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Graves, J.
This was an ejectment by the defendant in error Charles A. Bailey, and his brother, George Bailey Ashley, who, at his birth, was called George Bailey, as sole heirs of their father, George H. Bailey, who died in 1854. The suit was brought for the north twenty-four feet of lot 17,. in block 57, on White’s plat of part of the city of Port Huron, and was tried by the court, sitting without a jury.
A special finding was made, and thereupon judgment was given in favor of the plaintiffs in error as against George B. Ashley, but against them and in favor of Charles A. Bailey for an undivided half of the premises claimed, and they then sued out this writ of error.
It was found that the plaintiffs in error were in possession, that Stewart claimed to be owner as grantee of one Alvah Sweetser, and was in fact a purchaser in good faith from Sweetser, who had bought the premises at a sale made on the 12th of June, 1851, by one Martin S. Gillett, as guardian of the plaintiffs below.
The circuit judge stated the proceedings connected with the guardian sale in his finding, and it appeared that they were taken and conducted under chapter 164, Compiled Laws; that no order was made by the probate court for the giving of a sale bond by the guardian, that no such bond was given, and that the only proceeding in the nature of an order to confirm the sale consisted of an endorsement by the probate judge on the report of the sale by the guardian, in these terms: “Filed, approved, and confirmed, and deed ordered to be executed to the purchaser. John McNeil, Judge of Probate.” The circuit court held that the guardian proceedings were defective for want of a sale bond, and also for want of a proper order of confirmation of the sale, and that these defects were open and available to the heir in his suit for the land. These rulings present the only questions in the case, and that relating to the bond being the main, if not the only substantial one, on this record, may be first considered.
. The position of the plaintiffs in error is that, as the probate court does not seem to have expressly ordered the .giving of a sale bond, but appears to have allowed the proceedings to go on without one, that therefore the provisions of § 46%® of the chapter serve to afford protection to Stewart, a bona fide purchaser under the guardian’s sale, against ejectment by the heir. The section referred to is as follows:
“In case of an action relating to any estate sold by a guardian under the provisions of this chapter, in which the ward, or any person claiming under him, shall contest the validity of the sale, the same shall not be avoided on account of any irregularity in the proceedings, provided it shall appear:
First. That the guardian was licensed to make the sale by a probate court of competent jurisdiction ;
Second. That he gave a bond which was approved by the judge of probate, in case any bond was required by the court upon granting the license;
Third. That he took the oath prescribed in this chapter ;
Fourth. That he gave notice of the time and place of sale as .prescribed by law; and
Fifth. That the premises were sold accordingly by public auction, and are held by one who purchased them in good faith.”
It is certainly true that the terms of the second subdivision of this section, when considered apart from the other numbers of the chapter, would seem to imply that there might be cases within the chapter where the giving; of such a bond would not be imperative, or cases where-the probate court would have discretionary authority to-require or not to require one to be given. But the whole chapter must be read and construed together in order to-reach a safe conclusion, and when we come to examine it throughout, we find that in every instance where a sale is-authorized, a sale bond is expressly and imperatively required; that the probate court is not permitted in anjease to exercise discretion as to whether it should be given or might be dispensed with, and it is neither provided or apparently contemplated that any order or decision of the-court should be entered or made on the subject.
The law appears to assume that the mandate, that in every case a bond shall be given, is entirely sufficient for the purpose, and that being an imperative order of the legislature to the court and to all suitors, it may be considered as tacitly speaking through the court, and as answering to a requirement of the court in all cases. The provision that a sale bond shall be given, is one of great importance to the rights of wards and others having interests in their estates, and if it were to be rendered nugatory or even seriously weakened, the main ground of security for those who most need security, would, in a great variety of cases, be destroyed. Estates belonging to orphan children and to others as helpless, as weak and defenseless as children, would be liable to be dissipated and squandered without possibility of redress, or at least adequate redress, for the want of that specific security expressly and imperatively required by the law.
It is admitted that the omission to give the bond would be sufficient to overturn the sale in a direct proceeding, •and this, it is claimed, is a sufficient protection. But all who are conversant with such matters know that the very ■circumstances which give occasion for the guardianship very often, if not generally, make any such remedy of little practical value as a shield to wards, and the records of our «courts testify that as a means of self-protection the right «of the ward to assail or resist the proceedings to sell property while such proceedings are in progress, and the right ■of review on appeal, are rights which the ward is generally unable to exert in any beneficial way. Turn the matter as we may, the propriety and policy of requiring such security is as obvious as the law is positive that it shall be given. Now may it be omitted and its omission still not operate as a defect in ejectment by the heir? If the necessity for giving it may in all cases brought by the heir be made to depend upon its being shown that the probate court super-added to the positive direction of the statute an express formal order or requirement to give it, the imperative command of the law, will be changed in its application to such cases into a mere directory regulation, and the object and policy of the provision be essentially perverted. Against such a construction or a construction leading to such consequences, it is the duty of the court to struggle.
The structure of the second subdivision of § undoubtedly renders the clause where it stands very intractable; but viewing' it in connection with the other provisions, and considering the policy of requiring security, the object of the regulations, and the spirit of the chapter, I think we are compelled to hold that the meaning of the law is that as it absolutely enjoins the giving of security in all cases, the court is always to be considered as requiring it without any express or formal order or declaration. Having reached this conclusion, it follows, in our opinion, as a proposition of law, that a bond was required by the probate court, and inasmuch as it was not given, the proceedings were fatally defective as against the defendant in error in his ejectment. As this determines the case against the plaintiffs in error, it becomes unnecessary to discuss the second and remaining question.
The judgment should be affirmed, with costs.
The other Justices concurred. | [
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Campbell,- J.
Complainant filed her bill to compel a discharge of a mortgage, and obtain the damages allowed by law for its refusal. The amount remaining unpaid on the mortgage and which was tendered was less than one hundred dollars; and demurrer was put in, objecting to the jurisdiction on that ground, under section 5059 of the Compiled Laws, requiring the dismissal of all equity causes, “where the matter in dispute shall not exceed one hundred dollars.”
By section 4246 of the Compiled Laws, every mortgagee who neglects or refuses, after a proper tender and request, to discharge a mortgage, is liable to one hundred dollars damages in addition to any actual damages caused by his neglect or refusal; and while this was formerly collected by an action on the case, the section referred to allows it to be done “upon a bill filed to procure a discharge or release of such mortgage.”
This section contains no exceptions, and is in terms applicable to all mortgages, whether large or small. A bill in equity is the only adequate remedy for clearing encumbrances, and there is nothing which would warrant us in creating an exception which would leave no sufficient course open to the aggrieved party. As the mortgage was one originally of over two hundred dollars, and cannot be discharged piecemeal on the records, it would have been a great stretch of technicality to assume that the bill would not have been sufficient without the statute. There was no foundation for the demurrer.
The question of double costs will more properly arise on the final hearing at the circuit. The decree below must be reversed, and the defendant must answer in thirty days. The complainant is entitled to the costs of this court, and to twenty dollars, single costs of the hearing on demurrer, without prejudice to the increase thereof on future taxation, should she make out her case at the circuit.
Cooley J., and Graves, Ch. J., concurred.
Christiancy, J., did not sit in this case. | [
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] |
Per Curiám.
A motion is made to dismiss the writ of certiorari on two grounds: first, because the case is not a proper one for that writ; and second, because it was improvidently granted.
The first point relates to the merits, and should be con-, sidered when the case is argued, and not on this motion. The second is the only one .proper to he discussed now-;, and the ground of objection is that the application for the ■ allowance of the writ was made to a justice of this court, and granted, while a similar application was pending and undetermined before the circuit judge of the county, where the proceedings removed by the writ were taken.
Where a writ has been, granted by a competent officer, upon a sufficient application, ive could not review his discretion in granting it, and the only question must be whether the conduct of the party has been such as to preclude him from any right to retain his writ. We are not prepared to say that a'double application would be so irreg ular that the second must be regarded as nugatory. It must-be treated in this court as a matter which would be addressed to our discretion, and the court would be bound to-take such action as would work no injustice, and not to dismiss a writ granted by a competent person, unless the plaintiff has so acted as to justify such a measure.
Arthur Brown, and H. F. Severens, for plaintiff in certiorari, were stopped by the court.
May & Buck, for defendant in certiorari.
In the present case, therefore, we should, if we had’ doubts on the fact as to' when the commissioner’s judgment was rendered, regard the plaintiff 'as abundantly jus-" tified in making the second application, because' there was' at least a conflict upon the point, whether the commissioner . had really made his decision when the first application -was - made. If he had not, then that proceeding was premature, • and would have rendered the allowance of the writ irregular. We think the showing before us is conclusive that the ■ judgment had not then been rendered, and that the application on which the writ was granted was the only one properly and lawfully made. The action of the plaintiff in such a dilemma was entirely proper, whatever might have been the ultimate determination of the disputed fact.
It is proper to remark further, that in a case like the" present, where the custody of children is involved, we should feel bound to look to them as interested quite as deeply as either of their contending parents, and should not be disposed, even in case of misconduct, to take any step within our discretion which might prejudice them.
The motion is denied with costs.
The case was afterwards heard upon the merits.
Cooley, J.
The principal question in this case concerns the power ■
of a circuit court commissioner on habeas corpus to adjudicate on the right to the custody of children as between the parents.
The constitution vests “the judicial power” in one supreme court, in circuit courts, in probate courts, and in justices of the peace, but allows municipal courts to be established in cities. — Art. VI., § 1. It also declares that “The legislature may provide bylaw for the election of one or more persons in each organized county, who may be vested with judicial powers not exceeding those of a circuit judge at chambers.” — Art. VI., § 16. It is under this last section that the power in question is supposed to be authorized.
We have already, in several cases, had occasion to consider these sections of the constitution, and to pass upon powers assumed to be exercised under them. In Daniels v. People, 6 Mich., 381, it was held that circuit court commissioners might take bail in criminal cases, and in Edgarton v. Hinchman, 7 Mich., 352, their authority to dissolve attachments was sustained. But in neither of these proceedings does the officer render any final adjudication on the rights of parties, but his action is entirely collateral to the principal proceeding, and is one of those steps in the cause which may as properly be taken at chambers as in court. In Streeter v. Paton, 7 Mich., 341, the power of commissioners to try complaints for the recovery of possession of lands was sustained, mainly on the ground that it was exercised under statutes in force before the constitution was adopted, and which it was not believed were intended to be abrogated by it.
On the other hand, in Waldby v. Callendar, 8 Mich., 430, approved in Case v. Dean, 16 Mich., 12, it was held incompetent to confer upon these officers the authority to adjudicate upon the validity of titles asserted in lands. The decision was placed distinctly upon the ground that this-was a judicial power which only a court could properly exercise.
Although we have for many years had statutes which name circuit court commissioners among the officers who may issue the writ of habeas corpus, they do not, in terms, expressly authorize the writ in cases of this nature, and we are not aware that it has ever been the practice in this state to apply to these officers in such cases. There is consequently no room for an argument that the constitution may have been framed in view of leaving undisturbed any practical construction of the statute recognizing théir authority. And the question involved is, therefore, narrowed down to this: whether an adjudication, such as was had in this case, by which a child is to be taken from one parent and delivered to the other, can be within the compass of the powers and duties of a judge at chambers.
It will be observed that this raises no question of the scope of the remedy by habeas corpus in this state, but it concerns only the right of an officer out of court to issue the writ for the purposes of the relief which was attempted to be given in this case. "We may concede the power of the commissioner to issue the writ in many cases in which it is demandable, without at all touching the question which cases of this nature present. These cases are really exceptional; and that they must have been so regarded by the legislature is manifest, since the form prescribed by the statute for a petition for the writ is wholly inapplicable.-•
Construing together the provisions of the constitution and the-statute, we must understand the latter, in conferring upon circuit court commissioners the authority to issue writs of habeas corpus, to except from their jurisdiction all cases in which the relief sought would be such as could not, in consistency with legal principles, be afforded by an order made by a judge at chambers. And such a construction would exclude this case; for it cannot be doubted that a final adjudication upon the right of contesting parties to the control, custody, nurture and education of a child is as much foreign to the nature of chamber powers as one where the possession and enjoyment of property are tbe purpose of the suit. It has not been customary anywhere to have such powers exercised by an officer of limited jurisdiction proceeding in a summary manner out of court, and it is not for a moment to be supposed the legislature would have given the authority without making ■some provision for securing a fair trial upon the merits, with suitable mode of review. . But no such provision is made by the statute under consideration; and if the commissioner may try the case at all, he may proceed in his ■own time, and in his own way, to dispose of a controversy which in its nature is one of the most delicate, and in its results to the parties one of the most important that could possibly arise. The order he makes is in the nature of a. decree in equity, and unless submitted to quietly, would require extraordinary judicial powers for its enforcement. The circuit court seldom is called upon to exercise amore important authority; and if it can be transferred to a commissioner as a mere chamber duty, it is not easy to'see why any other power which that court exercises may not be transferred to him also, by simply dispensing with the forms of trial prescribed for the attainment of justice, and making the proceeding summary.
We regard the case of ’Waldiy v. Oallendar as governing this, and the proceedings must be quashed.
The other Justices concurred. | [
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Per Curiam.
In cases of quo warranto, the respondent is required to disclaim or justify, and the plea is the first pleading that indicates the facts concerning which the controversy as to the right of office will arise. The information charges the respondent with intrusion into an office, and calls upon him to show by what right he has assumed to hold it. The respondent may deny that he holds, or claims to hold it. Such a plea is a disclaimer, and no controversy of fact can arise upon it beyond the simple question of his exercise of the office. If he does not disclaim he must justify, and by a plea of justification he is bound to show all the facts necessary to establish his lawful right to hold the office. This is an affirmative showing, which he has the burden-of maintaining, and it must conclude with a verification. No issue of fact can be joined in such cases, except upon a replication, or some pleading subsequent thereto, either by denial or by confession and avoidance.
As soon as the parties have come to an issue on the facts, it is to be tried before a jury like any other common-law issue. It is not necessary to set forth in the information the facts which would negative the respondent’s title, and the latter cannot, therefore, demur to it for that deficiency, if otherwise sufficient, but must in all cases where he relies upon his own title, make a showing of it by his own pleadings.
The pleadings should be re-framed according to these rules, and leave is granted to substitute new pleadings. | [
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Carr, J.
Plaintiff brought this action in circuit court to recover damages for injuries sustained by him as the result of being struck by defendant’s automobile. The accident occurred on Dix highway in the city of Melvindale at about 9 o’clock in the evening of November 17, 1955. Said highway had two 10-foot lanes for southbound traffic and two for northbound traffic. It intersected Oakwood boulevard approximately 300 feet north of the point where the accident took place.
It appears from plaintiff’s testimony in the case that he was 63 years of age at the time he received the injuries in question, that he was at the time working as a truck driver, that he owned his equipment, and that over a period of a number of years he had been engaged in hauling various commodities in Michigan and also in other States, driving approximately 75,000 miles per year for the preceding 10-year period. On the occasion in question he had been, immediately prior to the accident, in the company of other truck drivers with whom he had eaten dinner. Plaintiff had left his truck in a terminal on the east side of Dix highway, and he approached that thoroughfare on the westerly side thereof with the intention of crossing to the place where he had left his truck. It appears that he stepped into the street and received the injuries in close proximity to the westerly edge of the pavement.
On the trial of the cause before judge and jury it was claimed on behalf of plaintiff that the defendant was guilty of negligence in the operation of his automobile, and particularly in failing to so drive as to avoid striking the plaintiff. Plaintiff’s case rested largely on his own testimony. Defendant claimed that when he was approximately 25 feet from the point of impact plaintiff walked upon the pavement, that the brakes of the car were immediately applied in full force, that the vehicle came nearly to a stop before the point of impact but struck plaintiff with sufficient force to throw him to the pavement approximately 3 feet from the westerly edge.
Defendant’s motion for a directed verdict at the close of plaintiff’s proofs, renewed following the completion of the testimony, was taken under advisement by the trial judge and the case was submitted to the jury. A verdict was returned in favor of the plaintiff and thereafter a motion for judgment notwithstanding the verdict was submitted on behalf of defendant. It was the opinion of the trial judge, based on the proofs in the case, that the evidence was inconclusive as to defendant’s negligence, and that plaintiff was guilty of contributory negligence as a matter of law. The motion was granted for the reasons set forth in the opinion, and plaintiff’s motion to vacate the judgment in defendant’s favor was denied. Plaintiff has appealed, alleging that the trial judge erred in granting defendant’s motion for judgment and in refusing to set it aside.
On the trial in circuit court an exhibit was introduced in evidence indicating the situation existing at the place where the accident happened, and the intersection of Oakwood with Dix highway. It would appear therefrom that the last named thoroughfare ran northerly from the place where plaintiff was injured without curves or obstructions that would tend to interfere with the view to the north. It is not disputed that defendant was driving in a southerly direction as he approached Oakwood avenue on what appears from the exhibit to be an extension of Dix highway designated as Raupp road. Traffic at the intersection was at the time of the occurrence in question here governed by lights of the usual character. Defendant stopped before entering the intersection to await a change of the lights in his favor, and it appears that other traffic did likewise. When the controlling light changed to green the traffic moved south on Dix, defendant proceeding, as he claimed, at a rate of speed of approximately 25 miles per hour, to a point where he first observed plaintiff starting to cross the highway. It was further defendant’s claim that immediately on seeing plaintiff come upon the pavement he applied his brakes. Plaintiff was struck by the right front, either fender or headlight, of the automobile, and apparently was thrown in the direction that the car was moving. However, the vehicle did not run over him due, as it is claimed, to the fact that the applied brakes brought it to a stop.
In determining the question whether the trial judge was in error in granting the motion for judgment notwithstanding the verdict of the jury due consideration must be given to the general rule that under the situation here presented the testimony must be construed favorably to plaintiff. This requires that, notwithstanding certain conflicts in the testimony as given by the witnesses, it must be assumed that plaintiff undertook to proceed across the pavement in the manner claimed by him, and that he made the observations to which he testified. It is not disputed that he suffered severe injuries, including a broken left leg.
Plaintiff’s version of the accident and the attendant circumstances is indicated by the following excerpts from his testimony as set forth in the transcript returned to this Court by the circuit court as a part of the original record in the cause. After indicating that he and his companions were in or near a truck belonging to one of them, he testified
“A. Yes. I was walking here on the sidewalk. Truck stays in here on the drive. Well, lights on the street, plenty lights there. I walk a little more, just in here, step off of sidewalk, walk to curb. I am stop on the curb, look north and south, no ma chine north. I see machine south pretty far. I step about 2 steps and I see the machines come pretty fast. I stop. I stop about 2 steps off of curb. I look in the back, the machine is come from north. I just swing around, have no chance to get up and it just hit my leg and I fall down on right shoulder. I hit pretty hard the road. * * *
“Q. You said when you started to cross Dix avenue you looked to the north and there was no traffic.
“A. No traffic.
“Q. You looked to the south and you saw a car?
“A. Coming.
“Q. Quite a ways down?
“A. Yes.
“Q. You took some steps across Dix avenue you said?
“A. Yes.
“Q. Then you looked and saw this car coming from the south coming fast?
“A. Yes.
“Q. So you stopped?
“A. Yes.
“Q. You looked to the north and then you saw this other ear coming?
“A. Another car coming.
“Q. Then you turned and got hit?
“A. I tried to run away. I just swing around and the car just get me. * * *
“Q. How many steps did you take from what would be a curb line, Perry, before you stopped to look to the south?
“A. I just stopped on the curb. I see no machine from the north. I see the machine from south. I just stepped 2 steps. I see the machines come pretty fast. I stop. I look north. The machine come from north. I just swing myself, no chance to get out, and catch my left leg.
“Q. But when you stepped from what would be a curb line on the road you looked to your left and you did not see any car?
“A. No car.
“Q. You took the 2 steps and looked to the right and saw a car?
"A. Yes.
“Q. Then you stopped?
“A. Yes.
“Q. Then looked to the left again and a car was coming.
“A. Cars coming and I just swing myself.”
Other testimony by plaintiff is of like tenor but the foregoing is sufficient to indicate his claim as to what occurred and what he did, and also what he failed to do, for his own safety. As before noted, when he came to the edge of the pavement on Dix highway he had a clear view to the north and an opportunity to view the condition of the lights at the intersection with Oakwood. If at the time he looked the light was red against traffic coming south on Dix plaintiff was in position to note the vehicles, including defendant’s, that were waiting for the traffic signal. He must have realized that automobiles were, or shortly would be, traveling in a southerly direction.
Having looked to the north, as he claimed, plaintiff then stepped out upon the pavement a short distance and looked to the south. Apparently he concluded that traffic from that direction was coming at a rate of speed that would not permit him to cross the street in safety. He accordingly stopped. It is a fair inference from the testimony that he was Avatching the northbound traffic on the east side of Dix while standing on the pavement on the west side. From his experience he must have realized the danger of his position, and have known that he might be in peril from southbound traffic. However, he did not step back to the edge of the pavement nor did he make further observation to the north until defendant’s automobile was, as he claimed, within 20 or 25 feet from Mm. Such delay is unexplained. He did not claim in Ms testimony that there was any necessity for his continuing- to watch northbound traffic or that he was prevented for any reason from making- due observations to his left. His experience in driving- for many years previously undoubtedly made him well aware of traffic hazards.
Accepting plaintiff’s testimony as to his conduct immediately prior to the accident, may it be said that he was exercising reasonable care for his own safety! He put himself in a position of peril from 'southbound traffic by entering on the pavement and remaining there in a position of danger. We cannot avoid the conclusion that a person exercising due and proper care for his own safety would have either returned to the edge of the pavement or have made timely observations of possible traffic from the north. It further appears that when he actually discovered the approach of defendant’s car he undertook to turn around, presumably to walk back to the curb line, instead of stepping- backward a pace or two. Had he followed the latter course it is a fair conclusion from his testimony that defendant’s automobile would not have come in contact with him. It thus appears that plaintiff not only failed to exercise reasonable precautions to guard himself against injury from traffic, but also failed to adopt ■the obvious method of avoiding injury after he discovered the danger in which he was placed.
Each case of this character must be determined on the particular facts involved, with due regard to the general rule that one against whom a verdict Is directed, or who appeals because a verdict in his favor has been set aside, is entitled to have the testimony construed favorably to his claims. The trial judge in denying the motion to vacate the judgment entered notwithstanding the verdict of the jury referred to several recent decisions of this Court, distinguishing the factual situations involved therein from that shown by the record in the present case. After summarizing plaintiff’s testimony, the judge^ said in the opinion filed by him:
“I cannot perceive how reasonable men could have found otherwise than that plaintiff was contributorily negligent under this state of facts, laying aside-the question of defendant’s negligence as to observation or control of his vehicle. It is distinguishable from the case where a plaintiff does not have uninterrupted vision or the case where a pedestrian fails to look after passing the center of the street for say automobiles running on the wrong side of the street. See Rowland v. Brown, 237 Mich 570, 576. Rather it is a case where there was clear vision, where the plaintiff looked to the north and did not see defendant’s car and first observed it after he then had looked to the south and then back to the north and then found defendant’s car only a few feet from him.”
We are in accord with the conclusion reached by the trial judge with reference to the contributory negligence of the plaintiff. The situation presented on the record is somewhat unusual in that there appears to be no reasonable explanation of plaintiff’s failure to exercise ordinary care for his own safety. The conclusion is unavoidable that had he done so he would not have been struck by defendant’s automobile.
Whether defendant was guilty of actionable negligence constituting a proximate cause of the accident in question is doubtful under the testimony in the case. However, the conclusion reached as to the contributory negligence of plaintiff renders it unnecessary to consider the arguments of counsel in this respect. It may be noted also that counsel for plaintiff on the trial of the ease relied on the so-called last-clear-chance doctrine. In other words, it was claimed that the defendant was guilty of sub sequent negligence and that by the exercise of proper care after he discovered plaintiff’s peril, and after plaintiff was unable to extricate himself from his position, he might have avoided the accident. The trial judge rejected the theory, and we think properly so.
; Plaintiff’s negligence continued until the time of the impact. Plis testimony would indicate that he discovered defendant’s approach at about the same time that defendant discovered his presence on the 'pavement. Plaintiff had at least as good an opportunity to avoid the impact as did the defendant who, in the face of what would seem to be a sudden emergency, sought to stop his automobile rather than to deflect its course and thereby run the risk of interfering with other traffic or of striking plaintiff if the latter undertook to proceed to the east. The facts here do not permit the application of the last-clear-chance rule. The situation in such respect is comparable to that presented in the recent case of Churukian v. LaGest, 357 Mich 173, where it was said:
“Plaintiff-appellant also asserts that she was entitled to have a jury consider her case under a gross-negligence or last-clear-chance doctrine. Defendant claims that there is nothing in plaintiff’s declaration referring to the doctrine of last clear •chance or subsequent negligence and that plaintiff •cannot now raise this issue on appeal. City of St. Clair Shores v. Conley, 350 Mich 458. Even if plaintiff had properly raised this issue, for the doctrine to be applicable, plaintiff’s negligence must have •come to rest leaving her in a place of danger about which defendant’s driver knew, or should have known. Szost v. Dykman, 252 Mich 151; Morrison v. Hall, 314 Mich 522. We do not view these facts ias presenting such a case. Plaintiff’s negligent conduct continued up to the very point of impact.”
The trial judge was not in error in granting the motion for judgment notwithstanding the verdict, and the judgment entered is affirmed.
Dethmers, C. J., and Kelly, J., concurred with Carr, J. | [
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] |
Dethmers, C. J.
The pertinent facts are accurately and succinctly stated in the opinion of the circuit judge as follows:
“The commissioner of internal revenue determined that there were deficiencies in the Federal income tax of Peter Bizanes for the taxable years 1942 through 1948. The taxpayer petitioned the tax court of the United States for a redetermination of the deficiencies as determined by the commissioner. Peter Bizanes died before a hearing was had in the tax court. His widow, the sole beneficiary under his will, Anna Bizanes, was substituted in the tax court proceeding as the executrix of Peter Bizanes’ estate. By stipulation, compromise consent decisions were rendered in the tax court proceeding.
“These decisions of the tax court were not appealed nor were they in any way vacated or set aside. On July 23, 1954, the commissioner of internal revenue duly assessed against the estate of Peter Bizanes the deficiencies as found by the tax court, together with the interest to the date of the assessments. Thereafter claimant filed with the probate court of this county a request to re-open the hearing on claims in the estate of Peter Bizanes for the purpose of filing a tardy claim covering the assessments so made.
“By order of the probate court dated the 21st day of February, 1955, the ‘commission on claims’ was revived and Tuesday, March 29, 1955, at 10 o’clock in the forenoon was set for a hearing on the tardy claim of the claimant.
“Objections were filed by the estate under date of March 31,1955. On April 28,1955, the probate court appointed a referee to examine the delinquent claims and make recommendation to the probate court. The referee made a report on March 27, 1957, and recommended that the claims of the claimant be dis .allowed on the ground that the executrix had no authority to enter into a consent stipulation resulting in the decisions of the tax court, but found that the computation of the entire claims with interest to February 27,1957, totalled $42,148.69.
“The claimant filed objections to the report of the referee on April 9, 1957, and a hearing was had on November 27, 1957, before the probate court. The probate court held that the decisions of the tax court were res judicata on the amount of the deficiencies, but affirmed the disallowance of the claims on the ground that the revival of the commission on ■claims and the subsequent hearings on the claimant’s ■claims were not properly before the court because of failure to comply with the requirement's of the statute (CL 1948, §708.18 [Stat Ann §27.3178 (428)]) regarding the filing of tardy claims. This statute requires that the court ‘allow further time, not exceeding 1 month, for such creditor to present his claim.’ No such order was entered by the probate court.
“The probate court also found that the certification of the decisions of the tax court were not proper in that there was no certification of the judgment of the decisions from the tax court ‘to the probate ■court’ in accordance with the statute (CL 1948, .§ 708.23 [Stat Ann § 27.3178(433)]).
“The issues to be decided, as agreed upon at the pretrial conference are: (1) As a question of law, was the amount of the claim of the United States judicially determined by the decisions rendered in the tax court of the United States? (2) As a question of law, was the claim of the United States properly filed and proved in probate court?”
From the probate court order disallowing the claim of plaintiff, United States of America, the latter appealed to circuit court. That court reversed the order of the probate court and allowed the claim. Defendant appeals here.
Defendant says that upon the death of her decedent the tax court of the United States lost jurisdiction of the parties and the subject matter and the only recourse left to plaintiff was to file its claim in the probate court. Rusk v. Commissioner of Internal Revenue (CCA7), 53 F2d 428, holds directly to the contrary. See, also, Hague Estate v. Commissioner of Internal Revenue (CCA2), 132 F2d 775, and Rule 23(a) and (d) of the rules of practice before the tax court of the United States providing for substitution of fiduciary upon death of a petitioner. The tax court did not lose jurisdiction.
Defendant attacks the tax court decision on the ground that it rests on the stipulation of the executrix of defendant estate. Defendant cites cases to the effect that claims against an estate must be proved before the commissioners on claims or the probate court, that the necessity for such proof cannot be waived by the executrix and that the estate cannot be bound by the executrix’s stipulation consenting to allowance of a claim. In re Lane’s Estate, 281 Mich 70; In re Griffin’s Estate, 309 Mich 376. If controlling of the proofs required in support of claims against decedents’ estates presented in Michigan courts, as defendant claims, the rule announced in those cases cannot govern proceedings in the tax court of the United States nor fix the proofs requisite to decision in that court.
We are confronted with a decision of the tax court. Defendant cites cases for the proposition that it is not a court, but an independent agency in the-executive branch of the government. Old Colony Trust Company v. Commissioner of Internal Revenue, 279 US 716 (49 S Ct 499, 73 L ed 918). In United States v. International Building Co., 345 US 502 (73 S Ct 807, 97 L ed 1182), it was held, however, that judgments of that court on specific tax claims are res judicata of those claims. The tax court had jurisdiction of the subject matter and of defendant’s decedent in his lifetime and, as we have already noted, did not lose jurisdiction of the ease upon his death. It made a decision of liability on the claims which is res judicata thereof. Whatever its basis or supporting proofs, that decision and judgment thereon are not subject, as here attempted, to collateral attack. Sablain v. National Refining Co., 289 Mich 269. See, also, Adams v. Adams, 304 Mich 290; Life Insurance Company of Detroit v. Burton, 306 Mich 81; Rarden v. R. D. Baker Co., 279 Mich 145.
Defendant attacks the probate court proceedings on the ground that that court, in allowing plaintiff to present its tardy claim, did not limit the time therefor to 1 month as directed in CL 1948, § 708.18 (Stat Ann § 27.3178[428]), and further that the judgment of the tax court was not certified, as in CL 1948, § 708.23 (Stat Ann § 27.3178[433]), provided, “to-the probate court.” The objection that failure to limit the time for presenting plaintiff’s claim to 1 month is jurisdictional is without merit. Cases cited to the effect that the jurisdiction of probate courts is purely statutory are not apposite. Here the statute empowers the probate court to revive the commission on claims and reopen the hearing on claims. Its jurisdiction for that purpose is therefore beyond question. That the court failed, in its order, to-specify that the tardy claim should be presented within 1 month, but fixed the date for hearing such claim a week beyond the month period following the-date of the order did not destroy its jurisdiction to-make the order reviving the commission on claims. No objection was made by defendant before the referee or probate court to the order, but, instead defendant appeared before the referee and proceeded with her opposition to the claim. Defendant thereby waived her objections thereto. While the certificate- of the tax court attached to its decision and judgment, as filed in the probate court, was not specifically addressed to the latter, it amounted to substantial compliance with the statutory language providing for its certification to the probate court.
Judgment of the circuit court affirmed, with costs to plaintiff.
Carr, Kelly, Smith, Black, Edwards, Kavanagh, .and Souris, JJ., concurred. | [
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Kavanagh, J.
This is an appeal by certiorari on leave granted from a circuit court order denying a father’s petition for writ of habeas corpus to recover custody of his daughter, Hanna Herbstman, who, at the time of the filing of the petition in August, 1959, was 4 years old.
A hearing was held on the petition in the Jackson cóúrity circuit court. Testimony disclosed that Herbstman’s wife died at Hanna’s birth in Israel in, 1954. Herbstman and his wife were refugees ijr'om Nazi Europe to Israel. - After his wife’s death, Mr. Herbstman, having no one to look after Hanna, placed her in a children’s home in Israel.
1 Tn:June,' 1956, at the invitation of defendants Erwin'Shiftan, Hanna’s maternal uncle, and wife Bernice,..Herbstman came to the United States bringing hisl ¿ children — -Hanna, 1-1/2 years old,'and Ludwig, • age 8. The 3 came to the Shiftan home in Jackson, 'Michigan. Appellant was a tailor by trade ahd found employment in a clothing store in Jackson fbr a short' period of time. He then went to New York City, where his brother resided, an.d found employment there. He left Hanna with the defendants,'but took his little boy with him to New York. On January 25, 1958, he married his present wife, and-after establishing a home he informed defendants he desired to take Hanna to New York. Appellant was first asked to let Hanna stay with the Shiftans until Mr. Shiftan completed a trip to Europe in the summer of 1958. Later, they asked hé extend this time until after Christmas. Numerous attempts were-made by petitioner to obtain his child. The Shiftans expressed verbal willingness that Hanna should return to her father, but it appears from the record they had become very attached to her and could not give her up.
The trial judge found there was no agreement for adoption or permanent custody of Hanna; that instead she was to remain with her aunt and uncle only temporarily and until her father could establish a home. The trial court further found as a fact that appellant appears to be a good man; that the home in New York City, as far as size, seems to be adequate; and that the testimony showed the ages of appellant and his wife and appellant’s earnings and residence were at least equally favorable for raising Hanna as those of the Shiftahs. The court further found he was not convinced the best interests of the child would be served by giving' the farther custody. He based his finding upon the following facts: The Shiftans have raised the child well without help from the father ;■ the father made’only 3 visits to see his child in.3-1/2 years; the' child’s love for her present home and the Shiftans’ love for the child; the character and reputation of-the present Mrs. Herbstman are unknown; taking the child from her present home and placing her in< congested New York City would not be for the best, interest of the child; the suggested drugging of the. child on one occasion showed an inhuman attitude.
It is a well-established principle of law that the parents, whether rich or poor, have the natural right', to the custody of. their children. The rights of parents are entitled to great consideration, and the court should not deprive them of custody of their children without extremely good cause. A child also has rights, which include the right to proper and. necessary support; education as required by law; medical, surgical, and other care necessary for his health, morals, or well-being; the right to proper custody by his parents, guardian, or other custodian; and the right to live in a suitable place free from: neglect, cruelty, drunkenness, criminality, or depravity on the part of his parents, guardian, or other custodian. It is only when these rights of the child are violated by the parents themselves that the child becomes subject to judicial control. A parent having-violated the rights of a child forfeits his right to the custody, control and upbringing of that child; and when the safety and best interests of the child demand it, the rights of the child must be protected by the court. In citing the above rights of the child, we áre not attempting to enumerate all of them, but merely to indicate the principle we have in mind. We believe it is these rights that the courts of this State and Other States have in mind when they speak of “the best interests of the child.”
The statutory' law of our State recognizes the parent’s right to his child. The statute, CLS 1956, § 703.6 (Stat Ann 1959 Cum Supp § 27.3178[206]), provides in part as follows:
“The father or mother of the minor, and if 1 of them be deceased, then the survivor thereof, being respectively competent to transact their own business, and otherwise suitable, shall be entitled to the custody of the person of the minor and to the care of his education.”
In the case of In re Adams, 214 Mich 199, 204, this Court, recognizing the father’s right to the child, said:
“The law makes him her guardian by. nature and for nurture, prima facie entitled to her care and custody.' Bearing in mind also the child’s best interests, the courts will primarily ‘feel bound to restore the custody where the law places it, with the father, unless in a clear and strong- case of unfitness on his part to have such custody.’ ”
In the case of Chevlin v. Tarner, 274 Mich 249, 251, this Court said:
“The mother seems now to he established in a suitable home and to be capable of taking and caring for her son. * * . * She has never yielded her legal right to the custody of this child. * * *
“That the child has been well cared for in the home of the grandparents cannot be questioned. * * * Primarily the mother is legally entitled to the custody of her 8-year-old child. * * * Relying much on the facts and reasoning in In re Goldinger, 207 Mich 99, the circuit judge found that the mother was entitled to the custody of this child.”
The Court affirmed the award of the child to the mother.
The same rule was followed in Greenman v. Greenman, 249 Mich 388. See, also, Burkhardt v. Burkhardt, 286 Mich 526; Riemersma v. Riemersma, 311 Mich 452, Shinkonis v. Johnstone, 312 Mich 199.
In Riemersma v. Riemersma, supra, 461, the Court quoted from the case of Burkhardt v. Burkhardt, supra, 535, as follows:
“ ‘The choice of a child of the tender age of 4 years cannot be considered by the court in its determination of what disposition shall be made of the,, case.’ ”
In the instant case it is admitted the Shiftans have provided well for the child. Although the record discloses the father made only 3 trips from New York to visit his daughter, he did write regularly and on several occasions sent her gifts. It is natural the child would be attached to her present home and to the Shiftans, since it is the only home she has ever known. The record discloses the present Mrs. Herbstman is willing and anxious to take the child into her home and give her proper care. To infer that it would not be for the best interests of the child to live in a proper home in New York City requires no answer. Certainly the lower court had no basis on the record to find the suggested drugging of the child indicated an inhuman attitude on the part of petitioner, any more than it would have been indicated on the part of Mrs. Shiftan. She testified a third party suggested giving the child a sleeping shot so that she might be brought to New York. No one attributed this remark to petitioner.
The reasons given by the trial court for dismissing the writ in the instant case are insufficient for denying custody to the father.
We conclude, on the showing in this record, that the father is a suitable person to have custody of his daughter and that he is legally entitled to such custody.
Other questions raised by defendants do not require consideration.
The order of the trial court dismissing plaintiff’s petition is vacated and set aside. The case is remanded to the lower court with directions to enter an order granting plaintiff’s petition and awarding him custody of his daughter forthwith. Plaintiff shall recover costs.
Dethmers, C. J., and Carr, Kelly, Smith, Edwards, and Souris, JJ., concurred with Kavanagh, J. | [
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] |
Edwards, J.
In this case the prosecuting attorney of Wayne county appeals from a circuit judge’s interpretation of 2 Michigan statutes which resulted in his quashing the information filed against a State prisoner for escaping from the Detroit house of correction.
Robert Reese was convicted in the circuit court of Ingham county of issuing checks with insufficient funds and committed to the State prison of southern Michigan at Jackson in 1953. Thereafter he was transferred from that prison to the Detroit house of correction where on March 12, 1954, he escaped. Following his return, he was charged under CL 1948, § 750.193 (Stat Ann 1953 Cum Supp § 28.390), and counsel for defendant moved to quash the information because this statute did not include the Detroit house of correction within the definition of “prisons” as to which it applied. The prosecuting attorney of Wayne county responded by citing CL 1948, § 802.55 (Stat Ann 1954 Rev § 28.1845), which provides in part:
“All laws now in force, applicable to persons confined in the State prison, shall he and are hereby made applicable to all persons who are, or hereafter shall be' confined in said house of correction, who have been transferred to said house from the State prison, or who shall be sentenced to confinement in said house, on conviction of any offense punishable by confinement in the State prison.” (Emphasis supplied.)
This statute was first passed in 1867. The prison escape statute in force in that year read:
“If any person, being imprisoned in the State prison for any term less than for life, shall break prison and escape, or break prison, though no escape shall actually he made, or shall, by force and violence, attempt to escape therefroin, he shall he punished by further imprisonment in the State prison not more than 3 years, or by fine not exceeding $500; and every prisoner who shall actually escape as aforesaid, shall, after his return to such prison, be imprisoned for as long a time as remained unexpired of his former sentence, at the time of such escape, besides such further term of imprisonment as aforesaid.” CL 1857, § 5843.
Subsequently this statute was amended and reenacted until in 1954, when defendant’s escape occurred, it then read:
“Any person, being imprisoned in any prison of this State for any term, who shall break prison and escape, or break prison though no escape be actually made, or shall escape, or shall leave said prison without being discharged- from said prison by due process of law, or shall attempt to break prison or escape therefrom, shall be guilty of a felony, punishable by further imprisonment for not more than 3 years, and every prisoner who shall actually break prison or escape or attempt to break prison, or attempt to escape as aforesaid, shall after his return to such prison, be imprisoned for as long-a time as remained unexpired of his former sentence, at the time of such breaking, escape or attempt to break or escape, besides such further term of imprisonment as aforesaid. Such prisoner who shall break prison or escape or attempt to break prison or attempt to escape as aforesaid, shall be charged with said offense and tried in the courts of the county wherein the administrative offices of the prison may be, to which said prisoner was committed or transferred, at the time of the breaking, escape, or attempt to break or escape. -The word ‘prison’ as used in this section shall include any Michigan State prison, penitentiary, reformatory, State house of correction, the grounds, farms, shops, road camps or places of employment operated by such institution or under control of the officers thereof, or of any police officers of this State: Provided, That escaping from the lawful custody of any guard or prison official or employee while outside the confines of such prison shall be deemed to. be a violation of this section.” CL 1948, § 750.193' (Stat Ann 1953 Cum Supp § 28.390).
1961] People v. Reese. 333 The parties herein agree that the 1954 statute 'under which defendant was charged with his break from the house of correction can only be applied to the present case if the term “all laws now in force” be interpreted to mean “all laws now in force -or hereinafter enacted.” It appears that in 1958 a statute was passed which -disposes of this matter prospectively. See PA 1958, No 215 (Stat Ann 1959 Cum Supp § 28.390). But, in the opinion of the circuit judge who granted the motion to quash, we are advised that there are 26 escapees who, if apprehended, would have to be prosecuted (if at all) under the same section (CL 1948, § 750.193 [Stat Ann 1953 Cum Supp § 28.390]) as is attempted to be used in relation to this particular defendant. Judge Rashid’s grant of the motion to quash was founded upon his desire to have a Supreme Court interpretation of the statute concerned. His opinion set forth his reasons for concluding that the 1867 prison escape statute had been repealed by implication. He said in part: “I cannot help but agree with the defendant’s theory, section 802.55 Compiled Laws 1948, enacted in 1867, and I am inclined to construe that statute to mean just what it says, ‘all laws now in force.’ “Now, obviously, section 750.193 Compiled Laws 1948 was not in force at that time. First, the act then as it existed, which counsel called my attention to yesterday provided for a 3-year penalty, plus a $500 fine. The act under which this prosecution is brought which is part of our penal code of 1931,* not only changes the penalty, but revised in extensive terms the act which was in existence in 1867. It not only changes the penalty, but also spells out what is meant by ‘a prison.’ It also has other provisions and the one you called my atten- * PA 1931, No 328. See CL 1948, § 750.1 et seq., as amended ,(Stat Ann § 28.191 et seq., as amended). — Repobtbb.
tion to, ‘escape from the custody of a guard or prison official,’ hence I think I am justified as a matter of law in concluding that the prison break act which was in existence in 1867 when section 802.55 was enacted, has been repealed by implication, not only by reason of the change of sentence, but by reason of the fact that it covers a whole new subject matter.”
The meaning of the term “now in force” would seem at first glance to be a simple matter to define. Actually, there is considerable doubt about the significance of the phrase since 2 well-established and permissible interpretations exist.
“NOW. An adverb which may be employed in any of several senses. It is said to have a fixed and definite meaning, and generally it implies the present time. However, the word does not in all circumstances necessarily mean at the present time, and the intent with which the term is used as gathered from the context determines its meaning. The word is sometimes used, not with reference to the moment of speaking, but to a time contemporaneous with something done.” 66 CJS, p 720.
Whether in a given statute the term “now in force” should be held to apply to the moment of adoption of the statute or to the moment of happening of a contemplated future event depends upon the total context, the circumstances surrounding the legislation, and what may be deduced from them as to the legislative intent.
It seems clear to us that in 1867, if defendant had escaped from the house of correction, the then-existing prison escape statutory penalties would have applied. We find it impossible to interpret the legislative language and intent otherwise.
This still leaves the question, however, as to’ whether the legislature intended by subsequent amendment and re-enactment of this statute to- leave no statutory penalty for escape from the Detroit house of correction. Nothing in the legislative language suggests this conclusion. And, of ■course, as we have seen, statutory penalties for escape from State prisons were maintained.
It is, of course, true that defendant was committed to a State prison, and was transferred to :and escaped from the Detroit house of correction at a time when it was not specifically referred to in the prison break statute.
It is also true, as appellee suggests, that in interpreting penal statutes this Court has indicated that it will require clarity and explicitness in the defining of the crime and the classification of acts which may ■constitute it. The reasoning behind this rule is that a penal statute should be so clear that any ordinary person can tell what he may or may not do thereunder. People v. Sarnoff, 302 Mich 266 (140 ALR 1206); People v. Goulding, 275 Mich 353.
We find it difficult to believe, however, that (assuming defendant had read these 2 statutes) he could have been misled into thinking that they constituted carte blanche for a prisoner situated like himself to escape with impunity.
The last proviso of the prison escape statute in effect at that moment said:
“Provided, That escaping from the lawful custody of any guard or prison official or employee while outside the confines of such prison shall be deemed to be a violation of this section.” CL 1948, § 750.193 (Stat Ann 1953 Cum Supp § 28.390).
This does not seem consistent with appellee’s contention that the statutory phrase “Any person, being imprisoned in any prison of this State” should be narrowly construed.
Further, any suggestion that placement at Detroit house of correction should be read as invoking merely administrative penalties is rebutted by CL 1948, § 750.194 (Stat Ann § 28.391), which imposes a statutory penalty of double the sentence then being-served on any prisoner at Detroit house of correction who escaped while committed to that institution.
Under all of these circumstances, we feel that the-2 statutes, CL 1948, § 802.55 (Stat Ann 1954 Rev § 28.1845), and CL 1948, § 750.193 (Stat Ann 195J Cum Supp § 28.390), must be read together and that the “ambulatory” meaning should be given to the words “now in force” contained in the first one. The word “now” should be held applicable to the time of the contemplated event, namely, the prison break.
While this is a matter of first impression in Michigan, the topic has been considered by other courts. Where the context and circumstances of the statute-suggested that the legislature intended the word “now” to apply in an ambulatory fashion to the-moment of happening of a future event, the courts-have given it this interpretation. Larson v. American Title & Insurance Co. (Fla), 52 So2d 816; Protest of Chicago, R. I. & P. R. Co., 137 Okla 186 (279 P 319); Arkansas Utilities Co. v. City of Paragould, 200 Ark 1051 (143 SW2d 11); State, ex rel. Brewster, v. Mayor and Commissioners of City of Lawrence, 101 Kan 225 (165 P 826).
Reversed.
Dethmers, C. J., and Carr, Kelly, Smith, Black;. Kavanagh, and Souris, JJ., concurred. | [
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] |
Souris, J.
Plaintiff and 49 others, for whom he ■sues as assignee, were employed by defendant company. The labor union which represented them had .a collective bargaining agreement with defendant which covered the periods from September 29, 1952, to September 29,1953, and from that date to September 29, 1954. Before the latter date negotiations ■commenced between the contracting parties for a new agreement and just prior to the expiration date it was extended by mutual agreement first, for a 30-day period, then for varying periods from time to time during continuing negotiations until it was allowed to expire on March 13, 1955. Thereafter, plaintiff and his assignors continued to work for defendant but without a collective bargaining agreement. It was stipulated at the trial that defendant’s operations were unprofitable and that, for that reason, by the end of May, 1955, it had ceased operations and had discharged plaintiff and all of his assignors.
