóhapaniesp¡levied!te< died Jfofiloca!»prbp-1 ertyiTax'es-jc/juiwírtf A-»V.v:vCoh y.moh u<ñ bon^OHafc te
The title to the act begins, “An act to provide'Tor the.'.'assessriTen.t-fo/íi7m'pr'0-p'dí!Í|/1 II© ’te; í Pm¡of> r&itfb'ad cohípahiesl’hei (Em$hates«s®ippliedí)*ny >odd riotó'v Section-í5íp.r.oiíidesb:.oí¡'(o'! nteisyoüc a a /.bay io oho
, “The 'Term property,as:*used'm'/’tUis .áct^slialí-^e ________i>i,NV. h\.O h?;ú»¿©lid «i te 'taxhtib'ii ‘ühdé'r ‘this . „
.,-£k.ere í>5«f. tiep, pqnchiding;; •;.!Vv:..„r,v; ' “and:' alí''Oth'ébr: re'al dánd rper só'ixal’t pbb all £rahchis:e'sr¡¡saiíd> f-rafíOMáep) AOt --’to dheo'dirfedtlybásl s essed;'hnt»toí <hei rtalcen i into «consider ató-6n ¡ in‘detfer^ mining the value of the other propertyü?--:;>€I¡nit9á8/ §¡-í?«2^)nirfi vííí o! a A
' It ‘isTHis lastldnl-hágié'-'úp'óí fwhích^á^péll'anf'hSsés hip;^té^f f * * ’ • * n¡íi>'A '“-j
: Wc;tíelíevb * file'^t^flrt bi^Liláiígíuíág*é'1 if'áblf ^rp-^icles the‘áns'yeíí‘ yTt 're'cltes^as^ff"¿n1' áhfi'ci^aíípn ofJ*tliis ar'guriíeüt<,> “ásííd Tfanch'is'ék/’hot/'■ ahse§s,ed,,,hnt,-to,:-:he!..tak!em. teto popsiderationrte,¡determining1 thé"'váhie!.bf!The\0^ íV-^y. 1“.’."? f
.''.^Th’e.ígl.aftep'iíii q,WsMonte®k^ its' ad valorem!”‘natnre. ■'W’hen It''proyteeh .for - the -tax (as/te arid doc!álr‘’prir|>ó‘sé'ff''*(¡® (1M8«:'§ 2Q7íl# t'S'ta't -Ann: .VV'ij j,cj¿ ,H(’|, ..v-iSU-j ; .lO.- Mili!-.: 1950 Bey.'§, 7i264},).*.sand- \fttr<fcb®p\pr<mdegl-fbr,the State.board t© certifyvthey-havé estimated-and así. spssed the'1-samé labwhat they ©“believe-,t©'. beithe.tfue cash value'--thedeofi-’and- ■* í tí fí'Aate-assessed the taxes thereon at- the■, average., rate-, of: ■ta'áesdor1 State; county, township, school, municipal and other-pur^ poses, levied thr.oughdhis-State,during ;the;precedlng year-'hs-'deterñlinedabyuusr.” i© l-jcCbj'--a; -1--. >'.5.
s tóíftjtiáíí, ! Bj&én'deáft* with' and' settled 'by1 this^Couft1' in Western Electric Co. v. Department of Revenue, 312 Mich 582, #htch required!cbhst^hhtiqn'hnd’hp^licatioh of ’article.’Í.0, §'1;! 5'(190'81, whicji1 appellant' in'thisfcásé ássíhhs as a barf to‘¿lie tax because by jt^PermslitdhbayaBle°t¿,4hküghheÍal! iimcí
,,,Alij spbie.qtg, qf,taxatipfl. p.qyrf op^^bp^g ¡to ,tbes pBÍrnary.,.schoihl int^eslafund'¡under .p^qserjt shall'contiiihe to'contribute to'thht fund.’’1
.hJhder(the>:éóhstitütÍ0nSl interpretationagiven- By this 'Cpurt,- ;the> words -kail'“subjects off taxation’:’''do not r'efer- to.particular taxpayers;’ - This '-Court' has heldjthe phrhse'Nc'onnqtBtl tó deeper igignilcanceythe ■underlying© principle! tin'«which'--the ©tax dáBdesigned anddm-p'oseds’i-i Western Electric Co. v. Department of Revenue, supra 589.
In our. ca-seythé -'subject; of>taxation .thhn coh-tribu-t-ing bathe primáry schoolinterést-fund was'set-fbi-th as far as appellant is concerned in PA 1905, N©;-282y This tax has been construed, and in our opinion can drily bAconst rued,las providing Bfor bhedáhing'of.’ihe property of certain corporations on an ádívaloT-eni basis.” Western Electric Co. v. Department of Revenue, supra, 593.
BOn -the Pthei?¡handy the instant? tail hasya'síwe;have seen,'béem 'eohs-truediUTGbeatedl^'as yai taü ihiposed U-ponthe righttO doíBuisinéss’-witMníthef State. Union Steam Pump Sales Co. v. Secretary of State, 216 Mich 261; In re Detroit International Bridge Co., 257 Mich 52, aff’d, Detroit International Bridge Co. v. Corporation Tax Appeal Board of Michigan, 287 US 295 (53 S Ct 137, 77 L ed 314); Cleveland-Cliffs Iron Co. v. Corporation & Securities Commission, supra.
The franchise tax imposed upon appellant is not upon the same subject of taxation as the ad valorem tax on property imposed by PA 1905, No 282, and, hence, article 10, §1, of the Constitution (1908) is not applicable.
For similar reasons, we hold inapplicable appellant’s argument that the franchise tax constitutes double taxation or violates the uniformity provisions of article 10, §§ 3 and 4, Const (1908), when applied to appellant in conjunction with PA 1905, No 282. The 2 taxes are not upon the same subject or for the same purpose. C. F. Smith Co. v. Fitzgerald, 270 Mich 659.
See, also, 1 Cooley on Taxation (4th ed), § 223.
Nor does the franchise tax discriminate against railroads or offend the due process clause: of the Michigan Constitution (1908), art 2, § 16. Appellant’s right to do business within Michigan is taxed only once as is that of every other profit corporation doing business within this State. Union Steam Pump Sales Co. v. Secretary of State, supra.
Affirmed. No costs, public questions being involved.
Smith, Black, and Voelker, JJ., concurred with Edwards, J.
See, also, Stat Ana § 21.82 and supplements.—Reporter.
See, currently, 11 USCA, § 205.—Reporter.
,See, eurrektly,'pLS 1956, S§ 450,82^ sübcl, "akcl, 45Ó.305.—Kb-
See,Iit:b justice fioúgíá's, dí^sénti11g,' in part, Joseph v. Carter & Weekes Stevedoring Co., 330 US 422, 445 ( 67 S Ct 815, 827, 91 L ed 993, 1010).
See last portion of this opinion.
See Page’s Ohio Rev Code Ann, § 5733.05.—Reporter.
See interesting critique on' these cases, Phillips, The Allocation Formula Under the Michigan Annual Franchise Tax, 35 Taxes, March; 1957, 162.
It should be noted that no Federal due process question is presented to us in this case presumably because the interstate-commerce factor complained of was a part of “the net ton miles of freight handled in this State.” CLS 1952, § 450.305b (Stat Ann 1953 Cum Supp § 21.208 [2]). As to the effect of the due process clause upon inclusion of an out-of-State factor in the formula for measuring the value of the right to do intrastate business, see the excellent analysis in Mr. Justice Smith’s opinion in Clevelancl-Cliffs Iron Co. v. Corporation & Securities Commission, 351 Mich 652. | [
44,
56,
5,
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] |
Dethmers, C. J.
(dissenting). In a skillfully written opinion the trial judge stated the case, in part, as follows:
“This And a companion case in which plaintiff’s wife was the plaintiff, arise out of a collision of 2 automobiles in Curtis township in this county on July 17, 1954. Two automobiles, one driven by de fendant, Theodore Korff, and owned by his father, the other owned by plaintiff and his wife jointly and being driven at the time by the wife, “met” at the top of a hill and collided. Each party claims to have been operating his car on his own half of the highway, and that the accident occurred because the other party was operating his car partly on his wrong side. The case was tried to a jury and submitted on special questions, the answers to which were to the effect that neither party had sustained the burden of proving by a preponderance of the evidence that his car was on its own half of the road at the time of the collision.
“Counsel had previously agreed that if negative answers were returned to these questions, they would in effect amount to a finding that neither driver had shown himself to be free of contributory negligence ; and further, that they should be construed as an affirmative finding that each of the drivers was guilty of negligence in not keeping his car entirely on his own half of the road.
“The negative answers returned under these circumstances required judgments of no cause of action to be entered in the suit of Mrs. Sherman against defendants, and in the cross action of defendants against plaintiffs.
“The issue reserved for determination by the court in this, the husband’s, case is- whether or not the contributory negligence of the wife, joint owner, driving plaintiff’s car at the time, is legally imputable to the husband, so as to bar his right to recover. He was the most seriously injured of the 4 people riding in the 2 automobiles, and it was stipulated that if he is entitled to recover at all, the judgment will be. for $4,500.
“It is the position of plaintiff that he was, in effect, merely a guest passenger riding with his wife, and that therefore. her contributory negligence is not chargeable to him, under Bricker v. Green, 313 Mich 218 (163 ALR 697). * * *
“Defendants on the other hand contend that under the undisputed testimony, that given by plaintiff and his wife, she was operating the automobile either for his special purpose, or that they were at the time 'engaged in a joint enterprise or adventure; and that in either case his driver’s contributory negligence is legally imputed to him and bars him from recovery. * # #
“As indicated, defendants point to plaintiff’s own testimony as establishing that plaintiff and his wife were engaged in a joint enterprise, or that she was driving the car to enable him to accomplish Ms purpose.
“Put in narrative form, plaintiff’s testimony on this angle was:
“ ‘We happened to be in Alcona county that day because we were going fishing. By “we” I mean my wife, my mother, and myself. Our destination was the Au Sable river. We had come from my mother’s farm in Iosco county. My wife and I had arrived there the night before. The car was owned by myself and my wife — our names are both on the title. When we left the farm, my wife was driving, I was seated on the right of the front seat, my mother was in the rear seat. I did not, as a passenger, give her any directions or instructions as she drove. Once a week we made it a habit — or maybe twice a week — to take my mother fishing. She’s a very ardent fisherman. And I like to fish too, absolutely, yes. My wife doesn’t do very much fishing. I and my mother were the ones that really went fishing. You might call this a trip for our mutual pleasure and recreation. My wife always drives on our days off — as a rule, almost completely all. I had no objection to her driving the car — I was very much enthused over it. I didn’t ask her to drive. It was just taken for granted that she does drive, as a rule, and if I want to drive I just get in the seat and drive. That is something of long standing. It’s a means of relaxation for me — I drive for a living. It’s always agreeable to me that she does drive. When she was driving on this day we were going ont for mutual recreation and pleasure for all three. Before we left my mother’s home we knew where we were going. We did not definitely have a particular fishing spot picked out, but almost; it depended upon the water in the stream. We were going to have a look at the stream and pick out our spot from there.’ ”
It will be noted that the jury did not return a general verdict for either party, but only answers to 2 special questions to the effect that neither automobile was completely on its own side of the road at the time of the collision. It will be noted further that it was stipulated between the parties that upon the return of such answer to the 2 special questions it would be left to the trial judge to determine whether the contributory negligence of plaintiff’s wife was to be imputed to him. Accordingly, the trial court found, as a fact, that they had been engaged in a joint enterprise at the time of the accident. That finding is not against, but, on the contrary, is supported by the clear preponderance of the evidence, in which case we do not reverse it. Schiesel v. Blue-savage, 314 Mich 415; Sullivan v. City of Detroit, 316 Mich 232. On the basis of that finding, the trial court held the contributory negligence of plaintiff’s wife imputable to him, barring his right to recover and, hence, found for defendant, ordering entry of judgment of no cause for action. Plaintiff appeals.
The mentioned finding of the trial judge finds support in Hopkins v. Golden, 281 Mich 389; and Johnson v. Fischer, 292 Mich 78, in which persons travelling together in 1 automobile on a noncommercial fishing trip were held, as a matter of law, to be engaged in a joint venture for pleasure and recreation with the hope of prospective reward in the acquiring of fish and, in consequence, barred from recovery because the contributory negligence of their coventurer-driver was imputable to them.
In Hanser v. Youngs, 212 Mich 508, the plaintiff, together with the owner of a truck and its driver, went in the truck to get their winter’s supply of potatoes. On the return trip plaintiff was injured, sued the operator of another automobile which struck him, and was held barred from recovery by the contributory negligence of the truck driver because they were engaged in a joint or common enterprise, namely, that of purchasing and bringing home their potatoes.
In Farthing v. Hepinstall, 243 Mich 380, Frisorger v. Shepse, 251 Mich 121; and Hopkins v. Golden, supra, it was held that the equal right of control of a vehicle, as distinguished from actual physical control, was the badge of a joint venture.
In 2 Restatement, Torts, ch 17, § 491, comment f, it is said:
“The fact that the driver and another riding with him are in joint possession of the vehicle is sufficient to make any journey taken by them therein a joint enterprise irrespective of whether the journey is or is not made for a common business purpose. This is so not only when the joint possession arises from a joint hiring but also when it results from a joint ownership.”
In Fox v. Lavender, 89 Utah 115, 138, 139 (56 P2d 1049, 109 ALR 105), the Utah court said:
“The actual joint possession from which joint control.is inferred is not merely common presence in a car. It arises from a joint hiring or a joint ownership: * * Joint owners both present in a car presumably have joint possession of the car. Prom such joint possession, the right of joint control follows and from this right of joint control * * * an agency arises which makes the nondriving joint owner present in the car responsible for the negligence of the driving joint owner. * * *
“To sum up, when a sole owner is driving it is presumed, without more, that he is in control and has the complete right of control; when the sole owner is present in the car and another is driving, it is presumed, without more being shown, that the sole owner has the right of control, and that the driver is driving for him, that is, as his agent. If 2 or more joint owners are in the car, they will be presumed; without more shown, to have joint right of control and therefore the driver will be presumed to be driving for himself and as the agent of the other present joint owners. When one is driving on a true joint venture for himself and another or others, then such, other or others will be liable regardless of whether the person driving is sole or joint owner or not an owner at all.”
To the same effect are: Ross v. Burgan, 163 Ohio St 211 (126 NE2d 592, 50 ALR2d 1275); Bloom v. Leech, 120 Ohio St 239 (166 NE 137); Perrin v. Wells (Mo App), 22 SW2d 863; Coleman v. Bent, 100 Conn 527 (124 A 224); Archer v. Chicago, M., & St. P. R. Co., 215 Wis 509 (255 NW 67, 95 ALR 851).
In the instant case plaintiff and wife were engaged in the common venture of going and taking his mother on a fishing trip. Even though he did not have actual physical control of their automobile, the fact of their joint ownership, so far from standing as a refutation of his right of control, actually establishes it and serves as an additional evidence of the existence of the joint enterprise.
Judgment should be affirmed, with costs to defendants.
Carr and Kelly, JJ., concurred with Dethmers, C. J.
Smith, J.
Here we see the erroneous imputed-negligence doctrine of Thorogood v. Bryan (1849), 8 CB115 (137 Eng Rep 452), once thought laid to rest in Bricker v. Green, 313 Mich 218 (163 ALR 697), exhumed, clothed in modern dress, and reinstated as controlling authority. It was a pernicious doctrine in its lifetime. In its reincarnation it is no more appealing. It employs a discredited fiction to deny a just result.
Our case involves a motor-vehicle passenger who was injured through the negligence of others. He, himself, is free from fault. Yet his action against one of those responsible for his injuries is said to be barred. Why? Because we impute to him the contributory negligence of his driver.
This conclusion results, apparently, from the holding that they were joint adventurers. If we follow our Brother’s opinion correctly, a common enterprise existed between husband and wife. In addition, there was a common ownership of the car, giving rise to “the badge of a joint venture,” namely, the equal right of control. From these considerations it is thought to follow that the contributory negligence of the driver should be imputed to the spouse passenger, thereby depriving him of recovery against a negligent third person, though the injured spouse himself was without personal fault. To paraphrase, the husband’s teeth have been set on edge because his wife ate sour grapes. Is this law or is it magic?'
In the Thorogood Case, also, the negligence of the driver was imputed to the passenger. They were “identified” as one. Among other reasons for the doctrine was that of alleged control. The court held, in part, “On the part of the plaintiff, it is suggested that a passenger in a public conveyance has no control over the driver. But I think that cannot with propriety be said. He selects the conveyance. * * * If he is dissatisfied with the mode of con veyance, lie is not obliged to avail himself of it.” All of this talk of control of the bus driver.by one of his passengers was, of course, sheer fiction. Courts were not long bemused. Recognition that there was a complete lack of control, as a practical matter, was instrumental in the repudiation of the Thorogood Case. See New York, L. E. & W. R. Co. v. Steinbrenner, 47 NJL 161 (54 Am Rep 126); Little v. Hackett, 116 US 366 (6 S Ct 391, 29 L ed 652). Yet we must still contend with the doctrine. It has survived, in Huxley’s words, “long after its brains have been knocked out.” Again, in the case before us, we are told there is “control” of the driver by the passenger in the motor vehicle.
But is, in truth, the case before us significantly different from the bus case on this so-called badge of the joint venture, the right to control? Divorcing ourselves, as we must if we are to do justice, from the baleful influence of a pernicious fiction, what control or right of control has a passenger, even though he may be a co-owner, as the car speeds down the highway, driven by the other co-owner? Any attempted exercise of the right of control by wresting the wheel from the driver would be foolhardy. Equally menacing to the driver’s efficient- operation of the machine are raucous reproaches, strident denunciations, or even persistent unctuous admonitions from the back seat. “Generally,” it was well put in a Federal case, “it is the duty of the passenger to sit still and say nothing. It is his duty, because any other course is fraught with danger. Interference, by laying hold of an operating lever, or by exclamation, or even by direction or inquiry, is generally to be deprecated, in the long run, the greater safety lies in letting the driver alone.” Southern Pacific Co. v. Wright [CCA], 248 Fed 261, 264. Mr. Justice Finch, of the New York court of appeals (Hoag v. N. Y. C. & H. R. R. Co., 111 NY 199, 203 ! [18 NE 648]), likewise pointed out the dangers attendant upon ah attempted exercise of control by one spouse as the other drove a team of horses. “She [the passenger] could not,” he held, “be required to seize the reins or interfere with the driver. That is almost always dangerous and imprudent.” It requires no profound acumen to realize that the abstention from interference regarded as prudent -.¡conduct in the days of the horse and cart is even -more necessary today, regardless of who has the legal title. .
“ ‘Parties having equal legal title to a motor vehicle cannot be permitted to contend for the wheel in moving traffic and hence the imputation of negligence to the joint owner present upon the theory of equal ■legal right to domination or control is untenable.’ ”■ (Painter v. Lingon, 193 Va 840, 848 (71 SE2d 355), quoting Jenks v. Veeder Contracting Co., 177 Misc 240 [30 NYS2d 278, 281], aff’d on this point, 264 App Div 979 [37 NYS2d 230], 290 NY 810 [50 NE2d 231].)
The fatal defect in the Thorogood doctrine (lack of control) is equally obvious in the case at. bar. The-plain fact of the matter is that there is no “right of' control” in the passenger, and it is pure fiction to-assert tliat such exists simply because legal title to-the car is in their joint names. With reference to-the Illinois courts it has been said that when they find (or fail to find) a “right of control” they actually are merely expressing a result, not giving a reason. “The courts seem to first determine from the factual' situation that there should or should not be an enterprise and then to appropriately label the situation-as one where there was or was not a right of control. It is a result rather than a test.” The point is well made. Actually there is no right to control, in the case before us, in any matter causally connected with the accident, and the imputation of negligence upon such grounds is clear error.
When we are interpreting such words as “agent” and “control,” we must constantly ask, Agency for what purpose? Control in what respect? It is hornbook learning that because one is an agent for one purpose he is not an agent for all. An agent to sell and convey lands has no authority to mortgage. 1 Restatement, Agency, § 67(2). No more can we say that because joint ownership results in real control for some purposes {e.g., transfer of title), there is control for all purposes {e.g., steering and braking while car is being driven by another). Authority and reason alike support the proposition that the true relationship between husband and wife at the time of the accident was that of bailor and bailee. The supreme court of Pennsylvania, in the case of Rodgers v. Saxton, 305 Pa 479, 484 (158 A 166, 80 ALR 280), held as follows:
“A joint or shared control of an automobile in which one is riding as a passenger does not necessarily arise from the passenger’s marital relationship with the driver or from the fact that the passenger is the car’s owner. The inference that the owner of the car was the bailor and the driver was the bailee is an equally logical inference, and upon a rule for judgment for defendant, non obstante veredicto, the plaintiff must be given the benefit of every fact and inference of fact pertaining to the issues involved which may be reasonably deduced from the evidence: Guilinger v. Pennsylvania R. Co., 304 Pa 140 (155 A 293). Mrs. Rodgers’ presence in the car does not exclude, as appellee contends, the theory of bailment. If she delivered that car to.her husband, or he took it with her consent, for the purpose of the trip, he was the bailee of it and she was bailor and guest. There is no rule of law which makes a bailment terminable upon the bailor’s sharing with the bailee the use and enjoyment of the subject of the bailment.”
This is not to say, of course, that a passenger may not, under some circumstances, extreme though they may be, be guilty of individual fault. But there is the distinction between cases involving a passenger’s independent negligence and those in which the negligence of the driver is merely “imputed” to him. These cases are collected in 90 ALR 984.
Equally untenable is the proposition that this fishing expedition, this mutually shared trip for pleasure and recreation, was a “common enterprise” within the meaning of the doctrine permitting the imputation of negligence. Here the wife seems merely to have gone along for the ride. “My wife,” testified the husband, “doesn’t do very much fishing.” He was also asked whether he and his mother “were the ones who really went fishing.” His answer was “That is right.” (Compare Fox v. Kaminsky, 239 Wis 559 [2 NW2d 199]. Meta Fox owned the car. The husband was a duck hunter. “Here,” held the court [p 566], “the duck-hunting interests of Lloyd Fox were alone responsible for making the trip. * * * It seems to us that this is a plain case of a person being a guest in her own automobile.”)
But passing the factual question, or assuming, indeed, that both wife and mother were going fishing, as well as the husband, the question remains whether this was the type of common enterprise required by our law for the application of the imputed negligence doctrine. Here we have no more than a normal, family recreational project in which husband and wife have joined. If this is the common enterprise required by the law, then we have simply elim mated the requirement with respect ■ to married couples, for marriage itself is a common enterprise, a joint venture. The supreme court of Virginia well phrased the matter in Painter v. Lingon, supra. Here a wife, who owned the car, accompanied her husband, who was driving, on a pleasure trip. In rejecting the assertion that the husband’s negligence was imputable to the wife on an agency theory arising out of the asserted joint venture, the court held (p 847) that the “marriage vows of husband and wife create a great joint venture. What is beneficial ■to one spouse is, or should be, beneficial to the other. What is detrimental to one is usually detrimental to the other.”
To the same effect is the holding in Brubaker v. Iowa County, 174 Wis 574, 579 (183 NW 690, 18 ALR 303):
“As fellow travelers they were going from Oshkosh to Sioux City to pursue their several avocations. In one sense husbands and wives in their journey through life are always engaged in joint enterprises, sometimes successful, sometimes disastrous. But the mere fact that they travel in the same car, whether for pleasure or to change their abode, does not constitute a joint enterprise within the meaning of the rule under discussion.”
The holdings are equally applicable to the case before us. We need not search for the roots of the common or joint enterprise doctrine, nor need we go so far as the English courts, which largely restrict imputation of negligence to “joint adventurers” for a commercial or business purpose. Prosser, Torts, § 65. In such situations the policies behind the doctrine of respondeat superior are, within the limitations of the project, equally applicable. See Douglas, Vicarious Liability and Administration of Bisk, 38 Yale L Jour 584; Holmes, Agency, 4 Harv L Eev 345; 5 Harv L Rev 1; Seavey, Speculations as to “Respondeat Superior” Harvard Legal Essays, p 433. Nor do we imply that there may not in fact be a master-servant or a principal-agent relationship existing between husband and wife now that the wife has her legal emancipation under the married women’s acts. But no such situations as here mentioned are before us. Here we have no more than a normal recreational venture participated in by both spouses.
We referred at the outset to what we described as the reincarnation of Thorogood v. Bryan. The ■reasons are clear: Just as in the Thorogood Case, and for much the same reasons, we are to impute the negligence of the driver to the innocent victim of an accident, thus cutting off his claim against a negligent third person. As applied by us it is as automatic in operation as Thorogood, and equally devoid of reason and justice, for all we need is the husband-wife relationship (which supplies the common enterprise) and joint title to the car (which supplies the right to control). The result is absolution to the wrongdoer. If the victim had been the driver’s betrothed, and title had been in the driver’s name only, the negligent third party would, upon the facts before us, have been liable. Change the betrothal to marriage, and put the car in the joint names, and the result is no liability. The result is the more offensive to any reasoned body of tort law because there is an utter lack of causal relationship between the incidents changed and the accident suffered. The result has changed solely because of the fictions employed. As a matter of fact the language employed to reach the Thorogood result is completely devoid of reality. Normally, in a negligence case, we speak of duty, and breach, and proximate cause. Here we speak of “right” to control, common “enterprise,” and “imputable” negligence.
Putting from our minds for the moment the seductions of easy fictions, what is the realistic legal situation of the parties here before us? Among several thoughtful analyses that have come to our attention, that of the Minnesota court in Christensen v. Hennepin Transportation Company, Inc., 215 Minn 394 (10 NW2d 406, 147 ALR 945), seems most clearly in point. The court held, in part (pp 403, 404):
“In the instant case, plaintiff and her husband apparently were co-owners of the automobile in question. They were regarded as such throughout the case. The husband apparently was in possession of the car and exercising dominion over it, for he invited his wife to ride with him the same as one in possession might invite a person bearing him no relationship. At least, the inference was permissible that he was in possession and had control at the time.
“Ownership of an automobile in which the owner is riding, but which is being driven by another, does not establish as a matter of law right of control in the owner. Eight of control may be surrendered, as it often is, where the owner parts with the possession of his car to another. In that situation the parties stand in the relationship of bailor and bailee. The negligence of a bailee in'operating an automobile is not imputable to the bailor. Mogle v. A. W. Scott Co., 144 Minn 173 (174 NW 832). The existence of the marriage relation between the' parties does not change their relationship or liabilities with respect to bailed property. In Nash v. Lang, 268 Mass 407 (167 NE 762), the wife sued for damages to her automobile, which she had loaned to her husband. Defendant claimed that the husband was negligent and his negligence was imputable to the wife. In a very well considered opinion, Mr. Chief Justice Eugg, speaking for the court, said that the relation between the wife and husband was that of bailor and bailee and that (268 Mass 412, 167 NE 764) ‘the contributory negligence of the bailee, concurring with that of a third person to injure the bailed property, is not to be imputed to the bailor who is free from any negligence.’ In the Nash Case the wife was not riding with the husband at the time of the collision. Here she was. But that does not change the result as a matter of law.
“The marriage relationship does not, as a matter of law, constitute one spouse driving an automobile the agent or servant of the other present therein as a guest passenger, and consequently in such cases the negligence of the one driving is not imputable to the other.”
The judgment of no cause for action is set aside and the cause remanded to the trial court for entry of judgment in the sum of $4,500 in accordance with the conditional stipulation of the parties. Costs to appellant.
Black, Edwards, Yoelker, and Kavanagh, JJ., concurred with Smith, J.
The court combined the Thorogood Case with Catlin v. Hills, 8 CB 123, 132 (137 Eng Rep 455, 458).—Reporter.
“Preparing and Trying Cases in Illinois,” prepared by tbe Illinois.. State Bar Association section on insurance law, vol 2, p 201.
See Prosser, Torts, §65; 2 Harper and James, Torts, §23.1; Weintraub, The Joint Enterprise Doctrine in Automobile Law, 16 'Cornell L Quart 3201 | [
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Kelly, J.
(dissenting). Defendants’ property, located at the corner of Main street and Fair avenue in Benton Harbor, was leased to plaintiff from May, 1941, to July 31, 1949. The lease contained the following option clause:
“At any time during the term of this lease, or any extension or renewal thereof, Shell shall have the option to purchase the leased premises, together with all appurtenances thereto, and all improvements and equipment thereon, for the sum of $18,000.”
The lease also provided that plaintiff could extend the terms of the lease for an additional 5 years by giving “written notice to lessor of such exercise at least 90 days prior to the expiration of this lease.”
Plaintiff failed to meet the 90-day provision but on July 26, 1949 (5 days before expiration of the lease), through 2 of its representatives, secured defendants’ signatures to an instrument prepared by plaintiff and entitled “Agreement Amending Lease.” This “Agreement Amending Lease” contained the following provision:
“The term of that certain lease * * * (describing it) and the time to exercise any option to purchase and option of first refusal contained therein, shall be and the same hereby are extended for a period of 5 years, beginning on the 1st day of August, 1949, and ending on the 31st day of July, 1954, upon the same terms and conditions as set forth in said lease except that, during such extended period, Shell shall pay as rent for the leased premises, in cash or by check to the order of lessor, a gallonage rental of l-l/4r) for each gallon of gasoline delivered into storage tanks on the leased premises; * * * provided, however, that the said rent to be paid by Shell shall be not .less than $150 nor more than $225 for each full calendar month regardless of the number of gallons of gasoline actually delivered as aforesaid.”
Between the fourth and fifth year of the extension (November 20, 1953, and again on December 15, 1953) plaintiff; demanded that defendants furnish “a complete abstract of title” to the property and when defendants refused to comply plaintiff filed its bill of complaint (May 13, 1954) stating it had no adequate remedy at law7 and therefore prayed that defendants “be decreed to convey to plaintiff a good and sufficient deed.” Defendants appeal from the decree of the circuit court for the county of Berrien granting plaintiff’s prayer.
Defendants filed a sworn answer and cross hill alleging that they signed the lease and amendment, “but say they did so only under the circumstances hereinafter stated and upon the understanding that the option therein, being paragraph numbered ‘Thirteenth’ meant only that if defendants decided to sell said land during the period of the lease, * * then plaintiff had the right or option to buy the same for $18,000;” that prior to the execution of said lease, defendants became indebted to the Farmers & Merchants Bank in Benton Harbor and secured the payment of such indebtedness by a mortgage to said bank on the parcel of land described in the lease, and such mortgage was in effect at the time of the execution of said lease; that the property had not been leased for a period of time before the present lease in question, and the bank, through its trust officer, Mr. Connell, was desirous of obtaining a tenant to secure its collateral; that through the efforts of Mr. Connell, Mr. S. Eddy, division manager of plaintiff, was contacted and defendant Joseph Mammina was notified to come to said bank where he met with Mr. Connell and Mr. Eddy; that “neither defendant had before this time seen the said lease, and did not know it had been prepared; that Mr. Connell did not read the lease # * * verbatim, but read parts and explained parts of the lease to defendant, Joseph Mam mina, in the presence and hearing of Mr. S. Eddy, so explaining the meaning or substance of each paragraph, and when he reached paragraph numbered ‘Thirteenth’ of said lease (option clause), he did not read it but explained to defendant, Joseph Mammina in the presence and hearing of Mr. S. Eddy that the word ‘option’ meant that if defendants offered to sell then plaintiff would have the first chance to buy the property for $18,000; that defendant, Joseph Mammina, then repeated in the presence and hearing of Mr. S. Eddy that defendants would not agree to sell but would agree that if they did decide to sell they would give plaintiff the first chance to buy for $38,-000; and again Mr. Connell stated to defendant, Joseph Mammina, in the presence and hearing of Mr. S. Eddy, that this language in the lease did not require defendants to sell but provided only that if they decided to sell during the period of the lease, then plaintiff had the first right to buy and at the price of $18,000; that it was then the duty of Mr. S. Eddy, agent of plaintiff in this matter, to correct such statement or explanation if that was not his understanding and he did not do so, and not having done so, plaintiff is bound by such explanation so acquiesced on [in?] by plaintiff’s agent and representative; that defendant, Joseph Mammina, believed such was the meaning of the said ‘option’ clause and believed Mr. S. Eddy, plaintiff’s agent, so understood it, and so believing and relying thereon, and because of so understanding that Mr. S. Eddy, agent for plaintiff so understood such was the meaning of said clause, and only because of such understanding, defendant, Joseph Mammina, signed such lease, relying on the explanation given him at that time in the presence and hearing of Mr. Eddy;” “that defendant, Joseph Mammina was born in Italy, and though he has learned to speak and write the English language, if language is simple, yet he does not understand legal or technical phrases or words in that language, but which terms or language defendants believe, and charge the fact to he, were well known to Robert Connell and S. Eddy.”
About 3 months after defendants’ sworn answer and cross bill were filed, namely January 31, 1955, plaintiff, by its attorney, filed a reply and answer to cross bill. The attorney for plaintiff was not present when either the lease or the “Agreement Amending-Lease” was executed and confined his statements to-“information” and “belief.” He did admit in said answer that Mr. S. Eddy was plaintiff’s representative in executing the lease.
The pretrial conference memorandum filed by the circuit judge, Hon. Philip A. Hadsell, on April 26, 1955, contained the following statements: “Plaintiff’s counsel requests a day certain for trial because of wide distribution of witnesses involved.” “Case set as a chancery matter for trial on May 25, 1955.”'
When this chancery matter was called for trial, plaintiff did not introduce witnesses hut decided to rely upon defendants’ admission in the pleadings that they had signed the lease and the agreement of extension, which were set forth in said pleadings.
Defendant Joseph Mammina offered his testimony at the trial and reiterated the statements previously made in his sworn answer and cross hill. He testified :
“I was born in Palermo, Italy; came to America when I was 7 years old; couldn’t speak English then; lived in Chicago about 6 months, then moved on a farm. I started school in November and quit about March because we helped on the farm, this was about 6 years; had no formal education after that time. Never had any experience with leases before I signed the Mobile Socony lease (the lease on the premises in question just previous to the Shell Oil Company lease), that lease and this lease were the first 2 in struments I had my hands on up to the time I never heard of an option.”
In his testimony, defendant Joseph Mammina stated that another representative of the plaintiff company was present in Mr. Connell’s office when he signed the lease, but stated that he did not know his name. He further stated that a Mr. Graves and another man, whose name he did not know, came to him with the request that he sign the agreement amending lease and that there was some discussion about rental terms; that Mr. Graves stated at that time “ ‘Tell you what we will do, the best we can do, we will give you $225 a month,’ and then it was understood — I asked him again once more, ‘We are not going to sell our place.’ He said, ‘Well, if you desire to sell it any time we should have first option of buying it,’ that is the very word he mentioned to me at my office in the presence of the other man with him. I don’t know his name either, 2 men there.”
Plaintiff failed to exercise the option granted to it in the original lease and plaintiff’s realization of this is perhaps best shown by the fact that it captioned the July 26, 1949, agreement as “Agreement Amending Lease.” No testimony was offered to refute defendant’s testimony. No explanation was made showing any unavailability of Mr. Eddy or Mr. Graves, or of the other 2 men who were with them at the execution of the first lease or the subsequent agreement. No explanation was offered, in spite of defendants’ sworn answer and testimony, to explain away the words contained in the “Agreement Amending Lease,” namely “option of first refusal contained therein,” except plaintiff’s statement in its brief submitted to this Court to the effect that plaintiff in drawing up the lease inadvertently selected a printed form that had these words contained therein and plaintiff did not intend them to be so included.
Defendants endeavored to introduce a letter they sent in answer to plaintiff’s first request that they furnish title to the premises. The court refused such request but, after defendant Mammina’s testimony, made the following observation: “I am convinced that Mr. Mammina possibly thought, probably thought, did think, let’s put it that way, that the option that was contained in the first lease was a first refusal as distinguished from a straight option.” The court further commented on the fact that possibly Mr. Connell thought so, and possibly Mr. Eddy thought so. Mr. Connell could not be called as a witness as he had died previous to trial.
This Court, by many decisions, has established the principle that specific performance is not a matter of right but is within the discretion of the Court, a discretion to be exercised according to the well-settled principles of equity as applied to the peculiar circumstances of each case.
In Fisk v. Fisk, 328 Mich 570, this Court stated that a suit for specific performance, being an equity proceeding, is heard de novo, and that the person seeking such specific performance has the burden of proving his case. In that case we further stated:
“Specific performance will or will not be decreed by a court of equity depending on whether or not equity will be accomplished under the peculiar circumstances of the particular case. Snider v. Schaffer, 276 Mich 92.”
In Kopprasch v. Stone, 340 Mich 384, we held that the granting of equitable relief by way of specific performance is not a matter of strict legal right but rests in the sound discretion of the Court.
This being an equity proceeding, heard by this Court de novo, it does not present to us a record which allows us to agree with the trial court that plaintiff introduced proof necessary for the relief of specific performance. In effect the record is such that we agree with the trial court that it is as plausible to believe that defendant, the banker (Mr. Connell), and plaintiff’s representative (Mr. Eddy), understood throughout their dealings that they were all dealing for the rights of first purchase rather than a straight option to purchase. Such a conclusion does not involve the principle of fraud but rather a mutual misunderstanding as to what the agreement meant.
The rule is well settled in this State that in the interests of justice pleadings may be amended in this Court to the end that they may comport with the evidence. Defendants in their answer did not label or specifically set forth a defense of mutual mistake.
After filing this opinion defendants should be granted 15 days in which to file with this Court an amended answer specifically raising the question of mutual mistake.
Upon the filing of said amended answer, this case should be remanded with instructions to enter a decree in favor of appellants and dismissing plaintiff’s bill of complaint. Costs to appellants.
Carr, J., concurred with Kelly, J, •
Smith, J.
Mr. Justice Kelly is apparently reversing the trial chancellor and directing that decree be entered in favor of appellants upon the ground that there was “a mutual misunderstanding as to what the agreement meant.”
It is pertinent to observe that the trial chancellor expressly declined to rule upon this issue. The following portions of the record, among others, make this abundantly clear:
“Mr. Globensky: You just said the parties may be mistaken.
“The Court: I say that is a possibility; I’m not holding that because it isn’t presented to me; I don’t have to decide that question because the question I have to decide is whether or not the first option was procured by fraud and I am definitely of the opinion that it was not. And what is the interpretation of that option; that seems to me to be the only question presented to this court by the pleadings and this testimony.
“Mr. Globensky: As I understand, your Honor feels because of our prayer for any relief which equity can grant us, we have failed?
“The Court: Not to that extent. I would be willing to listen to arguments, but I understand that the general prayer for relief isn’t as broad as to change the entire nature of the option. The drawing of a mutual mistake and a reformation of the instrument under these pleadings I don’t think the court — I think it would be an abuse of discretion, even if I had discretion to exercise it.
“(Argument — not taken.)
“The Court: That is why I say I can’t do it. If you were in court on your cross bill asking to have this first option reformed to become a first refusal as distinguished from what it is, then I could possibly find on the testimony as it is now that there was a mutual mistake. I’m not passing on it because in the first place this evidence undoubtedly would not be uncontradicted or at least the plaintiff would have cross-examined this witness on the subject. I cannot tell you what I would find as to whether or not there was a mutual mistake and that is the reason I cannot grant you relief under your general prayer to that end. I don’t think this court would have any authority whatever in this proceeding, and under the present state of the pleadings to say to you, ‘Yes, there was a mutual mistake between the Shell Oil Company and the defendant having that option contained in the first lease, and therefore I reform it to cover what they both thought or meant,’ and I do not have jurisdiction to handle that sort of a transaction.”
Thus the issue presented to the trial chancellor was one of fraud. Reformation of the instrument on the ground of misunderstanding was not prayed. The ground upon which Mr. Justice Kelly would direct the entry of a decree for appellants is a ground- that appellants expressly disavow even pleading, and upon which, it is clear from the above, the trial chancellor expressly declined to rule.