Suit was brought to recover unpaid vacation pay benefits claimed due under the expired collective bargaining agreement which provided, in part, as follows :
“Article 7 — Annual Vacation
“Sec. 1. Employees who on July 1st have been in the employ of the company for 1 year, and less than 3 years, and who, during the preceding 12' months, have worked not less than 75% of the available working time, shall receive 1 week’s vacation,, with pay. Employees who on said date have been in the employ of the company for 3 years, but less-than 5 years, and who, during the preceding 12' months have worked not less than 75% of the available working time, shall receive 50 hours’ vacation, with pay. Employees who on said date have been in the employ of the company for 5 years or more, and who during the preceding 12 months have worked not less than 75% of the available working time, shall receive 2 weeks’ vacation, with pay.
“(A) Employees who on said date have been in the employ of the company 15 years or more, and who, during the preceding 12 months have worked not less than 75% of the available working time, shall receive 3 weeks’ vacation, with pay.
“Sec. 2. Vacation pay shall be computed by multiplying the employee’s regular straight time hourly earnings by the number of hours the plant is regularly scheduled to operate, not exceeding 48 hours per week.
“Sec. 3. The vacation period for all hourly rated employees shall be from June 1st to September 15th. In computing eligibility for vacation hereunder, any employee whose anniversary date of hiring falls within the dates of the vacation period shall be deemed to be eligible for the maximum period as provided for in section 1 above, irrespective of actual date of such employee’s vacation.”
Although the declaration is not entirely clear on the point, the pretrial statement limited plaintiff’s claims to vacation pay benefits on a pro rata basis-for the period immediately preceding March 13,1955, the expiration date of the agreement. In his brief' on appeal, however, plaintiff claims he is entitled to benefits computed as of the date he and each of his assignors respectively terminated their employment with defendant. The circuit judge who tried the case on stipulated facts entered a judgment of no cause of action and did not squarely determine the scope of plaintiff’s claims for relief. On appeal plaintiff asserts as 1 basis for recovery that if the contract is construed to require employment hy defendant on July 1st as a condition precedent to qualification for vacation pay benefits, the condition should be deemed waived to permit payment on a pro rata basis, at the very least, because he and his assignors were prevented by their discharge hy defendant, through no fault of their own, from compliance with the condition.
This argument overlooks the fact that at the time of discharge the collective bargaining agreement was no longer in effect. In the absence of any proof of an agreement, express or implied, hy defendant to pay its employees vacation pay benefits during the terminal period from March 13, 1955, to the dates of their discharge, there is no basis upon which plaintiff can claim such benefits for that period. We conclude that plaintiff’s claims must stand or fall upon the collective bargaining agreement for the period immediately preceding March 13, 1955, the date of the agreement’s expiration.
Plaintiff contends in his brief that the language of section 1 of the agreement is ambiguous and, therefore, justifies construction to permit qualification for vacation pay benefits even in the absence of employment on July 1st. Whatever merit there may he in plaintiff’s contention of contractual ambiguity, his argument applies only to the collective bargaining agreement upon its execution and during the 2; full 1-year periods it was in effect. But, on September 29, 1954, the parties thereto extended the agreement for 30 days, and again subsequently for varying periods of time until it was allowed to expire on March 13, 1955. We are not here concerned with what the parties intended in September of 1953. We- are concerned with what the parties contemplated with reference to vacation pay benefits when the contract was extended in September of 1954 until October 29,1954. It is, of course, as of the extension dates we must construe the language to determine the intention of the parties. Klever v. Klever, 333 Mich 179, and Sobezak v. Kotwicki, 347 Mich 242. The vacation pay provisions of the contract, considered as of the dates of extensions, have no meaning whatever unless they are construed to require payment of pro rata benefits upon expiration of the extended agreement. That the parties so intended logically follows analysis of the provisions of the contract as of the dates of its extensions.
On September 29, 1954, when it was mutually extended for 1 month, both parties knew that article 7 quoted above could never be fully implemented for any of the defendant’s employees because the extension was scheduled to expire before the next June 1st, the first date any employee could claim full vacation pay benefits under section 3. In construing this contract as of the various dates of its extensions, we must give effect to all of its provisions if it is possible to do so. Galperin v. Michelson, 301 Mich 491; Duval v. Aetna Casualty & Surety Co., 304 Mich 397; City of Detroit v. A. W. Kutsche & Co., 309 Mich 700; Singer v. Goff, 334 Mich 163; Burton v. Travelers Insurance Co., 341 Mich 30; Associated Truck Lines, Inc., v. Baer, 346 Mich 106. It does no violence to the language of article 7 to construe it, as we do, to réquire payment of pro rata vacation pay benefits earned by defendant’s employees up to the dates of expiration of the various extension agreements culminating with the final extension which expired on March 13, 1955. Not to construe the extension agreements in that fashion would require us to say that the parties attributed no rational meaning to the words of article 7.
Our ruling in this case is not inconsistent with our ruling or our reasoning in Treloar v. Steggeman, 333 Mich 166. In that case, this Court held the contractual language specifically required an employee to be on the company’s seniority list on a specified future date as a condition precedent to qualification for compensation in lieu of vacation. The future date specified in the contract, on the date of its execution, was clearly within the contemplation of the parties a date which would occur within the normal term of the contract. The fact that the contract was terminated legally prior thereto cannot alter the meaning of the language as intended by the parties when the contract was made. In the case at har, our concern is likewise with the parties’ intention, but that must be determined as of the time of extension, not as of the time the contract was first made.
We have been referred to a substantial number of authorities in other jurisdictions which seem to be in irreconcilable conflict (many of which are assembled in 30 ALR2d 351). Differences in contractual language used makes citation of these cases as authority extremely risky unless caution and discrimination are exercised. No case has been cited to us, and we have found none, which involves construction of a similar contractual provision as part of a short term extension agreement.
Judgment reversed and cause remanded for further proceedings in accordance with this opinion. Costs to plaintiff.
Smith, Black, Edwards, and Kavanagh, JJ., concurred with Souris, J. | [
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] |
Dethmers, C. J.
Plaintiffs’ amended bill of complaint, filed in 1960, alleges that they are owners of lots in a district zoned by a 1942 city ordinance as “C” 2-family residential, except for a limited area therein classified as “F” commercial; that defendant owns 3 lots in that district which originally were zoned “C” 2-family by that ordinance; that these lots are described as lots 6, 7 and 9 of block 4, Assessor’s Plat No. 16, city of Lansing; that in 1948 the Lansing city council amended the ordinance to change the classification of lots 7 and 9 from “C” 2-family to “J” parking; that in 1950 it was amended again to change lot 9 from “J” parking to “F” commercial; that in 1959 defendant petitioned for further amendment to change lot 6 from “C” 2-family residential to “J” parking and lot 7, except a por tion. thereof, from “J” parking to “F” commercial; that the ordinance was so amended in 1959.
Plaintiffs’ bill concludes with a prayer for an injunction against use of any of defendant’s 3 lots for purposes other than those permitted under a “C” 2-family classification or, in the alternative, an injunction limiting use of lot 7 to “J” parking purposes. The trial court granted defendant’s motion to dismiss the bill of complaint for failure to state a cause of action. Plaintiffs appeal here.
The enabling act, under which the ordinance was adopted, provides in section 4 (CL 1948, § 125.584 [Stat Ann 1958 Rev § 5.2934]) that, after its adoption, a zoning ordinance shall not be amended by the city’s legislative body until the so-called planning commission, therein provided for in cities of over 25,000 population, shall have made a report on the proposed amendment. Plaintiffs contend that there was no compliance with this requirement with respect to the 1959 amendment, that the latter is, in consequence, null and void, that, accordingly, the allegations of plaintiffs’ bill of complaint with reference thereto did state a cause of action, and that the trial court’s contrary holding was, therefore, erroneous.
Plaintiffs’ bill of complaint sets forth as the letter ■on the subject from the planning commission to the city council, the following:
“The planning board recommends that the petition by the Fred L. Kircher Company to rezone lot 6, block 4, Assessor’s Plat No. 16 from ‘C’ 2-family residence district to ‘J’ parking district and lot No. 7, block 4, Assessor’s Plat No. 16, except the south 33 feet of the west 66 feet, from ‘J’ parking district to ‘F’ commercial district be granted, because this is a logical expansion of a properly located business area.”
Plaintiffs say this was not a report as required by statute, but merely a recommendation. They say it is defective, particularly, because it does not disclose an investigation by the commission nor state information or data so gathered with respect to the effect which the proposed change would have on traffic congestion, public health, safety and general welfare- or on property values in the area. The statute does, not so require. Testimony taken at the hearing on the motion disclosed that a committee of the commission personally inspected the area and, on the basis of their knowledge and what they had seen,, reported to the commission, and it, thereupon, voted in favor of the rezoning and sent the quoted letter-to the city council. It will be noted that the commission advised the council that the rezoning would, constitute a logical expansion of a properly located' business area. The averments of plaintiffs’ bill of' complaint as to the zone classification of adjacent, properties bear out that finding of the commission and its report thereof to the council. Analogous is Detroit v. S. Loewenstein & Son, 330 Mich 359. Under its holding we can scarcely say that the letter to the council was insufficient to meet the statutory requirement for a report.
Plaintiffs also contend that the city council acted arbitrarily and capriciously and failed to comply with the standards provided in the enabling act to conform to the requirements of a general plan and particularly that it did not give reasonable consideration to the character of the neighborhood and the effects of the rezoning on traffic congestion, public health, safety or the general welfare.
Defendant’s lots 6, 7 and 9 are in block 4. Lot 8 includes the entire south end of the block. Adjacent to it, on the north and in the west half of the block, is lot 9. Adjacent to lot 8, on the north and in the east half of the block, is lot 7. Lot 6 is adjacent,, on the north, to lot 7. Thus the north boundary of the block-long lot 8 consists of the south sides of lots 7 and 9. As plaintiffs’ bill recites, lot 8 was zoned from the beginning as “F” commercial; in 1948 lots 7 and 9, both adjacent to 8, were rezoned as “J” parking and in 1950 lot 9 was rezoned again, this time to “F” commercial. Thus, at the time of the rezoning in 1959 of a portion of lot 7 from “J” parking to “F” commercial it was bordered for its full length on the south and its entire width on its rear or west end by lots 8 and 9, which already were “F” commercial, and lot 6 immediately north of lot 7 was made “J” parking which would logically afford parking accommodations for lot 7 as a commercial location. So it will be observed that the 1959 amendment served to extend the “F” commercial area in lots 8 and 9 to a portion of the immediately adjacent lot 7 and provided parking accommodation therefor on lot 6. The commission’s report to the council, therefore, properly reported that the rezoning of 1959 would be a logical expansion of an existing and properly located business area, at least one which, insofar as lot 8 is concerned, had been such since the inception of the zoning ordinance in 1942.
Despite the pleading of conclusions that the council’s action was unreasonable and arbitrary, no facts are alleged which, if proved, would establish it or overcome the presumption of the validity of the council action.
The lines of demarcation between different zones must be located somewhere. The moving of the line of the “F” commercial zone from the south to the north border, first of lot 9 and then of lot 7, and of the “J” parking zone from the south to the north boundary of lot 6 is not, under the allegations of the bill, except for statements of conclusions, arbitrary, unreasonable, or invalid but, on the contrary, entirely logical and reasonable. If it should, as alleged, increase traffic, that is no objection that might not be applied equally to all cases of zoning areas for business purposes. Such an allegation is insufficient to make out a case for plaintiffs.
Affirmed. Costs to defendant.
Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred;
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SAAD, PJ.
Plaintiff Oakland-Macomb Interceptor Drain Drainage District (“Drainage District”), a public sector drainage district, seeks to enforce provisions of its agreement to arbitrate with defendant Ric-Man Construction. The American Arbitration Association (AAA) failed to appoint a lawyer-member of the arbitral panel that had the specific, specialized qualifications set forth in the parties’ agreement.
I. NATURE OF THE CASE
Plaintiffs objection to the AAA’s failure to comply with the contractual requirements of a specific, highly specialized arbitral agreement raises an issue of first impression for a Michigan court’s application of the Federal Arbitration Act (FAA), 9 USC 1 et seq. That is, will our courts enforce the conditions of an arbitral agreement before the arbitral award has been issued when (1) the underlying subject matter of the arbitration involves complex technical and legal issues, (2) the arbitration agreement requires that the arbitrators possess a highly specialized professional background, and (3) the arbitration agreement specifically outlines a precise method to select said arbitrators?
Other courts that have looked at this narrow, but important, issue have made the following distinction, which informs our analysis: Courts will not entertain suits to address preaward general objections to the impartiality or expertise of an arbitrator. But when suit is brought, as here, to enforce the key provisions of the agreement to arbitrate — i.e., when the criteria and method for choosing arbitrators are at the heart of the arbitration agreement — then courts will enforce these contractual mandates. To rule otherwise would essentially rewrite the parties’ contract and rob the objecting party of this key contractual right to have a panel with the specialized qualifications necessary to make an informed arbitral ruling — which goes to the precise purpose and reason to arbitrate such technically and legally complex claims.
With this key distinction in mind and after a careful review of the comprehensive arbitration agreement, we note that this is not the standard, garden-variety, simple arbitration case or arbitration agreement. To the contrary, every provision of this arbitration agreement reveals that this is a complex matter, both technically and legally. Indeed, the agreement was “tailor made” to arbitrate a complex, large, public-sector sewer construction project, and it was entered into only after the parties encountered multimillion-dollar disputes against each other, which they could not resolve. And the agreement provides for extensive discovery; contains unusual provisions for waivers, statute of limitations, res judicata, and recorded proceedings; and mandates detailed findings by the panel in anticipation of potential claims by and against vendors, consultants, and other interested third parties.
In addition, the arbitration agreement expressly modifies the already sophisticated complex construction rules of the AAA by mandating very specific qualifications for the three-member arbitral panel and outlining the precise manner in which the AAA must appoint these panel members. Again, the parties spelled out very particularized qualifications that the panel members must possess. Their specialized experience would make it more likely that the panel would understand the complexity of the technical and legal issues presented, and thus render an informed decision.
Any objective reading of this agreement to arbitrate makes this intention very clear. Neither the parties to the agreement nor the AAA — which agreed to act as the third-party entity to implement this arbitration agreement — could possibly misunderstand or miss the significance of having high-level, quality arbitrators to hear the matters at issue and render an informed arbitral ruling. Therefore, when the AAA blatantly and inexplicably ignored these key provisions, plaintiff had only one course of action to ensure an arbitral hearing with the type of panel envisioned: it brought suit to enforce the contract. Notwithstanding the plain language of the agreement, defendant took the position that these provisions did not clearly call for the qualifications claimed by plaintiff. It also claimed that plaintiffs prearbitration suit to enforce said provisions was premature and contrary to the FAA that, it says, disallows prearbitration litigation regarding the qualifications of an arbitrator.
We disagree with defendant on both points and with the trial court, which ruled for defendant. Instead, we hold that it is abundantly clear that the agreement to arbitrate made the specialized qualifications of the panel central and key to the entire agreement. We also hold that when, as here, a provision to arbitrate is central to the agreement, the FAA provides that it should be enforced by the courts before the arbitral hearing.
The shibboleth that this approach would encourage delays is an artful and convenient dodge. It is quite obvious here that plaintiff strongly desires arbitration and, in fact, insists on an arbitral hearing, but only if it is meaningful, as contemplated by the contract between the parties. We also regard defendant’s contention that the AAA followed the agreement as, at best, disingenuous.
For the reasons set forth in this opinion, we reject defendant’s arguments, reverse the trial court’s findings, and remand to the trial court to issue an order to the AAA consistent with this opinion.
II. FACTS AND PROCEDURAL HISTORY
Plaintiff is a special-purpose public corporation established under the Drain Code, MCL 280.1 et seq. It owns the Oakland-Macomb Interceptor (OMI), which is part of an extensive sanitary-sewer system that delivers wastewater from suburban areas to the Detroit Water and Sewerage Department for treatment. Defendant Ric-Man is a construction company that entered into two contracts with plaintiff to build infrastructure needed to perform repairs on the OMI. These construction contracts include a brief dispute-resolution clause, which allowed the parties to agree to submit the claim to another dispute resolution process. Because plaintiff and defendant asserted serious multimillion-dollar claims against each other during the construction project, they implemented their contractual right to amend their initial contract with a much more detailed arbitration agreement. The new arbitration agreement submitted the dispute to binding arbitration, to be administered by the AAA, and it specified in § 1.3 that the arbitration panel had to consist of two construction-industry professionals and one attorney with a “ background in construction litigation” (emphasis added). The agreement also outlined a detailed set of requirements for the AAA to follow in the event that it, and not the parties, selected an arbitrator. In the relevant sections, the agreement states:
§ 1.3.4 Any selected arbitrator will be a member of the AAA Construction Panel. The arbitration panel shall include one construction lawyer and two construction professionals agreed upon by the parties or selected in accordance with the criteria set out below. If any arbitrators are selected by AAA, selection criteria shall be applied in the following order with the next level of criteria applied only if no candidates are available who meet the preceding criteria [emphasis added]:
§ 1.3.4.1 Construction Lawyer (1 member and 1 alternate)
A [m]ember of the Large Complex Construction Dispute (“LCCD”) panel and at least 20 years of experience in construction law with an emphasis in heavy construction. [Emphasis added.]
At least 20 years of experience in construction law with an emphasis in heavy construction.
A member of the LCCD panel and at least 10 years of experience with an emphasis in heavy [c]onstruction.
At least 10 years of experience with an emphasis in heavy [c]onstruction.
A member of the LCCD panel and at least 20 years of experience in construction law with some experience in heavy construction.
At least 20 years of experience in construction law with some experience in heavy construction.
A member of the LCCD panel and at least 10 years of experience with some experience in heavy construction.
At least 10 years of experience with some experience in heavy construction.
Accordingly, the key provisions — and those provisions directly pertinent to this appeal — concern the composition and selection of the arbitral panel. If the parties could, not agree on two construction professionals and one construction lawyer, then the AAA would choose a panel member that met the parties’ stipulated qualifications. And, in order to ensure that the most qualified available lawyer was chosen, the arbitration agreement specifies the declining, but minimal order of qualifications in the event a lawyer with all the desired qualifications is unavailable. Taken together, these provisions obviously attest to the importance and centrality of the qualifications of the arbitrators to the parties’ agreement to arbitrate. The central point of these provisions is that the parties agreed that, if available, the lawyer-member of the three-member arbitral panel must (1) be an attorney with experience in construction litigation, (2) possess 20 years’ experience in construction law with an emphasis in heavy construction, and (3) be a member of the Large Complex Construction Dispute panel.
These portions of the arbitration agreement were triggered in January 2012, when the Drainage District filed its demand with the AAA for arbitration against Ric-Man. Both parties selected the two constractionindustry-professional arbitrators from a list supplied by the AAA. But they could not agree on the construction-litigator arbitrator, thus leaving that position to be filled by the AAA in accordance with the procedures, methodology, and selection criteria specified in the arbitration agreement.
In August 2012, the AAA notified the Drainage District and Ric-Man that it had chosen Michael Hay-slip as the construction-litigator member of the panel. Hayslip unquestionably did not meet the qualification requirements of the contract. Though Hayslip was admitted to the Ohio bar in 1994, and worked in the construction industry throughout his career, he had no background in construction litigation — much less 20 years of experience with an emphasis in heavy construction, which is a key qualification required by the arbitration agreement — nor was he a member of the AAA’s LCCD panel. The Drainage District immediately objected to the AAA’s disregard of the arbitration agreement, but the AAA nonetheless reaffirmed its appointment of Hayslip.
Plaintiff subsequently filed suit against Ric-Man and the AAA in October 2012 to enforce its contractual right to have an attorney with the aforementioned qualifications on the panel. Plaintiff sought (1) a declaration that the AAA was required to appoint a lawyer with a background in construction litigation in compliance with the arbitrator-selection procedures specified in the arbitration agreement, (2) an injunction ordering the AAA to do the same, and (3) a judgment of summary disposition under MCR 2.116(C)(10), stating that Hay-slip lacked the necessary experience required by the agreement and that any award issued by the current arbitration panel was void.
Plaintiff also alleged that the AAA failed to follow the arbitrator-selection process outlined in the agreement, pointing to Hayslip’s relative lack of experience when compared to the alternate attorney-arbitrator, Weiers. Of course, as noted, in addition to his lack of experience in construction litigation, Hayslip’s professional background did not meet the first two criteria the AAA was supposed to take into account when choosing arbitrators: (1) he was not a Large Complex Construction Dispute panel member with at least 20 years of experience in construction law, and (2) he did not have at least 20 years of experience in construction law with an emphasis in heavy construction. Whereas Hayslip did not satisfy either qualification, Weiers possessed both.
In response, Ric-Man stated that a court cannot second-guess an arbitration decision and that the AAA followed the specified arbitrator-selection process. It contended that the arbitration agreement did not actually require the attorney-arbitrator to have construction-litigation experience, and that plaintiff sued simply because it was unhappy with the selected group of arbitrators.
The trial court rejected plaintiffs arguments, and held, erroneously, that the AAA’s selection of Hayslip complied with the plain language of the arbitration agreement. In so doing, it ruled that there was no language in the arbitration agreement requiring the AAA to appoint a construction lawyer with 10 to 20 years of construction-litigation experience. The trial court denied plaintiffs motion for summary disposition and dismissed the case.
Plaintiff filed an appeal in January 2013, claiming that the trial court erred when it denied the motion for summary disposition and dismissed the complaint. Specifically, plaintiff requests that our Court order the AAA to comply with the arbitration agreement.
III. STANDARD OF REVIEW
“This Court reviews de novo a trial court’s decision on a motion for summary disposition.” Hackel v Macomb Co Comm, 298 Mich App 311, 315; 826 NW2d 753 (2012). “In reviewing a motion under MCR 2.116(0(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). “Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
The interpretation of a contract presents a question of law that is reviewed de novo. Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006). “Arbitration agreements are generally interpreted in the same manner as ordinary contracts. They must be enforced according to their terms to effectuate the intentions of the parties.” Bayati v Bayati, 264 Mich App 595, 599; 691 NW2d 812 (2004) (citation omitted). See also Equal Employment Opportunity Comm v Frank’s Nursery & Crafts, Inc, 177 F3d 448, 460 (CA 6, 1999) (“Because courts are to treat agreements to arbitrate as all other contracts, they must apply general principles of contract interpretation to the interpretation of an agreement covered by the FAA.”).
IV ANALYSIS
Because both the Drainage District and Ric-Man agree that this case involves materials shipped through interstate commerce and is thus is governed by the FAA, we begin our analysis with the plain language of the applicable statute. Section 5 of the FAA, which governs the appointment of arbitrators, states: “If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed .. . .” 9 USC 5 (emphasis added). Significantly, to implement the mandate of § 5, the use of the term “shall” indicates that compliance with the methods specified in the agreement is mandatory. Further, to give life to this mandate, § 4 of the FAA permits “[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration” to “petition any United States district court... for an order directing that such arbitration proceed in the manner provided for in such agreement.” 9 USC 4.
Therefore, under §§ 4 and 5 of the FAA, courts have a statutory obligation to protect arbitral parties from abuse by the third-party agency conducting the arbitration. See Morrison v Circuit City Stores, Inc, 317 F3d 646, 678 (CA 6, 2003). If courts were to refuse prearbitration relief, arbitration agencies could ignore with impunity the specific terms of the arbitration agreement, thus effectively modifying the agreed-upon terms without eaph party’s consent. See id. at 678-680; Farrell v Subway Int’l, BV, unpublished opinion of the United States District Court for the Southern District of New York, issued March 23, 2011 (Docket No. 11 Civ 08), pp 10-11 (“[F]ederal law directs that the Court enforce the selection of the arbitrator in accordance with the terms of the [parties’] Agreement. . . .”) citing 9 USC 5; and Jefferson-Pilot Life Ins Co v LeafRe Reinsurance Co, unpublished opinion of the United States District Court for the Northern District of Illinois, issued November 20, 2000 (Docket No. 00 C 5257), p 4 (“The [FAA] clearly states that contractual provisions for the appointment of an arbitrator ‘shall be followed.’ ”), quoting 9 USC 5. To prevent such a material alteration of the contract, in cases in which the “parties have agreed to arbitrate, but disagree as to the operation or implementation of that agreement,” a court can remove an arbitrator before an award has been granted. B/E Aerospace, Inc v Jet Aviation St Louis, Inc, unpublished opinion of the United States District Court for the Southern District of New York, issued July 1, 2011 (Docket No. 11 Civ 4032), p 3 (citations and quotation marks omitted).
Accordingly, a party may petition a court for relief before an arbitral award has been made if (1) the arbitration agreement explicitly specifies detailed qualifications the arbitrator must possess, and (2) the third-party arbitration administrator fails to appoint an arbitrator that meets these specified qualifications. Therefore, a court may issue an “order, pursuant to § 4 of the FAA, requiring that the arbitration proceedings conform to the terms of the arbitration agreement entered into by the parties.” Morrison, 317 F3d at 678.
To hold otherwise under these facts would negate the purpose of arbitration: parties make arbitration agreements with the expectation that the third-party arbitral agency will honor important provisions of the agreements. If that agency disregards the explicit terms of the arbitration agreement — terms that were central to the initial contract between the parties — the disadvantaged party must have some access to judicial relief, and relief can be effective only before the arbitral hearing.
In such cases — as here, and contrary to defendant’s argument and the trial court’s ruling — it is not premature to give the disadvantaged party access to judicial relief before an arbitral award has been made. Essen tially, this is the only opportunity the objecting party has to demand an arbitration panel that conforms to the arbitration agreement. If the objecting party waits until the award has been made, it is very improbable that a court will offer relief. See Bell v Seabury, 243 Mich App 413, 421-422; 622 NW2d 347 (2000) (stating that “arbitral awards are given great deference and courts have stated unequivocally that they should not be lightly set aside”); and Dawahare v Spencer, 210 F3d 666, 669 (CA 6, 2000) (holding that “[a]n arbitration decision must fly in the face of established legal precedent for [a court] to find manifest disregard of the law”) (citations and quotation marks omitted). Thus, to prevent the party from receiving prearbitration relief would undermine the very purpose of an arbitration agreement, which is to ensure swift extrajudicial resolution of a dispute under bargained-for terms. See City of Bridgeport v Kasper Group, Inc, 278 Conn 466, 485; 899 A2d 523 (Conn 2006) (stating that “the primary goal of arbitration ... is to provide the efficient, economical and expeditious resolution of private disputes”) (citation and quotation marks omitted). And, here, contrary to the trial court’s ruling, the agreement to arbitrate made it very clear that the lawyer member of the panel must have specific and substantial experience in construction litigation — and yet the AAA chose a lawyer with no such experience.
Accordingly, the AAA obviously ignored the arbitration agreement when it made Hayslip the attorney arbitrator. The AAA could have easily corrected its failure to comply with the arbitration agreement when the Drainage District protested Hayslip’s selection, but it did not. Evidently, there were attorneys available to serve as arbitrators who met all the conditions of plaintiff and defendant’s contract, as demonstrated by the AAA’s decision to make Weiers — a lawyer with a “background in construction litigation” — the alternate attorney-arbitrator. The AAA’s refusal to comply with the arbitration agreement’s stated terms robbed the Drainage District of its bargained-for terms, and AAA’s repudiation of its obligation cannot be sanctioned by this Court.
V CONCLUSION
Pursuant to FAA §§ 4 and 5, plaintiff may enforce the precise language of the arbitration contract relating to the qualifications of the arbitrators and the method of choosing the arbitrators. Accordingly, we reverse and remand to the trial court to issue an order to the AAA requiring it to appoint an arbitral panel member who meets the criteria called for in the arbitration agreement, so that any subsequent arbitration will “proceed in the manner provided for in such agreement.” 9 USC 4; see also Morrison, 317 F3d at 678. We also award plaintiff its costs and attorney fees to be assessed by the trial court upon remand, which shall include the costs and attorney fees at both the trial and appellate level.
Reversed and remanded. We do not retain jurisdiction.
SAWYER, J., concurred with SAAD, RJ.
The agreement is attached as an appendix.
“We read contracts as a whole, giving harmonious effect, if possible, to each word and phrase.” Wilkie v Auto-Owners Ins Co, 469 Mich 41, 50 n 11; 664 NW2d 776 (2003).
After plaintiff brought suit, the AAA also chose Thomas Weiers as an alternate attorney-arbitrator. At the time of his appointment, Weiers had 25 years’ experience as a construction-industry attorney, with knowledge of both heavy construction and construction litigation, and was a member of the AAA’s LCCD panel.
See Burns v Olde Discount Corp, 212 Mich App 576, 580; 538 NW2d 686 (1995) (stating that “[t]he [PAA] governs actions in both federal and state courts arising out of contracts involving interstate commerce”). “State courts are hound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act.” Id.
“The word ‘shall’ is generally used to designate a mandatory provision . ...” Old Kent Bank v Kal Kustom Enterprises, 255 Mich App 524, 532; 660 NW2d 384 (2003).
Our ruling conflicts with a decision of the United States Court of Appeals for the Fifth Circuit, which held that parties generally may not challenge the appointment of an arbitrator before an arbitral award is issued. Gulf Guaranty Life Ins Co v Conn Gen Life Ins Co, 304 F3d 476, 489-490 (CA 5, 2002) (holding that “the FAA does not expressly provide for court authority to remove an arbitrator prior to the issuance of an arbitral award” and “does not expressly endorse court inquiry into the capacity of any arbitrator to serve prior to issuance of an arbitral award”) (emphasis omitted). As the Fifth Circuit explained, this narrow interpretation of a court’s authority in the preaward stages of an FAA dispute prevents “endless applications [to the courts] and infinite delay” and also stops overly litigious parties from bringing lawsuit after lawsuit to delay arbitration. Id. at 492 (citations and quotation marks omitted).
As noted, we do not find this analysis applicable to or persuasive under the specific circumstances of our case. See Truel v City of Dearborn, 291 Mich App 125, 136 n 3; 804 NW2d 744 (2010) (noting that “[d]eci sions from lower federal courts are not binding but may be considered persuasive”). As noted, requiring an objecting party to wait until an arbitral award has been issued before bringing a claim related to the composition of the arbitral panel, when said expertise is critical to a fully informed arbitral hearing, essentially robs the party of any opportunity to receive judicial relief. Guaranty also evinces an unwarranted lack of faith in the competence of our judiciary to distinguish between real and serious objections, as here, and frivolous developing tactics. We trust that in most cases, as here, the distinction is clear and obvious, and that courts should provide relief under the FAA.
As noted, Weiers was appointed as an alternate attorney-arbitrator after this litigation began. Our analysis might have been different if, on appointing Hayslip, the AAA had told plaintiff and defendant Ric-Man that it was unable to find any arbitrators that satisfied the contract terms. The AAA did not do so, however, and Ric-Man does not make this allegation on appeal — in fact, Ric-Man continues to maintain that Hay-slip was qualified to serve as an arbitrator under the terms of the arbitration agreement, which he clearly is not. | [
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Montgomery, J.
This action is brought by Henry A. Harmon, as trustee in bankruptcy of the banking firm of A. Ives & Sons, composed of Albert Ives, Butler Ives, and Albert Ives, Jr., to recover an alleged preferential payment of $750, made to Mr. Spalding on the 8th of September, 1900. The firm closed its doors on the 10th of September, 1900, and the members were adjudicated bankrupts on their voluntary petition on the 11th of that month. On the 8th of September, in the forenoon, a check was given to the defendant firm, under the circumstances hereinafter stated, for the sum of $750, and it is to recover the amount represented by this check that the present action is brought. At the close of the testimony the learned circuit judge directed a verdict for the defendants.
The bankruptcy act of 1898 (30 U. S. Stat. p. 544) provides that ‘ ‘ a person shall be deemed insolvent * * * whenever the aggregate of his property * * * shall not, at a fair valuation, be sufficient in amount to pay his debts” (chapter 1, § 1, subd. 3 5); and further provides (chapter 6; § 606) that if a preference is given within four months of the filing of the petition in bankruptcy, and the person receiving it “ shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value.” A further provision (section 60a) is that a person is deemed to have given a preference if, being insolvent, he has made a transfer of any of his property, the effect of which will enable one of his creditors to obtain a greater percentage of his debt than other creditors of the same class.
The learned circuit judge laid down the correct rule of law in deciding the case, the only question being whether a correct application of the law was made to the case in hand. The court stated the law to be that insolvency exists only when there are insufficient assets, at a fair valuation, — at a fair market value, — to meet the liabilities which then exist, and that a payment can only be considered a preferential payment when the person to whom it is made has reasonable cause to believe that this condition of insolvency existed at the time the payment was so made; that information as to facts which create a suspicion is not enough to charge the person receiving the payment under this statute. We think this view of the law of the case is sustained by Duncan v. Landis, 45 C. C. A. 666, 106 Fed. 839; Coll. Bankr. (3d Ed.) 345; Grant v. Bank, 97 U. S. 80; Stucky v. Bank, 108 U. S. 74 (2 Sup. Ct. 219); In re Eggert, 98 Fed. 843; Id., 43 C. C. A. 1, 102 Fed. 735.
But we are unable to agree with the conclusion of the circuit judge that there was no testimony from which the jury might justly have drawn the inference that Mr. Spalding, at the time he received this payment, had reasonable cause to believe the Iveses insolvent. In brief, the testimony was this: First. The Iveses were in fact insolvent. Second. Mr. Spalding had been the attorney of the Iveses, concerned in looking after their claim against one Michell, which was for a large amount; and, while he had collected something over*$31,000 of this sum, there was still a large amount owing to the Iveses. In addition to .this, it appeared that in May, 1900, Mr. Spalding acted as attorney in the examination of an abstract and drafting a mortgage given to the State Bank for $25,000 upon property of Albert Ives, Jr., who testified that, while the property mortgaged was his, his brother, Butler Ives, did all the business, and that he (Albert Ives, Jr.) simply signed the papers. This mortgage was in fact given in the interest of the banking firm, and it is not an unfair inference to be drawn by a jury that Mr. Spalding, who was the attorney of the firm, knew this fact. The testimony as to the giving of the check was given by Butler Ives, who testified that on the 8th of September, which was Saturday, checks had been drawn upon the bank in various sums, which he had allowed to go back without payment; that in this dilemma he sent for Mr. Spalding; that Mr. Spalding was the attorney of the bank at that time, and was attending to their business; that he said to- Spalding that he had let some checks go back, and did not know whether there would be any trouble about it, — did not think there would be, because Saturday afternoon was a half-holiday,- — but, if any trouble was made, he wanted him to act. He does not recollect what Spalding said to that, but, after they got through with that talk, Spalding wanted to know if he (Ives) could give him (Spalding) a check for what the bank owed him; that Ives inquired how much it was, and was told $750, and asked what it was for, and was told it was for services; that he thereupon drew the check in question, and gave it to Spalding, who on the same day received the money on it.
We think the inference to be drawn from this transaction as to whether Spalding had reason to believe the firm insolvent is an inference which should be drawn by the jury, and not by the court; and the cases cited by counsel for the defendants in no way militate against this view. The case of Grant v. Bank, supra, is a chancery case, determined on its facts. The court simply determined on the testimony in that case that the creditor had not reason to believe the bank insolvent. The case of Stucky v. Bank, supra, was a case of like character, which simply followed Grant v. Bank. In Re Eggert, which was first reported in 98 Fed. 843, it appears that there was a distinct finding, based on evidence, that the creditor had no knowledge of the fact that the bankrupt was insolvent, and had no reasonable cause to believe that it was intended by the transfer to give a preference. It was held — quite in line with the authorities — that, to constitute a voidable preference, the creditor must have reasonable cause to believe the debtor to be insolvent in fact, as a foundation for a reasonable cause to believe that an unlawful preference is intended. In the same case on review before the court of appeals (43 C. C. A. 1, 102 Fed. 735) this finding was adverted to, and it was said:
“The action of an ordinarily prudent man under given circumstances is necessarily a question of fact, rather than one of law. We are bound' by the finding of the court below.”
And the opinion concludes :
‘ ‘ Being unable to say, as a conclusion of law, that mere knowledge that the debtor was behind in his payments puts the creditor upon inquiry, and charges him with notice of the facts which such inquiry might disclose, and being bound by the facts found by the court below, we are constrained to deny the petition.”
This is far from saying that testimony of the character given in the present case is not sufficient for the consideration of the jury as bearing upon the question of whether the creditor has reasonable cause to believe in the insolvency of his debtor.
One other ruling should be adverted to. Plaintiff offered to show what certain property brought when offered at public auction. This was excluded, but, we think, was competent, under the holding in Smith v. Mitchell, 12 Mich. 180.
Judgment will be reversed, and a new trial ordered.
Hooker, C. J., Moore and Grant, JJ., concurred. | [
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] |
Montgomery, J.
This is an action of replevin for a house built by the defendants upon land held by them under a contract of purchase, the plaintiff being the vendor named in the contract. The defendants removed the house from the land contracted for, and plaintiff, claiming that the house, when built, became a part of the realty, and that the legal title vested in him, and that by a severance of the house from the lands the title remained unchanged, but that the house might thenceforth be treated as personalty, brought replevin. He was allowed to recover upon this theory, and there can be no doubt of his right to maintain the action, unless there was in the defense proffered a question which should have been submitted to the jury. Michigan Mut. Life-Ins. Co. v. Cronk, 93 Mich. 49 (52 N. W. 1035).
The defense urged was 'that the defendants were induced to enter into the content of purchase by false and fraudulent representations of the plaintiff as to the state of his title, and defendants contended that they had the right to rescind the contract, and remove the building from the premises. The circuit judge held, however, that it was not competent to try the title to real estate in an action of replevin. We do not so understand the rule of law. True, replevin will not lie for real property, but it is not rare that the title to personal property is determined by an inquiry as to its ownership at a time when it was a part of the realty. Cases where such an inquiry has been entered upon without question are not infrequent. Huron Land Co. v. Robarge, 128 Mich. 686 (87 N. W. 1032); Wells, Repl. § 5.
It is contended by plaintiff’s counsel that there was no evidence of fraud in this case. We are not prepared to hold that the record is wholly devoid of testimony which a jury might construe as intentional misstatements as to the state of the title. If such intentional misstatements wore made, and were materially false, it was competent for the defendants to rescind the contract; and this involved the right to place themselves in statu quo, so far as it conld be clone without injury to the freehold remaining.
The judgment will be reversed, and a new trial ordered.
Hooker, O. J., Moore and Grant, JJ., concurred. , | [
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Moore, J.
The statement of questions of fact is taken from the charge of the court to the jury, as follows:
‘ ‘ This is an action brought by the plaintiff against the defendant to recover the sum of $500, claimed to have been loaned to the defendant by the plaintiff under an oral agreement made between them. On the part of the plaintiff it is claimed that, .while the construction of the Grand Rapids, Belding & Saginaw Railroad was in progress, the agreement in controversy was made; that the principal contractor for the construction of this railroad was William Alden Smith & Co.; that J. H. McLane & Co., a firm of which the defendant is a member, was a subcontractor under Smith & Co., and that one Fred L. Beacham was'a contractor for the construction of a portion of the road under McLane & Co. The plaintiff claims, in substance, that on the 19th day of September, 1899, the defendant, John H. McLane, authorized and directed the plaintiff, through her agent, Fred Ford, to let Fred L. Beacham have not to exceed $500 in money, to be paid out for labor upon this railroad, and it is claimed that the defendant then and there agreed to repay the amount to the plaintiff as soon as the railroad was completed ; that, pursuant to this agreement, the plaintiff let Mr. Beacham have $500, which the defendant has not paid, and for the recovery of which this action is brought. On the other hand, the defendant claims that no such agreement was ever made as claimed by the plaintiff; that he never authorized the payment to Beacham by plaintiff of any sum of money whatever; that he knew nothing about the transaction, and never agreed to pay the plaintiff any portion of the money she may have let Beacham have. Further, the defendant claims that, if 'plaintiff' ever let Beacham have any money, she did it upon her own responsibility, and upon the credit of Beacham, and not upon his (the defendant’s) credit or responsibility. ”
The jury rendered a verdict in favor of the plaintiff. A motion for a new trial was made and overruled. The case is brought here by writ of error.
Upon the trial the counsel sought to show that, at the time of the transaction, J. H. McLane & Co. had a bank account. This testimony was excluded. It is said this testimony was competent as bearing upon the probability of Mr. McLane making the loan. Counsel cite In re Young’s Estate, 39 Mich. 429, and many other cases. An examination of the cases cited will show them unlike the case at issue. There was no claim in this case that Mr. McLane needed, to borrow money. The claim was that McLane & Co. were interested in not having the men quit work; that Beacham, the subcontractor, needed money; that Mrs. Ford refused to loan it to him, but would furnish it to him on the credit of McLane. She produced testimony which, if believed, showed that agreement. Mr. McLane denied it. The case was submitted to the jury, who found the version of the witnesses for the plaintiff to be the correct one.
Upon the completion of the testimony for plaintiff, a motion to take the case away from the jury because within the statute of frauds was overruled, we think properly, under Larson v. Jensen, 53 Mich. 427 (19 N. W. 130). It is claimed that, if any promise was made by McLane, it 'was collateral to the promise of Mr. Beacham, and void under the statute of frauds. The court instructed the jury that :
“The burden of proof is upon the plaintiff to establish her case by a fair preponderance of the evidence. And you will understand that it takes two parties to make an agreement. There must be a meeting of minds; each must understand the matter as the other does. This is the sole question in the case: Was the credit for the money which it is claimed was given to Beacham extended solely and exclusively to the defendant, John H. McLane ? The plaintiff claims that it was, and the defendant denies it. The plaintiff cannot recover unless you find that Mr. McLane was'the sole debtor. If there was any liability whatever existing against Mr. Beacham in favor of the plaintiff, the plaintiff cannot recover. It must be found by a fair preponderance of the evidence that the defendant, John H. McLane, is the sole debtor; that the credit was extended solely and exclusively to him; that no liability exists, or ever existed, against Mr. Beacham for this loan, ■ — before the plaintiff is entitled to recover. * * * In other words, as I have already said, you must find that the agreement claimed by the plaintiff was not only made, but that it was an independent agreement, separate and apart from any liability on the part of Beacham. Indeed, you must find that there was no liability on the part of Beacham, that defendant was the sole promisor, and that the credit was exclusively extended to him, before you would be authorized to find for the plaintiff.”
We think this fully covered the question presented.
We now come to the question of whether the court erred in refusing a new trial. Upon the motion affidavits were filed. Those of two of the witnesses were in relation to formal matters. Two of them were affidavits of lawyers who were consulted, not by Mrs. Ford, but by Mr. Ford, and gave him advice. They swore in the affidavits in relation to a paper which was produced on the trial, and that Mr. Ford made a different statement to them from what he testified to upon the trial. Oral testimony was also taken upon the hearing of the motion. The testimony of one of these witnesses must have been a disappointment to counsel, as he testified he remembered nothing about the transaction. The other witness who gave oral testimony was the cashier of the bank, who was a witness upon the trial. Upon the motion he swore in relation to alleged admissions made by Mrs. Ford. His recollection was not at all clear as to what was said by Mrs. Ford. Mr. Ford filed an affidavit denying the material statements made in the affidavits made by the two lawyers. Upon the hearing of the motion it was made to appear that, upon the trial, it was shown where the paper mentioned in the affidavits of the attorneys was drawn, upon the first day of the trial; that the case was not submitted to the jury until about noon the following day; that one of the attorneys making the affidavits then had an office in the same building as the attorneys for defendant, while the other one lived in Lowell.
As the two attorneys were consulted professionally, I do not think their affidavits were competent, or that they would be competent witnesses upon' a new trial; but whether that is so or not, as their testimony relates, not to-statements made by one of the parties to the litigation, but by a witness, that fact should be weighed in deciding the motion for a new trial. Conceding the affidavits to be competent, and taking all the affidavits and testimony in favor of the motion and opposed thereto, we are not satisfied such a showing was made as would justify this court in reversing the action of the circuit judge in overruling the motion for a new trial.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Grant, J.
(after staling the facts). 1. There was a sluiceway at or near the place of the accident. Defendant contends that the accident happened about 30 feet from the sluiceway, while plaintiff claims that it happened at the sluiceway, and that the bad condition of the road was on both sides of the sluiceway. We think there was a fair dispute as to the location of the hole into which the plaintiff drove, and that it was a proper question for the jury. The same is also true of the length of time the condition of the highway at this point had continued, and as to whether it was sufficiently repaired the previous fall. We cannot agree with the defendant’s contention that there was no dispute upon these points. It is unnecessary to set forth the testimony. We think it would have been error for the court to direct a verdict for the defendant.
2. We think the question of contributory negligence was properly submitted to the jury. Plaintiff had driven in safety over this place the day before and the fall before. Others had driven over in safety. Many teams may be driven safely over an unsafe place, but this is not conclusive upon the condition of the road or negligence of the traveler. Highways are made for use, and travelers are not prohibited from using them because there are mud-holes in them. In such cases they must exercise due care in driving, and greater care than they would where the road is in good condition. There is no evidence to show that plaintiff could have avoided driving over this place.
We also do not think plaintiff was, as a matter of law, guilty of contributory negligence in riding upon his load. There is sometimes as much danger, when driving over or along bad places, in walking at the side of the load, as there is in riding on top of it. We think all the questions were properly and fairly submitted to the jury.
Judgment affirmed.
Hooker, C. J., Moore and Montgomery, JJ., con- , curred. | [
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] |
Hooker, C. J.
The plaintiff recovered a verdict of $11,000 for injuries alleged to have been suffered while in defendant’s employ. In the third story of defendant’s warehouse there was an apparatus for hoisting and lowering boxes of material. It consisted of a wooden wheel, four or five feet in diameter, whose axis was a shaft which turned with the wheel upon bearings. This shaft extended through the gable of the building, and upon the outside there was a drum, eight inches in diameter, upon which a rope was wound, which served to raise the load. By turning the wheel inside, the rope was unwound from or wound upon the drum. The inner wheel was turned by an endless rope about two inches in diameter, which ran upon the face or edge of the wheel, which was about eight inches wide. Blocks two inches by four, with V-shaped notches cut in the center, were nailed upon the face of the wheel at intervals of about seven inches, and the rope was expected to run in these notches. There was testimony tending to show that some of the two' by four pieces had split off. Below the drum and opposite the wheel, in the gable, was a door, through which the box to be lowered was ejected. The plaintiff testified that he found it necessary to push the box out of the door, and that while doing so with one hand, while he held the endless rope with the other, the box got away, and he was violently jerked, and he afterwards found, “when he came to,” that the rope was off from the wheel. He was unable to explain how it was done, and the only theory upon which the jerk can be explained, under the evidence, consistent with his statement that he had hold of the endless rope, is that, in pushing the box out, he pulled the rope out of line with the wheel, and did not hold the rope tight, but allowed the wheel to turn, thereby running the rope off from the wheel, as would necessarily be the case. Unless we can say this, there is nothing to indicate how or why the accident occurred.
Assuming that the accident happened in the way mentioned, the questions in the case are: (1) Was defendant negligent in maintaining the wheel in a condition which would permit the rope to run off when pulled out of line, and not warning the plaintiff ? (2) Did the plaintiff assume the risk?
This wheel was a simple affair. From the description, and a model which was before us, it appeared that its alleged defects were visible to any one operating it who should take the trouble to look. It had been operated for years without serious results, although the rope would come off occasionally when pulled out of line and the weight simultaneously lowered. The V-shaped blocks were designed to aid in keeping the rope in place, and their purpose was obvious. If broken off, as some of them were, it was apparent that there would be less to keep the rope in place. It is common knowledge that, by pushing a rope or belt out of line with its. pulley, it will run off; so common that to presume that one who has worked about machinery does not know it, would not be justified. This man was an adult, and had worked about the shop of defendant for a long time. He was at the time a sort of a foreman, and a part of his duty was to fix the belts in the shop. We are of the opinion that he was as well able to judge of the necessity for keeping the rope in line as his employer was, and that he must have known that a failure to do so would be attended with danger that the rope would get off from the wheel, and that, if it can be said that the wheel was unsafe, it should also be said that the defect was apparent and the risk assumed.
The testimony shows that this plaintiff had used that wheel many times. If he had, he knew all about it as a matter of fact. He admitted that he had worked for this company ‘ ‘ off and on ” for twelve years. Harmon testified that he had seen him hoist boxes by that apparatus. Holden had seen him doing it frequently for two and a half years. Salters had been up there with him when he operated it, and had seen him at the warehouse often. Carlyle said he had helped him many times; or, as he stated it, “lots of times.” Warren said that-he had often seen him do it when he (plaintiff) was drayman for defendant. Gahler says he helped him hoist a number of times. Trowbridge had seen it many times. Gelow and Lampke each saw him raise and lower goods many times. As against this rather overwhelming evidence there is the testimony of the plaintiff that he never operated the wheel befoi’e, though his cross-examination indicates a familiarity with the method of doing the business hardly consistent with the statement. If, as claimed, his testimony gave him the right to go to the jury with the question, the weight of evidence was so( overwhelming against him as to satisfy us that a new trial should have been granted. Upon the proofs in the case, a verdict of $11,000 was- unconscionable. •
The judgment is reversed, and a new trial ordered.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Montgomery, J.
The complainant filed a bill to restrain the foreclosure of a mortgage given to defendant to secure the repayment of $1,500, advanced to complainant in accordance with the terms of the defendant’s bylaws. These by-laws provided for the payment, monthly, of $18, to be applied as follows: . Installments on stock, $4.50; interest (75 cents per month on each $100), $11.25; premium (15 cents per month on each $100), $2.25.
It is apparent that the contract was usurious, unless it can be treated as one authorized by law, and exempted from the usury laws. An elaborate argument is made to show that the contract by complainant was not essentially a loan, but a purchase of stock, and that, therefore, the usury law does not apply.
This court has recognized the dual relation of a borrowing stockholder, — i. e., that a stockholder may be a borrower, — and that the two relations are in a sense separate and distinct. Phelps v. Loan Ass’n, 121 Mich. 343 (80 N. W. 120); Russell v. Pierce, 121 Mich. 211 (80 N. W. 118); Myers v. Building Ass’n, 117 Mich. 389 (75 N. W. 944). In the case last cited we distinctly held that, to entitle these associations to the privilege of charging more than the rate of interest fixed by the general laws of the State, they must comply with the provisions of the law under which they are organized. In the present case there can be no doubt that the defendant*exacted an interest in excess of the 8 per cent, per annum, which was the highest rate authorized to be reserved by the statute in force when the contract in question was made. The contract reserved 9 per cent, per annum as interest, and 14-5 per cent, as premium, so called.
Section 7581, 2 Comp. Laws, provides for competitive bidding by proposed borrowers, and authorizes a premium bid in open meeting to be secured. And section 7584 provides :
“Corporations organized under this act being of the nature of co-operative associations, therefore no premium, fines, nor interest on such premiums that may accrue to the said corporation, according to the provisions of this act, shall be deemed usurious, and the same may be collected as other debts of like amount may be collected by law in this State. ”
It will be seen that this section does not exempt a reservation of interest, as such, from the general usury statute, but only premium and interest on such premium. It is clear, therefore, that in exacting interest at 9 per cent, the company exceeded the authority of the statute, and that the contract was usurious.
The statute (2 Comp. Laws, § 7581) provides for awarding loans to the stockholder who shall bid the highest premium for priority, and further provides:
‘ ‘ The said premium bid may be deducted from loan in one amount, or may be paid in such proportional amounts or installments, and at such times during the existence of the shares of stock borrowed upon, as may be designated by the by-laws of the respective associations. ”
It is contended that, under this statute, the premium bid must be a definite suui, payable either in gross or in installments for a stated period. The case of Mechanics’, etc., Bldg. Ass’n v. Wilcox, 24 Conn. 147, is cited to sustain this contention, and in its reasoning goes far towards doing so; but in that case no such statute as ours was under consideration. In Cantwell v. Welch, 187 Ill. 275 (58 N. E. 414), the supreme court of Illinois sustained a contract for premium like the present under a statute like ours. We think a bid of a premium of a stated per cent, is authorized by this statute. It is true it may not be known in such case just what the aggregate of the premium may be; but, on the other hand, if a stated sum be bid as premium, it is not known what rate per cent, this will amount to, for it cannot be known when the stock will mature. Requiring a bid of a definite per cent, affords no greater opportunity for deception or oppression in making a contract of this character than does a requirement of a bid in gross.
It is also contended that the premium bid was not binding, for the reason that competitive bidding was not allowed. The complainant testifies that he understood that there was such a system as bidding for priority of rights, and we are not satisfied that he did not understand that he was free to bid' according to his judgment, or that he understood that his bid would not be considered if less than 20 cents per share. Indeed, if he knew that there was a sys-: tern of competitive bidding, the presumption is that he knew that the board was bound to accept the best bid given, whatever it might be.
But, as the express reservation of 9 per cent, interest was illegal, it tainted the contract. What is the complainant’s remedy? It is claimed that all' payments made should be applied on principal, and that, on payment of the balance of the principal, the mortgage should be discharged. On' the other hand, it is contended that money paid as interest cannot be recovered back. This question was discussed by Mr. Justice Long in Fretz v. Murray, 118 Mich. 302 (76 N. W. 495). In that case it was held that, where payments were made upon a usurious contract without designation, they should be applied in extinguishment of the lawful debt, — i. e., the principal; but the court found it unnecessary to decide whether payments made on the contract as interest should be applied in reduction of the principal. The case of Fowler v. Trust Co., 141 U. S. 384 (12 Sup. Ct. 1), was cited, holding that the payments shall be so applied. We are satisfied with the reasoning of that case, and hold that, where it is sought to enforce a contract which was usurious at its inception, in so much as our statute provides that the court shall declare the interest void (section 4858), and that the debtor shall not be compelled to pay interest (section 4857), the recovery should be limited to the principal sum, less payments actually made, however designated at the time of payment. This is the only rule which effectuates the intent of the statute. Bateman v. Blake, 81 Mich. 227 (45 N. W. 831); Martin v. Building Ass’n, 2 Cold. 418; Moore v. Beaman, 111 N. C. 328 (16 S. E. 177); Borrowers’, etc., Bldg. Ass’n v. Eklund, 190 Ill. 257 (60 N. E. 521, 52 L. R. A. 637).
The decree will be reversed, and a decree entered in accordance with this opinion.
Hooker, C. J., Moore and Grant, JJ., concurred. | [
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Moore, J.
This is an application for a writ of mandamus to require the circuit judge to set aside an order adjudging relator to be in contempt of court for not obeying one of its orders. The record shows that on February 12, 1902, Susan Dillon filed a bill for divorce against relator, John T. McCurdy being her solicitor; and also filed a petition for alimony. On the 24th of February, 1902, the circuit judge made an order as follows:
“ It is ordered by the court that the said defendant pay to the said complainant the sum of five dollars per week temporary, alimony, payable weekly, from and after date hereof, during the pendency of this suit, or until the further order of this court; that he pay to John T. McCurdy, complainant’s solicitor in this case, the sum of fifty dollars; and that he also pay to complainant the sum of twenty dollars, to enable complainant to procure witnesses in said cause; said sums of fifty and twenty dollars to be payable as follows: One-half of said sum in twenty days from date hereof, and the remaining one-half in forty days from date hereof.”
The relator paid the weekly allowance and for witnesses, and $25 to the solicitor. On the 29th of April, 1902, Mr. and Mrs. Dillon became reconciled to each other, and went to living together as husband and wife. Without consulting their solicitors, Mrs. Dillon receipted to her husband in full, and both signed a stipulation discontinuing the suit, and filed it with the clerk of the court, and Mr. Dillon at the same time paid the court costs up to that date. May 7, 1902, Mr. McCurdy made a demand on Mr. Dillon for the payment of the unpaid portion of the solicitor’s fee, amounting to $25. It was not paid, and on the 17th of June Mr. McCurdy, without the knowledge or direction of Mrs. Dillon, filed a petition to have Mr. Dillon punished for contempt of court. The court made an order requiring Mr. Dillon to 'show cause why he should not be so punished. Upon the hearing Mr. Dillon set up the foregoing facts as a reason why he should not he punished. The judge thought they were not sufficient, and adjudged Mr. Dillon to be in contempt, and required him to pay within 10 days the $25, $3 costs for sheriff’s fees, and $10 solicitor’s fee on the motion, or, in default, that he be imprisoned in the county jail.
The authority of the court to make an order requiring the husband to pay any sums necessary to enable the wife to carry on or defend a divorce suit is found in section 8628, 3 Comp. Laws. In Parker v. Blighton, 32 Mich. 265, it was held that clients might settle cases without the knowledge or assent of counsel. In Wright v. Hake, 38 Mich. 525, it was said:
“It is suggested in the brief for defendants that the arrangement did not bind Merritt because not signed by his attorney. It is true that only the attorneys can manage a case, but it is equally true that the attorney cannot prevent his client making a compromise or settlement.”
There is nothing in section 8628, 3 Comp. Laws, which authorizes the court to make an order in a divorce proceeding that will prevent the parties'thereto from becoming reconciled and discontinuing the litigation. In this case, before a demand had been made upon the relator for a compliance with the order of the court, the case was discontinued. Under these circumstances it is difficult to see how any further order could be properly made therein. 12 Am. & Eng. Enc. Law (1st Ed.), 303; Stew. Mar. & Div. § 385; Chestnut v. Chestnut, 77 Ill. 346.
It is said:
“The order made adjudging relator herein guilty of contempt of court was a final order and judgment, from which relator had the right to appeal. Mandamus will not lie to review a final order and judgment, and relator has mistaken his remedy in this cause,” — citing cases.
This is the rule, but there is an exception to it, which was stated in Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270 (70 N. W. 582), as follows:
“ To this rule an exception is made if the slowness of ordinary legal forms is likely to produce such immediate injury or mischief as ought to be prevented. Merrill, Mand. § 198; People v. Cass Circuit Judge, 39 Mich. 410; Talbot Paving Co. v. Detroit Common Council, 91 Mich. 262 (51 N. W. 933).”
The relator has brought himself within the exception.
The order will be made as prayed in the petition.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Grant, J.
Complainant seeks a divorce from his wife on the ground of adultery. The court denied a decree because the proof was not “absolutely convincing.” We are compelled to reach a different conclusion. It is difficult to prove adultery more clearly than it is proven in this case. The adulterous disposition and the opportunity to gratify it are shown by the most positive testimony of witnesses wholly disinterested. Defendant and her corespondent, Plyer, are shown to have occupied the same room and the same bed on several occasions. They rented rooms in Ashland, Wis., where they lived together, and were known as Mr. and Mrs. Plyer. She spoke of herself as Mrs. Plyer, and he treated her in the presence of others as his wife. The question being one of fact, it is unnecessary to review it.
Decree reversed, and decree entered in this court for complainant.
Hooker, C. J., Moore and Montgomery, JJ., concurred. | [
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Moore, J.
This is an appeal from a decree in chancery. The questions involved are so well stated in a written opinion filed by the circuit judge that we insert it here:
“ The complainants in this case are the infant children of a son of Christopher Moross, deceased, and the bill is filed by them to secure their distributive share of the estate of their paternal grandfather and grandmother. The answer and cross-bill of the defendant Victor J. Moross, who is an uncle of the complainants, sets up that during the lifetime of his father, Christopher Moross, a certain piece of property, known as 152 Adams avenue, was given to him by his father as a wedding present; and the answer and cross-bill of Emma Ray and Celina Parent, two daughters of the deceased, Christopher Moross, sets up that some 26 years ago their mother, Emily Moross, gave to them a piece of property now known as numbers. 130 and 132 Adams avenue east, No. 130 going to Mrs. Ray, and No. 132 to Mrs. Parent; that at that time the-deceased, Christopher Moross, had moved on said property a double house; that he joined with his wife in the gift of said property to the defendants Mrs. Ray and Mrs. Parent. It appears further that another son of Christopher Moross, named Scott Moross, had been given a certain piece of property during the lifetime of his father, but that, he having died before Christopher Moross, upon his death Christopher Moross reasserted his title to said property.
“It is claimed by the three defendants, Emma Ray, Celina Parent, and Victor J. Moross, that the parol gift by their parents of the properties described, coupled with the possession of the same by them covering a period of from 20 to 27 years, and the fact that they have made valuable improvements upon the property, constitutes a set of circumstances which are sufficiently powerful to overcome the statutory provision that no estate or interest in lands shall be created except in such manner as the statute provides. They urge that it would be inequitable to them, after Christopher Moross and his wife had given them the properties in question, and had permitted them to live in them for such a long period of years, to now compel them to surrender the same to the estate of the decedent, and accept only their proportionate share of said estate. The equities of the case are met by these defendants by showing that Christopher Moross in his lifetime had advanced some money to Alfred Moross, the father of the complainants, and that at the time of the death of said Alfred the funeral expenses, amounting to some hundreds •of dollars, were paid by Christopher Moross.
“On the part of complainants it is contended that the improvements made upon said properties by the defendants Victor J., Emma, and Celina are of no value to the premises in question; that they constitute simply repairs in wood to old wooden houses, and that the houses in question at this time are practically valueless, the value of the property in question being simply its land value; that, whatever the improvements were worth at the time they were put on by the defendants Ray and Parent, they have been fully enjoyed by said defendants, and that the estate is in no wise benefited by the same; the condition of the premises now being only what it would have been had the land lain vacant. It is further contended that it is enough that these defendants have had the use of the properties in ■question, rent free, during a period equal to an ordinary lifetime, and for the major portion of the time with the taxes thereon paid by Christopher Moross, and that, in addition to that, to permit such free occupancy to ripen into an absolute title in said defendants would be to work an injustice to these infants.
‘ ‘ The evidence as to the gift from Emily Moross to Mrs. Ray and Mrs. Parent is rather meager, and is wholly, given by the parties in interest. Under my view of this testimony, I think it entirely inadmissible. This certainly is a claim by these parties against the estate of the deceased, and the gift, if it was made as testified to by the defendants, must certainly have been equally within the knowledge of the deceased, and therefore I do not think the testimony should be considered.
“Touching the gift from Christopher Moross to Victor J., his son, while it is certainly true that Christopher told outsiders that he had given this property to Victor, and even swore to it upon the stand in a case in which he sought to restrain a trespass upon the property, yet in the same case he declared that he was the holder of the legal title thereto, and averred under oath that he was the owner thereof. Christopher Moross was a man of very considerable interests, and, so far as the testimony discloses, a man of more than ordinary business capacity. Hé died possessed of a very large number of individual parcels of real estate, and was far more familiar with the necessary legal formalities attendant upon the transfer of a title or interest in real estate than the average layman. He lived to a very ripe old age, and remained in the free possession of his faculties almost up to the day of his death. Yet during all this time he never took the pains to execute a conveyance to Victor of the property which he had given. It must be presumed that he refrained from doing this with a purpose, and that it was his intention to retain the control of the property in question, and the right to dispose of it himself during his lifetime, if he so desired. The fact that when another son died, who had occupied property belonging to his father, he immediately resumed possession thereof, is strong corroborative proof that it was his intention to so retain control of the property in question as would enable him to resume possession thereof if he so desired during his lifetime.
“As to whether the late Emily Moross was a woman acquainted with business forms and the necessary steps to be taken in order to dispose of real estate or not, the testimony does not disclose. But, whether or not this be so, these other two defendants, Emma Ray and Celina Parent, are, and were during all the period - of occupancy, up to the time of their mother’s death, ladies of above the ordinary intelligence, and may be presumed to have known that it was absolutely necessary, in order to perfect their title, to secure from their mother a deed of the premises in question. This they did not do. In fact, the mother seems to have been entirely overshadowed by her husband, Christopher Moross, and, whenever the home of Mrs. Ray or of Mrs. Parent is spoken of, it is always Christopher who has given them their homes, instead of the mother.
“Upon consideration of the whole matter, I am of the opinion that no such gift was made by either Emily Moross to Mrs. Ray and Mrs. Parent, or by Christopher Moross to Victor J. Moross, as should be sustained by a court of equity. These three defendants have had the free use of the properties in question, with the taxes paid during the greater portion of the time by Christopher Moross, and it seems to me no more than just that now they should be considered a part of the estate, and partitioned with the balance thereof. If they have become attached to the property by reason of their long residence therein, there is no obstacle to their securing possession thereof in the distribution. A decree will be entered for the partition of the entire estate of Christopher Moross and Emily Moross, including the three parcels in question.”
The complainants insist that section 9509, 3 Comp. Laws, which reads, “No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing,” is applicable to the case. Counsel for appellants insist they have brought themselves within the provisions of section 9513, 3 Comp. Laws, which reads as follows: “ Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance of such agreements,” and that they have performed their part of their'agreement, and are entitled to have the land decreed to be theirs.
The law questions do not trouble us so much as does the question of whether there ever was a promise to deed these lands, and, acting under such promise, did defendants go into possession and make improvements? The original answer in the case averred the property was given to defendants as an advancement, which should be charged against defendants as of the date when they entered into occupancy. After the trial proceeded for a time, by permission of the court the answer was amended so as to claim an absolute gift of the property to the defendants. There is plenty of testimony indicating that Mr. and Mrs. Moross talked about having given a home to the daughters, and by Mr. Moross that he had provided a home for his sons Victor and Scott; but no witness says that either the father or mother said they had given a deed of any real estate to their children, or had agreed to do so. Mrs. Moross was nearly 78 years old when she died. She was an invalid for years, though she was fully possessed of her mental faculties. Mr. Moross was an old man when he died. The real estate was assessed to him, and for a good proportion of the time, at least, if not all of the time, he paid the taxes upon it. This was known not only to him, but to his children. He was the owner of a good deal of property. He at one time had a talk with one of the lawyers for the appellants, who gives the following version of what occurred:
“The conversation was this: I says to Mr. Moross, ‘You are getting to be an old man, and you ought to make a will.’ Says he, ‘I have got the papers all fixed.’ ‘Well,’ I says, ‘that isn’t enough, in my judgment. You ought to make a will, or else, if you have got any papers, they ought to be put in some other person’s hands, as an escrow, to be delivered to the parties entitled when you die.’ ‘ Well,’ he says, ‘ it is all right, anyway.’ That was all I could get out of him.”
As late as August, 1897, Christopher Moross filed a bill of complaint in a chancery suit, which was sworn to by him, in which he set out that he was the owner of the lot now claimed by Victor. It is true that upon the trial it is claimed he swore he had given the property to Victor, but the proceedings show the attention of both himself and Victor was challenged to the fact that the legal title was in Christopher. Shortly before his death, and while in the possession of all his faculties, he insisted upon having a quantity of money, which he had in the house, counted in the presence of his children, and put in a safe place. When this was done he expressed himself as satisfied. He knew and the appellants knew that no deeds of the property now claimed by the appellants had been made and delivered to them. If the parents intended to devest themselves of the title to this property, and put it in the defendants, it is very strange that, with all the knowledge that all of the parties had of the situation, no steps were taken to accomplish that purpose. The record discloses that Mr. Moross was kind to his children; that he supplied them with vegetables from the cellar; that for a series of years he paid for their annual supply of coal, and whenever they needed anything for their comfort he furnished it. The relations of the father and mother to the children were of the pleasantest character. There is nothing to indicate that they at one time made a gift which they afterwards regretted, and for that reason did not make the gift effective by deeding the property. We are not satisfied from the evidence it was ever expected the title would pass.
The decree is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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] |
Moore, J.
The plaintiffs are wholesale dealers in dry goods and notions doing business at Toledo, Ohio. They sold a line of goods to defendants, who were then doing business at Milford, Ind. This suit is brought to recover a balance due of $140.51. It is the claim of defendants that they were entitled to certain discounts, after deducting which there remained unpaid the sum of $134.10, and that this balance was paid by sending to plaintiffs, through the mail, a check reading as follows:
“$134.10. Mileord, Ind., Sept. 2, 1899.
“Miles & Higbee, Bankers: Pay to L. S. Baumgardner & Co., or order, one hundred thirty-four 10-100 dollars. Henry Bros.”
This check was stamped and marked “Paid” by Miles & Higbee, bankers, the paid stamp not showing date, however. No indorsements appear on said check, and no marks showing that it had passed through any bank except the drawee; it having been paid over the counter of Miles & Higbee, whose place of business is at Milford, without indorsement. It was the claim of defendants that they had sent checks several times before this, which had been received as payments, and this check was sent with the understanding it was to be received as payment. It was their further claim that the check was paid to the plaintiffs or their agent. 'These claims of defendants are denied by the plaintiffs, who claim the check was paid to one of the defendants. The payment seems to have been made by a son of Mr. Higbee, who at the time of the trial was in Indiana, but was not called as a witness. The jury rendered a verdict in favor of defendants. The case is brought here by writ of error.
It is claimed that, as the check was not indorsed, it was error to admit it in evidence. The record discloses that Miles & Higbee had paid a number of checks drawn by the defendants to the payees without requiring the checks to be indorsed. In view of the claims of the respective parties, we think it was not error to admit this check in evidence. To say the least, it was a link in the chain of evidence which defendants were entitled to make in their effort to establish their defense.
The defendants called as their witness Mr. Higbee. His testimony disclosed that the cash book kept by the bank showed the check was paid September 7th, and the amount thereof was charged to defendants. He testified it was paid by his son during Mr. Higbee’s temporary absence from the bank; that he saw the check on the spindle. An attempt was made on the cross-examination to show what the son told the father as to who presented the check. On the objection of the defendants, this testimony was very properly excluded. After this was done, the defendants were allowed to introduce in evidence a letter from Mr. Higbee, in which it was stated the check was evidently presented by the traveling representative of the plaintiffs. This was clearly hearsay, and incompetent. It was not a trial between the defendants and the bankers, so that the letter could be treated as an admission. Mr. Higbee was not present when the check was paid. He knew nothing about it, except what he had been told. The statements in the letter were based on hearsay.
Error is assigned on the exclusion of the testimony of Dr. Patterson. He had testified to the presence of one of the defendants in the bank, and to his getting money, on the presentation of a paper, from young Higbee, in the temporary absence of his father. It was sought to show by him what conversation occurred between the father and the ■son when Mr. Higbee returned to the bank. This conversation did not occur in the presence of either of the defendants, and was properly excluded. If Dr. Patterson saw the paper which was presented, and could identify it as the check in question, it would have been proper for him to so testify.
The other questions necessary to be discussed relate to the charge of the court. Among other things he told the jury:
“The defendants claim they sent the check through the mail under an arrangement that they should pay plaintiffs for goods purchased of plaintiffs by sending their personal check on the Milford Bank by mail in payment; and if you find it was understood that the defendants should send their check by mail to the plaintiffs, and were directed to do so by the plaintiffs, the defendants then would be discharged from liability by properly depositing the same in the post-office, inclosed in an envelope duly addressed to the plaintiffs at their usual place of business in Toledo, Ohio, with the postage prepaid, because in that case the plaintiffs would make the post-office employés their agents, and would assume all risk of the check’s getting into other hands, and being paid to some other person.”
We think this charge was misleading. In National Life-Ins. Co. v. Goble, 51 Neb. 5 (70 N. W. 503), it is said:
“ The payment of the premium is not claimed except by the draft forwarded to the agents of the company. In regard to this claim, it is the established rule that a draft or check is not a payment of a debt, in the absence of an express agreement that it is taken or received in payment. It is but a means by which payment maybe obtained. It is conditional upon its being honored when presented, and, if dishonored when presented, it effects no payment of the debt for which it was drawn, unless there was an express -agreement that it was to be accepted or received in payment. 2 Greenl. Ev. § 520; 2 Dan. Neg. Inst. § 1262; 2 Morse, Banks, § 543; 18 Am. & Eng. Enc. Law, 167; Born v. Bank, 123 Ind. 78 (24 N. E. 173, 7 L. R. A. 442, 18 Am. St. Rep. 312); Mullins v. Brown, 32 Kan. 312 (4 Pac. 305); National Bank of Commerce v. Railroad Co., 44 Minn. 224 (46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566); Holmes v. Briggs, 131 Pa. St. 233 (18 Atl. 928, 17 Am. St. Rep. 804); League v. Waring, 85 Pa. St. 244. The fact that the agent of the company acknowledged the receipt of the draft, and forwarded to the defendant in error his renewal receipt, was not conclusive. The draft, when presented, was dishonored; hence there was no payment, and the receipt was of no force. 18 Am. & Eng. Enc. Law, 170, note in second column; Weaver v. Nixon, 69 Ga. 700; Fleig v. Sleet, 43 Ohio St. 53 (1 N. E. 24, 54 Am. Rep. 800); Weddigen v. Fabric Co., 100 Mass. 422.
“We will next give our attention to the notice sent by the agents to defendant in error, by which they informed him of the approaching maturity of the insurance premium, and requested that a remittance be made, such request being in terms as follows: ‘ Please remit by bank draft, registered letter, express or post-office money order.* It has been argued that this amounted to a direction relative to the manner of the remittance, a compliance with which on the part of defendant in error, as to the manner or medium of remittance therein indicated, constituted the remittance a payment of the premium, regardless of the ultimate outcome, or whether the agents or company, as a result of such action of defendant in error, subsequently received the money or not. The statement quoted from the notice amounted to a request at most, and was not binding upon the defendant in error. It might have been wholly disregarded; but compliance with it in any one of the ways or means suggested for the transmission of the amount necessary to meet the payment soon to be due was sufficient to entitle the defendant in error to claim such rights as thereby arose in his favor under the rules of business and law applicable thereto, but none other or further. He chose to remit by draft purchased at any bank of his own selection, to be drawn payable by any bank and at any place he chose to designate, and thereby placed the transaction and his rights thereunder within the rule that it was not a payment of the premium until the draft was received, presented, and honored.”
Giving the fullest effect to the testimony of the defendants, it did not amount to an express agreement that the mailing of the check should be equivalent to a payment. Nothing was said about the amount of the check, or the bank upon which it was drawn. There was nothing in the conversation to indicate that the sending of checks was to take the check out of the rule of law applicable to the giving of checks by the debtor and the receiving of them by the creditor.
The court also charged the jury as follows:
“If you find that, in the usual course of dealings between the parties to this suit, they allowed defendants to send their check by mail to the plaintiffs, this would be an assent on the part of the plaintiffs, and an authority on the part of the plaintiffs could thus be inferred; and in such case, if the defendants mailed their check to the plaintiffs at their usual place of business, with postage prepaid, and properly addressed, and such check was after-wards paid by the bank on which such check was drawn, and charged to the defendants’ account, this would operate as a discharge of the debt to the amount of such check, provided it was not paid to the defendants or one of them.”
We do not think this is a proper statement of the law, as will appear by what is said above. See 18 Am. & Eng. Enc. Law (1st Ed.), 167-173; National Bank of Commerce v. Railroad Co., 44 Minn. 224 (46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566); Comptoir D’Escompte de Paris v. Dresbach, 78 Cal. 15 (20 Pac. 28); In re Bennett’s Estate, 52 Mich. 415 (18 N. W. 195); Williams v. Carpenter, 36 Ala. 9 (76 Am. Dec. 316).
Judgment is reversed, and new trial ordered.
Hooker, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
This is an injunction bill. After a full hearing it was dismissed. The complainant has brought the case here by appeal.
The appellant is a plank-road company, owning and operating a plank or gravel road extending from the city limits of the city of Detroit to the village of Birmingham, along the continuation of the street in the city of Detroit known as “Woodward Avenue.” Prior to the 1st of March, 1899, the parties entered into a contract by which complainant granted to defendant certain rights, which need not be mentioned in detail. After this contract was made, defendant constructed and operated a single-track railway from Detroit to Pontiac.
March 21, 1899, another contract was made between them, the material parts of which, so far as they relate to this controversy, read as follows:
“ Thai Whereas, second party now owns and is operating a single-track electric or street railway between a point about 246 feet north of the Kanady road, so called, on the line of Woodward avenue, extended, and a point in Birmingham, which is the northerly terminus of first party’s right of way; and
“ Whereas, second party desires to construct a second electric or street railway track between a point about 246 feet north of the Kanady road, so called, on the line of Woodward avenue, extended, and a point in the village of Birmingham, which is the northerly terminus of the first party’s right of way, upon a private right of way which it has purchased and is purchasing adjacent to the highway controlled by the first party, and through the village of Birmingham, and perhaps at one or two other points, to encroach upon the right of way of said first party; and * * * .
“Note, therefore, in consideration of the payment in cash hereinafter mentioned by second party to the first party to this instrument, said first party hereby agrees to permit as aforesaid, and make no objection or not to obstruct the second party, or its assigns, from constructing, maintaining, and operating said second electric-railway track; said second electric-railway track, where it is built upon the highway, except in the village of Birmingham, to be constructed between the roadbed of said highway and the fence in such a manner as in no way to encroach upon said roadway, or hinder the public travel thereon, nor to obstruct or damage any public or private approach to said toll road. It being mutually agreed that if, at any place, it shall be necessary to construct said second electric-railway track so near the roadbed as to cause any damage or encroachment upon said roadbed, second party shall, at its expense, but under the supervision and direction of first party’s foreman, whose time shall be paid for by the second party, extend the roadbed as far upon the opposite side of the roadway as it encroaches upon it with its track or grading; such newly-built portion of the highway to be constructed in a substantial and satisfactory manner, and left in as good condition as that part of the roadway which is appropriated. And second party further agrees that, in constructing said second electric street-railway track, it will at all times have regard for the safety and convenience of teams passing along said highway, and at all places along said highway will leave ample and sufficient room for the free passing of each other by teams drawing loaded vehicles; it being the undertaking of second party in this regard that it will not in any way interfere with the safety or convenience of the traveling public which have occasion to use the toll road owned and controlled by first party.
“ It is further mutually agreed that, contemporaneously with the paving of any portion of the highway now maintained as a gravel road by the party of 'the first part, the two tracks, or either of them, of the party of the second part, may be moved to the center of the street, and there laid and constructed in accordance with the usual methods of laying track in paved streets. * * *
“If at any time said electric road shall cease to be operated by electric power, or by any other power permitted upon the streets of the city of Detroit, this agreement shall be null and void.”
Some time prior to the commencement of this suit, the «defendant had conveyed its single track and its rights through the village of Highland Park to the Detroit Citizens’ Street-Railway Company. The village decided to pave this street, from Detroit through the village to its northern boundary, known as the “Six-Mile Road.” Double tracks were l^iid through the center of this street to the Six-Mile road, and it became necessary to connect these tracks with the single track running north from the Six-Mile road, which track was laid on the westerly side of the highway, and west of the traveled portion thereof. In November, 1899, the defendant entered upon the work of making this connection. Complainant claimed it proposed to do it in an improper manner, and filed this bill, asking for an inj unction. The application for a preliminary inj unction was refused. At about this time the solicitors for the respective parties had a conference with a view of reaching an amicable adjustment. A map or plat had been prepared by a civil engineer at the request of complainant. This plat was indorsed, “Plat accepted,” and signed by the solicitors for the respective parties, both of whom say an agreement of settlement was then reached. The defendant was to pay $42 for the expense of making the plat and other expenses which had then accrued. A day or two thereafter a check was sent for the amount. Later it was returned by complainant, it contending that the connection was not made according to the lines drawn upon the plat, while it was the claim of defendant that the connection was made according to the terms of the plat. Afterwards a hearing was had, and proofs taken. The circuit judge was of the opinion there had been no violation of the terms of the contract, and, if there had been, that complainant had an' adequate remedy at law, and dismissed the bill of complaint.
The controversy arises over the making of the connection between the double track at the Six-Mile road and the single track north of that point. It is the claim of complainant that, before the double tracks were extended to the north boundary of the village, the connection was made within 171 feet, and that the new connection could have been made within the same distance, but that defendant did not do so, but encroached unnecessarily upon the traveled portion of the road, by taking 440 feet in which to make this connection, and that, when the agreement was made between the attorneys, the plat showed the connection was to be made within 171 feet. It is the claim of defendant that the only purpose of making the second agreement was to enable it to double-track its road; that, when the bill was filed, it had done so from Birmingham to a point less than a mile north of the Six-Mile road, and that it had the rails distributed between these points, and intended, as soon as it could, to complete the double track, and that the plat presented when the agreement between the attorneys was reached, showed, in red ink, how the connection would be made when the double track was completed, and that the connection was made, having the plat, and the fact that the double track was to be completed to the Six-Mile road, in mind; and that defendant has done nothing not justified by the contract.
"Without going into detail, we are satisfied that the purpose of the contract was to enable defendant to double-track its road. To do this, it was contemplated it might be necessary to encroach upon the traveled portion of the highway. We are not satisfied from the testimony that defendant has unnecessarily encroached upon the traveled portion of the highway, but, if it has done so, the complainant has an adequate remedy at law. We decline to express any opinion as to whether the defendant ought to build the double track west of the existing track, for the reason that it is not necessary to do so, and for the further reason that all the parties in interest are not before us.
The decree is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Montgomery, J.
This is an action of ejectment, involving a piece of land six inches in width, extending from the front to the rear of lot -2 of T. J. Park’s subdivi sion of certain lots on the Riopelle farm, in the city of Detroit. The plaintiff sold to the defendant lot 1 and the south feet of lot 2 of this subdivision. It is stated in the brief of plaintiff’s counsel that the plaintiff supposed that he had sold 50 feet of ground to the defendant, while the defendant understood that he was getting 50 40-100 feet. According to the plat and conveyances, the defendant’s claim that he purchased more than 50 feet is supported. This controversy is not, however, material in the case, except as it may show an occasion for the controversy which has been waged over this small strip of land. On the trial the whole case was made to turn upon the question of where the correct boundary line was. Upon this question there was conflicting testimony, four different surveyors having testified in the case. The case was fairly submitted to the jury in a charge not open to just criticism, and the jury found a verdict for the defendant. The plaintiff brings error.
The first assignment of error discussed in the brief of counsel is upon the refusal of the court to allow the witness King, one of the surveyors, to answer the question: “If Jerome’s line were accepted, in what way would it affect the old boundary lines, or the lines north of that ?” The court, in excluding this testimony, remarked: ‘ ‘ Anybody could tell that, because, if he is right in his statement, it would put them all so much farther north.” This statement is absolutely correct, as a matter of fact, as shown by the record. For the witness to have answered this question would have been to again measure his testimony against Jerome’s, and it is manifest that the refusal to permit this answer could not have prejudiced the plaintiff. The next question, which was very similar, was open to the same answer.
Error is assigned upon the exclusion of certain questions put to the witness Jerome, one of the surveyors, who had made a survey at the instance of the plaintiff, but who was called by the defendant. These questions, so far as they were not repetitions of what had gone before, related to the question of the depth of the lots. It appears by his testimony that he did not survey to ascertain the depth of lot 1, and, as the depth was not in controversy, we cannot see how the plaintiff was prejudiced by the exclusion of this testimony.
Error is also assigned upon certain remarks of counsel in the course of the case. Without setting out at length the language used, we think no error was committed which calls for a reversal of the case on this ground.
Certain requests were presented, asking to have the survey of Jerome excluded from the consideration of the jury, on the assumption that he had not commenced his survey at the correct starting point. But we think that his testimony shows that he started from a well-recognized point, and that there was sufficient to authorize the jury to consider his survey.
We discover no error in the record, and the judgment will be affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.' | [
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] |
Hooker, C. J.
The plaintiff was injured through the fall of a bent under the end of a bridge. This bridge was built by the township over a drain many years ago, and in the fall of 1892 it was rebuilt. The north posts rested upon the old mudsill, which was sound, and was not disturbed. The men who rebuilt it stated that the bed of the mudsill was below the bottom of the drain. The negligence complained of is that, in rebuilding the bridge, the contractor left the mudsill some inches above the bottom of the drain, and that it was afterwards undermined by ■water; and plaintiff claims that the bridge was never properly constructed in that respect, and that the township was chargeable with notice of the condition, because it was a defect in repairing or reconstruction.
The plaintiff relied upon the testimony of one Stone to prove that the bottom of the drain was below the mudsill. This witness said that he was employed to clean out this drain, and in doing so deepened it; that the bridge was rebuilt in the fall of 1892, just after he had cleaned and deepened the drain; that he worked to a profile; that the ditch was two feet on bottom and eight feet across top, slope one to one. On direct examination he said, “I should think I dug from 12 to 16 inches below the bottom of the mudsill.” On cross-examination he admitted that he might have said on a former trial that it might have been four of five inches below the sill. He stated further on cross-examination:
“ Q. I understand you to say now, when you had completed it, the bottom of the ditch was 12 to 16 inches below the bottom of the mudsill. Is that right ?
“A. I said I dug the ditch 15 or 16 inches.
“ Q. You dug it down 15 or 16 inches ?
“A. Fifteen or 16 inches under the bridge.
“ Q. Do you say that carried it below the bottom of the mudsill ?
“A. It carried it below the bottom of the mudsills several inches; more than 4 or 5 inches.
“ Q. About how many inches?
“A. I should think at the least calculation 10 inches, or somewhere along, there.- I don’t know as I did testify before it was 4 or 5 inches.
“ Q. Explain how it was you said before it was not more than 4 or 5 inches. How much below the bottom of the mudsill was the bottom of the ditch when you were there a year ago ?
“A. I could not say exactly. It was considerably lower. I went regardless of the old ditch at all. I went by the, grade stakes, and dug down to the grade. Some places I would have to dig out more than ever was taken out before ; you understand, out of the old ditch; got down below the bottom of the old ditch. Other places I wouldn’t have so much to dig out; take out what was caved in and filled in; I say, in places. I think some sand washed in at the bridge; most always does. I have an -idea, when I last saw it the ditch was some lower than the mudsill. I could not, say exactly how much. I could not tell anywhere near. I don’t suppose how deep it was. It was below the bottom of the mudsill more than 4 inches. I could not say how much more.
“ Q. Six or 8 inches?
“A. I could not say whether it was or not.
“ Q. Twelve or 15 inches ?
“A. Might have been.
“ Q. Might have been 12 or 15 inches?
“A. Might have been; might not have been so much.
“ Q. I will ask you this: How much below the mudsills —the bottom of the mudsills — did you actually dig ?
“A. Below the bottom of the old mudsill 15 or 16 inches; somewhere in that neighborhood.”
It was shown that, upon a former trial, he testified that he dug 12 or 15 inches, and, when through, it was 4 or 5 inches below the bottom of the mudsills. There was other testimony similar to that of Stone.
The undisputed testimony in the case shows that this bridge stood three years after rebuilding, that during that time it was subjected to severe and repeated tests, and that heavy threshing outfits crossed it without trouble. The description of the drain as given by Stone, and of the bridge as given by all, permit a conclusion as to the condi tion of the bridge, when rebuilt, with 'something like mathematical certainty.
It is shown by the diagram annexed, which is predicated on the testimony, that it was 16 inches below the bottom of the sill, and is therefore a favorable view of plaintiff’s proof.
The law requires that highways be made reasonably safe and fit for travel. If once put in such condition, there can be no liability for a defect until the municipality can be said to be chargeable with notice of such defect. Not only does the diagram show that the center of the mudsill was five feet and more distant from the edge of the ditch at the bottom, and four feet and three inches from the ditch at the level of the bed of the sill, but it also shows that the whole bent was taken out and floated down the stream, at a time of exceptionally high water, when the stream overflowed' its banks. We are of the opinion that the court did not err in holding that the evidence failed to show that this bridge was not, as constructed, reasonably safe and fit for travel. A township is bound to anticipate only the things that are reasonably probable, and it is not proper to hold the public to a strictor account than private persons. In the history of the country it has been no un common thing for floods to undermine and wreck bridges, the construction and cost of which must bear some reasonable and practicable relation to the ability of a community, which is restricted in some respects as to the money at command for such purposes. The public is not an insurer. It is apparent that this township endeavored to maintain a reasonable bridge, and did so until, from extraordinary conditions, it was weakened, and settled when plaintiff crossed it.
The rule for which counsel contend is a severe one. It is not that the liability is for a defect which is at once a source of danger, but one which may at some time in the future become so. It is not a construction that will necessarily become dangerous, but one which may or may not, depending on the nature of prospective events. All roads are subject to wear, and to washouts through the action of floods. It goes without saying that townships know this. Yet, until apprised of the defect caused by wear or washout, there is no liability. The legislature has said that the traveler must take the risk of danger of these things until the municipality not only has notice, but an opportunity for repair. When this bridge was rebuilt, it had every semblance of a good and stable structure. Moreover, by three years’ úse it was proved to have been so when erected. ' Not only the township, but every one else, plaintiff included, believed it to be so. It was only when, in the course of time, it became out of repair by the fortuitous undermining of its foundation, that it became defective and dangerous. It is too strict a rule to say that the township should have anticipated this possibility, as it would be to say that it should anticipate that nails will rust and break, beams become affected by dry and invisible decay, or iron girders and supports become crystallized and weakened. Everything is subject to these changes, and every one knows it. Either of two policies may be adopted: One to compel the township to know and protect against these dangers, — i. e., insure the traveler against them; the other to require diligence, as our law does, but to liinit liability to cases where knowledge or notice exists. The rule contended for nullifies the statute.
In the case of Rochefort v. Inhabitants of Attleborough, 154 Mass. 140 (27 N. E. 1013, 26 Am. St. Rep. 221), it was held that a town was not liable for an accident caused by a defect in a culvert so constructed that the defect was likely to occur in the remote future, where the defect had not existed for such a length of time as to make the town chargeable with notice thereof, and there had been no such defect at that place for more than a year previously. See, also, Stoddard v. Inhabitants of Winchester, 154 Mass. 149 (27 N. E. 1014, 26 Am. St. Rep. 223).
The case of Wakeham v. Township of St. Clair, 91 Mich. 27 (51 N. W. 696), is in point. There the township maintained a causeway, built of logs and covered with dirt, along a river. It was a common occurrence for the dirt to drop through, leaving holes, owing to the action of the water; and the township knew every time that it repaired the way, if it did not when it was constructed, that this would inevitably happen if that method of construction was adopted or retained. Held, that notice was necessary to create liability.
We think, however, that the judgment should be reversed upon the ground that the question of notice was for the jury, there being some testimony tending to show that the imperfect condition of the bridge was visible and generally known for a long period.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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] |
Montgomery, J.
On the 7th day of March, 1901, Mary E. Young was adjudged a bankrupt by the district court of the United States for the Eastern district of Michigan. Franklin B. Galbraith was appointed trustee in bankruptcy. At the time of the adjudication Mary E. Young had an interest in the unadministered estate of her mother, Mary Ann Osmun. The trustee filed a petition in the probate court of Oakland county, setting forth these facts, and asking to be appointed administrator of the estate. The appointment was objected to by William H. Osinun, Sr., who was the husband of the deceased. The appointment was made, notwithstanding the objection, and an appeal taken from the order making the appointment to the circuit court for the county of Oakland, in which court the order was affirmed. The case is brought before us'for review on certiorari.
The statute (3 Comp. Laws, § 9324) provides that the parties in interest shall be entitled to administration in the following order:
“ First, The widow, husband, or next of kin, or a grantee of the interest of one or more of them, or such of them as the judge of probate may think proper, or such person or persons as the widow, husband, next of kin, or grantee may request to have appointed, if suitable and competent to discharge the trust;
‘ ‘ Second, If the widow, husband, next of kin, or grantee, or the person selected by them, shall be unsuitable or incompetent, or if the widow, husband, next of kin, or grantee shall neglect, for thirty days after the death of the intestate, to apply for administration, or to request that administration be granted to some other person, the same may be granted to one or more of the principal creditors, if any such are competent and willing to take it;
“ Third, If there be no such creditor competent and willing to take administration, the same may be committed to such other person or persons as the judge of probate may think proper.”
More than 30 days had elapsed after the death before the petition was filed, and it is doubtful whether the husband is in a position to complain of the appointment of any suitable person. See Wilkinson v. Conaty, 65 Mich. 620 (32 N. W. 841). But we think the case may well be determined upon the point'made by the plaintiff in error. It is contended that the petitioner, Galbraith, is not the grantee of the next of kin, within the meaning of this statute. We fail to perceive why not. Certainly the interest which Mary E. Young had in her mother’s estate passed by the assignment in bankruptcy to the trustee. He became a grantee of that interest, and, we think, is within the word, as well as the spirit, of the statute. This being so, we do not feel that we would be justified in interfering with the discretion exercised by the circuit judge.
The order will be affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. | [
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Montgomery, J.
This is an action for negligent injury to a passenger, in which the plaintiff recovered a verdict and judgment of $200, and defendant brings error.
The plaintiff became a passenger in a caboose attached to a freight train. Before entering the caboose, he accepted and signed a ticket in which he agreed to exercise the highest degree of care to protect himself from injury, and agreed, if injured notwithstanding such care, to make no claim against the company. The defendant, however, does not, in the brief filed in this court, rely upon this contract as conclusive of plaintiff’s rights; but it is insisted that the plaintiff’s testimony, taken as a whole, shows that he was guilty of contributory negligence, and that a verdict should have been directed for defendant.
The testimony of the plaintiff tends to show that, when he entered the caboose, the front door of the caboose stood open; that he then knew that the train crew was still engaged in switching, and that cars were likely to be brought in contact with the caboose with greater or less force; that there was a chair in the caboose, not fastened down, and that there were abundant seats which were fastened solid; that this chair was the chair provided for the conductor, and for use in connection with the table in one corner of the caboose, provided for the conductor for making his memoranda upon; that, instead of taking one of the regular seats provided for passengers, plaintiff took a seat in this chair, facing thp front door, and awaited events; that he leaned over to sneeze, holding his head between his two hands, and just at this critical moment the collision occurred, threw him against the door, and caused the injuries complained of.
So far as the contact of the car with the caboose is concerned, and the resulting jar, it may be said that it was the expected which happened. It is therefore a question of law as to whether, with this knowledge, it was the exercise of common prudence to take this loose seat, which was certain to be thrown a greater or less distance by any jar which might occur,.instead of taking the fixed seats which were provided for passengers. There is no question of ample.room in the seats, as plaintiff was the only passenger. The case of Norfolk, etc., R. Co. v. Ferguson, 79 Va. 241, is like this in principle. It was there held that it was contributory negligence, as matter of law, for a passenger on a freight train to take a chair near an open door in a caboose, instead of the fixed seat which was provided for passengers. So, in Harris v. Railroad Co., 89 Mo. 233 (1 S. W. 325, 58 Am. Rep. 111), it was held that a plaintiff who knew, or by the exercise of ordinary care could have known, that' the freight train upon which he was a passenger in the caboose had stopped to do switching, and that part of the train was likely to be backed against the part to which the caboose was attached, and who, without paying any attention to whether the cars were approaching or not, left his seat and stood up in the car, was guilty of such contributory negligence as barred recovery. A similar rule was laid down in Smith v. Railroad Co., 99 N. C. 241 (5 S. E. 896), where the plaintiff was sitting on the arm of á seat when he had every reason to expect a sudden jolt or shock from the backing of one portion of the train against another.