As to the merits, we cannot find proof of fraud so clear and convincing upon this record that we must reverse the trial chancellor. It is asserted in the pleadings, on the one hand, that appellants had “for many years been engaged in business and in the direction and management of corporate undertakings, and for many years operated and managed a large trucking concern that was doing business extensively throughout the midwestern States,” while on the other that his understanding of what was going on is limited by the fact that he is able only “to speak and write the English language if language is simple.” Where, between these extremes the truth lies, whether he is in fact a shrewd business man, fully aware at all times of what he is doing, or whether he is an untutored child of nature who, figuratively speaking, walked into the bank barefooted and was fleeced, would seem a determination peculiarly suited to the trial chancellor. He saw the witness on the stand, heard him speak, observed the fluency or hesitation of his replies, his comprehension (or lack thereof) of questions and issues, and, having so seen, heard, and observed, reached his decision. Upon a printed record that cannot re- fleet much of what is required to pass upon this issue of sophistication versus simplicity, we are not persuaded of error.
Affirmed. Costs to appellee.
Dethmers, C. J., and Black, Edwards, Voelker, and Kavanagh, JJ., concurred with Smith, J.
“And we say frankly to this Honorable Supreme Court that we did not plead a reformation of the contract on the ground of mutual mistake.” (Appellants’ reply brief, p 15.) | [
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Smith, J.
Once more we consider the great remedial statute, the workmen’s compensation act. The case before us involves a boy of some 16 years. Pie and a teen-age friend had been employed by a contractor engaged in roofing and siding work. From time to time they ivould throw shingles and nails back and forth at each other. These acts, assaults in point of law, arose from youthful exuberance, rather than from vindictiveness, or animosity. Nevertheless, the last shingle thrown, put out the claimant’s eye. He claims compensation. In opposition it is said that the injury did not arise out of and in the course of the employment.
We are here in the general area of the assault cases. The particular type of assault now before us is in the sportive assault. Its labels are as varied as the acts themselves. It is sometimes called fooling, or practical joking, horseplay, or larking. It knows no bounds of occupation or calling, or time, or location, as its very terminology reveals. Thus the lark ing of the English youths, when undertaken on the great ships of sail, with their towering masts so nearly scraping the sky itself, became “skylarking." Whatever the term employed, however, this particular kind of assault is, for the purpose of the social evils sought to be remedied by this act, governed by principles essentially similar to those applicable to the malicious assault. The workman blinded on the job by a fellow worker may console himself to some degree if the blinding were merely sportive, not malicious, but his family’s loss of income recognizes no such distinction, nor does the economic burden necessarily assumed by charity, public or private, in the extreme cases. So far as sheer numbers is concerned, the weight of authority seems against recovery in this type of case. If, however, in the language of the chemist, we turn from a quantitative to a qualitative analysis the weight is squarely contra. The recent equal division of this Court in a case related in principle (Stewart v. Chrysler Corporation, 350 Mich 596, relying upon the aggressor rule of Horvath v. LaFond, 305 Mich 69) warrants our re-examination of the problem in its entirety.
The arguments against recovery in this type of case are well known. In the first place it may be said that the employee was not hired to throw shingles, or nails, but to work. (This is an ancient and now discredited argument originally made to refute the existence of the employment relation itself in actions seeking to hold the master for the torts of his servant. Compare Limpus v. London General Omnibus Co. [1862], 1 H & C 526 [158 Eng Rep 993], wherein it was said, per Wightman, J., dissenting [pp 536, 537], that “The defendants’ coachman was not employed to obstruct or hinder the plaintiff’s omnibus,” with Stillwagon v. Callan Brothers, Inc., 183 App Div 141 [170 NYS 677], a compensation case, where the court, in denying recovery, held' [p 143] that “He was not employed as a fighter; his work was driving the truck and helping to load it.”) Since, then, the employee was not hired to throw things (nails, rolls, apples, hot ashes, or stones, to cite a few instances from the reported cases) if he was injured in so doing, it is argued that he was injured “outside the scope of his employment.” Or, it is sometimes said, the injury received under such circumstances, arose from the workman’s own fault, or, possibly, the fault of a fellow workman. At any rate, it was not the employer’s. In other cases, it is pointed out that the injured claimant participated in the action, sometimes even started it. This being the case, it is urged, he must necessarily be denied recovery, otherwise he would profit by his own wrong. At times, indeed, the claimant is permitted to recover. In some such cases, the courts point out, the employer could foresee what was going to happen and did nothing. Or, it is pointed out in other cases, he knew of the goings-on and did nothing to stop them, hence, it might reasonably be said that there was an implication of authority so to act.
What is all this talk of fault, of negligence, of scope of employment, of foreseeability, of implied authority? We once lived in a paradise of these concepts, a veritable legalistic Garden of Eden, so completely out of touch with the realities of industrial life that those who came before us for succor, the halt and the blind, the victims of industrial accidents, were almost invariably turned away empty handed. It was the reaction of our people to these unrecompensed injuries that found expression in the workmen’s compensation acts. A philosophy that is today no longer new demanded that the product pay its own way, that the human material consumed in its manufacture be purchased with the same coin as the coal and iron ore going into its production. “Workmen’s compensation legislation rests upon the idea of status, not upon that of implied contract; that is, upon the conception that the injured workman is entitled to compensation for an injury sustained in the service of an industry to whose operations he contributes his work as the owner contributes his capital — the one for the sake of the wages and the other for the sake of the profits.” Let the bench and bar ponder well, as our course of decision in this area in the past decades is reviewed, that the words quoted are those of Mr. Justice Sutherland, the year spoken was not 1958 but a quarter century earlier, 1923, and the court was the supreme court of the United States. The theory of the acts was clear: The consuming public, not charity, public or private, must foot the bill for work-incurred injuries. Compensation, moreover, was not to be barred by fault, or neglect, or inattention, that is, for the mere human failings of the workman. In short, no longer need the workman be free from fault to receive recompense. The family of the careless worker, as well as he more careful, knew privation and sorrow when injury stopped income. True, the injured workman would not get full “damages” as that term is used in the law. The amount of his recovery was carefully circumscribed. It was limited to interference with earning capacity. The workman might be so grotesquely disfigured as to shock even the insensitive, yet for this harm there was no compensation, unless aided by statute. He might, indeed, be so mangled as to have lost his sexual organs, but even eunuchs can work and, hence, under compensation laws he is entitled to nothing. Smith v. Baker, 157 Okla 155 (11 P2d 132). A jury, of course, might in either of these instances, as well as others, be persuaded to the contrary, but the workman has given up his common- law action, and can no longer seek damages from a jury. However, there was a giving on both sides. In return for the workman’s limited monetary recovery he got the certainty of adequate compensatory payments without recourse to litigation.
Such, at any rate, was the plan. It was a vain hope. For its relative failure the courts must assume a sobering responsibility. What our people, in their understanding, have attempted freely to give, we of the judiciary, in our tenacious adherence to inapplicable concepts of the common law, have m many cases withheld. Courts unfamiliar, or unsympathetic, with the broad humanitarian objectives of the act have permitted the retention, in its interpretation, of such tort and agency concepts as fault, authority (express or implied), foreseeability, knowledge, and scope of employment, the very concepts, in fact, that caused the breakdown of the common-law remedy in the first place and necessitated the passage of the act. They are completely out of harmony with its objectives. Thus we continue to flog the patient with the same whips that laid him low in the first place and “confusion and conflict” reign in our minds and in our opinions as we wonder why he fails to recover his health.
So it is that we get to the assault cases, a type of case involving, just as clearly as in event of negligence, a degree of culpability, of fault, on the part ■of the workman, either the claimant himself, or his fellow workers. The earliest of the sportive assault (the fooling, or horseplay, or skylarking) cases denied recovery. Their reasoning reveals their misconceptions. Thus Armitage v. Lancashire & Yorkshire R. Co., [1902] 2 KB 178 (71 LJKB 778, 86 LT 883), involved 3 boys. Two were larking. A third was hit in the eye by a piece of iron thrown by one of the larking pair. Recovery was denied (p 181): “This was a wrongful act entirely outside the scope-of the employment.” Here, it will be noted, the court is falling back upon a concept (scope of employment) entirely foreign, both in origin and application, to-the principles underlying the passage of compensation legislation. Scope of employment has its uses, it is true, in the application of the doctrine of respondeat superior. But compensation does not involverespondeat superior and recovery in compensation-cases turns not on the common-law concept of scope-of employment but upon the statutory requirement of course of employment. The 2 concepts have a different content. In fact, distinguished students of' the subject have stated that, “perhaps the most important guide” for the interpretation of the expression “arising out of and in the course of his employment” is to “realize that it should be sharply differentiated from the technical phrase ‘scope of employment’ designed to circumscribe the area of vicarious liability to third persons.”
Early American cases were similar in result to the-English case, supra. Recovery was denied with considerable uniformity, usually through the employment of tort or agency tests of liability. Thus in the oft-cited case (Jacquemin v. Turner & Seymour Manfg. Co., 92 Conn 382 [103 A 115, LRA1918E,. 496], an assault case) the opinion spoke of what the employer could reasonably have anticipated. Michigan in 1918 (Tarpper v. Weston-Mott Co., 200 Mich 275 [LRA1918E, 507]) denied recovery to the victim of an air-hose (sportive) assault, relying upon certain then-recent cases which we will hereinafter examine in detail. Massachusetts (Lee’s Case, 240 Mass 473 [134 NE 268, 20 ALR 870]) denied recovery in a sportive assault case, leaning heavily upon “scope of employment.” Such acts, it was said, had “no relation whatsoever to employment.”
With the passage of the years, however, and as the act received the careful study of the bench and bar, the early rule of nonliability became riddled with exceptions so numerous and so out of harmony with the rationale of the earlier decisions that it became an ■open question how much, beyond a purely verbal residuum, of the earlier doctrines persisted. It remained for Mr. Justice Cardozo, in his famous opinion in Leonbruno v. Champlain Silk Mills, 229 NY 470 (128 NE 711, 13 ALR 522) (involving the playful throwing of apples), to break completely with the •common-law concepts theretofore held controlling and to point out the statutory basis for liability under the act. He stated (p 472) that the claimant “was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were risks of the employment.” Likewise the penetrating analysis of Judge, later Mr. Justice, Butledge, then •on the court of appeals for the District of Columbia, in Hartford Accident & Indemnity Co. v. Cardillo, 72 App DC 52 (112 F2d 11), certiorari denied, 310 US 649 (60 S Ct 1100, 84 L ed 1415) (an assault case), aided in clarifying the problem. He then held, in part (pp 14, 15), that:
“Not the particular or peculiar character of the ■associations and conditions, but that the work creates and surrounds the employee with them is the basic thing.
“Nor is it necessary, as these cases show, that the particular act or event which is the immediate cause of the injury be itself part of any work done for the employer by the claimant or others. Otherwise no award could he given for many injuries now compensated, such as those caused by stray bullets, un explained falls, objects falling from outside the employer’s premises and work, many street risks, horseplay, most assaults and many other causes. ‘The risks of injury incurred in the crowded contacts of the factory through the acts of fellow workmen are not measured by the tendency of such acts to serve the master’s business.’ Not that the act is in the line of duty, or forwards the work, or creates special risks, but that the work brings the employee within its peril, makes it, for purposes of compensation, ‘part of the work.’ ”
Other distinguished courts ruled similarly. Thus after many years of contrary holdings, the California court, in a case involving a bus girl injured in the right eye by a hard roll thrown by one young bus boy at another, held for compensability (Pacific Employers Insurance Co. v. Industrial Accident Commission, 26 Cal2d 286 [158 P2d 9, 159 ALR 313]). The closing paragraph of the opinion states its rationale :
“Considering, as we may, the propensities and tendencies of mankind and the ordinary habits of life, it must be admitted that wherever human beings congregate, either at work or at play, there is some frolicking and horseplay. Accordingly, an injury sustained by a nonparticipating employee through the horseplay of fellow workers arises ‘out of’ and ‘is proximately caused by the employment’ within the meaning of section 3600 of the labor code. The cases of Coronado Beach Co. v. Pillsbury, 172 Cal 682 (158 P 212, LRA1916F, 1164) ; Fishering v. Pillsbury, 172 Cal 690 (158 P 215); Federal Mutual Liability Ins. Co. v. Industrial Acc. Com., 187 Cal 284 (201 P 920); Great Western Power Co. v. Industrial Acc. Com., 187 Cal 295 (201 P 931); and Pacific Emp. Ins. Co. v. Division of Ind. Acc. & Safety, 209 Cal 656 (289 P 619), are overruled.”
The Secor Case (Secor v. Penn Service Garage, 19 NJ 315 [117 A2d 12]) is also illustrative of the modern trend of decision. This was another case involving an injury arising from a foolhardy, intended-to-be-playf'ul act. In affirming recovery the New Jersey court held, in part, as follows (pp 319-321, 324) :
“The common-law concept of liability based on fault is nowhere mentioned in the act and has no proper place in its administration; on the contrary the act is to be liberally applied as a compensation statute intended to protect employees in the event of work-related injuries notwithstanding their own negligent or even foolhardy conduct. # * * Similarly the act nowhere either in terms or purpose, embodies the common-law concept of proximate causation; on the contrary it is enough if the employment is a contributory cause. See Sanders v. Jarka Corp., 1 NJ 36 (61 A2d 641), where this court in sustaining an award based on a criminal assault stated flatly that the employment ‘need not be the sole or proximate cause of the injury’ and that the statutory requirement is met if the employment is ‘a contributing cause to the accident’ or ‘a necessary factor’ leading to it. * “ “
“The statutory phrase "by accident arising out of and in the course of his employment’ has no strict common-law counterpart and courts have defined and applied it with varying liberality. In the oft-cited case of Bryant v. Fissell (1913), 84 NJL 72, 77 (86 A 458), Justice Trenehard, in sustaining an award to an injured workman, stated that a compensable accident results ‘from a risk reasonably incidental to the employment’ and that an accident arises in the course of the employment ‘if it occurs while the employee is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.’ See Miller v. Bill Miller’s Riviera, Inc. (1952), 21 NJ Super 112, 116 (90 A2d 889); Schultz v. Henry V. Vaughans Sons & Co., Inc. (1953), 24 NJ Super 492, 498 (94 A2d 873). In Belyus v. Wilkinson, Gaddis & Co., 115 NJL 43 (178 A 181), 116 NJL 92 (182 A 873), Justice Helier noted that an accident arises out of the employment when the risk is ‘reasonably incident’ thereto, and arises in the course of the employment when it occurs within the period of the employment at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of the employment ‘or doing something incidental to it..’ See 1 Larson, Workmen’s Compensation Law, p 193. Notwithstanding the sweep of these judicial definitions, the court in Hulley v. Moosbrugger (1915), 88 NJL 161, 169 (95 A 1007, LRA1916C, 1203), denied a compensation award to a nonparticipating victim of horseplay on the ground that his injury did not arise out of a risk reasonably incident to the employment. See, also, Budrevie v. Wright Aeronautical Corp. (1946), 135 NJL 46 (50 A2d 147), affirmed, 136 NJL 198 (55 A2d 10); Savage v. Otis Elevator Co. (1948), 136 NJL 419 (56 A2d 595). The great weight of authority is now to the contrary; indeed the trend has been toward allowing compensation even to participating employees where their deviations may be said to be minor and attributable to normal human tendencies which men do not wholly shed simply because they are at work. * * *
“An employee is not an automaton, and, even when he is highly efficient, he will to some extent deviate from the uninterrupted performance of his work. Such deviation, if it be considered minor in the light of the particular time, place and circumstance, is realistically viewed by both the employer and the employee as a normal incidence of the employment relation and ought not in this day be viewed as legally breaching the course thereof. Fulfillment of the high purposes of our socially important and ever broadening workmen’s compensation act suggests this approach and nothing in the statutory terms dictates any narrower position.”
Cases similar in result and reasoning will be found in tbe footnote hereto but we will not extend this opinion by quotations therefrom.
The Michigan cases in this particular area present an interesting array to the student of stare decisis. It is not unknown, in compensation law, that we tenaciously cling to precedents from other jurisdictions, long overruled in the States of their origin. Note the interpretation of the word “accident” in the case of Hensey v. White, [1900] 1 QB 481, 485 (69 LJQB 188, 81 LT 767), commented upon in dissent, Wieda v. American Box Board Co., 343 Mich 182, 192. The Hensey Case, manifestly erroneous, had a life of only 3 years in England and had there been overruled for some 10 years prior to its embrace and adoption by us. A similar situation is presented in the area of assault, sportive or malicious, now under examination. Our leading case in this field is Tarpper v. Weston-Mott Co., 200 Mich 275 (LRA1918E, 507), denying compensation to the victim of a sportive assault. The ease has been extensively cited and relied upon by us since its publication. It rested, not upon the force of its own reasoning, but upon 4 principal authorities from other jurisdictions. We will list them briefly, together with their fate in the jurisdictions of their birth:
(1) Hulley v. Moosbrugger, 88 NJL 161 (95 A 1007, LRA1916C, 1203). This case is one of those disapproved by the modern New Jersey court in the Secor Case, supra, as representing a view as to which the great weight of authority is now to the contrary;
(2) Coronado Beach Co. v. Pillsbury, 172 Cal 682 (158 P 91, LBA1916F, 1164). Overruled in Pacific Employer’s Insurance Co. v. Industrial Accident Commission, supra, 287, upon, in part, the following rationale:
“The commission urges that the doctrine of stare decisis does not call for a perpetuation of the errors of past decisions. It declares that a ‘frank reappraisal of the law,’ particularly in view of the changes in the concepts regarding workmen’s compensation since 1916, compels the conclusion that the holding in the case of Coronado Beach Co. v. Pillsbury, supra, should no longer be followed.”
(3) Matter of De Filippis v. Falkenberg, 170 App Div 153 (155 NYS 761). This case is commented upon in Matter of Ramos v. Taxi Transit Co., 276 App Div 101, 105 (92 NYS2d 744), as follows:
“There has been an interesting evolution in the view taken of injuries arising from sportive play and arguments between fellow workers during employment. The earlier rule was that injuries thus incurred did not ‘arise out of’ the employment. A classic example is Matter of De Filippis v. Falkenberg (170 App Div 153, supra), decided in 1915, where an injury to an employee caused by a scissors thrust through a partition by a fellow employee as a practical joke was held not compensable, reliance being placed on a long line of English cases.
“This might be compared with Matter of Industrial Comr. (Siguin) v. McCarthy, 295 NY 443 (68 NE2d 434), decided in 1946, over 30 years later. There a fatal injury arising from friendly horseplay was held to be compensable.
“The direction of this evolution, its guidance and its articulation, were largely fashioned by the expression of Cardozo, J., in Leonbruno v. Champlain Silk Mills (1920), 229 NY 470 (128 NE 711,13 ALR 522). Becognition was given, and impressed into judicial decisions, of the reality that it is to be expected as an integral incident to industrial work that there will be both fights and horseplay.”
See, also, Matter of Burns v. Merritt Engineering Co., 302 NY 131 (96 NE2d 739).
(4) Federal Rubber Manfg. Co. v. Havolic, 162 Wis 341 (156 NW 143, LRA1916D, 968). This case was overruled in Badger Furniture Co. v. Industrial Commission, 195 Wis 134, 138 (217 NW 734). “When the Havolie Case was decided,” said the court with admirable candor, “the court had not had many cases under the compensation act before it.”
We will observe, parenthetically, that the awakening of awareness of the social objectives of the act, together with the growing realization that it cannot function as intended if hobbled by judge-invented restrictions, is not confined to this country alone. The observations of Lord Wright, in Noble v. Southern R. Co., [1940] AC 583, 600-602 (109 LJKB 509, 164 LT 1, 33 BWCC 176), are here in point:
“The fundamental and initial question in every claim under the act must be whether the accident arose out of and in the course of the employment. That is a question of fact which can only be decided by the county court judge by applying his common sense and his knowledge of industrial conditions to the evidence before him, though with due regard to any principles laid down by the courts. * * *
“I think it is true to say that as time has gone on the courts have taken a fairer and more commonsense view of the circumstances which justify an affirmative finding on this point. * * * This House * * * I think is not so ready as it was in the past to forget that it is simply construing a statute, or to import limitations and refinements for which the words of the statute afford no justification.”
So muck for the precedents upon which the Tarp-per Case relied. So far as the reasoning of the later Michigan cases is concerned, the sportive assault received its most thorough examination in the case of Glenn v. Reynolds Spring Co., 225 Mich 693 (36 ALR 1464). In view of the fact that the award of compensation was affirmed in this case it may properly be construed as a relaxation of the earlier Tarpper doctrine. Since the Glenn opinion relied, in part, upon the factor of the employer’s knowledge of the “fooling” (Nelson Sharpe, J., in Derhammer v. Detroit News, 229 Mich 658, 660), and in further view of the suggestion of the highest New York court in 1948 (as well as other courts) that before recovery could be had, in a sportive assault case, the practice must have been of such long-standing duration that it had become a custom of the business, we may be justified in devoting some attention thereto.
It is from the establishment of the custom that the courts find knowledge of, and toleration (or “condo-nation”) of, the sportive practice by the employer. But to what end? What is its legal significance? The light shed upon course of employment by the employer’s knowledge of a questioned act is slight indeed, if, in fact, existent. But the knowledge of the employer does bear directly upon his possible negligence in permitting the acts to continue, and, if knowledge of a commonly-known fact, bears upon the employee’s assumption of risk in working under such conditions, upon the negligence or lack thereof of his fellow workers, and upon the scope of employment. These, of course, are the very defenses this act was intended to abolish. As Mr. Justice Elkus observed in Matter of Verschleiser v. Joseph Stern & Son, 229 NY 192, 198 (128 NE 126), to require that the employer have knowledge of one’s propensities to assault others (as a condition to compensation) “is a retrogression to the old master and servant law and clearly against the intent of the workmen’s compensation law which does not look for fault.” The first bite, under this theory, is free. Not until the second is blood drawn, for not until then, at the earliest, is the propensity established. These observations seem to be as applicable to the sportive assault as the malicious assault.
But a criticism equally serious pertains to the kind or degree of employer knowledge required. Must it be actual knowledge ? Or will we get into the realm of fictions and require merely “constructive” knowledge? And knowledge of what? Knowledge of the particular occurrence? Or knowledge of human playfulness or combativeness? As a matter of fact we are dangerously close to a complete lack of realism in the requirement that the sportive or malicious assault must have become a custom before injuries received therefrom are compensable. The books contain many of the “air-hose” cases, the situation in which a fellow worker is “goosed” with a shot of compressed air. Under some circumstances the victim suffers ruptured intestines and dies in agony. It is difficult to picture such attacks as becoming so repetitive, so well known, and so commonly accepted in any plant as to rise to the dignity of a “custom.” If it cannot so rise, and yet we demand proof of a “custom,” we have simply held, through a verbal formula, there shall be no compensation. Of course, if acts are a custom of the business there can be no doubt that the injury has the requisite work connection. But this is far from saying that there must be proof of a custom before we can have compensation. With respect to compensation, as distinguished from tort damages, we are concerned with the day-hy-day operation in all of its aspects, and the employer’s knowledge or lack of knowledge of an operation does not control whether or not it is an incident of the business. If the employer is indisposed, remote from the operation, engrossed in other affairs, even enjoying a well-earned respite in the Caribbean, will there be a suspension of compensation for operations developed in his absence, or their natural concomitants? This is not a critical line of inquiry under compensation law. We look, rather, at the hazard from which the injury arose and ask whether or not the claimant’s exposure thereto resulted from his employment. The employer’s knowledge, actual or constructive, his acquiescence, his condonation, are not essential to the compensability of an injury under our statute.
We might place decision in the case before us upon grounds so narrow as to leave remaining doubt whether in this jurisdiction the tort and agency concepts rejected by the act were still controlling in truth. There is evidence here that the employer had knowledge of the play that was taking place between these 2 boys while on the job. For reasons herein-above set forth in detail, this rationale we reject. We might also place decision on the ground that when struck the claimant was what has been called in the cases a nonparticipating victim of the sportive aggression of his companion. (“Wozniak was cleaning up around the cutter and throwing pieces of shingles downstairs or out of the window; that one of the pieces struck plaintiff in the right eye as he was returning to the second floor.”) The difficulty with the aggression approach is twofold: First, as a matter of judicial administration it leads into interminable litigation as to the proper identification of the aggressor. (Note the careful analysis of this problem by Mr. Justice Black in Stewart v. Chrysler Corporation, 350 Mich 596, 600, 601.) Is name-calling aggression? Yes, said Kimbro v. Black & White Cab Co., 50 Ga App 143 (177 SE 274). No, said York v. City of Hazard, 301 Ky 306 (191 SW2d 239). How about one who “advances upon” another, carrying a shovel? Is seizure of the shovel by the other an act of aggression? Gilyard v. O’Reilly, 4 La App 498, said it was, and compensation was awarded him who advanced. Suppose a young female waitress attempts (with no clear-cut proof of success) to slap the face of a chef weighing over 200 pounds and over 6 feet in height and he responds with such violence that her spine is seriously injured. (Martin v. Snuffy’s Steak House, 46 NJS 425 [134 A2d 789].) Was her possibly abortive blow an act of “aggression” ? Suppose he cursed her first ? If it had been intended by the legislature that the award of compensation depend upon such considerations it is inconceivable that the act would be (as it is) utterly silent with respect thereto, leaving us without guide or standard. The supreme court of California (State Compensation Insurance Fund v. Industrial Accident Commission, 38 Cal2d 659 [242 P2d 311]), recently quoted with approval a substantial part of the decision of Judge Rutledge in Hartford Accident & Indemnity Co. v. Cardillo, 72 App DC 52 (112 F2d 11), in which the court had refused to enjoin the enforcement of an award of compensation in an assault case, with the following comment (pp 667-669):
“The modern trend is in accord. (Citations omitted.) Many writers on the subject have taken the same position (Assaults and Horseplay under Workmen’s Compensation Laws, Samuel B. Horovitz, 41 111 L Rev 311; Current Trends in Workmen’s Compensation, Samuel B. Horovitz [1947], p 532).. In the above writings Mr. Horovitz ably presents the problem. At page 343 et seq. of 41 111 L Rev he says: ‘Why should it make any legal difference under the compensation law whether the injured party was the aggressor? Certainly, no compensation statute expressly gives the employer the defense of “aggressor.” * * *
“ ‘Many assaults result from impulsive, thoughtless or unintentional acts, often trivial in origin, although the result may be serious or even fatal. The “explosive point is merely the culmination of antecedent pressures” in many instances. A worker tells his foreman he wishes to quit the gang and that the foreman is prejudiced against him. One word leads to another, and fists fly. To create an artificial rule that he whose fist first made contact is an aggressor (and can never recover, even though the first fist did no harm, whereas the second fist permanently injured the fellow worker), is to forget the legislative command that injuries arising out of the employment he compensated, short of wilful misconduct or similar provisions. And where the quarrel had its origin in the work or work-environment and was short of wilful misconduct, or short of any express defense in the act, how can the court justify their own judicially-created defenses?’ ”
The second difficulty with making compensation turn on lack of aggression is even more serious. Two men are fighting in a plant, or there is horseplay between them. Each is injured in the same way, to the same degree. Each applies for compensation. It is granted, let us say, to A, the nonaggressor. This means, necessarily, that his injury arose in the course of and out of his employment. If it is denied to B (save because of specific statutory prohibition) we necessarily say that his injury was not received in the course of and out of his employment. It was the same incident, the same plant, the same injuries, yet one man, we find, has a compensable injury, although not the other. The court has said to B, you cannot recover because you started it, you were the aggressor, it was your fault. Thus fault once more prevents compensation for industrial injury and we have turned hack the hands of the clock nearly a hundred years. Before permitting the fault concept such overriding power it would be well to remind ourselves that it is not a law of nature, like the law of gravity. The theory that “fault” forms the basis for tort recovery came into the law, according to Dean Pound, through a combination of ethical considerations and the metaphysical theory of the free will. The utility of the fault theory of tort liability under modern conditions is, indeed, open to the most serious question. However that may be as to tort recovery, a court which today insists upon making fault the criterion of workmen’s compensation is committing an error differing in degree only from that of the learned court of a half-century ago which declared the first compensation law unconstitutional because, in part, it imposed liability without fault. It is clearly beyond our competence, as judges, to continue to insist that we will not award workmen’s compensation to workmen who are at fault with respect to the injuries of which they complain, specifically (in the context in which we are now writing) that we will not approve an award to the aggressor, whether malicious or sportive, provided the other requirements of the act are satisfied. The act itself contains no mention of aggression as a defense to payment of compensation. It is judge-invented, having its origin with the inapplicable tort concepts, and should be judge-abolished. This type of fault should not defeat compensation any more than the faults of inattention or carelessness. They are blood brothers.
The assault cases are, in a sense, merely a thread in a great tapestry. The larger area involves all of those series of acts (and there are many, such as getting a drink, going to the toilet, and like concessions to human needs, instincts and desires) which, in and of themselves, the workman was not hired to perform. If it is permissible to consider one of such acts alone, by itself, isolated from its surrounding circumstances, divorced from what went before and what comes after (defined, in short, as the Missouri farmer defined his mule, “an animal without pride of ancestry or hope of posterity”), then, literally, the employee was not hired to perform it. In so doing he stepped aside from his employment, no longer worked for the employer, went off on a frolic of his own (to use the language of the detour cases), and became, for the moment, unemployed, on no one’s payroll, not a workman, and obviously not entitled to compensation if injured. Hence, that series of cases, now of questionable validity (see 1 Larson, Workmen’s Compensation Law, § 21.00 et seq.; of., Mack v. Reo Motors, Inc., 345 Mich 268, dissent, 270, per Black, J.), holding that injuries received in the course of such activities are noneompensable.
The fatal defect in the reasoning of these cases is their lack of appreciation of the purpose of the act, the plain content of its words, and its great humanitarian objectives. Labor is not a commodity. Labor is people, men, women, and, as this case so tragically shows, children. They have great, virtues, for they are made in God’s image, but they have •grievous faults, for they are far from perfect. They quarrel, they fight, they are sometimes abusive, even profane. They are hired to work, and work they do, as our industrial might attests. Yet they work not always carefully, for they are heedless, not always with a single-minded devotion to duty, for they are thoughtless. There was a time when employers could say to an injured employee, I hired you to be careful, not careless. I hired you to work, not to fight, or play. I hired the best in you, not the worst. I hired the good, not the evil. I hired the virtue, not the vice. Such sophistry was, for a time, accepted. It was true that the boy in Mr. Justice Cardozo’s case (Leonbruno, supra) was not hired to throw apples, any more than the boys before us were hired to throw shingles. But what was hired, a boy or a robot? The answer is simple and it points to our solution: the employer hired a human being, with all his reactions and his imperfections. Going to the job does not sanctify him. At home or at work, give a man a curse and he will anger, give a teen-age boy an apple core and he will throw it. The workman “brings to his work,” as we said, dissenting in Salmon v. Bagley Laundry Company, 344 Mich 471, 487, “all of his human characteristics, his frailties as well as his virtues. We cannot, either actually or legally, make the precise excisions of the surgeon. We cannot remove from him, and put to work for his employer, only his strength. His strength goes hand in hand with his temper. It is impossible for us to employ only the grace and charm of the female worker. We hire as well her lively curiosity. We collect these people by the hundreds, even thousands, and we put them to work, sometimes amid noise and vibration, sometimes in smoke and steam. They get tired. They get hungry. They get thirsty. They have to go to the toilet. The day wears on and tempers grow short. Relief is sought in horseplay. Trips to the water cooler and coffee urn grow in number and duration. This is the course of employment. ‘Course of employment’ is not a sterile form of words. It is descriptive of life in the industrial age. These human deviations from the course of the automaton do not suspend the employer-employee relationship. They are not departures from employment, but the very substance of it. They are the inevitable concomitants of the working relationship and conditions which produce the product. Its costs must reflect the fatigue, the irritations, and sometimes the blood that went into it. It is here that we find the explanation for the horseplay cases, the curiosity cases, and the assault cases.”
Herein lies our answer. For the purposes of the compensation act the concept of course of employment is more comprehensive than the assigned work at the lathe. It includes an employee’s ministrations to his own human needs: he must eat; concessions to his own human frailties: he must rest, must now and then have a break, and he sometimes, even on the job, plays practical jokes on his fellows. Course of employment is not scope of employment. The former, as the cases so clearly reveal, is a way of life in a working environment. If the injury results from the work itself, or from the stresses, the tensions, the associations, of the working environments, human as well as material, it is compensable. Why? Because those are the ingredients of the product itself. It carries to the market with it, on its price tag stained and scarred, its human as well as its material costs. So says the statute. It does not become us to ignore its plain commands.
"We need not undertake to define the outer limits of compensability. We rule on the case before us. The requirement that there be a causal connection between the work, or the incidents thereof, the working conditions, and the injury, serves to exclude the purely personal, nonwork connected, disputes, such as that which arose after one Harry Elrod attempted to “date” the wife of a fellow workman whom he had met in a tavern the night preceding the altercation. Elrod v. Union Bleachery, 204 SC 481 (30 SE 2d 73). Excluded, also, under the terms of the statute are acts of such gross and reprehensible nature as to constitute intentional and wilful misconduct (CL 1948, §412.2 [Stat Ann 1950 Rev §17.152]). This presents a situation of an entirely different character than that presented by the playful shove or the roundhouse punch, no matter how tragic may be the latter’s unexpected results. And this exclusion of acts of a degree of moral turpitude, it will be observed, is by the legislature itself, not a judicial retrogression to principles of tort. Further than this in definition we do not attempt to go. The precise future line of demarcation will be marked out, in the traditional manner, by the case-to-case decisions.
So much for the present and the future. As for the past, we specifically overrule the Tarpper Case (Tarpper v. Weston-Mott Company, 200 Mich 275 [LRA1918E, 507]), and subsequent cases of like character, and hold that injuries received in assaults, either sportive or malicious, are not, by reason of such fact alone, beyond the realm of compensability. If arising out of the employment and received in the course thereof they are compensable.
It is conceded that the employment of plaintiff Douglas Crilly was without the work permit required for the employment of minors. (PA 1947, No 157 [CL 1948, § 409.1 et seq. (Stat Ann 1950 Rev § 17.701 et seq.)].) The provisions of section 7 of the compensation act (CLS 1952, § 411.7 [Stat Ann 1950 Rev § 17.147, as amended by PA 1952, No 77]) are therefore applicable.
We need not repeat onr analysis of such employment found in Field v. Jack & Jill Ranch, 343 Mich 273, 280.
The order of the workmen’s compensation appeal board is reversed and the cause remanded for entry of an order in accordance herewith. Plaintiff may have costs.
Black, Voelker, and Kavanagh, JJ., concurred with Smith, J.
Cudahy Packing Company of Nebraska v. Parramore, 263 US 418, 423 (44 S Ct 153, 68 L ed 366, 30 ALR 532), quoted in dissent of Black, J., in Mack v. Reo Motors, Inc., 345 Mich 268, 272.
Rutledge, J., in Hartford Accident & Indemnity Co. v. Cardillo, 72 App DC 52 (112 F2d 11), infra.
Riesenfeld and Maxwell, Modern Social Legislation, p 234. See, also, p 139.
Newell v. Moreau, 94 NH 439 (55 A2d 476); Dillon’s Case, 324 Mass 102 (85 NE2d 69) ; State Compensation Insurance Fund v. Industrial Acc. Com., 38 Cal2d 659 (242 P2d 311) ; Com’r of Taxation & Finance v. Bronx Hospital, 276 App Div 708 (97 NYS2d 120) ; Petro v. Martin Baking Co., 239 Minn 307 (58 NW2d 731) ; Johnson v. Safreed, 224 Ark 397 (273 SW2d 545). See, also, 1 Larson, Law of Workmen’s Compensation, § 11.15(e), p 123, § 11.16(a), p 130, and 1957 Cum Supp, pp 17, 18.
Note also our extended reliance upon the principle of Thorogood v. Bryan, 8 CB 115 (137 Eng Rep 452), after its repudiation in England and until Bricker ¶. Green, 313 Mich 218 (163 ALR 697).
Ognibene v. Rochester Manfg. Co., 298 NY 85 (80 NE2d 749); cf., Hayes Freight Lines v. Burns (Ky), 290 SW2d 836.
1 Restatement, Agency, § 229.
E.g., Federal Rubber Manfg. Co. v. Havolic, 162 Wis 341 (156 NW 143, LRA1916D, 968) ; Tarpper v. Weston-Mott Co., 200 Mich 275 (LRA1918E, 507) ; Hazelwood v. Standard Sanitary Manfg. Co., 208 Ky 618 (271 SW 687).
An Introduction to the Philosophy of Law, Yalo University Press (1922).
Harper and James, The Law of Torts, chapter 12.
“Under this law, the most thoughtful and careful employer, who has neglected no duty, and whose workshop is equipped with every possible appliance that may make for safety, health and morals of his employees, is liable in damages to any employee who happens to sustain injury through an accident whieh no human being can foresee or prevent, or whieh, if preventable at all, can only be prevented by the reasonable care of the employee himself.” Ives v. South Buffalo R. Co., 201 NY 271, 302 (94 NE 431, 34 LRA NS 162, Ann Cas 1912B, 156).
To be distinguished from the term “malicious” as here employed are those aets of such gross and reprehensible nature as to constitute intentional and wilful misconduct under the act. See discussion, infra, citing Federal Underwriters Exchange v. Samuel, 138 Tex 444 1160 SW2d 61).
Federal Underwriters Exchange v. Samuel, 138 Tex 444 (160 SW 2d 61), wherein assailant-elaimant armed himself with iron bar and knife and attacked coemployee. | [
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Moore, J.
The chancellor filed a written opinion in this case reading as follows:
“Plaintiff, a corporation, is the owner of lot 10, block 1, in the city of Flint, Michigan, having a frontage of 33 feet on Saginaw street and a depth of about 150 feet along Union street on which there is a 9-story office building known as the Flint P. Smith Building with basement, the ground floor of which Was constructed especially for a banking business with lobby in front leading to the elevators and the bank. September 23, 1912, the then owners of said property, grantors of plaintiff, leased to the Industrial Savings Bank for the purpose of conducting a general banking business, the ground floor in the rear of the lobby in the Flint P. Smith Building, the vaults in the basement to said building, with the right to ingress and egress thereto, and so much of. said basement as may be necessary to use said vaults, the use of the lobby in said building for ingress and egress to the rear thereof, with the right to use the windows therein for advertising banking business of said Industrial Savings Bank, and also the right and privilege of using the front of said building to display the sign or signs of said bank for the period commencing with the time when said building should be made ready for occupancy by said bank and extending to and including June 30, 1939.
“By the terms of the lease lessor agreed to heat said leased premises when necessary, and to furnish said lessee with city water and janitor service for the corridors of the bank. The premises leased to the bank were completed ready for occupancy May 1, 1913, and they took possession on that date. The term for Which said premises was leased was divided into 5 rental periods, the first 4 periods to consist of 5 years each and the fifth period for the unexpired portion of the time. The rent for the first period was fixed by the lease at $2,000 per year, payable monthly in advance.
“By the terms of the lease, the rent for the remaining rental periods is to be determined for each term in advance by agreement between the parties, and in case the parties were unable to agree upon the rent to be paid, then each of said parties should select one arbitrator, and the two arbitrators so selected should select a third, and the three arbitrators so selected should fix and determine the rent to be paid by the bank to the lessors for the ensuing rental period; that the arbitrators chosen to fix the rent for any rental period should as a basis for fixing the rent for that period, take into consideration the character of the property rented, its location, the heating and services rendered by the lessors, the increase or decrease in the population of the city and the then general rental values of business property in the business district in the city of Flint, and the finding of the arbitrators chosen to fix the rent for each rental period should be final and binding upon all of said parties for the period for which it was fixed, and during such rental period said bank should pay to the lessors, and the lessors should receive the rent so fixed and determined by the arbitrators chosen for that period.