Plaintiff relies upon the case of Moore v. Railroad Co., which was twice before the court, and is reported in 115 Mich. 103 (72 N. W. 1112), and again in 119 Mich. 613 (78 N. W. 666), and upon the case of Stoody v. Railway Co., 124 Mich. 420 (83 N. W. 26). Neither case is authority for the plaintiff’s recovery in the present case. In the Moore Case the collision occurred before the plaintiff had an opportunity to occupy a seat in the car. The collision occurred when he was in the act of sitting down. In that case, however, the rule was recognized that one who takes passage on such a train is presumed to understand that the cars must be coupled and uncoupled and shifted in the course of the yard work at the various stations, and that jars, jolts, jerks, and concussions are incident to the ordinary management, and that these necessarily affect the equilibrium of persons standing in the car. Applying that rule to the present case, it may be added that such jars and jolts would be known by the passenger to necessarily cause some change in position in the loose chair occupied by him. In Stoody v. Railway Co. it was held that the plaintiff was not guilty of contributory negligence in entering the car and taking his seat, although the rest of the train was then backing towards him. In that case it appeared that he had sufficient time to enter the seat and brace himself in the seat to avoid the jar, — a very different-measure of precaution than taking a seat in a loose chair, facing an open door, as was done in the present case.
We are constrained to hold that, as matter of law, plaintiff was not in the present case in the exercise of due •care, and the judgment will be reversed, and a new trial ■ordered.
Hooker, C. J., Moore and Grant, JJ., concurred. | [
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Montgomery, J.
In this proceeding the City Savings Bank has been found insolvent, and a receiver appointed to take charge of its assets and distribute the same among the creditors. The petitioner was a depositor in the savings department of the bank, and in this petition asks that, in the distribution of the assets, the investments made of the funds deposited with the savings department be held solely for the benefit of the depositors of savings funds; and the sole question presented is whether there are any ■assets as to which petitioner is entitled to this preference.
Section 27 of the general banking law (2 Comp. Laws, § 6116) provides as follows:
“A savings bank shall keep on hand at least fifteen per cent, of its total deposits. * * * Three-fifths of the remainder of its savings deposits shall be invested by the board of directors in bonds of the United States or of this State, or in the bonds of any other State of the United States, * * * or in the public debt or bonds of any city, * * * or upon notes or bonds secured by mortgage lien ■upon unincumbered real estate,” etc.
And section 29 of the banking law (2 Comp. Laws, § ■6118) reads:
“Any bank combining the business of a commercial bank and a savings bank shall keep separate books of ■account for each kind of business: Provided, that all receipts, investments, and transactions relating to each of said classes of business shall be governed by the provisions and restrictions herein specifically provided for the respective kinds of banks: And provided further, that all the investments relating to the savings department shall be kept entirely separate and apart from the other business ■of the bank, and that the fifteen per cent, reserve, required by the provisions of this act to be kept on the savings deposits, shall be kept separate and distinct from the reserve required on the commercial deposits, and that such portion of said savings deposits as are on hand unloaned, or deposited with other banks or reserve agents, and the investments made with the funds deposited by savings depositors, shall be held solely for the payment of the depositors of said funds.”
These provisions are not ambiguous. They are perfectly clear. And we agree with the learned judges of the circuit court, who heard this case below, that the question of convenience in banking, or inconvenience resulting from the enforcement of the law, can in no way concern us, if we ascertain the legislative intent, and that we are bound to enforce the law as we find it upon the statute books. The difficulty in this case arises from a claimed inability to follow the particular funds which were received as savings deposits. It is undoubtedly true that there was a commingling of funds. But the books of the bank always showed the amount which had been received by the savings department. From time to time, reports were made to the banking commissioner, showing that the savings funds had been invested in mortgages and bonds to the amount of about $1,000,000. It also appears from the testimony of Mr. Muer that the real-estate loans were conducted through and carried in the savings department, and so-reported to the banking commissioner. It appeared by the testimony of the cashier that this was true not only of the real-estate securities, but of the bonds, amounting to about $100,000. The rest of the savings-department deposits were invested in commercial securities. So long-as it is entirely possible to trace the fund which was invested in these securities as a fund derived from the savings department, we think there is no difficulty in saying that it should be impressed with a trust in favor of the savings depositors. See Ledyard v. Hibbard, 48 Mich. 421 (12 N. W. 637, 42 Am. Rep. 474); Sherwood v. Bank, 103 Mich. 109 (61 N. W. 352); Board of Fire & Water Com’rs of Marquette v. Wilkinson, 119 Mich. 655 (78 N. W. 893, 44 L. R. A. 493).
The point is made that some,of the commercial loans were secured by mortgages, and afterwards the mortgages-accepted in satisfaction of the loans; and it is said, as to these securities, that they had not their origin .in a loan of funds from the savings department, but from the commercial department of the bank, and should be so treated. We think this point is well taken, and that the case should be remanded, with leave to the receiver to apply to the court for direction regarding any mortgages claimed to • fall within this class. In all other respects the order of the circuit court, which provided that the real-estate securities and bonds be applied to the savings deposits, and that, as to the excess of savings deposits over and above these securities, the depositors should share with the commercial creditors, will be affirmed, and the case remanded for further proceedings. No costs will be awarded on this appeal.
Hooker, C. J., Moore and Grant, JJ., concurred. | [
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] |
Grant, J.
(after stating the facts). Defendant insists that this clause of the deed was an exception, not a reservation, and that the title to the timber remained in Mr. Fletcher and his grantees. It is immaterial whether this be called an exception or a reservation. Mr. Fletcher sold the fee of the land, reserving certain timber standing thereon. This clause did not give him the right to deprive his grantee of the use of the land so long as he saw fit to let the reserved timber stand. The timber reserved was the timber then having a market value and suitable for use; i. e., large enough for use as timber. It did not reserve trees then growing and not large enough for timber, but which would be large enough in the course of 15 or 20 years. To hold otherwise would give the grantor the exclusive control of the land, except as to the timber not reserved. It seems unreasonable that such language should be construed into a permanent right to enter at any time in the future and cut and remove the timber. Where the timber alone was sold, and nothing said as to time of removal, we held that it must be removed within a reasonable time. Ferguson v. Arthur, 128 Mich. 297 (87 N. W. 259). See, also, Andrews v. Wade, (Pa.) 6 Atl. 48; Boults v. Mitchell, 15 Pa. St. 371. Where one sells land, reserving the timber for no other purpose than for removal, we see no good reason why the same rule should not apply. Where is the difference between selling timber to be removed, and selling the land, reserving the timber to be removed, so far as the question of time for removal is concerned ? The reason for the same rule in each case is apparent. The language of the reservation gave the grantor the title to the timber, and the implied right to remove the same within a reasonable time. Such a reservation is vastly different from the reservation or exception of minerals lying beneath the surface, which do not interfere with the complete enjoyment of the property conveyed. A different rule might prevail as to mineral reservations. If defendant’s theory be sustained, one who reserves the title to the timber could forever deprive his grantee of the use of the premises conveyed. Such an exception or reservation would be entirely repugnant to the grant, and would be held void. , An exception or reservation of a portion of the realty for the purpose of removal, and which is situated upon the surface, is very different from an exception or reservation of something designed to remain permanently upon or under the land, and which is not repugnant to the grant.
Counsel for defendant cite and rely largely upon Wait v. Baldwin, 60 Mich. 622 (27 N. W. 697, 1 Am. St. Rep. 551), where, after the granting clause, are the words “excepting timber therein.” If the language used on page 626 of the opinion received the approval of a majority of the court, it would seem to be decisive of this case fa favor of the defendant, for it was there said :
“ Such a right, where 'there are no words in the contract showing a limitation of the time of enjoyment, or within which it shall be exercised, is not revocable; nor can it be terminated at the will of the owner or grantee of the land, nor by notice to remove the timber in a i'easonable time.”
Two justices concurred in the result only, but whether they questioned this point or some other is not shown. Such opinions are not conclusive, unless the opinions show in what points the justices concur, and on what they dissent. * It is evident that upon some points of the opinion the justices were evenly dividéd. We do not, therefore, feel bound by this language of the opinion.
It does not appear that any notice to remove the timber was given by the grantee to the grantor. The record contains no evidence that the grantee either said or did anything to indicate to the grantor thaí he desired possession of the land, and desired him to remove the timber. We think it was the duty of the grantee to so notify the grantor, and that the grantor was entitled to reasonable time after such, notice in which to remove it. Andrews v. Wade and Boults v. Mitchell, supra. The law will not permit the grantee in such a case to obtain the title to the reserved timber without notice to the grantor to remove it. The situation and circumstances may be such that the grantee is not prejudiced or injured by the standing timber. He cannot rest in silence under such circumstances, and thus defeat the reservation. The burden of proof was upon the plaintiff, and, having failed to show any notice, or the equivalent thereof, the judgment must be affirmed.
Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Per Curiam:
The question raised by this application is, whether it is competent for one of several plaintiffs or defendants to carry a case heard before a justice of the peace to the circuit court by appeal, or whether all the plaintiffs or defendants, as the case may be, must unite in the appeal. It is urged that the language, that "any party,” etc., may appeal, must be read as meaning that all the litigants, on the one side or the other, may appeal. This is too narrow. The very next section requires the “party appealing” to present to the justice an affidavit made by himself, his agent or attorney, etc., and the expression is here employed manifestly in a sense as extensive as in the first section, and it is quite obvious that it could not have been intended to require all the litigants on the side desiring to appeal to unite in the affidavit. The oath of one is plainly sufficient and has always been so considered.
The statute has always been construed in practice as authorizing an appeal by any litigant “conceiving himself aggrieved,” whether others on the same side did or did not “feel aggrieved,” or desired or did not desire to appeal, and a contrary course would, or might, lead to very great injustice. The principle would have to be applied to removals by certiorari as well, and there would be room for the joining of persons as parties for the very purpose of cutting off an appeal or certiorari. However wrong the joinder, the complaining party, if ruled against by the justice, could get no redress. The refusal of the person joined with him for the precise ■purpose would prevent.
Some inconveniences are possible in case of appeals when all on the appealing side do not unite. But the disadvantages and mischiefs which would be likely to arise from the other construction would greatly overbalance them. The ■construction which has been heretofore acted on is most •consistent and most safe and beneficial, and is well authorized by the terms used.
Writ granted. | [
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] |
Cooley, Ch. J:
The plaintiff in error was defendairt in the court below, and the case comes to this court on a finding of facts, of' which the following is a copy:
“The action is brought upon a promissory note of one thousand dollars, signed by Curtis Boughton, George Gano and J. C. Boughton, dated November 20, 1870, and payable with interest at ten per cent, at one year.
“The defense set up by Gano was, that he signed the note as surety for O. Boughton, and that when the note became due, Heath, for a valid consideration, extended the time of payment one year, without the knowledge or consent of Gano.
“From the evidence I find the following facts:
“1. On the 5th day of August, A. D. 1870, the defendant and Curtis Boughton purchased a valuable farm lying in this county, at a foreclosure sale made by one Hull under a mortgage from one Stevens to him, and received a commissioner’s deed therefor. By an arrangement with Hull, C. Boughton and George Gano became jointly obligated to pay to Hull thirteen thousand dollars on the 30th day of November of the same year upon such purchase.
“3. On the 19th day of said November, C. Boughton applied to one Ormsbee to borrow one thousand dollars for one year. Ormsbee informed him that Heath, the plaintiff, had the money to loan. At C. Boughton’s request, Ormsbee drew the note in suit and Boughton took the same to Gano and Gano signed the same with Boughton. It was the understanding between Gano and Boughton, when they purchased said farm, that each should pay one-half of the amount of the purchase, which was about thirty thousand dollars.
“3. When Gano signed the note, he handed Boughton some money and gave him orders upon some persons for amounts to make out one-half of the thirteen thousand dollars going to Hull; he knew that Boughton was getting the one thousand dollars to pay Hull upon the joint debt of him and Boughton. Boughton took the note to Ormsbee ' and received the one thousand dollars of him of the money of Heath, and went and paid the thirteen. thousand dollars to Hull.
“4. ■ It does not appear that Ormsbee had any agency in the matter, further than to receive the- money of Heath and to deliver it to Boughton. He knew that the money was to be paid to Hull .upon the said obligation of Bough-ton and Gano to' Hull.
“ 5. On the day this note became due, Boughton requested Heath to extend the time of the payment of this-note for one year, and for so doing, agreed to pay to him fifteen per cent, interest and to have his brother, J. O. Boughton, sign the note. With this Heath was satisfied,, and Boughton paid the annual interest upon the note, and paid five per cent thereon in advance for one year, and J. O. Boughton signed the note. Of this, Gano had no-knowledge.
“6. Heath had no knowledge or information that Gano claimed to be merely surety upon the note, until about the time of the commencement of this suit. He supposed that in fact Boughton and Gano had jointly borrowed the one thousand dollars.
“My conclusions of law are as follows:
“1. The signing of the note by J. C. Boughton had no effect to release Gano from his liability thereon.
“2. The extension of the time of payment of the note by Heath did not exonerate Gano from his liability to pay the same.
“3. The defendant Gano is indebted upon the note for principal and interest in the sum of --.
“4. O. Boughton and Gano were joint makers of the note, and Gano, as between the makers and Heath, was not a surety of C. Boughton.”
A number of exceptions were taken to the finding, as not being justified by the evidence, but a careful reading" of the record does not bring us to the conclusion that any one is well taken. On some points different minds might reach different conclusions, but the conclusion of a judge, no more than the conclusion of a jury, is to be set aside because' he has erred in his judgment on the facts, provided there was*' some evidence to support it.—Lovell v. Willard, 28 Mich., 346; Burk v. Webb, 32 Mich., 173; Todd v. Davis, 32 Mich., 160.
That plaintiff in error was not released from his contract by obtaining an additional name to it, is decided by Miller v. Finley, 26 Mich., 249.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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] |
On order of the Court, the Decision and Recommendation of the Judicial Tenure Commission is considered. We accept the determination that respondent engaged in judicial misconduct in violation of Const 1963, art 6, § 30, MCR 9.104(A)(1), (2), (4), MCR 9.205(B) and (B)(1)(d), as amended, and Code of Judicial Conduct, Canons 1, 2A, 2B, 2C, 3B(1), (2), and 3(C). Had respondent not already resigned from judicial office, we would have ordered him removed from office for the remainder of his term, which would have ended January 1, 2005. Since respondent has resigned from judicial office, we order that respondent shall not fill any Michigan judicial office prior to the time that his term would have ended, January 1, 2005.
We further order that respondent shall pay costs of $12,777.33 to the Judicial Tenure Commission. | [
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Weaver, J.
Following a jury trial, defendant was convicted of first-degree murder, MCL 750.316, and conspiracy to commit murder, MCL 750.157a. The Court of Appeals reversed defendant’s convictions, holding that defendant was denied a fair trial when the prosecution elicited testimony from its “key witness” that the witness had taken and passed a polygraph test. Although we agree with the Court of Appeals that introduction of this testimony was error, we hold that defendant’s convictions should not be reversed because the unpreserved, nonconstitutional error did not affect defendant’s substantial rights.
We reverse the judgment of the Court of Appeals and remand the matter to that Court to address an issue that was raised before that Court, but not decided.
I
On August 11, 1998, at approximately 2:00 to 3:00 A.M., a Saginaw resident named Oliver R. Henderson was kicked and stomped to death by two men. The prosecution alleged the assailants to be Kim G. Martin and the defendant.
The evidence against the defendant included a dna match of the victim’s blood on defendant’s trousers, which were seized from defendant’s house, inculpatory statements that he made before and after the killing, testimony concerning the defendant’s actions two hours after the assault, and testimony of an eyewitness.
Julie Pryor, who has a child fathered by defendant, testified that before the assault defendant had said that he was going to take revenge on the person that had taken his television.
A. [Pryor] said, I’m going to get them, you know. I’m going to hurt them. I’m going to beat them up.
* * *
A. [Pryor] I can’t recall exactly, but I know he said, I am going to get that M-F-r. I’m going to kick his A.
Pryor testified that, after 5:00 AM. on August 11, defendant had come home, asked her if the police had been by, and changed his clothes. Pryor also testified that later she asked defendant if he had attacked the victim, “Rodell,” and that defendant admitted that he had done it.
Q. Did you have occasion to speak with the defendant, Jonathan Joe Jones, about what had happened to Rodell [the deceased]?
A. Yeah, but it wasn’t once or twice maybe.
Q. Where was it that you spoke to him about it?
A. At Mike’s house.
Q. What did he say about what had happened to Rodell?
A. I just asked him, you know, why he did it. And he said he took the TV and told him why. He wouldn’t say nothing else.
Q. Did he seem remorseful?
A. No.
Q. Did he tell you any specific acts that he had done to Rodell?
A. No.
* * *
Q. So you asked him specifically if he had done this to RodeH?
A. Yes.
Q. And he admitted to you that he had?
A. Yeah.
Pryor also testified that on another occasion, while defendant was talking about the victim, she overheard defendant say “he stomped his ass.”
On the first day of trial, while cross-examining a police officer, defense counsel sought to demonstrate that Ricky Jones, an eyewitness to the killing, had told multiple stories during the course of the investigation. Counsel asked the officer, “In fact, you gave Mr. Jones a polygraph on two different occasions, is that correct?” The circuit court sustained the assistant prosecutor’s immediate objection, and the question was never answered.
At the next recess, the assistant prosecutor moved for a mistrial:
I’m moving for a mistrial based upon [defense counsel's] referral to the fact that Ricky Jones was given a polygraph test. Clearly if the People brought this out about defendant it would be grounds for a mistrial, and I believe it’s just as inappropriate for defense to attack a prosecution witness through the use of inadmissible evidence as it would be for the People to do the same thing.
The court denied the motion:
Well, I believe it could be handled by a curative instruction. I don’t think it manifests necessity and jeopardy has attached. I will deny the motion.
No curative instruction was given, nor was one requested by either party.
The following day, Ricky testified. Ricky stated that Kim Martin was kicking the victim in the head. After a time, Martin asked defendant, “Did you want a piece of this?” Defendant then joined in. Defendant jumped and landed with both feet on the victim’s head four or five times. Ricky acknowledged that he drank three to five forty-ounce beers over a twelve to fourteen hour period on the day of the attack, and had ingested $30 to $40 worth of crack cocaine several hours before witnessing the attack. Near the end of his testimony on direct examination by the assistant prosecutor, the following exchange occurred.
Q. Did you take a polygraph in this case?
A. Yes.
Q. Did you pass that?
A. Yes.
[.Defense Counsel]: I’m going to object.
The Court: Sustained.
[Assistant Prosecuting Attorney]: Judge, that was brought up yesterday over my objection.
The Court: Sustained. Sustained. Move on. Move on.
No curative instruction was offered or requested, nor did defendant move to strike the witness’s answer.
At the conclusion of the jury trial, defendant was found guilty of first-degree murder and conspiracy to commit murder. He was sentenced to two concurrent terms of life imprisonment.
Defendant appealed to the Court of Appeals, which reversed defendant’s convictions. The Court of Appeals focused on the assistant prosecutor’s question to Ricky about the polygraph examination that he had taken and passed. The Court of Appeals held that the assistant prosecutor’s question violated the bright-line rule that testimony concerning the result of a polygraph examination is not admissible at trial. People v Barbara, 400 Mich 352, 377; 255 NW2d 171 (1977). The Court of Appeals reversed defendant’s convictions, holding that the error was prejudicial to defendant and seriously affected the fairness of the judicial proceeding.
We granted the prosecutor’s motion for leave to appeal limited to the issue whether defendant’s conviction should be reversed because the assistant pros ecutor asked a key witness whether he had taken and passed a polygraph examination.
ii
In our grant of leave to appeal, we asked the parties to address the doctrine of invited error. However, our review of this case has convinced us that invited error is not the relevant doctrine. Rather, it would be more accurate to characterize the applicable doctrine as “invited response.”
The doctrine of invited response is used as an aid in determining whether a prosecutor’s improper remarks require the reversal of a defendant’s conviction. It is used not to excuse improper comments, but to determine their effect on the trial as a whole. Darden v Wainwright, 477 US 168, 182; 106 S Ct 2464; 91 L Ed 2d 144 (1986).
The United States Supreme Court has recognized that the doctrine of invited response has an appropriate place in determining whether the prosecutor’s closing remarks affected the fairness of a trial. United States v Young, 470 US 1, 12-13; 105 S Ct 1038; 84 L Ed 2d 1 (1985). Under the doctrine of invited response, the proportionality of the response, as well as the invitation, must be considered to determine whether the error, which might otherwise require reversal, is shielded from appellate relief. Young, supra.
We now apply this doctrine as an aid to determine whether the prosecutor’s improper introduction of evidence at trial affected the fairness of the trial. In determining the effect of the prosecutor’s improper introduction of the polygraph, we must analyze the circumstances surrounding that error, including the defense counsel’s conduct. Whether Ricky had taken a polygraph examination (and, inevitably, whether Ricky had passed the examination) was introduced by defense counsel. By its very nature, especially in the context of the defense’s attack on the credibility of Ricky, this question tended strongly to imply that Ricky had “failed” the polygraph examination. Nevertheless, we specifically disapprove of the prosecutor’s knowing inappropriate behavior in introducing the evidence of the polygraph examination. The prosecution objected to defense counsel's improper question, and the court sustained that objection. Further, the court offered to provide a curative instruction, although ultimately one was not requested by either party. It was the assistant prosecutor who then decided on his own to offer the inadmissible evidence in rebuttal to the defense attorney’s question about the polygraph. As the Court emphasized in Young, the idea of invited response is not to be read as suggesting judicial approval of response-in-kind. Id. at 10. In this case, the trial court had offered the remedy of a curative instruction. The prosecution was not entitled to take the matter of balancing the equities into its own hands. A prosecutor has the responsibility of a minister of justice, not simply that of an advocate.
in
The issue is whether the assistant prosecutor’s question to Ricky about the polygraph test is error requiring reversal of defendant’s convictions. We review this under the standards for unpreserved, non-constitutional error. Defense counsel objected to the prosecutor’s questions, but only after they had already been answered, and did not request that the answers be stricken. We agree with the rule that to be timely, an objection should be interposed between the question and the answer. See In re Weiss, 224 Mich App 37, 39; 568 NW2d 336 (1997). The purpose of requiring objections to be timely, see MRE 103(a)(1), is to give the trial court an opportunity to correct the error. People v Grant, 445 Mich 535, 551; 520 NW2d 123 (1994). Accordingly, we review defendant’s claim of error under the standard for unpreserved, nonconstitutional error set out in People v Grant, supra, and People v Carines, 460 Mich 750; 597 NW2d 130 (1999).
To avoid forfeiture of an unpreserved, nonconstitutional plain error, the defendant bears the burden of establishing that: (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights. Grant, supra at 548-549, and Carines, supra at 763. Once the defendant establishes these three elements, the appellate court must still exercise its discretion in deciding whether to reverse. Reversal is warranted only when the plain, unpreserved error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity, or public reputation of the judicial proceedings independent of the defendant’s innocence. Carines, supra at 763.
We agree with the Court of Appeals that the first two criteria were met. As the parties concede, testimony concerning the result of a polygraph examination is not admissible at trial, Barbara, supra. The bright-line rule that evidence relating to a polygraph examination is inadmissible is well established. See Barbara, supra, and People v Brocato, 17 Mich App 277, 290-294; 169 NW2d 483 (1969). Further, the assistant prosecutor had earlier objected to defense counsel’s attempt to inject a reference to the polygraph examination. Thus, there is no question that this was plain error.
The question is whether this plain error affected defendant’s substantial rights. To establish that a plain error affected substantial rights, there must be a showing of prejudice, i.e., that the error affected the outcome of the lower-court proceedings. Grant, supra. The defendant bears the burden of persuasion with respect to prejudice. Carines, supra at 763. The Court of Appeals held that the error required reversal because Ricky was the prosecution’s key witness— the only eyewitness to the attack. We disagree, and hold that defendant has failed to meet his burden of persuasion regarding prejudice.
As we outlined above, there was substantial evidence corroborating Ricky’s testimony. Bloodstains matching the victim’s blood were found on Kim Martin’s shoes and defendant’s pants. There was testimony that two hours after the attack, the defendant returned home, asked Julie Pryor if the police had been there, and changed his clothes. Further, Julie Pryor testified that she had heard defendant admit committing the attack on the victim.
We also consider, as a factor in determining whether the error affected defendant’s substantial rights, that this was an invited response. Although the testimony that Ricky had passed the polygraph examination did tend to improperly bolster his credibility, it clearly was in rebuttal to the defense counsel’s earlier, inaccurate suggestion that Ricky had failed a polygraph examination. The prosecutor elicited the testi mony that the witness had actually passed the polygraph to rebut this false implication. However, there would have been no need to rebut such a false implication if defense counsel had not previously attacked Ricky’s credibility with the use of inadmissible evidence. We find that this reduces any potential harm resulting from the improper polygraph evidence introduced by the prosecutor.
Contrary to the dissent’s assertion, we do not hold that the invited-response doctrine excuses the prosecutor’s “willful and deliberate side-stepping of the trial court’s ruling . . . .” Post at 362. Rather, as we have explained, n 6, the prosecutor’s conduct did not constitute a “fair response”; the prosecutor improperly took matters into his own hands by eliciting the inadmissible evidence regarding the polygraph test. Nevertheless, much as the United States Supreme Court did in Young, supra, we have examined the prosecutor’s conduct in context and have determined that although error occurred, reversal under the plain-error doctrine is not warranted.
In Young, the defendant was on trial for mail fraud and other crimes arising out of a transaction with Apeo Oil Corporation. During summation, defense counsel intimated that the prosecution deliberately withheld exculpatory evidence and attempted to cast a false light on the defendant’s activities. Defense counsel pointed at the prosecutor’s table and stated: “I submit to you that there’s not a person in this courtroom including those sitting at this table who think that [the defendant] intended to defraud Apeo.” Young, supra at 4-5 (citation omitted). The prosecutor did not object to defense counsel’s summation, but responded to this statement during rebuttal argument by commenting: “ T think [defense counsel] said that not anyone sitting at this table thinks that Mr. Young intended to defraud Apeo. Well, I was sitting there and I think he was. ... If we are allowed to give our personal impressions since it was asked of me.'" Id. at 5 (citation omitted). Defense counsel did not object and did not request any curative instructions. On appeal, however, defendant argued that he was unfairly prejudiced by the prosecutor’s remarks during rebuttal.
The Court held that the issue was not whether the prosecutor’s response was appropriate, but whether it was “plain error” that a reviewing court could act on absent a timely objection. The Court noted that both defense counsel and the prosecutor played fast and loose with the rules of professional conduct; the Court cautioned that “[t]he kind of advocacy shown by this record has no place in the administration of justice and should neither be permitted nor rewarded; a trial judge should deal promptly with any breach by either counsel.” Id. at 9. However, the Court held that “the issue is not the prosecutor’s license to make otherwise improper arguments, but whether the prosecutor’s ‘invited response, ’ taken in context, unfairly prejudiced the defendant." Id. Thus, the reviewing court must “not only weigh the impact of the prosecutor’s remarks, but must also take into account defense counsel’s opening salvo.” Id. at 12 (emphasis supplied.) The Court concluded:
[T]he prosecutor’s statement of Ms belief that the evidence showed Apeo had been defrauded should not have been made; it was an improper expression of personal opinion and was not necessary to answer defense counsel’s improper assertion that no one on the prosecution team believed respondent intended to defraud Apeo. Nevertheless, we conclude that any potential harm from this remark was mitigated by the jury’s understanding that the prosecutor was countering defense counsel’s repeated attacks on the prosecution’s integrity and defense counsel’s argument that the evidence established no such crime. [Id. at 17-18 (emphasis supplied).]
We find the Young Court’s plain error analysis to be persuasive. The facts of this case are directly analogous to those present in Young-. The prosecutor and defendant each played fast and loose with the rules of professional conduct when they, in turn, attempted to place inadmissible polygraph evidence before the jury. However, as in Young, any potential prejudice to defendant resulting from the prosecutor’s conduct was mitigated by the fact that he was acting in response to defense counsel’s own improper attempt to create a false inference that Ricky had failed a polygraph examination. Moreover, in light of the substantial evidence of defendant’s guilt, the error cannot be said to have been outcome-determinative.
Given the substantial evidence corroborating Ricky’s testimony and establishing defendant’s guilt and defense counsel’s prior, improper attempt to create a false inference that Ricky had failed a polygraph examination, the additional improper bolstering created by the testimony that Ricky had taken and passed a polygraph test was not outcome-determinative.
Because defendant has not met his burden of establishing that the error complained of affected the outcome of the lower-court proceedings, defendant did not establish the three elements necessary to avoid forfeiture. Accordingly, defendant forfeited the claim of error by not timely objecting to the assistant prosecutor’s question to Ricky about the polygraph test.
CONCLUSION
For these reasons, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. MCR 7.302(G)(1). The Court of Appeals did not address defendant’s argument that his convictions should be reversed because the circuit court admitted gruesome photographs. We remand the case to the Court of Appeals to address that issue. We do not retain jurisdiction.
Corrigan, C.J., and Taylor, Young, and Markman, JJ., concurred with Weaver, J.
Cavanagh, J.
I must respectfully dissent. I agree with the majority only to the extent that introduction of the polygraph evidence constitutes an unpreserved error. To avoid forfeiture of an unpreserved error, whether constitutional or nonconstitutional, a defendant must prove three things: (1) the error occurred, (2) the error was plain, and (3) the plain error affected defendant’s substantial rights. See People v Grant, 445 Mich 535, 548-549; 520 NW2d 123 (1994); People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
I agree with the majority that defendant has met the first two prongs. However, I must respectfully dissent from the remainder of the opinion because I disagree with the majority’s assertion that defendant has not met his burden of persuasion with respect to the effect the error had on his substantial rights.
An error “affecting substantial rights” is an error that is “prejudicial.” In Grant, supra at 553, this Court held that
a plain, unpreserved error may not be considered by an appellate court for the first time on appeal unless the error could have been decisive of the outcome or unless it falls under the category of cases, yet to be clearly defined, where prejudice is presumed or reversal is automatic. [Emphasis in original.]
While, admittedly, there is other evidence against defendant in this case, bolstering the credibility of the (otherwise incredible) sole eyewitness with the admission of polygraph-examination results is clearly prejudicial.
Polygraph-examination evidence is excluded from trial because it “ha[s] not received the degree of standardization or acceptance among scientists which would warrant admissibility.” People v Barbara, 400 Mich 352, 364; 255 NW2d 171 (1977). One of the earliest cases in which this Court examined the admissi bility of polygraph examinations was People v Davis, 343 Mich 348; 72 NW2d 269 (1955). In that case, this Court recognized “[t]he tremendous weight which such tests would necessarily carry in the minds of [jurors].” Id. at 372. Although the majority notes the bright-line rule against introducing polygraph-examination evidence, the majority minimizes the effect of that violation on defendant’s substantial rights by calling it an “invited response.”
The majority’s use of the doctrine of “invited response” “as an aid to determine whether the prosecutor’s improper introduction of evidence at trial affected the fairness of the trial” ante at 353, is flawed in two major respects. First, the “invited response” rule does not allow a party to introduce evidence in response to an improper action. Both cases on which the majority relies, Darden v Wainwright, 477 US 168; 106 S Ct 2464; 91 L Ed 2d 144 (1986), and United States v Young, 470 US 1; 105 S Ct 1038; 84 L Ed 2d 1 (1985), involved “responses” made in the prosecutor’s closing remarks, not “responses” in the form of clearly inadmissible evidence. The prosecutor’s willful and deliberate sidestepping of the trial court’s ruling on his objection is not the type of “response” contemplated by the “invited response” doctrine. The doctrine of “invited response,” as adopted by the United States Supreme Court, does not allow a prosecutor to introduce evidence in derogation of the trial court’s ruling that such evidence is improper simply because it is a “response” to defense counsel’s actions. The majority claims that “[t]he facts of this case are directly analogous to those present in Young-. The prosecutor and defendant each played fast and loose with the rules of professional conduct . . . Ante at 359. What the majority fails to recognize in its “analogy” is that the attorneys in Young “played fast and loose with the rules of professional conduct” in making their closing remarks (which are not to be considered as evidence by the jury), while the attorneys in this case played fast and loose with introduction of evidence itself.
The second problem with the majority’s application of the “invited response” doctrine is the failure to recognize that the doctrine applies where there was no objection to the initial impropriety. Here, the prosecutor timely objected to the improper question regarding the polygraph examination. The objection was sustained, and the question remained unanswered. Yet, apparently because the prosecutor was unsatisfied with the trial judge’s refusal to grant a mistrial, he felt compelled to ignore the judge’s ruling and elicit information regarding the polygraph examination on cross-examination. The “invited response” doctrine should not be expanded so it can be used as a vehicle for circumventing the rulings of trial judges on the admissibility of evidence, nor should it be applied so as to implicitly condone the conduct of the prosecutor in this case.
The proper procedure when a party attempts to introduce inadmissible evidence is an objection. In this case, a proper objection was made to defense counsel’s improper question; the trial judge correctly sustained the objection. Instead of requesting the curative instruction proposed by the judge, the prosecutor chose to ignore the trial court’s ruling and attempted to right the wrong on his own.
The majority’s expansion of the “invited response” doctrine to allow total disregard for the rulings of the trial judge, as well as the evidentiary rules, could have catastrophic results. Allowing introduction of polygraph-examination evidence through the back door eviscerates the protections guaranteed by the Michigan Rules of Evidence and encourages attorneys to retaliate against the introduction or attempted introduction of improper evidence in any manner they see fit. The prosecutor in this case intentionally ignored the trial court’s ruling and declined the proper method of addressing defendant’s improper question. It is exactly this type of misconduct that the Michigan Rules of Evidence are intended to protect against.
The “rules are intended to secure fairness in administration ... to the end that the truth may be ascertained and proceedings justly determined.” MRE 102. The rules of evidence are meaningless if evidence that is not admissible under the rules becomes admissible because of egregious behavior on the part of the prosecutor in response to an attempt to introduce improper evidence. This degrades the authority of the trial judge and encourages prosecutorial misconduct.
If one takes away the majority’s erroneous application of the “invited response” doctrine, it is clear that defendant’s substantial rights were affected by the introduction of the improper polygraph-examination evidence. The evidence was prejudicial to defendant because it could have affected the outcome of the trial.
Once a defendant has shown that an unpreserved error was a plain error that affected substantial rights, the appellate court may, in its discretion, reverse defendant’s conviction. “Reversal is warranted only when the plain, unpreserved error result[s] in the conviction of an actually innocent defendant or when an error seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings independent of the defendant’s innocence.” Ante at 355, citing Carines, supra at 783.
The prosecutor’s deliberate introduction of polygraph-examination evidence, in derogation of the trial court’s ruling, clearly affects the fairness, integrity, and public reputation of judicial proceedings. Polygraph-examination evidence is excluded from trial because it does not meet the standard for admissibility of scientific evidence and because of the potential effect on jurors. See Barbara, supra at 364; see also Davis, supra at 372. The prosecutor’s flagrant disregard for the trial judge’s ruling that the evidence was not admissible clearly affects the integrity and public reputation of judicial proceedings. As the majority correctly notes, “[a] prosecutor has the responsibility of a minister of justice, not simply that of an advocate.” Ante at 354.
To allow prosecutors (or defense attorneys) to introduce polygraph-examination evidence in response to an improper attempt to reduce or bolster a witness’s credibility undermines the integrity and public reputation of judicial proceedings. In this case, the trial judge sustained the prosecutor’s objection when defense counsel questioned a witness about a polygraph examination. The judge also stated that the error could be cured with an instruction. In spite of the judge’s ruling, the prosecutor took matters into his own hands and asked the witness about the polygraph examination. This makes a mockery of the longstanding prohibition on introduction of polygraph-examination evidence, the prosecutor’s responsibility to act as a minister of justice, and the trial judge’s ability to enforce rulings on the admissibility of evidence.
Although the majority does not expressly permit violation of the bright-line rule against introduction of polygraph-examination evidence, the evidence can be admitted through the back door if the prosecutor chooses to disregard the trial court’s ruling. In extending the “invited response” doctrine to the admission of polygraph-examination evidence despite a sustained objection, the majority dims the brightness of this rule and opens the door to abuse by both parties.
The introduction of the polygraph-examination evidence constitutes plain error that affected defendant’s substantial rights. Because the prosecutorial misconduct also seriously affected the integrity and public reputation of the proceedings, I would affirm the judgment of the Court of Appeals.
Kelly, J., concurred with Cavanagh, J.
Mr. Henderson died in January 1999, after five months in a coma
At trial, a scientist from the Michigan State Police DNA lab testified that there were bloodstains matching the victim’s blood found on Kim Martin’s shoes, as well as on pants belonging to defendant.
Ricky Jones is not a relative of the defendant. To prevent any confusion we will refer to him throughout the opinion as “Ricky.”
Unpublished opinion per curiam, issued July 17, 2001 (Docket No. 221264).
The order stated, in part: “If this was error, what category of error was it, and by what standard should the Court decide whether the error warranted reversal of the defendant’s convictions? The parties are to address specifically whether any error that occurred was ‘invited’ by the defense. See United States v Young, 470 US 1 (1985); Vannoy v City of Warren, 386 Mich 686 (1972); People v Finley, 431 Mich 506, 543 n 11 (1988) (Cavanagh, J.). The parties are to further discuss whether and, if so, how, the ‘invited error’ doctrine fits into this Court’s jurisprudence regarding forfeiture and waiver of error. See People v Carines, 460 Mich 750 (1999); People v Carter, 462 Mich 206 (2000).” 465 Mich 974 (2002).
“Invited error” is typically said to occur when a party’s own affirmative conduct directly causes the error. For example, in Vannoy v City of Warren, 386 Mich 686, 690; 194 NW2d 304 (1972), this Court explained that a party cannot seek appellate review of an instruction that he himself requested, saying, “Assuming error as claimed, that error comes within the purview of what of tradition and common sense is known as ‘invited error.’ ” Appellate review is precluded because when a party invites the error, he waives his right to seek appellate review, and any error is extinguished. People v Carter, 462 Mich 206, 214-215; 612 NW2d 144 (2000). To the contrary, in this case the alleged error was not directly attributable to the affirmative conduct of defendant and defendant cannot be said to have waived the alleged error — the prosecutor’s overreaching — for appellate review.
A doctrine that is related to the “invited response” doctrine, but not applicable in this case, is the doctrine of ‘fair response.” Under the doctrine of fair response, there is no error because a party is entitled to fairly respond to issues raised by the other party. We adopted the doctrine of “fair response” in People v Fields, 450 Mich 94; 538 NW2d 356 (1995). Regarding what is fair response, this Court in Fields stated, “[t]he nature and type of comment allowed is dictated by the defense asserted, and the defendant’s decision regarding whether to testily. When a defense makes an issue legally relevant, the prosecutor is not prohibited from comment ing on the improbability of the defendant’s theory or evidence.” Id. at 116. See also United States v Robinson, 485 US 25, 31; 108 S Ct 864; 99 L Ed 2d 23 (1988) (holding that when the prosecutor’s statement that the defendant could have explained his story to the jury was made in response to the comments made by defense counsel, the prosecutor’s statements did not infringe the defendant’s Fifth Amendment rights). In contrast, although the prosecutor’s conduct in this case was “invited” in the sense that defense counsel “opened the door” to the admission of the polygraph examination evidence, it cannot be characterized as “fair.” The response is not “fair” because evidence of a polygraph test is clearly inadmissible, the prosecutor demonstrably knew that the evidence was not admissible, and the prosecutor did not avail himself of the curative instruction offered by the court to remedy defendant’s improper questioning, choosing instead to resort to a self-help remedy entailing inadmissible evidence.
We do not “dim[] the brightness” of the rule prohibiting the admission of polygraph-examination evidence, despite the dissent’s assertion to the contrary, post at 366. The bright-line rule in People v Barbara, supra, that testimony concerning the result of a polygraph examination is not admissible at trial remains intact. We reverse the holding of the Court of Appeals that defendant was denied a fair trial because we conclude that this unpreserved, nonconstitutional error did not affect defendant’s substantial rights.
Whether the error is constitutional or nonconstitutional has no effect on the test to be employed in determining whether an unpreserved error ultimately warrants reversal. However, I think it is important to note that improper introduction of polygraph-examination evidence is arguably a violation of a defendant’s constitutional right to a fair trial, as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. People v Barbara, 400 Mich 352; 255 NW2d 171 (1977).
See Darden, supra (improper comments by prosecutor were made in closing remarks, in response to comments made by defense in opening summation); Young, supra at 13 (“the prosecutor at the close of defense summation should have objected to the defense counsel’s improper statements with a request that the court give a timely warning and curative instruction to the jury.”); Lawn v United States, 355 US 339, 359; 78 S Ct 311; 2 L Ed 2d 321 (1958) (defense counsel made improper statements in closing argument, the prosecutor did not object, but rather responded in his summation).
I thank the majority for pointing out that the prosecutor’s conduct was improper. Ante at 357. While I agree that application of the “invited response” doctrine does not expressly excuse the prosecutor’s behavior, it does implicitly condone such behavior. Hopefully, this exchange between the dissent and majority will clarify that the majority opinion should not serve as an invitation to attorneys to defy the rulings of trial judges. | [
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Per Curiam.
The Court of Appeals held that the circuit court had authority to resentence defendant because the sentencing judge’s expectations regarding eligibility for parole had proved to be incorrect. We hold that the circuit judge properly concluded that he lacked jurisdiction to resentence, and reverse the judgment of the Court of Appeals.
i
Following a bench trial, defendant was found guilty of second-degree murder and possession of a firearm during commission of a felony. On September 22, 1981, the circuit court sentenced defendant to life in prison for murder, consecutive to the two-year mandatory term for the firearm offense. At sentencing, there were several exchanges regarding defendant’s eligibility for parole. In imposing a life sentence the judge explained:
These kinds of sentences are always difficult to impose, and I do not pretend to be the kind of expert that I hope the corrections commission has in the parole board. But, I’m going to impose the kind of sentence that, I think, will leave them much room to recommend when you should be released; which means, in affect [sic], that I am not going to impose a sentence of a term of years. I want to leave it up to the parole board so that after a period of 10 years, you could be considered for parole if you put yourself and your life in such a position that you should be considered for [it].
The judge said that he would make “no recommendation” regarding parole.
Following imposition of sentence, defense counsel raised a question about the parole consequences of the sentence and had the following exchange with the court:
Mr. Howarth: Only one other question. It would — would it be my understanding that the Court has chosen a sentence of life imprisonment in this case based upon the thought that it is a parolable offense within ten years?
The reason I saw [sic, say?] that is because of certain attorney general opinion’s [sic] indicating that under Proposal B,[ ] it might not be parolable within ten years.
The Court: I understand that. We’ve had that kind of problem before.
The record will be very clear that’s a very important point because — important basis of the sentence.
I do not in any way mean that this man could not obtain his release if that were seen as a realistic and reasonable thing by the parole authorities; so that if that becomes a problem after the course of time, the record is clear so that I can be addressed on that issue if I’m here or my successor.
Mr. Howarth: In case an appellate court were to rule that a life sentence under murder, second degree is not parolable, then it would be appropriate under this sentence for Mr. Moore to ask to be resentenced.
The Court: It’s clear that my intent is that Mr. Moore be eligiable [sic] for parole after a proper amount of time.
In his appeal of right, defendant’s conviction was affirmed by the Court of Appeals. We denied leave to appeal.
Defendant filed a motion in propria persona for resentencing in 1984, which the circuit judge denied on April 24, 1984, on the ground that it was premature because the defendant had not been in prison for ten years. The Court of Appeals denied leave to appeal, with an order stating that the denial was “in light of” People v Waterman, 137 Mich App 429; 358 NW2d 602 (1984), which had been decided a few weeks before.
On July 15, 1997, defendant filed a motion for relief from judgment, seeking resentencing. He asserted that he was not “eligible” for parole after ten years of incarceration, contrary to the circuit court’s assumption when defendant was sentenced. He noted that on April 2, 1994, the Parole Board had indicated that it had “no interest in taking action at this time” regarding defendant’s parole.
The motion was heard by the original sentencing judge, who denied it on July 6, 1999. At the hearing, the judge explained that he may have been under something of a misapprehension at the time of sentencing regarding the actual likelihood of defendant’s being paroled. The judge said:
None of us can ever really go back 20 years and know exactly what we intended, whatever our are [sic] intentions were to be, but I think it’s probably fair for me to conclude that I wanted Mr. Moore to have a reasonable chance at parole, given his history in prison and how he behaved himself.
And I think I may have been under what now turns out to be somewhat of a misapprehension or misunderstanding that any number of parolable life sentences resulted in parole. I guess it turns out, . . . surprisingly few parolable life sentences result in parole.
The judge continued, saying that under In re Parole of Johnson, 235 Mich App 21; 596 NW2d 202 (1999), one could argue that defendant had not become “eligible” for parole. Nevertheless, the judge concluded that he did not have the authority to resentence, explaining:
Now, it was my intention that he become eligible for parole, but I don’t believe ... I have jurisdiction to resentence him, notwithstanding the fact that he, as a practical matter, has not become eligible.
Again, I’ve read that transcript over and over again, and I guess what I’m saying is, what I said at the time was, Given [sic] my belief of how parolable life sentences work, it was my hope that he would be considered for parole.
And I’m not even sure if I said explicitly if he’s not, then I hold on to this case for resentencing, whether I can properly do that, or could have done that.
* * *
... I suppose if the law were otherwise, a judge in every sentence would be able to fashion language that, as a practical matter, would result to retention of jurisdiction in every case, and I’m not sure that would be wise public policy given the issues that we’re talking about.
I think the issue in this case is whether, in this case, because of my finding that as a practical matter, or as a legal matter, under the Johnson case Mr. Moore has not become eligible for parole, and given what I said at the time of sentence do I, under these circumstances, retain jurisdiction?
I conclude, no, ....
II
The Court of Appeals granted defendant’s application for leave to appeal and then reversed in a two-to-one decision. The majority noted the sentencing judge’s statement that he intended defendant to become eligible for parole and that the judge concluded that under In re Parole of Johnson defendant had not become so eligible. The Court of Appeals rejected the sentencing judge’s view that he was without jurisdiction to resentence, stating:
Having found that it sentenced under a “misapprehension or misunderstanding” regarding defendant’s eligibility for parole after ten years, the court had authority to resentence, if it so chose. [Slip op at 2.]
The majority stressed that defendant was not entitled to resentencing, but only that the trial court had jurisdiction to resentence if it determined that the misapprehension of law affected the sentence. The majority remanded the case for proceedings consistent with its opinion.
Judge Murphy dissented. In his view, the sentencing judge’s language at the sentencing hearing indicated an intent that the defendant be given the opportunity for parole. MCL 791.234(6), in fact, provided defendant with that opportunity. The sentencing judge did not express any intention that the defendant actually be paroled, merely that he be subject to parole consideration, as he was.
in
A trial judge has the authority to resentence a defendant only when the previously imposed sentence is invalid. In re Jenkins, 438 Mich 364, 368; 475 NW2d 279 (1991); People v Miles, 454 Mich 90, 96-97; 559 NW2d 299 (1997). A sentencing judge’s misapprehension of the law can be a ground for finding a sentence to be invalid. People v Whalen, 412 Mich 166, 170; 312 NW2d 638 (1981). In this case, the Court of Appeals majority appears to have proceeded on the assumption that whether there is such a misapprehension is a question of fact. However, while identifying the judge’s understanding of the law may be a question of fact, whether that understanding is a misapprehension is a question of law, to which we apply a de novo standard of review. People v Sierb, 456 Mich 519, 522; 581 NW2d 219 (1998).
IV
We agree with the dissenting judge in the Court of Appeals that the facts of this case demonstrate no misunderstanding by the sentencing judge that would entitle the defendant to resentencing. The sentencing judge’s statements in 1981 merely expressed the intent that defendant’s life sentence would not deprive him of consideration for parole. That was a correct understanding of the law. MCL 791.234, in fact, gave the Parole Board jurisdiction over defendant after he had served ten years.
As the Court of Appeals dissent noted, the sentencing judge did not express any intention that defendant actually be paroled, but only that the Parole Board consider whether to parole him. Defendant’s motion for relief from judgment, itself, revealed that he received such a consideration in 1994. While the result of that consideration was the Parole Board’s “no interest” letter, the fact remains that the defendant received parole consideration, meeting the sentencing judge’s expectations. The only sense in which the sentencing judge expressed that he had been under a “misapprehension or misunderstanding” was that he did not anticipate the infrequency with which the Parole Board would grant parole to defendants sentenced to life terms. However, the failure to accurately predict the actions of the Parole Board does not constitute a misapprehension of the law that could render the sentence invalid.
The principle argued by defendant and the Court of Appeals majority would alter the whole framework of our sentencing and corrections system. If a judge’s conclusion that the Parole Board’s later action ren ders the sentence subject to change, virtually any sentence could be revised at the whim of the sentencing judge.
The Court of Appeals majority relied on the circuit judge’s reference to In re Parole of Johnson. Although Johnson perhaps could have been written more clearly, it addressed an entirely different issue from the expectation of a sentencing judge regarding the eligibility for parole as in this case. In that case the question was whether the Parole Board’s “no interest” letter constituted a denial of parole that was at the time subject to appeal by the defendant. In concluding that the “no interest” decision was not appealable, the Johnson opinion used language indicating that a defendant who receives such a “no interest” letter was not “truly eligible” for parole because the other conditions for parole had not been met — public hearing, opportunity for a sentencing judge to object, etc. The Johnson Court was using the word “eligible” in an entirely different sense than applicable here. The sort of “eligibility” with which we deal in this case concerns the jurisdiction of the Parole Board over a defendant. Here, and in Johnson, the board unquestionably had the authority to consider the defendants for parole and to grant them parole. The Johnson Court said the defendant was not “eligible” in the sense that the substantive requirements for granting parole had not been established. Here the question is the judge’s understanding that defendant would be subject to the jurisdiction of the Parole Board and could be paroled after the board completed the requi site procedures and exercised its discretion to grant parole. He was in fact eligible for that consideration.
v
The sentence imposed in 1981 was a valid one, and, thus, the circuit court lacked the authority to resentence defendant. Accordingly, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals, and reinstate the Wayne Circuit Court’s order of July 6, 1999, denying defendant’s motion for relief from judgment.
Corrigan, C.J., and Weaver, Taylor, Young, and Markman, JJ., concurred.
Cavanagh and Kelly, JJ., concurred in the result only.
MCL 750.317.
MCL 750.227b.
Counsel’s references are to the 1978 initiative known as “Proposal B,” and an Attorney General’s Opinion concluding that Proposal b precluded parole for even nonmandatory life sentences. OAG, 1979-1980, No 5583, p 438 (October 16, 1979). That interpretation of the initiative proposal was rejected in People v Waterman, 137 Mich App 429; 358 NW2d 602 (1984).
Unpublished opinion per curiam, issued March 28, 1983 (Docket No. 61277).
418 Mich 896 (1983).
Unpublished order, entered October 8, 1984 (Docket No. 79268).
Unpublished opinion per curiam, issued July 9, 2002 (Docket No. 228323).
1999 PA 191 amended MCL 791.234 to eliminate inmates’ right to appeal Parole Board denials. | [
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Young, J.
We granted leave to appeal in this case to consider whether plaintiff parolee was properly discharged from prison where defendant, the Department of Corrections, failed to conduct a timely fact-finding hearing under MCL 791.240a on plaintiffs parole violation charges. Because we conclude that nothing in the plain language of MCL 791.240a permits the release of a parole violator under the circumstances of this case and that the appropriate remedy for the department’s failure to timely conduct a fact-finding hearing is a writ of mandamus, we reverse the judgment of the Court of Appeals, dismiss plaintiff’s complaint for habeas corpus relief and reinstate the order of the parole board revoking plaintiff’s parole.
I. FACTUAL AND PROCEDURAL BACKGROUND
In October 1998, plaintiff was paroled from sentences imposed for controlled substances convictions. Plaintiff tested positively for cocaine on several occasions after his release on parole, and his original twenty-four-month parole term was extended because of various parole violations prior to those at issue in this case. In February 2001, plaintiff again tested positively for cocaine, and he subsequently failed to report to his parole officer. These two parole violation charges were first detailed in a warrant issued February 13, 2001. A third parole violation charge was added on March 12, 2001, charging plaintiff with fleeing and eluding police.
Plaintiff waived his right to a preliminary hearing under MCL 791.239a. On April 19, 2001, plaintiff appeared before a Department of Corrections administrative law examiner (ale) and received notice of the charges against him and the time, place, and purpose of the fact-finding hearing as required by MCL 791.240a(2). Plaintiff admitted that he had used cocaine and had failed to report to his parole officer. However, plaintiff denied the third parole violation charge, the commission of the criminal offense of fleeing and eluding police. Plaintiff asked to present evidence in mitigation of the parole violations pursuant to MCL 791.240a(2)(d). He did not object to the date of the fact-finding hearing, which was scheduled for May 16, 2001.
At the fact-finding hearing, the ale noted that the plaintiff had pleaded guilty of the first two counts alleging violation of the conditions of parole. The third count, alleging commission of a criminal offense, was dismissed pursuant to MCL 791.240a(l) for failure to hold a hearing within forty-five days of the date of plaintiffs arrest, March 11, 2001. Nevertheless, the ale accepted evidence in mitigation of that offense. The ale determined that plaintiff was in violation of the conditions of his parole as charged in the first two counts of the warrant, ruling that plaintiff’s guilty plea provided a sufficient factual basis to establish the charged violations by a preponderance of the evidence. The ale recommended a revocation of plaintiff’s parole and continuation of plaintiff’s incarceration for eighteen months before again considering plaintiff for parole. The parole board adopted the ale’s recommendation.
Plaintiff filed a complaint for a writ of habeas coipus in the circuit court, contending that he was entitled to discharge from prison because the fact-finding hearing was not held until the sixty-sixth day of his availability for return to a state correctional facility. The circuit court denied the requested relief. Plaintiff then filed a complaint for habeas corpus relief in the Court of Appeals, which entered an order of habeas corpus discharging plaintiff from prison and returning him to the jurisdiction of the parole board. Unpublished opinion per curiam, issued November 30, 2001 (Docket No. 236835).
The Attorney General, on behalf of the Department of Corrections, filed an application for leave to appeal the judgment of the Court of Appeals. This Court issued a stay of the Court of Appeals decision and granted defendant’s application for leave to appeal. 467 Mich 884 (2002).
II. STANDARD OF REVIEW
At issue in this case is whether a parolee accused of a parole violation is entitled to discharge from prison where a fact-finding hearing on the charge is not held within forty-five days as required by MCL 791.240a(l). This Court reviews de novo the interpretation and application of a statute as a question of law. Cruz v State Farm Mut Automobile Ins Co, 466 Mich 588, 594; 648 NW2d 591 (2002); People v Thousand, 465 Mich 149, 156; 631 NW2d 694 (2001). If the language of the statute is clear, “no further analysis is necessary or allowed to expand what the Legislature clearly intended to cover.” Miller v Mercy Mem Hosp, 466 Mich 196, 201; 644 NW2d 730 (2002).
in. ANALYSIS
A. MCL 791.240a(l)
A prisoner enjoys no constitutional or inherent right to be conditionally released from a validly imposed sentence. See Greenholtz v Inmates of Nebraska Penal & Correctional Complex, 442 US 1, 7; 99 S Ct 2100; 60 L Ed 2d 668 (1979); People v Malmquist, 155 Mich App 521; 400 NW2d 317 (1986). Furthermore, parole revocation is not a stage of a criminal prosecution. See Gagnon v Scarpelli, 411 US 778, 782; 93 S Ct 1756; 36 L Ed 2d 656 (1973); Morissey v Brewer, 408 US 471, 480; 92 S Ct 2593; 33 L Ed 2d 484 (1972). However, pursuant to Morrissey, limited due process requirements, including notice and the opportunity to be heard, apply to the loss of liberty occasioned by parole revocation.
The granting, rescission, and revocation of parole in Michigan is overseen by the Bureau of Pardons and Paroles pursuant to MCL 791.231 el seq. This statutory scheme makes clear that, with limited exception, matters of parole lie solely within the broad discretion of the parole board, and that the freedom enjoyed by a paroled prisoner is a limited freedom. The release of a prisoner on parole “shall be granted solely upon the initiative of the parole board,” MCL 791.235(1), and a paroled prisoner remains in the legal custody and under the control of the Department of Corrections, MCL 791.238(1). A parole is “a permit to the prisoner to leave the prison,” not a release. MCL 791.238(6). Furthermore, a parolee may be arrested without a warrant where there exists reasonable cause to believe that he has violated parole. MCL 791.239.
The procedural requirements of MCL 791.240a serve to protect the due process interests, as outlined by Morrissey, of a parolee whose liberty is at stake by virtue of a charge of parole violation. However, contrary to the holding of the Court of Appeals in this case, MCL 791.240a neither deprives the parole board of jurisdiction to revoke parole nor requires the discharge of a parolee where the required hearing has been delayed beyond the forty-five-day period prescribed.
MCL 791.240a(l) provides:
Within 45 days after a paroled prisoner has been returned or is available for return to a state correctional facility under accusation of a parole violation other than conviction for a felony or misdemeanor punishable by imprisonment under the laws of this state, the United States, or any other state or territory of the United States, the prisoner is entitled to a fact-finding hearing on the charges before 1 member of the parole board or an attorney hearings officer designated by the chairperson of the parole board. The fact-finding hearing shall be conducted only after the accused parolee has had a reasonable amount of time to prepare a defense. The fact-finding hearing may be held at a state correctional facility or at or near the location of the alleged violation.
The Court of Appeals “reluctantly” held that it was required, pursuant to this Court’s decision in Stewart v Dep’t of Corrections, 382 Mich 474; 170 NW2d 16 (1969), to order plaintiff’s release from prison because the fact-finding hearing was not held within forty-five days of his availability for return to the Department of Corrections as required by MCL 791.240a(l). The panel further opined that habeas corpus relief was appropriate on the basis of this Court’s order granting such relief to an alleged parole violator in In re Lane, 377 Mich 695 (1966), after a Court of Appeals panel had determined that a writ of mandamus was the appropriate remedy for the failure to hold a timely parole violation hearing. However, the panel urged this Court to reconsider Stewart and Lane\
In light of these Supreme Court cases, we have little option but to grant plaintiffs requested relief. However, we urge defendant to seek review in the Supreme Court and for the Supreme Court to reverse us. We agree with our prior opinion in Lane [2 Mich App 140; 138 NW2d 541 (1965)] that mandamus is a more appropriate remedy than habeas corpus. We see little rational reason to require that plaintiff be returned to parole status. It would seem to us that if defendant violates the forty-ñve-day rule, it could properly be remedied by mandamus. It might perhaps even be appropriate to require that a parolee be released from detention on the forty-sixth day. However, we find nothing in the statute or in common sense to justify entitling plaintiff to a return to parole status, particularly in light of parole violations to which he has admitted. [Slip op at 2.]
In Stewart, the plaintiff was charged with several alleged parole violations. The plaintiff admitted his guilt on some of the charges. Although the plaintiff demanded a formal hearing under former MCL 791.240, the predecessor of the current MCL 791.240a, in light of the plaintiffs admission of guilt the parole board denied the request for a hearing.
This Court affirmed the judgment of the Court of Appeals granting the plaintiffs writ of superintending control against the Department of Corrections, holding that
[t]he 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. [Stewart, supra at 479.]
The Stewart Court erred, in our judgment, by engrafting onto the terms of former MCL 791.240 a remedy that had no basis in the plain language of the statute. As we have recently noted on several occasions, “ ‘our judicial role precludes imposing different policy choices than those selected by the Legislature, [and] our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute.’ ” People v Sobczak-Obetts, 463 Mich 687, 694-695; 625 NW2d 764 (2001), quoting People v McIntire, 461 Mich 147, 152; 599 NW2d 102 (1999). In determining that the parole board had waived its authority and that the plaintiff was entitled to discharge, the Stewart Court created a remedy for a violation of former MCL 791.240 that was not grounded anywhere in the statutory scheme and thus exceeded its judicial authority.
We decline to impose the relinquishment of the parole board’s statutory authority to revoke parole as a remedy for a violation of the forty-five-day limitation period provided in MCL 791.240a(l). To infer such a legislative intent where none is indicated either in the text of MCL 791.240a or elsewhere in the statutory scheme “would be an exercise of will rather than judgment.” People v Stevens (After Remand), 460 Mich 626, 645; 597 NW2d 53 (1999) (emphasis in original). We overrule Stewart to the extent that it conflicts with today’s holding.
b. response to the dissent
The dissent, invoking the so-called “reenactment rule,” asserts that because the post-Stewart revisions to MCL 791.240 and MCL 791.240a do not “clearly show an intention to undo this Court’s holding in Stewart,” we must assume that the Legislature intended to adopt the extra-statutory remedy imposed by the Stewart Court. We decline to impose on the Legislature any such duty to “clearly show” its intention to repudiate any judicial construction with which it disagrees.
As we have recently explained in People v Hawkins, 468 Mich 488; 688 NW2d 602 (2003), the reenactment rule cannot be used as a tool to circumvent the plain and unambiguous language of a statute. Nothing in the language of MCL 791.240a indicates the Legislature’s intent to adopt the Stewart Court’s holding that the parole board waives its right to pursue parole violation charges by failing to conduct a hearing within the statutory period. While the dissent opines that the Legislature’s failure to affirmatively limit the holding in Stewart is indicative of its approval of that holding, an equally plausible conclusion to be drawn from the Legislature’s silence is that it intended to reject the Stewart Court’s analysis. See Hawkins, supra at 502-503 n 12.
“[0]ur most fundamental principle of statutory construction [is] that there is no room for judicial interpretation when the Legislature’s intent can be ascertained from the statute’s plain and unambiguous language.” Hawkins, supra at 510. Because there is no clear indication in the language of MCL 791.240a(l) that the Legislature intended to either adopt or repu diate the Stewart Court’s imposition of an extra-statutory remedy for a violation of that statute, we decline to apply the reenactment rule in this case.
C. APPROPRIATE REMEDY FOR A VIOLATION OF MCL 791.240a(l)
Where an official has a clear legal duty to act and fails to do so, the appropriate remedy is an order of mandamus. See In re MCI, 460 Mich 396, 442-443; 596 NW2d 164 (1999); Lickfeldt v Dep’t of Corrections, 247 Mich App 299, 302; 636 NW2d 272 (2001). Where, as here, the Legislature has established a clear, ministerial duty, but has failed to prescribe any consequence for a violation of that duty, a plaintiff may seek a writ of mandamus to compel compliance with the statutory duty. Accordingly, we agree with the suggestion of the Court of Appeals in this case— and in Lane, 2 Mich App 144 — that the proper remedy for the failure to hold a timely hearing as required by MCL 791.240a(l) is a complaint for an order of mandamus rather than for a writ of habeas corpus.
IV. CONCLUSION
Because nothing in the text of MCL 791.240a or the remainder of the statutory scheme governing paroles indicates a legislative intent that a violation of the forty-five-day time limit established by MCL 791.240a(l) requires the discharge of a prisoner, we reverse the decision of the Court of Appeals and reinstate the order of the parole board revoking plaintiffs parole. The appropriate remedy for a violation of the forty-five-day requirement is a writ of mandamus. To the extent that this Court’s decisions in Stewart and Lane conflict with today’s holding, they are overruled.
Corrigan, C.J., and Taylor and Markman, JJ., concurred with Young, J.
MCL 791.240a(l) provides in part that “[wjithin 45 days after a paroled prisoner has been returned or is available for return to a state correctional facility under accusation of a parole violation . . the prisoner is entitled to a fact-finding hearing on the charges . . .
Plaintiffs prior parole violations included an incident in which he punched and threatened a woman; cocaine use; and failure to report to his parole officer.
Plaintiff was subsequently convicted in the Washtenaw Circuit Court of fourth-degree fleeing and eluding in violation of MCL 750.479a(2).
Apparently, plaintiff’s only mitigation evidence pertained to the dismissed third count of the parole violation warrant.
The ale noted: “Parolee is a drug offender who has previously violated his parole on charges of assault, using cocaine, failing to enter treatment, and absconding. For these violations, he has been diverted to [the Technical Rules Violation Center] three times. . . . Parolee has plainly established that he remains an unwarranted danger to the community, will likely re-offend, and is not amenable to parole supervision.”
The Court of Appeals treated plaintiff’s complaint as an original action, noting that plaintiff had not appealed from tire circuit court’s denial of habeas corpus relief.
A preliminary hearing is required to determine if there is probable cause to believe that parole conditions have been violated. However, a paroled prisoner may be arrested and detained without a warrant. MCL 791.239, 791.239a. This reflects the conditional nature of the release and the continuing authority of the Department of Corrections to maintain the prisoner in custody.
See MCL 791.234(1); MCL 791.234a.
See Momssey, supra at 480:
[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. . . . Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions. [Citation omitted.]
At issue in Stewart and Lane was former MCL 791.240, the predecessor of MCL 791.240a. Former MCL 791.240 was repealed by 1908 PA 192. right to produce witnesses and proofs in his favor and to meet the witnesses who are produced against him. . . .
MCL 791.240, which was substantially similar to the current MCL 791.240a, provided:
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
The parole board argued in Stewart that because the plaintiff had been convicted of a crime in Missouri, he was riot entitled to a parole violation hearing because the conduct underlying the Missouri conviction was a “felony or misdemeanor under the laws of this state” within the meaning of former MCL 791.240. One of the primary differences between former MCL 791.240 and current MCL 791.240a is that the current statute does not require a fact-finding hearing for parole violations based on convictions punishable by imprisonment not only in this state, but in “the United States ... or any other state or territory of the United States. . . .”
The Legislature well knows how to provide remedies for statutory time limitation violations and has explicitly done so in other settings. See, e.g., MCL 780.133 (providing that where the “180-day rule” of MCL 780.131 is violated, the courts of this state lose jurisdiction and must dismiss the action with prejudice).
MCL 791.240a(6).
The Attorney General cites Hawkins v Michigan Parole Bd, 390 Mich 569; 213 NW2d 193 (1973), in which this Court adopted and affirmed an opinion of the Court of Appeals ordering a parole revocation hearing de novo on the ground that the allegedly indigent plaintiff was not accorded a proper hearing because he was not provided with court-appointed counsel. The Attorney General essentially argues that Stewart was overruled sub silentio by this Court’s decision in Hawkins. However, Hawkins is inapposite because the parties in that case stipulated that such a hearing would be held. See Hawkins v Michigan Parole Bd, 45 Mich App 529, 531; 206 NW2d 764 (1973). Thus, unlike in Stewart and the present case, the consequences of holding an improper parole revocation hearing were not at issue in Hawkins.
See Phillips v Warden, State Prison of Southern Michigan, 153 Mich App 557, 566; 396 NW2d 482 (1986) (“Habeas corpus is an alternative remedy and may be refused in the exercise of discretion where full relief may be obtained in other more appropriate proceedings.”).
As noted by the Court of Appeals in this case, this Court, without comment, granted habeas corpus relief to the petitioner in Lane. To the extent that any implication arises from this Court’s terse order in Lane that habeas corpus relief is appropriate for a violation of MCL 791.240a(l), we overrule that decision. | [
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Young, J.
Defendant was convicted of first-degree premeditated murder, MCL 750.316(l)(a); felony mur der, MCL 750.316(l)(b), first-degree criminal sexual conduct (CSC i), MCL 750.520b(l); and arson of a dwelling house, MCL 750.72. The Court of Appeals affirmed defendant’s first-degree murder convictions, but vacated the CSC I and arson convictions as predicate felonies for defendant’s felony-murder conviction. This Court granted leave to appeal.
We conclude that there was sufficient evidence to support defendant’s first-degree premeditated murder conviction. We further conclude that there was no evidence of an accomplice and thus the trial court did not err when it failed to give sua sponte a cautionary accomplice instruction under People v McCoy, 392 Mich 231; 220 NW2d 456 (1974). Moreover, defendant’s attorney was not ineffective for failing to request the instruction. Accordingly, we affirm the judgment of the Court of Appeals.
I. FACTS AND PROCEDURAL HISTORY
Defendant’s conviction arises from the brutal rape and murder of the victim, Carol Easlick. Testimony established that on the day of the offense, defendant and his friend, Woodrow Couch, visited the victim in her apartment. After a short stay, both men left the apartment. Later in the day, defendant returned to the victim’s apartment alone.' While there, defendant raped the victim, battered her to death, and then set her corpse on fire.
Defendant was arrested and charged with first-degree premeditated murder, MCL 750.316(l)(a); first-degree felony murder, MCL 750.316(l)(b); first-degree arson of a dwelling house, MCL 750.72; and CSC I, MCL 750.520b(l). Defendant denied involvement in the crime. At the close of the proofs, before instructing the jury, the court asked both parties whether they wanted to comment or object to the proposed jury instructions. Defendant’s attorney responded, “other than the alibi, I find nothing objectionable.” Significantly, defendant’s attorney neither requested a cautionary instruction regarding accomplice testimony nor objected to the trial court’s failure to give sua sponte the cautionary instruction. Defendant was convicted by a jury of all the charges.
Defendant appealed to the Court of Appeals, raising several claims: (1) the evidence was insufficient to support the first-degree premeditated murder conviction, (2) the trial court erred by failing to give sua sponte a cautionary instruction regarding accomplice testimony, (3) his attorney was ineffective for failing to request the cautionary instruction, and (4) the convictions of both felony murder and CSC I violated his double jeopardy rights.
The Court of Appeals vacated the arson and CSC I convictions, but affirmed the remaining convictions. Regarding defendant’s argument that the trial court erred when it failed to give sua sponte a cautionary instruction (and that defense counsel was ineffective for failing to request one), the Court stated:
Here, it is apparent that defendant’s theory of the case was that he did not commit the crimes and was not present during the commission of the crimes. In this regard, Couch’s testimony to this effect as well as his credibility was attacked by defense counsel during both cross-examination and closing arguments. The instructions provided by the trial court properly presented the elements of the crimes and properly informed the jury as to what should be considered when determining the credibility of a particular witness. Further, dna analysis of the sperm swabs taken from the victim’s vagina, rectum, and mouth established a match with defendant’s dna and excluded Couch as a potential donor. Under these circumstances, the trial court did not err when it failed to provide cautionary instructions regarding accomplice testimony in this case. [Slip op at 2 (citations omitted).]
Defendant applied for leave to appeal here, which was granted.
H. STANDARD OF REVIEW
“The test for determining the sufficiency of evidence in a criminal case is whether the evidence, viewed in a light most favorable to the people, would warrant a reasonable juror in finding guilt beyond a reasonable doubt.” “The standard of review is deferential: a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict.” People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000).
Whether a trial court’s failure to give sua sponte a cautionary instruction about accomplice testimony under McCoy was error is a question of law that we review de novo. People v Hamilton, 465 Mich 526, 529; 638 NW2d 92 (2002).
HI. ANALYSIS A
Defendant first argues that .there was insufficient evidence to support his first-degree premeditated murder conviction. We disagree.
To show first-degree premeditated murder, “ ‘[s]ome time span between [the] initial homicidal intent and ultimate action is necessary to establish premeditation and deliberation.’ ” People v Tilley, 405 Mich 38, 45; 273 NW2d 471 (1979), quoting People v Hoffmeister, 394 Mich 155, 161; 229 NW2d 305 (1975). The interval between the initial thought and ultimate action should be long enough to afford a reasonable person time to take a “second look.” People v Vail, 393 Mich 460, 469; 227 NW2d 535 (1975), quoting People v Morrin, 31 Mich App 301, 328-330; 187 NW2d 434 (1971). See also People v Johnson, 460 Mich 720, 733; 597 NW2d 73 (1999) (applying a “second-look” analysis). Manual strangulation can be used as evidence that a defendant had an opportunity to take a “second look.” Id. Moreover, a defendant’s attempt to conceal the killing can be used as evidence of premeditation. Id.
In this case, there was evidence that the victim was manually strangled. Also, there was evidence that the defendant attempted to conceal his crime by burning the victim’s body. Viewing this evidence in a light most favorable to the prosecutor, we conclude there was sufficient evidence for the jury to convict defendant of first-degree premeditated murder. Accordingly, this conviction is affirmed.
B
Defendant next argues that the trial court erred by failing to give sua sponte a cautionary instruction regarding accomplice testimony.
As an initial matter, we conclude that defendant’s failure to either request a cautionary accomplice instruction or to object to the trial court’s failure to give one sua sponte, precludes defendant from seeking relief in the appellate courts.
MCL 768.29 provides, in pertinent part, that “[t]he failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.” (Emphasis added). MCR 2.516(C) further provides that “[a] party may assign as error the . . . failure to give an instruction only if the party objects on the record . . . .” (Emphasis added.)
In this case, defendant neither requested a cautionary accomplice instruction nor objected to the court’s failure to give one. Therefore, defendant is precluded from arguing that the omitted instruction was error. MCR 2.516(C). Furthermore, because he failed to request the omitted instruction, defendant is not entitled to have the verdict set aside. MCL 768.29. Conse quentiy, defendant’s only remaining avenue for relief is for review under People v Grant, 445 Mich 535; 520 NW2d 123 (1994).
Because defendant failed to object to the omitted instruction, defendant’s claim of error was forfeited. A forfeited, nonconstitutional error may not be considered by an appellate. court unless the error was plain and it affected defendant’s substantial rights. G)-ant, supra at 552-553.
Defendant maintains that the failure to give a cautionary accomplice instruction with regard to Couch’s testimony was plain error under McCoy, supra at 240, which held:
For cases tried after the publication of this opinion, it will be deemed reversible error ... to fail upon request to give a cautionary instruction concerning accomplice testimony and, if the issue is closely drawn,[ ] it may be reversible error to fail to give'such a cautionary instruction even in the absence of a request to charge.”[ ]
We conclude that it was not error for the trial court to omit the cautionary accomplice instruction because there is no evidence that Couch, the alleged accomplice, was involved in the crimes at all. Signifi cantly, the DNA evidence excluded Couch as a potential donor of the sperm found on the victim. Moreover, the cautionary accomplice instruction would have been inconsistent with defendant’s theory. Defendant’s theory was that he neither committed the charged crimes, nor was he involved in any way. In fact, defendant’s own attorney claimed that someone other than Couch committed the offense during his closing argument.
For these reasons, it was not error for the trial court to fail to give sua sponte a cautionary instruction regarding accomplice testimony. Because defendant cannot show error, he cannot demonstrate plain error that affected his substantial rights. Accordingly, defendant is not entitled to relief for the forfeited claim. Grant, supra.
c
In a related argument, defendant claims that his trial counsel was ineffective because counsel failed to request a cautionary accomplice instruction.
To demonstrate ineffective assistance of counsel, defendant must show that his attorney’s conduct fell below an objective standard of reasonableness and that the representation so prejudiced defendant that he was deprived of a fair trial. People v Reed, 449 Mich 375, 390; 535 NW2d 496 (1995) (opinion by Boyle, J.). Moreover, courts will not second-guess matters of trial strategy. People v Rice (On Remand), 235 Mich App 429, 444; 597 NW2d 843 (1999).
Here, defendant is unable to demonstrate ineffective assistance of counsel. As discussed above, a cautionary instruction regarding accomplice testimony was inappropriate because it was inconsistent with the evidence and it was inconsistent with defendant’s theory at trial. Further, it is reasonable to presume that the attorney’s failure to request the cautionary instruction was a matter of trial strategy. In addition to its inconsistency with defendant’s theory, the instruction might have damaged defendant’s case inasmuch as it would have suggested to the jury that defendant was involved in the offense.
Accordingly, we conclude that defendant’s attorney was not ineffective for failing to request the cautionary instruction.
IV
In sum, there was sufficient evidence to support defendant’s first-degree premeditated murder conviction. Additionally, the trial court did not err by failing to give sua sponte a cautionary accomplice instruction, nor was defendant’s attorney ineffective for failing to request one.
Accordingly, we affirm the judgment of the Court of Appeals.
Corrigan, C.J., and Weaver, Taylor, and Markman, JJ., concurred with Young, J.
Cavanagh and Kelly, JJ., concurred in the result only.
Unpublished opinion per curiam, issued June 19, 2001 (Docket No. 220715). The Court of Appeals explained that it was unclear whether the arson or esc i conviction served as the predicate felony. However, because defendant ultimately faced life in prison without the possibility of parole, the panel thought it appropriate to vacate both convictions.
Couch was a key prosecution witness.
Defendant gave two conflicting versions of what happened that day. In his first statement to the police, defendant denied returning to the victim’s apartment after he and Couch left. He also denied having sexual relations with the victim. In his second statement, defendant stated that he had consensual sex with the victim. However, he claimed that she was alive when he left, and that Couch remained in the apartment with the victim.
467 Mich 899 (2002).
An issue is “closely drawn” if its resolution depends on a credibility contest between the defendant and the accomplice-witness. McCoy, supra at 238-239; People v Tucker, 181 Mich App 246, 256; 448 NW2d 811 (1989).
The latter half of this holding, commonly called the “closely drawn” rule, states that it may be an error requiring reversal for a court to fail to give sua sponte a cautionary instruction when the issue of defendant’s involvement is “closely drawn.” This rule arguably conflicts with MCL 768.29, which provides that a verdict may not be set aside because of an omitted instruction if the defendant failed to request the instruction. However, for reasons discussed below, we conclude that there was no evidence of an accomplice in this case, and, therefore, McCoy’s “closely drawn” rule is not implicated. For that reason, we do not reach the question whether McCoy conflicts with MCL 768.29.
Defendant’s attorney argued:
I submit to you that there could be some unknown person that went in after [defendant] left, after [Couch] left, and got mad at Carol and committed this crime and then left. [Emphasis added.] | [
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Kelly, J.
We granted leave to appeal in this case to determine whether the prosecutor presented enough evidence to secure a bindover of defendant in the district court. The charges against defendant were criminal sexual conduct in the first degree (CSC-l), the common-law offense of misconduct in office, and two counts of possession of a firearm during the commission of a felony (felony-firearm). The magistrate dismissed the charge of csc-i, but bound over defendant on the charges of misconduct in office and felony-firearm. The circuit court affirmed with regard to csc-l, but quashed the information with regard to the remaining charges. The Court of Appeals reversed, finding probable cause that the crime of csc-i had been committed. Dismissal of the felony-firearm charges was not raised on appeal beyond the circuit court level.
We hold that there was insufficient evidence to support a finding of the commission of csc-i or misconduct in office. Accordingly, we reverse in part and affirm in part the decision of the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was a Bay County deputy sheriff who was prosecuted for acts arising from his sexual relationship with the complainant, a sixteen-year-old girl. The complainant was a close friend of defendant’s family.
At the time of the charged incident, the complainant had known defendant and his family for approximately four years. Defendant’s wife had been the complainant’s basketball coach and defendant often had assisted his wife when the team practiced. From the date that the complainant met defendant until the incident involved here, the complainant regularly babysat for defendant’s children, attended church with the family, and, for a time, resided with them. During that period, the complainant and defendant began having sexual relations.
On the date of the charged incident, the complainant was living with her mother and had just returned from a month-long excursion in Mexico. While the complainant was in Mexico, defendant telephoned her twice. During one call, defendant told the complainant that he had left a present for her under her mother’s porch.
The complainant returned from Mexico and discovered that defendant had placed a ring under the porch. She then called defendant and left a voice mail message for him. They agreed to meet on the follow ing Sunday in an industrial park while the complainant was on her way to church.
On Sunday, the complainant drove to the industrial park, found defendant, who was on duty in a marked police cruiser, and got into the car with him. The complainant and defendant hugged and talked about her trip to Mexico. Finally, the complainant fellated defendant.
The prosecutor charged defendant with four felony offenses: CSC-l, misconduct in office, and two counts of felony-firearm deriving from the other charged infractions. At the preliminary hearing on these charges, the magistrate concluded that there was insufficient evidence to bind defendant over on the CSC-i charge. However, the prosecutor had presented sufficient evidence to proceed on the charge of misconduct in office. Accordingly, the magistrate dismissed the CSC-l charge and the related felony-firearm charge and bound defendant over on the misconduct in office and the related felony-firearm charge. The circuit court then quashed the information. It also denied the prosecutor’s motion to amend the information to reinstate the csc-i charge.
The prosecutor appealed to the Court of Appeals, which held that the magistrate committed an abuse of discretion in refusing to bind defendant over on the CSC-l charge. It also affirmed the circuit court order quashing the charge of misconduct in office.
On appeal to this Court, defendant challenges the Court of Appeals decision reinstating the charge of CSC-I. The prosecutor appeals, challenging that portion of the Court of Appeals ruling that affirmed the circuit court decision to quash the charge of misconduct in office.
II. STANDARD OF REVIEW
We review a district court decision to bind over a defendant under an abuse of discretion standard. People v Justice (After Remand), 454 Mich 334, 344; 562 NW2d 652 (1997). We review any question of the proper interpretation of the underlying criminal law de novo. People v Mass, 464 Mich 615, 622; 628 NW2d 540 (2001).
III. DISCUSSION
The purpose of a preliminary examination is to determine whether there is probable cause to believe that a crime was committed and whether there is probable cause to believe that the defendant committed it. MCR 6.110. The prosecutor need not establish beyond a reasonable doubt that a crime was committed. He need present only enough evidence on each element of the charged offense to lead “ ‘a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of [the defendant’s] guilt.’ ” Justice, supra at 344, quoting Coleman v Burnett, 155 US App DC 302, 317; 477 F2d 1187 (1973). Thus, charges should not be dismissed merely because the prosecutor has failed to convince the reviewing tribunal that it would convict. That question should be reserved for the trier of fact. People v Goecke, 457 Mich 442, 469-470; 579 NW2d 868 (1998).
If the prosecutor fails to present evidence on each of the elements of a charged offense, it would be an abuse of discretion to bind over the defendant for trial. Goecke, supra at 469, citing People v Doss, 406 Mich 90, 100-101; 276 NW2d 9 (1979).
A. CRIMINAL SEXUAL CONDUCT
The prosecutor asserts that defendant’s encounter with the complainant in his patrol car constituted CSC-I. The csc-l statute, MCL 750.520b, provides in relevant parts:
(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:
* * *
(f) The actor causes personal injury to the victim[ ] and force or coercion is used to accomplish sexual penetration. Force or coercion includes but is not limited to any of the following circumstances:
(i) When the actor overcomes the victim through the actual application of physical force or physical violence.
(ii) When the actor coerces the victim to submit by threatening to use force or violence on the victim, and the victim believes that the actor has the present ability to execute these threats.
(in) When the actor coerces the victim to submit by threatening to retaliate in the future against the victim, or any other person, and the victim believes that the actor has the ability to execute this threat. As used in this subdivision, “to retaliate” includes threats of physical punishment, kidnaping, or extortion.
(iv) When the actor engages in the medical treatment or examination of the victim in a manner or for purposes which are medically recognized as unethical or unacceptable.
(v) When the actor, through concealment or by the element of surprise, is able to overcome the victim.
At the preliminary examination, the prosecutor’s theory was that defendant was guilty of CSC-l through coercion. As an authority figure, defendant had engaged the complainant in continuing sexual conduct beginning when she was much younger. The prosecutor reasoned that defendant thus established a pattern of abuse that eroded the complainant’s ability to resist his sexual advances during the incident in question. The prosecutor presented evidence that a child can be psychologically subjugated in this manner. There was no testimony that the complainant had been so subjugated.
In any event, the record shows that no evidence was presented at the preliminary hearing to support the prosecutor’s assertion that the complainant was coerced, in any sense of that term, to fellate defendant on the occasion in question.
The facts were that the complainant had been out of the country for a month before the charged conduct occurred. The complainant initiated the meeting. Moreover, the sexual relationship between defendant and the complainant continued beyond the date of the charged conduct and lasted until the complainant entered into a relationship with her husband.
The unrebutted preliminary examination facts indicate that, on the date of the incident in question, the relationship was consensual and the complainant was involved in it of her own volition. If it were true that the complainant’s actions were the result of defendant’s subjugation of her will, then or at an earlier date, the prosecutor failed to present evidence of it. Because of the lack of evidence, it is unnecessary for this Court to reach the question whether psychologi cal subjugation is a viable theory on which to rest a charge of csc-i.
Thus, we cannot conclude that the district court committed an abuse of discretion by dismissing the charge of csc-i. Accordingly, we reverse the Court of Appeals decision with regard to that charge.
B. MISCONDUCT IN OFFICE
Defendant was also charged with committing the offense of common-law misconduct in office. The Court of Appeals held that the circuit court properly quashed the information because the prosecutor failed to show a nexus between the charged conduct and defendant’s status as a deputy sheriff. We agree with the Court of Appeals.
1. the elements of common-law misconduct in office
When the Legislature codifies a common-law crime without articulating its elements, we must look to the common law for the definition of the crime. People v Couch, 436 Mich 414, 419-420; 461 NW2d 683 (1990). We are bound by the common-law definition until the Legislature modifies it. People v Schmitt, 275 Mich 575, 577; 267 NW 741 (1936); People v Riddle, 467 Mich 116, 126; 649 NW2d 30 (2002).
Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.
At common law, misconduct in office was defined as “corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.” People v Coutu, 459 Mich 348, 354; 589 NW2d 458 (1999) (Coutu I), quoting Perkins & Boyce, Criminal Law (3d ed), p 543. An officer could be convicted of misconduct in office (1) for committing any act which is itself wrongful, malfeasance, (2) for committing a lawful act in a wrongful manner, misfeasance, or (3) for failing to perform any act that the duties of the office require of the officer, nonfeasance. Perkins, p 540.
However, committing nonfeasance or acts of malfeasance or misfeasance are not enough to constitute misconduct in office. In the case of malfeasance and misfeasance, the offender also must act with a corrupt intent, i.e., with a “sense of depravity, perversion or taint.” See Perkins, p 542. See also People v Coutu (On Remand), 235 Mich App 695, 706; 599 NW2d 556 (1999) (Coutu II). In the case of nonfeasance, an offender must willfully neglect to perform the duties of his office. Perkins, p 547.
Moreover, the officer’s wrongdoing must result from or directly affect the performance of his official duties.
The mere coincidence that a crime has been committed by one who happens to be a public officer is not sufficient to establish official misconduct. For this offense it is necessary not only that the offender be an officer, or one who presumes to act as an officer, but the misconduct, if not actually in the exercise of the duties of his office, must be done under color of his office. On the other hand the act of one who is an officer, which act is done because he is an officer or because of the opportunity afforded by that fact, is under color of his office despite his gesture of removing his badge plus his statement that he is not acting in the name of the law. [Perkins, p 541].
With this understanding, we now consider whether there was enough evidence to bind over defendant.
2. THERE IS INSUFFICIENT EVIDENCE TO BIND OVER DEFENDANT FOR MISCONDUCT IN OFFICE
To be guilty of misconduct in office, one must first be a public officer. In this case, defendant is a deputy sheriff. In Coutu I, we held that a deputy sheriff is a public officer for purposes of misconduct in office when the allegations against him arise from the performance of his official duties. Coutu I, supra at 357-358.
Although defendant is a deputy sheriff, there is no evidence that his alleged conduct arose from the performance of his official duties. Rather, the charged conduct arose from a longstanding sexual relationship with the complainant. It is undisputed that defendant was on duty when he engaged in the conduct. However, the prosecutor presented no evidence correlating that conduct with defendant’s public office. The act was neither initiated nor consummated in the exercise of defendant’s duties. It is not alleged that the opportunity to commit the specific corrupt behavior in question, when it occurred, arose from or was furthered by defendant’s status as a deputy sheriff. Whatever influence defendant’s office may once have had on the complainant, there was no evidence that it influenced her to have sexual relations with defendant on the subject occasion.
In short, the prosecutor failed to offer evidence establishing a nexus between defendant’s alleged con duct and defendant’s status as a sheriff’s deputy. From that we conclude that defendant was not acting as a public officer for purposes of misconduct in office. Coutu I, supra. Accordingly, we affirm the Court of Appeals decision regarding this issue on the basis that there was insufficient evidence to support the charge of misconduct in office.
CONCLUSION
We hold that the prosecutor presented insufficient evidence of coercion to sustain the charge of CSC-l against defendant. Because the prosecutor failed to meet this burden, we need not reach the question whether psychological subjugation is a viable theory of coercion.
We also hold that the evidence presented at the preliminary examination did not establish probable cause to believe that defendant committed the common-law offense of misconduct in office.
The Court of Appeals decision in this case is accordingly reversed in part and affirmed in part.
Corrigan, C.J., and Cavanagh, Weaver, Taylor, Young, and Markman, JJ., concurred with Kelly, J.
MCL 750.520b(l)(f).
MCL 750.505.
MCL 750.227b.
Unpublished opinion per curiam, issued June 8, 2001 (Docket No. 229111).
The question of personal injury to the complainant was not raised in this appeal.
MCL 750.505 provides: | [
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Cavanagh, J.
We granted leave to appeal in this case to determine whether MCR 6.201 permits a trial judge to compel a party in a criminal case to create reports from an expert witness when no such report exists. The plain language of MCR 6.201(A) applies only to providing reports that already exist. Therefore, we conclude that a trial court may not compel a party in a criminal case to create an expert witness report. We also conclude that while MCR 6.201(1) permits modification of the requirements or prohibitions of MCR 6.201 upon a showing of “good cause,” such good cause was not demonstrated in this case. The judgment of the Court of Appeals that the trial court abused its discretion in compelling defendant to create an expert report where none existed is affirmed.
I. FACTS AND PROCEEDINGS
Defendant was charged with second-degree murder, MCL 750.317, arising out of a single-vehicle acci dent that resulted in the death of defendant’s passenger. A preliminary examination was held in February 2000, and defendant was bound over for trial. Defendant engaged three expert witnesses to testify at trial. On February 28, 2000, the prosecutor filed a request for discovery, asking for reports produced by or for any expert witness defendant intended to call at trial. No reports existed at that time. The prosecutor moved to strike the defense expert witnesses on the basis that defendant had not turned over all reports or curricula vitae of the experts.
On May 15, 2000, the trial judge ordered defendant to comply with MCR 6.201 by providing to the prosecutor any reports of defendant’s expert witnesses. In August 2000, the prosecutor filed a second motion to strike and again alleged that defendant had not complied with the discovery requests. The prosecutor complained that there were no reports from any of defendant’s expert witnesses.
The trial judge signed an order on September 11, 2000, which, in part, ordered defendant to “obtain reports from the defense expert and provide them within thirty (30) days, to the People.” Defendant’s motion for reconsideration was denied on October 20, 2000. In its order, the trial court stated that “the Court believes that [MCL 767.94a] and MCR 6.201 provide the Court with the discretion to order the creation of such reports.”
Defendant filed an application for leave to appeal in the Court of Appeals. The Court of Appeals granted leave and reversed the order of the trial court. 246 Mich App 201; 632 NW2d 154 (2001). The Court concluded that there was no requirement in MCR 6.201 that an expert actually create a written report that could be produced. Further, because nonwritten observations and conclusions are not discoverable, the Court cited People v Elston, 462 Mich 751, 759, 762; 614 NW2d 595 (2000), for the proposition that the prosecutor was not entitled to defendant’s expert witnesses’ unwritten observations. The Court of Appeals also rejected the prosecutor’s argument that the trial judge had the authority to modify the rules. The Court noted that MCR 6.201(1) states: “On good cause shown, the court may order a modification of the requirements and prohibitions of this rule.” Because the trial court did not find that good cause existed and, instead, based its decision on its own discretion, the Court of Appeals concluded that the trial court abused its discretion in compelling defendant to create expert reports where none existed.
The prosecutor applied for leave to appeal to this Court. Instead of granting leave, this Court remanded the case to the Saginaw Circuit Court for a “good cause” determination under MCR 6.201(1). 636 NW2d 139 (2001).
On February 6, 2002, on remand, the trial court issued an opinion and order outlining “good cause” for modifying the discovery mandated by MCR 6.201(A). The trial court noted that defendant did not comply with the trial court’s order for discovery and defendant’s failure to comply provided a legally sufficient reason for “good cause.” This Court granted leave to appeal on July 10, 2002.
II. STANDARD OF REVIEW
A trial court’s decision regarding discovery is reviewed for abuse of discretion. People v Stanaway, 446 Mich 643, 680; 521 NW2d 557 (1994). Interpretation of a court rule is treated like interpretation of a statute, it is a question of law that is reviewed de novo. CAM Const v Lake Edgewood Condominium Ass’n, 465 Mich 549, 553; 640 NW2d 256 (2002).
III. analysis
A. THE COURT RULE, MCR 6.201, NOT THE STATUTE, MCL 767.94a, CONTROLS DISCOVERY IN A CRIMINAL CASE
The question that logically must be answered first is whether the court rule, MCR 6.201, or the statute, MCL 767.94a, controls discovery in a criminal case. Both the prosecutor and defendant maintain that the court rule governs. We agree that the court rule is currently the governing provision. As both parties correctly point out, in conjunction with issuing MCR 6.201, this Court issued Administrative Order No. 1994-10. The administrative order provided that “discovery in criminal cases heard in the courts of this state is governed by MCR 6.201, and not by MCL 767.94a; MSA 28.1023 (194a).” AO 1994-10. Therefore, we do not need to determine whether MCL 767.94a would permit a trial court to compel creation of an expert report because MCR 6.201, not MCL 767.94a, governs discovery in criminal cases.
B. MCR 6.201
Having determined that MCR 6.201 governs discovery in criminal cases, we must now determine whether MCR 6.201(A) allows a trial court to compel creation of a report from a proposed expert witness. The prosecutor contends that the trial court can compel creation of a report. We reject the prosecutor’s contention because it is contrary to the plain language of MCR 6.201(A). In CAM Const, supra at 554, we reiterated the proper mode of interpreting a court rule, which was articulated in Grievance Admin v Underwood, 462 Mich 188, 193-194; 612 NW2d 116 (2000):
When called on to construe a court rule, this Court applies the legal principles that govern the construction and application of statutes. McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). Accordingly, we begin with the plain language of the court rule. When that language is unambiguous, we must enforce the meaning expressed, without further judicial construction or interpretation. See Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). Similarly, common words must be understood to have their everyday, plain meaning. See MCL 8.3a . . .; see also Perez v Keeler Brass Co, 461 Mich 602, 609; 608 NW2d 45 (2000).
MCR 6.201(A)(3) provides that a party must provide “any report of any kind produced by or for an expert witness whom the party intends to call at trial.” The plain meaning of the words at issue is as follows. A “report” is defined as: “1. An account presented usually in detail. 2. A formal account of the proceedings or transactions of a group. . . .” The' American Heritage Dictionary (2d college ed). To “produce” is defined as: “1. To bring forth; yield. 2. To create by mental or physical effort. 3. To manufacture. 4. To cause to occur or exist; give rise to. 5. To bring forward; exhibit. 6. To sponsor and present to the public. ...” Id
According to the plain meaning of the words, a “report” is an account of something. A report that has been “produced” has already been brought forth or created. In other words, the report must already exist. There is nothing in the plain language of MCR 6.201(A) that permits a trial court to compel such a report to be created when it does not exist.