“The first 5-year rental period having expired on the 30th day of April, 1918, and the owners of said building and said Industrial Savings Bank not being able to agree upon the rent which should be paid by said bank to said owners for the ensuing 5-year period, thereupon in pursuance of the terms of said lease the owners of said building and said bank proceeded to have the rent fixed by arbitrators chosen in the manner prescribed in said lease, and John J. Carton, Charles M. Greenway and John L. Pierce were chosen as arbitrators. The arbitrators so chosen were unable to agree on the rent to be paid by defendant to plaintiff for said premises, for the 5-year rental period commencing May 1, 1918, Messrs. Carton and Green-way signed an award fixing the amount at $6,000 per year, and Mr. Pierce signed a statement to the effect that he refused to concur in said award, giving his reasons therefor. Plaintiff, claiming that the award is void because not concurred in by all three of the arbitrators, filed this bill to have the same judicially determined to be void, and to have the court determine the rent that should be paid by defendant to plaintiff for the 5-year period commencing May 1, 1918. Defendant in its answer insists that the award, though concurred in by only two of the arbitrators, is valid and has tendered the rent at the rate fixed by the award, which plaintiff has refused to accept.
“I am of the opinion that the award is invalid. That in submitting this matter to three arbitrators it was contemplated by the parties that they should have an award concurred in by all of them. A majority of the arbitrators may not render a valid award. Lattin v. Gamble, 154 Mich. 177. Our statute provides for an award by a majority of the arbitrators. 3 Comp. Laws 1915, § 13852. This is a part of the statute providing for a statutory award. I think in other States where there is a similar statute the decisions of the court are uniform to the effect that the statute applies to statutory awards only.
“It is suggested in the bill that there were some acts on the part of Mr. Carton, one of the arbitrators, on account of which the award should be held invalid. There is nothing in the testimony that should give rise to even a suspicion of misconduct on the part of Mr. Carton, and I base my conclusion that the award is invalid entirely on the fact that it was concurred in by but two of the arbitrators.
“We now come to the real live issue in this case, viz., what rent should be paid by defendant to plaintiff for the 5-year rental period from May 1, 1918, for the premises occupied by it, and the services rendered by plaintiff. This must be determined by conditions that would affect the rental value existing May 1, 1918, and which might reasonably be expected to obtain during the 5-year period in view of past events and future probabilities. The court in fixing the rental must be governed by the limitations in the lease placed on the arbitrators in that regard. I find myself embarrassed at the threshold of this inquiry. One who can forecast rental values in Flint in abnormal times for a period of 5 yéars must have occult power.
“Counsel in the case in elaborate and well considered briefs reach results that are $8,000 apart on the yearly rental. I knew they would not intentionally lead the court astray. The testimony of 12 reputable business men of Flint varies from $4,800 to $18,000 per year as to what the rent should be fixed and determined as of May 1, 1918, on the basis stipulated in the lease for the 5-year period. I have read the testimony with care, and I am unable to find a test which, when applied, satisfies me that I have reached a result that may be more than approximately mathematically correct.
“There was no building! in Flint May 1, 1918, with which the building in question could be compared. It was sui generis. Comparing rental value per square foot space in this building and old buildings that were required to be completely remodeled before suitable for occupancy by merchants pretending to be up-to-date, throws but little light on the merits of this controversy. I am convinced that the rental value of the ground floor occupied by the bank is enhanced by having offices in the floors above occupied by those engaged in various lines of business, and that the corridor between the bank and the street does not detract from the desirability of the bank quartérs for banking purposes. I am satisfied that the amount fixed by Mr. Carton and Mr. Greenway is too small. If I were authorized to fix the rental at what I thought it ought to be, the amount would be less than it will be. I believe the general rental values in the business district in Flint in May, 1918, were too high, and if so, then a rental for the premises in controversy fixed on the basis of the general rental value of other business property in Flint in May, 1918, must of necessity be too high, at least when viewed as a conservative business proposition.
“There runs through the testimony of Mr. Carton and Mr. Greenway the thought that rents of business property in May, 1918, were too high, and they probably fixed the amount at what they thought it ought to be as an abstract proposition rather than as compared with rents that they believed to be exorbitant. On the other hand, those who testified that the rental should be from $12,000 to $18,000 per year were doubtless unwittingly influenced by the fact that an unprecedented boom in Flint had brought about conditions when one could get as rental for business property in Flint much more than they would have thought of asking in normal times.
“I think there must be somewhere between these two extremes where the just legal rights of the parties to this controversy may rest. I fix the amount of rent to be paid by defendants to plaintiff at $9,000 per year from May 1, 1918, for the ensuing 5 years. Said sum to be paid $750 monthly in advance, with interest on the deferred monthly payments at 5 per cent, per annum.”
A decree was entered in accordance with the opinion. The case is brought to this court by appeal.
The first question presented is, Was the award valid? Counsel insist it is, we quote from the brief:
“Messrs. Carton, Greenway and Pierce were appraisers, not arbitrators, and if two arbitrators! could make ah appraisal, the appraisal made by Messrs. Carton and Greenway was valid.
“The distinction between arbitrators and appraisers and the difference of their official duties is nowhere pointed out with greater clearness than in Omaha, Water Works Co. v. City of Omaha, 89 C. C. A. 205, 162 Fed. 225 (15 Ann. Cas. 498).”
In considering this quotation it may be well to. refer to the lease:
“The rent to be paid by said lessee to the said lessors for each of the remaining rental periods shall be determined in advance by agreement between the parties for the ensuing rental period, and in case the parties hereto are unable to agree upon such rent, then each of said parties shall select one arbitrator and the two arbitrators so selected shall select a third arbitrator and the three arbitrators so selected shall fix and determine the rent to be paid by the said lessee to the said lessors for the ensuing rental period. As a basis for fixing said rent said arbitrators shall take into consideration the character of the property rented, its location, the heating and service rendered by said lessors to said lessee, the increase or decrease of the population of the city and the then general rental values of business property in the business district of the city of Flint. ' The findings of said arbitrators so chosen for each rental period shall be final and binding upon the parties hereto, and said lessee agrees to pay to said lessors the rent so agreed upon between the parties or so fixed by said arbitrators, and the said lessors agree to receive the amount so agreed upon or the amount so fixed by said arbitrators as the rent for said premises for said period.”
It is evident that the parties to the lease had provided for the selection of arbitrators and for arbitration in case of disagreement, and that “the three arbitrators so selected shall fix and determine the rent to be paid.” Both parties agreed that “the findings of said arbitrators so chosen” should be final and that they would both abide by the award. The language of the lease is not ambiguous and as to this feature of the case the chancellor was clearly right.
Was the rental fixed in the decree wrong? It is argued and we again quote from the brief:
“Even if the appraisal by two appraisers was not binding, the trial judge should have fixed the rent in accordance with that appraisal.”
It is urged that the two appraisers, as counsel call them, followed the provisions of the lease and that the decree should follow their findings. The three arbitrators were each sworn as witnesses. Two of them testified that $6,000 a year was a fair rental. The third one thought $12,000 was a fair rental. More than 30 witnesses were sworn; they differed greatly in their estimates of the rental value, 8 of them placing it at $12,000 and upwards. Two of them fixing it at $18,000 a year and one of them at $20,000 a year. An examination of the entire record does not satisfy us the decree should be disturbed.
It is affirmed, with costs to the appellee.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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] |
Sharpe, J.
The plaintiff had verdict and judgment for $2,500 as damages for injuries sustained by being thrown out of a buggy at or near the intersection of the “Romulus road” with the “Coy road” in defendant township, due, as she claims, to a “washout” or “gully” in the highway, rendering it not “in a condition reasonably safe and fit for public travel.” The duty of the defendant under the law (1 Comp. Laws 1915, § 4586) to so maintain the highway is pointed out and attention called to section 4584, which makes the township liable for injuries due to a neglect to perform such duty. Defendant denies that the highway was out of repair and insists that plaintiff’s fall was caused by her horse becoming frightened and by the right wheels of the buggy being outside the traveled portion of the highway. These questions were submitted to the jury in instructions of which there can be no just cause for complaint. The burden of proof as to both was on plaintiff. Defendant moved for a new trial for the reason, among others, that the verdict was against the great weight of the evidence. It assigns error on the denial of such motion.
Plaintiff’s witnesses testified that there was a “washout” at the place she was thrown out, that it was about 2 feet wide and from 7- to 10 inches in depth, that it extended across the traveled portion of the highway, varying slightly in depth. A number of witnesses called by defendant testified that there was no depression whatever in the highway at the place plaintiff received her injury. While it does not appear that any of plaintiff’s witnesses made any actual measurements of the width or depth of the washout testified to by them, neither does it appear that any of the witnesses for the defendant visited the place soon thereafter for the purpose of ascertaining its condition. The conflict in the testimony presented a question for the jury. Under the instructions given, they must have found that the highway was not “in a condition reasonably safe and fit for public travel.” The majority of my Brethren are of the opinion that such finding is not so contrary to the great weight of the evidence as to justify this court in setting it aside.
It is also urged that the testimony clearly establishes the fact that the horse became frightened at the noise of a cement mixer in use near by and was beyond her control at the time plaintiff fell from the buggy. The court charged that if the fright of the horse was the proximate cause of her injury plaintiff could not recover. She testified that when the horse heard the noise “he simply braced up a little bit; I held up the lines and he went right along. * * * My horse was just going along at an easy gait;” that after she got up out of the ditch into which she was thrown “the horse was walking along the road. * * * The wagon did not turn over.” She had a small child with her in the buggy. There was testimony of a number of persons that she told them the horse became frightened and ran away. We think this question was for the jury.
Defendant claims there was error in the court’s refusing to direct a verdict in its favor for the reason that if the highway was out of repair there was no proof of actual notice of that fact to the township officials or any proof from which constructive notice could be presumed. Frank Miller, a justice of the peace in defendant township, testified that he “noticed that washout there or gully. Prior to July, 1917. * * * It was in the month of June.” Henry Carpenter testified that it was in the same condition for “two weeks, more or less.” The pathmaster, Franklin Robbe, who lived about a mile distant, testified that he made an inspection of the roads in his district “once a week, on an average.” Edward O. Leonard, the highway commissioner, testified that he “examined that road during that year once a month.” We think the proof submitted justified the submission of the question of constructive notice to the jury.
Error is assigned upon the refusal to give certain requests preferred by the defendant. While some of them might well have been given, in view of the charge taken as a whole we cannot say such refusal constitutes reversible error.
We are asked to review the clerk’s taxation of plaintiff’s costs. That we can only do after the trial court has passed upon such action. See Circuit Court Rule No. 65; Niblock v. Saginaw Circuit Judge, 187 Mich. 423, and cases cited.
The judgment is affirmed.
Fellows, C. J., and Wiest, Clark, Bird, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision.
liability of municipality for injury to person or property of one driving over defective highway where his horse is frightened without fault of either party, see notes in 8 L. R. A. (N. S.) 77; 29 L. R. A. (N. S.) 199; L. R. A. 1915D, 243. | [
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Moore, J.
Plaintiffs were the owners of a lot in the city of Detroit. On the 29th day of May, 1919, they entered into a written contract, wherein defendant agreed to construct for plaintiffs, on the lot of the plaintiffs, a two-family flat, according to certain plans and specifications. The plaintiffs were to convey to defendant their title in such lot and the defendant was to construct the building, plaintiffs to pay a total sum of $14,500, $1,000 cash, a credit of $3,000 for the lot and the balance at the rate of $105 per month with interest, etc. On the same day the lot was deeded to defendant, a land contract for the re-conveyance of the land in the usual form was executed between the parties, and delivered to the plaintiffs. The building contract provided that defendant should proceed with the construction of said building with promptness. The contract further provided that if plaintiffs should fail to meet the payments, defendant was given the right to cancel the contract and recover for work done and materials furnished or continue the work and recover the contract price. If, on the other hand, defendant should not proceed and complete the building in accordance with such contract the plaintiffs might take over the building and finish it, holding defendant liable for any additional costs from the money due defendant when the entire job had been completed.
It is claimed the building was to be completed by August 1st, but there was no time limit in the written contract. In the meantime the plaintiffs had sold the house in which they were living at the time the contract was made, and agreed to give possession October 1st, and they got very impatient at the slowness with which the building progressed.
On or about the 1st day of October a controversy arose over the construction of waterproof floors in the bath rooms of said building which plaintiffs claimed were to be constructed under the terms of the contract and necessary in order to conform to the building code of the city of Detroit, and which defendant refused to construct, unless plaintiffs paid extra for such work and material. Correspondence passed between the parties, which we quote:
“October 1, 1919.
“Mr. Anthony H. Becker,
“774 Leland Ave.,
“Detroit, Michigan.
“Dear Sir: In re two-family flat at lot 102, Dakota avenue.
“The city code requires that gas vents be installed in this building. The cost of this will be $25.
“The code also requires that waterproof floors be put in all bath rooms. A terrazzo floor will cost you $100 for each bath room, and cement floor $60 for each bath room.
“We are in receipt of your check for $7.50 covering the cost of surveying, and thank you very much for same.
“Please let us have your check for $225 if you wish a terrazzo floor in each bath room, or $145 if you wish us to have cement floor put in.
“Kindly give this matter your prompt attention, so as not to delay the progress of the building any more than is necessary.
“Yours very truly,
“Lincoln Building Company.
“P. S. The above items are not covered in the specifications, and we must therefore ask that you send us your check to cover the additional expense involved.”
“774 Leland St., Detroit, Mich., Oct. 11, 1919.
“Lincoln Building Co.,
“Detroit, Mich.
“Gentlemen: Re lot No. 104, Dakota Ave.
“Referring to your letter of October 1st in which you demand of us a payment of one hundred (100) dollars for putting in a waterproof floor in each bath room in the flat you are building for us.
“Notwithstanding our contract explicitly provides that you shall complete the building in all respects complying with the local ordinances and building code, although the same are not explicitly mentioned, we find ourselves at present in a position where we are compelled to pay your demand, because we have already made a contract to deliver our present residence, at a time already past, intending to move into this flat, and we are daily increasing our liability for failure to do so. We are accordingly paying you the two hundred (200) dollars demanded, not because of any recognition on our part, of any liability to you to make such payment, but because our situation forces us to do it, and we protest and shall insist that you are legally liable to us for the money so paid, as paid without consideration.
“Yours truly,
(Signed) “Anthony H. Becker,
“Minnie Becker.”
“3003 Woodward Avenue, Oct. 13, 1919.
“Mr. Anthony H. and Minnie Becker,
“774 Leland St.,
“Detroit, Michigan.
“Dear Sir and Madam: We have your favor of the 11th inst, handed to us on the same date by Mr. J. W. Farrington, together with check calling for $200, signed by E. A. Becker, and in reply will say that your communication does not state what kind of a waterproof floor you wish us to install in your two family flat at lot 104, Dakota avenue.
“If it is for terrazzo floor, we wish you would kindly mail us letter instructing us to proceed with this kind of a floor, and that the $200 check is sent to us in payment of the work to be done on the terrazzo floors in the bath rooms. We also wish you would state in your letter that the terrazzo floors are extra, not called for in the plans and specifications or contract, with no strings attached to the payment of the check to us, as you know as well as anyone that there is no terrazzo floor called for in either the plans or specifications.
“If you do not want to pay for extras you had better advise us at once and we will stop putting them in. You know as well as we do that it costs money to build in these days.
“The writer was also down to the bank this morning and learned from the manager of the mortgage de partment that you had not left the deeds and contracts with him, as you promised you would do. This is to inform you that unless this is done at once, it is our intention to stop the work after this week on this building, after which time it will be necessary for you to pay ns cash in full for all work, labor and material put into this job, and we will be compelled to insist that the money be paid for all work, labor and material before it is furnished in this job.
“Please be governed accordingly.
“Yours very truly,
“Lincoln Building Company,
President.”
“(Letter Head Rood & Visscher.)
October 15, 1919.
“Lincoln Building Co.,
“Detroit, Michigan.
“Gentlemen: We are writing you at the request of Anthony Becker and Minnie Becker, in reply to your letter of October 13,1919, addressed to them, in which you acknowledge receipt of two hundred (200) dollars, paid under protest to induce you to complete the building of an apartment on lot 104, Dakota avenue, of this city, according to the plans and specifications and contract executed by you and them May 29,1919.
“The exigency of Mr. and Mrs. Becker’s situation is such that they are compelled to demand of you, and they do hereby demand of you, that you complete the said building according to the contract, putting in the floors in the bath rooms as directed by Mr. and Mrs. Becker.
“This is also written to notify you that unless you immediately signify your intention to fulfill the contract in all respects at once they will immediately proceed to complete it themselves at your expense, as they have a right to do under your contract.
“This is also written to demand of you the return of the two hundred dollars paid under protest as above stated.
“Yours truly,
“Rood & Visscher,
(Signed) “By John R. Rood.
“J.R.R./W.”
“3003 Woodward Avenue, October 15, 1919.
“John R. Rood, Esq.,
“637 Dime Bank Bldg’.,
“Detroit; Michigan.
“Dear Sir: Re two family flat at lot 104, Dakota.
“This is to acknowledge receipt of your valued favor of October 15th. We are inclosing herewith copy of letter written to Mr. Becker-today.
“We wish to advise that the second' paragraph of your letter is not clear to us. When you advise that they demand us to put in the floors in the bath rooms as directed by Mr. and Mrs. Becker, we believe you are aware of the fact that this is not in accordance with the contract.
“This is also to advise you that they have in their possession a certain warranty deed and land contract which belongs to us, and which we aré compelled to demand, and we do demand that they be turned over to us without delay, before they have carried out a part of the contract.
“The two hundred dollars referred to in your letter was paid to us for putting in terrazzo floors, and it was so noted on the back of the check. If they do not wish terrazzo floors put in the bath rooms we will return the money.
“Yours truly,
“Lincoln Building Company,
By,
“(Letter Head Lincoln Building Company)
“October 15, 1919.
“Mr. A. H. Becker,
“774 Leland- St
“Detroit, Michigan.
“Dear Sir: This is to acknowledge receipt of letter dated October 15, 1919, from Rood & Visscher, attorneys-at-law, handed to us by Mr. J. W. Farrington, in presence of Mrs. Minnie Becker, Which was in answer to our communication of October 13,1919.
“Upon receipt of the above letter from your attorney we telephoned the Peninsular State Bank, and were advised that the warranty deed and land contract, deeding the lot over to us, and the sale of the lot and completed building to you had not been turned over to them. When the deed and contract is turned over to the bank you will have carried out a part of the contract.
“However, in addition to this, we must also demand payment for all extras furnished on this job, either where material was furnished in excess of the contract price, or where labor was furnished in excess of the contract price. If you will advise us of your intention to do this, we will mail you itemized statement of all material and labor furnished on the building in excess of the contract price. You know as well as we do that the contract does not state that extras are to be furnished gratis, and we thought you understood the contract well enough to know that you would have to pay for them when put in under instructions to us received from you.
“Regarding the check for two hundred (200) dollars which your attorney demands of us to return to you, wish to advise that our letter of October 13th stated under what conditions we accepted this check.
“Kindly let us have your prompt and definite advices regarding these matters, and oblige.
“Lincoln Building Company,
By................... President.”
The parties did not get together and on October 16, 1919, plaintiffs filed the bill of complaint in this cause asking that defendant be decreed to pay the $200 alleged to have been wrongfully extorted from plaintiffs; that the defendant come to an accounting with plaintiffs for the several breaches of the contract alleged to have been committed by defendant, and for damages; that plaintiffs have credit on their land contract for the costs and expense to which they would be put in completing the building, and praying for an injunction restraining defendant from interfering with plaintiffs’ completion of the building. A preliminary injunction was issued in conformance with plaintiffs’ prayer and the plaintiffs proceeded to take over the job and finish the work at plaintiffs’ expense, the defendant continuing on the job for about a week but not paying! the men, and finally abandoning it on the 25th day of October, 1919, by giving the plaintiffs notice in writing that nothing further would be done in the construction of the building by the defendant and refusing to pay men employed on the construction of the building.
Defendant filed its answer and denied all allegations of wrong doing, and thereafter filed its supplemental answer and cross-bill, averring that the terms and conditions of said agreement providing for the conveyance by deed to defendant of the lot owned by plaintiffs were not complied with, and that plaintiffs neglected and failed to execute and deliver said deed and otherwise breached the building contract, causing defendant to notify plaintiffs in writing of their decision to rescind the said contract. Defendant further alleges that it did proceed to complete the erection of the building with due diligence, but that the plaintiffs so interfered with the orderly progress of the performance of the work that they breached the spirit of the building contract, by insisting on the installation of items of labor and material not contemplated in the contract. The cross-bill asked for affirmative relief. A hearing was had in open court. The court found for the plaintiffs on their bill of complaint and against the defendant on its answer and cross-bill, and a decree was signed accordingly. The case is brought into this court by appeal.
Stated briefly it is the claim of defendant:
(1) That it did not breach its contract.
(2) That the building code offered in evidence was improperly received for two reasons, (a) It was not the “building code” contemplated by the parties when the contract was signed, (b) The building code offered in evidence has been held by this court to be unconstitutional, counsel citing Thompson Scenic Railway Co. v. McCabe, 211 Mich. 133.
The third contention is that plaintiffs breached the contract.
Is there testimony that defendant breached the contract as the chancellor found? We have already quoted the correspondence. We now quote from the testimony of Mr. Farrington, who was hired by the plaintiffs with the consent of defendant to see if the work could not be expedited.
“Things went along pleasantly for awhile, for a little time, until the matter of the bath room floors came up — the city code. It was a matter of waterproof floors being put into the bath rooms. Mr. Scheurman would not have them put in. I don’t remember the date they refused to proceed. * * * I talked with Mr. Scheurman, F. T., president. I told him that the vent was plainly on the plans and that as it was it was a joke, and with reference to the floor that he had promised that he would put in a terrazzo floor, and he said he had promised to do it and he knew that a waterproof floor had to go in, but he had changed his mind and' would not put it in. * * •* I was present at conferences during which the matter of the bath room floor was discussed between Mr. Scheurman and Mrs. Becker. I think the first was when Mrs. Becker and Mrs. Appel and myself went to Mr. Scheurman. I don’t remember the date. I think that was probably a week or less before the letter was written by Mr. Rood. I think about a week or less. That would be about the 7th or 8th of October. Mrs. Becker offered, or tried to negotiate with Mr. Scheurman about putting it in. Mr. Scheurman repeated that he had agreed to put in the floor, but he had changed his plans. He gave no reason for that change. She asked him, please to do this, work and he replied that he would when he had time if she would pay this $200, as demanded by him. After that I don’t remember what was done. He said that he would put in the terrazzo floor for $200. After that, Mr. Rood was consulted.
“I was present at the time when Mrs. Becker got the note of protest to Mr. Scheurman. I was there with Mrs. Becker. After reading the letter, Mr. Scheurman said that he would not do the work, that he would refuse to continue. He said that he refused to continue the work.
“Q. He did not refuse only to put in the floors?
"A. According to the letter he had written, which called for Mr. Rood’s letter. After Mr. Scheurman said that he would not do the work, I said we will proceed with the work according to the contract at your expense. He said, go ahead, I will not.”
There was other testimony to the same effect, which taken in connection with the correspondence shows a breach of the contract on the part of the defendant.
Was the building code improperly introduced in evidence? (a.) It is claimed the code which was introduced in evidence was not approved by the commissioner of buildings until July 1, 1919, while the contract was made in May of that year. We do not regard it as very material whether the proper code was introduced in evidence or not.
Mr. Farrington testified without objection:
“I am acquainted with the provisions of the code. It provides any kind of waterproof floors. He wanted $100 extra for putting in those floors for each bath room.”
The defendant knew what the code was for in its letter of October 1st it is written:
“The city code requires that gas vents be installed- in this building. The cost of this will be $25. The code also requires that waterproof floors be put in all bath rooms. A terrazzo floor will cost you $100 for each bath room, and cement floor $60 for each bath room.”
(6) The fact that the code was afterwards declared unconstitutional is not material. The contract might by appropriate reference make an invalid code part of the contract just as it might make any other paper a part of the contract. . The defendant did so make it. It knew its provisions and refused to comply with them. See Martus v. Houck, 39 Mich. 431 (33 Am. Rep. 409), and Ginsberg v. Myers, 215 Mich. 148.
Did the plaintiffs breach the contract so as to entitle the defendant to the affirmative relief it asks in its cross-bill ? This contention is based upon the claim that, when defendant sought to borrow money at the bank, the bank officials declined to make the loan upon the theory that the deed from the plaintiffs to the defendant with the land contract back really constituted a first mortgage and it is claimed that an agreement was made that defendant would deed the land back to the plaintiffs who then would make a mortgage to the bank and after doing so could make a second deed to the defendant. There was talk to this effect, but defendant never deeded the land back to the plaintiffs, and they never made the second deed. What occurred was that the deed made by the plaintiffs to the defendant when the contract was made was left with the bank, and withheld by it from the registry, and the plaintiffs made a mortgage for- $5,000 directly to the bank with instructions to pay the money from time to time to the defendant, and this was done so that when the trouble arose $8,000 had been paid to the defendant by the bank. This situation is shown by the cross-examination of the financial officer of the bank, which we quote in part as follows:
“Q. Was there any other difficulty about the title than the title that you did not want to have a loan made to a party who had the deed as security with a land contract back whereby you considered it a mortgage?
‘‘A. Not as I had any knowledge of. That was the thing preliminary to our part of it.
“Q. But your whole trouble was that with a land contract back you regarded it as a mortgage?
“A. Yes. I wanted the loan to the person who had the real title. The Lincoln Building Company deeded the property back to the Beckers. They executed a deed so that the bank would make the mortgage.
“Q. Have you that deed here — don’t you think that the fact is that you retained the original deed and insisted on having your mortgage put on record and retaining that deed so you had that deed in your files?
“A. I rather think that is so now, but that was not my impression at the time, but I see from the file that is the case.
“Q. You kept the deed?
“A. Yes, the original deed by Mrs. Becker to the Lincoln Building Company, we kept.
“Q. Then no conveyance was made by the Lincoln Building Company to the Beckers?
'“A. No, sir, not as far as I know.
“Q. You still have possession of the deed by the Beckers going to the Lincoln Building Company and by them surrendered to you?
“A. No, I don’t see it.
“Q. You have it now, haven’t you, in your files?
“A. Yes, May 20, 1919.
“Q. Exhibit 18.
'“A. Yes.”
The plaintiffs made the deed in the first instance as was provided in' the contract and co-operated with defendant in its efforts to get financial aid from the bank.
A careful reading of this voluminous record satisfied us that the decree is right. It is affirmed, with costs to the plaintiffs.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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] |
Moore, J.
This is a bill of complaint filed for the purpose of requiring the Citizens Bank of Saline, or Carl A. Curtiss, its cashier, to pay over to the plaintiff $350 paid to Mr. Curtiss by William Parros by .reason of a contract made by Fred McKey with Mr. Narros, and the delivery to Mr. Parros of a deed made "by E. W. Hunt. The plaintiff claimed to own the" 'contract by reason of an assignment to her by Fred McKey. The contract between Mr. McKey and Mr. Parros was for the sale of real estate that was not owned by Mr. McKey, but the legal title was in Edmund W. Hunt, who married the mother of Fred McKey. The contract was left with the bank and it also held a deed from Mr. Hunt with the name of the grantee left in blank, and it was the understanding that when Mr. Parros paid the $350 mentioned in the contract, the deed left with the bank by Mr. Hunt should be delivered to Mr. Parros, and it was delivered to him when he paid the money.-
It is the claim of the defendants, Citizens Bank of Saline, Carl A. Curtiss and William Parros, that the property which was conveyed to Mr. Parros by reason of the execution of the deed on September 1, 1920, by Mr. Hunt, was the absolute property of Mr. Hunt, and that any money realized from the sale of said property to Mr. Parros now belongs to the estate of Edmund W. Hunt, he having died December 17, 1920, and that Carl A. Curtiss, as executor of his last will and testament, is entitled to the possession of the same. The chancellor who heard the case in open court made a decree in accordance with the claim of the defendants. The case is brought here by appeal.
The facts are not very much in dispute, and show that plaintiff was greatly defrauded by the defendant McKey. We will not go greatly into detail. Mrs. Hunt was sick for a considerable time before her death. Mr. McKey helped take care of her through her last illness. After her death Mr. Hunt went to the Soldiers’ Home, where he later died. He left a will giving his property to his wife in case she survived him. In case of her death before Mr. Hunt died the property was to go to Fred McKey. Mrs. Hunt died before her husband did. He left about $150 in pension money and his interest in the property described in his deed to Mr. Parros. The expenses of his last illness and death were in excess of $300. The plaintiff loaned to Edmund W. Hunt in his lifetime $1,750, which was secured by a mortgage on Mr. Hunt’s real estate, and which is the same real estate that was later deeded to Mr. Parros. Mr. McKey knew about this loan and evidently conceived the idea that the plaintiff possessed some property which he desired to possess. He proposed marriage to her. Before they were married he borrowed some money of her. The day they were married he borrowed more money of her, and that night he registered them at the hotel under an assumed name. He stated to her he had $350 coming to him at the defendant bank. Later he assigned to her the contract in question. Still later he obtained from her $750, claiming he had bought a business on which he had paid $250, which amount he was likely to lose unless he could make payment of the balance due. Mrs. McKey soon became convinced she had married an unscrupulous man, and caused his arrest. He was convicted of “larceny by trick” in obtaining from her $750. Mrs. McKey also instituted divorce proceedings which resulted in a decree of divorce in her favor. It was also provided in the decree that she might resume her former name. In the divorce decree reference wás made to the land contract with the following provisions:
“The said plaintiff may have and take under said land contract such remedy, action or proceeding for the recovery thereof or for the recovery of the premises embraced by the land contract as exist in law in such cases made and provided in behalf of a vendor or owner of lands in like cases where' premises or real estate are conveyed ordinarily by the provisions of land contracts in this State. * * *
“It is further ordered, adjudged and decreed that in the event it shall ever be held or decided by any court having competent jurisdiction of the subject-matter and the parties properly involved that the said land contract was not turned over, assigned or transferred by said defendant to said plaintiff as here-before stated or assumed to be, then, if the alimony both temporary and permanent and the whole thereof amounting at this time to ten hundred and five dollars as aforesaid, shall not have been paid by said defendant to said plaintiff as hereinbefore required to be paid, said plaintiff shall, by the decree of this court, have first lien on all the rights, interest and title of said defendant in and to said land contract and, to make such lien effectual to the intent and purpose that this plaintiff shall have all sums of money due and payable thereby, the further decree of this court is that said land contract is by operation of this decree, assigned, transferred and set over as of November 5, 1920, together with all rights, interest and titles as therein stated in behalf of said defendant, to this plaintiff to satisfy in part and for the amount paid, the said alimony, temporary and permanent.”
In the case before us counsel claim that plaintiff purchased the land contract for value before due and without notice of alleged latent equities, and should therefore be entitled to the $350 paid to the bank by Mr. Parros, citing 5 C. J. p. 974, paragraph 165, and other authorities.
There is no difficulty with reference to what the law is, but the question is how it is applicable to the instant case. It is true Mr. McKey signed a contract but he never had it in his control. After it was signed it was left in the bank. Mr. McKey never had any interest in the real estate described in the contract. The important part of the transaction was that Mr. Parros was to get title to the real estate by the payment to the bank of the amount of money mentioned in the contract, and he could only do this by means of a deed from Mr. Hunt, which was left with the bank. The transaction was not for the benefit of Mr. McKey but was for the benefit of Mr. Hunt. If the plaintiff had taken the precaution to inquire of the bank she would doubtless have learned the true situation. She did not do this but relied upon the statements made to her by her husband who lied to her.
Counsel for appellant further contend that plaintiff was given a lien upon the $350 in the divorce decree. This contention is our justification for quoting so much of that decree. It is true that the decree deals with the respective rights of Mrs. McKey and her husband to the land contract. Neither Mr. Hunt nor any one representing him. was a party to that litigation, none of the defendants in the instant case except Mr. McKey was made a party to the divorce proceeding and of course their rights could not be cut off in that proceeding.
We think the chancellor, reached the right conclusion, and his decree is affirmed with costs to the appellees.
Fellows, C. J., and Wiest, McDonald, Clark, Bird, Sharpe, and Steeee, JJ., concurred. | [
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] |
Sharpe, J.
The defendant was convicted of selling two pints of whisky to Claire Stoddard and George Snedicor at the city of Jackson on March 15, 1921, and seeks review thereof on exceptions before sentence.
Stoddard and Snedicor were officers charged with the enforcement of the prohibition law. They registered at defendant’s hotel. Snedicor, who was somewhat well known, assumed the name of Davis. Defendant, at Snedicor’s request, brought two pint bottles of whisky to a room in the hotel in which both Stoddard and Snedicor were, for which they paid him $10. Defendant was a witness in his own behalf. On direct-examination he testified that Snedicor asked him, “Can you get me any liquor?” and he said “No. There was a man sitting there on the outside, his name is Jack Wilson, and he jumped up and said he could get him a quart for $10.” That later—
“Mr. Snedicor came in, and he went to Mr. Stoddard’s room; this Jack Wilson was hanging around and 1 was stalling him along, and I asked him where he got his liquor from. I asked Jack Wilson. I took him to 105 room and talked with him there ; I asked him where he got his liquor from and ‘he said he got it from Detroit, and I asked him how he got it in and he said, ‘Why, they send it here in a near-beer barrel.’ I said, ‘In a near-beer barrel?’ He said, ‘Yes,’ and then he said to me, ‘What are you trying to do, you trying to hang me or something?’ and I said, ‘No, I am not.’ So I took the liquor, the two pints of liquor and took it into Mr. Stoddard’s room and handed them to Mr. Stoddard and took the $10 and gave it to Mr. Wilson. Wilson was standing on the outside of the door when I gave him the money.”
He further testified that he made the sale for the purpose of getting evidence against Wilson and pursuant to an arrangement he had made with Van Loomis, an inspector of the State food and drug department. On cross-examination he admitted that he did not inform either Stoddard or Snedicor that he got the liquor from; Wilson.
Defendant’s counsel insisted on their right to go to the jury on the question of his “good faith or lack of it” in making the sale. The court instructed the jury that if they believed the testimony of Stoddard and Snedicor and that the admissions of the defendant were true, it was their duty to convict defendant. The jury retired and soon returned with a verdict of guilty. As a result of the discussion with defendant’s counsel on the question of good faith, the trial court prepared the following question:
“In making the admitted sale to Stoddard and Snedicor, was Schiddel acting in good faith for the purpose of detecting and exposing one Jack Wilson as a violator of the prohibition law?”
and instructed the foreman to poll the jury on the question, and if they convicted the defendant, advise the court of the jurors’ answers thereto. This was done, the foreman at the time of announcing the verdict saying that “two answer ‘Yes,’ and ten answer ‘No.’ ” Defendant’s counsel, while submitting no authorities, argue strenuously that the jury should have been instructed that if the sale was made by defendant for the purpose indicated in the special question they should acquit the defendant.
There would be merit in defendant’s claim if based on an arrangement claimed to have been made with Stoddard and Snedicor, or either of them. He admits that so far as they were concerned he sold them two pint bottles of whisky for which they paid him $10 and that they had no knowledge as to where or of whom he procured it. This was a clear violation of the law on his part. He admits that he could have procured the evidence against Wilson quite as effectively without the delivery of the’liquor. The statute absolutely prohibits the sale. The intent with which it' was made, while it may affect the sentence imposed, is not involved as an element of the crime. An interesting discussion of the question presented will be found in People v. Roby, 52 Mich. 577 (50 Am. Rep. 270). The court should not have submitted the special question to the jury. The statute providing therefor (3 Comp. Laws 1915, § 12611) has application only in. the trial of civil cases.
The other assignments, while not discussed, have had consideration. We find no reversible error in the record. The court may proceed to sentence.
Fellows, C. J., and Wiest, McDonald, Clark,, Bird, Moore, and Steeke, JJ., concurred. | [
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Fellows, C. J.
This case was here on the question of the sufficiency of the bill in Gregor v. Olde, 209 Mich. 43. We there reversed a decree granting a motion to dismiss. Shortly after the decree dismissing the bill was entered in the court below and before the case was submitted to this court, defendant Olde sold the premises on land contract to Israel Prevost and Emma Prevost, husband and wife. Upon the case being remanded a supplemental bill was filed making them parties. The case went to a hearing on the merits and the trial judge found the facts to be with plaintiff and entered a decree in accordance with the prayer of the bill. The details of the decree will be presently referred to.
The testimony in this record strongly preponderates in favor of the plaintiff's claim. On June 2, 1902, the father of defendant Olde entered into a land contract with plaintiff and her husband, Rudolph Gregor, to sell them the premises in question. The purchase' price was $1,400, the payments were to be $8 every two weeks until the purchase price was paid with 6 per cent, interest. It is the claim of the plaintiff that during the lifetime of her husband he furnished the money and that after his death she and the children furnished the money to make the payments and that they have been regularly made, and that frequently larger sums than the regular payments were made. It is her claim that she has paid much more than she should have paid and is, and long ago was, entitled to a deed of the premises. Defendants, on the other hand, claim that the payments were not regularly made; they also claim that Mr. Olde, Sr., while he was active and looking after his business, and thereafter defendant Olde who succeeded him in title, always paid the taxes on the premises, paid for improvements, and they claim that there is much more due on the contract than the original purchase price. Elaborate computations made by both counsel are found in the record in which their respective claims as to amounts paid and amounts due are set out at length. These computations have been carefully considered and we have spent considerable time examining the account books which defendants’ counsel earnestly insist were competent evidence. The account books are not very helpful and we do not think them controlling in view of the testimony that on many occasions Mr. Olde made a memorandum of the money paid on a strip of paper instead of on the small account books he sometimes carried in his pocket. We need not review these computations or the account books but will proceed as briefly as possible to point out the testimony that is convincing to us that the facts are with the plaintiff. Both parties labored under some disadvantages in presenting their claims to the court. Mr. Olde, Sr., had been stricken with apoplexy and could not give his testimony. However, his son Walter E. Olde, who made the collections from 1906 down to June, 1918, was called as a witness and gave testimony favorable to defendants’ contention. Plaintiff’s copy of the contract had been stolen after her husband’s death, so she could not produce the indorsements made on it and a paper attached to it for that purpose.
Plaintiff’s husband died in July, 1912. Several of plaintiff’s children, who were then attending school, testify that in April of that year they and their father, who was then ill and about to undergo an operation, added up the sums which had been paid on the contract and indorsed by the Oldes on a paper attached thereto, and that the amount so paid and so indorsed was over $2,400 and less than $2,500. They do not undertake to give the exact figure. Plaintiff testifies that the computation was made but she does not claim to have participated in it. While this testimony comes from plaintiff and members of her family, we are satisfied they are telling the truth. After Mr. Gregor’s death Mr. Olde did not call for payments on the contract until the following September, when plaintiff claims payments were resumed and kept up regularly. When plaintiff’s son reached the age of 18 he commenced work at $50 per month, which he says was turned over to his mother and a part of which was paid on the contract. When one of the girls went to work she likewise assisted from her wages in making payments on the contract during 1916, 1917 and 1918. During all this time plaintiff was unsuccessfully trying to get an accounting from defendant Olde.
After Mr. Gregor’s death plaintiff was advised to apply for a mother’s pension; this she did but the matter seems to have been delayed for several years. Finally Probate Judge Hulbert took the matter up. In order to find out her financial condition he wrote Mr. Olde, Sr., several letters asking him to come in. Doubtless Mr. Olde’s condition precluded him from appearing in person or answering, the letters. A subprana was served on him to appear August 8, 1917. His son Walter E., who, as we have stated, had been making the collections on this contract, appeared for him. He claimed there was still due on the contract over $2,000 and he presented some memoranda which were not at ail convincing to Judge Hulbert. Judge Hulbert figured that the contract had been fully paid and advised Mrs. Gregor to consult a lawyer. The significant part of Judge Hulbert’s testimony given in this case is the following:
“Q. Did he tell you at that time that she had paid regularly her payments of $8 every two weeks?
“A. Yes, sir, he did. My recollection is that he said up to 1917.
“Q. That she had made her regular payments?
“A. Yes, sir.”
The high standing of Judge Hulbert and his total disinterestedness in the subject-matter of this litigation precludes us from rejecting his testimony and accepting that of interested parties. If the plaintiff and her husband had paid but $8 every two weeks from the date of the contract to the date of this proceeding before Judge Hulbert (and there is testimony from both parties that many payments in excess of $8 were made) they had paid at that time over $8,100. But it is insisted that the Oldes had paid large amounts of State, county and city taxes on the property and had paid for improvements on the premises which sums should be added to the purchase price. From the date of the contract to the time the children and Mr. Gregor figured up the amount that had been paid on the contract the total State and county taxes paid amounted to $26.06 and the total city taxes paid to $122.43. The only improvement put on the house was an annex to the kitchen built about the time the contract was entered into costing $108 and which amount we are satisfied was promptly repaid by Mr. Gregor. Street opening assessments amounting to $35.05 had also been paid. At the time of the proceeding before Judge Hulbert, the total amount of State and county taxes paid from the date of the contract amounted to $48.39, and the total city taxes paid amounted to $239.13, and an additional street opening assessment of $100.44 had been paid. These amounts covered a period of 15 years and do not furnish a justification for the large amounts claimed by defendants. A consideration of the testimony and the figures submitted to us in the numerous tables is convincing to us that plaintiff and her husband had paid a considerable sum in excess of the purchase price, the improvements, the taxes and interest, and unless precluded by sbme inflexible rule of law plaintiff was entitled to a deed.
Defendants insist that there are insuperable legal obstacles to plaintiff’s right to a decree for specific performance. The main legal defense is that there has been a former adjudication of the rights of the parties under this contract by a judgment of the circuit court commissioner, and they invoke the doctrine announced in Security Investment Co. v. Meister, 214 Mich. 337, and similar cases. The burden of establishing this defense is upon the deféndants. Upon the hearing of the case it appeared that plaintiff’s counsel had by stipulation consented to the adjournment so that the question decided when the case was here before is not of importance. ' The defendants did not produce the docket of Commissioner May or Commissioner Nichols. What they did and all they did so far as the record discloses was to swear Commissioner May’s clerk, who produced the files and they were offered and received in evidence. On the file were some notations showing the various adjournments and then the following:
“May 12. Judgment for restitution of premises, amount found due $2,801.88, $1.50 costs.”
This was unsigned and the only testimony identifying the handwriting was from this witness:
“Judge Nichols says that is his handwriting, I put it up to him.”
Does this unsigned memorandum with only the hearsay testimony as to the identity of the handwriting establish a judgment and sustain the defense of res adjudicaba? We think not.
Defendants’ counsel rely most strongly on Hickey v. Hinsdale, 8 Mich. 267 (77 Am. Dec. 450). In that case the justice had not entered the judgment on his docket, but his minutes were as full and complete as his docket was required to be, and they were signed by him. Here the minutes are incomplete and unsigned, and there is no competent evidence to establish the handwriting. The case is in principle much like Wilber v. Goodrich, 34 Mich. 84. In that ease what purported to be a transcript of a justice’s judgment had been received in evidence. It was not certified to by the justice who was called as a witness but who did not testify to its authenticity. It was held that the judgment was not proven and the case was reversed on this question alone. In Henry v. Gates, 118 Mich. 379, it was said:
“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 dockets were produced, and certainly proof that the lost docket contained as much is requisite.”
The testimony in the instant case falls far short of establishing that a valid judgment was rendered, and the defense of res adjudicata must fail.
While it is true, as contended by defendants’ counsel, that the relief by specific performance rests largely in the discretion of the court, that discretion is a judicial one, and where by the proofs a proper case for such relief is made out, the court is required to grant it and may not arbitrarily refuse it. There is nothing in this record that would justify withholding it in the instant case. Nor can defendants invoke the doctrine of equitable estoppel or claim anything- for plaintiff’s delay in asserting her rights. Defendant Olde and his father continued to receive money from her after she had fully paid all that she owed them and it does not lie with them to now complain of her laches. She many times asked for an accounting which was not given her and defendants are not in position to invoke the doctrine of equitable estoppel.
The decree of the court below will be affirmed. It protected the interest of defendants Prevost. It required defendant Olde to account for the rental value of the premises from the date of plaintiff’s eviction to the date of its settlement in the court below. It also allowed plaintiff for certain expenses occasioned by the eviction. Upon the settlement of the decree in this court these items will be brought down to date. Plaintiff will recover costs of this court.
Wiest, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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Fellows, C. J.
The information in this case contains three counts. The first count charges that on the 26th day of July, 1921, defendant unlawfully had in his possession prohibited liquors “to-wit: two gallons of moonshine whisky so-called.” The second count charges defendant with selling to one Walter Cooper on July 26, 1921, “one pint of moonshine whisky so-called.” The third count charges the defendant with keeping a place where the prohibited liquors “were manufactured, sold, stored for sale, given away and furnished,” on the 26th day of July and for some time prior thereto. Upon the trial the proofs disclosed that on July 26, 1921, the officers, armed with a search warrant, searched defendant’s place and found a quantity of moonshine whisky which was seized; upon a chemical analysis it disclosed a high alcoholic content; it was offered and received in evidence. The proof also disclosed that the sale to Walter Cooper was on the 24th day of July, 1921. Defendant’s counsel properly saved the right to question the validity of the search and seizure, and that is the first question raised in the brief.
The affidavit upon which the search warrant was issued contained positive averment of facts justifying the issuance of the writ; it also contained statements as to the sale to Cooper which while tending to establish such sale showed the sale was not made in affiant’s presence, and upon the trial the officer who made the affidavit testified that the facts positively stated by him in the affidavit were “upon information and belief.” Defendant’s counsel therefore insists that the police judge who issued the search warrant did not acquire jurisdiction to issue it. In this contention counsel is in error. The affidavit gave the police judge jurisdiction to issue the writ. This jurisdiction was not lost by proof aliunde that the facts therein positively stated were in reality stated upon information and belief. This is settled by numerous decisions of this court. Among them see People v. Lynch, 29 Mich. 274; People v. Hare, 57 Mich. 505; People v. Schottey, 66 Mich. 708; People v. Haas, 79 Mich. 449; Potter v. Barry Circuit Judge, 156 Mich. 183.
After the proofs were closed defendant’s counsel insisted that the prosecuting attorney be required to elect upon which count of the information the case should go to the jury. The trial judge was apparently quite impressed with the contention of defendant’s counsel but upon the insistence of the prosecuting attorney and with some misgivings submitted the case to the jury on all three counts. In this there was error. This case does not belong to that class of cases in which although there are different counts they are all sustained by the same testimony, were committed by the same acts at the same time, of which class of cases People v. Grabiec, 210 Mich. 559, is illustrative. In that case the information charged transportation and possession of liquor. Manifestly if defendant in that case was transporting liquor he had it in his possession, and the same testimony of the same act at the same time established the charge under each count. But it must be equally manifest that evidence of a sale of a pint of liquor to Cooper on the 24th was not evidence that defendant had two gallons of liquor in his possession on the 26th; nor was evidence that defendant had two gallons of liquor in his possession on the 26th evidence that he sold Cooper a pint on the 24th. They were two separate and distinct acts, each constituting a separate and distinct violation of the law. In Tiedke v. City of Saginaw, 43 Mich. 64, it was held:
“Separate and distinct offenses, committed on different days, cannot be alleged in the same complaint and warrant. They may be charged in different counts of an information, but the prosecutor must elect on which count he will proceed.”
In the case of People v. Rohrer, 100 Mich. 126, there were two counts in the information, one charging that the defendant kept his saloon open on Sunday, the other charging him with keeping the windows of his saloon curtained on the same day; each of these offenses required different proof and proof of one was not proof of the other. This court there held that defendant’s counsel was entitled to an election as to the count upon which the case should go to the jury and reversed the case for the refusal of the trial judge to require such election. This case has been cited with approval in People v. Shuler, 136 Mich. 161; Chase v. Van Buren Circuit Judge, 148 Mich. 149; People v. Smith, 177 Mich. 358. See, also, People v. Jenness, 5 Mich. 305; People v. Keefer, 97 Mich. 15; People v. Hamilton, 101 Mich. 87.
For this error the conviction must be reversed and a new trial ordered.
Wiest, McDonald, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred. | [
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Fellows, C. J.
The plaintiffs, five in number, and defendant Delilah E. Hartman are the children of Thomas S. D. Swick and Margaret Swick. Mr. Swick died in November, 1917, possessed of a farm of 80 acres situated in Richland township, Montcalm county. After his death all the children joined in a quitclaim deed of the farm to the widow. The following spring Mrs. Swick deeded the farm to plaintiff Lester Swick and his wife, reserving a life use. While not reduced to writing there is no dispute but that the consideration of this deed was an agreement on Lester’s part to care for his mother during the balance of her life, pay her funeral expenses, maintain Mrs. Swiek’s widowed daughter, who lived with her, and also maintain and educate her two young children. After this deed was executed a mortgage was given to a bank for $1,000, the proceeds of which were used to build a house for Mrs. Swick to live in, Lester and his family occupying the old home. Mrs. Swick became dissatisfied with the arrangement with Lester and with the manner in which he was carrying it out and in the late summer filed a bill to have the deed set aside. An adjustment was arrived at and a settlement made with the assistance of some of the neighbors. Lester deeded the farm back to his mother, retaining possession of the premises for a time, had nearly all the crops and was given some personal property. Shortly thereafter the deed in controversy was executed by Margaret Swick to the defendants, husband and wife. It was drawn by the register of deeds of Montcalm county in his office, he and Mrs. Swick alone being present. He had known Mrs. Swick a number of years and testifies that she dictated its terms and conditions. It conveyed the farm in question and included the personal property thereon and contained the following provisions:
“It is hereby agreed by and between the parties hereto that the party of the first part retains unto herself a life estate in the above described premises to the extent that the parties of the second part are to give the party of the first part a home and support her with them during her life and at her death give her a proper burial at their own expense, and also the parties of the second part are to give Dora Fay Cromwell and her two children a home and support and send the children to school until they finish the 8th grade, or until the said Dora Fay Cromwell gets married, in which case this agreement is no longer binding. The parties of the second part are also at the death of the party of the first part to erect, or cause to be erected, for her a suitable monument or marker to cost not less than $80.”
Mrs. Swick remained with the Hartmans except for a visit to one of her daughters until their house burned on the night of July 8, 1919. The next morning she was moved to the home of plaintiff Isal Johnson and remained there until her death, eight days later. There is in this record no evidence that Mrs. Swick at any time was dissatisfied with the care and attention given her by the Hartmans, nor is there any evidence that they in any way breached their contract with her. She was around 65 years of age; then was and for a number of years had been afflicted with Bright’s disease. Mr. Hartman paid her doctor’s bills, the interest on the mortgage and the taxes on the farm. As the disease progressed and she needed more care he hired a girl to do the housework so that his wife could give her mother the needed attention; after her death he paid the funeral expenses and those of her last sickness, including a bill of $20 rendered by Mrs. Johnson for the eight days her mother was at her house.
The bill seeks to set aside the deed to the Hart-mans on the usual grounds of mental incompetency and undue influence. Defendants in their answer claim the benefits of a cross-bill and ask that their title be quieted. The trial court dismissed the bill and granted defendants the relief they prayed. There is no testimony in this record bearing upon the question of mental incompetency that could not be produced in a majority of cases where the grantor had passed middle life. Plaintiffs have signally failed to make a case of mental incompetency. Plaintiffs’ counsel seem to appreciate this situation but insist that even though the testimony might not justify a decree on this ground, it shows that the grantor, Mrs. Swick, was in such an enfeebled mental condition that she became an easy prey to the undue influence claimed to have been practiced upon her by the defendants. Counsel insist that we should infer and find that defendants not only exercised undue influence in procuring the deed in question but also by the same means undermined Lester and unduly persuaded Mrs. Swick to break with him and annul their arrangement. Mr. Hartman went with Mrs. Swick to Stanton the day the deed in question was drawn, but the plaintiff Dora Searles also accompanied her although neither was present when the deed was prepared and executed. Mrs. Hartman was not a member of the party. Mrs. Swick was then living with her daughter Dora on the farm. There is little or no evidence even of opportunity and opportunity alone is not sufficient to estab lish undue influence. Severance v. Severance, 90 Mich. 417; Blackman v. Andrews, 150 Mich. 322; In re Williams’ Estate, 185 Mich. 97; Noble v. Hunter, 195 Mich. 713. In. the Severance Case this court held (quoting from the syllabus):
“Undue influence cannot be predicated upon opportunity alone, nor upon conduct in the line of filial duty, nor upon a disposition of property not in accordance with the statute of descent.”
But plaintiffs’ counsel insist that the fiduciary relation existed between Mrs. Swick and defendants and that defendants are, therefore, required to establish that their dealings were in all regards conscionable and free from undue influence. Numerous cases are cited from this and other jurisdictions where this question is considered. It is doubtful if the instant case falls within the line of authorities cited. We need not cite or consider the authorities or decide the question. The record is convincing to us as it was to the trial judge that no undue influence was practiced on Mrs. Swick. The contract was in no way unconscionable. It was to all intents and purposes the same contract she orally made with Lester and none of the plaintiffs questioned the contract she made with him. Mrs. Swick was about 65 years old; she was not in robust health, was afflicted with a disease which would no doubt shorten her life; she was in need of care which would increase as the disease progressed. She not only made her care and support a consideration of the deed but also provided for the care and support of her daughter Dora and her two little children, including their education up to and through the eighth grade. While Dora remarried soon after the deed was executed, neither Mrs. Swick nor the Hartmans had any information that she contemplated such step when the contract was made. Some of the interested testimony fixes a value of $60 an acre for the farm; but it was.assessed in 1919 at $2,000, having been raised to that figure after the new house was built. But 10 acres had been stumped and much of it was covered by second growth timber. There was a mortgage on it for $1,000. The contract was á favorable one for Mrs. Swick. Defendants have performed it. The decree was right. It will be affirmed, with costs to defendants.
Wiest, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.
The late. Justice Stone took no' part in this decision. | [
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] |
Steere, J.
Plaintiff appeals from a decree of divorce granted defendant on her cross-bill charging extreme cruelty and nonsupport, his especial grievance against said decree being an award to her of $1,000 permanent alimony payable in weekly instalments. The case was heard in the superior court of Grand Rapids upon pleadings and proofs taken in open court on August 23, 1921, at which time both parties testified to being 19 years of age. Plaintiff was then living at the home of his parents and, as he testified, without money, property, trade, employment or income. Defendant was then living at the home of her parents, who were elderly people, without accumulated means, had raised a large family, and. were in limited circumstances. She was nursing a baby six months old, of which she testified plaintiff was the father, and had named it Esther June. She had no property, resources or means of support for herself and child, except as aided by her parents and what she could earn as then situated, of which she stated in her verified application for alimony, that—
“before her marriage she worked at the Bissell Carpet Sweeper factory, and that since her baby was born she has been obliged to go back there and work as much as she could, but she has not been able to work all the time and she should not work at all, as the baby is a nursing baby and she should remain with her child.”
These young people had known each other for about 2 years when this case was heard. Previous to their marriage she worked in a factory. The only work he is shown to have engaged in was jitney driving. In the spring of 1920 they commenced going together to dances, parks, canoe riding, etc., and soon became intimate. When out together he would accompany her home and when absent from the city wrote her letters and postal cards. In the fall it was discovered she was in a delicate condition, for which she claimed he was responsible. Accompanied by her brothers she went to the garage where plaintiff was and advised him of her condition. With his consent she interviewed his mother and the matter culminated in an agreement of marriage.
They were married December 1, 1920, and plaintiff took defendant to his parents’ home where they lived together about three weeks. She planned to go to her parents’ home during her confinement. This occurred December 25, 1920, earlier than anticipated owing, as she claimed, to a premature birth of the child resulting from his fast driving on a rough trip which they took to Sparta while living together. When indications developed that the event was imminent he took her to her parents’ home and, as she claimed, was rough and unkind to her, profanely expressing a wish that her baby would be born dead. He visited her but once after it was born, did nothing for her but return her clothing which she had left at his parents’ home, furnished her no support, wholly abandoning her and their child.
On April 18, 1921, plaintiff filed this bill alleging as ground for divorce that he was not the father of her child but under that charge had been deceived and intimidated into marrying defendant. She answered in denial with cross-bill asking for divorce from him and alimony on the ground stated. On the hearing plaintiff admitted improper relations with defendant during the summer of 1920, but claimed they began later than she testified, and too near the time of the baby’s birth for it to have been begotten by him.
Upon the hearing it appeared to the court, after listening to the testimony with opportunity to observe the situation generally, and indicated disposition of the parties towards each other, that a reconciliation was impossible, that the material facts alleged in plaintiff’s bill were not well founded and the same should be dismissed. On the other hand it satisfactorily appeared and was found by the court that plaintiff had been guilty of the several acts of extreme and repeated cruelty charged in defendant’s cross-bill, and that she was a proper person to have the care, custody and education of their infant daughter. A decree was rendered accordingly, also requiring plaintiff to pay to the clerk of the court $3 per week for support of the child, and to defendant an allowance to be in lieu of dower and in full satisfaction of all claims against him present and prospective, to a maximum sum of $1,000 in weekly payments of $5 each; but in case she remarry before the same is fully paid, such weekly payments shall cease and the amount then so paid shall stand as full payment of such award to her.
For plaintiff it is contended that this award against a minor, himself without money, property, calling, employment or income from any source, is excessive, unreasonable and under present conditions imposes upon him that which is impossible for him to perform. To that point comparisons are made with other cases in which much smaller awards of alimony have been made against mature men having employment and trades, shown to be earning or capable of earning good wages. The right of the court to make an award of permanent alimony under the facts shown here is also questioned, it being contended that permanent alimony contemplates an award to the wife, according to his resources and her needs, position in life, etc., out of the estate or property owned by the husband.
The word “alimony,” though frequently defined as a portion of the husband’s estate awarded to the wife for support, does not necessarily imply that he has any tangible property, or known available resources from which alimony can presently be realized by legal process. The power of the court to award an allowance is not so limited. Comprehensively considered that term is generally used and understood by the courts and elsewhere as meaning an allowance to be paid by the husband to the wife for her support and maintenance, and often their dependent children, pursuant to an order or decree by the court in a divorce proceeding!. As a recognized incident of divorce it is founded on the continuing obligation assumed by the husband under his contract of marriage to support his wife and children, not based exclusively on his property or estate but also on his earnings or ability to earn and their necessities. In making the award, and later in enforcing it, the court is expected and required to have due regard to the ability of the husband, the character and circumstances of the parties and all other circumstances of the case. Though based on existing facts it is largely anticipatory. Significant of the court’s jurisdiction to make an allowance in the absence of any visible estate of the husband, the court is required on granting a decree of divorce to include in it a provision in lieu of dower, not only in property which the husband then owns but “may thereafter own,” or in which he may have an interest. 3 Comp. Laws 1915, § 11436.
Marriage is a life contract imposing on the husband support and maintenance of the wife in sickness and in health during life, contingent only on termination-sooner by decree of a court for statutory reasons. Plaintiff by such a contract assumed that obligation to defendant. The court held, properly we think, that his attempt to repudiate it was ill-founded, and his conduct towards defendant was such as to legally entitle her to the relief asked in her cross-bill. Forced into court on his initiative and compelled by his misconduct to seek divorce she did not lose her marital right to support, which under a decree for alimony could be and was made a compulsory contribution under obligations of the marriage contract.
Award of such allowance and its enforcement are two different things. We have before us only the award. These young people yet have their adult life before them, with a life expectancy according to the American tables of mortality of over 42 years. Should plaintiff pay to defendant the allowance granted her of $5 per week to the full amount imposed he would be free for life in a little under four years, or sooner if she re-marry.
We fully concur in the suggestion of defendant’s counsel that in awarding to the wife an allowance for support neither a premium upon her immoral conduct with plaintiff before their marriage nor his punishment afterwards should be capitalized as elements of the award, but eliminating all such considerations we are not prepared to find that under the facts disclosed in this case the amount awarded the destitute and deserted wife for her support and maintenance while nursing and caring for their now infant child during the time prescribed is excessive to an abuse of discretion by the trial court.
The decree will stand affirmed, without costs.
Fellows, C. J., and Wiest, Clark, Bird, Sharpe, and Moore, JJ., concurred.
The late Justice Stone took no part in this decision. | [
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] |
Bird, J.
This suit, under the Federal act (35 U. S. Stat. chap. 149, p. 65), was prosecuted by plaintiff to recover damages against defendant for negligently causing the death of his intestate. The defendant had verdict by direction of the court. Defendant’s coal dock is situate north of the city of. Flint just outside the city limits. The deceased was employed at the dock helping to coal and water locomotives. He lived south and west of the coal dock. In going to his work he would go north to the Pierson road, east on the Pierson road to defendant’s yards, and then north between the main and passing tracks to the coal dock. This was his usual way of going to and from his work. On the early morning of December 28, 1918, when he reached the tracks, he did not go north the usual way between the tracks, but he stepped onto the foot board of a locomotive intending to ride to the dock. This locomotive was coupled to others, one in front and one behind. They were going to the dock to be coaled. Just previous to this a freight train had been cut and the front part had pulled up to the north beyond the coal dock for some purpose. This was unknown to the locomotive hostler and he pulled into the gap with these three locomotives. He had not gone far when he collided with the head end of the freight which was moving back to get the rear end. The effect of this collision was to drive the tender of the front engine back on the pilot and foot board where the deceased was .standing. In consequence of this the deceased suffered injuries from which he soon after died. The negligence complained of was the backing of the freight train without any lookout on the rear end of it. The morning in question was cold and foggy and objects were not easily seen.
It is contended by defendant that the action cannot be maintained because the deceased was not engaged in interstate commerce. It appears from the testimony that a large percentage of the freight which was carried through defendant’s yard was interstate freight. That the deceased assisted in furnishing the locomotives with coal and water and it was further shown or understood that the Pere Marquette Railway was an interstate railway. The facts in the case of Horton v. Navigation Co., 72 Wash. 503 (130 Pac. 897, 47 L. R. A. [N. S.] 8), were very similar to those in the present case. It was there held that the deceased was engaged in moving interstate traffic. In that case the very pertinent question was asked, what effect it would have had upon interstate commerce if no one had been employed to take the deceased’s place in coaling and'watering the locomotives. The same conclusions have been reached in other similar cases. Erie R. Co. v. Collins, 170 C. C. A. 240, 259 Fed. 172; Erie R. Co. v. Szary, 170 C. C. A. 246, 259 Fed. 178; Guy v. Railroad Co., 198 Mich. 140.
We are likewise impressed that the relation of master and servant existed after the deceased reached the railway yards and while he was traveling north to the coal dock in the usual way between the tracks while he was going to and leaving his work. Feneff v. Railroad, 196 Mass. 575 (82 N. E. 705); Erie R. Co. v. Winfield, 244 U. S. 170 (37 Sup. Ct. 556, Ann. Cas. 1918B, 662); Ewig v. Railway Co., 167 Wis. 597 (167 N. W. 442, 169 N. W. 429); Ewald v. Railway Co., 70 Wis. 420 (36 N. W. 12, 591, 5 Am. St. Rep. 178); Boldt v. Railroad Co., 18 N. Y. 432; 1 Roberts Federal Liabilities of Carriers, p. 788.
It seems to us clear that while the deceased was using the 10-foot strip between the main and passing tracks to go and return from his work, the relation of master and servant existed, and had the deceased been injured while traveling this route, by reason of some hole or obstruction, which rendered the way unsafe, defendant would, undoubtedly, have been obliged to respond in damages, but that is not exactly the case we have to deal with. Instead of traveling the usual route after he reached the yards the deceased chose an obviously dangerous way to reach the docks, namely, between the two locomotives. He entered and ocupied this dangerous place without the knowledge of his master, or any one of his co-servants. No other person knew until after the injury had taken place that the deceased was riding on the locomotive. As to this act yre are persuaded that the defendant would ©we him no greater duty to protect him from injury than it would any other licensee. When the deceased went outside the scope of his employment and assumed an obviously dangerous position without the knowledge of the master, he assumed the risks which were attendant thereon.
This rule is laid down, as follows:
“Where a servant voluntarily and of his own motion exposes himself to risks outside of the scope of his regular employment, without or against the order of the master or vice-principal, and is injured thereby, the master is not liable.” 26 Cyc. p. 1224.
Ruling Case Law has this comment:
“In going to and from his place of work upon the premises owned or controlled by his employer, an employee is deemed, as a general rule, to be engaged in the employment, and the employer in providing him a safe way to pass and repass is bound to exercise the degree of care employed by the contract of service, though, of course, if the employee chooses to go by an unusual and unsafe way the rule is otherwise.” 18 R. C. L. p. 584.
This rule was applied in Kennedy v. Chase, 119 Cal. 637 (52 Pac. 33, 63 Am. St. Rep. 153). This case quotes Thompson on Negligence, as follows:
“ ‘We have found no support for any rule,’ says Mr. Thompson, in speaking of the rights of trespassers or mere licensees, ‘which would protect those who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with the business or other relations with the occupant.’ 1 Thompson on Negligence, p. 303.”
The case of Cleveland, etc., R. Co. v. Workman, 66 Ohio St. 509 (64 N. E. 582, 90 Am. St. Rep. 602), is an interesting application of the rule.
This court has also applied the rule in Kopf v. Monroe Stone Co., 133 Mich. 286.
¥/e are unable to resist the conclusion that the trial court was right in directing a verdict for defendant on this ground. When the deceased left the usual way of going and coming from his work and boarded this locomotive, he was, while on it, no more than a licensee, and by reason thereof he assumed the risks attendant thereon.
The judgment is affirmed.
Fellows, C. J., and Wiest, Clark, Sharpe, Moore, and Steebe, JJ., concurred.
The late Justice Stone took no part in this decision.
constitutionality, application and effect of the Federal employers’ liability act, see notes in 47 L. R. A. (N. S.) 38; 48 L. R. A. (N. S.) 987; L. R. A. 1915C, 47. | [
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Per Curiam.
On July 30, 1964, Albert D. Maiuri, the 24-year-old unmarried son of plaintiffs, while working for defendant, Sinacola Construction Company, in a 27-foot deep trench, died from injuries sustained when a chunk of earth fell and crushed his skull. At the time of death, Sinacola was subject to the provisions of the Michigan workmen’s compen sation act. Plaintiffs, liis parents, did not qualify as dependents within the meaning of that act.
Plaintiffs made application for hearing and adjustment of claim with the workmen’s compensation department. They received a $500 statutory burial allowance. Eventually their application was dismissed at the request of plaintiffs’ counsel.
On July 29, 1966, plaintiffs commenced this action under the wrongful death act for the death of their son, the loss of companionship and services. Accelerated judgment of no cause for action was entered on October 17,1966. The trial court was affirmed on June 25, 1968 by the Court of Appeals, 12 Mich App 22. We granted leave to appeal on August 20, 1968. 381 Mich 772.
We affirm the trial court and the Court of Appeals.
1. What was formerly the wrongful death act is now incorporated into the revised judicature act (CLS 1961, 600.2922, as amended; Stat Ann 1969 Cum Supp § 27A.2922), and in part provides:
“(2) Every such action shall be brought by, and in the names of, the personal representatives of such deceased person.” (Emphasis added.)
This action was brought by Pasquale Maiuri and Amelia Maiuri, husband and wife, parents of the deceased, in their individual capacities, not as representatives of their son’s estate. The language of the statute is mandatory. The plaintiffs’ action must fail bceause they are improper parties. Burns v. Van Laan (1962), 367 Mich 485.
2. Even if this action has been brought by the personal representative of the deceased’s estate, under the facts of this case, the action could not be maintained. It is undisputed that Albert D. Maiuri at the time of his death was an employee of Sinacoia Construction Company and that he died as the result of an injury arising out of and in the course of his employment. If death had not ensued, his only claim would have been against the defendant for compensation under the workmen’s compensation act. For a discussion, see Jordan v. C. A. Roberts Company (1967), 379 Mich 235, on rehearing (1968), 381 Mich 91. “Where the conditions • of liability under this act exist, the right to the recovery of compensation benefits, as herein provided, shall be the exclusive "remeidy against the employer.” CL 1948, § 411.4 (Stat Ann 1968 Kev § 17.144).
The wrongful death act, as it appears in E.JA, in part provides:
“Sec. 2922. (1) Whenever the death of a person or injuries resulting in death shall be caused by .wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had ¡not ensued, shall be liable to an action for damages, •notwithstanding the death of the person injured, and although the death shall have been caused under such ■ circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.” (Emphasis added.)
The present wrongful death act is an amalgamation of the remedies previously existing under the wrongful death and survival acts. It came about due to difficulties which had arisen under the previous acts as to the remedy if death resulted but was not known to have been instantaneous. Where the injuries result in death, survival and wrongful death actions now, by direction of the legislature, are to be brought undei' the wrongful death act. As a condition to a successful action under the wrongful death act, it must be shown that the decedent, if death had not ensued, could have maintained an action and recovered damages for his injuries (BJA §2922[1],). This is true even though the wrongful death act ,creates a new cause of action permitting recovery for the benefit of certain persons who had sustained pecuniary injury as a result of the decedent’s death, The language of the statute requiring that the. de-, cedent must have been able to maintain the action, “if death had not ensued,” has remained in the act throughout its legislative history.
In Lincoln v. Detroit & M. R. Co. (1914), 179 Mich 189, Justice Stone undertook to explain the meaning of the clause, “if death had not ensued.” In that case he wrote (p 196):
“The language of our statute (CL 1897, § 10427) is that liability of the wrongdoer exists where the deceased could have recovered, if death had not ensued.”
See, also, Justice Stone’s quotation from Cooley on Torts, at pp 197, 198.
In the case of Mehegan v. Boyne City, G. & A. R. Co. (1913), 178 Mich 694, an action for wrongful death was brought by the plaintiff, as administratrix of the estate of James E. Mehegan, deceased. The defendant owned and operated a railroad upon which the deceased met his death. The deceased, an employee of another corporation, and his wife, had executed a release of liability to the defendant for any injury he might sustain while riding upon a motor car of his employer operated over defendant’s rails. This Court found the contract and release to be valid. The opinion states:
“The language of the statute suggests very clearly that if the husband would not have a cause of action had he survived the injuries his widow and child would not have one.”
Since the cause of action of a proper plaintiff under the wrongful death act is a derivative one in that the personal representative of the deceased stands in his shoes and is required to show that the deceased could have maintained the action if death had not ensued, and since, in this case, the decedent would have been barred from an action for injuries resulting in death because of the exclusive remedy provisions of the workmen’s compensation act, the trial court did not err in granting an accelerated judgment for the defendant. The trial court and the Court of Appeals are affirmed, with costs to defendant-appellee.
T. E. Brennan, C. J., and Dethmers, Kelly, T. M. Kavanagh, Adams, and T. G. Kavanagh, JJ., concurred.
Black, J., concurred in the result.
The survival act now appears as section 2921 of the revised judicature act (CLS 1961, § 600.2921 [Stat Ann 1962 Rev § 27A-.2921]). It provides in part:
“Actions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursuant to the next section.” [Wrongful death section.] Bracketed material added.
In Jorgensen v. Grand Rapids & Indiana Ry. Co. (1915), 189 Mich. 537, 541, this Court in summary of the law and practice of this State eomniented that the death act was applicable only to eases of instantaneous death; where death was not instantaneous the action should be brought under the survival act; but both rights of action, for the same injury, cannot exist at the sanie'tiine.
See, also, Sweetland v. Chicago & Grand Trunk R. Co. (1898), 117 Mich 329; Dolson v. Lake Shore & M. S. R. Co. (1901), 128 Mich 444; Jones v. McMillan (1901), 129 Mich 86.
The Michigan wrongful death act was first enacted in 1848." Laws of Michigan, 1848. No 38. It was similar to “Lord Campbell’s act” which had been adopted in England in 1846. The wording of the original Michigan act is set forth in full in Lincoln v. Detroit & M. R. Co. (1914), 179 Mich 189, at 198, 199, and it will be seen that the above-quoted phrase appears in section 1. This section was amended by PA 1939, No 297, but the pertinent language remained unchanged and was incorporated into the Compiled Laws of 1948 in § 691.581 (Stat Ann 1959 Cum Supp § 27.711) which section was repealed bv the revised judicature aet, PA 1961, No 236, § 9901 (CLS 3961, § 600.9901, Stat Ann 1962 Bev § 27A-.9901). | [
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] |
Per Curiam.
Archie Stewart, plaintiff herein, was sentenced on June 4, 1965, by the circuit court of Jackson county, to a term of not less than 15 months nor more than 2 years for violation of the check law. He had written a series of checks without sufficient funds.
At the time of his arrest, Mr. Stewart was employed by the Michigan department of corrections as a sergeant in the custodial force of the State Prison of Southern Michigan. Because of his former position and the consequent undesirability of having him serve his sentence in the institution where he had been employed, he was transferred to the Detroit House of Correction on July 2,1965.
Mr. Stewart escaped from the Detroit House of Correction on August 11, 1965; was subsequently apprehended in St. Louis, Missouri, and returned to
Michigan on Angnst 29, 1965. On February 25, 1966, he was sentenced to a term of not less than 1 nor more than 3 years for that offense.
On December 9, 1966, he was paroled to Wayne county. On January 10, 1967, the parole agent submitted a parole violation report charging that Mr. Stewart had unlawfully absconded jurisdiction, and on January 16, 1967, a parole violation warrant was issued.
August 22, 1967, Mr. Stewart pled guilty to a misdemeanor charge of theft at St. Louis, Missouri. He was sentenced to 90 days in the county jail, given credit for more than 90 days spent in jail awaiting trial, and released to the custody of the Michigan parole board.
Plaintiff was interviewed by the parole board on August 31, 1967. An affidavit of two members of the parole board indicates that Mr. Stewart was informed of his rights at this time and that five alleged violations of his parole were discussed with him. Plaintiff, on the other hand, denies that he was in fact informed of his rights but, rather, was informed that he was going to be returned to prison as a parole violator and that he then demanded a formal hearing, which was denied.
The alleged violations of parole consisted of:
(1) Leaving Wayne county and traveling to the city of Jackson without permission; leaving the State (arrested in St. Louis, Missouri, on April 13, 1967).
(2) Driving his aunt’s 1959 Chevrolet to Jackson without permission.
(3) Failing to be in his approved residence at a reasonable hour.
(4) Drinking to excess in the city of Jackson on or about January 1, 1967.
(5) Failing to keep his parole agent informed at all times of his whereabouts, movements, and activities.
The statute controlling this appeal provides:
“Whenever a paroled prisoner is accused of a violation of his parole, other than the commission of, and conviction for, a felony or misdemeanor under the laws of this state, he shall be entitled to a fair and impartial hearing of such charges within 30 days before 2 members of the parole board under such rules and regulations as the parole board may adopt. Upon such hearing such paroled prisoner shall be allowed to be heard by counsel of his own choice, at his own expense, and may defend himself, and he shall have the right to produce witnesses and proofs in his favor and to meet the witnesses who are produced ag’ainst him.” PA 1953, No 232, § 40 (CLS 1961, § 791.240; Stat Ann 1954 Rev § 28.2310).
In response to the Court of Appeals order of April 19, 1968, to show cause,, the attorney general, in behalf of the parole board, stated:
“In the matter at bar, this prisoner admitted his guilt on .some of the charges, and, thereafter, the parole board determined that the ' evidence which he proposed to offer at the adjourned hearing would be incompetent, immaterial, and unduly repetitious. * * #
“Once the violation was admitted, the board ruled that no formal taking of evidence was necessary, that the discretion should be exercised following only a review of the file and a discussion with the prisoner. Given the special function of the parole board, it is submitted that this course of conduct did not amount to an abuse of discretion.”
We quote with approval the Court of Appeals’ rejection of defendant’s construction of the statute:
“Iii our' opinion the parole board misreads the statute. An alleged parole violator (other than one accused of the commission of, and conviction for, a felony or misdemeanor ‘under the laws of this State’) is entitled to a fair and impartial hearing within 30 days, at such hearing to be heard by counsel and to produce witnesses and proofs in his favor and to meet the witnesses produced against him, without regard to whether he admits his guilt. The statute provides that all such alleged parole violators, not merely those that deny guilt, are entitled to such a hearing. The petitioner asserts he requested such a hearing which assertion was neither denied in the affidavit filed in response to the original petition or in the attorney general’s briefs filed in response to petitioner’s complaint and our order. Those responses merely state that the petitioner’s rights were explained to him, that he freely admitted.his guilt, and therefore it was not necessary to conduct a hearing.”
Defendant board contends:
“By statute, there is no right to a parole violation hearing where the violation consists of the ‘commission of, and conviction for, a felony or misdemeanor under the laws of this State.’ See CLS 1961, § 791-.240 (Stat Ann 1954 Rev § 28.2310). See, also, People v. Bess (1968), 11 Mich App 109. The clear intent of the statute is not that it speak only to a conviction in this State, but merely that it speak to a conviction for an offense which is a felony or misdemeanor under the laws of this State. PA 1968, No 192, while not controlling of this cause, extends this principle to include all convictions obtained under the laws of a sister State.
“In the matter at bar, this petitioner was convicted of a misdemeanor under the laws of Missouri, to wit: petty theft. As indicated above, petitioner does not deny this fact.”
We agree with the Court of Appeals’ rejection of defendant’s construction of the statute applicable to this appeal.
We affirm the Court of Appeals. The failure of the parole board to conduct the hearing provided for by the statute within 30 days constituted, in effect, a waiver of any claim based upon these violations since the alleged violations were not “a felony or misdemeanor under the laws of this state.” We further conclude that, under these circumstances, the plaintiff is entitled to be discharged from prison but he will remain under the jurisdiction of the parole board as per their order of December 9, 1966.
T. E. Brennan, C. J., and Dethmers, Kelly, Black, T. M. Kavanagh, and Adams, JJ., concurred.
T. Gh Kavanagh, J., did not sit.
CL 1948, § 750.131a (Stat Ann 1962 Rev § 28.326[1]).—Reporter.
From order of Court of Appeals, dated. June 6, 1968. Leave to appeal granted August 15, 1968. 381 Mich 771.—Reporter. | [
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] |
T. E. Brennan, C. J.
The Case.
Plaintiff is a Lansing taxpayer who objects to the sale of city urban renewal land to the Lansing Community College.
Suit was filed in the Ingham circuit court on March 17, 1966. The circuit judges sat en banc; ultimately dismissed the cause on motion for summary judgment.
The Court of Appeals affirmed. We do likewise.
Four issues are raised on appeal. Pertinent facts and applicable statutes are noted with the discussion of each issue.
The Eminent Domain Argument.
Plaintiff argues that the city has no authority to use its power of eminent domain for the benefit of a
separate unit of government. To this proposition, plaintiff cites Trombley v. Humphrey (1871), 23 Mich 471. The Trombley Case is distinguishable. It involved Michigan eminent domain exercised to benefit the United States. Justice Cooley correctly reasoned therein that eminent domain is an inherent attribute of sovereignty; that our Federal system is one of dual sovereignty; that the State could not exercise its right of eminent domain except upon grounds of its own necessity.
There is no such relationship between the city and the college. Both are municipal corporations and creatures of the State of Michigan. Neither the city nor the college are sovereigns. Neither have any inherent power of eminent domain. Both derive their powers from the State, including any power of eminent domain.
There' is no constitutional question, only a question of statutory interpretation. If the legislature has provided that the city can condemn property for the benefit of the college, then the city can do it. If the legislature has not so provided, then the city cannot do it. People, for use of Regents of the University of Michigan, v. Brooks (1923), 224 Mich 45; People, for use and benefit of Regents of the University of Michigan, v. Pommerening (1930), 250 Mich 391.
The “Loan oe Credit” Argument.
On the state of the record before us, we cannot presume that the college has paid fair market value for the land involved here. The action was disposed of, at circuit, on motion for summary judgment, without a testimonial hearing on the subject of fair market value.
But even treating the case as one in which no value was paid, the courts below were correct.
The city of Lansing acquired the property involved by authority of PA 1945, No 344, as amended (MOLA §§ 125.71-125.83, Stat Ann 1958 Bev and Stat Ann 1968 Cum Supp §§ 5.3501-5.3513).
The underlying public purpose of that act is -to eliminate urban blight. The elimination of urban blight is an adequate justification for the exercise of the power of eminent domain, even where the acquisition is followed by sale to private individuals. In re Slum Clearance (1951), 331 Mich 714.