Our holding in this regard is consistent with a recent case from this Court, People v Elston, supra. In Elston, the defendant was charged with first-degree criminal sexual conduct. The trial court denied the defendant’s request to suppress evidence of sperm fragments found in the victim because neither party learned of their existence until the first day of trial. The trial court denied the motion to suppress. The Court of Appeals reversed. This Court rein stated the trial court’s denial of the motion to suppress, stating:
Apart from the wet swab sample and the wet swab laboratory report, the only other “evidence of sperm” not disclosed to defendant before trial was Dr. Randall’s own personal observations. Clearly, this information was outside the scope of discovery. Because Dr. Randall did not make notes of his observations, they were not subject to mandatory disclosure under MCR 6.201(A)(3). [.Elston at 762.]
The same is true in this case. Defendant has consulted experts, but he maintains that the experts have not generated any reports. Therefore, nothing exists that could be subject to mandatory disclosure under MCR 6.201(A)(3).
The plain language of MCR 6.201(A) does not permit a trial court to compel creation of a report from either party’s expert witnesses where no report exists. We, therefore, affirm the Court of Appeals holding that only existing reports that have been “produced,” or created, by an expert witness are required to be disclosed pursuant to MCR 6.201(A).
C. GOOD CAUSE
MCR 6.201(1) provides: “On good cause shown, the court may order a modification of the requirements and prohibitions of this rule.”
Before granting the prosecutor’s application for leave to appeal in this case, we remanded the case to the trial court for a good-cause determination under MCR 6.201(1). On remand, the trial court found that defendant “failed to fully comply with the discovery requests and orders by failing to initially disclose the addresses of experts and failure to provide information from the experts.” The court stated:
[I]n attempting to fashion an appropriate remedy for the discovery violation caused by the Defendants [sic], [the court] took into account the Defendant’s due process rights to a fair trial, the Prosecutor’s interest in obtaining convictions on relevant and admissible evidence and the Court’s interest in expeditiously administering justice and maintaining judicial integrity.
Therefore, the court ordered that defendant “shall provide a Curriculum Vita[] of [each of] defendant’s experts and a basic report on each of the experts’ findings and conclusions.”
We agree that a trial court may modify the requirements or prohibitions of MCR 6.201 if good cause is shown. We do not believe, however, that the trial court’s stated reason constituted “good cause” under the court rule. Defendant may not have adequately responded to the prosecutor’s discovery requests pertaining to his expert witnesses’ curricula vitae. However, as we indicated above, MCR 6.201(A)(3) only requires provision to the opposing party reports “produced by or for an expert witness.” Because a party is not obligated to disclose reports that do not exist, the fact that defendant did not disclose such reports does not constitute “good cause” to modify the requirements of MCR 6.201(A). We recognize that there may be circumstances where good cause does exist to permit a trial court to compel a party to create expert witness reports. For example, good cause may exist when a trial court believes a party is intentionally suppressing reports by an expert witness. However, such circumstances are not present here. Therefore, we conclude that the trial court abused its discretion in ordering defendant to create expert reports with the experts’ findings and conclusions.
IV. conclusion
For these reasons, we conclude that the plain language of MCR 6.201(A) requires disclosing only reports that already exist. A trial court may not compel a party in a criminal case to create a report from an expert witness, absent the good cause required in MCR 6.201(1). We also conclude that the requisite “good cause” to modify the requirements in the court rule was not demonstrated in this case. Therefore, we affirm the judgment of the Court of Appeals.
Corrigan, C.J., and Weaver, Kelly, Taylor, Young, and Markman, JJ., concurred with Cavanagh, J.
The grant order directed the parties to brief among the issues:
(1) [W]hether MCR 6.201 or MCL 767.94a allows a trial court to compel creation of a report from a proposed defense expert witness, (2) whether the court rules authorize a trial court to compel disclosure of a defense, (3) whether the court rule, MCR 6.201, or the statute, MCL 767.94a, controls discovery in a criminal case, and (4) whether MRE 705 gives the trial court discretion to order disclosure of a defense expert’s opinion. [466 Mich 891 (2002).]
MCR 6.201 provides, in pertinent part:
(A) Mandatory Disclosure. In addition to disclosures required by provisions of law other than MCL 767.94a; MSA 28.1023(194a), a party upon request must provide all other parties:
(1) the names and addresses of all lay and expert witnesses whom the party intends to call at trial;
(2) any written or recorded statement by a lay witness whom the party intends to call at trial, except that a defendant is not obliged to provide the defendant’s own statement;
(3) any report of any kind produced by or for an expert witness whom tire party intends to call at trial;
(4) any criminal record that the party intends to use at trial to impeach a witness;
(5) any document, photograph, or other paper that the party intends to introduce at trial; and
(6) a description of and an opportunity to inspect any tangible physical evidence that the party intends to introduce at trial. On good cause shown, the court may order that a party be given the opportunity to test without destruction such tangible physical evidence.
MCL 767.94a provides as follows:
(1) A defendant or his or her attorney shall disclose to the prosecuting attorney upon request the following material or information within the possession or control of the defendant or his or her attorney:
(a) The name and last known address of each witness other than the defendant whom the defendant intends to call at trial provided the witness is not listed by the prosecuting attorney.
(b) The nature of any defense the defendant intends to establish at trial by expert testimony.
(c) Any report or statement by an expert concerning a mental or physical examination, or any other test, experiment, or comparison that the defendant intends to offer in evidence, or that was prepared by a person, other than the defendant, whom the defendant intends to call as a witness, if the report or statement relates to the testimony to be offered by the witness.
(d) Any book, paper, document, photograph, or tangible object that the defendant intends to offer in evidence or that relates to the testimony of a witness, other than the defendant, whom the defendant intends to call.
(2) The defendant or his or her attorney shall comply with the disclosure provisions of subsection (1) not later than 10 days before trial or at any other time as the court directs.
(3) A defendant shall not offer at trial any evidence required to be disclosed pursuant to subsection (1) that was not disclosed unless permitted by the court upon motion for good cause shown. A motion under this subsection may be made before or during trial.
We intend to study discovery in criminal cases in connection with our review of the Rules of Criminal Procedure in Administrative File 2003-04. We need not address the issue in this opinion because we are not persuaded that the court rule and statute conflict in relevant respects for the purposes of this case.
This definition is consistent with the definition in Black’s Law Dictionary (7th ed), which defines “produce” as: “1. To bring into existence; to create. 2. To provide (a document, witness, etc.) in response to subpoena or discovery request. 3. To yield (as revenue). 4. To bring (oil, etc.) to the surface of the earth.”
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AFTER REMAND
Per Curiam.
The prosecutor sought leave to appeal the Court of Appeals decision reversing defendant’s first-degree murder conviction on the basis that his trial counsel was ineffective for failing to seek a directed verdict of acquittal. We reverse the judgment of the Court of Appeals and reinstate the defendant’s conviction of felony murder. Because the prosecution presented sufficient evidence in its case-in-chief to support a finding that defendant was guilty of felony murder as an aider and abettor, defense counsel was not ineffective for failing to seek a directed verdict.
I. FACTS AND PROCEDURAL HISTORY
Defendant was convicted by a jury of first-degree felony murder, MCL 750.316(l)(b), arising out of the death of Mark Seaton. Defendant was observed at the victim’s apartment along with David Ware, whose whereabouts are unknown. Defendant gave a statement to the police, admitting that he brought Ware to the victim’s apartment and admitting to being present in the victim’s apartment at the time of the charged offense. Defendant claimed that he observed Ware commit the murder. Specifically, defendant told the police that he observed Ware strangle the victim, bind the victim’s hands and feet together, and then strangle the victim a second time after the victim resumed breathing. Shortly afterward, a neighbor knocked on the door.
In addition to the admission of defendant’s statement, the prosecution presented the testimony of several neighbors, including Gloria Hollis. Hollis testified that she sensed something was wrong and knocked on the victim’s apartment door twice. On both occasions, defendant answered the apartment door, claimed that he and Ware were cousins of the victim and that the victim was not home. After her first visit to the victim’s apartment, Hollis observed electronic components being carried out of the apartment to the victim’s car. Another neighbor testified that he observed defendant leaving the apartment with stereo equipment. Defendant and Ware attempted to leave the scene in the victim’s car, but eventually fled on foot because the car would not start. The victim was found dead in his apartment with his wrists and ankles bound with duct tape and electrical cord.
In his appeal of right, the Court of Appeals reversed defendant’s conviction on the basis that the trial court had erred in admitting hearsay testimony. This Court reversed that judgment in an opinion per curiam, holding that defendant had knowingly waived his right to challenge the admission of the hearsay testimony. We remanded the case to the Court of Appeals to consider defendant’s remaining issues.
On remand, the Court of Appeals again reversed defendant’s murder conviction in an unpublished opinion per curiam. A majority of the Court of Appeals panel held that, after viewing the evidence in a light most favorable to the prosecution, “a rational trier of fact could find the elements of first-degree murder proved beyond a reasonable doubt.” Slip op at 1.
However, the majority found merit in defendant’s claim that he was denied the effective assistance of counsel because his attorney failed to move for a directed verdict of acquittal after the prosecution presented its proofs. The majority held that “the prosecution failed to present evidence that could establish beyond a reasonable doubt that defendant was the principal or that he aided and abetted in the commission of felony murder.” Slip op at 4. The majority further held that the failure to move for a directed verdict fell below an objective standard of reasonableness, and that there was a reasonable probability that defendant would have been acquitted of the felony-murder charge had the motion been made. The Court of Appeals remanded the case to the trial court for entry of judgment of conviction for larceny in a building, MCL 750.360.
The concurring judge opined that the prosecution’s evidence was sufficient and that counsel was not ineffective for failing to move for a directed verdict. However, because the issue regarding the sufficiency of the evidence without the defense witnesses’ testimony was decided in the previous Court of Appeals opinion, the concurring judge believed that the holding became the law of the case and was not subject to further review.
II. STANDARD OF REVIEW
Whether a defendant has been denied the effective assistance of counsel is a mixed question of law and fact. A judge must first find the facts and then must decide whether those facts constitute a violation of the defendant’s constitutional right to effective assistance of counsel. People v LeBlanc, 465 Mich 575; 640 NW2d 246 (2002).
Counsel’s alleged deficiency relates to the failure to move for a directed verdict. Because a Ginther hearing was not conducted, our review of the relevant facts is limited to mistakes apparent on the record. People v Nantelle, 215 Mich App 77, 87; 544 NW2d 667 (1996).
In assessing a motion for a directed verdict of acquittal, a trial court must consider the evidence presented by the prosecution to the time the motion is made and in a light most favorable to the prosecution, and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979).
III. ANALYSIS
To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense. Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). In order to demonstrate that counsel’s performance was deficient, the defendant must show that it fell below an objective standard of reasonableness under prevailing professional norms. In so doing, the defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy. Strickland, supra at 690-691; People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
To prove felony murder on an aiding and abetting theory, the prosecution must show that the defendant (1) performed acts or gave encouragement that assisted the commission of the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result, (3) while committing, attempting to commit, or assisting in the commission of the predicate felony. People v Carines, 460 Mich 750, 755; 597 NW2d 130 (1999).
In order to satisfy the malice standard required under People v Aaron, 409 Mich 672, 299 NW2d 304 (1980), the prosecution must show that the aider and abettor either intended to kill, intended to cause great bodily harm, or wantonly and willfully disregarded the likelihood that the natural tendency of his behavior was to cause death or great bodily harm. Further, if an aider and abettor participates in a crime with knowledge of the principal’s intent to kill or to cause great bodily harm, the aider and abettor is acting with “wanton and willful disregard” sufficient to support a finding of malice. See id. at 733; People v Kelly, 423 Mich 261; 378 NW2d 365 (1985).
Viewing the evidence in a light most favorable to the prosecution, we conclude that a rational juror could find that the elements of felony murder were proved beyond a reasonable doubt on an aiding and abetting theory. Defendant’s statement to the police indicates that Ware strangled the victim twice. After the victim had been strangled, defendant heard a knock on the door. Assuming arguendo that defendant was initially unaware of Ware’s intent to kill or cause great bodily harm, he certainly became aware of Ware’s intent after the strangling incidents. Eyewitness testimony indicates that defendant participated in the crime by engaging in the larceny. In addition, Gloria Hollis’s testimony indicates that defendant performed acts that assisted the commission of the murder. Defendant’s acts at the apartment door possibly precluded the provision of medical assistance to the victim while he was still alive, hampered detection of the murder, or facilitated defendant and Ware’s escape.
Because the prosecution submitted sufficient evidence, which included the defendant’s own incriminating statement corroborating his participation in the murder as an aider and abettor, defense counsel was not ineffective for failing to make a motion for a directed verdict. Because counsel’s performance was not deficient, defendant is unable to satisfy the first prong of Strickland and Pickens. Ineffective assistance of counsel cannot be predicated on the failure to make a frivolous or meritless motion. People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998); People v Gist, 188 Mich App 610; 470 NW2d 475 (1991).
IV. CONCLUSION
Because defendant was not denied the effective assistance of counsel on the basis of counsel’s failure to seek a directed verdict, we reverse the judgment of the Court of Appeals and reinstate defendant’s conviction of felony murder.
Corrigan, C.J., and Cavanagh, Weaver, Kelly, Taylor, Young, and Markman,- JJ., concurred.
Unpublished opinion per curiam, issued July 21, 2000 (Docket No. 211368). The only defense witness presented was Mary McKinney, mother of David Ware. She testified regarding inculpatory statements made to her by Ware. Some of the inculpatory statements directly implicated defendant in the binding and subduing of the victim.
465 Mich 442; 636 NW2d 514 (2001).
Unpublished opinion per curiam, issued April 5, 2002 (Docket No. 211368).
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
In addition, the law-of-the-case doctrine does not preclude this Court from considering the sufficiency of the prosecution’s proofs. Where a case is taken on appeal to a higher appellate court, the law announced in the higher appellate court supersedes that set forth in the intermediate appellate court. Johnson v White, 430 Mich 47; 420 NW2d 87 (1988). | [
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Taylor, J.
We granted leave to appeal in this case to consider whether environmental-contamination conditions are factors to be considered when a court is determining fair market value to establish just compensation in a condemnation action under the Uniform Condemnation Procedures Act (ucpa), MCL 213.51 et seq. We hold that they are to be considered. Accordingly, we reverse the judgment of the Court of Appeals in this regard and remand this matter to the trial court for further proceedings consistent with this opinion.
1. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Extrusions Division, Inc. (Extrusions), operates a plastics extruding business and owned an eight-acre parcel of vacant land adjacent to its operations complex in Grand Rapids. In 1992, Extrusions applied to the city of Grand Rapids for a permit to build a warehouse on the eight acres. The application was denied, and Extrusions was informed that the Silver Creek Drain District (Drain District), in 1991, had identified the parcel as its desired site for a storm-water retention pond. Extrusions claimed that denial of a permit, together with the failure of the Drain District to commence a condemnation action, amounted to an unconstitutional taking of private property without just compensation. Accordingly, in 1992, Extrusions initiated an inverse-condemnation action against the city and the Kent County Drain Commissioner.
On March 7, 1994, the Drain District, pursuant to the ucpa, tendered a good-faith “just compensation” offer in the amount of $211,300 to Extrusions for the parcel. This offer, as allowed under MCL 213.55(1) of the ucpa, also reserved the Drain District’s right to proceed against Extrusions in a federal or state action for contamination-cost recovery. Cost-recovery actions are intended to give governmental authorities the ability to seek reimbursement from those responsible for the damage done to the land by the release of hazardous substances. At the time of this litigation, the procedure to reserve the right to bring a cost-recovery action against the condemnee was new, having been established by amendments of the UCPA in 1993. The purpose of the amendments was not merely to allow the condemnor to reserve the right to demand remediation costs, but also to ensure that, if a reservation of rights occurred, the funds for condemnation would be escrowed to satisfy any judgment that the condemnor might eventually secure against the condemnee.
On May 26, 1994, the Drain District executed, as required by MCL 213.55(4)(e), a “declaration of taking,” which indicated that this private property was being taken for purposes of a necessary public improvement.
In June, the $211,300 good-faith “just compensation” amount was placed in escrow. The Drain District then filed its condemnation action and again reserved the right to bring a federal or state cost-recovery action.
On February 20, 1995, the parties stipulated, and the trial court ordered, that the parcel be conveyed to the Drain District and that the Drain District pay Extrusions $211,300 for the taking. Following this, the Drain District, notwithstanding the stipulation and order, sought an order that would hold the funds in escrow as security for the remediation costs as allowed under the UCPA. Extrusions, in response, citing part 201 of the Natural Resources and Environmental Protection Act (nrepa), MCL 324.20101 et seq., claimed that it was not the cause of the contamination as identified in the amendments and, thus, was not liable for remediation costs. Accordingly, it argued, on the authority of MCL 213.55(5) and MCL 213.58(4), that the funds should be released. On November 3, 1995, by stipulation, the court ordered the escrowed sums, as well as interest, paid to Extrusions.
In a 1997 bench trial concerning valuation, the court found that the value of the eight-acre parcel, if environmental concerns were ignored, was $278,800. The court then determined that the parcel “was an environmentally contaminated site, with respect to which a reasonably prudent purchaser would have required, at a minimum, a formal Type-C Closure from the [Department of Natural Resources] as a condition precedent to closing.”
Because the court found that the reasonable cost of the Type-C closure was $237,768, it concluded that the net fair market value was $41,032. The court entered an order to that effect and reiterated in the order that the once-escrowed $211,300 was awarded to Extrusions.
On appeal, the Court of Appeals reversed in part and remanded the case to the trial court. The Court of Appeals held that the ucpa gave no authority for a court to consider any contamination factor in the establishment of fair market value. Rather, contamination could only be considered in separate proceedings for remediation costs. It was the Court’s position that this outcome was appropriate because § 5 of the ucpa provided “little guidance regarding the factors a court should consider when called on to determine just compensation.” Given the minimal guidance, the Court concluded that the plain language of the UCPA amendments addressing federal and state cost-recovery actions meant that only in those separate proceedings could such factors be considered.
We granted leave to appeal to consider the Drain District’s claim that a court may consider a parcel’s environmental condition as a factor affecting fair market value in a determination of just compensation under the UCPA. We conclude that a court may consider such conditions in establishing fair market value and, thus, reverse the judgment of the Court of Appeals on this issue only.
n. standard of review
This case presents an issue of statutory interpretation of ucpa provisions. Statutory interpretation is a question of law that we review de novo. Cruz v State Farm Mut Auto Ins Co, 466 Mich 588, 594; 648 NW2d 591 (2002).
III. analysis
“Eminent domain” or “condemnation” is the power of a government to take private property. The power arises from the sovereign power of the state and is of ancient provenance. The federal government’s power in this regard is found in the Fifth Amendment of the United States Constitution, in which it is stated that the government may not take private property unless it is done for a public use and with just compensation. Every Michigan constitution has had a similar clause requiring just compensation in these circumstances. Our current Constitution states that: “[p]rivate property shall not be taken for public use without just compensation . . . .”
In Michigan, in furtherance of this constitutional power, statutes have regulated the exercise and procedure of condemnation. In 1980, the Legislature unified all condemnation statutes in the UCPA. Under the act, echoing the Constitution, it was stated at MCL 213.55(1) that a court was to “. . . ascertain and determine just compensation to be made for the acquisition of the [condemned] property.”
As is evident, the “just compensation” requirement in the statute mirrors the identical requirement in our Constitution. This reiteration of the constitutional language is significant because to the degree the Constitution has been construed to outline the nature of “just compensation,” the statute must be similarly construed because no act of the Legislature can take away what the Constitution has given. Sharp v City of Lansing, 464 Mich 792, 810; 629 NW2d 873 (2001).
Thus, we must determine the meaning of the phrase “just compensation” in our Constitution. As we recently outlined in Michigan Coalition of State Employee Unions v Civil Service Comm, 465 Mich 212, 222-223; 634 NW2d 692 (2001), in analyzing constitutional language, the first inquiry is to determine if the words have a plain meaning or are obvious on their face. If they are, that plain meaning is the meaning given them. If, however, the constitutional language has no plain meaning, but is a technical, legal term, we are to construe those words in their technical, legal sense. Moreover, in that undertaking, we are to rely on the understanding of the terms by those sophisticated in the law at the time of the constitutional drafting and ratification. The rule is, as we said in Michigan Coalition, that “if a constitutional phrase is a technical legal term or a phrase of art in the law, the phrase will be given the meaning that those sophisticated in the law understood at the time of enactment unless it is clear from the constitutional language that some other meaning was intended.” The meaning of “just compensation” cannot be discerned merely by a careful reading of the phrase. The words themselves, as the Court of Appeals found, just do not inform a court about the potential complexity and variety of factors to be considered in determining value. This circumstance is not unusual in the realm of statutory construction. For example, it can be seen also when statutes, as they occasionally do, use words such as “negligence,” “due process,” or “equity.” These are words with meanings that are not generally self-evident from a mere reading of the words or an assessment of their definitions in a dictionary. They are, in this respect, unlike self-evident words such as “bridge,” “road,” “building,” or “horse.” Rather, they are words that fall into that category we have described as technical legal terms or phrases of art in the law, and thus they are to be given the meaning that those sophisticated in the law gave them at the time of enactment. We believe it is necessary, if the law is to be applied uniformly across the state, that this class of words — words that are freighted with historic meaning — be given the same legal meaning in all our courts rather than allowing each court to impose its own meaning. To hold otherwise would all but ensure in similar cases different outcomes in different courts, as Justice Weaver, drawing from her opinion would apparently be content to allow. This means that, in this case, it is appropriate to review the consensus understanding in 1963, by those skilled in this area of law, of the meaning of “just compensation.”
Throughout our history and clearly by the 1960s, it was uncontroversial that a determination of “just compensation” required the consideration of all the multiplicity of factors that go into making up value. In the nineteenth century, while summarizing just compensation and its meaning in American constitutional law, Michigan Supreme Court Justice Thomas M. Cooley, in his treatise The General Principles of Constitutional Law in the United States of America, said:
The rule by which compensation shall be measured is not the same in all cases, but is largely affected by the circumstances. If what is taken is the whole of what the owner may have lying together, it is clear that he is entitled to its value, judged by such standards as the markets and the opinions of witnesses can afford, and that this, except in extraordinary cases, must be the full measure of his injury.[ ]
The United States Supreme Court has had a similar and unvarying view of this matter, holding in Searl v Lake Co School Dist No 2, 133 US 553, 564; 10 S Ct 374; 33 L Ed 740 (1890), that the value of land must include “every . . . element entering into its cash or market value, as tested by its capacity for any and all uses . . . .” Then, again, in 1933, the Supreme Court held that “[t]he requirement that ‘just compensation’ shall be paid is comprehensive and includes all elements . . . .” Seaboard ALR Co v United States, 261 US 299, 306; 43 S Ct 354; 67 L Ed 664 (1923); accord Jacobs v United States, 290 US 13, 16-17; 54 S Ct 26; 78 L Ed 142 (1933). The calculation is to “include any element of value that [property] might have by reason of special adaptation to particular uses.” Clark’s Ferry Bridge Co v Pub Service Comm, 291 US 227, 238; 54 S Ct 427; 78 L Ed 767 (1934). Yet again in 1956, the high court held that “[j]ust compensation includes all elements of value that inhere in the property . . . .” United States v Twin City Power Co, 350 US 222, 250-251; 76 S Ct 259; 100 L Ed 240 (1956).
Michigan’s understanding of just compensation has been identical in all relevant particulars. In In re Widening of Gratiot Avenue, 294 Mich 569, 574-575; 293 NW 755 (1940), we explained that “ ‘[t]he determination of value is not a matter of formulas or artificial rules, but of sound judgment and discretion based upon a consideration of all the relevant facts in a particular case.’ ” In considering various factors, we have held that compensation may include an award for the taking of leasehold, see id., for fixtures, see In re Slum Clearance, 332 Mich 485; 52 NW2d 195 (1952); for business-interruption expenses, see In re Grand Haven Hwy, 357 Mich 20; 97 NW2d 748 (1959); and even for the increase in value attributable to the reasonable probability that the property would be rezoned, see State Hwy Comm’r v Eilender, 362 Mich 697; 108 NW2d 755 (1961). Thus, in our law, “just compensation” was a legal phrase of art in 1963 that meant, and still means, that the proper amount of compensation for property takes into account all factors relevant to market value. It is this meaning that the constitutional drafters and ratifiers are held to have understood when they were adopting the Michigan Constitution of 1963, and a similar understanding is attributed to the legislators, who also used the phrase “just compensation” when they enacted the ucpa in 1980.
That the legislators who amended the UCPA in 1993 provided the procedures and means for securing remediation costs and dovetailed those with the just-compensation determination indicates no intent to abrogate the meaning of “just compensation” established in our jurisprudence. Indeed, to attribute such an intent, i.e., the intent to diminish a constitutional standard by statute, is to place the legislators in the posture of acting unconstitutionally. This we avoid unless no other construction is possible and, as such an alternate construction is possible, we adopt it.
The Court of Appeals error was to utilize the plain-language doctrine in a context where it was inapplicable. The phrase “just compensation” cannot be analyzed on the basis of the plain understanding each word conveys, but is a phrase of art that imports with it all the understandings those sophisticated in the law give it.
Moreover, we agree with the argument made in the brief amicus curiae of the Attorney General, on behalf of the Michigan Department of Transportation, that the Court of Appeals was led to error by the commingling of two different concepts: (1) accounting for contamination in a determination of fair market value and (2) making an assessment of liability and damages for the cost of remediation of environmental contamination.
As the Attorney General pointed out, a condemnation action is an in rem proceeding governed by the ucpa. It is instituted to allow a state agency to take title to privately owned property; thus, the agency and the owner are parties. An essential part of the proceeding is the determination of the fair market value of the property. Because this proceeding is not designed to assign liability for environmental contamination, the value of the property is unaffected by whether its owner would be liable for the contaminated state of the property. The estimated costs of remediation are relevant only as they pertain to the fair market value of the property
In contrast, a cost-recovery action under Michigan’s environmental-cleanup laws is an in personam proceeding specifically designed to assign liability for remediation costs. Those costs are typically sought under cercla or the nrepa and the fair market value of property is not relevant in such proceedings. Further, in a cost-recovery action, in addition to the agency and the owner, any other person or entity, such as prior owners, lessees, adjacent property owners, or other third parties who may have contributed to the contamination, may be parties. Finally, that the damages awarded in a cost-recovery action are different, sometimes dramatically so, from the amount by which contamination reduced fair market value, makes manifest how different these proceedings are. What is to be grasped, then, is that the primary connection between a condemnation proceeding and a cost-recovery action is the escrow that may be created during the condemnation proceeding to provide security for the payment of the potential cost-recovery award.
The trial court, we believe, understood this matter properly and merely considered contamination as one factor, albeit a significant one, in establishing a fair market value. It was the trial judge’s conclusion that any purchaser would have insisted on a minimal cleanup (the Type-C closure) that would have made the property useable. The cost of this Type-C closure is far different from the amount remediation would have cost. Thus, we conclude that the trial court made its just-compensation determination not on the basis of Extrusions’ liability for cleanup costs, but on the basis of the effect of contamination on the parcel’s fair market value. This was an appropriate way to consider contamination in a just-compensation proceeding under the ucpa.
We reverse that portion of the judgment of the Court of Appeals holding that the UCPA does not vest courts with the authority to consider contamination and how it affects fair market value when determining just compensation in a condemnation proceeding. In all other respects, we affirm the judgment of the Court of Appeals and remand this case for proceedings consistent with this opinion.
Corrigan, C.J., and Young and Markman, JJ., concurred with Taylor, J.
“Before initiating negotiations for the purchase of property, the agency shall establish an amount that it believes to be just compensation for the property and promptly shall submit to the owner a good faith written offer to acquire the property for the full amount so established . . . .” MCL 213.55(1).
Cost-recovery proceedings may be brought under the federal Comprehensive Environmental Response Compensation and Liability Act (cercla), 42 USC 9601 et seq., or under part 201 of the Natural Resources and Environmental Protection Act (nrepa), MCL 324.20101 el seq.
As discussed above, § 5 of the amended ucpa (MCL 213.55) requires a condemning agency to deposit its estimated just-compensation amount in escrow when it files the condemnation complaint; this escrowed amount is to pay the condemnee upon the order of the court. MCL 213.55(5); MCL 213.58(4). However, in the 1993 amendments of the ucpa, in order to facilitate the collection of remediation costs of environmental contamination, the Legislature allowed the agency, when it submits a “good faith” written offer, to reserve the right to seek contamination costs from the condemnee. If this is done, the escrowed funds may remain in escrow “as security for remediation costs of environmental contamination . . . .” MCL 213.58(2).
However, even if the governmental agency reserves the cost-recovery option against a condemnee, under subsection 6a (MCL 213.56a) a court can order an agency to waive its right to pursue a cost-recovery action under certain circumstances. The predicate for seeking this reversal of the agency’s election is that, under part 201 of the nrepa, the condemnee has no liability because it did not cause the contamination. MCL 213.58(3). If the court orders the waiver of the rights, the agency is required to submit a revised good-faith offer. Subsection 6a(3) also allows the parties to a condemnation action to stipulate the reversal of the reservation.
245 Mich App 556, 557-558; 630 NW2d 347 (2001).
Id. at 563.
See Magna Carta, Grant 39 (1215): “No freeman shall be . . . disseised . . . unless by the lawful judgment of his peers, or by the law of the land.”
See Const 1835, art 1, § 19; Const 1850, art 18, § 2; Const 1908, art 13, § 1.
Const 1963, art 10, § 2.
465 Mich 223. We also pointed out in Michigan Coalition, id. at n 9, that the same rule, pursuant to the Legislature’s directive at MCL 8.3a, applies to the construction of a statute.
It is, perhaps, useful to illustrate the correctness of the point, inasmuch as the partial concurrence and dissent of Justice Weaver asserts the contrary. In establishing value for residential properties, for example, can sentimental factors such as long-time ownership or historic importance be considered? Or in the case of commercial properties, can business interruption be considered in establishing value and, if so, how? Should an income-capitalization approach be considered in a business valuation, or should some other approach, such as cost-less-depreciation or sales of comparable properties be used to assist in fixing value? As is obvious, one cannot merely review the dictionary definitions of “just” and “compensation” and combine them to produce a coherent meaning for this phrase. Rather, as a result of longstanding legal practice and custom, as revealed through countless judicial opinions over the centuries, this phrase means something more than the sum of its discrete parts. That juries would make decisions on these issues, after being instructed on the law, is not contradictory to the point we raise. That is always the process whether the statute at issue is susceptible to plain-meaning analysis or is interpreted using some other method of statutory explication.
Cooley, Constitutional Law (Boston; Little, Brown and Co, 1880), p 341.
This continues to be the universal rule. As it was stated more recently, just compensation “has been held to be equivalent to the full value of the property. All elements of value inherent in the property merit consideration in the valuation process.” 4 Nichols, Eminent Domain (rev 3d), ch 12, § 12.01, pp 12-2 to 12-3.
The effect on market value of the condemnation proceeding itself may not be considered as an element of value. MCL 213.70(1); In re Urban Renewal, Elmwood Park Project, 376 Mich 311, 318; 136 NW2d 896 (1965).
We reiterated the general rule recently in Dep’t of Transportation v VanElslander, 460 Mich 127, 129-130; 594 NW2d 841 (1999), where we described what is relevant to just compensation as “any evidence that would tend to affect the market value of the property as of the date of the condemnation . . .
See Gora v Ferndale, 456 Mich 704, 722 n 15; 576 NW2d 141 (1998).
The actual cost of remediation in this case was approximately $2.3 million, while the loss of value caused by the contamination was found by the trial court to be $237,768.
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Markman, J.
We granted leave to appeal in this case to consider whether defendant must pay plaintiff differential worker’s compensation benefits, i.e., partial-disability benefits, under subsection 361(1) of the Worker’s Disability Compensation Act (wdca), MCL 418.101 et seq., where defendant, by law, cannot rehire plaintiff because of plaintiff’s “commission of a crime.” The worker’s compensation magistrate concluded that the fact that plaintiff is no longer able to work for defendant as a result of plaintiff’s “commission of a crime” does not relieve defendant of its responsibility to pay plaintiff differential benefits. The Worker’s Compensation Appellate Commission (wcac) and the Court of Appeals affirmed. In our judgment, although defendant must pay a percentage of the difference between what plaintiff was earning while working for defendant and what plaintiff was earning at the time of the hearing (plaintiff’s loss of wage-earning capacity) to the extent that this difference is attributable to plaintiff’s work-related injury, defendant is not required to pay a percentage of the difference that is attributable to plaintiff’s “commission of a crime.”
We conclude that the language of MCL 418.361(1) makes clear that the Legislature intended that employees no longer be able to receive worker’s compensation benefits for a loss of wage-earning capacity that is attributable to an employee’s “imprisonment or commission of a crime.” The dissent fails, in our judgment, to give effect to this intent, and would allow benefits to be paid to an employee because of a loss of wage-earning capacity attributable to “imprisonment or commission of a crime.” We reverse the judgment of the Court of Appeals and remand this case to the magistrate to determine to what extent, if any, plaintiff’s loss of wage-earning capacity is attributable to his work-related injury and to what extent, if any, plaintiff’s loss of wage-earning capacity is attributable to his “commission of a crime.”
I. FACTS AND PROCEDURAL HISTORY
In 1986, plaintiff began working for defendant as a corrections officer. In 1989, plaintiff injured his knee when he intervened in a fight between prisoners. Defendant voluntarily paid worker’s compensation benefits to plaintiff because it had a policy of not rehiring anybody who was not one hundred percent fit for duty. In 1995, plaintiff was convicted of delivery of heroin, a felony, and, as a result, was imprisoned. Once plaintiff was convicted and imprisoned, defendant stopped paying benefits to plaintiff. Also in 1995, defendant discontinued its policy of not rehiring anybody who was not one hundred percent fit for duty and began offering favored work to which plaintiff would have been eligible if he were not imprisoned. Defendant took part in a work-release program while he was imprisoned.
In 1996, MCL 791.205a became effective, which forbids defendant from hiring and subsequently employing persons who have been convicted of a felony. Also in 1996, plaintiff was paroled. It is undisputed that plaintiff continues to have a work-related injury. In 1998, plaintiff began working for Pressure Vessel, Inc., earning less than he had while working for defendant.
Plaintiff petitioned for differential worker’s compensation benefits. Defendant denied plaintiff’s request on the basis that it was not required to pay plaintiff differential benefits because plaintiff was convicted of a felony and MCL 791.205a(l) precludes the department from hiring someone convicted of a felony and MCL 418.361(1) relieves it of its responsibility to pay differential benefits to an employee who is unable to work for defendant because of the “commission of a crime.”
The magistrate concluded that defendant is required to pay plaintiff differential benefits and the fact that defendant is precluded from rehiring plaintiff does not at all relieve defendant of this requirement. In a four-to-three decision, the wcac affirmed. The majority concluded that, in order for it to be relieved of its responsibility to pay plaintiff differential benefits, the department must prove, and it had not, that, were it not for the statutory prohibition on hiring an ex-felon, it would have made an offer of reasonable employment to plaintiff. The dissenting commissioners disagreed, stating that the majority erred in placing “an artificially-created burden on defendant to prove it would have done the very thing the ex-felon statute prohibits defendant from doing, namely, offering employment to an ex-felon . . .
In a divided opinion, the Court of Appeals affirmed. While the concurring opinion author concluded that the wcac reached the right result for the right reasons, the lead opinion writer concluded that the wcac reached the right result for the wrong reasons. Specifically, the lead opinion writer concluded that defendant was not relieved of its responsibility for paying plaintiff differential benefits because plaintiff was not “unable to perform or obtain work” as the result of the “commission of a crime,” MCL 418.361(1), as evidenced by the fact that plaintiff was working at the time of the hearing. The dissenting judge, on the other hand, concluded that because plaintiff was unable to work for defendant because of the “commission of a crime,” defendant was relieved of its responsibility to pay plaintiff any differential benefits.
n. STANDARD OF REVIEW
Whether defendant must pay differential benefits to plaintiff under MCL 418.361(1) is a question of statutory interpretation. Questions of statutory interpretation are questions of law that are, reviewed de novo by this Court. Robertson v DaimlerChrysler Corp, 465 Mich 732, 739; 641 NW2d 567 (2002).
ffl. ANALYSIS
That defendant cannot employ plaintiff because of his “commission of a crime” is undisputed. MCL 791.205a(l) provides:
Beginning on the effective date of this section, an individual who has been convicted of a felony, or who is subject to any pending felony charges, shall not be employed or appointed to a position in the department [of corrections].
Plaintiff has been convicted of a felony; thus, defendant cannot reemploy plaintiff. A part of the Worker’s Disability Compensation Act (wdca), MCL 418.361(1), provides:
While the incapacity for work resulting from a personal injury is partial, the employer shall pay, or cause to be paid to the ipjured employee weekly compensation equal to 80% of the difference between the injured employee’s after-tax average weekly wage before the personal injury and the after-tax average weekly wage which the injured employee is able to earn after the personal injury, but not more than the maximum weekly rate of compensation, as determined under section 355. Compensation shall be paid for the duration of the disability. However, an employer shall not be liable for compensation under section 351, 371(1), or this subsection for such periods of time that the employee is unable to obtain or perform work because of imprisonment or commission of a crime. [Emphasis added.]
This provision is known as the differential worker’s compensation or partial-disability provision. Under this provision, an employer must pay an employee a percentage of the difference between what the employee was earning while working for the employer before the employee was injured and what the employee is able to earn after the work-related injury. However, the employer is not liable to the employee to the extent that “the employee is unable to obtain or perform work because of imprisonment or commission of a crime.” Defendant argues that it does not have to pay plaintiff anything because plaintiff is “unable to obtain or perform work” with defen dant because of plamtiff’s “commission of a crime.” Plaintiff, on the other hand, argues that defendant must pay plaintiff the total difference between what plaintiff was earning while working for defendant and what plaintiff was earning at the time of the hearing because plaintiff was not “unable to obtain or perform work” as evidenced by the fact that plaintiff was, in fact, working at the time of the hearing.
The language “unable to obtain or perform work” does not stand alone, and thus it cannot be read in a vacuum. Instead, “[i]t exists and must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute, construed in the light of history and common sense.” Arrowhead Dev Co v Livingston Co Rd Comm, 413 Mich 505, 516; 322 NW2d 702 (1982). When interpreting a statute, we must “consider both the plain meaning of the critical word or phrase as well as ‘its placement and purpose in the statutory scheme.’ ” Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999) (citation omitted). “Contextual understanding of statutes is generally grounded in the doctrine of noscitur a sociis: ‘it is known from its associates,’ see Black’s Law Dictionary (6th ed), p 1060. This doctrine stands for the principle [of interpretation] that a word or phrase is given meaning by its context or setting.” Tyler v Livonia Pub Schools, 459 Mich 382, 390-391; 590 NW2d 560 (1999). Although a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context. McCarthy v Bronson, 500 US 136; 111 S Ct 1737; 114 L Ed 2d 194 (1991); Mastro Plastics Corp v Nat'l Labor Relations Bd, 350 US 270; 76 S Ct 349; 100 L Ed 309 (1956); Hagen v Dep’t of Ed, 431 Mich 118, 130-131; 427 NW2d 879 (1988); Fowler v Bd of Registration in Chiropody, 374 Mich 254, 257-258; 132 NW2d 82 (1965). Therefore, “[a] statute must be read in its entirety . . . .” State Bd of Ed v Houghton Lake Community Schools, 430 Mich 658, 671; 425 NW2d 80 (1988).
When the statutory provision that is at issue here is read in its entirety, and, in particular, when the language “unable to obtain or perform work” is read in context, it becomes clear that neither defendant nor plaintiff (nor the dissent, which is in agreement with plaintiff) is entirely correct in its construction of MCL 418.361(1). The first sentence of this provision states that “[w]hile the incapacity for work resulting from a personal injury is partial, the employer shall pay . . . .” Thus, it is clear that this provision applies only to employees who suffer from a partial incapacity for work. If an employee has a partial incapacity for work, that employee must necessarily have a partial capacity for work. Accordingly, this provision only applies to employees who are able to work in some capacity.
MCL 418.361(1) further provides that employers must pay such employees “80% of the difference between the injured employee’s after-tax average weekly wage before the personal injury and the after-tax average weekly wage which the injured employee is able to earn after the personal injury . . . .” (Emphasis added.) From this language it becomes even more clear that this provision applies only to employees who are able to work in some capacity. The phrase means that employers must pay employees a percentage of the difference between what they earned before the injury and what they are able to earn after the injury. Accordingly, this provision only applies to employees who are injured, but who, nevertheless, are able to work in some capacity.
MCL 418.361(1) first states that an employer must pay an employee a percentage of the difference between what the employee earned before the injury and what the employee is able to earn after the injury. It then states, “However, an employer shall not be liable for compensation under . . . this subsection for such periods of time that the employee is unable to obtain or perform work because of imprisonment or commission of a crime.” Accordingly, this provision first creates a liability, and then creates an exception to this liability. The dissent contends that this exception applies only to unemployed employees, and that it does not apply to employed employees. However, if that were the case, this exception would never apply to any partially disabled employees, and thus it would be rendered nugatory with regard to these employees. That is, if this exception were construed, as the dissent constraes it, to only exclude unemployed employees, this exception will be rendered meaningless regarding partially disabled employees because employers are not liable to unemployed, partially disabled employees under this provision in the first place. Why would the Legislature create a liability that only extends to employed employees and then create an exception to this liability that only extends to unemployed employees? It simply would not make any sense to exempt unemployed employees from liability where employers are not liable to unemployed employees under this provision to begin with.
It is well established that this Court should avoid construing a statute in such a way that renders any part of it nugatory. Omelenchuk v City of Warren, 466 Mich 524, 528; 647 NW2d 493 (2002). “It is our duty to read the statute as a whole and to avoid a construction which renders meaningless provisions that clearly were to have effect.” Apportionment of Wayne Co Bd of Comm’rs-1982, 413 Mich 224, 259-260; 321 NW2d 615 (1982).
A reading of this statute in its entirety evidences an intent to obligate employers to provide employees with partial-disability benefits when an employee is still able to work, but is unable to earn as much money as before the work-related injury. Accordingly, as explained above, this provision only addresses those situations in which the employee still has a wage-earning capacity, but a reduced wage-earning capacity. That is, it only addresses those situations in which the employee is employed, but earning less money than before the work-related injury.
In this context, it becomes quite clear that the language “unable to obtain or perform work” is referring to a loss of wage-earning capacity, rather than the inability to work at all. Therefore, employers must compensate employees for a loss of wage-earning capacity that resulted from a work-related injury. However, the statute provides an exception to this obligation when the reason that the employee is unable to earn as much money is attributable, not to the work-related injury, but to the employee’s “imprisonment or commission of a crime.” Accordingly, if the difference in pay is because of “imprisonment or commission of a crime,” the employee is not entitled to differential benefits. If the difference in pay is a result, not of “imprisonment or commission of a crime,” but of a work-related injury, the employee is entitled to benefits.
This interpretation is not only in accord with the language of MCL 418.361(1), but it better comports with other provisions of the wdca and decisions of this Court. Under the wdca, MCL 418.101 et seq., injured employees are not entitled to benefits if the injury is “by reason of his intentional and wilful misconduct,” MCL 418.305; the “injury [is] incurred in the pursuit of an activity the major purpose of which is social or recreational,” MCL 418.301(3); the employee unjustifiably refuses to rehabilitate himself, MCL 418.319(1); the employee refuses without good and reasonable cause a bona fide offer of reasonable employment, MCL 418.301(5)(a); the employee unreasonably refuses surgery, Kricinovich v American Car & Foundry Co, 192 Mich 687, 690; 159 NW 362 (1916); or the employee refuses to undertake exercises designed to hasten recovery, Bower v Whitehall Leather Co, 412 Mich 172, 184; 312 NW2d 640 (1981), citing Brown v Premier Mfg Co, 77 Mich App 573, 578-579; 259 NW2d 143 (1977). These propositions adhere because there must be a linkage between the disabling work-related injury and the reduction in pay. Sington v Chrysler Corp, 467 Mich 144, 155; 648 NW2d 624 (2002).
In this case, there would be no such linkage if plaintiffs pay were reduced, not because of his work-related injury, but because of his commission of a felony. After plaintiff committed this felony, defendant, as a matter of law, could not reemploy plaintiff, and thus plaintiff began working somewhere else where he was unable to earn as much money as he had earned while working for defendant. Therefore, it is at least arguably because of his “commission of a crime” that plaintiff is earning less money, not because of the work-related injury. Worker’s compensation was not designed to compensate employees whose unemployment is not attributable to a work-related injury, but rather to some nonemploymentrelated reason such as the “commission of a crime.” As the writer of the lead Court of Appeals opinion recognized, “The purpose of the worker’s compensation act is to compensate a claimant for lost earning capacity caused by a work-related injury . . . .” 247 Mich App 555, 566; 637-NW2d 811 (2001). In this case, the lost earning capacity was arguably caused, not by a work-related injury, but by the commission of a felony.
Reading this provision as the dissent does would anomalously require employers to pay employees partial-disability benefits because the employees are imprisoned or have committed a crime, where such employers would not have to pay partial-disability benefits if the employees were not imprisoned or had not committed a crime. In other words, employers would be required to pay benefits to employees solely because they are imprisoned or because they committed a crime. For example, if an employee is injured, but this injury does not affect his ability to earn the same amount of money as he did before he was injured, that employee would not be entitled to partial-disability benefits. However, under the dissent’s reading of MCL 791.205a(l), if the employee were then imprisoned, yet able to “obtain and perform work,” but not earn as much money, he would be entitled to partial-disability benefits. As we have already observed, the purpose of the wdca is to compensate employees for work-related injuries. It is not intended to compensate employees for committing crimes and becoming imprisoned.
The dissent accuses us of “ignoring] the plain language of the statute” and of not respecting the Legislature’s choice of words in MCL 418.361(1). Post at 197. Yet, it is the dissent’s interpretation that gives absolutely no meaning to the entire last sentence of this provision in which these words are contained. That is, while the dissent purports to define this sentence, it does so by defining it into meaninglessness. It gives meaning to discrete words within this sentence at the cost of giving coherent meaning to the sentence itself. The dissent would award worker’s compensation benefits under MCL 418.361(1) as if the last sentence of this provision were absent. We would address the following questions to the dissent: What meaning does the dissent give to this sentence? And if, as we suggest, the dissent gives it no meaning, how can this conceivably comport with the intention of the Legislature? Under the dissent’s interpretation, it is as if, when the Legislature enacted this provision, it decided that the last sentence should have no meaning or that the Legislature should appear to be saying something while saying nothing. We do not believe that we can presume such folly and, instead, that we must give the most reasonable meaning possible to the words of the Legislature.
rv. CONCLUSION
The wdca, MCL 418.361(1), provides that an employer is hable to an employee for a percentage of the employee’s loss of wage-earning capacity, except when this loss of wage-earning capacity is because of the “commission of a crime.” Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the magistrate to determine to what extent, if any, plaintiff’s loss of wage-earning capacity is because of a work-related injury, and, to what extent, if any, plaintiff’s loss of wage-earning capacity is because of the “commission of a crime.”
Corrigan, C.J., and Taylor, J., concurred with Markman, J.
Young, J., concurred in the result only.
Cavanagh, J.
I respectfully disagree with the majority’s construction of MCL 418.361(1). While plaintiff is unable to work for defendant because of his commission of a crime, plaintiff is not unable to work. Because I would affirm the decisions of the Court of Appeals and Worker’s Compensation Appellate Commission (wcac) reinstating plaintiff’s benefits, I must dissent.