If the acquisition of urban renewal property is sustainable per se, irrespective of its disposition, then the validity of the disposition must be measured without reference to the acquisition.
Constitutionally (Const 1963, art 7, § 26), a city is prohibited from loaning its credit for any public purpose “except as provided by law.”
This means that in the absence of statutory authority, the city cannot give away urban renewal land, even for a public purpose.
Three references to PA 1945, No 344 demonstrate that the legislature has provided ample statutory authority to remove the transaction here complained of from the constitutional disability.
Section 6 (MCLA § 125.76, Stat Ann 1958 Bev § 5-.3506) provides, in part:
“After the acquisition of the real property, such property as will be used by public agencies shall be transferred to or placed under the jurisdiction of the appropriate public agencies for public use as defined in this act. The remainder of the land which, in accordance with the development plan, is to be devoted to private uses shall be sold, leased or exchanged to corporations, companies or individuals, or to urban redevelopment corporations whose use of such prop erty shall he in accordance with the limitations and conditions provided in the • development plan.”
Section 2, snbd (g), as amended by PA 1965, No 227 (MOLA § 125.72, Stat Ann 1968 Cum Supp § 5-.3502) declares:
“ ‘Public use’ when used with reference to land reserved for such purpose means only such uses as are .for the general use and benefit of the public as a whole, such as schools, libraries, public institutions, administration buildings, parks, boulevards, playgrounds, streets,.alleys, easements for sewers, public lighting, water, gas, or other similar utilities.”
Section 4, subd (e) (MCLA § 125.74, Stat Ann 1958 Eev § 5.3504) states, in part:
“Such plan shall designate the location and extent of streets and other public facilities within the area and shall designate the location, character and extent of the categories of public and private land uses proposed for and within the area, such as residential, recreation, business, industry, schools.”
The authority of a city to transfer urban renewal property to an appropriate public agency for a defined public use, is not dependent upon the payment of fair market value. The statute contemplates sale of land to be devoted to private uses and transfer of land to be used for public uses. "We decline to read the two words as synonymous.
We held in People, for use and benefit of Regents of the University of Michigan, v. Pommerening, 250 Mich 391, at page 396,
“A State agency, vested with power of eminent domain, may not employ the power, directly or indirectly, for the use and benefit of another, unless so authorized by law.” (Emphasis supplied.)
It follows that, where authorized by law, a State agency may use its power of eminent domain for the use and benefit of another State agency.
The Tax-Base Issue.
Plaintiff makes a passing argument to the effect that the removal of the college property from the tax rolls works a frustration of the statutory design of preserving the taxable value of land within and adjacent to the urban redevelopment area.
It will suffice to reply that, urban renewal projects are not divisible on this score. The total impact of the project is the effect sought by the legislation. And even if, upon total impact, taxable values are not improved, it does not follow that the failure of a statute to bring about the desired or intended results evinces constitutional infirmity.
The Referendum Issue.
Plaintiff cites a charter limitation upon the city’s power to convey real estate without the approving vote of a majority of the electors of the city voting on the proposal to sell. (Chap 14, § 14.3[d], Charter of Lansing, adopted November 8, 1955.)
PA 1945, No 344, § 13 (MOLA § 125.83, Stat Ann 1969 Rev § 5.3513) provides, in part:
“The powers granted in this act shall be in addition to powers granted to municipalities, the local legislative bodies thereof and other officials and bodies thereof under the statutes and local charters.”
If the charter of the city completely prohibited the sale of real estate by the city council, with or without referendum, it is clear that PA 1945, No 344 would empower the city to sell and convey urban re newal lands “under terms and conditions fixed by tbe local legislative body.” (Section 6 [MCLA § 125.76, Stat Ann 1958 Eev § 5.3506].) That tbe city council already has a limited power of sale does not prevent tbe statute from having tbe same force.
Conclusion.
The judgment of tbe Court of Appeals, affirming summary judgment of the circuit court en banc, is affirmed.
Dethmers, Kelly, Black, T. M. Kavanagh, Adams, and T. Gr. Kavanagh, JJ., concurred.
See GCR 1963, 117.—Reporter.
See, also, People, for use of Regents of the University of Michigan, v. Brooks (1923), 224 Mich 45. | [
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Per Curiam.
,1. The Pacts and Proceedings.
-■..On February 5, 1964, Birney T. Havey was arraigned in police court in the city of Grand Rapids qn a, charge of armed robbery. He waived examination and was bound over to superior court. Bond was. set in the -sum of $20,000. The defendant, United Bonding Insurance Company, an Indiana corporation authorized to do business in Michigan (hereinafter referred to as United), executed the bond as surety.
On February 17, 1964, Havey and codefendant, Kenneth Raymond Midling, were arraigned in superior court. Havey, present with counsel, stood mute. A plea of not guilty was entered by the court. On March 3, 1964, the court remanded the cause to police court for. preliminary examination, previously waived, and after such examination, Havey, and Midling were again bound over to superior court.
On March .24, 1964, the date set for trial, Midling .appeared. Havey did not. His bond was forfeited and a bench warrant issued. Order estreating bond was filed April 3,1964, and on that date the prosecuting attorney filed a motion for summary judgment against United, together with supporting affidavit of the -chief assistant -prosecutor. A copy of the notice, motion, affidavit, and order estreating bond were served upon Bertram Mitchell, agent for United, who had signed the bond on its behalf.
' On April 24, 1964, Clem Block, an attorney at law, filed a- motion tc dismiss the motion for sum mary judgment. By affidavit in support of the motion, Block swore: (1) that he was attorney for United, and (2) that there was a question of law as well as a question of fact as to whether the people were entitled to summary judgment because the date for appearance of Havey in superior court was never set by that court and because that court lost jurisdiction when it sent the ease back to police court for further proceedings.
No question was raised by Block as to the propriety of the service upon United’s agent, Mitchell. At the hearing on the motion to dismiss, Block stated in open court that he was representing United because it was also on Midling’s bond, and that he was representing Havey’s bonding company but not Havey. Following further proceedings in which United was represented by Block, the superior court entered a judgment against United on October 5, 1964 of $20,000 in favor of the superior court for the city of Grand Rapids and the city of Grand Rapids.
On October 22, 1964, Block appealed for United to the Court of Appeals. On three occasions, stipulations for extensions of time to perfect the appeal were signed by him — twice as “attorney for bonding co.”, once as “attorney for defendant and appellant.” On November 9, 1965, the Court of Appeals dismissed the appeal. On February 3, 1966, United, by Goldfarb & Iludnut, attorneys, filed a petition for leave to file delayed motion for rehearing in the Court of Appeals. The petition stated that the petitioner was presently represented by new counsel. On February 11, 1966, the Court of Appeals granted the petition and gave permission to file delayed motion for rehearing. Such motion was denied on May 25, 1966. On June 14, 1966, United, through Goldfarb, Hudnut & Harris, filed another petition for rehearing which was granted on July 5, 1966.
On November 29, 1967, the prosecuting attorney having failed to file a brief within the required time, the Court of Appeals reversed the superior court judgment upon the ground that United was a foreign insurance corporation and that the notice which was served on Mitchell, as agent of the company, should have been served on the insurance commissioner under CLS 1961, § 500.456 (Stat Ann 1957 Rev § 24.1456) and OCR 1963, 105.4. 8 Mich App 436.
The prosecuting attorney’s motion for rehearing on the ground that any irregularity in service was waived by United by the filing of pleadings by its attorney in superior court and by taking part in the proceedings throughout was filed on December 18, 1967 and denied January 9,1968.
We granted leave to appeal on March 15, 1968. 380 Mich 761.
2. The Questions.
Three questions are presented:
1. Was the bond given by defendant for his appearance in superior court discharged by the remand to police court for preliminary examination!
2. Do the statutes and rules require that notice to a surety, a foreign bonding company, in a proceeding under the criminal code to enter judgment on a defaulted bail bond be served on the insurance commissioner ?
3. Was failure to make service on the insurance commissioner, if required, waived by the attorney for the bonding company by his participation by motion and otherwise in the proceedings in the trial court, without objection to the court’s jurisdiction?
3. The Law.
(a) The Effect of the Remand.
"With reference to question number 1, the condition of the bond reads as follows:
“That if the said respondent shall be and appear personally at the present term of the superior court of Grand Rapids to be held in the city of Grand Rapids on the 10th day of February, 1964, at the court rooms thereof, in said city, then and there to answer to any indictment, complaint or information which may be preferred against him for the offense above mentioned, and to do and receive what shall by said court be then and there enjoined upon him, and shall appear in said court day to day, from time to time and term to term thereafter, as ordered by said court, and shall not depart from said court without leave, then this recognizance to be void, otherwise to remain in full force and virtue.”
Havey failed to answer to the information which was preferred against him at the time he was required to do so, he did not appear, and he did depart from the court without leave. The bond was never discharged by order of the court. It remained in full force and effect. It is stated in People v. Dennis (1857), 4 Mich 609, 617:
“A man’s bail are his jailors, and they are bound to have him as much in the power of the court as if he were within its prison walls. Without appearance, or an order of court to that effect, they are never discharged.”
See, also, People v. Havey (1968), 11 Mich App 555; Dimmers v. Hillsdale Circuit Judge (1939), 289 Mich 482; and People v. Hanaw (1895), 106 Mich 421. See 8 CJS, Bail, § 79, p 218, for a discussion to the effect that unless the terms of a bond so provide, even action discontinuing the prosecution will not operate to discharge bail.
(b) The Requirement as to Service.
With reference to question number 2, United relies upon a provision of the insurance code (CLS 1961, § 500.456, Stat Ann 1957 Rev § 24.1456), and the last sentence of PA 1961, No 236, § 1920, the revised judicature act (CLS 1961, § 600.1920, Stat Ann 1962 Rev § 27A.1920), which same provision also appears in GrCR 1963, 105.4. The people rely upon CL 1948, § 765.28 (Stat Ann 1954 Rev § 28.915) in the code of criminal procedure.
Neither counsel makes any reference to PA 1895, No 266, as amended, being CL 1948, § 550.101 et seq. (Stat Ann § 24.241 et seq.). The act deals with surety companies and provides “That such sureties companies shall be accepted as surety on any recognizance for the appearance of persons charged with crime.” The act contains provisions for service of process.
We deem our holding with regard to the third question makes it unnecessary to pass upon the issue of service upon United or to determine at this time under which of the above statutes service should have been made.
(c) The Question of Waiver by Appearance by Attorney.
With reference to question number 3, the participation of United by its attorney without objection to the jurisdiction of the superior court to hear the proceeding constituted a waiver of any defect in service. In this case, Block, by filing a responsive pleading and by thereafter participating in the court proceedings, engaged in such conduct, as to amount to a waiver of the service of notice. See Cook Motors Corporation v. Casualty Ass’n of America (1927), 239 Mich 362; Gogebic National Bank of Ironwood v. Gogebic Circuit Judge (1930), 250 Mich 160, and Ward v. Hunter Machinery Co. (1933), 263 Mich 445.
The Court of Appeals is reversed and the judgment of the superior court is affirmed. Costs to appellant.
T. E. Brennan, O. J., and Déthmers, Kelly, Black, T. M. Kavanagh, Adams, and T. G. Kav-anagh, JJ., concurred. ■ • • | [
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T. M. Kavanagh, J.
Plaintiffs Joseph F. Bilicki and his wife, Rose, appealed from summary judgment granted by the circuit court and the decision of the Court of Appeals affirming the summary judgment. 10 Mich App 612.
All the parties agree to the fact that plaintiffs purchased a parakeet from defendant W. T. Grant Company, February 22, 1961, which had previously purchased it from third-party defendant Beniteau Bird Company. The remaining facts are .taken from the pleadings and depositions filed in the circuit court, particularly the depositions of the three medical experts.. It is from the facts, or lack of facts, adduced from the depositions of’the three doctors that summary judgment was granted.
Plaintiff Rose Bilicki deposed that in February 1961 she purchased a parakeet from defendant store. When she brought the bird home she noticed that he acted sickly in that he just “sat there like he was in sort of a daze.” For the following 3 to 4 weeks she attempted to nurse the bird back to health, but he ate very little, acted listless and, after approximately three weeks, “he couldn’t breathe good. He was gasping for breath.”
. Plaintiff further deposed that at approximately the same time, 3 to 4 weeks after the purchase of the'"bird, she became ill, suffered from headaches, loss of appetite, nausea, and had a temperature of 105 degrees. After an unsuccessful attempt by the family physician to treat plaintiff at her home, she was admitted to Ford hospital. She was examined upon her admittance and informed by the examining doctor that she had psittacosis and was put in isolation. Fourteen days later she was discharged from Ford hospital, but was still debilitated and “too weak to do much.”
The deposition of plaintiff Joseph F. Bilicki corroborated his wife’s testimony. He additionally deposed that when he took his wife to the hospital the examining doctor, after inquiry as to whether they owned a bird and the taking of X-rays, informed plaintiff that his wife had “parrot fever, which is very rare,” and that she would have to be isolated. Plaintiff related that he contacted the Dearborn health department and, after a delay of a couple of days, was instructed on how to dispose of the bird. He destroyed it according to instructions. The health department picked up the bird the next morning. It subsequently reported that the bird was too decomposed to determine if it was diseased.
Plaintiff further deposed that, approximately three days after his wife’s return from the hospital, he suffered severe headaches and his temperature rose to 103 degrees. He went to Ford hospital and was examined, isolated, and treated “for the same thing as my wife had.” He was released from the hospital after five days but was confined to his home for an additional week.
We examine the following depositions given by the three expert medical witnesses^ It was upon these depositions that the circuit court concluded that there was no reasonable medical certainty that the plaintiffs had the disease of psittacosis and granted the summary judgment.
Dr. Frank Cox deposed that he treated plaintiff Rose Bilicki and made a provisional diagnosis of psittacosis. Upon cross-examination, Dr. Cox stated that the symptoms looked for in diagnosing psittacosis were “fever, cough, headache, nose bleed, liver and spleen palpable, and a. history of contact.” While most of these symptoms were admittedly present in plaintiff’s case, Dr. Cox agreed that “In view of the failure of the rise in titer of the psittacosis complement-fixation test, a specific etiologic diagnosis cannot be made and it is thus probable that she had a nonspecific acute respiratory infection rather than psittacosis.” Dr. Cox admitted that the hospital records indicated a final diagnosis of “psittacosis suspected.”
Dr. Edward Quinn deposed that he examined Rose Bilicki several times at the hospital and diagnosed her illness anatomically as “bronchial pneumonia.” Dr. Quinn stated that psittacosis is a viral disease acquired from psittacine birds and that there are two tests to determine the presence of psittacosis— one a sputum test and the other a blood test called the complement-fixation test. He agreed that in the process of doing a serial study of the complement-fixation test, there would be a rising titer in the event of psittacosis. This test was administered to Rose Bilicki, but in the opinion of Dr. Quinn there was no diagnostically significant rise in titer, and lie concluded that Bose Bilicki did not have psittacosis. Dr. Quinn did admit, however, that he found Rose Bilicki’s spleen was enlarged, which doesn’t normally -happen in pneumonia cases but is a symp- : tom in psittacosis, and that the antibiotics used in treatment might have affected the blood as far as the complement-fixation test'was concerned. When asked if he really wasn’t sure in his own mind whether Rose Bilicki had psittacosis or pneumonia, • Dr. Quinn responded:
“Again, you a,re using the words ‘pneumonia’ and ‘psittacosis’ as though one can distinguish these two, one from the other, as though they are two different conditions. I have tried to repeatedly tell you, sir, that psittacosis is a form of pneumonia.”
, Dr. Quinn further deposed that Joseph F. Bilicki was admitted to the' hospital on April 10, 1961. Both the sputum culture and complement-fixation tests were administered and, upon the negative results of both tests, the final diagnosis of his ailment was “acute respiratory disease.”
Prior to hearing on the motion for summary judgment, plaintiffs filed an’ affidavit of Dr. Edward MacKenzie. The affiant stated that he had read the hospital records and that — based upon these records, the history of contact with a sick bird, and the results of the complement-fixation tests showing the rise and fall in titer — he concluded “it would seem that Mrs. Bilicki did in fact have psittacosis.” At the hearing-on. the motion for summary judgment Dr. MacKenzie reaffirmed this conclusion, but further explained :
“I examined the patient strictly abstractly. Not my opinion, bnt the opinion that one would form from looking at this record. Not talking to the patient, not having seen the patient, I was exploring the possibilities of the diagnosis having been psittacosis. And, therefore, I said it would, seem. . This is not my opinion, as such.”
Upon questioning by the court, Dr. MacKenzie admitted that he was unable to form his opinion to a degree of reasonable medical certainty.
The circuit court granted summary judgment for the reason plaintiffs’ only medical expert “has not rendered an opinion and says he has none.” The Court of Appeals concluded that, “there is no testimony upon which a finding by a trier of fact in favor of plaintiffs could be justified.” 10 Mich App 612, 616. We disagree.
Reviewing the depositions of the medical experts, we feel that their testimony was inconclusive. The treating physicians candidly admitted that they “were unable to establish a specific etiologic agent” that caused the illness. They also admitted that psittacosis is a form of pneumonia and that the two are symptomatically similar except for the fact that in psittacosis cases the spleen becomes enlarged, whereas in pneumonia cases it does not. What these medical experts did assert is that the tests were negative as to a finding of psittacosis primarily because there was no significant rising titer on the serial studies. However, Dr. MacKenzie in his affidavit indicated that he considered the rise and decrease, in titer to be significant. Further, as he stated in a letter read in open court, “the validity of this test would have to be established by the pathologist at Ford hospital in charge of the virology laboratory.”
We do not pass upon the credibility of the medical experts or the weight their testimony is to b’e etc- corded. This is the function of a trier of fact. Based upon all of the facts presented in this record —the medical testimony concerning the original and subsequent diagnoses, the type and validity of clinical tests administered and their results, the similarity and dissimilarity of symptoms between pneumonia and psittacosis (e.g., the enlarged spleen), the medical treatment and prognoses of both patients, the lay testimony concerning the prevalence of psittacine birds in the area at that time, the circumstances surrounding the purchase of the parakeet and his ultimate destruction — and all the reasonable inferences therefrom, we feel a material question of fact exists upon which reasonable minds might differ. Reasonable minds might or might not find that there was a causal relationship between the purchase of the parakeet and the illness of plaintiffs.
Where material facts are at issue, summary judgment will not lie. International Chemical Workers Union, Local 179, AFL-CIO, v. Swenor (1962), 368 Mich 658; Tripp v. Dziwanoski (1965), 375 Mich 619; Durant v. Stahlin (Appeal re Van Dusen, Elliott, Romney) (1965), 375 Mich 628; Brooks v. Fields (1965), 375 Mich 667; McCoy v. DeLiefde (1965), 376 Mich 198.
Plaintiff Joseph F. Bilicki died June 20, 1969, subsequent to taking the appeal in this case. Rose Bilicki was appointed administratrix of his estate and his cause has been continued in her name.
The summary judgment of the circuit court and its affirmance by the Court of Appeals are reversed and the causes remanded for further proceedings.
Plaintiffs shall have costs in both appellate courts.
T. E. Brennan, C. J., and Dethmers, Black, Adams, and T. GL Kavanagh, JJ., concurred with T. M, Kavanagh, J,
See GCR 1963, 117.2(3).
Psittacosis, commonly called “parrot fever,” has been defined as: “A' disease of birds, especially of parrots, transmissible to man, in whom it.runs the eourse of a violent typhoid fever without abdominal symptoms but with pulmonary disorders resembling severe infectious pneumonia. It is due to bacillus psittacosis.” Gould’s Medical Dictionary (Scott, 2d ed), p 1158.
It was shown in the teeord that the complement-fixation tests were performed on March 24, March 31, April 6, ,and April 18, 1961, to discover psittacosis. The first test showed “1 to 2;” the second, “1 to 4;” the third, “1 to 4;” and the fourth, “1 to 2.”
Deponent further stated that in his opinion these tests indicated a positive reaction with the test of April 6, 1961, being of greater titer than the test of March 31, 1961.
. Deponent also stated that the records indicated that Hose Bilicki returned for a test as -an, outpatient on April 18, 1961, and that this test indicated a decrease in titer as compared with that of April 6, 1961. | [
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Dethmers, J.
Is it a question of fact or law? That is the issue in this case. The circuit court, in leaving it to the jury and later denying plaintiff’s motion for judgment non obstante veredicto, held it to be a question of fact. The Court of Appeals, in reversing the trial court, held it to be a question of law.
What was this question? A brief recital of the facts of the case is necessary to the answer.
This is an action under the wrongful death act brought by the administrator of decedent’s estate. On Sunday, August. 16, 1964, decedent was a. passenger in an automobile which was struck at or about 12:18 a. m. by another automobile. driven by defendant Douglas Lathrop and owned by his parents, defendants Harold Lathrop and Marie Lath-rop. Plaintiff seeks to attach liability also to defendant Toren under the doctrine of respondeat superior by reason of his employment of defendant Douglas Lathrop. Was the latter, at the time of the collision, acting within the scope of his employ ment by Toren? That is the question which plaintiff says is one of law. Defendant Toren says it is one of fact.
Submitted to the jury, it found for plaintiff in the amount of $30,000 against defendants Lathrop and returned a verdict of no cause of action as against defendant Toren. The latter was reversed by the Court of Appeals on plaintiff’s appeal. From that reversal the case' is now here on leave granted to defendant Toren. 381 Mich 752. Defendants Lath-rop have not participated in the appeals and have made a settlement with plaintiff since trial.
Douglas Lathrop was an employee of Toren in the photography business. His job was taking pictures in Toren’s studio in the daytime, working at an hourly wage. On Saturday evening, August 15, 1964, as a part of his job, he was to take pictures at a wedding and reception. Late that afternoon he placed a camera and film belonging to Toren in his car and went to the church where the wedding was to occur. He took a number of pictures there and then proceeded to a reception hall where he took several more. He remained there until 11:50 p. m. and, having completed the taking of pictures, he then placed camera, film, and equipment of Toren in his car and started for home. It was his intent, as he was authorized by Toren to do, to take the mentioned items home with him and to return them to Toren’s- studio on Sunday or on his next working day, Monday, August 17th.
Plaintiff points to testimony of Douglas Lathrop that within 1 hour after use it would have been necessary for him to refrigerate the exposed film and electrically charge part of the equipment. As stated in plaintiff’s brief, however, there was other evidence that this was not necessary and testimony of Toren could be taken to mean that. Of course, it was incumbent upon Douglas to return Toren’s property to him or his studio ultimately. To these facts plaintiff points as establishing as a matter of law that Douglas, while on his way home and when the accident occurred, was acting within the scope of his employment. Defendant Toren, on the other hand, contends that this is a simple case of an employee being on his way home from work. The trial court held, correctly we think, that this presented a question of fact for the jury which held for Toren.
Plaintiff’s reliance for the proposition that Douglas Lathrop was still within the scope of his employment at the time of the accident rests on Douglas’s testimony. Yet, he also testified that he was at the time “all through work”, “was on his own”, “was going home from a job”. In asking a judgment non obstante veredicto against Toren, plaintiff was bound by the light of the testimony most favorable to Toren. Detroit & Milwaukee R. Company v. Van Steinburg (1868), 17 Mich 99; Davis v. New York Central R. Company (1957), 348 Mich 262; Dismukes v. Michigan Express, Inc. (1962), 368 Mich 197. Prom Douglas Lathrop’s testimony, a jury might find either way on the scope of employment question. It was, therefore, a question of fact properly submitted to the jury.
Plaintiff has taken a cross-appeal on a matter not passed on by the Court of Appeals, claiming error in the court’s failure to give requested instructions. These went largely to the dual purpose concept; that is, that an employee may be within the scope of his employment even though, at the same time, he is doing something to serve a purpose of his own. While the exact language of plaintiff’s request was not given, a full and fair set of instructions was given explaining the meaning of scope of employ ment in the situation here involved. That is sufficient. Huffman v. First Baptist Church of Flushing (1959), 355 Mich 437; Hautala v. Cochran (1939), 289 Mich 409; Graham v. United Trucking Service, Inc. (1950), 327 Mich 694.
Decision of the Court of Appeals is reversed. The cause is remanded to circuit court for entry of judgment in accord with the jury verdict. Costs to defendant Toren.
T. E. Brennan, C. J., and Kelly, Black, T. M. Kavanagh and Adams, JJ., concurred.
T. G-. Kavanagh, J., took no part in the decision of this case.
CLS 1961, § 600.2922 (Stat Ann 1962 Rev §27A.2922). | [
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McAlvay, J.
The plaintiff, a Michigan corporation, was engaged in the millinery business in the city .of1 Detroit. It purchased from Chaney Bros., of New York City, a bill of goods consisting of velvet, the purchase price of which was $191.76. These goods were shipped by Merchants’ Despatch on June 30, 1910, from South Manchester, Conn., at which place Chaney Bros.’ factory was located. A box claimed by defendant to be the one which contained these goods arrived in Detroit over the defendant railroad and was received into the warehouse of defendant on July 6, 1910. It was addressed: “E. A. Wood & Co., Detroit, Michigan. Merchants’ Despatch.” For some reason, which is not explained in the record, the box arrived in Detroit as “estray freight,” and the box was marked “shoes,” and bore no other marks, except the address given above. It was tendered to A. E. Wood & Co. July 12th, who, after examining the box, refused to accept it, and it was returned to defendant’s warehouse.
Several notices were sent by defendant to A. E. Wood & Co., all of which described the shipment as “one case shoes.” The box containing the velvet goods was not delivered to plaintiff until August 30th, at which time it was claimed .by plaintiff it was too late for the market for which that particular kind of velvet was ordered, and plaintiff was obliged to and did sell it at a loss of $148.37, for which amount it brought suit and recovered judgment. Plaintiff brought suit in justice’s court. From the result in that court an appeal was taken to the circuit court, which resulted in a verdict and judgment for plaintiff for the amount claimed and costs. Defendant removes the case to this court, and asks for reversal upon errors duly assigned.
It appears to have been the claim of defendant in the trial court that on July 12, 1910, it tendered the box in question to the plaintiff under the impression that it contained shoes; that the plaintiff examined the box and refused to accept it. On the part of plaintiff it was claimed that the box tendered on that date was not the box containing the shipment of velvet, which was afterwards delivered to plaintiff, and which was correctly addressed, giving the name of the consignor and describing the contents as dry goods.
Upon the trial plaintiff introduced in evidence the box which it claimed had contained the shipment in question. The evidence as to defendant’s negligence in failing to make the delivery in due season, and the questions of plaintiff’s alleged negligence in refusing to accept the box which defendant claimed contained the shipment in question, raised disputed questions of fact, which were submitted to the jury by the trial court under proper instructions.
Two notices' of the receipt of the goods seem to have been sent to plaintiff, under the impression on the part of defendant that the box in question contained shoes, and these notices so specified, describing it as “estray freight” and naming no consignor. Inasmuch as plaintiff was engaged in the millinery business, and not in the shoe business, we think it may be excused for failure to pay attention to these notices. In any event, the question of plaintiff’s negligence was, as before stated, submitted to the jury under proper instructions.
Defendant, after verdict, made a motion for a new trial, principally upon the ground of newly discovered evidence. Its tendency was to establish the fact that the box introduced in evidence by the plaintiff as the box in which the delayed shipment was received was in fact one which had contained a later shipment.
The motion for a new trial was denied by the circuit court for the reasons, among others, that the defendant had not exercised reasonable care to secure the evidence tendered upon the motion, and for the further reason that the admission of such evidence would not result in a different verdict upon another trial. We agree with the conclusions of the learned trial judge in denying this motion.
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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McAlvay, J.
Complainant, as administrator of the estate of Frederick W. Miller, deceased, filed his bill of complaint in this cause in the circuit court for the county of Muskegon, in chancery, against defendants, under the provisions of sections 9363 and 9364, 3 Comp. Laws, as amended by Act No. 326, Pub. Acts 1905 (4 How. Stat. [2d Ed.] §§ 11074, 11075), for the purpose of setting aside certain conveyances by complainant’s decedent and others claimed to have been made with intent to defraud decedent’s creditors. Defendants answered the bill of complaint, and an issue was joined upon the pleadings. Proofs were taken, and the cause was heard before the court, which resulted in a decree dismissing the bill of complaint. From this decree complainant has appealed to this court.
The opinion of the trial court, which is contained in the record, contains a complete abstract of the pleadings, a full statement of the facts, findings of the court thereon, and his conclusions, as follows:
“Finding of the Court.
“(1) The complainant alleges in his bill of complaint that he is administrator of the estate of Frederick W. Miller, deceased (who died intestate on the 10th day of February, 1911) ; that all 'the property standing in the name of the deceased at the time of his death had been disposed of by the order of the probate court; that claims had been allowed in the probate court against the estate of over $5,300; that the property sold brought an insufficient sum to pay the debts allowed; and that there will be a deficiency of more than $4,000.
“(2) It is further alleged that the deceased owned •in his own name and was actually in possession of real estate of greater value than $1,000 during his whole life; that he farmed the same, paid the taxes thereon, took the proceeds of the crops, made improvements with his own funds without help or assistance from any one.
“ (3) That, while he owned and possessed such real estate, he became indebted to one Horace Brown and other persons in large amounts, and while so indebted, for the purpose of defrauding his said creditors, he transferred the said property to the defendant Frank Anderson without consideration by a quitclaim deed dated April 7, 1900, which was recorded April 19, 1900, in the office of the register of deeds of Muskegon county; that the transfer was. made with the sole intent to put the property out of reach of levy and sale and execution; that on the 5th day of May, 1900, the bill alleges deceased, in order further to complicate the title to the property, had Mr. Anderson and his wife transfer it to his daughter, Clara Miller (now Strong), by quitclaim deed, which was not recorded until the 26th of April, 1904.
“(4) The fourth paragraph describes the property as two 40-acre lots, one in section 4 and the other in section 16 of town 10 north, range 17 west, in this county.
“(5) It is alleged in the bill that on the 18th day of July, 1912, Clara Miller (now Clara Strong), knowing the estate had not property sufficient to pay the debts, and with full knowledge of the facts stated above, and knowing she had no title against said creditors, executed a deed to the defendant Elbert George, who it is claimed knew the condition of the title; and it is alleged that he paid no consideration for the deed with the intent to hinder and delay the creditors of the estate. The prayer of the bill is that: (a) That all the conveyances described in the bill be declared void; (6) that said lands be sold under the order of the probate court to pay the debts allowed; and (c) that the complainant have such further and other relief as shall be agreeable to equity, etc.
“It is denied in the answer that Mr. Miller owned the land in his lifetime, and that he took the proceeds of it, and also denied that he paid the taxes out of his own funds.
“It is denied by Mr. Anderson and Clara Strong of their own knowledge, and by Mr. George on belief, that the conveyance from Miller to Anderson and from Anderson to Clara Strong was made for the purpose of defrauding creditors, and both Anderson and Mrs. Strong say a fair consideration was paid for the land.
“Both defendants Strong and George claim that George paid $725 in money for the land and assumed a mortgage thereon for $125, and that the consideration was adequate, and the transfer was made in the utmost good faith, and not to hinder and_ delay creditors. Proof was taken at great length in the case, the material parts of which will be noticed in passing:
“The administrator brings this action under the provisions of Act No. 326, Pub. Acts 1905, amending 3 Comp. Laws, §§ 9363 and 9364, not on his inception, but on the application of a creditor of the estate, one Otto Meeske, who, it was stated in argument, had given security as required by that act for the prosecution of the case.
“The title to the property was first in Mrs. Miller, the wife of Frederick W. Miller, who, while on her deathbed, conveyed it by warranty deed to her husband. This deed, which is not attacked in any way, both parties claim, and to which I agree, vested the title to the property in Frederick W. Miller. It is claimed on the part of complainant that all the subsequent deeds, being quitclaim deeds, were absolutely void as to the creditors of the estate of Frederick W. Miller, under authority of certain cases cited in argument, to wit, Peters v. Cartier, 80 Mich. 124 [45 N. W. 73, 20 Am. St. Rep. 508]; Messenger v. Peter, 129 Mich. 93 [88 N. W. 209], and cases, cited on page 99 of that case; Pellow v. Iron Co., 164 Mich. 87, see page 99 [128 N. W. 918, 47 L. R. A. (N. S.) 573, Am. & Eng. Ann. Cas. 1912B, 827].
“All these decisions are with reference' to the recording laws of the State, and hold that, if a grantor has actually parted with his title through a quitclaim deed by a prior unrecorded deed, the grantee takes, no title as against the prior unrecorded deed, whether he had notice of the prior deed or not. While the language is. different, according to the exigency of the cases decided, the cases substantially hold that the grantee in a quitclaim deed takes whatever interest his grantor had to convey, or the proposition may be enunciated as follows: He who accepts a quitclaim deed cannot, within the meaning of the registry acts, be a bona fide purchaser and as such entitled to protection against prior conveyances or incumbrances made by his grantor or equities existing against him.
“The only deed made by Frederick W. Miller was the one made to the defendant Frank Anderson in April, 1900, and recorded the same month. Mr. Anderson, who was a witness, claimed that at the time he purchased the land, and that at the time that he conveyed it to Clara Miller for the very price that he paid or agreed to pay Mr. Miller for it, he had no intention to hinder or delay the creditors of Mr. Miller, and knew of no such intention on Mr. Miller’s part.
“I have no reason to doubt Mr. Anderson’s word as to that transaction, but the fact that Mr. Miller made both deals, the first one in which he conveyed the land to Anderson and the second one in which he had Anderson convey the land to his daughter, taken with the testimony of the witness Pobst, leads me to the conclusion that his daughter did not pay any part of the consideration to her father for Anderson, or to Anderson himself for the deed, and I am convinced that at that time he owed one Horace Brown, and that he was seeking to prevent him to collect his debt against him.
“The deed to Clara Miller was recorded on the 26th day of April, 1905. This was notice to the world that she claimed the land. After that, any one whom Miller owed had an opportunity to attack the deed, if he so desired. Miller is dead. What now appears to his discredit might be cleared up were he living to testify. For over six years and nine months, while Miller lived after the deed was recorded, Horace Brown did not attack this conveyance. Neither does his assignee now. Otto Meeske, who is the moving cause of this suit for a debt due him from Miller, did levy an execution on one parcel of the land involved here, but took no further action therein. Five years expired after the levy, and so it became ineffective by lapse of time and operation of law.
“It is true that some conveyances are void as to subsequent creditors of the grantor when credit is given him upon his representations that he is the owner of the land conveyed, or that he is entirely solvent, when in fact he is insolvent. I don’t consider this such a case.
“A reference to the probate files shows the claim of Horace Brown was assigned to Isaac R. Hinds on a transcript of justice judgment filed June 13, 1904, for a judgment of $104.44 damages and $4.05 costs of suit, which judgment was rendered on a prior judgment in the circuit court of this county in a suit between Horace Brown and Frederick W. Miller on June 6, 1894, for^ $7.75 damages and costs of $68.48. The suit in justice court was commenced just before the expiration of ten years after the judgment in the circuit court.
“The transcript of judgment was filed the same year the deed to Clara Miller was recorded, about two months and a half thereafter, but no levy was made to enforce the judgment on the transcript. The only other debt allowed in probate court previous to recording the deed to Clara Miller was that of Otto G. Meeske, _ based on a deficiency in a mortgage foreclosure in 1902, and for the amount of this deficiency an execution was levied on one of the parcels of land involved in this suit, but, as has already been said, five years was allowed to elapse thereafter without anything having been done to settle Meeske’s right in the land as a creditor of Miller, and so whatever lien Meeske hand on the land was lost.
“Some 18 or 20 claims for debts were filed and allowed against the estate, all but the above made subsequent to the record of the deed to Clara Miller, none of which can be said to have been made on the credit of Miller owning the property here in controversy. As this bill must be taken to be for the benefit of all the creditors of the estate, and as a greater part of them cannot say that credit was given the deceased because of his ownership of this property, it seems impossible to maintain this bill. Hedstrom v. Kingsbury, 40 Mich. 636; Smith v. Tolman, 166 Mich. 651 [132 N. W. 471]; Page v. Kendrick, 10 Mich. 300; Gale v. Gould, 40 Mich. 515.
“The proof shows conclusively that the defendant Elbert George paid $725 in money and assumed^ a mortgage on the property of $125 for his quitclaim deed in the utmost good faith, relying upon the statement of Mr. Kniskern, an attorney of this court and representing the estate, that Mrs. Strong (née Clara Miller) had a good title to convey. His equity seems superior to me than that of any of the parties to this suit or of any of the creditors of Mr. Miller.
“A decree dismissing the bill should be made, with costs in favor of defendant George, against Otto G. Meeske, at whose behest the administrator instituted this suit.”
All of the testimony in this record, which is not voluminous, has been carefully read and considered, from which we are satisfied that the learned trial judge arrived at a correct disposition of the case. There is no doubt that the defendant George was a bona fide purchaser of this property in good faith and for a valuable consideration, relying at the time upon the statements of defendant Strong and her solicitor. From an examination which we have made of the opinion and original files and records in the case of Ripley v. Miller (now defendant Strong), 165 Mich. 47 (130 N. W. 345, Am. & Eng. Ann. Cas. 1912C, 952), we are satisfied that the solicitor, as far as the facts contained in that record were concerned and the disposition which was made of the case in this court, might have been justified in making the statement that defendant Strong held the title to the premises. That fact, however, adds to the weight of the evidence in the case of the good faith of defendant George.
The record shows that on April 21, 1913, about 60 days after the case was heard, at the time of the settlement of the decree, solicitor for complainant presented a petition, supported by an affidavit, to open the case for the purpose of taking further testimony on his part. This petition was denied, and the decree of the court was settled and signed. The only mention made of this matter in the briefs of either counsel in the case is a sentence at the end of the statement of facts in the brief of complainant and appellant, as follows:
“The complainant also complains of the refusal of the court to grant his petition for an order opening up the case for further proofs.”
The reason for the court denying the’petition does not appear in the record.
These are matters within the discretion of the court. The practice requires that such applications must be meritorious and show reasonable diligence in obtaining the claimed newly discovered evidence. From an examination of the petition and affidavit, we are not prepared to say that the action of the court was an abuse of discretion.
The decree of the circuit court is affirmed, with costs of both courts in favor of defendant George and against Otto G. Meeske, upon whose application the administrator instituted this suit.
Brooke, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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McAlvay, J.
This is the third time this case has been before this court. It was first brought here by defendant in 1910, when it was reversed and a new trial ordered. Marshall v. Railroad Co., 163 Mich. 88 (127 N. W. 788). It was again before this court in 1912, with a like result. Marshall v. Railroad Co., 171 Mich. 180 (137 N. W. 89). The third trial has also resulted in a verdict for plaintiff. Defendant brings the case to this court by writ of error, asking for reversal of the judgment upon errors assigned, which will be considered later.
The accident occurred February 2, 1908, upon the railroad of defendant company about 10 miles out of. the city of Adrian on the line to Detroit. Plaintiff had taken the train for Detroit that evening, and was riding in a chair car. At the place where the accident occurred the train left the track, the coach in which he was a passenger was overturned, and he was thrown to the opposite side of the car, striking into the transom in the roof of the coach and across the parcel rack, where he was cut about the head and severely bruised and injured in his back and spine, which resulted in paralysis of his lower limbs, injuring him permanently. The negligence charged against defendant is that it allowed the ties that were used in. its roadbed at the place of this accident upon which the steel rails were spiked to become decayed and unsound to the extent that they rendered the road not reasonably safe for the purpose for which it was used, and that by reason of such decayed and unsound condition the ties gave out and broke up, causing the train to become derailed. Also that defendant ran this train at an unreasonable rate of speed over such track.
In considering the case the court will follow’ the order which defendant has adopted in its brief, as follows:
“The errors discussed and relied upon to reverse the judgment may be grouped under the following heads:
“(1) The error of the court in receiving certain evidence introduced by plaintiff.
“(2) The error of the court in refusing to direct a verdict for defendant.
“ (3) The refusal of the court to give certain of defendant’s requests to charge.
“(4) Errors in the charge of the court as given.
“(5) Error in the refusal of the court to grant defendant a new trial and the findings thereon.”
The first group includes only assignments of error relating to the admission of evidence. The first of these exceptions was taken while plaintiff was testifying.
It had appeared from the testimony of the man who was riding with plaintiff at the time of the accident that immediately after it occurred he found himself down with a man on top of him, who was unconscious, and at once discovered that this man was the plaintiff. He discovered that plaintiff was bleeding badly, ex tricated himself from under him, got some stimulant from his grip, and came back to him, when he began to revive. Plaintiff opened his eyes, and witness gave him some liquor and offered to bind up his head. He refused to allow this, and immediately went to the aid of injured people who were screaming, and administered to their necessities. Witness saw him an hour later, giving a hypodermic injection to a lady. He saw him again that night and, with others, helped wash the blood from him and put towels around his head.
Plaintiff was called next to testify and after he had related the circumstances of the accident, had stated that he became unconscious, and proceeded to relate how he was taken to Detroit to Harper Hospital and the length of his confinement and described the extent of his injuries, his counsel asked the following question :
“Q. What was the cause of this loss of use of your limbs, Doctor?
“A. It was due to a concussion of the spine.
“Counsel for Defendant: We object to that. He says he can’t tell what he struck or how he struck, and that he was unconscious, and we move to strike it out.”
This motion was denied, and an exception was taken.
Plaintiff was a practicing physician of 14 years’ standing, and had testified in detail as to his condition and injuries arising from this accident. The objection is based entirely upon the fact that the witness could not tell what he struck or how he struck, and was unconscious. We have stated enough of the testimony to show that this period of unconsciousness was very short, and that his answer to the question did not depend upon “how he struck or what he struck,” but upon conditions resulting from the injuries received in that train wreck concerning which the record shows he was well qualified to testify. Under the objection made the court properly refused to strike out this testimony.
The next exception is taken to the admission of testimony of a certain witness who had worked for defendant in December and January preceding the wreck upon the section which covered the place where it occurred. He was not there at the time of the wreck, but was over the track and knew by the looks of the ties where it occurred. He testified:
“I don’t know just where the wreck commenced and where it left off. I know the entire space there and some of the ties were pretty badly rotted. Some rail lengths there — I should think a third of them and some of them half of them — were badly rotten.”
On cross-examination he testified that he was not able to tell from the ties the exact location of the wreck, where it occurred. He was not there at the wreck and only knew where it occurred from the condition of the ties, and refused to swear positively as to the exact location of the wreck. A motion was made on the part of defendant to strike out all of his testimony on direct examination with reference to rotten ties where the wreck took place. To the denial of this motion an exception was taken. Witness had worked on this section before and after the wreck, and had observed the condition of the ties and testified specifically in relation thereto. From the condition of the roadbed he testified he knew where the train had been off from the track. Because he said on cross-examination that he was not able to swear at the time of the last trial that there was a single decayed tie in the place where the wreck occurred it is alleged that the court should have stricken out his entire testimony relative to the condition of the ties. From our reading of the testimony we are satisfied that it related to the place of the accident and to the time when it occurred, and that the court properly refused to strike it out. It was a question for the jury to determine the weight which should be given it.
The four assignments of error which follow are upon the question of the testimony of lay witnesses as to expressions, acts, and manifestations of plaintiff after the accident which did not occur in the presence of these witnesses, in anticipation that they would be called as witnesses in the case. There can be no doubt entertained, after reading the testimony of these witnesses, that it comes within the rule which has been stated so often by this court that the testimony of lay witnesses under such circumstances is admissible. At the close of the introduction of evidence in the case a motion was made by defendant for a directed verdict for the following reason:
“Because plaintiff’s evidence does not prima facie prove the allegations of the declaration with respect to defendant’s negligence.”
As already stated, these allegations of negligence are that defendant “negligently and carelessly failed and neglected to construct and maintain said track with sound ties thereunder,” and negligently “permitted the ties and track to be and remain in an unsafe and dangerous condition for the passage of trains,” by reason of which this wreck occurred, and also that defendant ran said train “over said tracks so out of repair at an unreasonable and reckless rate of speed.” From an examination of the evidence introduced on the part of plaintiff bearing upon the question of defendant’s negligence, we are satisfied that there was evidence in the case, from the plaintiff’s witnesses, of the condition of the track at the place of the wreck and as to the decayed and rotten ties and the looseness of the rails by reason of the spikes not holding, and also as to the unsafe rate of speed at which the train was running at the time, which re quired its submission to the jury. We are satisfied that the court was justified in denying this motion.
The next group of errors assigned relate to the refusal of the court to give certain of defendant’s requests to charge.
The first of these was in effect a repetition of the motion to direct a verdict, and asked the court to charge that under the testimony in the case the defendant road, at the time of the accident, was in a proper, safe, and suitable condition for the operation of this train. Our disposition of the motion to direct a verdict contrary to the contention of defendant makes it unnecessary to discuss this proposition.
Errors assigned upon the charge of the court as .given:
Error is assigned upon the following portion of the charge of the court:
“In this case you are instructed that it was the duty of the defendant to exercise that high degree of care and caution consistent with the practical operation of its _ road to provide for the safety and security of plaintiff while transporting him from Adrian to Detroit, which the most prudent, careful, and cautious person engaged in the same business exercises under the same or similar circumstances, in using and maintaining its roadbed with ties that were suitable and proper as to soundness, so that they would be reasonably safe and fit for passenger trains to pass over them in reasonable safety. The failure to perform that duty would constitute negligence on the part of defendant.”
The contention of defendant is that this charge “would be holding the company to the highest degree of care known to the law, and would practically make it an insurer.” The relations of the parties to this litigation were those of carrier and passenger, and not those of employer and employee. The rule of duty as to the degree of care to be exercised in both cases is not the same.
Before analyzing and discussing this part of the charge excepted to it will be well to ascertain the law as laid down on the subject of the degree of care required of carriers for the safety of their passengers.
In Ruling Case Law, a late publication, we find the general rule upon this subject stated as follows:
“What degree of care a carrier must observe for the safety of a passenger, to exonerate it from liability for injury, is a question of law, and the generally accepted rule on this point is to the effect that carriers of passengers are bound to exercise the highest degree of care, vigilance and precaution.” 4 R. C. L. p. 1144, and authorities cited.
These authorities cover almost four pages in double column, which include cases cited from the Federal Supreme Court and the courts of last resort of a large number of the States, including many courts which are considered of the highest authority.
The text of the authority cited further declares:
“The rule as to the degree of care required of carriers of passengers has been variously stated, some courts employing the word ‘utmost,’ others ‘greatest,’ and still others ‘extraordinary.’ The difference in the statements, however, is merely a choice of words, and does not denote conflicting views. The reason for imposing such a high degree of care on carriers of passengers is that the safety and lives of their passengers rest entirely in their hands, the passengers having no control over the dangerous instrumentalities employed in their transportation, and public policy requires that a high degree of care be exacted.” 4 R. C. L. pp. 1146, 1148.
This court has frequently laid down the rule that the charge of a trial court to the jury in a given case should be considered as a whole, and that the portion objected to should be read and considered in connection with all other portions of the charge given bearing upon the same subject.
Before proceeding to determine whether the appli cation of this rule in the instant case will be helpful, let us consider the specific statements .contained in this paragraph above quoted to which defendant excepts. A careful examination of it convinces us that the word “most” used by the trial court in the following connection:
“ * * * It was the duty of the defendant to exercise that high degree of care and caution * * * which the most prudent, careful, and cautious person engaged in the same business exercises under the same or similar circumstances”
—is the offending element. This must be so because later in the charge we find a like statement, in substance, with the word “most” omitted, accepted by defendant without question.
Further examining that portion of the charge objected to, we find that the whole paragraph, before reaching the objectionable clause, was modified by specifying the character of the high degree of care and caution referred to, by inserting the words “consistent with the proper operation of its road to provide for the safety and security of plaintiff while transporting him,” and a later modification was made by specifying in what direction and for what purpose this care and caution of a most prudent, etc., person was to be exercised, by inserting the clause, “in using and maintaining its roadbed with ties that were suitable and proper as to soundness so that they would be reasonably safe and fit for passenger trains to pass over them in reasonable safety.” It will be observed that the rule here laid down by the court was that the road and all instrumentalities for transporting passengers should be kept reasonably safe and fit for that purpose. In no portion of the charge relating to the degree of care required of the defendant railroad in this respect do we find that any other or different rule is given.
It seems very clear that there was no intention on the part of the learned trial judge to instruct the jury that defendant was an insurer, as appears from the next paragraph following the one which is criticised, in which the subject of defendant’s duty is again mentioned, as follows:
“You are further instructed that this defendant was not an insurer of the absolute safety of plaintiff as a passenger upon its train, but that it was only the duty of defendant company, when carrying plaintiff as one of its passengers on the train in question, to use and exercise through its officers * * * that degree and measure of care, prudence, and caution in constructing, repairing, and maintaining its road, ties, * * * and the running of its trains thereon, which a prudent, careful, and cautious person engaged in the same kind of business would have exercised under the same or similar circumstances and conditions.”
The foregoing paragraph is the same above referred to as containing the substance of the one objected to, with the exception of the word “most.” This court has criticised and held erroneous a charge that railroad companies were—
“legally bound to exert the utmost care and skill in conveying their passengers and are responsible for the slightest negligence or want of skillfulness either in themselves or their servants; that the law is that common carriers of passengers are bound to the utmost care and skill in the performance of their duty.” Michigan, etc., R. Co. v. Coleman, 28 Mich., at pp. 448-449.
The language in the instant case is very different-from the extreme language above quoted from the Coleman Case, supra, and in all the other cases cited and relied upon by defendant, and will not bear the construction contended for, and in our opinion could not have had the effect of misleading the jury. Of the charge above quoted the learned court said in that case:
“The language used would fairly permit the jury to find anything to be negligence which could by any possibility be avoided.”
Yet, later, in speaking of the degree of care required to be exercised by carriers for the safety of passengers, the court said:
“As compared with the care needed in business involving no possible- human risk, the care to be used may be properly enough called extraordinary.”
This designation of the degree of care required is within the terms used by the authority before cited, where it is stated that some courts in stating this rule employ the word “utmost,” others, “greatest,” and still others, “extraordinary” care.
“The difference in the statements, however, is merely a choice of words, and does not denote conflicting views.” 4 R. C. L. p. 1147, supra,.
The case of Michigan, etc., R. Co. v. Coleman, supra, was written more than 40 years ago, when railroads in Michigan and the United States were in their infancy and when the present complexity of speed, appliances, and instrumentalities used in railroading were undreamed of, and yet this court as then composed laid down the law that the degree of care which the carrier must observe for the safety of a passenger, to exonerate it from liability for injury, was “extraordinary.” Courts of today of equally high character are now declaring that carriers of passengers are bound to exercise the highest degree of care. There is no good reason why this court should not also so declare. Such holding does not relieve a plaintiff from proving negligence, nor does it make the carrier of passengers an insurer, but, considering the nature of the business, the agencies and instrumentalities used, and the high rate of speed attained, the law requires of the carrier the exercise of the highest degree of care and skill. This is an interpretation of the word “extraordinary,” adapted to modern exigencies.
In the instant case the neglect charged was in failing to furnish a reasonably safe and fit roadbed, by reason of unsound and defective ties, and in maintaining a too high rate of speed over such road, which contention has been determined by the jury in favor of plaintiff, thereby finding defendant was negligent in that respect, for which it should be held liable for injuries sustained. The charge in the instant case as given by the court which is excepted to did not declare that defendant carrier was an insurer. It amounted to no more than declaring that it was the duty of defendant to exercise the greatest care and caution, consistent with the practical operating of its road, in maintaining its roadbed with ties that were suitable and proper as to soundness, so it would be reasonably safe and fit for the transportation of plaintiff over it. This portion of the charge as given was not erroneous.
The following portion of the charge as given by the • court is also objected to:
“And it would make no difference whether the derailment resulted from the spreading of the rails because the ties were so rotten that they would not hold the spikes, or the breaking of a T rail, if you find such spreading of the rails or breaking of the T rail was caused by the decayed and unsound condition of the ties, which rendered the track and roadbed not reasonably safe.”
The contention is that this charge was erroneous because it was not supported by the declaration in the case, and that under the charge the jury was given the right to find that if the defendant was negligent under any circumstances, a verdict could be found against it, and that the jury was left to guess what caused the accident. The allegation in the declaration, after stating the unsafe and dangerous condition of the railroad ties permitted by the defendant, states:
“And while said train Number Four was passing over it the rails spread and broke and by reason thereof the said train was derailed.”
The record upon this trial, as well as upon the first and second trials, shows that as far as the defective condition of the road was concerned plaintiff relied solely upon the decayed and unsound condition of the railroad ties, and the charge of the court to the jury was that in any event they must find that the decayed and unsound condition of the ties caused this wreck. It is clear that there was but one proximate cause which it was claimed brought about this disaster, and that was the decayed and unsound condition of the ties, and the jury was not left to guess or conjecture such cause. This charge of the court is not subject to the criticism of the defendant, and was not erroneous.
The next error is upon the refusal of the court to grant a new trial. So much of the contention of defendant under this subdivision as was passed upon in what we have said relative to the refusal to direct a verdict in favor of defendant does not require further discussion. We have already said that there was evidence in the case which required that it be submitted to the jury.
It is next claimed that the verdict was not based upon the evidence and was against the weight of the evidence. From an examination of all of the evidence in the case our conclusion is that there was evidence in the case to support the verdict of the jury, and that it was not excessive.
No error appearing in this case, the judgment of the circuit court is affirmed.
Brooke, C. J., and Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. Bird, J., did not sit. | [
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] |
Steere, J.'
On September 1, 1908, plaintiff insured for a term of three years the so-called Amanda M. Hicks frame residence in Alma, Mich. On February 2, 1910, a second policy was issued by plaintiff providing for $500 additional indemnity on the house and $900 on its contents. Near midday of July 11, 1911, the house was damaged by fire. Before an adjustment was reached, Amanda Hicks, died, and plaintiff subsequently settled the loss with her administrator by payment of $1,092.25, becoming subrogated under the terms of the insurance contract to whatever rights the insured might have, in respect to the loss, against any third party. This action was begun, on July 16, 1913, by declaration against defendant charging, amongst other things, negligence in the matter of the operation and repair of its engines whereby fire was communicated to said house, properly alleging liability for the resulting loss under section 6295, 2 Comp. Laws (3 How. Stat. [2d Ed.] § 6649), relative to damages by fire originating in operating a railroad. Defendant pleaded the general issue. On trial of the case before a jury in the circuit court for Gratiot county, plaintiff recovered the amount it paid to. settle said loss, with interest.
While various other questions are raised by defendant’s assignments of error, that chiefly urged and argued, and manifestly calling for most serious consideration, is the denial by the court of defendant’s motion for a directed verdict in its favor on the ground that plaintiff’s testimony furnished no probative evidence that the fire in question originated from defendant’s engine, which was charged with having caused the fire, or that said engine was not in good order and properly managed; defendant’s positive evidence showing that it was.
The portion of section 6295, 2 Comp. Laws, upon which right of recovery is predicated, provides:
“Any railroad company building, owning, or operating any railroad in this State, shall be liable for all loss or 'damage to property by fire originating from such railroad, either from engines passing over such roads, fires set by company employees. * * * Provided, that such railroad company shall not be held so liable if it prove to the satisfaction of the court or jury, that such fire originated from fire by engines whose machinery, smokestack or fire boxes were in good order and properly managed. * * *”
The Hicks residence, a two-story, frame dwelling house with a shingled roof over 15 years old, its eaves 21 feet from the ground, stands upon a lot adjoining on the east a railroad right of way, running northeasterly and southwesterly, jointly occupied by parallel tracks of the Pere Marquette and defendant Ann Arbor Railroads. The lot is bounded on its east by Wright avenue running north and south, and at the south by Superior street, towards which the house fronts, and which runs east and west, crossing the right of way. The house is 48 feet east of the right of way, and from a point immediately under the north valley of its west gable, near which plaintiff showed fire was first discovered, to the center of defendant’s track, which runs 13 feet nearer the house than that of the Pere Marquette, is 51% feet. The nearest building to this house is the so-;called Cheeseman residence, in the same block, some 50 or 60 feet to the north. All other buildings in that vicinity are some distance father away, across streets or the railroad tracks. Except for the railroads and their buildings, the section is purely residential. The lever of a switch of the Ann Arbor Railroad’s track is located a short distance south of the house, from which point the switch extends its entire length northwesterly to its freight depot, which is about one block north of the Hicks house and 60 rods northwest of the passenger depot. The Pere Marquette has no switch here.
In considering defendant’s contention that plaintiff’s circumstantial evidence bearing upon the origin of the fire goes no further than to show the fire might have been ignited by sparks from defendant’s engine, and does not amount to probative evidence that it did so originate, we find testimony in the record which, if true — and it must be so considered in passing upon such contention — warranted the court in submitting that issue to the jury. In outline it is as follows: The house was occupied as a residence by members of the Hicks family. There were no electric light or telephone wires in it. The only fire inside the house that day was kindled in the kitchen stove in the morning and was all out at 8 o’clock. Two west rooms in the second floor were occupied by a chiropractor named Keene, who received and treated his patients there. He was the only person in the house at the time the alarm of fire was given. He had, while working with a patient about 40 minutes previous, been so annoyed with smoke coming from an engine switching opposite the house that he was obliged to close the window. He last noticed the engine, shortly before the fire, where it stood on the switch track near the switch lever for a short time, sufficient to shift the switch, when it went north. The switching was done from the main line of the Ann Arbor road onto its siding. Shortly after it left he was notified the house was on fire outside and went down upon the ground where he could see it. It was on the west side of the roof, on the surface, right in the gable towards the tracks, on the upper part of the eaves, six or eight inches in circumference. He immediately went upstairs and into the garret but could discover no fire on the inside. The fire was discovered by a boy who pointed it out to a man named Shaw, defendant’s flagman at that crossing, who notified Keene and gave the alarm. Though on the morning of the fire a slight rain fell showing a precipitation of .03 of an inch, it had ceased by 7 o’clock. From the 1st to the 10th of July the weather was exceptionally dry and warm, the mean temperature being above 93 degrees. On July 11th, the date of the fire, it was 89 degrees with a wind blowing at a rate of 8 to 10 miles an hour from the southwest, approximately at right angles to the railroad, and from it towards the Hicks house. The engine engaged in switching, identified by certain witnesses as No. 100, was engaged in switching west of and past the Hicks house for from about 40 minutes before the fire was discovered until it left, from 3 to 5 minutes before the alarm.
Numerous witnesses testified, and there was abundance of conflicting evidence; but, without further detail, it can be said this record clearly contains evidence tending to show: That at the time this fire caught the wind was blowing from the railroad track, and from the locality where this engine was working, towards the house. That there had been a season of excessively dry, hot weather, continuing that day except for a slight shower in the early morning, followed by wind and some sunshine for several hours before the fire, which was first discovered after 11 o’clock. Defendant’s flagman, Shaw, testified:
_ “It was a nice day, and the sun was shining at the time of the fire. It had been shining before 11 o’clock.”
That there were no other buildings near to the Hicks house, which was in a residential neighborhood with no factories in the vicinity. There were no fires inside the house, and but one person within at the time, Dr. Keene, who was disturbed in his work by black smoke coming from the switching engine to such an extent that he found it necessary to close his windows. That all the witnesses but Shaw, who located it in the cornice, testified that the fire was first seen on the outside of the upper part of the house on a part of the roof towards the railroad track and but a few inches from the gutter. That parties, going to the attic could find no fire or smoke on the inside. That this locomotive was switching back and forth past the house on the windward side laboring and emitting volumes of smoke but a short time before the fire was discovered — showing proximity of time and place.
Regardless of how persuasive defendant’s evidence may be to the contrary, with such testimony in the case there was sufficient to go to the jury upon the origin and source of the fire under the rule laid down in Jones v. Railroad Co., 59 Mich. 437 (26 N. W. 662); Hagan v. Railroad Co., 86 Mich. 615 (49 N. W. 509); Clark v. Railway Co., 149 Mich. 400 (112 N. W. 1121, 12 Am. & Eng. Ann. Cas. 559); Potter v. Railway Co., 157 Mich. 216 (121 N. W. 808, 22 L. R. A. [N. S.] 1039); Union Ice Co. v. Railway Co., 178 Mich. 346 (144 N. W. 1033).
There being evidence to support the finding of the jury that the fire was started by sparks from defendant’s locomotive, and the jury having so found, to escape liability it became incumbent upon defendant to assume the burden and show that its engine was in good order, properly equipped and managed.
Upon that phase of the case defendant contends a verdict should have been directed in its favor for the reason that all competent evidence bearing upon that subject was uncontroverted and conclusively established full compliance by defendant with the exculpatory provisions of the statute under which plaintiff seeks to recover.
The trial court did not leave to the jury the question of negligent or improper operation of the engine, saying among other things:
“As applied to this case, there is no evidence of improper management. Consequently, I use the term properly equipped, and, as applied to this engine, you will take up that question. * * * Take up the question of whether or not this engine was properly equipped within the statute that I have read to you here. If the defendant railroad company have shown to you, to your satisfaction, by a preponderance of the evidence, that it was so equipped, then that is the end of the case, even though you find that the engine set the fire in question. They are liable only when it is not properly equipped.”
This was referred to more than once and emphasized in different parts of the charge. Passing from instructing the jury as to the first question for them to determine — whether the evidence showed to their satisfaction that defendant’s engine caused the fire— the court said:
_ “If you get to the second question, the second question is: Was this engine properly equipped? If it was, and the railroad company has shown to your satisfaction by a preponderance of the evidence that it was, then that is the end of the case, regardless of how the fire was set. If it was not and you have previously found that the fire was set by the engine, then you determine what the damages are.”
In interpreting the proviso of the statute as applied to the question at hand, this court said, in Dolph v. Railway Co., 149 Mich. 278 (112 N. W. 981):
“The statute shifts the presumption of non-negligence to the presumption of negligence. See Fisk v. Railroad Co., 114 Mich. 248 (72 N. W. 205). We there said: ‘The statute does not change the common-law liability for setting fires. It simply shifts the burden of proof upon the defendant to show that such fires were not negligently set.’ ”
The Dolph Case contains a somewhat exhaustive discussion of this question,, as a result of which the conclusion is reached, in substance, that if defendant establishes by reputable and uncontroverted evidence the fact that its engine was in good condition, equipped as required by the statute and according to good railroading, no question of fact arises for the jury, and a verdict should be directed for defendant by the court. Having occasion later to construe what was there said, considered in its entirety, this court, in Clark v. Railway Co., supra, stated the rule to be as follows:
“If upon the whole case there is room for inference, based upon evidence, that equipment was defective or that management was improper, the case is for the jury. Whether, in any case, the fact of setting a fire would be any evidence of infirmity of apparatus or of improper management, must depend upon other facts and circumstances in evidence.”
In reversing the latter case on the ground that there was a lack of other facts and circumstances in evidence to raise an issue upon the question of proper equipment, the court pointed out an important consideration, and emphasized the fact, that:
“There is no testimony that an engine in good repair, equipped as this engine was, will throw sparks 30 or 35 feet and set a fire.”
In the case at bar the defendant introduced testimony to the effect that the engine in question was properly equipped and in good condition according to approved standards of railroading. This calls for a determination as to the conclusiveness of such testimony and whether, based upon all the evidence, there is room for an inference that the equipment was, in the particular specified in the statute,, defective.
As bearing upon the condition of the “machinery, smokestack, or fire box” of the engine, defendant produced four witnesses: Jennings, assistant master mechanic of the Michigan Central Railway; Reifsnider, engineer on engine No. 100 at the time of the fire; Rathburn, the boiler maker in defendant’s shops; and Hobbs, its general foreman and formerly its boiler maker foreman. Jennings as an expert described and explained from a diagram the standard fronts of locomotives, and their variations, with reference to appliances designed to prevent throwing sparks, etc., stating at the conclusion of his direct examination that a smoke box could not be devised “that absolutely. prevents throwing cinders through the ■stack.” Rathburn, with two and a half years’ experience inspecting front ends and ashpans, testified to inspecting engine 100 at 8 or 9 o’clock on the evening following this fire; was told that there had been a fire at Alma and to inspect 100 thoroughly; that he put a little piece of oily waste behind the baffle-plate and another down the stack to examine the netting; found the baffle-plate, netting, and ashpan in good condition, there being no patches on the screen, the netting good, not burned, and he placed no patches upon the screen on that occasion. This, standing alone, appears convincing and conclusive beyond contrary inference; but on cross-examination he denied telling a Mr. Butterfield that the screen was somewhat burned, and refused to admit or deny that some time during the trial he had told Mr. Butterfield that there were patches upon it. Butterfield testified on rebuttal:
“Rathburn told me yesterday in this courthouse, in the presence of Mr. Shaw and Mr. C. A. Hicks, that he was asked to make an examination of the screen of this locomotive after the fire. He stated that there were patches upon it and that the screen was somewhat burned.”
He also denied knowing a man named Charles Powers, but stated he would neither admit nor deny that 11 months later than the fire he had made a statement on the subject at the instance of Charles Powers, who then reduced it to writing. Shown the signature to such alleged statement, he declined to admit that it was his writing. Powers testified on rebuttal that he interviewed Rathburn as indicated in the questions put to him upon cross-examination and wrote down what he then said and read it over to him; that he then signed said statement, after having also himself read it. This writing, previously shown to Rathburn as described and identified by Powers, was put in evidence and contained, amongst others, the following statements:
“In regard to inspecting engine No. 100, I was working at the A. A. roundhouse during the month of July, 1911. I was night boiler maker. * * * The engineer left an order to fix the spark arrester; that it was throwing sparks bad. * * * I do not know the exact date. Anyhow, at that time, I put a strip of netting around the spark arrester where I thought sparks could get out. * * * Usually, when we fixed an engine, we would just make a report, ‘Engine all right.’ * * * Engine 100 gave us the most trouble anyhow; it was reported throwing sparks the most. * * * There are thin plates also where sparks could get through if they were not closely watched; that is, if they wore through. Also, where bolts go through. * * * I think engine 100 was reported once again after I fixed the spark arrester. * * * ”
J. V. Reifsnider, engineer of No. 100 on July 11, 1911, testified as to the condition of the engine on direct examination:
“I opened the front end of engine 100 * * * probably 30 or 40 minutes after the fire. * * * I examined the netting, and the netting was perfect on all sides; bolted well all around and the trapdoor was O. K.”
This can scarcely be said to cover the ground specified in the statute and was modified as follows on cross-examination:
“I did not examine the baffle-plates. It was too hot. I know nothing about the plates in the back of the front end. I did not examine the plate around the exhaust pipe. I could see that there were cinders lying on top of it, but these gases were so strong that I could not get my head far enough in to tell through the netting. It was so dark back in there and the small amount of smoke coming out. * * * I have not seen any engines properly equipped throw sparks. I have seen engines throw sparks, and in my opinion they were improperly equipped.”
This witness on cross-examination also expressed the opinion that such an engine as 100 properly equipped would not emit sparks of sufficient vitality to set a fire. Reifsnider was the only one of the train crew called as a witness.
Hobbs, defendant’s general foreman who had been its boiler maker and boiler inspector, testified that he was familiar with engine No. 100 and had known it for 13 years, had been inside of it and observed its extension front, the nature of which he described, making reference to a diagram, explaining the purpose, operation, and effect of certain parts and appliances designed to prevent fire and sparks from escaping, and stated that on July 11th, the date of the fire, engine 100 was equipped with a standard front-end netting, but did not claim, and is not shown, to have examined or seen it at or near that time, and did not testify to its then condition or state of repair from personal knowledge. On cross-examination he testified, in part:
“The spark netting sometimes gets warped, and, if not properly fastened, will warp away from the door that goes into the smokestack. The wires in the netting wear out from the action of the cinders in the course of time, and not infrequently they wear out when the engine is on the road.”
It can be contended with reason that the testimony of these witnesses, taken as a whole find given full credit, falls short of conclusively showing that this engine, at least 13 years old, was, at the time of the fire, -in all parts and particulars specified in the statute, properly equipped and in good order.
Plaintiff called in rebuttal a locomotive engineer named Westcott, who, qualifying to testify on the subject, stated:
“I ran and fired about 13 years out of Durand and Bay City and also fired in Saginaw yhrds. On account of the lumber yards, sawdust, mills, etc., at Saginaw yards, I gave particular attention to the spark question.”
The substance of his testimony, based on observation and experience, was, so far as it had any probative force, that an engine properly equipped as this was said to be, and in good order, would not throw sparks with sufficient vitality to set a fire at the distance shown in this case. This was qualified by the statement on cross-examination that dry weather would add-to the vitality of the spark, and it was possible in a long period of dry and very warm weather for a spark which would set fire to get out of such an engine. Without reviewing at length the objections launched against his, testimony, we conclude that no reversible error appears in the rulings relating to it, under Union Ice Co. v. Railway Co., supra, and Potter v. Railway Co., 157 Mich. 216 (121 N. W. 808, 22 L. R. A. (N. S.) 1039). In the latter case witnesses who were experienced locomotive engineers were allowed in rebuttal to give testimony to the effect that an engine in good order and properly managed, as defendant’s evidence showed the one in question was, would not throw sparks and set a fire 81 feet distant. Of the admissibility of their testimony, the court said:
“A fair interpretation of their testimony is that, although some of the questions seem to call for scientific conclusions, the answers were, for the most part, really based upon their observation and experience as to the distance live or burning sparks would be carried if the engine was in proper order. We are satisfied that the testimony of these locomotive engineers raised a question of fact for the jury, and that the court did not err in refusing to direct a verdict.”
Defendant’s assignment of error on refusal of the court to receive in evidence its exhibits 6 and 7, being reports of inspection of engine 100 made by Eathburn immediately before and after the date of the fire, would be well taken if those exhibits had been again offered in accordance with suggestion of the court and squarely rejected. Worden Lumber & Shingle Co. v. Railway Co., 168 Mich. 74 (133 N. W. 949). We do not, however, think that the objection can fairly be urged or considered here. The record discloses that during the examination of Hobbs, the first witness called as to the condition of the engine, he was shown these exhibits and identified them as regular inspec tion reports made by Rathburn and given him by the roundhouse foreman, and kept in the office of the master mechanic. Counsel for defendant then offered them in evidence, stating the theory on which they were offered*. No objection was made by opposing counsel, but the court said:
“I think you will have to pass it. I have some doubt about their being competent. You may present it to me later.”
To which counsel replied, “An exception.”
When Rathburn was subsequently called as a witness, he was shown and identified these, reports as made by him, and had the benefit of them to refresh his recollection if so desired; but they were not again offered in evidence, nor the matter again called to the attention of the court and presented “later” for a final ruling, as the court had* suggested to counsel when expressing doubts and deferring the question for further consideration at the time it first arose. Manifestly, the court desired to give it further consideration, and, with but tentative expression of opinion, made it clear that the question was left open by an invitation to call for a final ruling if desired. No objection had been made by opposing counsel, and in the light of existing authorities it is but reasonable to presume that had these exhibits been again offered, after being fully identified by the witness who made them, a favorable ruling would have resulted. If counsel desired to put these exhibits in evidence or to save an exception on their rejection, we think in fairness to the court they should have been presented later, and, under the circumstances disclosed, no error can fairly be predicated on such tentative action of the court.
The court is not required to deal in this inquiry with the significance or" force of defendant’s testimony, so long as it is not conclusive and an issue of fact is raised. We are constrained to conclude from this rec ord as a whole that there is fair room for inference, based upon evidence, that equipment was defective, and what inference, if any, should be drawn was a matter for the jury.
The judgment is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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Bird, J.
Plaintiff had the contract for installing a steam heating plant in St. Francis Church, in the city of Detroit. It is his claim that the contract did not require him to cover certain pipes in the basement with asbestos felt, but that he did cover them in pursuance of an order of and an agreement with the architect, and he now claims compensation therefor as an extra. In the trial court, he recovered his full claim. Several defenses were made to the claim.
The material questions which are raised in this court by the several assignments of error are:
(1) Was Felix F. Kieruj properly made a party defendant?
(2) Was the covering of the pipes included in the contract ?
(3) Even if the covering of the pipes were an extra, has plaintiff complied with the provisions of the contract with reference to making a claim for extras ?
(1) The contract named “St. Francis Church” and “Rev. Felix Kieruj, pastor” as the second parties. Felix F, Kieruj was made sole defendant. Some question appears to have arisen upon the first trial as to whether he was the proper party, and it was then agreed in open court by counsel that he was the proper party defendant. On the first writ of error in this court, the matter was referred to in the opinion in the following manner:
“If there is liability, it was conceded that the defendant was the proper party to be sued.” Wenzel v. Kieruj, 168 Mich. 92 (133 N. W. 921).
Upon the second trial, the concession was repudiated by Felix F. Kieruj, on the ground that his attorney had no authority to make it, and the point was again raised and urged. Whatever merit there may be in the question, we must hold that it is foreclosed by the former holding of this court.
(2) Was the work of covering the pipes included in the contract? When the case was first before this court, the contract was construed with reference to this question, and it was held that there was no express language in the contract which obliged the plaintiff to cover the pipes under the church. Upon the second trial, the court instructed the jury in accordance with this construction, and this is complained of as error. The argument made in support of this claim is that on the first trial the written contract was missing, and that only fragments of it were before the court, but that upon the last trial, the written contract was produced, and therefore the first holding of the court is not now binding. If the record in the second trial was materially altered by the written contract from that upon which this court based its construction, counsel’s contention would probably be true (White v. Campbell, 25 Mich. 463), but the written contract does not materially alter the facts upon which the construction was based, therefore the trial court was right in holding that the construction of this court was the law of the case. But it is argued that if the contract did not in express words require plaintiff to cover the pipes, his guaranty that the system installed should have the capacity to heat the church to 70 degrees Fahrenheit when the outside temperature was 10 degrees below zero, would require them to be covered. It was insisted by the defendant that unless the pipes were covered, this guaranty could not be complied with. The contention of the plaintiff was directly opposed to this. This raised a disputed question of fact which the trial court submitted to the jury, and we think properly so.
(3) It is strenuously urged that if the covering of the pipes were an extra, plaintiff could not recover because of section 5 of the general specifications, which in part reads:
“No claim for extra work shall be considered unless the price for the same shall have been agreed upon in writing between the owner, contractor and the architects, prior to the commencement of the same.”
It is conceded by the plaintiff that this provision was not complied with, but it was shown that the architect ordered the work to be done, and arranged with him orally to do it. It is further contended by the defendant, that the architect’s decision as to whether the contract included the covering of the pipes was final under the eighth section of the general specifications, which provided that:
“Should any misunderstanding or dispute arise as to the meaning of the drawings or specifications, the same shall be referred to the architects, whose decision thereon shall be final and conclusive on all parties.”
The answer of plaintiff to these contentions is that the provisions quoted were included in the general specifications, which were never delivered to him, and of which he had no knowledge; that his bid was made and the contract was based upon the “special heating specifications” only. The parties being at variance upon this question, the trial court submitted this question as one of fact to the jury, with the instruction that if they found that the general specifications were delivered to plaintiff prior to the making of the contract, the plaintiff could not recover. We. are of the opinion that this was a proper disposition of the question.
Testimony of other extras arranged for orally by the architect was admitted for the purpose of showing a waiver of that portion of the contract which provided that all claims for extras should be made in writing within 10 days from the beginning of the work. The testimony was competent for that purpose. If the architect had arranged with plaintiff for other extras, and had not insisted upon the written notice being given, it was some evidence that he did not intend to insist upon a compliance with that provision of the contract.
There being no errors which call for a reversal of the case, the judgment of the trial court is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone. Ostrander, Moore, and Steere, JJ., concurred. | [
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] |
Moore, J.
Some phases of this litigation were recently before this court. A reading of the opinion, found in 183 Mich. 610 (149 N. W. 1058), will make a long statement unnecessary here.
The case was argued at the January term of £he court. Counsel for appellants says — we quote from the brief:
“As we view this case there is only one question involved, viz., whether the established rules and precedents of this court relating to the practice upon and disposition of pleas in chancery are to be sustained or are to be reversed, and we shall accordingly begin our argument with a discussion of this topic.”
We cannot agree with the counsel that this is the question involved. His appeal was reinstated because he contended and the record showed that defendants had abandoned their right to answer in said cause, and had elected to abide by their, plea. The trial court found that the truth of the plea was established, but he was of the opinion that, though established, it is not sufficient in law to constitute a defense. We take it the question is, Vfas he right in so finding? This court has recently had occasion to construe Act No. 101, Pub. Acts 1907, entitled “An act to regulate the carrying on of business under an assumed or fictitious name.” The cases are Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Am. & Eng. Ann. Cas. 1913C, 697); Sauer v. Construction Co., 179 Mich. 618 (146 N. W. 422); Axe v. Tolbert, 179 Mich. 556 (146 N. W. 418); Zemon v. Trim, 181 Mich. 130 (147 N. W. 540); and Cross v. Leonard, 181 Mich. 24 (147 N. W. 540). These cases are so recent and so accessible that we shall content ourselves with saying that they justify the conclusion that defendant’s plea, though true, was not a defense.
The decree is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Steere,. JJ., concurred. | [
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Burns, J.
The defendant was charged on a 2-count information with carnal knowledge of a female under 16 (statutory rape) and indecent liberties with a female under 16, on January 6, 1965. Complaint was filed and warrant issued on May 7, 1965. The defendant, represented by counsel whom he had retained, waived preliminary examination. He stood mute at the arraignment on the information again with counsel present. The record further shows an adjournment of trial and the filing of a consent of substitution of attorney. Trial was held by the court on August 24, 1965, upon defendant’s waiver of a jury trial. The court heard the testimony of a policewoman who briefly related the complainant’s version of the events which led to this action. The court then called on the defendant and said:
“The Court: Tour attorney informs me at this time you wish to withdraw your plea of not guilty to the 2 counts in the information.
“The first count is carnal knowledge of a female minor under 16, which carries a possible sentence of any number of years up to and including life.
“The second count is indecent liberties with a child under 16, which carries a possible maximum of 10 years.
“You wish to plead guilty to the second count, is that right?
“The Defendant: Yes, sir.”
The court then questioned the defendant pursuant to the requirements of G-CB, 1963, 785.3(2), accepted the plea, and set September 8 for sentencing, when sentence was imposed.
Almost 2 months later, on November 4, 1965, defendant sought' by motion, supported by his own affidavit, to withdraw his plea of guilty on the ground that the plea was made in reliance upon his counsel’s representations and assurances that if he agreed to the entry of the plea he would be placed on probation. A hearing was granted the nest day and the motion denied.
Defendant then appealed to this Court. Two additional affidavits were submitted to support the claim. This Court remanded the matter for further post-conviction proceedings to inquire into the voluntariness of defendant’s plea of guilty. This was objected to by defendant. The proceedings were had on May 16,1966. Defendant pursues his appeal.
Defendant raises several issues on appeal which we rephrase and consider. The first such issue is whether a trial judge is required to advise the defendant of his constitutional right to remain silent áfter a plea of guilty is offered by the defendant in open court.
Defendant cites Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977), in his argument on this point. Escobedo dealt with the time during the investigatory process, prior to trial, at which right to counsel attaches, and held in essence that once the investigation had focused upon a suspect, if the suspect had requested and had been denied counsel, and had not been effectively warned by the police of his right to remain silent, then he had been denied the assistance of counsel and no statement thus elicited could be used against him at a criminal trial. Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974), which is not applicable to the case at bar since it is not applied retroactively, further clarified the procedural safeguards which must surround in-custody interrogation. In neither Escobedo, nor in Miranda did the United States Supreme Court consider the problem presented to this Court by the case at bar.
Here the defendant is not alone in a hostile atmosphere surrounded by persons charged with the duty of ferreting out crime. Rather, he is a man duly accused of a criminal offense who has been afforded the protection of counsel in the proceedings which preceded this trial, who now stands, with his attorney at his side, at the bar of justice, and tenders a plea of guilty. By so doing, he admits generally to the specific charge to which the plea is directed. At this point there is no necessity for proving the defendant guilty; this is admitted by the plea. The inquiries by the court which follow this tender by the defendant are not posed to establish his guilt by the trial process, but rather to enable the court to determine whether the plea was “freely, understandingly, and voluntarily made”. GCR 1963, 785.3(2). *This Court rule and its predecessor, Michigan Court Rule No 35A (1945), and the statutory provisions of CL 1948, § 768.35 (Stat Ann 1954 Rev § 28.1058), were specifically intended, and here properly employed, to protect the defendant under circumstances such as those presented in the case before us.