I. PLAINTIFF IS NOT “UNABLE TO PERFORM OR OBTAIN WORK.”
In this case, we are called upon to determine whether MCL 418.361(1) and MCL 791.205a operate in conjunction to relieve defendant of liability for any payment to plaintiff because of his commission of a crime.
MCL 418.361(1) provides:
While the incapacity for work resulting from a personal injury is partial, the employer shall pay, or cause to be paid to the injured employee weekly compensation equal to 80% of the difference between the injured employee’s after-tax average weekly wage before the personal injury and the after-tax average weekly wage which the injured employee is able to earn after the personal injury, but not more than the maximum weekly rate of compensation, as determined under section 355. Compensation shall be paid for the duration of the disability. However, an employer shall not be liable for compensation under section 351, 371(1), or this subsection for such periods of time that the employee is unable to obtain or perform work because of imprisonment or commission of a crime.
MCL 791.205a forbids defendant from hiring and subsequently employing persons who, inter alia, have been convicted of a felony or who were subject to pending felony charges. Defendant would have this Court conclude that because defendant is forbidden from reemploying plaintiff, plaintiff is unable to work because of his commission of a crime. I would conclude that the statutes, when read together, do not relieve defendant of liability.
When plaintiff was released from prison and sought reinstatement of his benefits, he was able to work and had been working within his limitations while he was incarcerated and on parole. In fact, plaintiff was employed at the time of trial. Defendant would have us believe that because plaintiff was unable to work for defendant because of his commission of a crime, defendant is relieved from paying benefits. However, this requires us to read into subsection 361(1) that the employee must be unable to work for this particular employer. I cannot do so. Subsection 361(1) is not employer-specific. The statute provides that if the employee is unable to work for stated reasons, the employer is relieved from paying benefits. In this case, it cannot be stressed enough that plaintiff was able to work. Although earning less than he had earned while he worked for defendant because of the physical limitations caused by his work-related injury, plaintiff was working.
The magistrate correctly decided this case when it was first before her. She recognized that there is no case law authorizing defendant to terminate plaintiffs benefits just because plaintiff is no longer able to work for defendant. Further, the only thing preventing plaintiff from engaging in other types of work is his disability, which was incurred as a result of his employment with defendant. The statute simply cannot be read as authorizing defendant to terminate benefits.
The magistrate found as a fact, and plaintiff and defendant both agreed, that plaintiff continues to suffer a disability that inhibits his ability to earn wages as a result of the knee injury he sustained in the course of his employment with defendant.
The magistrate’s initial decision is in line with the purpose of the Worker’s Disability Compensation Act, MCL 418.101 et seq. This Court has consistently construed the wdca liberally to grant rather than deny benefits. Simkins v Gen Motors (After Remand), 453 Mich 703, 710-711; 556 NW2d 839 (1996) (citing Bower v Whitehall Leather Co, 412 Mich 172, 191; 312 NW2d 640 [1981]); see also DiBenedetto v West Shore Hosp, 461 Mich 394, 402-403; 605 NW2d 300 (2000).
“The primary purpose of the worker’s compensation act is to provide benefits to the victims of work-related injuries . . . .” Simkins at 711. The worker’s compensation scheme is a compromise of sorts. An employee who suffers an injury arising out of and in the course of his employment is eligible for worker’s compensation benefits regardless of whether the employer was at fault. In return, the employer is immunized from tort liability because worker’s compensation is the “exclusive remedy” for a qualifying work-related injury. Id. See MCL 418.131.
In this case, it is undisputed that plaintiff suffered a partially disabling knee injury in the course of his employment with defendant. While it is clear that plaintiff is unable to work for defendant pursuant to MCL 791.205a, because of plaintiff’s commission of a crime, plaintiff is not unable to work for another employer. Defendant must still pay benefits to plaintiff as compensation for his loss of wage-earning capacity attributable to plaintiff’s work-related injury.
The reasonable-employment statute is helpful to this analysis. Reasonable employment is defined in MCL 418.301(9) as
work that is within the employee’s capacity to perform that poses no clear and proximate threat to that employee’s health and safety, and that is within a reasonable distance from that employee’s residence. The employee’s capacity to perform shall not be limited to jobs in work suitable to his or her qualifications and training.
MCL 418.301(5) provides that when disability is established, weekly wage-loss benefits are determined in part as follows:
(a) If an employee receives a bona fide offer of reasonable employment from the previous employer, another employer, or through the Michigan employment security commission and the employee refuses that employment without good and reasonable cause, the employee shall be considered to have voluntarily removed himself or herself from the work force and is no longer entitled to any wage-loss benefits under this act during the period of such refusal. [Emphasis added.]
While subsection 301(5) (a) focuses on an employee’s refusal of reasonable employment, it provides three methods by which an employee can receive an offer of reasonable employment — his previous employer, another employer, or the Michigan Employment Security Commission. In this case, the previous employer, defendant, could not offer plaintiff reasonable employment because of MCL 791.205a. However, two avenues remain by which the employee can receive an offer of reasonable employment— another employer or the Michigan Employment Security Commission. Defendant’s argument ignores these remaining two avenues. Plaintiff was offered reasonable employment by Elco, which involved making air conditioners for automobiles. Plaintiff obviously accepted this reasonable employment, because he was employed there on the date of trial. That the employment was “reasonable,” i.e., within plaintiff’s physical limitations, is established by plaintiff’s testimony that the parts he worked with were “quite light” and he could “handle it pretty good.”
Again, it must follow that because plaintiff was engaged in reasonable employment, he was not unable to work. Therefore, defendant is not relieved from paying worker’s compensation benefits to plaintiff.
The majority criticizes my approach as suggesting that an employer will also be held liable for an employee’s inability to work that is attributable to the employee’s “imprisonment or commission of a crime.” Ante at 186 n 10. This is not true. In this case, plaintiff is working, thus he is not “unable to work” because of his commission of a crime. Additionally, the magistrate has already determined that plaintiff’s work-related injury, not plaintiffs commission of a crime, is the only thing preventing plaintiff from returning to other types of work. This will not be true in every case, but it has been established in this case. Because it has already been established that the exception to an employer’s liability contained in MCL 418.361(1) does not apply in this case, the decisions of the Court of Appeals and wcac reinstating plaintiff’s benefits must be affirmed.
II. THE MAJORITY’S “LOSS OF WAGE-EARNING CAPACITY” ANALYSIS AND REMAND DIRECTION IS FLAWED.
The majority holds that defendant must pay only the difference in wages between what plaintiff earned while working for defendant and what plaintiff was earning at the time of trial to the extent that the difference is caused by plaintiff’s injury, not by plaintiff’s commission of a crime. The majority remands this case to the magistrate to make this determination. I respectfully disagree. As I have previously pointed out, the magistrate already found that there is nothing to prevent plaintiff from returning to other types of work except his disability, which was incurred as a result of his employment with defendant. Additionally, such a holding ignores the plain language of the statute.
MCL 418.361(1) specifically states that “an employer shall not be liable for compensation . . . for such periods of time that the employee is unable to obtain or perform work because of imprisonment or commission of a crime.” (Emphasis added.) The majority believes that the language “unable to obtain or perform work” refers to “a loss of wage-earning capacity, rather than the inability to work at all.” Ante at 184.
I do not believe that the language of the statute can be construed in that manner. The Legislature’s choice of the words “unable to obtain or perform work” must be respected. We can assume that the Legislature intended the phrase to mean exactly what it says — “unable to obtain or perform work,” not “loss of wage-earning capacity.” The plain language of the statute simply does not support the majority’s reading, or rewording, of the statute.
There is also a flaw in the majority’s remand directing the magistrate to determine to what extent plaintiff’s loss of wage-earning capacity is attributable to his work-related injury and to what extent plaintiff’s loss of wage-earning capacity is attributable to plaintiff’s “commission of a crime.” The majority provides the magistrate with absolutely no guidance for making this determination. In essence, the majority merely recharacterizes the question posed to the magistrate by the wcac on remand.
After the magistrate issued her first opinion, the wcac remanded the case to the magistrate for a determination whether defendant would have offered reasonable employment to plaintiff were it not for the statutory prohibition. On remand, the magistrate concluded that there would not have been an offer of reasonable employment because to find otherwise would be pure speculation. The wcac then held that the “mere fact” that this defendant cannot hire plaintiff because of the statutory prohibition does not automatically entitle defendant to relief from payment pursuant to MCL 418.361(1). The linkage of the two statutory provisions requires a critical additional “finding of fact,” which was the purpose of the wcac’s remand to the magistrate. The critical additional finding was whether defendant would have offered reasonable employment to plaintiff. Because this is a question of fact and because the magistrate found that defendant could not prove that it would have offered reasonable employment to plaintiff, the wcac affirmed the magistrate’s award of benefits to plaintiff.
The majority criticizes the wcac majority for placing “ ‘an artificially-created burden on defendant to prove it would have done the very thing the ex-felon statute prohibits defendant from doing, namely, offering employment to an ex-felon . . . ” Ante at 184 n 7 (quoting the dissenting worker’s compensation commissioners).
However, I would ask the majority: What is the magistrate to consider on remand? Findings of disability and wage-earning capacity have been established and are not disputed. The majority correctly holds that the exception in MCL 418.361(1) is not employer-specific, i.e., it cannot be read as excluding an employee who is unable to work for this employer. Because the magistrate has already determined that there is nothing to prevent plaintiff from returning to other types of work except his work-related disability, I am at a loss to discover what the magistrate is to consider on remand to determine what loss of wage-earning capacity is attributable to the injury and what loss of wage-earning capacity is attributable to plaintiff’s commission of a crime. Obviously, plaintiff is unable to work for defendant, this employer, because of his commission of a crime. Because we cannot read the statute as employer-specific and because plaintiff is able to work only in a limited capacity because of his work-related injury, I cannot fathom any way for the magistrate to determine that any portion of plaintiff’s loss of wage-earning capacity is attributable to anything other than plaintiff’s work-related injury, which she has already determined.
III. MY CONSTRUCTION WOULD NOT RENDER THE CRIME EXCEPTION “NUGATORY.”
The majority mistakenly asserts that my construction of the statute would render the exception nuga tory. There are circumstances where an employee truly would be unable to work because of his commission of a crime or imprisonment. For example, if an employee has a work-related knee injury that renders him partially disabled, he is entitled to worker’s compensation benefits. If this employee robs a gas station and trips on his way out, aggravating his work-related injury to the point where he can no longer perform work, this employee is unable to perform work because of his commission of a crime. Thus, the employer would not be liable for benefits to this employee under the exception. In this case, plaintiff was unable to work for defendant because of MCL 791.205a; plaintiff was not unable to obtain or perform work because of his commission of a crime per MCL 418.361(1). Therefore, plaintiff is entitled to reinstatement of his benefits.
The majority also supports its assertion that my construction of the statute would render the exception nugatory by stating that “to only exclude unemployed employees, this exception will be rendered meaningless regarding partially disabled employees because employers are not liable to unemployed, partially disabled employees under this provision in the first place.” Ante at 183. This assertion is clearly mistaken because, while the exception may be found in MCL 418.361, which is the partial-disability statute, the statute expressly states that it applies to MCL 418.351 as well, which is the total-disability statute. Any claimant who is “totally” or “totally and permanently” disabled is not likely to be employed. Thus, the statute expressly applies to claimants who are unemployed.
IV. CONCLUSION
I would hold that when a plaintiff is not unable to work because he committed a crime, or stated differently, able to work even though he committed a crime, pursuant to MCL 418.361(1), a defendant is not relieved of its responsibility to pay benefits. MCL 418.361(1) is not employer-specific; it cannot be read to provide that an employee must be unable to work for a particular employer. While plaintiff in this case is barred from working for defendant by MCL 791.205a, plaintiff is able to work. Thus, I would affirm the decisions of the Court of Appeals and the wcac reinstating plaintiffs benefits.
Weaver and Kelly, JJ., concurred with Cavanagh, J.
Before the amendment of this statute in 1985, an employer was obligated to pay an imprisoned employee benefits. Sims v RD Brooks, Inc, 389 Mich 91, 93; 204 NW2d 139 (1973). Manifestly, in our judgment, it was the intent of the Legislature in 1985 to alter this situation. Yet, the dissent appears unwilling to permit this legislative judgment to prevail.
In other words, defendant had a policy of not offering favored work.
The wcac first remanded to the magistrate for the magistrate to determine whether “defendant Department of Corrections would have made an offer of reasonable employment to plaintiff were it not for the statutory prohibition against employment of any individual who had been convicted of a felony.” On remand, the magistrate found that “there would not have been an offer of reasonable employment to plaintiff were it not for the statutory prohibition. To find otherwise would be pure speculation, something not permitted under Michigan law.” The wcac concluded that this finding was “supported by competent, material, and substantial evidence on the whole record.”
“[W]ords in a statute should not be construed in the void, but should be read together to harmonize the meaning, giving effect to the act as a whole.” Gen Motors Corp v Erves (On Rehearing), 399 Mich 241, 255; 249 NW2d 41 (1976) (opinion by Coleman, J.).
In McCarthy, supra at 139, the United States Supreme Court stated:
We do not quarrel with petitioner’s claim that the most natural reading of the phrase “challenging conditions of confinement,” when viewed in isolation, would not include suits seeldng relief from isolated episodes of unconstitutional conduct. However, statutory language must always be read in its proper context. “In ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” [Citation omitted.]
Similarly, in Mastro Plastics, supra at 285, the United States Supreme Court stated:
[I]f the above words are read in complete isolation from their context in the Act, such an interpretation is possible. However, “In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” [Citation omitted.]
This exception applies to both partial disabilities and total disabilities. “[A]n employer shall not be liable for compensation under section 351. . . or this subsection . ...” MCL 418.361(1). “[S]ection 351” is the section pertaining to total disabilities and “this subsection” is the subsection pertaining to partial disabilities. However, under the approach of the dissent, this exception would only apply to total disabilities; it would never apply to partial disabilities. That this exception is to be applied to partial disabilities is obvious. First, the exception is found in the partial-disabilities provision. Second, this provision specifically states, “an employer shall not be liable for compensation under . . . this subsection [i.e., the partial-disabilities subsection] . . . .” MCL 418.361(1). In sum, contrary to the dissent’s assertion, we recognize that the dissent’s approach would not render this exception nugatory with respect to total disabilities; however, the dissent’s approach would render this exception nugatory with respect to partial disabilities, although it is manifestly obvious that the Legislature intended this exception to apply to the latter as well.
The dissent attempts to accord this exception some meaning with respect to partial disabilities by observing that it would apply where an employee who is partially disabled because of a work-related injury becomes totally disabled because o/his own “commission of a crime.” The dissent concludes that “the employer would not be liable for benefits to this employee under the exception.” Post at 171. The dissent posits a hypothetical example in which a partially disabled robber becomes fully disabled as a result of slipping and falling during the course of the robbery. However, the dissent itself concludes that the exception would only apply to the totally disabled, not the partially disabled, employee. As explained above, we recognize that the dissent’s approach would give meaning to this exception with regard to totally disabled employees. However, our quarrel with the dissent’s approach is that it fails to accord any meaning to the exception with regard to partially disabled employees. The dissent somehow draws from its hypothetical example, in which it concludes that the exception is applicable to a totally disabled employee, that meaning has also been given to the exception in the context of a partially disabled employee. Further, we do not agree with the dissent that the employer in its hypothetical example would necessarily escape all liability. Rather, the employer of the dissent’s “partially disabled robber” would remain liable for the employee’s loss of wage-earning capacity that is attributable to the employee’s work-related injury, but the employer would not be liable for the employee’s loss of wage-earning capacity that is attributable to the employee’s “commission of a crime.” According to the dissent, on the other hand, an unemployed, totally disabled employee is not entitled to any benefits regardless of whether the employee still suffers from a loss of wage-earning capacity that is attributable to the work-related injury because that employee is unable to work because of the “commission of a crime.”
Defendant suggests, and the dissenting Court of Appeals judge agreed, that this exception to an employer’s obligation to pay partial-disability benefits applies whenever the employee is “unable to obtain or perform work” for that particular employer. In other words, defendant contends that this exception is employer-specific. However, there is no indication in the statute itself to suggest that this exception is employer-specific. Therefore, we conclude that this provision is not employer-specific, and thus that defendant’s interpretation of this provision is mistaken.
Further, we agree with the dissenting worker’s compensation commissioners that the wcac majority placed “an artificially-created burden on defendant to prove it would have done the very thing the ex-felon statute prohibits defendant from doing, namely, offering employment to an ex-felon ....” To require defendant to prove that it would have hired plaintiff if it were not for his “commission of a crime” is an impossible burden. In this case, plaintiff’s “commission of a crime” bars defendant from offering plaintiff a position, and thus whether defendant would have offered plaintiff such a position if defendant was not so barred is simply not possible to know because once defendant determined that it could not rehire plaintiff because of his commission of a felony, the employment inquiry stopped. The wcac’s approach, however, would require the inquiry to continue. That is, it would require defendant to make a needless determination, i.e., whether it would have hired plaintiff if plaintiff had not committed this felony. The statute does not require that futile inquiry, and thus the wcac erred in requiring it. The dissent criticizes us for “merely recharacteriz[ing] the question posed to the magistrate by the wcac on remand.” Post at 198. We do not agree with this portrayal of our position. We are not remanding this case to the magistrate to determine whether defendant proved that it would have hired plaintiff had it not been for his “commission of a crime.” Instead, we are remanding to determine what portion of plaintiff’s loss of wage-earning capacity is fairly attributable to his work-related injury or to his “commission of a crime.”
Note that it could be possible for the reduction in pay to be partly because of an “imprisonment or commission of a crime” and partly because of a work-related injury. In such a situation, as may well be the case here, the employer would be liable for the reduction in pay attributable to the work-related injury. The employer would not be liable for the reduction in pay attributable to the “imprisonment or commission of a crime.”
“[T]he wcac should consider whether the injury has actually resulted in a loss of wage earning capacity in work suitable to the employee’s training and qualifications in the ordinary job market.” Id. at 158 (emphasis added).
In our judgment, the construction of MCL 791.205a(l) set forth in this opinion is more in accord with this purpose than the dissent’s construction. Under our construction, while employers will not be able- to escape liability for an employee’s loss of wage-earning capacity that is attributable to' the employee’s work-related injury, the employer will not be held liable for an employee’s loss of wage-earning capacity that is attributable to the employee’s “imprisonment or commission of a crime.” Under the dissent’s approach, although the employer will not be able to escape liability for an employee’s work-related injury, the employer will also be held liable for an employee’s loss of wage-earning capacity that is attributable to the employee’s “imprisonment or commission of a crime.” That is, what divides these opinions is the eligibility of employees for worker’s compensation benefits related to their own “imprisonment or commission of a crime.” This opinion interprets the statute in accordance with the manifest intent of the Legislature to deny such benefits to employees, while the dissent would allow such benefits. Notwithstanding that employees were entitled to such benefits before the 1985 worker’s compensation amendments and that the Legislature clearly intended that the situation be altered, the dissent refuses to give effect to the Legislature’s intent that employers will not be liable for an employee’s loss of wage-earning capacity that is attributable to “imprisonment or commission of a crime.” Apparently, there is little that the people of Michigan can do through their Legislature to disallow such benefits in light of the dissent’s determination that they be maintained.
The dissent states: “Although [plaintiff was] earning less than he had earned while he worked for defendant because of the physical limitations caused by his work-related injury, plaintiff was working.” Post at 193 (emphasis added). If it is true that plaintiff is earning less because of his work-related injury, we would agree with the dissent that defendant must pay plaintiff a percentage of this difference. However, if plaintiff is earning less because of his “commission of a crime,” defendant is not obligated to pay plaintiff a percentage of this difference. That is, we agree with the dissent that “[djefendant must still pay benefits to plaintiff as compensation for his loss of wage-earning capacity attributable to plaintiffs work-related injury,” assuming that some or all of plaintiff’s loss of wage-earning capacity is attributable to plaintiffs work-related injury. Post at 194. Accordingly, this case must be remanded to the magistrate to determine to what extent, if any, plaintiff’s loss of wage-earning capacity is attributable to his work-related injury and to what extent, if any, plaintiffs loss of wage-earning capacity is attributable to his “commission of a crime.”
The dissent criticizes us for “providing] the magistrate with absolutely no guidance for making this determination.” Post at 198. However, we are not asking the magistrate to do anything other than what magistrates have been required to do since the enactment of the wdca, that is, to determine whether, and to what extent, there is a linkage between plaintiff’s work-related injury and his loss of wage-earning capacity. See Sington, supra at 155. To the extent that there is such a linkage, plaintiff is entitled to benefits. However, to the extent that plaintiff’s loss of wage-earning capacity is attributable, not to his work-related injury, but to his “commission of a crime,” plaintiff is not entitled to benefits.
The dissent repeatedly states that “the magistrate has already determined that plaintiff’s work-related injury ... is the only thing preventing plaintiff from returning to other types of work.” Post at 196. However, that is not the test to be applied to determine eligibility for worker’s compensation benefits. As this Court recently explained in Sington, supra at 158, the test is not whether plaintiff suffers from a work-related injury that prevents him from returning to other types of work; rather, the test is whether plaintiff suffers from a work-related injury that results in a loss of wage-earning capacity. Accordingly, the magistrate must now determine why plaintiff is suffering a loss of wage-earning capacity. Is it because of his work-related injury? That is, would plaintiff not be suffering a loss of wage-earning capacity if he were not injured? Or, is it because of his “commission of a crime?” That is, would plaintiff not be suffering a loss of wage-earning capacity if he had not been convicted of a felony and subsequently incarcerated? The dissent states that because “[fjindings of disability and wage-earning capacity have been established and are not disputed” there is no need to remand this case to the magistrate. Post at 199. However, although the plaintiff has indeed suffered a work-related injury, as well as a loss of wage-earning capacity, what has not yet been established, in our judgment, is whether plaintiff’s work-related injury caused his loss of wage-earning capacity. See 190-191 n 13.
In the present case, plaintiff was able to “obtain and perform work” while he was imprisoned through a work-release program. Although plaintiff does not seek partial-disability benefits for the time that he was imprisoned, under the dissent’s analysis, plaintiff would certainly be entitled to such benefits. As Judge Griffin in dissent stated in response to the lead opinion, which, like the dissent here, concluded that the exception only applies to unemployed employees:
The parties, magistrate, wcac majority, wcac dissenters, my colleagues, and I all agree that subsection 361(1) operates to exclude defendant from liability for worker’s compensation benefits for the period that plaintiff was imprisoned. However, if the “test” proposed by the lead opinion for subsection 361(1) were applied to the present circumstances, plaintiff would also be entitled to worker’s compensation benefits during his period of imprisonment. This is because plaintiff was able to obtain and perform work during his imprisonment and thus “plaintiff is not unable to obtain or perform work for that reason.” (Opinion by Neff, J., ante at [565].) Judge Neff’s construction of § 361 and its test for application fails because its results, as applied to plaintiff, are simply illogical. [247 Mich App 577 (citation omitted).]
The dissent repeatedly states that the magistrate has already determined that plaintiff is disabled. However, the magistrate originally found plaintiff to be disabled as defined in Haske v Transport Leasing, Inc, 455 Mich 628, 634; 566 NW2d 896 (1997). This Court has since overruled Haske. See Sington, supra at 161. Accordingly, on remand, the magistrate is to determine whether plaintiff is disabled as defined in Sington, supra at 158. That is, if the magistrate determines that plaintiff’s loss of wage-earning capacity is wholly attributable to his “commission of a crime,” the magistrate must conclude that plaintiff is not disabled because, under Sington, supra at 158, there must be a link between the work-related injury and the loss of wage-earning capacity. If the magistrate, however, determines that plaintiff’s loss of wage-earning capacity is wholly attributable to his work-related injury, the magistrate must conclude that plaintiff is disabled and entitled to benefits. Finally, if the magistrate determines that plaintiff’s loss of wage-earning capacity is partly attributable to his work-related injury and partly attributable to his “commission of a crime,” the magistrate must conclude that plaintiff is disabled and entitled to benefits for the portion of his loss of wage-earning capacity that is attributable to his work-related injury, but is not entitled to benefits for the portion of his loss of wage-earning capacity that is attributable to his “commission of a crime.”
The dissent states that it is inappropriate to remand this case for a redetermination of disability under Sington because defendant has never contested plaintiff’s disability. Post at 193-194 n 2. Although defendant has not specifically contested plaintiff’s disability, defendant has specifically contested its duty to pay plaintiff differential benefits in light of plaintiff’s “commission of a crime.” As explained above, if plaintiff’s loss of wage-earning capacity is wholly attributable to his “commission of a crime,” plaintiff is not disabled under Sington. In other words, whether defendant must pay plaintiff differential benefits in light of plaintiff’s “commission of a crime,” and whether plaintiff is disabled, are two interrelated questions that must be addressed on remand.
See the magistrate’s November 18, 1998, opinion, page 6, where the magistrate stated: “Furthermore, there is nothing to prevent plaintiff from returning to other types of work except his disability which was incurred as a result of his employment with defendant.”
The majority’s suggestion that this case should be remanded for a redetermination of disability under Sington v Chrysler Corp, 467 Mich 144; 648 NW2d 624 (2002), is inappropriate. While Singlan provides the current standard for disability determinations, defendant never contested plaintiff’s disability. In fact, defendant willingly paid benefits from the date of plaintiff’s injury until plaintiff’s incarceration. Defendant’s obligation to pay benefits has only been contested under MCL 418.361(1) in light of MCL 791.205a. Therefore, redetermination of disability under the Sington standard is unnecessary and inappropriate. The only issue in this case is whether defendant is relieved of its obligation to pay benefits because of plaintiff’s commission of a crime.
Disability was established by the magistrate, and defendant does not challenge this. | [
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In lieu of granting rehearing, the final sentence of the opinion of February 4, 2003, 467 Mich 344, 351, is amended to read as follows:
Defendants’ application for leave to appeal as cross-appellants to contest the wcac decision to reimburse plaintiff for the cost of the van conversion is denied for the reason that the Court is no longer persuaded the question should be reviewed by the Court.
In all other respects the motion for rehearing and plaintiff-appellee’s request for clarification are denied. Reported at 467 Mich 344. | [
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Grant, J.
The sole question presented upon this record is, Have the Constitution and act relative to the rights of married women abrogated the rule of the common law that a husband is liable for the antenuptial contracts of his wife? The court below held that they had not: By section 5, art. 16, of the Constitution, all the property of every female acquired before marriage, and all property acquired after marriage by gift, grant, inheritance, or devise, remains her property during coverture, and is not liable for the husband’s debts, and may be devised and bequeathed by her as if she were unmarried. The first section of the married woman’s act of 1855 goes further than the constitutional provision, and authorizes the wife to contract, sell, transfer, mortgage, and convey her separate property. The third section provides for the bringing of actions by and against a married woman in relation to her sole property. The fourth section reads as follows:
“The husband of any married woman shall not be liable to be sued upon any contract made by such married woman in relation to her sole property, and the wife shall be liable to be sued upon any contract or engagement made by her in cases where her husband is not in law liable, or where he refuses to perform such contract or engagement, and, in any case herein authorized, the cause of action shall be deemed to have accrued from and after the passage of this act.” 3 Comp. Laws 1897, § 8693.
It has been very generally held by the courts of the States that the married women’s acts, which make them the absolute owners of all their property, confer upon them the right to make contracts with reference thereto, and make them liable thereon, do not abrogate the common-law incidents of the marital relation which are not within the evident purpose of the act. Among these is the common-law liability of the husband for his wife’s antenuptial contracts. Kies v. Young, 64 Ark. 381 (42 S. W. 669, 62 Am. St. Rep. 198), and cases cited. Counsel for plaintiff rely much upon the fact that there is no express abrogation in the married woman’s act of this common-law liability, and upon the rule that statutes in contravention of the common law must be strictly construed. Courts will not hold the principles of the common law abrogated by implication, unless the common law and the statute are in direct conflict. The chief justice, in Kies v. Young, supra, dissented, applying the maxim, “Gessante r alione, cessat etiam lex.” Counsel, in their briefs, have not given us the benefit of the statutes of other States upon which the decisions are based. To have a controlling influence, the statutes of those States must be substantially like our own.
Counsel cite Bertles v. Nunan, 92 N. Y. 165 (44 Am. Rep. 361), where the contention was that the married woman’s act of that State changed by implication the common-law rule that, when land was deeded to husband and wife, they took by the entirety. The court held otherwise, saying: “The court certainly ought not to go faster than the legislature in obliterating rules of law under which many generations have lived and flourished, and the best civilization of any age or country has grown up.” We are in entire accord with this statement; but there is a change by implication, and the duty of the courts is imperative to determine in each case what the manifest intent of the legislature was. If there is a plain conflict between the common law and the statute, the latter must control. There is nothing in the New York statute or in ours to indicate any purpose to change the common-law rule as to tenancy by the entirety. See Fisher v. Provin, 25 Mich. 347.
In both the cases above cited, the court held that, under the married woman’s acts in those States, the common-law right of tenancy by the common curtesy remains, while we have held that, under our statute, tenancy by the curtesy is abolished. Tong v. Marvin, 15 Mich. 60.
We have examined the statutes of several States whose decisions are cited to support plaintiff’s contention, and we find none which contains provisions like that of section 8693 óf our statute. The Arkansas decisions differ from ours in other respects. That court holds that, under their statute, the husband and wife cannot contract with each other, while this court has held to the contrary. Randall v. Randall, 37 Mich. 563. The decisions of the court prior to 1883 upon the effect of this act are cited in Edwards v. McEnhill, 51 Mich. 160 (16 N. W. 322). Decisions since rendered are in harmony with those.
At the common law, the husband is not liable for any postnuptial contracts made by the wife in regard to her separate property, but is only liable for her contracts dum sole. Unless, therefore, the statute included antenuptial contracts, there would seem to be some force in the con tention that there would be none to which it could apply. However this may be, the contract of a feme sole remains her contract when she becomes a married woman, and is then the contract of a married woman. We think the above section clearly includes those contracts which she made while a feme sole. They relate to her sole property, become the contracts of a married woman, and are within the statute declaring that the husband cannot be sued upon any contract made by her in relation to her sole property.
Judgment reversed, and entered in this court for defendants.
The other Justices concurred. | [
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] |
Moore, J.
In April, 1887, the Kalamazoo Natural Gas & Fuel Company was organized. The portions of the articles of association which are material read as follows:
“We, the undersigned, desiring to become incorporated under the provisions of the laws of the State of Michigan for the purposes hereinafter stated, do hereby make, execute, and adopt the following articles of association, to wit: * * *
" ‘ The purpose or purposes of this corporation are as follows : To drill, bore, and mine for natural gas, petroleum, and other valuable substances, and to gather and collect the same, and to lay pipes to conduct the same, build reservoirs to hold the same, and to market said natural gas, petroleum, and other valuable substances, when obtained, in such way and manner as shall be considered most expedient and advantageous to said company; also to lay pipes and conduct gas, petroleum, and other valuable substances through, over, and to any place or places in Michigan from places where the same may be produced; also to manufacture gas for the purposes of fuel and generating heat, and to pipe or otherwise conduct the same to market, and to market and dispose of the same; also to purchase and store materials from which such gas may be manufactured; and also to purchase, hold, and lease lands for the purpose of carrying out the objects and purposes of this association.
‘ ‘ The capital stock of the corporation here organized is the sum of ten thousand dollars, and the number of shares thereof is four hundred. The amount of said stock actually paid in at the date hereof is the sum of one thousand and twenty dollars, being ten per cent, of said capital stock. * * * ■
“The term of existence of this corporation is fixed at thirty years from date hereof. ”
Thirty-four persons subscribed to the articles of association. Their acknowledgments were taken before a notary public. The articles of association were on May 7, 1887, filed in the office of the secretary of state, and on the 11th day of May, 1887, in the office of the county clerk of Kalamazoo county. On the 6th of June the common council adopted an ordinance the provisions of which read as follows:
“Ordinance No. 52. Relative to Kalamazoo Natural Gas & Fuel Company.
“ Section 1. The city of Kalamazoonrdains: That permission and authority are hereby given to the Kalamazoo Natural Gas & Fuel Company, of the city of Kalamazoo, a corporation organized under and by virtue of the laws of the State of Michigan, its successors and assigns, to lay, operate, and maintain all such mains and pipes as are or may be necessary and useful in conducting natural gas, and all other substances,- matters, and things used and to be used by the said Kalamazoo Natural Gas & Fuel Company, its successors and assigns, to manufacture or generate or make heat, or to be used for fuel or illuminating' purposes, under the surface of the ground, along and under any and all streets, alleys, and highways of the city of Kalamazoo, and over, upon, or under any and all bridges in said city, for the period of thirty years from and after the date of the passage of this ordinance, with the right and privilege of putting in. the necessary escape pipes; subject, however, to all the conditions, specifications, and limitations hereinafter contained.
“Sec. 2. That said mains and pipes shall be laid at least 20 inches below the surface of the ground, and, when laid, the trenches shall be laid and filled in with earth, stones, or gravel, or of all, so as to leave the streets and alleys through which said pipes may be laid in as good condition as they were previous to the laying of said pipes or mains.
“Sec. 3. That all pipes to be laid under the provisions of this ordinance, and all escape pipes erected, shall be so laid and erected under the supervision and direction of the city engineer of the city of Kalamazoo, subject to the approval of the city council of said city.
“Sec. 4. That the said Kalamazoo Natural Gas & Fuel Company, its successors and assigns, shall charge all consumers of gas and fuel supplied by it the same rate per 1,000 feet for all gas or fuel consumed, and that all within the said city of Kalamazoo desiring to make use of such gas and fuel shall be supplied-by the said Kalamazoo Natural Gas & Fuel Company, its successors and assigns, as soon as practicable, consistent with the ability of said Kalamazoo Natural Gas & Fuel Company, its successors and assigns, so to do.
“ Sec. 5. That the said Kalamazoo Natural Gas & Fuel Company, its successors and assigns, shall have the right to abandon its rights and privileges hereby granted, with right to remove its pipes and mains, but shall restore the streets and alleys to the condition that they were in prior to't-he laying of said pipes.
“Sec. 6. That the provisions of this ordinance shall not be altered, amended, or repealed without the consent of the said Kalamazoo Natural Gas & Fuel Company, its successors and assigns.
“Sec. 7. That the said Kalamazoo Natural Gas & Fuel Company shall signify its acceptance of this ordinance in writing, signed by its president and secretary, and filed with the city clerk of Kalamazoo, within 30 days from the date of the passage of this ordinance, and, in default of such written acceptance, this ordinance and the provisions thereof shall become and be inoperative and void.
“Sec. 8. It shall be the duty of the said Kalamazoo Natural Gas & Fuel Company, and the said company agrees, not to keep any street or place where its pipes may be laid torn up or unsafe for travel any longer than is necessary to lay pipes and make repairs; and said company further agrees to save the said city of Kalamazoo harmless from all expense, damages, and actions it may be put to, sustain, or be brought against it by reason of the said company failing to comply with the terms of this ordinance, or by reason of any neglect of said company, its agents or servants.”
After this ordinance was granted, several thousands of dollars were paid into the treasury, and the company commenced to bore for the purpose of obtaining natural gas. This work was continued the greater part of the year, but without success. Some of the stockholders sold their shares of stock to other stockholders. From time to time committees were appointed for the purpose of visiting other cities, and learning about the methods of making gas, with a view of operating under this franchise. In 1892 a considerable quantity of gas-pipe was distributed on the streets of Kalamazoo by a company that had corresponded with the Natural Gas & Fuel Company, but no pipes were at that time laid. In 1896 the company which is defendant herein was organized under the general laws of the State applicable to gas companies. It is claimed this company was organized in pursuance of an agreement that it should be merged with the Kalamazoo Natural Gas & Fuel Company, which should convey to it its franchise and all other assets, and that residents of Kalamazoo should furnish $0,000 in cash, and the other parties in the new corporation should furnish certain patents, and sufficient money to build the plant, pipe the streets, and put the plant into operation. It is claimed the necessary transfers were made, and a large amount of money raised. The city was notified of the desire of the new company to lay pipes. Under the supervision of the city engineer, about three miles of pipes were laid, and the defendant company began to manufacture and sell gas. One of the principal streets in the city is Burdick street. Prior to, but shortly before, September, 1897, it had been paved with vitrified brick. In September, 1897, the defendant company desired to lay its pipes upon Burdick street, and so notified the city authorities. The authorities objected, because the street had been recently paved, and the pipes could not be laid without injuring the paving. The defendant insisted upon its right to lay the pipes. The city then commenced this proceeding.
The issues, as finally raised by the bill and all the amendments, are as follows: The bill of complaint, as first filed, alleges:
That the Kalamazoo Natural Gas & Fuel Company was never properly organized, in that all of its subscribers did not properly execute the articles of association; and that its sole object was to bore for natural gas, and that all rights under the franchise are limited to that purpose, and would not permit the manufacture of gas, and the city could rescind the franchise at its pleasure.
That the articles of association were not recorded in the register of deeds’ office for Kalamazoo county, and therefore it could not receive a franchise.
That the common council exceeded its authority in issuing franchise No. 52, in that it granted the privilege to the Kalamazoo Natural Gas & Fuel Company to use the streets, without reserving the right to Say what streets, and therefore it was void.
That the consent of the city council was not obtained to the transfer of franchise No. 52 from the Kalamazoo Natural Gas & Fuel Company to the defendant; hence the transfer was void.
That the Kalamazoo Natural Gas & Fuel Company was organized for a purpose different from that stated in its articles of association and in its franchise, and that it abandoned all right to franchise No. 52 more than seven years ago, and therefore it was void.
The original bill was amended twice. After filing the original bill, an injunction was issued, preventing the defendant from laying the pipes on Burdick street. This injunction was modified, and the pipes were laid on that street. The first amendment alleges:
That there was no valid assignment of the franchise from the Kalamazoo Natural Gas & Fuel Company to the Kalamazoo Heat, Light & Power Company.
The second amendment alleges:
That the process used by defendant company for making gas is a failure; that the originator or patentee of the Hall process several years ago attempted to impose upon the people of another locality by using natural gas, claiming it to be made by the Hall process; that later, at Grand Rapids, Mich.,.they attempted to deceive the people as to the amount of gas they furnished; that they also tried to establish a plant to make the same gas at Chicago and Buffalo, and failed; that the present plant was established for the purpose of deceiving people, and for the purpose of, establishing plants elsewhere; that defendant company is insolvent; that defendant’s process for making gas is not practicable, and will not make good gas; that the gas cannot be made as cheap as claimed by defendant company; that defendant’s gas plant sends out an obnoxious gas, so that it has become a public nuisance; that the defendant company is controlled by one Armison and one Cadwell, and neither of them is a taxpayer in Kalamazoo, or pecuniarily responsible; that the defendant has not repaved the streets where it has laid its pipes; that the complainant has had to repair the streets, and the defendant has neglected to repave or repair and pay for the same; that the Hall process for making gas is a fake; that the complainant has the right to disregard all privileges and rights given by Ordinance No. 52.
The case was tried in open court, and a mass of testi mony taken. The circuit judge filed a written opinion, in which, after saying it was unnecessary to consider more than one of the questions raised, he then proceeds to say:
‘ ‘ The question is thus fairly and squarely presented whether the defendant company has the right, under Ordinance No. 52, to lay its gas mains and pipes in any streets or alleys of the city of Kalamazoo at pleasure, and, if it so chooses, leave the streets in a dangerous condition, to be repaired at the expense of the taxpayers of the city. This question admits of but one answer. * * *
‘ ‘ Before passing the case, it may not be amiss to say that some of the matters stated in the pleadings, and contested by the parties in their proofs, have not been considered by the court in any way. Whether the process used by the defendant in the manufacture of gas is or is not one which produces the best results, whether the gas manufactured by defendant is or is not commercially valuable, whether such gas can or cannot be furnished at a less cost than other gas, are all matters between the defendant and the consumers of its gas, and are not necessary to be considered in deciding the vital questions involved in the case.
“A decree may be entered perpetually enjoining the defendant, its successors and assigns, from laying gas mains or pipes in, along, or under any street, lane, or alley or public ground in said, city of Kalamazoo, except by permission of the city council of said city, and under .such reasonable conditions and restrictions as may be imposed by said city council.”
A decree was entered in accordance with the opinion. From that decree complainant did not appeal. The defendant company did appeal. It concedes it may not arbitrarily lay its pipes where it pleases, and that the city has a right to supervise the laying of its pipes to see that it is properly done, but insists it has the right, subject to the right of reasonable supervision under the terms of the franchise, to lay its pipes in all the streets of the city.
Many questions are raised by counsel, but we shall not discuss them all.
It is claimed the only purpose of forming the Kalama zoo Natural Gas & Fuel Company, and the granting to it a franchise, was to bore for natural gas. That may have been the principal purpose, but the articles of association and the provisions of the franchise name other purposes, and these terms and provisions cannot be limited by oral testimony.
It is claimed the company abandoned its franchise.' This claim is successfully contradicted by the record.
It is urged there never was a legal corporation known as the Kalamazoo Natural Gas & Fuel Company, because the provisions of the statute were not followed. It is said some of the subscribers to the articles were firms or co-partnerships, only one member of which purported to acknowledge for the firm, and also because four corporations signed for stock, which corporations were not authorized to take stock. It is also objected that the articles of association should have been recorded in the office of the register of deeds, instead of being filed in the office of the county clerk. The statute provides that any number of persons, not less than five, may sign articles of association. Section 7117, 3 Comp. Laws 1897. Upwards of 30 persons properly signed and acknowledged the articles of association, and it is doubtful if any of the irregularities were fatal to the organization of a corporation de jure j but we do not deem it necessary to decide that question. It is apparent an honest effort was made to organize'a corporation in conformity with the provisions of law. Articles of association were prepared, signed, and acknowledged, and filed with public officials. Shares of stock were subscribed and paid for. Officers were elected. A petition was presented to the complainant city for a franchise. The city treated the corporation as one in fact, and granted to it a franchise, under the terms of which it operated and expended a large sum of money. The State has never raised any question about the regularity of the corporation. Under these circumstances we understand the rule established by law as well as reason is that parties recognizing the existence of corporations by dealing with them have no right to object to any irregularity in their organization. Swartwout v. Railroad Co., 24 Mich. 393; Merchants & Manufacturers’ Bank v. Stone, 38 Mich. 779; Toledo, etc., R. Co. v. Johnson, 49 Mich. 148, 55 Mich. 456 (13 N. W. 492, 21 N. W. 888); City of Grand Rapids v. Grand Rapids Hydraulic Co., 66 Mich. 606 (33 N. W. 749); Eaton v. Walker, 76 Mich. 579 (43 N. W. 638, 6 L. R. A. 102); 2 Mor. Priv. Corp. §§ 750-754; Detroit City Ry. v. Mills, 85 Mich. 648 (48 N. W. 1007).
It is insisted the defendant is not the assignee of the Natural Gas & Fuel Company. The oral testimony is that the defendant succeeded to all the rights of the earlier company. The records of that company recite that, at a meeting where 376 out of the 400 shares of the stock of the company were- represented, a proposition had been made by the defendant company to purchase all the real estate, property, and assets, including the franchise, of the earlier company, for $1,000; that a resolution was unanimously adopted “that the proposition * * * be and is hereby accepted, and that this company does sell and convey to said last-mentioned corporation the real estate, property, and assets of all kinds, together with its franchises, and all rights and privileges thereunder, of this corporation, for the cash sum of one thousand dollars.” The directors were authorized to take all necessary measures to carry out the arrangement. . Resolutions of a like character were passed by the hoard of directors. A deed of all the real estate and appurtenances was made to defendant company. The consideration named therein was $1,000. The books and papers of the earlier company were turned over to the later one. Some of the stockholders were paid in money for their stock; others of them exchanged it for stock in the new company. The new company took possession of the plant of the old company, and has since claimed to be the owner of it; and we have no doubt it has succeeded to the rights of the earlier company. Before this suit was brought, upwards of $30,000 had been expended by the two companies. It is doubtless true the ordinance was not a wise one to make, but it was within the power of the council to make it, and the city is bound by its terms.
There is a good deal of testimony tending to show that the defendant company, when it laid its pipes, did not put the street in good repair. It was its duty to do so. It may not tear up the streets, and leave them out of repair. The city may not exclude the company from laying its pipes in any of the streets, alleys, or highways of the city, but it may insist upon the woi’k being done under such reasonable conditions and restrictions as shall make it certain the work will be properly done; and, if it deems it necessary, it may exact a bond for a reasonable amount before the work is entered upon.
The decree of the court below is reversed, and one will be entered here in accordance with this opinion.
Montgomery, C. J., Long and Grant, JJ., concurred Hooker, J., did not sit. | [
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Moore, J.
On the 14th day of January, 1895, complainant recovered judgment in justice’s court against defendant William H. Palmer for the sum of $80.35 damages and $7.89 costs of suit. February 6, 1895, complainant caused a transcript of this judgment to be'filed and docketed in the circuit court. February 20, 1895, execution was issued out of the circuit court on this transcript, which was upon the same day levied upon certain real estate for want of personal property, and the levy regularly recorded in the office of the register of deeds. At the time the indebtedness was contracted upon which the judgment was based, the real estate levied upon was the individual property of the defendant William H. Palmer. Over a year after the rendition of the last of the services for which judgment was rendered, the said William H. Palmer and Mary M. Palmer, his wife, made a voluntary conveyance of the premises in question to an intermediary, who conveyed them back to the Palmers jointly' as husband and wife. The bill of complaint charges that these conveyances were made for the express purpose of preventing complainant and other- creditors from collecting their just claims. The bill alleges that there was due on said judgment the sum of $91.61, with interest thereon from January 14, 1895. The bill was filed July 27, 1897. The interest amounted to $13.65, making the total amount due at the time the bill was filed $105.26. The bill prayed that the conveyances above referred to be set aside as against complainant’s execution, and the sheriff directed to proceed and sell the same under said execution. The bill is in the usual form of a bill in aid of execution. After the filing of the bill, and before the decree, Mr. Palmer died. The suit is defended by his survivor, Mrs. Palmer.
The defendants demurred to complainant’s bill upon three grounds. The first and second are substantially the same, viz., that complainant did not file his bill within one year after the date of the making of the levy. The third ground is that the matter in dispute does not, and did not at the time of the levy, exceed $100. The court held the first ground well taken, paying no attention to the last.
A solution of the questions involved requires an examination of the statutes in'relation to sales of real estate on execution. Prior to 1867 the statutory provision was as follows:
“All the real estate of a debtor, whether in possession, reversion, or remainder, including lands fraudulently conveyed with intent to defeat, delay, or defraud his creditors, and the equities and rights of redemption hereinafter mentioned, shall be subject to the payment of his debts, and may be sold on execution as hereinafter provided.” Section 3119, 2 Comp. Laws 1857.
Act No. 95 of the Laws of 1867 amended this section so as to make it read as follows:
“All the real estate of any debtor, including legal and equitable interests in lands acquired by the parties to contracts for the sale and purchase of lands, whether in possession, reversion, or remainder, including lands fraudulently conveyed with intent to defeat, delay, or defraud his creditors, and the equities and rights of redemption hereinafter mentioned, shall be subject to the payment of his debts, liabilities, and obligations, and may be levied upon and sold on execution as hereinafter provided. 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; or, if the levy was made by virtue of an attachment, said purchaser 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 said attachment, including in either case the right to enforce specific performance of any contract hereinbefore mentioned, upon performing the conditions thereof as stipulated therein by said debtor: Provided, that this section shall not be construed so as to make liable to levy and sale on execution any amount of land not exceeding the amount now exempted by law from levy and sale on execution, and which would be exempt from levy and sale on execution if owned by the debtor occupying the same. That, in case of a levy upon the equitable interest of a judgment debtor, the judgment creditor may, before sale, institute proceedings in aid of said execution, to ascertain and determine the rights and equities of said judgment debtor in the premises so levied upon; and that, in case of a sale of said premises without having ascertained and determined the interest of said judgment debtor in the premises so levied upon and sold, he shall, within one year, institute proceedings to ascertain and determine the same, and to settle the rights of the parties in interest therein.” 3 Comp. Laws 1897, § 9167.