Defendant’s second assignment of error evolved from circumstances described herein. As previously noted, the information filed in this cause alleged that the criminal acts in question were perpetrated on or about January 6, 1965. The only witness who testified at the trial, prior to the tender of the plea — ■ the acceptance of which terminated the trial proceedings — was Detroit policewoman Fanny Jane Hendrick. She was permitted to testify, without any objection by defendant, that the complaint was that the overt act in question occurred on or about the 6th day of January, 1965. After the plea of guilty was tendered, the trial court undertook to examine the defendant. In the course of the examination, the judge said, “You understand the second count charges that on or about the 6th day of June of this year [1965]”. The second error alluded to above thus emerges. The defendant asserts error in this misstatement of the date of the offense by the court. We find from a reading of the complete record of the proceedings that the statement by the trial judge was erroneous. However, reversal cannot be predicated thereon. The error in no way prejudiced the defendant concerning the testimony of policewoman Hendrick, the information which was filed, and the purposes for which the question was asked. No objection was made to this misstatement at the time, which adds weight to our finding that it was without prejudice. We might fairly assume from this that it was an inadvertent slip of the tongue which went unnoticed by all parties.
The assignment of error that attempts to raise an issue from the use of leading questions by the trial court in an examination which is in accord with G-CR 1963, 785.3(2), is devoid of merit and necessitates no further amplification here.
The defendant further assigns error in the failure of the trial court to grant his motion of November 4, 1965, whereby he sought to withdraw his pléa of guilty upon which sentence had been pronounced on September 8, 1965. A hearing was held on this motion which resulted in its denial. The defendant does not have an absolute right to withdraw a plea of guilty. See People v. Case (1954), 340 Mich 526; and People v. Davis (1964), 372 Mich 402, and cases cited therein. The granting of a motion for a new trial rests within the sound discretion of the trial court. See People v. Lowenstein (1944), 309 Mich 94; People v. Barrows (1959), 358 Mich 267; and People v. Zaleski (1965), 375 Mich 71. It is particularly relevant to our finding of no abuse of discretion in the instant case to note again that this motion to withdraw the plea of guilty was not made prior to sentencing, but rather the relief was sought almost 2 months thereafter. See People v. Walls (1966), 3 Mich App 279. We will not allow the judicial process to be abused merely because the defendant is dissatisfied with the sentence imposed.
As we noted in our review of the facts which culminated in the instant appeal, this case has been before our Court once before. At that time the defendant claimed that the plea of guilty was not voluntarily made and we remanded for an evidentiary hearing on that point. The transcript of the hearing'so ordered is a part of the record before us at this time. A review of the proceedings and the trial judge’s determination that the plea was voluntary discloses no reversible error. The trial court heard the witnesses, observed their demeanor, and was apprised of the respective interests of the parties. The defendant was allowed to take the stand and to testify as to the issue of voluntariness. The trial judge chose to believe the counsel who represented the defendant at the time of the filing of the plea of guilty. We find neither error in the judgment of the trial court nor reason to substitute our judgment for his. See People v. Geddes (1942), 301 Mich 258; People v. Martino (1944), 308 Mich 381; and People v. Martin (1965), 1 Mich App 265.
The remaining assignments of error are wholly without merit.
Affirmed.
Lesinski, C. J., concurred with. Burns, J.
OLS 1961, § 750.520 (Stat Ann 1954 Rev § 28.788).
OLS 1961, § 750.336 (Stat Ann 1954 Rev § 28.568).
See Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772, 16 L Ed 2d 882).
See People v. Coates (1953), 337 Mich 56: and People v. Daniels (1966), 2 Mich App 395.
See 318 Mich xxxiv. | [
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Gr. E. Bowles, J.
Plaintiff has been a member of the police department of the City of Saginaw for over 20 years. Defendant police and fire department civil service commission is a body established pursuant to CL 1948, § 38.501 et seq., as amended (Stat Ann 1958 Rev § 5.3351 et seq.).
Promotions in the department are covered by CL 1948, § 38.501, et seq., and the rules and regulations of the civil service commission under that act. The commission conducts competitive examinations from among persons with at least five years in the department and at least two years in the next lower rank in order to establish an eligible list. The person scoring highest is placed at the head of the list, the person scoring second highest is the next one on the list and in like manner the others appear on the eligible list. Vacancies in the rank for which the examination is given are then filled from the eligible list.
On May 21, 1962, the commission was considering whether it should create eligible lists only when a vacancy occurred for which no eligible list existed, or whether it should 'maintain continuous lists by creating one whenever the existing list became depleted or whenever it expired. On that date the commission decided a continuous list would be main tained. Defendant- claims that this policy has remained constant although in some instances eligible lists were not maintained continuously because there was a lapse of time between the expiration of the old list and certification of the new. The city administration and the city attorney’s office were n,ot in agreement that a continuous list should be maintained.
At the time of taking testimony Jack J. Houk, acting clerk of the defendant civil service commission, stated:
“Q. (By Mr. Kerr, continuing) So that the policy that was supposedly established by the Commission on May 21, 1962, wasn’t in fact, followed as far as the last two lists for sergeant and lieutenant in the police department; isn’t that true?
“A. That’s true.
“Q. In other words, the eligibility lists were not made retroactive so that they ran for successive periods of time?
‘‘A. That’s correct.”
Mr. Houk further testified as to consecutive eligible lists:
“Q. Mr. Houk, regardless of what the commission’s policy was as to consecutive lists, their practice hasn’t followed policy?
“A. That — except in recent months. Except in recent months.
“Q. And you were the clerk that was at the hearing, Mr. Killingsworth’s hearing when we appeared before in front of the civil service commission and their sole basis for denial of his request to take the examination was that they were going to use the date of August 13, 1965, which was the expiration date of the last captain’s'list as the' date upon which to determine eligibility to take the present examination?
“A. That’s correct.
And the reason they were going to use that date and the only reason was that they were going to back-date this examination all the way from August 1966, back to August of 1965.
“A. That’s correct.
“Q. And that is the only reason that the date of August 13 was selected by the commission as the date upon which to determine who was eligible to take the present examination? Isn’t that correct?
•' “A. That is correct. Their policy was to maintain continuous lists.”' .
Plaintiff was promoted to the rank of lieutenant on June 30, 1964 and would not be eligible for appointment to the rank of captain until he had served two years as lieutenant.
On August 13,1965 the eligible list for promotions to the rank of captain expired and in September the .clerk of the commission resigned. Mr. Kressbach acted as clerk until November" 29, 1965, when he was succeeded by Mr. Ilouk. In February, 1966, the commission became aware that the old eligible list had, expired but no action was taken to establish a new list until March 28, 1966 when notice of examination for promotion to captain was posted. The notice established the date for filing applications for the examination as March 28, 1966, to April 15, 1966. Plaintiff did not apply for admission to the examination during this period. A tentative date apparently was established for the examination but no definite date was actually posted.. " Defendant claims that normally examinations are scheduled two weeks from the deadline date for filing applications. But for the commission’s review of its policy this examination would have been given within the two-week period following the April 15th deadline.
On April 21, 1966, the commission clerk urged the commission not to give an examination until a vacancy occurred in the rank of captain. The com mission at that time reaffirmed its prior ruling of maintaining continuous lists based upon its understanding of a 1962 Attorney General’s opinion.
On June 10, 1966, the clerk sent the commission a 1963 Attorney General’s' opinion (OAG, 1963-1964, No 4158, p 114) ruling that it is Unnecessary to maintain continuous eligible lists. The commission resolved the policy question on July 7, 1966, reaffirming its earlier ruling and ordering the examination, which was then scheduled for July 27, 1966. On June 30,1966, plaintiff became eligible for promotion to the rank of captain since he had then served two years as a lieutenant. He immediately requested an application to take the examination and the request was denied.
Plaintiff secured an order temporarily restraining defendant from proceeding with the examination and on an order to show cause why a preliminary injunction should not be issued he prevailed. On July 27, 1966, plaintiff filed a demand for hearing before the commission, and on the next day the commission ruled that since plaintiff was not eligible on August 13, 1965, the date of expiration of the last eligible list, he could not take the examination. Since the eligible list created by the examination would cover the two-year period from August 13, 1965, to August 13, 1967, he was advised that he could write the examination which was to be held in August, 1967.
Thereupon plaintiff filed an amended and supplemental complaint to determine whether he was eligible to take the examination. The matter was submitted on briefs, and the parties further agreed that plaintiff would be permitted to take the written examination but that his paper would be sealed and held by the commission pending final disposition of. the suit. The trial judge ruled that plaintiff was eligible to take the examination on August 5, 1966, and that to allow defendant commission to arbitrarily select a period of time within which to file applications and to limit admission to an examination to persons who at that time were eligible could result in systematic exclusion of any number of persons who might otherwise be eligible. The court further ruled the commission need not maintain continuous lists and that it could not use the expiration date of the last eligible list to determine who had the required time in the department and in grade, and therefore could not exclude plaintiff from the examination in question on this basis. Specifically, it was held that eligible lists could not be dated from a time prior to the examination but must run from two years from the date the lists are established.
The civil service act was enacted to provide a civil service system based upon “examination and investigation as to merit, efficiency and fitness for appointment, employment and promotion of all officers and men.” CL 1948, § 38.501 et seq., as last amended by PA 1956, No 162 (Stat Ann 1958 Rev § 5.3352 et seq.). Stated generally, the purpose of the statute is to aid the public by establishing better qualified personnel in the police and fire departments and to protect its officers and employees from arbitrary and unjustifiable removal. This act prohibits any person from being “appointed, reinstated, promoted or discharged” as a paid member of a department in any manner and by any means other than those provided by the act.
The two paragraphs under review are sections lib and 11c of CL 1948, § 38.511 (b) and (c), as amended by PA 1956, No 162 (Stat Ann 1958 Rev § 5.3361 [b] and [c]).
“(b) Every position, unless filled by reinstatement, shall be filled only in the following manner: The appointing officer shall notify the civil service commission of any vacancy in the service which he desires to fill, and shall request the certification of eligibles. The commission shall forthwith certify, from the eligible list, the name of the person who received the highest average at preceding examinations held under the provisions of this act within a period of 2 years next preceding the date of such appointment. The appointing officer shall, thereupon, with sole reference to the relative merit and fitness of the candidate, mate the appointment so certified. As each subsequent vacancy occurs, precisely the same procedure shall be followed. When an appointment is made under the provisions of this section, it shall be, in the first instance for the probationary period of 6 months, as provided in this act. The term ‘appointing officer’ as used in this act shall be construed to mean the mayor or principal administrative or executive officer in any city, village or municipality.”
“(e) Whenever there are urgent reasons for filling a vacancy in any position in the fire or police department and there is no list of persons eligible for appointment the appointing officer may nominate a person to the civil service commission for a noncompetitive examination; and if such nominee shall be certified by the said commission as qualified, after such non-competitive examination, he may be appointed temporarily, to fill such vacancy until a selection and appointment can be made after a competitive examination, and in the manner prescribed in this act; but such temporary appointment shall not continue for a longer period than 3 months, nor shall successive temporary appointments be made to the same position, under this provision. In the event of an emergency due to a war in which our country is involved, the civil service commission may make temporary appointments to fill vacancies, when appointments cannot be made under the provisions of this act, such appointments to be temporary, and only during hostilities, and 6 months thereafter,”
The sense of .11(b) is that the appointing officer notifies the civil service commission of a vacancy and asks for certification of eligibles. The commission then certifies from the eligible list the person who has received the highest average at the competitive examination within a period of two years next preceding the date of appointment. The appointing officer is then under the clear mandate of the statute to appoint “with sole reference to the relative merit and fitness of the candidate.” The appointment is probationary for six months.
Once an employee has won a position on the eligible list he remains on that list for two years unless he receives an appointment. Stated simply, the eligible list is good for two years unless it is exhausted through appointments. The commission cannot reduce the period for which the eligible list is good; two years is the period during which a candidate who has won a place on the list remains eligible for consideration for appointment in the event a vacancy occurs.
What is the meaning of subsection (c) ¶ When there is no list available and when there are urgent reasons for filling a vacancy, the appointing officer may nominate a person to the commission for a noncompetitive examination, and if that person is certified as qualified, he may be appointed temporarily until selection and appointment can be made after the giving of a competitive examination. Such an appointment is limited to a period of three months, and the statute clearly prohibits successive temporary appointments to the same position.
There is a further provision in subsection (c). In the event of an emergency due to war in which our country is involved the civil service commission may make temporary appointments to fill vacancies, when appointments ca/mot be made under the provi sions of the act, that is, when an eligible list has been exhausted. This provision for emergency appointment limits the appointment to a period. of . six months.
What the law requires and what is good policy must be distinguished. The better policy is to maintain continuous eligible lists. When the two year period for. a given eligible list ends, ideally, another eligible list should be available for use should a vacancy occur. Such a. policy would best effectuate the laudable purposes of the act. But that act does not positively require that continuous lists be maintained.
Defendant commission did not maintain continuous lists, presumably because of a difference of opinion ás to what was required under the statute and the opinions of .the attorney general. Since defendant commission did not maintain continuous lists it may not use a policy of continuous lists in the disposition of plaintiff’s application. Specifically, in fairness and in law it could not use the date of August 15, 1965, the date of expiration of the prior eligible list, as an eligible date for the examination here, under' the facts of this case. Plaintiff did have the required time in the department and in grade before the examination here was given.
An eligible list, then, is good for two years unless it is exhausted by appointments, and the two-year period begins when the eligible list is established following examination.
CL 1948, § 38.512, as amended by PA 1965, No 298 (Stat Ann 1968 Cum Supp § 5.3362) as to required notice of examination provides:
“(a) Notice of the time and place and purpose of every examination shall be given by the commission by publication for 2 weeks preceding such examination in the official paper of the city, village or municipality and such notice shall be posted by the commission in a conspicuous place in the office and on the bulletin boards of the city, village, or municipality for 2 weeks before such examination. Such further notice of examinations may be given as the commission shall prescribe; but in an examination for a promotion no newspaper advertisement shall be required.”
. The record shows that the date of the time of the .examination was not stated in the notice that was given since the commission had not yet set the date for the examination. The date was not finally determined until July 7, 1966. The notice defendant provided did not meet the requirements of the statute.
As to the acceptance of an application for admission to the examination it is provided by CL 1948, § 38.510(a), as amended by PA 1956, No 162 (Stat Ann 1958 Kev § 5.3360):
“(a) The civil service commission, in each city, village, or municipality shall require persons applying for admission to any examination provided for under this act or the rules and regulations of the said commission, to file in its office, within a reasonable time prior to the proposed examination, a formal application.”
The testimony of Mr. Houk as to the normal period of time given to make application for examination was:
“Q. All right. Now what is the normal period of time you give to make application prior to the time of holding the exam itself?
“A. We are required to post the — accept application for a minimum of 14 days, and after the applications are — after the deadline for filing applications we normally would schedule an exam within two weeks from this date.
“Q. So that if on July the 7th, of 1966, it was finally determined that the exam was going to he given the 27th of July you would have had sufficient time within which to allow new applications and re-advertised for applications to take the examination?
“A. Yes.
“Q. But in this particular case, you did not do that?
“A. That is correct.”
Under the defendant’s eventual determination as to when the examination was to be given, namely July 7, 1966, sufficient time remained in which to allow the plaintiff to make proper application.
It has been held consistently that words of a statute are to be given their ordinary meaning unless it appears from the context or otherwise in the statute that a different sense was intended: Hammons v. Franzblau (1951), 331 Mich 572. In Melia v. Civil Service Commission (1956), 346 Mich 544, 562, the Supreme Court quoted with approval People v. Burns (1858), 5 Mich 114, 117:
“No rule is better settled than, in construing a statute, effect must be given to every part of it. One part must not be so construed as to render another part nugatory, or of no effect. The same rule applies to words, in construing a sentence.”
The trial judge properly interpreted CL 1948, § 38.511(b) and (c), as amended by PA 1956, No 162 (Stat Ann 1958 Rev § 5.3361) and, under the facts, his conclusion was correct.
Affirmed.
Fitzgerald, P. J., and J. H. Gillis, J., concurred. | [
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] |
McGregor, P. J.
A head-on collision occurred on a city street in a southeastern Michigan suburban community, between automobiles owned by Hector M. Couvreur and Virgil Lazarus. The collision resulted in serious injuries to all occupants of the colliding vehicles, including fatal injuries to Virgil Lazarus.
Elizabeth Cote, a passenger in the Couvreur auto, brought suit against the estate of Virgil Lazarus. This appeal is from the trial court’s dismissal of a third-party action of the estate of Lazarus for contribution against Hector Couvreur, owner of the host vehicle in which Elizabeth Cote was the guest passenger.
Michigan’s guest passenger statute, CLS 1961, § 257.401 (Stat Ann 1960 Eev §9.2101), reads in part:
“Provided, however, That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.”
Because there was no claim of gross negligence or wilful or wanton misconduct on the part of the host driver, a direct action against the host driver would have resulted in a summary dismissal under the guest passenger statute.
While there are no Michigan appellate decisions on the precise point of contribution against a host driver in an automobile collision, in the absence of the statutorily required degree of misconduct, the trial court’s decision is within the general rule. As stated in 18 Am Jur 2d, Contribution, § 49, p 72:
“And it is obvious that there is no common liability between drivers involved in an automobile accident to a passenger in the car of one of them where the driver of such car is protected from suit by the injured person by a guest statute. (Footnotes omitted.) ”
To allow a third party action in this case would render the guest passenger statute a ridiculous appendage to the legislative code. This Court will not allow by indirection what the legislature has directly prohibited.
Affirmed. Costs to appellee.
J. H. G-illis and A. C. Miller, JJ., concurred. | [
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] |
Lesinski, C. J.
The defendant-appellant, General Adjustment Bureau, appeals from a decision of the lower court finding it liable to the plaintiffs in the amount of $3,215.05.
The facts are that on December 9, 1963, the plaintiffs, Hershel J. Phillips and Portia Phillips, suffered a fire loss at an apartment building which they own. The apartment building was insured against fire loss by the Insurance Company of North America and, allegedly, Washington Mutual Insurance Company. The plaintiffs thereafter reported the loss to the Davis-Grant agency, a Detroit agent for both companies. General was informed of the loss by the Davis-Grant agency. Thereupon, General represented to the plaintiffs and their public adjuster that it was acting in behalf of the companies involved and proceeded to ascertain the extent of the loss. The representations by General were, in fact, false in that it never had authorization 'for such action from either company. It is because of these representations and the reliance placed upon them by the plaintiffs and their public adjuster that negotiations about the loss were extended beyond the 60-day period required for filing a sworn proof of loss.
The adjustment of loss involved was for $6,680.09. The companies involved under the terms of the policies in question were to divide the loss on a •pro rata basis. A proof of loss was prepared, after the 60-day period required for filing a sworn proof of loss, signed by the plaintiffs and submitted to each insurance company.
The Insurance Company of North America paid its pro rata share but Washington Mutual Company refused payment on the grounds that the insurance policy had been cancelled prior to the loss; that it had not received proof of loss within the 60-day provision of the policy; and that General had no authority to act as an adjuster for Washington Mutual.
Subsequently, the plaintiffs brought an .action against both insurance companies and. General as their common agent. Prior to trial the plaintiffs discontinued their claim against Washington Mutual Insurance Company, conceding that the company had effectuated a valid cancellation of their policy prior to the loss. • ■
At trial, the Insurance Company of North America was granted a directed verdict. of no cause of action, upon the court’s finding that no valid cancellation of Washington Mutual’s policy at the time of the loss had been effected; and because the Insurance Company of North America had already paid its pro rata share, if had' no further liability to the plaintiffs. No appeal was taken,- from that order. , -
As to General, the trial court found that its'representations, though innocent, were in fact false, detrimental to the plaintiffs, and hence actionable. General was found liable to the plaintiffs in the amount of $3,215.05.
In its first assignment of error, and the only one we treat for we find it dispositive of the appeal, General attacks the trial court’s finding that an innocent misrepresentation is actionable in spite of the fact that General “did not actually profit” as a result of. the misrepresentation.
It is extremely difficult to ascertain from this record the role played by the Davis-Grant agency, but in deciding this issue we must assume that the agency did not properly retain General to act in behalf of the companies involved.
This State takes a minority position when dealing with the area of innocent misrepresentation. The Michigan rule is stated in 23 Am Jur, Fraud and Deceit, § 120, p 908, as follows:
“In some jurisdictions the rule is broadly stated that intent to deceive is not a necessary element of an action at law for fraud to recover damages. This is a minority view. The minority rule is followed in one state in a slightly more specific .formulation; and it is held that where an action is brought to recover for false and fraudulent misrepresentations made by one party to another in a transaction between them, any representations which are false in fact and actually deceive the other and are relied on by him to his damage are actionable, irrespective of whether the person making them acted in good faith in making them, where the loss of', the party deceived, inures to the benefit of the other.’’ (Emphasis supplied.)
See Rosenberg v. Cyrowski (1924), 227 Mich 508; Aldrich v. Scribner (1908), 154 Mich 23; Strand v. Librascope, Incorporated (ED Mich SD, 1961), 197 F Supp 743; Dykema v. Muskegon Piston Ring Company (1957), 348 Mich 129.
The plaintiffs cite cases to support their claim that a benefit to the party making the misrepresentation need not be present to uphold the injured party’s right to' recovery. All of the cited cases dealt with intentional fraud, however, we do not find them helpful authority here, where any misrepresentation made was admittedly unintentional. Whatever the rule may be elsewhere, Michigan requires a benefit to inure to the person making an innocent misrepresentation in order to render him liable to a party relying on it to his detriment.
The trial judge found that General had billed Washington Mutual for adjustment services but it -had not been established that General had been paid. The fact that General has an ostensible claim against Washington Mutual might be considered a benefit, but it is not such a benefit as is contemplated under the rule.
Reversed, costs to appellant.
T. G. Kavanagh, J., concurred with Lesinski, 0. J.
Hereinafter referred to as General. | [
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Canham, J.
This appeal arises from a summary judgment which dismissed an action, based on the theory of attractive nuisance, against house movers.
In May, 1965, Craig Browning, then six years old, was seriously injured while on the way home from school. This injury occurred while young Craig and a companion were exploring the interior of an unattended garage which had been placed on a trailer by the appellees-house movers. The precise cause of the injury was a collapse of a stack of heavy wood billets, one of which fell on the child.
It was contended that the house movers knew the garage would attract playing children and that inadequate precautions were taken to prevent injury to such children. When appellees moved for a summary judgment of dismissal, they advanced the argument that attractive nuisance applies only to possessors or owners of land, and because they were merely house movers, there was no cause of action against them. Appellees’ theory proved eminently successful in the trial court.
In a by-gone era, when Michigan was one of the jurisdictions which stalwartly resisted the intrusion of the doctrine of attractive nuisance, it was not uncommon to have a non-owner user of land raise his legal occupation of land in conjunction with the defense that he was not liable for injury to trespassing children. See Petrak v. Cooke Contracting Company (1951), 329 Mich 564; Morris v. Lewis Manufacturing Company (1951), 331 Mich 252. "We are now in an era where the law is ill-disposed to emancipate from responsibility those who are knowingly luring unsuspecting children to their own partial or total destruction. Lyshak v. City of Detroit (1958), 351 Mich 230. The position of the defense of a non-owner users of land has changed from the former attempt to avoid liability by being corralled with land-owners to the position which was presented here, that the land user can avoid liability by disdaining all connection with the land. However, the connection to the land that the non-owner users of a former day so carefully nurtured did not disintegrate when the law gave higher priority to the lives of children (whether or not they are breaking the trespassing laws which they are too young to comprehend) over the rights of property users to conduct their affairs without regard to others. This new emphasis in the law is not a judicially established welfare system which forces land users to be their brothers’ keepers (or their brothers’ children’s keepers), and bear the financial burdens for those minors who by happenstance are injured while on the property of another. Liability is not imposed in attractive nuisance cases unless there is an awareness that infant trespassers are subjecting themselves to danger, Heider v. Michigan Sugar Company (1965), 375 Mich 490, and where, with this knowledge, no reasonable action is taken to alleviate the danger. Nielsen v. Henry H. Stevens, Inc. (1960), 359 Mich 130.
These tests are factual tests and the case should not have been resolved by a summary dismissal.
Reversed and remanded. Costs to appellant.
Lesinski, C. J., and McGregor, J., concurred.
Prosser, Torts (3rd ed, 1964), p 373. | [
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Holbrook, J.
This action involves an industrial life insurance policy applied for in June of 1966 and. issued without medical examination July 11, 1966, for $1,000 by defendant to plaintiff’s husband, Casey D. Ogilvie. Mr. Ogilvie passed away August 2, 1966. Upon defendant’s refusal to pay on the policy, plaintiff commenced suit in the common pleas court in the city of Detroit. The trial judge granted judgment to plaintiff and defendant appeals.
The facts are not in dispute. Casey D. Ogilvie had been an employee of Chrysler Motors Corporation ; while at work he became sick and was brought home. His last day at work was December 26, 1965. Before his sickness his weight was 170 pounds and at the time that he made his application for insurance he had lost approximately 35 pounds. During the period of his illness, he received disability checks from Chrysler. The testimony shows that the insured was suffering from cancer commencing late in December, 1965.
The attorneys for both parties stipulated in open court at the commencement of the trial to the effect that Mr. Ogilvie died on August 2, 1966, of a lung disease, and that he had a lung disease at the time the policy was issued.
The defendant asserted in its answer an affirmative defense that “defendant will rely upon and show that under the terms of its policy of insurance, the policy was to take effect on its date of issue, provided that the insured is then alive and in good health, but not otherwise. Defendant will rely upon and show that insured was not in good health on the 11th day of July, 1966 and that in fact, at such time was suffering from carcinomatosis of the lungs and that he had been treating with [sic] a doctor from March 15, 1966 for this condition among others.” Plaintiff in her answer to the affirmative defense admitted these allegations and asserted that defendant had known of insured’s health because the soliciting agent had upon several occasions prior to and on July 11, 1966, observed and had been advised as to the insured’s health.
The trial judge made a finding of fact that the soliciting agent for the defendant was not informed and did not know that Mr. Ogilvie was not in good health at the time the application for insurance was signed.
The policy as issued contained the following clause:
“This policy shall take effect on its date of issue, provided the insured is then alive and in good health, but not otherwise.”
It is the general rule that the foregoing good health provision in an industrial life insurance policy issued without a medical examination is a valid condition precedent to liability on the part of the insurer, and where it appears that the insured was not in sound health at the date of issue there can be no recovery. See 60 ALR2d, p 1442, § 10.
In the state of Georgia, this provision has been construed as referring to a change in health between the time of taking the application for insurance and the date of issuance of the policy where the policy is issued without medical examination. See 60 ALE 2d, p 1440, § 9. This rule has not been followed in any other jurisdiction.
In Minnesota, another rule applies by reason of an applicable statute. In Schmidt v. Prudential Ins. Co. of America (1933), 190 Minn 239 (251 NW 683), the industrial insurance policy contained a provision similar to the one in the instant case and was issued without a medical examination. The insured had been treated for “shortness of breath” which was caused by high blood pressure. It was held as a matter of law that the insured was not in fact in good health. The plaintiff was allowed to recover, however, because of a statute that provided in claims arising on a policy issued without a medical examination the statement as to age and physical condition contained in the application is valid and binding upon the company unless wilfully false and intentionally misleading. It was held that the company could not circumvent the statute by inserting a condition making the policy void unless the insured was in sound health at date of issue.
We have no similar statute in this jurisdiction. Absent such a statute, the provision is operative. This conclusion appears to be proper by reason of the decision in the case of Bendford v. National Life & Accident Insurance Company (1959), 356 Mich 52.
Mr. Ogilvie had not been in good health for a period of 6 months prior to the date of issue of the policy; in December, 1965, his employer’s doctor had ordered him taken home because he was sick, he had lost 35 pounds in weight during the 6 month interim, disability checks were paid to him during this period because of his illness, on occasion it was necessary for his wife to carry him about the house, and his illness prevented him from working.
The plaintiff knew all of these facts and in addition was informed that her husband was suffering from cancer of the lungs. Also, plaintiff admitted in her pleadings that Mr. Ogilvie had cancer at the date of the policy. As a matter of law, we determine that the insured was not in fact in good health at the date of issue of the policy. Bendford v. National Life & Accident Insurance Company, supra, p 62.
Our decision herein is confined to the particular facts present in this case. We are constrained to rule that plaintiff cannot recover.
Reversed.
Burns, P. J., and Peterson, J., concurred. | [
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Lesinski, C. J.
Defendant appeals his conviction and sentence on a charge of carrying a pistol concealed on his person without a license. The case was heard by the trial court sitting without a jury.
On the night of July 16, 1966, two officers of the Flint police department, assigned to cruiser duty, stopped the defendant for speeding within the city limits. One of the officers approached the automobile and asked defendant for his driver’s license. When, defendant failed to produce the license, the officer placed him under arrest and asked him to step out of the car. At trial the arresting officer gave the following testimony on the issue of concealment:
“Q. As he exited the automobile, what, if anything, occurred?
“A. At this time, I thought — I observed something which appeared to be the butt of a gun poking out of his pocket when he exited the automobile and I immediately had him raise his hands. And, at this time, I removed a gun from his pocket.”
The gun was identified as a .38 caliber revolver. The defendant did not have a license to carry a concealed pistol. Defense counsel did not cross-examine the arresting officer or offer any evidence.
Defendant’s principal contention is that the evidence was insufficient to prove him guilty beyond a reasonable doubt. He argues without citation of any authority that the concealed weapons statute was not violated because the arresting officer saw what appeared to be the butt of a gun protruding from his pocket.
We do not think that the word “concealed” as used in the statute means total concealment. The words of a .penal statute must be read in the light of the evil sought to be corrected, Hightower v. Detroit Edison Co. (1933), 262 Mich 1, and to effect the objects of the law. CL 1948, § 750.2 (Stat Ann 1962 Rev § 28.192).
“The purpose of all concealment statutes is clear. At the time they were enacted, the open carrying of weapons upon the person, was not prohibited. The purpose of the concealed weapons statutes was to prevent men in sudden quarrel or in the commis sion of crime from drawing concealed weapons and using them without prior notice to their victims that they were armed. The person assailed or attacked would behave one way if he knew his assailant was armed and perhaps another way if he could safely presume that he was unarmed.” People v. Raso (1958), 9 Misc 2d 739 (170 NYS2d 245, 251).
See, also, People v. Bailey (1967), 7 Mich App 157.
The evident statutory purpose is reflected in the general rule applied in other jurisdictions that absolute invisibility is not indispensable to concealment of a weapon on or about the person of a defendant, and that a weapon is concealed when it is not discernible by the ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life. 94 CJS, Weapons, § 8e, p 494; 56 Am Jur, Weapons and Firearms, § 10, pp 996-998; Annotation: 43 ALR2d 492, 510-15. See, also, Driggers v. State (1899), 123 Ala 46 (26 So 512); Mularkey v. State (1930), 201 Wis 429 (230 NW 76); People v. Eustice, et al. (1939), 371 Ill 159 (20 NE2d 83); State v. Rabatin (1953), 25 NJ Super 24 (95 A2d 431); Prince v. Commonwealth (Ky, 1955) (277 SW2d 470); Kennedy v. State (1960), 171 Neb 160 (105 NW2d 710); Shipley v. State (1966), 243 Md 262 (220 A2d 585); State v. Tate (Mo, 1967) (416 SW2d 103).
The case of People v. Morris (1967), 8 Mich App 688, supports the proposition that absolute invisibility is not required. This Court held in Morris that a straight razor carried in the pocket is concealed within the meaning of the concealed weapons statute, although the shape of the razor could be seen through the pocket by the arresting officer.
The issue of concealment depends upon the particular circumstances present in each ease and whether the weapon was concealed from ordinary observation is a question for the trier of fact to determine. Commonwealth v. Butler (1959), 189 Pa Super 399 (150 A2d 172); Mularkey v. State, supra; State v. Mangum (1924), 187 NC 477 (121 SE 765). The arresting officer’s testimony was competent evidence to support a finding by the trier of fact that the defendant carried a concealed weapon on his person.
Affirmed.
T. Gr. Kavanagh and Foley, JJ., concurred.
CL 1948, § 750.227 (Stat Ann 1962 Rev § 28.424), reads in pertinent part: “Any person who shall carry a pistol concealed on or about his person * * * without a license to so carry said pistol as provided by law shall be guilty of a felony.”
The information charged defendant with carrying the gun concealed in his right front trousers pocket. | [
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Fitzgerald, J.
Phenylketonuria (PKU) is a childhood disease which begins at birth and will result in progressively severe mental retardation due to an inability of the body to tolerate protein. The sooner a diagnosis of PKU is made, and treatments begun, the higher the intelligence quotient (IQ) of the child will be. If it is not diagnosed, the IQ will progressively decline. This action is brought, on behalf of a child who suffered permanent mental retardation, against 2 pediatricians for their alleged malpractice in failing timely to diagnose PKU in the child. The trial court granted defendants’ motion for a judgment notwithstanding the verdict, overturning a jury verdict for plaintiff in the amount of $80,000, and plaintiff appeals. We are not concerned in this appeal with the medical wisdom of the 2 pediatricians, nor in the timetable of years which passed before the disease of the plaintiff was discovered and treatment begun. Rather, plaintiff presents an alleged error of the trial court on an evidentiary matter wherein the court found expert witnesses for the plaintiff to be incompetent to testify as to certain matters.
1. The Expert Witnesses.
Dr. David Hsia is a world-renowned expert on phenylketonuria and he practices medicine in Chicago, Illinois. He was called by the plaintiff and testified that commercial medicines and special dietary programs were available for children suffering from PKU throughout the period of time when the plaintiff child remained untreated. There was also testimony to the effect that tests for PKU were easy to make and routinely made in the hospitals of the nation.
The trial court was concerned with the testimony of Dr. Richard Koch, another recognized expert on PKU, who practices medicine and does research in the city of Los Angeles, California. • His testimony concerned the dissemination of the knowledge of PKU throughout the nation, both to pediatricians and to hospitals, and the standard of care which should have been employed by Detroit physicians as it was in similar communities where large medical centers were located. It was his opinion that any certified pediatrician should have used the test for PKU during the time the plaintiff child was being examined by the defendants for his inability to perform mentally and physically as other normal children his age could perform.
Drs. Martmer, Wooley, and Adams were Detroit area doctors who were called by the defendants and generally testified that it was not the common prac-. tice for pediatricians in the Detroit metropolitan area to use the recognized tests for PKU during the time period in question, because the disease was so rare. Their testimony was to the effect that the defendants did not vary from the usual “standard of care” of pediatricians in the Detroit area. They did admit in various manners that most pediatricians knew of the disease and of the treatment then available for use.
In the written opinion of the trial court overturning the jury verdict, the court said that the testimony of the plaintiff’s witnesses who did not practice medicine in Michigan could not be considered by the jury as worthy of belief regarding the standards of actual private practice of physicians in the Detroit area during the time period in question. Plain•tiff believes that his witnesses could assume standards of physicians in the Detroit area would be comparable with any other metropolitan areas where large medical centers were engaged in .PKU research. ■
2. Preliminary Considerations.
Our first duty as an appellate court is to ask throughout our review of the decision of the trial court whether the court abused its discretion in adversely determining the competency of the expert witness on the basis of the testimony proffered. Such a determination is within the purview of the trial court, not the jury, and will not be disturbed on appeal unless clearly erroneous. See 8 ALR2d 772; People v. Hawthorne (1940), 293 Mich 15; Perri v. Tassie (1940), 293 Mich 464; Accetola v. Hood (1967), 7 Mich App 83. The plaintiff in a malpractice action must furnish evidence of medical standards for the locality in order to establish liability of a defendant for failure to provide the expected course of treatment. Perri v. Tassie, supra. The “standard of care” to be applied to the defendants’ treatments is not necessarily that which is known, or should be known by the physicians in the community. Rather it is only that treatment and care customarily practiced by the medical community which formulates the standard to be applied to the particular defendant. Zoterell v. Repp (1915), 187 Mich 319; Roberts v. Young (1963), 369 Mich 133 (99 ALR 2d 1330). To show such standards, where the ordinary layman would lack experience with medical procedures followed by the defendant, the plaintiff may be required to produce expert testimony. Lince v. Monson (1961), 363 Mich 135.
Therein lies the problem of the plaintiff in a malpractice case against a local physician. It becomes difficult, if not impossible, for the plaintiff to obtain the testimony of other local physicians who are loath to substitute their judgment for that of their colleagues, and are unwilling to indict the practices of their entire profession in the community. The Supreme Court of this State gently recognized this problem of the plaintiff in the case of Sampson v. Veenboer (1931), 252 Mich 660, 667, wherein they state:
“At times it may become necessary to secure the expert testimony of one who resides some distance from the home of the defendant accused of malpractice, for it may be difficult to obtain a witness to testify against one who bears the very high professional reputation of the defendant. If it would always be necessary to secure an expert from the vicinity of the home of a defendant who might be the only practitioner there, it would be impossible to secure such testimony at all. What credence should be given to the expert’s statements is another matter. That was the province of the jury.”
Here, plaintiff sought the testimony of nonresident expert witnesses. Such witnesses in a malpractice case might testify that the defendant did what was contrary to the standards of care of physicians in a “similar” community to the one in issue, if the expert is not familiar with the actual practice of the profession in that area. Sampson v. Veenboer, supra; Delahunt v. Finton (1928), 244 Mich 226, 230; Lince v. Monson, supra. If the testimony of the expert witnesses is not allowed by the trial court, and the plaintiff offers nothing further as to the comparative behavior of the defendant physician and his local colleagues, then the plaintiff has not met his burden and fails. Delahunt v. Finton, supra. Facts are taken in the light most favorable to the plaintiff on review of a trial court’s order granting defendant’s motion for judgment notwithstanding the verdict. Wamser v. N. J. Westra & Sons, Inc. (1967), 9 Mich App 89.
3. Decision op the Trial Court.
It was the opinion of the trial court that the expert witness was not competent or qualified to testify as to the actual practices of pediatricians in the Detroit area, so plaintiff was non-suited despite the jury decision in his favor. The basis for the decision was that Dr. Koch was required to make too many assumptions, which were contradicted by testimony of the Detroit area physicians, as to the standards in the Detroit area so that Detroit was shown not to be a “similar” community to Los Angeles despite Dr. Koch’s belief that the existence of medical centers engaged in PKU research in both cities made them “similar”.
The standards set by Los Angeles medical centers actively engaged in PKU research could not be applied to the Detroit area medical centers, according to the trial court,.where testimony showed that these centers were not known by the general practitioner in the Detroit area to have been engaged in PKU research at this time. The trial court found that the experts, although familiar with the practice and standards in a similar urban community, were not sufiiciently familiar with Detroit practices in light of the contradictory testimony. The requisite degree of familiarity with Detroit procedures was thus hot shown by the plaintiff’s witnesses, for the communities in question were not “similar”.
The trial court also took judicial notice of the rarity of PKU in the time period involved and the gradual development of a test for PKU, which was not then widely known. This is a harder case and is unlike the situation in most malpractice actions, such as Sampson, supra, where the practice or treatment in question is for a common ailment, often treated and easily compared with the prevailing professional standard of care by a nonresident expert witness.
4. Opinion op This Court.
The disturbing factor in this case, which may demand a thorough review of this whole procedure, is that both defendants, who are recognized specialists in the field of pediatrics, had knowledge of PKU, its symptoms, and the tests which are given to detect the existence of the disease throughout the period of time that plaintiff visited their offices. We appreciate the conclusion of the Ohio court of appeals in Morgan v. Sheppard (Ohio App 1963), 188 NE2d 808, that:
“Usual and customary methods generally employed by physicians and surgeons in the diagnosis, care and treatment of a patient, no matter how long-such methods have continued to he employed, cannot avail to prove and establish as safe in law methods and conduct which are in fact negligent.
“Evidence of conformity to such usual and customary methods, however, may, and should, be considered by the jury, along with all of the other circumstances in the case, in determining whether or not the physician or surgeon exercised the degree of care required of him under the law.”
However, the present case is not a situation where the standard of care of the defendant physician falls below the standard of reasonably prudent care. Therefore, we feel constrained to urge some reconsideration of this issue at a more appropriate time. This case is not the proper vehicle for further discussion of the merits of the rigid “standard of care” test and the problems faced by a wronged plaintiff in breaking the “conspiracy of silence” in a case of alleged negligent behavior by a defendant physician.
We refer again to our decision in Accetola v. Hood, supra, in holding that there was no abuse of discretion by the trial court, requiring correction by this Court, in evaluating the competency of the expert witness under the prevailing law controlling such testimony. Competent cross-examination and the use of Detroit area physicians to counter the assumptions of Dr. Koch effectively showed that he was not familiar with the prevailing practice of pediatrics in the Detroit area, said area shown not to be “similar” to Los Angeles. One may not be pleased with the thoroughness of the PKU diagnostic procedures of Detroit area pediatricians during the time period in question, but it is the law of this State that a defendant physician is not to be held to a greater duty of practice than that customarily ex pected of Ms fellow physicians in the community. 123456 Roberts v. Young, supra.
Affirmed. No costs.
J. H. Gillis, P. J., and McGregor, J., concurred.
GOR 1963, 515.2.
If the profEergd expert denies knowledge of the standards of a specialized field of medical practice he is disqualified from testifying as an expert. Frazier v. Hurd (1967), 6 Mich App 317, affirmed, Frazier v. Hurd (1968), 380 Mich 291.
The so-called “conspiracy of silence”. See note, 45 Minn L Rev 1019 (1961). Ror further critical comment on the subject see Prosser, Torts (3d ed), § 32 (pp 166-168).
Other States have reviewed the problem toward providing the plaintiff with assistance in breaking or avoiding the “conspiracy of silence”. Nevada and Massachusetts employ statutes which permit the plaintiff to offer recognized medical treatises in substitution for the testimony of expert nonresident witnesses on the professional standard of care. Nev 1959 Rev Stat § 51.040; Mass Ann Laws (1954 Oum Supp), eh 233 § 790. Wisconsin permits an out-of-state doctor to testify as to the care, treatment, examination, or condition of persons he has treated in the course of his practice. Wis Stat §147.14(2) (a) (1959).
Washington Hospital Center v. Butler (1967), 127 App DC 379 (384 F2d 331).
The Louisiana rule rejecting the defense of customary practice is derived from the ease of Favalora v. Aetna Casualty Company (La App 1962), 144 So 2d 544, which reads: “To relieve a member of the medical profession from liability for injury to a patient on the ground that he followed a degree or standard of care practiced by others in the same locality is, in our opinion, unthinkable when the degree or standard of care in question is shown to constitute negligence because it fails to meet the test of reasonable care and diligence required of the medical profession.” While this may be a preferable rule in some circumstances, we certainly do not find that the trial court abused his discretion by not applying the law of another State, regardless of its merits. See, also, Hundley v. Martinez (1967), 151 W Va 977 (158 SE2d 159), for West Virginia’s modification of the “locality rule”. | [
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Morse, J.
The complainant, who is the-widow of Byron D. Ball, filed her bill of complaint against the defendants, alleging, in substance, as her grievance, that while her husband was on his death-bed, January 8,. 1876,. and supposed, to- be dying at the time, the defendant Hollister, who had been on the most intimate business and friendly terms with her husband, came to the house with a lawyer, a partner of her husband, and procured from him a note for $4,000; that they called her into the room where her husband lay, who in great excitement said to her, “ Mattie, sign this note we are making,” which she 'did, not comprehending what she was about, — only thinking of her dying husband. The note was as follows:
“ $4,000. Grand Rapids, Mioh., January 8, 1876.
“Four months afterdate we jointly and severally promise to pay to the order of Harvey J. Hollister four thousand dollars, at the First National Hank of Grand Rapids, value received, with interest at ten per cent, per annum after maturity. Byron D. Ball.
“ Martha M. Ball.”
Complainant avers that she did not then know, and does not now know, what the consideration of said note was, but that it was not given for any debt or obligation of her own.
Upon the death of her husband, a few weeks thereafter, she and said Hollister became and acted as joint executors of his estate; that having the utmost faith and confidence in said Hollister, she trusted everything to him, and knew but little as to what was done in regard to settling Ball’s estate; that said Byron D. Ball left four children. There was an insurance policy on his life for her benefit for the sum of $4,800, and another for the benefit of the children amounting to $2,500, the proceeds of both being paid to her about the middle of May, 1876. Hollister informed her that she would be held personally liable for this note, and that it was her debt; that Hollister had the management of these insurance moneys, which she deposited in said bank; and by his order, May 20 or 22 of that year, she paid said note out of her insurance money, being then $4,010.83 in principal and interest; that she so paid it relying upon the superior business knowledge of Hollister, and believing she was liable thereon. She does not know which of said defendants got this money, but thinks the most of it went to Hoi lister. At the time of payment she said to him, as she had said before: “ If I could have my way, it should be used for the payment of that mortgage,” referring to a mortgage of $13,000 upon premises of her husband’s estate, known as “ Ball’s Block,” in the city of Grand Nap ids.
There was a large amount of debts against her husband’s estate, amounting in all to $9,193.85, all of which have been duly paid and settled, save one to herself, which will be noted hereafter. The estate was inventoried at $54,100, of which only $800 was personal. The claim proved in her name against the estate was for the amount paid on this note, principally, being $4,285.54, which was presented and allowed without her knowledge. This claim so allowed has never been paid to her, and there is no money or personal property out of which to make it; that said Hollister used both her and the children’s insurance moneys to pay said note and other debts of the estate ; and all that she has ever had out of these funds so deposited in said bank, and after-wards managed and controlled by said Hollister, is the sum of $800. Said Hollister neglected to make payment of an}' of the debts against the estate out of the real estate. In 1883 she took hold of the matter herself, and, by selling the only lot outside of the block, succeeded in paying said debts, save her own, by compromising and discounting most of them at fifty cents on the dollar. The only property now belonging to the estate is this Ball’s block, which is mortgaged for over $20,000. The property was appraised by the supervisor for taxation last spring at $29,000. The real cash value is not stated.
She further avers that Hollister knew she was not legally bound upon said note, and was not obliged to use said insurance moneys to pay the same, and wrongfully and deceitfully neglected and refused to inform her of her rights, which he was in duty bound to do: that he, and said bank of which he was cashier, wrongfully, unlawfully, and fraudulently secured from her the payment of said note, and after the payment further kept her in ignorance of her rights by fraudulently neglecting to inform her that she was not liable and holden upon said note.
She further alleges that not until the summer of 1883, when she employed counsel and began acting under other advice than said Hollister’s, did she first fully learn, comprehend, and know that she could not have been legally required to pay said note, because the obligation therein set forth was not her debt, and that she had been wrongfully misled and deceived by said Hollister.
She shows that she has requested said Hol%ter and said bank to account for and repay the said moneys so had and detained by him or it, but said defendants utterly refuse and neglect so to do.
She prays that said defendants may answer and give the full history, basis, and origin of said note, and its payment, and come to a fair accounting with her in that regard, and be required to make restitution of such moneys to her; and that she may have such other and further relief in the premises as the nature of her case shall require.
To this bill the defendant corporation demurred, and Hollister filed a plea, setting up in the same that the said complainant, on the fifteenth day of July, 1884, exhibited a bill of complaint against him in the same court, setting forth the same identical cause of action as in the present proceeding against him, but not joining the corporation defendant therein; that he appeared and answered in said cause, in which answer he fully gave the basis and origin of said note, and denied all fraudulent action or doing as charged in said bill; that said complainant filed her replication to said answer, but afterwards, at her own request, the same was withdrawn from the files of the cause; that said cause came on to be heard before said court on March 3 and 4, 1885, and was heard and fully argued on the merits; that March 8, 1885, the court pronounced a decree in favor of said defendant Hollister.
It seems that up to this time the complainant in the present suit was acting in her own proper person, without any solicitor. After the filing of said plea she asked and was granted leave to amend her bill of complaint, the court also making an order that she “ appear thereafter by counsel through some regularly admitted attorney of this bar.”
On the twenty-second day of July, 1885, she filed, through her solicitors, Tatern & Jamison, an amended bill of complaint, such amended bill differing only from the first by inserting the following paragraph, speaking of said Hollister :
■“ That while he himself was well informed of her rights in this behalf, yet he wrongfully and deceitfully neglected and refused to inform her of her rights in this regard, as in duty bound to do : that thereby, and in manner and on occasions aforesaid, while being and acting as her trusted co-executor, and at the same time being and acting as the cashier of the bank, the said defendant Hollister, in collusion with said bank, as complainant believes, wrongfully, unlawfully, and fraudulently secured from her the execution and payment of said note, and the keeping of her said moneys thereafter; that he thus secured such payment, if not in his own individual interest, in the interest of the said bank, a corporation wherein he was a large stockholder, as well as director and officer.”
—and in amending the prayer for relief so that said Hollister and said bank might be required to give a full account of the payment of said note, and the manner of its payment, and come to a fair and just account of their doings in that regard ; and that said bank might be required to make repayment and restitution to her, with interest, of all sums of money paid by her to it upon said note; and that said Hollister might be constituted and held as surety for such repayment and restitution, and for the payment of such other damages to her as should be agreeable to equity: to which amended bill both of the defendants filed a general demurrer for want of equity. The demurrer, upon argument, was overruled. The defendants now appeal to this Court.
It is claimed that by amending her bill the complainant .admitted the validity of the plea filed by defendant Hollister, which is true ; but the amended bill standing in the place of a new bill, the plea is no answer to it. The plea was superseded by the new or amended bill, to which the defendants had the same time to plead, demur, or answer. Instead of putting in a plea, defendants chose to demur, and the case mow stands, therefore, as if no plea had ever been filed: Peck v. Burgess, Walk. Ch. 485.
It is also urged that she makes no ease for equitable relief by her bill as amended, and the demurrer should have been •sustained because (1) her remedy at law is complete and ample, and (2) the bill upon its face shows that the claim against defendants is barred by the statute of limitations.
It appears very clearly from this bill that the note in question was one that she was not legally liable upon: that she did not know this fact until 1883; that Hollister did know it, and neglected to inform her of it; that he was her co-executor of her husband’s estate ; and that she had such implicit faith and confidence in him as to trust nearly all the business to him, and to accept unhesitatingly his guidance and control in all the financial matters pertaining to her husband’s business and her own, until some time in the summer •of 1883.
It seems to me that the whole controversy here hangs upon the question whether the relation that the defendant Hollister in this transaction bore to the complainant was of such a fiduciary, or gwm'-fiduciary, character that he was bound by that relation to inform complainant of her rights in the premises. If it was his duty to inform her that she was not personally liable upon this note and he neglected to do so, especially for his own benefit or that of his bank, he committed a fraud upon her which entitles her to relief.
And it makes no difference that she may have an adequate remedy at law. Equity has concurrent jurisdiction in eases of fraud, and she can enforce her rights in this suit: Wheeler v. Clinton Canal Bank, Har. Ch. 456 ; Wright v. Hake, 38 Mich. 532; Wyckoff v. Victor S. M. Co., 43 Mich. 309; Adams Eq. § 176; Will. Eq. Jur. 145.
And especially does equity take cognizance of a case where one holding confidential and fiduciary relations to another, and thereby morally and legally bound to communicate facts, conceals them for his own benefit and profit, and to the disadvantage of the other : Adams Eq. (4th Amer. Ed.) mar. paging, 176, and cases cited; Miller v. Welles, 23 Conn. 21.
The statute of limitations does not apply in this State-against a cause of action fraudulently concealed, before the fraud is discovered. The complainant filed her bill within-two years from her discovery of her rights as to this note and the deceit practiced upon her in reference thereto. She has thereby, if the fraud has been committed and concealed as claimed, saved her action within the statute : How. Stat. §§ 8724, 8726.
But it is said that she seeks relief against her want of knowledge of the law; that the fraud, if any, consisted, not in concealing from her the existence of any fact, but in not informing her of the law, which she was presumed to know as well as the defendants; and that the rules which apply to a concealment of matters of fact do not apply to matters of law.
It is true, as stated by Justice Campbell in Lapp v. Lapp, 43 Mich. 288, that mistakes of law cannot usually be aground of relief, when standing alone. The current of authority runs in that direction most strongly, although in some states even such relief has been granted.
But it is also true that there are cases of fraudulent misrepresentations or concealments of matters of law by those holding confidential relations to the person wronged thereby which equity will relieve against. Where one relies upon another, and has a right to so rely, and the person relied upon omits to state a most material legal consideration within his knowledge, of which the other is ignorant, affecting his rights, and the person thus ignorant acts under this misplaced confidence and is misled by it, a court of equity will afford relief, especially if such action is to the advantage of the person whose advice is taken, even though no fraud was intended : Story Eq. Jur. (10th Ed.) §§ 133, 138e, 188e, 138f; Pusey v. Desbouvrie, 3 P. Wms. 315, 321; Will. Eq. Jur. 64; Wheeler v. Smith, 9 How. 55.
If it appears, under such circumstances, that the knowledge was concealed, or any misrepresentation made, with an intent to keep the party in ignorance of his rights under the law, for the express purpose of the other’s benefit, such action is fraudulent, and there can be no doubt of the right of equity to interfere and remedy the wrong : Will. Eq. Jur. 65; Story Eq. Jur. §§ 307, 323.
.It is further insisted that the neglect of the defendant Hollister to acquaint the complainant of the law, although he was acting in a fiduciary capacity, is no fraud upon her, and that if it were, the statute saving cases of fraudulent concealment from the operation of the statute of limitations does not apply when the concealment is as to a right in law, but to a concealment of fact.
The statute, however, by its terms, refers to the fraudulent concealment of the cause of action, which would be applicable to a concealment of law as well as of fact.
The question, then, is, did the defendant Hollister occupy such a relation towards the complainant as made it his legal duty to tell her that the note was worthless and invalid as-against her ?
She was a woman presumably but little versed, if any, in the law, and ignorant of the manner and methods of business-life, as most man-ied women are.
“ It would not be very strange if she should be induced by an apparently friendly adviser in whom she had confidence, both as a friend and a man of business, to follow his advice implicitly without going elsewhere for counsel:" Barnes v. Brown, 32 Mich. 153.
The defendant was a leading business man, standing high in the community, enjoying her trust and confidence both as a friend of herself and husband, and as a man and a citizen. He knew the law of which she was ignorant. The note, and her signature thereto, was obtained by him at the bedside of her dying husband, and under great excitement of herself and husband. Hollister was trusted by the husband also, and made co-executor with his wife. It is quite probable that the husband and wife both supposed that he would faithfully and honestly administer the trust, and by his superior knowledge and business ability be of great service both to the estatte and the widow and children of the deceased, who were interested in such estate. He accepted such trust. The complainant, from the beginning, leaned upon and confided in him — so much so that the whole business management of the estate was intrusted to him. She took her money and her children’s, derived from the insurance upon the life of her husband, which he had thus set apart for them, and deposited it in the bank, and allowed Hollister to control and direct it as he saw fit.
Instead of collecting this note, which was either for his benefit or that of the bank of which he was cashier, out of the estate of the husband, he made it the debt of the wife; and by telling her that it was her debt,.when he knew that it was not her debt and that it could not be legally collected •of hez’, secured and used her funds to pay it; and then put a •claizn in for the amount of the same against the estate in her ■nazne, and without her knowledge, when he ought to have proceeded against the estate in his own narzze or that of the bank, and left to her the enjoyznent" and disposal of her money for her own benefit.
Can any one doubt what his moral duty was ? Most certainly, as an honest man, he was in duty bound to acquaint her with her rights in the preznises, or at least to say to her that she better take other advice as to what she should •do as to the payment of this note. He became and was her •adviser; he knew that she trusted in him, that if she followed her own inclination she would not use her or her children’s money to pay this note ; but, knowing the law hiznself, and knowing that she was ignorant of it, he saj^s to hez’, “ It is your debt,” and thereby, taking advantage of her ignorance •and her confidence, obtains money thatin equity and good conscience he had no right to. It was a moz-al and, I think, a legal fraud upon her, which equity should and will redress.
“As a matter of conscience,” says Pothier, “ any deviation frozn the znost exact and scrupulous sincerity is repugnant to the good faith that ought to pz’evail in all transactions.”
The golden rule, which commands us to love our neighbor as ourselves, will not perznit us to conceal from him anything which we should be unwilling to have had concealed from ouréelves under similar circumstances. This is the moz’al law. The coznznon law does not go to this length, — taking account of human imperfections; but it will take notice, at least, of a willful misrepresentation, made to obtain undue advantage over one innocent and ignorant of the law and her rights under it, who, by her misplaced confidence in the superior knowledge of another holding a confidential and trusted relation towards her, has been decei ved and wronged.
A fraud arising from the suppression of the truth is as prejudicial as that which springs from the assertion of a falsehood, and courts have not hesitated to sustain recoveries where the truth has been suppressed with the intent to defraud : Allen v. Addington, 7 Wend. 9 ; Addington v. Allen, 11 Wend. 374; Fleming v. Slocum, 18 Johns. 403.
But here was something more than silence when he should have spoken, — something more than the mere suppression of the truth. When Hollister said to complainant, “ This is your debt,” it was a clear assertion upon his part that she was legally liable upon it; it had the force and effect of a misrepresentation, and it was one. It said to her: “ I know the law; under it you are personally liable, and I shall hold you for it.” It was the means of defrauding her out of over $4,000, and I can see no other conclusion, from all the circumstances, but that he intended to defraud her, and relied upon her ignorance of the law, combined with her faith and confidence in him, to accomplish his object.
If he had been her solicitor or attorney, her guardian, her copartner, her physician, her.father or brother, there would have been no doubt but his relation to her would have been such that his controlling influence over her will, conduct, and interests would have taken away from this payment the character of a voluntary one, and stamped it as obtained by such fraud or undue influence as to entitle her to the relief asked in her bill (Will. Eq. Jur. 170, 194; Story Eq. Jur. §§ 218, 307, 345; Beam v. Macomber, 33 Mich. 132); and it seems to me that the relationship shown between the parties — their being co-executors, and she, the weaker, confiding in, and being controlled by him as completely and unreservedly as if he had been her attorney, father, or brother —brings this case within the authorities, and under the beneficent rule established by them: Pom. Eq. Jur. § 956.
And the legal presumption that all must be presumed to know the law, in the face of this fraud, cannot preclude the complainant from maintaining her suit to right it, or to have, at least, a fair and just accounting and history of defendants’ actions and doings as to her funds, when the fact does appear, in spite of the legal presumption, that she was ignorant of the law, of which ignorance undue advantage has been taken.
Mistakes of law will sometimes be relieved against; and that eminent jurist, Story, says :
“We think it creditable to the courts and to the profession that, with all the zeal which has been sometimes manifested to make the rule excluding relief in courts of equity, in every case of pure mistake of law, absolute and inflexible, the sense of justice has steadily withstood the refinements of logic on the one hand, and the blind love of formal symmetry upon the other.”
Yet this is a case having, with the mere mistake of law, the further elements of such misrepresentation and fraud, and abuse of misplaced confidence, as to enlist at once, in aid of the injured person, the justifiable interference and operation of equitable jurisdiction.
This decision is based upon the bill of complaint, which, upon demurrer, must be taken as true.
It may be that upon answer, or upon hearing upon proofs, the case may present another color; but we consider the complainant, as the case stands here, entitled to some answer or explanation as to the conduct of defendants.
The order of the court below overruling the demurrer of defendants is affirmed, with costs, with leave to answer within twenty days after the remanding of the cause to the superior court of Grand Rapids, in chancery.
Campbell, C. J. and Sherwood, J. concurred. Champlin, J. did not sit in this case. | [
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Champlin, J.
This is an action of replevin, brought by plaintiff to recover a quantity of Norway and white pine saw-logs, cut by defendant Oliver during the winter of 1882-83, from lots 1, 2, and 3, in township 29 N.,t of range 8 E. The plaintiff’s claim to the timber, and his right to recover in this action, was based upon his alleged title to lots 1, 2^ and 3 ; and, to make out this title, he introduced in evidence the following chain of conveyances:
1. A patent from the State of Michigan to David D. Oliver, dated December 18, 1866, and recorded January 31, 1867, in Liber O of Deeds, on page 231, of Alpena county records, for said lots 1, 2, and 3.
2. The record of an execution levy against David D. Oliver, one of the defendants, dated August 21, 1881, and recorded on pages 31, 32, and 33 of Liber Q of Levies, Alpena county records, conveying said lots 1, 2, and 3.
3. The record of a sheriff’s certificate of sale of said lots 1, 2, and 3 to Thomas White, dated May 20, 1882, and recorded the same day in Liber 1 of Sheriff’s Certificates, on page 70, Alpena county records.
4. The record of a sheriff’s deed of said lots 1, 2, and 3 to said Thomas White, dated July 16, 1883, and recorded July 17, 1883, in Liber 1 of Sheriff’s Deeds, on page 13, Alpena county records, purporting to be based on said previous levy and sale on execution.
5. The record of a quitclaim deed of said lots 1, 2, and 3, from Thomas White to plaintiff, dated July 18, 1883, and recorded on the same day in Liber 11 of Deeds, on page 114, Alpena county records.
The plaintiff relied upon his title as thus shown, until the defendants put in evidence the following conveyances:
1. The record of a warranty deed from said David D. Oliver and wife to George J. Kobinson, dated November 15, 1867, and recorded November 22,1867, in Liber D of Deeds, o,n page 119, Alpena county records, conveying an undivided one-fourth interest in said lots 1, 2, and 3. This was an ordinary form warranty deed.
2. The record of a warranty deed from said David D. Oliver and wife to Henry S. Cunningham, dated'September 3, 1868, and recorded September 8, 1868, in Liber E of Deeds, on page 95, Alpena county records, conveying an undivided three-fourths interest in said lots 1, 2, and 3. This was an ordinary form warranty deed.
Plaintiff then introduced in evidence, against defendants’ objections, the record of a decree of the circuit court of the United States for the Eastern district of Michigan, made on the twenty-first day of September, A. D. 1882, and recorded on November 3, 1882, in Liber 7 of Deeds, on page 471, Alpena county records. This decree provides that David D. Oliver shall be entitled to a good and sufficient deed from defendants in that suit for the undivided three-fourths interest of said lots 1, 2, and 3, being the lands involved in this suit, within 30 days from date of decree; and if not conveyed within that time, then the record of the decree should operate as such conveyance.
There was no dispute as to the value of the timber, both sides conceding it to be two dollars per 1,000 feet for white pine, and one dollar per 1,000 feet for Norway, and the only disputed question of fact, viz., the quantity of timber cut by defendant Oliver from said lands, was fixed by tbe jury, by the consent of the parties.
■ The counsel for the defendants requested the court to direct a verdict for defendants for the following reasons:
1. Because defendant Oliver had no leviable interest in said land on August 21, 1881, when plaintiff’s levy was made.
2. Because, even if Oliver had an interest in the lands on the twenty-first day of August, 1881, which was subject to levy, the-plaintiff could not have sold said lands on an execution sale without having such interest first determined and fixed by proper proceedings taken for that purpose in a court of chancery within one year thereafter.
3. Because plaintiff acquired at most, by virtue of the decree of the United States court, but an undivided three-fourths interest in the lands from which the logs were cut.
The record shows that the property mentioned in the writ was not taken by the officer, and that the plaintiff pi’oceeded in the action to recover the value thereof. The question of the value was submitted to the jury, and they found such value to be the sum of $670, and the plaintiff asked for a personal judgment in his favor for three-fourths thereof. It was proven upon the trial that the defendant Oliver cut the logs upon the lands in question, and sold them to defendant the Prentiss Lumber Company. Upon these facts the circuit judge directed a verdict for defendant, and judgment was entered accordingly.
The property not having been seized upon the writ, the suit is essentially a personal action to recover the value, and is governed by the same principles as it would be were it an action of trover for the conversion of the property. Replevin will lie by a tenant in common who is entitled to the possession of an undivided interest in personal property against a wrong-doer who is a stranger to the title. In this case neither of the defendants, under plaintiff’s theory or under the proofs, are tenants in common with plaintiff.
The first and second reasons may be considered together. It appears that at the time the plaintiff made his levy upon the land from which the logs were taken the defendants had no title whatever therein. There was therefore nothing upon which the lien of the levy could attach. There is no claim and no proof that the defendant Oliver had made a fraudulent conveyance of the lands to Robinson and Cunningham for any purpose, nor does it appear upon what ground a conveyance of an undivided three-fourths was decreed to be conveyed by Cunningham to Oliver.,
Fraud will not be presumed, and it must be inferred that the conveyances by Oliver to Robinson and Cunningham were made bona fide, and conveyed an absolute fee in the lands, and left nothing in Oliver which could be the subject of a levy.'. If Oliver afterwards became the owner of the land levied upon, such fact would not inure to the benefit of plaintiff so as to make his levy good by relation. Plaintiff took nothing by his levy and sale. Such would be the law irrespective of any statute upon the subject. But the statute is clear. It reads :
“And when any sale, by virtue of any execution, shall' become absolute, as hereinafter provided, the purchaser at such sale shall acquire all the rights and interests that the •debtor had in and to the lands so sold, at the time of the levy by virtue of the execution.”
After-acquired title or interests do not pass by virtue of the sale and deed to the purchaser. This being so, the plaintiff failed to show any title to the logs sought to be replevied,, or any right to the possession thereof. It follows that the judgment must be affirmed, with costs of both courts.
The other Justices concurred.
Among the defendants were George J. Robinson and Henry S. Cunningham, but the plaintiff in this suit was not a party.
In the case of Myrtle'Wattles v. John E. Dubois, decided October 20, 1887, plaintiff leased a farm to defendant, and was to receive as rent one-half of all crops raised thereon, delivered in the city of Kalamazoo. Defendant sowed 60 acres of wheat on the land, and plaintiff harvested 24 acres of the grain in lieu of a like acreage which defendant had agreed to sow on oilier land for plaintiff to take place of an equal number of acres harvested by defendant the year before belonging to plaintiff.
After such harvesting defendant notified plaintiff that he should not deliver any portion of the remainder of the wheat when threshed, and denied the right of the plaintiff to any interest therein; and thereupon plaintiff brought replevin for his half of the wheat. On the arrival of the sheriff with the writ, about 75 bushels had been threshed, and the officer divided the grain, as threshed, taking one-half of the number of bushels on his writ.
Held, that the claim of defendant that the action would not lie was untenable; that by denying plaintiff’s right to the possession of 'any of the grain, and repudiating the contract under which the tenancy between the parties was created, he waived all right to the possession of the wheat for the purpose of delivering plaintiff’s contract share, who had the right to the immediate possession of his half.
Held, further, that the fact that the wheat was not threshed at time the writ was issued, and so incapable of measurement in the bushel, ought not to defeat the action; that there can be no doubt of plaintiff’s right to have peaceably entered, taken possession of, and threshed the wheat, and made the division called for by the contract, defendant refusing so to do and denying all right on the part of plaintiff to any share in the unthreshed grain.
Held, further, that wheat in the head after it is harvested is as much wheat as it is after it is separated from the straw and winnowed, although an exact division is more readily and easily ascertained after such separation than before.
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Campbell, C. J.
This ease, which was before .us and decided at the January term, 1885 (55 Midi. 552), now comes up again after a new trial. Several assignments of error appear on the record, but counsel for defendant, waiving the rest, desire only a consideration of such points as relate to the legal sufficiency of the bridge which broke down under plaintiff’s machine, and the notice of its condition.
The record now differs very considerably from the former one in filling up some gaps, and in fixing the matters then left in doubt as to the surroundings more definitely in favor of plaintiff. The effect of these variations was, no doubt, fully argued to the jury, who have again found for plaintiff. We have nothing to do with their conclusions of fact, and can only refer to the law questions submitted.
It is sufficient, then, to say that on the second of October. 1882, plaintiff, who had been threshing with a steam threshing-machine (which had a propelling engine and water tank •connected), in a field adjacent to the highway, had occasion to move the machine across a small gully or runway in the field, and, not finding a practicable crossing, came out into the road, which he had a right to do, and undertook to go across •a bridge over the same water-bed, and the bridge broke down.. His leg caught in the machinery, and was injured so as to need amputation. The bridge was low, not being more than two and a half or three feet from the bed of the stream. The tank, according to some of the testimony, although there was some to the contrary; did not rest upon the bi’idge, and the weight which broke it down was in that case that of the machine and engine. The testimony on the present trial indicated, what did not appear as clearly before, that the wheels were in the proper track, and the entry upon the bridge not made by a sudden impulse. The testimony indicated that the stringers of the bridge had become very i’otten on their bearings, and broke down for that reason.
Upon the argument before us, complaint was made that the township was made liable upon a theory that it was bound to build bridges capable of bearing heavier weights than were fairly to be expected to cross them; that this bridge having been built before the present law was passed requiring townships to keep bridges in repair, no complaint could now be made of its insufficiency for further burdens, and that the question was not fairly presented to the jury.
We held in Fulton Iron Works v. Kimball, 52 Mich. 146, that the law of 1879 did not require townships- having bridges to change their plan or capacity, or to build bridges for unusual loads. But in the present case there was no dispute in the testimony that the bridge in question was built on a plan adapted tpjallow loads of the weight in question to cross safely, and that they had crossed repeatedly. The stringers were large and apparently substantial. The court did follow substantially the rules which we have laid down, but we do not think there is any doubt that the township, if keeping its old bridge, was bound to keep it in such repair as was required by a bridge of that kind. The difficulty here was not in the plan and dimensions of the bridge, or of its parts. It was because the timbers had not been kept in good condition.
The only remaining question, therefore, is as to notice of the deficiency. Upon this question, also, the complaint is not based so much on the failure to lay down correct legal principles as to their inapplicability to existing facts.
In this respect, also, the testimony appears to be a good deal stronger than before.
There is some conflict concerning the time within which timbers of the kind used will decay, and some apparent controversy as to what timbers were actually used. That they rotted in fact is not disputed. It appears affirmatively that in June, 1882, some three or four months before this accident, the overseer, Cornelius Bathbun, accompanied by Thomas Beattie and John Connor, made some repairs to the bridge. Some of the planks were removed and replaced, and the north stringer being examined, was thought somewhat defective. It was not removed, but a smaller beech stringer was put in beside it. No examination was made of the rest of the stringers, or of the ends of any of them. The witness Beattie, who upon the former trial fixed the time of a certain conversation about the importance of a new bridge at a later period, said on this trial that it was referred to while these repairs were going on.
We think that it might be argued to the jury upon these facts whether the occasion of making repairs, and the discovery of defects, did not require the overseer to make a more careful examination of the whole bridge. It is evident that if the bearings of the stringers had been examined, their condition would have required them to be removed or repaired ; and it was a legitimate argument that the discovery of rot in one stringer, away from the ends, might suggest its existence at that part of the timber that according to some witnesses was more exposed to decay. Had no occasion for strengthening any part of the bridge been discovered, the case might be different; but when repairs are going on, caused by suspicious appearances in one part of the timber, the propriety of a fuller examination would naturally, occur to a prudent man' having the responsibility of keeping it in order. The case was not one where no suspicions had arisen. It was one where the bridge was known to need attention, from wear or from decay; and we do not discover in the instructions given anything to complain of.
We discover no error in those matters on which reliance was had for reversal.
Plaintiff, however, by his counsel, very strenuously insisted on damages for a vexatious and groundless appeal. We do not think the appeal can be so regarded. There was much in the testimony open to criticism, and the defense does not appear to have been without foundation.
The judgment is affirmed.
Champlin and Sherwood, JJ., concurred. Morse, J., did not sit.
Act 244 Session Laws of 1879; How. Stat., Secs. 1442 et al. | [
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] |
Campbell, C. J.
Plaintiff sued to recover back the taxes, •which he paid under protest, which were levied on his tug, •enrolled and licensed under the acts of Congress, and used at the time in the navigable waters of this State. The facts found by the court below show that plaintiff is not, and was not, a resident of Michigan, but of Dakota, and that he paid taxes there on this same property.
The decisions of the United States supreme court have uniformly held that a vessel enrolled and licensed or registered under the United States navigation laws does not, by engaging in business within a state, become subject to its taxing power, if the owner is a non-resident: Hays v. Steam ship Co., 17 How. 596 ; St. Louis v. Ferry Co., 11 Wall. 423 ; Morgan v. Parham, 16 Wall. 471.
This doctrine having been settled by the court of last resort, there would be no propriety in discussing it. This-case comes directly within the decisions, and the tax was void.
Plaintiff is entitled to judgment for $33.89.
The judgment below must be reversed, with costs of all the courts, and judgment rendered here accordingly.
The other Justices concurred. | [
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Morse, J.
The plaintiffs brought suit in the Alpena circuit against the defendants, in assumpsit, declaring upon a special count, and also upon the common counts.
Defendants pleaded the general issue, and gave notice of set-off, which set-off, however, was abandoned upon the trial, being the subject-matter of another suit between the parties.
The verdict and judgment were for defendants, from which result the plaintiffs bring error.
The controversy between the parties grows out of the driving or running of logs in the West branch of Hubbard lake, in the summer of 1881. ' The West branch is formed by the union of Comstock and Brown creeks, some three or four miles from the lake. The plaintiffs had a large amount of logs in these two creeks, which they were running to the lake. A short distance below the merging of these creeks into the West branch, a stream, known as “ Butterfield creek,” runs into the main stream.
The defendants had a large number of logs in this creek, which they were also running into the lake. When the first drive of plaintiffs went down, some of defendants’ logs floated or were run out into the branch and mixed with plaintiffs’ logs, but for the driving of these no charge was made. After the first drive of plaintiffs passed the mouth of Butterfield creek, the defendants threw a boom across the West branch, above the Butterfield creek, so as to gain, as they claimed, a u clear river ” in which to run their logs to the lake.
It was claimed by plaintiffs that defendants ran a large amount of logs out of this creek into the main river, and left them, so that when the second drive of plaintiffs came down, after the removal of the boom, they were obliged to run defendants’ logs with their own to the lake, and that such work was worth twenty cents per thousand feet. The plaintiffs claimed an express contract on the part of defendants to pay for the running of these logs.
The testimony in relation to this alleged contract was confined to the evidence of William B. Comstock on the part of the plaintiffs, and George A. Butterfield on behalf of the defendants. About the time of the starting of plaintiffs’ second drive, Comstock and Butterfield had a conversation in the city of Alpena. Comstock claims that he told Butterfield that he must get his logs out of the way, and Butter-field said “ if his logs were in the way, and plaintiffs did any work upon them, defendants would pay them for it.”
Butterfield testifies that in this conversation Comstock complained that plaintiffs’ men were doing all the driving ; that they were driving defendants’ logs and should expect pay for it, at the regular rate, from the mouth of Hubbard lake down; that he told Comstock he “ guessed we are doing our share, and if they [plaintiffs] Were doing any more work on our logs than we were doing on theirs, or any work that they were entitled to pay for, we would pay them for it.”
Comstock testifies that after driving the logs down to Hubbard lake they drove them into a boom, and counted defendants’ logs, and made out a bill of the same, and in June took it over to Butterfield, and presented it to him. The bill, at twenty cents per thousand, amounted to $211.08, upon which was a credit to defendants for running some of plaintiffs’ logs, amounting to $70.
Defendants made no protest against the correctness of this bill, or their liability for the same, but kept it until July or August, when they presented plaintiffs with a bill for running logs, amounting to some $690, and giving credit thereon to plaintiffs for running logs, for the same number of feet and same price per thousand as claimed in plaintiffs’ bill, and for the identical logs. Plaintiffs not accepting defendants’ charges, this suit was brought.
Upon the trial a large amount of evidence was given by defendants tending to show, under Butterfield’s theory of the talk in Alpena, that they did their full share of the work in running the mixed logs, and therefore plaintiffs did no work for which they were entitled to pay.. This testimony was objected to by plaintiffs’ counsel as immaterial and irrelevant, but we think it was entirely proper. Defendants had a right to introduce any testimony tending to support their defense under their own theory of the agreement between Comstock and Butterfield. If defendant’s promise was only to pay for what work was necessarily done by plaintiffs on defendants’ logs, over and above what they ought to have done in running their own and defendants’ together, and for the amount of plaintiffs’ work if they did proportionally more on defendants’ logs than defendants did upon theirs, it certainly was competent and material to show just how much defendants’ men did in running these mixed logs. It is true that one or two questions were objectionable as calling for conclusions instead of facts, but, as the case must go back for a new trial for other errors, it is not necessary to notice such questions in detail.
It is assigned as error that the court refused to charge the jury as requested by plaintiffs’ counsel in the second and third requests. The third, which embodied, the substance of the second, was as follows: “If the jury find that defendant Butterfield said to W. B. Comstock, in substance, that if plaintiffs did any work on defendants’ logs, or those they were driving, that plaintiffs were entitled to pay for, that they, defendants, would give it, then plaintiffs are entitled to recover in this action.” This request was not good in the-form presented. It should have gone further, as the jury would also have to find that plaintiffs did do work that they were entitled to be paid for, before they could bring in a verdict for plaintiffs. The court, however, in relation to this point charged the jury, in effect, that plaintiffs could not only recover upon Comstock’s version of the contract, but, if they found the promise upon the part of the defendants to be as Butterfield stated, then, if defendants failed to get their logs out of the way, so as to justify the plaintiffs in doing the work, defendants would be liable for the work so done. The charge of the court was fair and just in this respect; and we do not find any claim of the plaintiffs upon the trial to recover, except upon the contract made in the city of Alpena between W. B. Comstock and Butterfield ; and the case was-properly submitted to the jury upon both versions of defendant’s promise in that conversation.
The remarks of the court in relation to the meeting of the-minds of the parties in that talk being necessary to make a contract between the parties was good law in the abstract, but might have been, and undoubtedly was, under the circumstances of this case, misleading. There was no pretense that the minds of the parties did not meet in some kind of an understanding.
The whole controversy was as to what the defendant said'. The defendant made some kind of a promise. Comstock recollected it to be one thing, and the defendant another. If the jury believed Comstock, Butterfield promised to pay for the running of the logs if plaintiffs did any work upon them-. If they believed Butterfield, the contract was, in substance, to-pay for the running of the defendants’ logs, if plaintiffs did more work in proportion upon the mixed logs than defendants did. But from the language of the court the jury might easily have inferred that because the parties recollected the-promise differently there was consequently no promise at all,. as the minds of the parties did not meet in their remembrance of the- talk.
The counsel for the plaintiffs also requested the court to instruct the jury, in substance, that the defendants, having, after this work was done, received a bill of the work from plaintiffs, and afterwards presented a bill to plaintiffs upon which this same work was credited, were bound by such acknowledgment in this action, unless they showed it was a mistake. This instruction the court refused, and did not give the substance of it in his general charge. The circuit judge only referred to the two bills as throwing some light upon the question as to what contract was made between the parties, if any, and as tending to show a recognition upon the part of defendants of a liability having been incurred before the work was done; and instructed the jury “to give them just exactly such weight or effect as they have produced upon your minds, in enabling you to determine whether this contract [as claimed by Comstock] in this case was made, and whether it was in any way recognized by the defendants after the work in question was done.”
The amount of work claimed in this bill of defendants not being connected with the running of these mixed logs, but referring to another drive, the keeping of this bill of plaintiffs for the work claimed to be done by them in this case, for over a month, and then giving plaintiffs credit for the same, was a pretty substantial and solemn admission on defendants’ part that they were liable for the amount as claimed, and plaintiffs were entitled to the request asked. I't was such an admission that it was binding upon them, under all the authorities, unless they could impeach it on the ground of fraud or mistake. This was not attempted to be done on the trial: White v. Campbell, 25 Mich. 463 ; American Nat. Bank v. Bushey, 45 Mich. 135; Lockwood v. Thorne, 11 N. Y. 170.
The judgment is reversed, and a new trial granted, with costs of this Court to plaintiffs.
The other Justices concurred. | [
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