The solicitors for complainant make a strong argument, in which they urge the limitation of one year does not apply to proceedings instituted before sale. They contend the purpose of the amendment was to subject to levy and sale upon execution legal and equitable interests in lands acquired by-the parties to contracts for the sale and purchase of lands, and that the provision relative to lands fraudulently conveyed is now as it was before the amendment. It is said the limitation as to time of filing the bill applies only when the equitable interest of a debtor is levied upon, and does not apply to a proceeding like this, to have a conveyance of land alleged to be in fraud of creditors set aside. It has been repeatedly held that a fraudulent conveyance is good as between the parties. Belcher v. Curtis, 119 Mich. 1 (77 N. W. 310), and cases there cited. Such a conveyance would be set aside only so far as was necessary to protect the creditor.
This statute, prior to and after the amendment of 1867, has been construed by this court upon several occasions. The circuit judge filed a written opinion, in which he cites the following cases: Cleland v. Taylor, 3 Mich. 201; Messmore v. Huggard, 46 Mich. 558 (9 N. W. 853); Cranson v. Smith, 47 Mich. 189, 647 (10 N. W. 194, 11 N. W. 186); Jenison v. Rankin, 57 Mich. 49 (23 N. W. 482); Edsell v. Nevins, 80 Mich. 146 (44 N. W. 1115); Wolf v. O’Conner, 88 Mich. 124 (50 N. W. 118, 13 L. R. A. 693). After reviewing these cases, he reached a conclusion which he expressed as follows:
“From an examination of these cases, the following propositions, appropriate to a determination of this part of the defendants’ demurrer, must be considered as clearly established: (1) A creditor having an execution against a debtor who has made a conveyance of his land which the creditor desires to attack as fraudulent must use the remedy provided by the amendment of 1867. No other is open'to him. (2) He must file his bill for that purpose before sale on the execution. It remains to bé determined whether he must institute the proceedings - within one year from the date of levy. Considering the amendment in the light of the decisions, it must be held that it was not the purpose of the legislature to provide for cases where the bill is filed after the execution sale, for there could be no such cases. The only cases there could be were those where the bill is filed before the sale, and such cases alone were contemplated and provided for. The one-year limitation must apply to such cases if it has any application at all. Unless it applies to such cases, it is a meaningless and useless provision. A construction of the statute which would have the effect to render it nugatory should be avoided, unless the conditions make that construction imperative. One of the general purposes of this amendment was to compel the creditor to have his debtor’s equity in the land levied upon speedily determined, and not allow him, after making his levy, to postpone the test indefinitely. The limit of one year from the date of levy was fixed by the legislature as a reasonable time within which he must file his bill. This wholesome purpose failed utterly unless the one-year limit applies to cases where the bill is filed before sale. Unless it is held to apply to such cases, the entire amendment is abortive.”
We think the court placed a right interpretation upon these decisions. If an illustration was wanted of the wisdom of the limitation of time, it is found in the fact that one of the defendants, who knew whether the conveyances were fraudulent or not, died after the period of limitation named in the statute had expired, and before the decree was made, and could not give his version of the transaction.
The decree of the court below is affirmed, with costs.
The other Justices concurred. | [
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] |
Montgomery, C. J.
The claimant recovered a verdict on a trial before a jury, and defendant brings error. The claim presented was for services of the claimant’s intestate in nursing Christian Kupey in his lifetime. There was testimony tending to show that the deceased, Christian Kuney, promised to pay for this service, and the jury evidently believed and acted upon such testimony. The defense chiefly relied upon in the court below was an estoppel growing out of the following facts, as claimed by appellant: When the commissioners on claims for the estate of Christian Kuney were appointed, Mrs. Seymour Kuney presented a claim for the identical service for which the administrator of Seymour now seeks to recover. On the hearing before the commissioners she claimed that her husband had, in his lifetime, assigned the claim for his services to her, and an allowance was in fact made to her by the commissioners for such nursing, although for a somewhat less sum than claimed. The administrator, Daniel W. Bates, was present during this hearing, and he heard the claim which Mrs. Seymour Kuney made, and made no objection. This defense would certainly appeal strongly to us, if made out conclusively, but an examination of the record shows that this question was a disputed one. Mrs. Seymour Kuney testified that the claim which she made before the commissioners was for her own services in nursing the deceased, and for board, the claim for which had been assigned to her; but what is more .significant is the fact that, before the determination by the commissioners of Mrs. Seymour Kuney’s' claim, the present claim, or a duplicate of it, was filed. The commissioners could not have failed to understand, therefore, that the administrator was claiming that the charge for Seymour Kuney’s services was due the estate. The court especially charged that, if Seymour Kuney assigned this claim to his wife, there could be no recovery in this action. As, in the absence of an assignment or some estoppel against the administrator, the proceeding by her would not constitute a bar, we think the instruction referred to fully protected the defendant.
The defendant also claimed a set-off. This was disallowed by the jury. The instruction upon this subject was as follows:
“ If you allow that, you will allow the offset on that, if you find there was an offset. As I have said, the estate of Christian Kuney claims that they have a set-off here against the estate of Seymour Kuney. They claim there was a balance of $200 on a land deal (I will speak of it as a land deal); that Seymour Kuney should pay to the estate of Christian Kuney, also, $300 of money paid to Seymour Kuney by Perry Kuney; that the estate of Seymour Kuney should account for that. You will examine all the evidence in this case, to find whether Seymour Kuney was at the time of his death indebted to his father, Christian Kuney, in the sum of-$200, as claimed by the estate, and also in the sum of $300. When I say you will examine all of the evidence, you will find out, in the first place, whether he was indebted to him at any time in that amount, and, if he ever was, whether that had been ’ paid to his father. If it has been paid, then, of course, you will not allow any of it, or at least the part that was paid. The burden of proving this set-off is upon the estate of Christian Kuney. If the set-off is not established by a preponderance of the evidence, then it should not be allowed. If you find the set-off, or any part thereof, established by the contestant, then the same should be allowed, unless you find that the set-off has been paid by Seymour Kuney in his lifetime. If you find that he was indebted at the time of his death, or at any time, to his father, then the burden of showing that that was paid is-upon the estate of Seymour Kuney.”
Defendant’s counsel complain that their sixth request was not given. This request reads as follows:
“If the jury find that in his lifetime Christian Kuney deeded 20 acres of land to Seymour Kuney, and that Seymour was to pay him $200 over and above what was coming to Seymour for said land, and that Seymour has never paid the same, then said claim for $200, which was so to be paid back to Christian Kuney, would be a set-off, and should be allowed by the jury against any claim of the claimant, and the balance, if any, be allowed by the jury in favor of the estate of Christian Kuney.”
It is now urged that it was error to refuse this request; that the item was proved, and that there was no evidence against the claim; that it was the duty of the jury to allow it, and of the court to so instruct them. The request itself is a sufficient answer to this contention. It was a request to submit both the question of the original promise and of payment to the jury as a question of fact. This is precisely what the circuit judge did, and added that the burden of proof to show payment rested upon the claimant. The instruction given fully covered the request.
The other questions presented are, for the most part, dependent upon the questions which we have discussed, and need not be separately considered. None of the points made in the brief of appellant can be sustained.
The judgment will be affirmed.
The other Justices concurred. | [
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Hooker, J.
The defendant occupies lands which he claims to own by virtue of a quitclaim deed from his deceased wife, dated in 1875, a week after she had executed a life lease of the premises to him. The deed was not recorded until 1898, and is alleged to be a forgery by the complainants, sons of defendant, who file this bill to remove the cloud from their alleged title.
The question before us is one of fact merely, and we are not satisfied that the learned circuit judge erred in his conclusions. The decree must therefore be affirmed, with costs.
The other Justices concurred. | [
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] |
Grant, J.
(after stating the facts). Plaintiff Collins testified that, after the contract was made, he went to his book, and entered it. The court permitted this entry of plaintiffs’ version of the contract to be received in evidence, and also permitted plaintiff Olney, who was not present when the bargain was made, to testify that he, saw it on the book. This testimony was incompetent. Weaver v. Bromley, 85 Mich. 212 (31 N. W. 839); Caldwell v. Bowen, 80 Mich. 382 (45 N. W. 185); Hodges v. Power Co., 109 Mich. 547 (67 N. W. 564.).
Plaintiffs were permitted to show by witnesses what •they considered the sheep worth. This was incompetent. There was no dispute as to price. The case is not one for the application of thé rule approved in Short v. Cure, 100 Mich. 420 (59 N. W. 173); Shakespeare v. Baughman, 113 Mich. 551 (71 N. W. 874); and other cases.
It was error to permit defendant Shaw, upon cross-examination, to be asked the following question: “You have made money in your business ? ” And also to permit plaintiffs to show what it cost to get the sheep to Buffalo, or what profit defendants made. These things had no legitimate bearing upon the question at issue. They were evidently made use of by counsel in his argument to prejudice the jury.
Complaint is made that counsel for plaintiffs, in his argument to the jury, made statements not justified by the record. Inasmuch as the erroneous admission of testi. mony furnished the occasion for the remarks complained of, we need not discuss them.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
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] |
Long, J.
This bill was filed for an accounting. It is claimed* by the bill that the complainant is a Prussian,' who emigrated to Canada in 1855, where he accumulated some property; that in 1866 he came to Michigan, and, being an unmarried man, made his home with the parents of the' defendant, the mother of defendant being his sister; that when he came to Michigan he had $1,000 in gold, and exchanged it for United States currency, receiving therefor $1,900; that some time after this he received $500 from parties in Canada; that he had no proficiency in speaking the English language, and defendant conducted his business for him, loaning his money, receiving money paid in, and loaning it out again, and reporting to complainant from time to time the amounts paid in and to whom loaned; that defendant continued to do business for him until shortly before the filing of this bill, in February, 1898; that shortly before that time defendant informed him that he had notes and mortgages in his hands belonging to complainant amounting to between $12,000 and $13,000; that, trouble arising between them, he left the home of defendant, who turned over to him $5,850. It is also charged in the bill that the defendant, while acting as the agent of complainant, took mortgages in his own name, and reported them to complainant as mortgages belonging to complainant. It is also charged that the defendant, combining and cooperating with others, has also loaned complainant’s money, and taken mortgages and securities in the names of otherá, but in trust for himself; and that he wrongfully withholds from complainant said mortgages, so that he has now the sum of $7,000 belonging to complainant.
It is the claim of the defendant that he never had chai’ge of the affairs of the complainant until 1890, when the latter went to Germany with defendant’s father and mother; that after complainant’s return he turned all moneys collected over to him, as well as his securities; that complainant kept them in his trunk until 1895, when the defendant purchased a safe, after which time complainant deposited his papers there for safe-keeping; that he never loaned any of complainant’s money, afid took securities in his own name or in the name of any other person. It is also the claim of defendant that, before going to Germany, the complainant and defendant’s mother had a settlement of all their affairs; that, acting together, they gave him (defendant) a list of securities that they had a partnership interest in, and he entered the same in a book, and gave each a list of such securities; that, upon complainant’s return from Germany, he and complainant had a settlement, and from that time to November, 1897, he looked after complainant’s papers, and received a commission of 1 per cent, each year; that they settled from year to year, and a new list of securities was entered upon the books, and all moneys paid in were at once paid over to complainant; that, after the difficulties between himself and complainant in the fall of 1897, the complainant left his house, and he then turned over.to him and his agent all the securities and moneys in his hands belonging to complainant.
The testimony was taken in open court, and upon the final hearing the court dismissed the complainant’s bill. In this we think the court was not in error. In our judgment, the complainant has utterly failed to make out his case. It is a pure question of fact, and we do not feel called upon to enter upon the discussion of the facts. The court below saw the witnesses and heard their testimony, and arrived at the conclusion that the defendant had turned over to complainant all the moneys and securities belonging to him. We think no one can read the record without arriving at the same conclusion.
The decree below must be affirmed, with costs.
The other Justices concurred! | [
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Hooker, J.
On May 7, 1891, the township of Hamtramck, through its township board, granted to Henry Plass, Emil Stroh, and others, and their associates and assigns, consent, permission, and authority to lay, corn struct, maintain, and operate a single or double track railway along and through the Gratiot road, the same to-be in operation by the 1st day of January, 1892. The grantees accepted the same, and promised to build said road, by an instrument in writing. On May 13,1891, the territorial limits of the city of Detroit were extended so as to include that portion of the Gratiot-avenue road covered by said grant, and on December 10, 1891, the grantees notified the board of public works of the city of Detroit of their rights under said contract, and that they had been assigned to the Gratiot-Avenue Railway Company. Upon receiving notice of the intention of the Gratiot-A venue Company to build said railway, the city filed a bill in the Wayne circuit court in chancery, alleging that the grant from the township was void, and that the city had not granted any authority for the construction of said railway, and praying an injunction to restrain the building thereof. On December 21, 1891, the attorney general, on relation of Hazen S. Pingree, filed a similar bill. These bills were dismissed by decree dated June 28, 1892. The company built the road, and operated it until November 1, 1892, when it was purchased by the Detroit Suburban Railway Company, together with all franchises of the company. On the same day the Detroit Suburban Railway Company mortgaged its property, including this line, to secure bonds amounting to $400,000, payable in 10 years, of which bonds $275,000 are outstanding and unpaid. On the same day it leased all of its lines to the Detroit Citizens’ Street Railway for 10 years, and that company has since operated them under said lease.
The complainants appealed the two suits mentioned, and on February 18, 1893, counsel for the complainants asked that the cases be heard; whereupon the defendant’s counsel offered to consent to a decree for all that the bills prayed, and a decree was entered in each case vacating and setting aside the franchise granted by the township of Hamtramck. This occurred several months after the defendant in those suits, viz., the Gratiot-Avenue Railway, had parted with its interest in said railway to the Suburban-Company. No steps have since been taken to restrain the building or operation of said road against any of the companies connected with the transaction, and the Citizens’ Company has expended large sums-in putting down new rails and changing the road to an electric equipment.
It having been determined by the board of public works to pave the street, it took bids; one bid being for paving the full width of the street, the other for the width of the street less the space required for double tracks. A contract was made on the basis of these bids, leaving it optional with the board to have it paved the full width or excluding the required space for tracks. Thereupon the Detroit Citizens’. Street-Railway Company, the Detroit Suburban Railway Company, and the Union Trust Company, representing the bondholders, filed the bill in this cause to restrain the city from tearing up the tracks and preventing the operation of the railway, and to remove the cloud from the complainants’ title, created by the decrees heretofore mentioned. It alleges a denial by the city of any rights upon the part of the complainants to maintain and operate said road, and a threat to remove it, and pave the entire width of the street, unless the complainants consent to put down a double track, and pave between the rails, upon said street, without any recognition of complainants’ rights in the street; and avers that complainants are ready and willing to pave the street to the extent required of them, provided the city will recognize and affirm complainants’ rights in the property and franchises aforesaid. The answer denies that the facts show a valid franchise to construct and operate a road within the city of Detroit for 30 years. It denies that the Gratiot-Avenue Railway acquired any vested right to operate a railway within the city of Detroit. It admits the decrees, states that the complainants were privy to them and had knowledge of them, and denies that it has consented or acquiesced in complainants’ occupancy. It avers a right to pave, and to require the railway to conform to its requirements, and upon its refusal claims the right on the part of the city to grade and pave without regard to the tracks, and that complainants have not a right .to attach a condition to their compliance with the municipal regulations about paving, and prevent the paving of said street until the defendant shall comply with such condition. A decree was rendered for the complainants, and the city has appealed.
Considering the bill one whose primary object is to remove the alleged cloud upon complainants’ title, we need not concern ourselves about the injunction until that question is decided, because, if complainants have no title, — i. e., no valid easement in the highway, — they have no right to an injunction. The road was constructed pending the previous litigation, which plainly raised the question whether the alleged franchise attempted to be obtained from the township of Hamtramck was effective to convey any right beyond a revocable license in the highway. The city commenced said litigation very soon after receiving notification, apparently upon a bona fide claim that the alleged franchise was invalid. The case was contested in the circuit court, and the city was defeated. Upon the hearing in this court, counsel for the city insisted upon presenting the case and having it disposed of upon the merits; but, as counsel for defendant withdrew opposition, and in open court consented to a decree as prayed in the bill of complaint, the court declined to hear counsel, and entered the decree. We see no ground upon which we can say that this was not a decree upon the merits, binding upon all parties to the record and their privies. None of the present complainants were parties, but, in the absence of a statute affecting the question, we should not doubt that the decree was binding upon all of these complainants; but we think that 1 Comp. Laws 1897, § 441, is applicable. The complainants claim an interest in tbe street in the nature of an easement or servitude. It is based upon action by the township of Hamtramck, and, as no direct attack is made upon the validity of such action, and no defect pointed out either in the testimony or briefs, we must assume it to have been effective to convey to the Gratiot-Avenue Railway Company, and through it to the complainants, the right to maintain and operate a street railway upon this street according to its terms. This was an interest in land. See Post v. Pearsall, 22 Wend. 425; Tinicum Fishing Co. v. Carter, 61 Pa. St. 21 (100 Am. Dec. 597); Cadwalader v. Bailey, 17 R. I. 495 (23 Atl. 20, 14 L. R. A. 300); Goodrich v. Burbank, 12 Allen, 459 (90 Am. Dec. 161); Mayor, etc., of Knoxville v. Africa, 23 C. C. A. 252, 77 Fed. 501; Nellis v. Munson, 108 N. Y. 453 (15 N. E. 739); Pinkum v. City of Eau Claire, 81 Wis. 301 (51 N. W. 550); Huff v. McCauley, 53 Pa. St. 206 (91 Am. Dec. 203); Oswald v. Wolf, 126 Ill. 542 (19 N. E. 28); Tinker v. Forbes, 136 Ill. 221 (26 N. E. 503); Waggeman v. Village of North Peoria, 160 Ill. 277 (43 N. E. 347); Story v. Railroad Co., 90 N. Y. 122 (43 Am. Rep. 146); Hall v. Turner, 110 N. C. 292 (14 S. E. 791); Willoughby v. Lawrence, 116 Ill. 11 (4 N. E. 356, 56 Am. Rep. 758); Rascher v. Railway Co., 90 Mich. 415 (51 N. W. 463, 30 Am. St. Rep. 447); Laethem v. Railway Co., 100 Mich. 297 (58 N. W. 996); 2 Comp. Laws 1897, §§ 6446-6449; In re Citizens’ Pass. Ry. Co., 2 Pittsb. R. 10; Craig v. Railroad Co., 39 N. Y. 404. There is nothing upon the face of the record to show that they, or any of them, had actual notice of the pending proceedings at the time their interests were acquired; and, while we may think it improbable that they were ignorant of so notorious a fact as the litigation referred to, we cannot assume that they had notice, in the absence of proof. If they had, it would seem that the same might have been easily proved. In the absence of any attempt to do so, we must assume that .such proof could not be made. The statute (1 Comp. Laws 1897, § 441) requires the filing for record of a notice of the pendency of suit to render the filing of a bill constructive notice of the proceedings to any purchaser of real estate, thus practically abolishing the doctrine of lis pendens as to real property. See 2 Black, Judgm. § 550; 1 Freem. Judgm. §§ 191, 193, 198, 212.
We are of the opinion, therefore,-that the complainants are not bound by the decrees mentioned, and that they are entitled to have the cloud caused by such decrees removed, and their right to maintain and operate said road under the proceedings taken by the township of Hamtramck decreed, but subject to supervision and regulation by the city of Detroit in accordance with law. It will be decreed (in substantial conformity to the decree appealed from) that:
“The Detroit Citizens’ Street-Railway Company,and the Detroit Suburban Railway Company are entitled to continue to operate and maintain the railway on Gratiot avenue, between Sheridan avenue and the easterly limits of the city of Detroit, under the rights granted by the township board of the township of Hamtramck, as set forth in the bill of complaint in this cause.
“That the city of-Detroit, its officers and agents, be, and they are hereby, enjoined from interfering in any way with the maintenance and operation of said railway, particularly under any contracts for paving said Gratiot avenue which may have been made by the said city of Detroit: Provided, however, that said city may require the relaying and paving of said railway tracks contemporaneously with the paving of said street, but to be so relaid in the center thereof, so as to conform to the grade of said street when the same is repaved, in accordance with the terms of the paving and other ordinances of said city: And provided further, that this decree shall not interfere with nor limit the city in its general control over the maintenance and operation of said railway not inconsistent with the rights granted by said township of Hamtramck.
“That the said complainants recover of the defendant their costs to be taxed, and that they have execution therefor.”
The other Justices concurred. | [
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] |
Montgomery, C. J.
The case below was an appeal from the allowance of the account of William Johnston, administrator of the estate of William Johnston, Sr. The appeal was tried before Judge Waite and a jury. It was claimed by Mrs. Morton that the administrator should be charged with the appraised value of the personal property, instead of the proceeds of the sale thereof; that a certain $225 claimed to have been paid for a tax title should not be allowed; that a charge in this account of $75 for services should not be allowed, for the reason that the administrator agreed to act without compensation; and that $150 credit to the administrator, allowed in his first accounting, should be charged back to him, for the same reason. The court determined, as matter of law, under the proofs, that the administrator had no l'ight to sell the personal property, and charged his account with $761.50, the inventoried price, less $65,. which had been credited to the estate as the proceeds of the sale of the property. The questions whether there was an agreement by the administrator to serve without compensation, and whether the tax title was purchased for the benefit of the estate, were submitted to the jury. The first question was answered in the affirmative, and the latter in the negative. The court thereupon disallowed the item for tax title, and the charge of $75 for services in the present account, and also charged back $150 allowed for services in the earlier account.
It is claimed that the court should not have called a jury at all, as the case involves an accounting for services and allowances, which, are discretionary. But we are satisfied that it was proper to submit to the jury the distinct questions of fact which were decided. If there was an agreement to serve without compensation, no discretion of the court could be invoked in fixing the amount to be allowed. So, if the tax title was not bought for the benefit of the estate, it was not a proper charge. The case is in this respect unlike Gott v. Culp, 45 Mich. 265 (7 N. W. 767); Wisner v. Mobley's Estate, 70 Mich. 271 (38 N. W. 262); and the other cases cited by counsel for the administrator. That it is proper to submit a question of fact to a jury, see 1 Comp. Laws 1897, § 673; In re Stebbins' Estate, 94 Mich. 304 (54 N. W. 159, 34 Am. St. Rep. 345); Grovier v. Hall, 23 Mich. 7.
The contestant testified that the administrator procured her consent to his appointment as administrator by agreeing to act without compensation. The administrator offered in evidence a consent that he be appointed administrator in Canada, which was excluded as immaterial. This ruling was right. We fail to see how it tended to negative the testimony of contestant.
Personal property came into the hands of the administrator, inventoried at $761.50. In his account the estate was credited with but $65, proceeds of an auction sale of this property. It appears that in April, 1892, the administrator filed a petition, under section 9431, 3 Comp. Laws 1897, asking that he be authorized to sell the property at public or private sale. The probate judge-made an order that he sell “at private sale, at the best price obtainable.” The statute cited expressly provides that, in case an order to sell at auction be made, the court shall direct the mode of giving notice of the time and place of sale. This was not done in this case, nor was any notice of the intended sale given to the distributees. The administrator having sought authority and obtained it, he must be held bound to pursue the authority granted. It becomes unnecessary, therefore, to decide whether the situation of the estate was such as to justify an order of sale. Clearly, the adminis trator did not follow the authority granted. The circuit judge charged the administrator with the property at its inventoried price. We must assume that the court was of the opinion that this represented its value. This item will not be disturbed.
The jury having found that there was an agreement to administer the estate without compensation, the circuit judge disallowed the claim for compensation since the rendition of the last account, and also surcharged the account of the administrator with the item of $150 allowed in the first account for services. In any view, the item of $75 was open to dispute. Jacobson v. Miller, 41 Mich. 90 (1 N. W. 1013). And, as the jury found an agreement to act without compensation, we think the charge was properly disallowed.
Was the allowance of the first account so far tentative that the items are open to attack when no fraud is shown ? No claim is made that the parties were not notified of the hearing on this account, and the statute (3 Comp. Laws 1897, § 9441) requires such notice. We are cited to cases from other States holding that the allowance of an administrator’s annual account is only prima facie evidence of its correctness, but we find no case in which this is held under a statute like ours. The case of Musick v. Beebe, 17 Kan. 47, is illustrative. In that case it was held that there was a broad distinction between the allowance of the annual account and the final account. The reason given is that the annual accounts are allowed without notice to those interested, while notice of settlement of final accounts is required. As to the item for services included in the first account, we think the contestant should have made this objection thereto on the hearing of that account, and, failing to do so, she is concluded; it appearing that she was in no way misled by any fraud of the administrator. Had there been any omission of credit or concealment of assets, a different rule would apply.
The only remaining item is the charge for tax title obtained on property of the estate by the administrator, and taken in the name of another. The jury found that this title was not taken in the interest of the estate, and there was abundant evidence to justify the finding.
The account of the administrator will be credited with this item of $150, and, as he is charged with interest on this amount in his account, $53.15 of interest should be deducted; leaving the amount for which he should account to the estate $1,638.85, as of the date of the judgment below. The administrator will recover costs of this court, to be paid out of the funds in his hands. In all other respects the order of the circuit court is affirmed.
The other Justices concurred. | [
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Moore, J.
Prior to May, 1886, there was a four-story brick block, known as the “ McReynolds Block,” at the corner of Lyon and Canal streets, in- the city of Grand Rapids. The block had a frontage of about 80 feet on Canal street and 90 feet on Lyon street. The north half of the block is now owned by the Richmond estate. The south half was then owned by Edison and Tolford. In the center of the block, leading from Canal street, there was a stairway about 5£ feet wide, reaching to the second story of the block. This stairway was one-half on the south half, and one-half on the north half, of the block. The only access to the upper three stories of the block from Canal street was up this stairway. On the second story of the block was a rotunda reaching across the entire width of the two center stores. Immediately in front of the stairway from Canal street, but at the farther side of the rotunda, was a stairway leading to the third story of the building. A gallery running all around the rotunda enabled one to reach the rooms surrounding the rotunda in the third story. A flight of stairs on each side of the second stairway reached from the third to the fourth floor of the building, where there was a similar gallery to the one in the story below. The rotunda was lighted from the roof. In May, 1886, Calvin L. Ives bought the south store in this block, subject to a mortgage of $6,000, for the sum of $16,000, and a deed was executed and delivered to him on the 10th day of that month. The deed, in addition to conveying the south 19 feet and 9 inches of the block, contained the following provisions:
“Granting and conveying, also, for the consideration aforesaid, unto the party of the second part, his heirs, executors, administrators, and assigns, the further right and privilege, in case said block shall ever be destroyed by fire, of building, on the premises immediately north of the premises hereby conveyed, a stairway, both in front and rear, suitable for the building or buildings to be erected or rebuilt on the premises hereby conveyed and next immediately north .thereof, the center line of which said front and rear stairway (or cases) shall be exactly over and upon the north line of the premises hereby conveyed, which front and rear stairways shall be built and perpetually maintained at the mutual and proportional expense of the party of the second part hereto and George M. Edison, his heirs, executors, administrators, and assigns; hereby conveying an easement to the said party of the second part hereto in the premises north of the premises hereby conveyed, for the purpose above stated, and reserving to the said George M. Edison, his heirs, executors, administrators, and assigns, a like easement and privilege in the premises- hereby conveyed, upon á like contingency. ' Also, hereby quitclaiming to the party of the second part hereto, for all laudable and legitimate purposes, the free, perpetual, and uninterrupted use, for himself, family, friends, customers, and lessees, of the stairs and stairways now leading into the block of buildings known as the ‘McReynolds Block,’ in the said city of Grand Rapids, both front and rear, and all other stairs and stairways accessible from what is called the ‘rotunda’ in said building or block, with a like perpetual use for a passageway and for light of said so-called ‘rotunda’ aforesaid, and the passageways thereto and therefrom, except such passageways as lead to the private apartments in said building or block as belong to the parties owning the premises north of the premises conveyed in this deed. Also, hereby conveying the privilege and 'right to'hang, place, and suspend signs, pictures, etc., at the foot of said two flights of stairs hereinbefore mentioned, — said right to hang and place pictures, signs, etc., to be used in such a manner as not to interfere with or obstruct the travel up and down said stairs,— with a like right and privilege to suspend signs and pictures in the south half of said rotunda aforesaid in said building or block. Reserving to George M. Edison, his heirs, executors, administrators, and assigns, the right of use in common of the front entrance to the basement of said block, so that he, his lessees, his heirs, executors, and administrators, shall and may have a right of access to pass to and from the basement of the store next north of the premises hereby conveyed, and known as ‘No. 20 Canal Street.’”
After this deed was delivered, Mr. Ives took possession of the property; renting the first story as a store, and the upper rooms for offices and for other purposes. When this bill was filed, August 30, 1899, the oneTourth of the block next north of Mr. Ives was owned by the defendant Edison. The defendant May was a tenant of the Richmond estate, and occupied the north half of the first story as a double store. He also rented the store owned by Mr. Edison. He desired to take out the partition wall between this store and the double store then occupied by him, making one large room of the three stores, and to take out the center stairway, so that he would have but one entrance and a continuous front. He got the consent of Mr. Edison to remove the stairway from the center of the block, Mr. May proposing to put one somewhat narrower just adjoining the party wall between Mr. Ives and Mr. Edison; the whole of it to be upon the property owned by Mr. Edison. He sought the consent of Mr. Ives, but the latter refused to give it. Mr. Ives learned that Mr. May proposed to remove the stairway after he had refused his consent to its removal, and filed this bill on the 30th of August, 1899, to prevent his tearing out the center stairway. After it was filed, Mr. Ives died, and Mrs. Ives is now his representative in the proceeding. December 30, 1899, after a hearing, the bill was dismissed, with costs against complainant. An appeal was promptly taken by complainant.
After the decree was entered in the court below, the defendant treated the case as though it was finally adjudicated in his favor, and, as appears from affidavits filed with the briefs, has torn out the center stairway entirely, and has put in the stairway as already indicated. The proof taken before the circuit judge was contradictory as to whether the proposed change would seriously injure the complainant or not. It is urged here that, while defendant may not have had the legal right to do what he has done, the change is a beneficial one to the complainant, and, in any event, has not done her such an irreparable injury as to entitle her to the aid of a court of chancery, and her relief, if any, is in a court at law; citing Woods v. Early, 95 Va. 307 (28 S. E. 374); Johnston v. Hyde, 32 N. J. Eq. 453; McBryde v. Sayre, 86 Ala. 458 (5 South. 791, 3 L. R. A. 861); Trustees of Columbia College v. Thacher, 87 N. Y. 311 (41 Am. Rep. 365); Starkie v. Richmond, 155 Mass. 188 (29 N. E. 770).
We do not place the same interpretation as do the solicitors for the defendants upon the case of Woods v. Early, 95 Va. 307 (28 S. E. 374). In that case an injunction was granted by the court. In the opinion the following language was used:
“Mr. Justice Story says: ‘Where easements or servitudes are annexed by grant or covenant, or otherwise, to private estates, * * * the due enjoyment of them Will be protected against encroachments, by injunction.’ 2 Story, Eq. Jur. § 927.
“It was said by Judge Burks in Sanderlin v. Baxter, 76 Va. 305: ‘Damages in repeated suits would not compensate in such a case. The injury is irreparable, and calls for a preventive remedy, such as a court of equity only can furnish. That court constantly interposes by injunction where the injury is of that character. By the term “irreparable injury ” it is not meant that there must be no physical possibility of repairing the injury. All that is meant is that the injury would be a grievous one, or at least a material one, and not adequately reparable in damages.’ See, also, Kerr, Inj. 199; Manchester Cotton Mills v. Town of Manchester, 25 Grat. 825, 828; Switzer v. McCulloch, 76 Va. 777; Anderson v. Harvey's Heirs, 10 Grat. 386, 398; Rakes v. Manufacturing Co., (Va.) 22 S. E. 498, 499.”
In Johnston v. Hyde, 32 N. J. Eq. 446, cited by the counsel, the court granted an injunction, and stated:
“Mr. Johnston declares himself willing to put down through his grounds a culvert of such dimensions as the court shall direct. But without the consent of Mr. Hyde, and in the absence of any estoppel by acquiescence, the court cannot compel him to accept the substitution of a covered aqueduct for an open raceway.”
In the notes to this case is a collection of authorities holding that the easement cannot be changed without the consent of both the parties interested, even though the ■change would be beneficial, and in nearly all of the cases relief by injunction was granted. Merritt v. Parker, 1 N. J. Law, 460; Tillotson v. Smith, 32 N. H. 90 (64 Am. Dec. 355); Hulme v. Shreve, 4 N. J. Eq. 116; Dewey v. Bellows, 9 N. H. 282; Dickenson v. Canal Co., 15 Beav. 260.
In McBryde v. Sayre, 86 Ala. 458 (5 South. 791, 3 L. R. A. 861), it was made to appear that complainants had changed the use of the easement very materially from what it was when granted, and that the change was harmful to the servient estate. The court, under the circum. stances, declined to grant the writ of injunction, and left the parties to their remedy at law.
In the case of Starkie v. Richmond, 155 Mass. 188 (29 N. E. 770), the complainant did not move, after learning of the proposed trespass upon the passageway, until it was consummated by the erection of an expensive building. The court, under such circumstances, declined to interfere, but intimated pretty clearly that, if complainant had applied seasonably, the court would have compelled the moving of the building.
Counsel say the proposition is universally recognized that an injunction will be issued, in the discretion of the court, only when there is threatened an irreparable injury, or a continuing trespass or injury which cannot be compensated by damages in a suit at law, “and, in the exercise of this discretion, the court will examine into all the circumstances of the case, and if it is apparent that the relief sought is disproportionate to the nature and extent of the injury sustained, or likely to be,” or “if the injunction will cost the defendant many times more loss than the complainant will suffer, the court will not interfere; ” citing Hall v. Rood, 40 Mich. 46 (29 Am. Rep. 528); Pottery. Street Railway, 83 Mich. 297 (47 N. W. 217, 10 L. R. A. 176); Bentley v. Root, 19 R. I. 205 (32 Atl. 918); Wood v. Sutcliffe, 2 Sim. (N. S.) 163; Chapin v. Brown, 15 R. I. 579 (10 Atl. 639); Varney v. Pope, 60 Me. 192; Welton v. Martin, 7 Mo. 307; McElroy v. Goble, 6 Ohio St. 187; 2 Beach, Mod. Eq. Jur. § 713; and other cases.
An examination of these cases will show that each of them differs in some essential particular from the case at bar. In some of them the easement was not a private one created by deed. In others the injured party, after knowledge of the proposed trespass, remained inactive, and allowed a large expenditure of money to be made before invoking the aid of the court. In each of them it was made to appear that it would be inequitable for the equity court to interfere. But what are the facts in this case? Mr. Ives bought a valuable piece of property, and, as a' part of the purchase, he obtained an easement that he and his grantor regarded as essential for him to possess. In the same deed which conveyed to him the title in fee to the store, there was granted to him the easement. The deed was promptly recorded, thus giving notice to the world of what his rights were. He entered upon the use of the easement, and continued to use it for nearly 13 years. The defendant Edison joined in the deed to Mr. Ives, and received part of the consideration paid therefor. The defendant May knew what the rights of Mr. Ives were. He sought to obtain his consent to a relinquishment of his easement. Failing to obtain this, with the consent of Mr. Edison he determined to take away the easement of Mr. Ives, and substitute another in the place of it. Learning of his disposition to do this, the complainant invoked the aid of the court. While the case was awaiting a final determination, the defendant saw fit to ignore the rights of the complainant, and to ignore the legal proceedings, and proceeded to remove the stairway, and to substitute another in the place of it. To accomplish this wrong has cost the defendant a large sum of money; to restore the easement thus arbitrarily taken will cost another large sum of money; the aggregate of which sums is so large that it is now said it will be entirely disproportionate to the injury done the complainant, and for that reason the court should not grant relief. If such a contention • is to prevail, then indeed is the chancery-court shorn of its power to protect persons in their right of property. If this doctrine is to be sanctioned, the person engaged in large enterprises may seize, upon rights of less magnitude than his own, and, if an appeal is made to the law for protection, he may ignore the right of the injured and the pendency of the legal proceeding, and if he will put money enough into the new enterprise, before a final decree is entered, so that it will cost him much more to restore the right he has wrongfully taken than a jury may regard the right as worth, he may prevent the entering of any decree whatever against himself, and may mulct the person who has appealed to the courts to protect his rights, in costs. This does not appeal to our sense of justice.
The easement possessed by the complainant was created by deed. It imposed a servitude upon Mr. Edison’s land for the benefit of the estate of complainant, which, under the statute of frauds, could not be assigned, granted, or surrendered, unless by a writing or by operation of law. Washb. Easem. (4th Ed.) p. 300. It was taken for granted by defendant May that he could not move this stairway without the permission of Mr. Edison, who was the owner in fee of one-half of it; but the title in fee was no more sacred than the easement held by the complainant, created by a deed for which payment had been made. It is difficult to avoid the conclusion that if the easement to which complainant is entitled can be taken without her consent simply because defendant May will be benefited more than she will be damaged, for a like reason the title owned by Mr. Edison may be ignored. It is doubtless true that the parties ought to have been able to arrive at an amicable agreement; but, in the absence of such an agreement, the defendant had no more right to remove this stairway than he would have had to trespass upon any other portion of complainant’s estate in such a way as to deprive her of its use, and then say to her that he had provided for her another estate just as valuable, and with which she should be satisfied. I know of no law which will justify such an invasion of the rights of property belonging to one person, to serve the convenience or necessities of another. It is the duty of the courts to protect persons in their right of property, even though the holdings may be small, instead of justifying a trespass, or compelling the owner of the property to accept something else in the place of it. Gregory v. Nelson, 41 Cal. 278; Ritchey v. Welsh, 149 Ind. 214 (48 N. E. 1031, 40 L. R. A. 105). In this case a definite agreement was made between the complainant and her grantors for the use of this easement in the place it was then located. It is for her to say whether the agreement shall be preserved in its .integrity, and, before it can be changed, her consent must be obtained. Dickenson v. Canal Co., 15 Beav. 271; Hills v. Miller, 3 Paige, 254 (24 Am. Dec. 218).
In the case of Stock v. Township of Jefferson, 114 Mich. 357 (72 N. W. 132, 38 L. R. A. 355), the same argument was used that is urged by the solicitors for the defendants in this case. The court said:
“ It is the claim of the defendants that the loss to the complainant caused by the diversion of the water is trivial, while the damage the defendants would sustain if a permanent injunction is granted would be very great, and that therefore the injunction ought not to be allowed; citing Potter v. Street Railway, 83 Mich. 298 (47 N. W. 217, 10 L. R. A. 176), and cases there cited; Torrey v. Railroad Co., 18 N. J. Eq. 293; 10 Am. & Eng. Enc. Law, 799, and note; City of Logansport v. Uhl, 99 Ind. 539 (50 Am. Rep. 112). None of these authorities establish the doctrine that, where one trespassed against acts promptly after notice of the trespass, equity will not interfere, where the trespass is of a continuing nature and is irreparable in its character. An examination of these cases will show either that it was doubtful if any damage would be done, or the complainant had not acted promptly in appealing to equity. It does not appeal to one’s sense of justice to say that the exercise of a right possessed is not of as much benefit to the possessor as the taking of that right from the owner would be to the trespasser, and therefore the trespasser should be allowed to continue his trespass. * * * The defendants knew the complainant was opposed to what they did. He forbade their acts, and, when they continued them, he caused a copy of a decree made more than 40 years ago in favor of his grantors to be served upon them, and, when they paid no attention to all this, without unreasonable delay he appealed to the court. If they have expended considerable sums of money in committing this trespass, it is their own fault, and they must lose it. It is urged very earnestly by counsel that Mr. Stock’s right to maintain his dam, and to use the water that would naturally come to his mill, must give way to the right of the public to improve the highways, to drain lands, and to generally improve the country. It is sufficient reply to this argument to say that it has long been the fundamental law of the land that a man is not to be deprived of his property without due process of law and without compensation.”
Hall v. City of Ionia, 38 Mich. 493; Koopman v. Blodgett, 70 Mich. 610 (38 N. W. 649, 14 Am. St. Rep. 527); Haslett v. Shepherd, 85 Mich. 165 (48 N. W. 533); Lathrop v. Eisner, 93 Mich. 599 (53 N. W. 791); Walz v. Walz, 101 Mich. 167 (59 N. W. 431); Kent Furniture Manfg. Co. v. Long, 111 Mich. 383 (69 N. W. 657); Hall v. Nester, 122 Mich. 141 (80 N. W. 982); 1 High, Inj. § 804; Corning v. Nail Factory, 40 N. Y. 191; Jones, Easem. § 218; Gregory v. Nelson, 41 Cal. 278; Jaqui v. Johnson, 27 N. J. Eq. 526; Johnson v. Jaqui, Id. 552; Manning v. Railroad Co., 54 N. J. Eq. 46 (33 Atl. 802); Ritchey v. Welsh, 149 Ind. 214 (48 N. E. 1031, 40 L. R. A. 105); Washb. Easem. (4th Ed.) p. 300; 10 Am. & Eng. Enc. Law (2d Ed.), 429.
The circuit judge should have granted the injunction as prayed. It is doubtless true it will cost the defendant a good deal to restore to the complainant the easement as it existed when the suit was brought, but the defendant' alone is to blame for the situation. All the work done in the removal of this stairway has been done since this proceeding was begun. The defendant preferred to act without waiting for the court to determine the controversy. In doing so he acted at his peril, and is justly chargeable with the consequences. He should be required to restore the easement as it existed when this bill was filed. A decree will be entered in accordance with this opinion, with costs of both courts.
Montgomery, C. J., and Grant, J., concurred with Moore, J. | [
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] |
Montgomery, C. J.
Defendant is a physician, who, prior to September 21, 1891, had been engaged in the practice of his profession at Dansville, Mich. On the date stated he signed and delivered to complainant, who is also a physician, an agreement reading as follows:
“Dansville, Michigan, September 21, 1891.
“For value received, I hereby sell and turn over, on and after October 1, 1891, to J. F. Lemon, M. D., my good will in the practice of medicine in Dansville and vicinity, and agree to use my influence to introduce him to my patrons, and secure for him their patronage and influence, and that I will not re-enter into or engage in the practice of medicine here after October 1, 1891, without a written agreement with said J. F. Lemon.
“O. L: Randall, M. D.”
After this agreement was made, the defendant, in pursuance of its terms, introduced complainant to his patrons, and complainant entered upon the practice of his profession at Dansville. Defendant went to Florida, and remained through the winter, returning in the spring, and has since his return, from time to time, prescribed for and treated some of his former patients. The bill in this case was filed to restrain defendant from continuing his practice. From á decree in complainant’s favor, defendant appeals.
There was no dispute about the facts above stated, nor is it disputed that complainant paid the defendant $100 when the agreement was signed and delivered. The defense relied upon is that this instrument did not embody the whole agreement between the parties, and that, contemporaneously with the making of this agreement, Dr. Lemon entered into certain engagements, which he failed to keep. The testimony adduced by defendant tends to show that it was agreed that Dr. Lemon should move into one of Dr. Randall’s houses in Dansville, and pay rent at the rate of $1 per week, and that, if he continued to remain at Dansville, he should, within one year, purchase one of these houses at the price of $900, and in that event the $100 paid down should apply as part of the purchase money. Defendant testified that a written memorandum was drawn up by him to this effect, but that complainant declined to sign it, although admitting that it embraced the previous talk between the parties. Notwithstanding complainant’s refusal to sign the agreement, defendant permitted the agreement signed by him to stand, and did not seek to rescind, but acted upon it.
It is doubtful whether the defendant understood the promise of complainant as creating any obligation other than a moral one. In answer to the question in reference to the unsigned instrument, “You thought it would do just as well as though it was signed, so you kept it ?” defendant replied, “No; I didn’t think it would do just as well as though signed, but I kept it as a. matter of mem orandum.” But, assuming that defendant understood that there was a binding agreement on the part of complainant to purchase one or the other of these houses, it was an agreement void under the statute of frauds, and cannot be used as a defense. We do not overlook the cases which hold that, as a defense to a bill for specific performance, parol evidence is admissible to show that, by fraud, mistake, or surprise, the written agreement does not contain the real terms (2 White & T. Lead. Cas. Eq. p. 929 [* 496]; Chambers v. Livermore, 15 Mich. 381); but, as was said by Lord Justice Turner in Watson v. Marston, 4 De Gex, M. & G. 230,“The court does not refuse a specific performance on the arbitrary discretion of the judge; it must be satisfied that the agreement would not have been entered into if its true effect had been understood.” In the present case the defendant knew, at the time of the execution of the written agreement which complainant asserts, that the collateral agreement which is set up in the answer was not reduced to writing. The writing was signed by him with a full understanding of its terms. He now seeks in defense to avoid the force of the agreement, complete in itself, by setting up another parol agreement, void under the statute of frauds. This collateral contract was a mere nullity, and cannot be used for any purpose whatsoever. Scott v. Bush, 26 Mich. 418 (12 Am. Rep. 311).
The decree will be affirmed, with costs.
The other Justices concurred. | [
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] |
Grant, J.
(after stating the facts), There was an implied, warranty that the fountain was suitable for the purpose for which it was bought. Walter A. Wood Mowing & Reaping Machine Co. v. Gaertner, 55 Mich. 455 (21 N. W. 885); Little v. G. E. Van Syckle & Co., 115 Mich. 480 (73 N. W. 554); Blodget v. Detroit Safe Co., 76 Mich. 538 (43 N. W. 451). Evidence of a verbal ■warranty, such as would be implied by the contract itself, did not change the terms of the written instrument, and it was not error to admit it.
One Hutty put up the fountain, and was allowed to testify what, in his judgment, was the trouble with it. This was objected to upon the ground that witness was not shown to be qualified. Witness had testified that he had been in the soda-fountain business 20 years, and was acquainted with them, — with setting them up, and with their method of working. This was sufficient to justify the admission of the testimony.
Several errors are assigned upon the charge of the court and the refusal to give some of plaintiff’s requests. We find no error in the rulings. The charge contained a clear, concise, and correct statement of the law governing the case, which it is unnecessary here to repeat. It is familiar to the profession.
Judgment affirmed.
The other Justices concurred. | [
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Moore, J.
The respondent was convicted of murder in the first degree, and sentenced to the State prison for life. Two motions for a new trial were made before the circuit judge, both of which were overruled. The case is brought here by writ of error. Incorporated in the bill of exceptions are the affidavits and counter affidavits used in the motions for a new trial. The zeal of counsel on both sides has led them to make statements in their briefs not justified by the record.
In December last, Louis Buehler was employed in a factory near the river in the southwestern part of Saginaw. His home was reached by going through the settled por tion of the city, and was in the outskirts of the city, and in the northwestern part thereof, and about three miles from where he worked. The accompanying plat will help to explain the situation.
The respondent lived near Andre street, about half way between the factory and Buehler’s home. The father-in-law of the respondent lived in a shanty marked in the northeast portion of the plat.
On December 20th Mr. Buehler was paid at the factory two $5 bills and 89 cents in change, all of which were in an envelope when handed to him. It is the claim of the people that on his way home he stopped at Starkweather’s saloon, and got a flask filled with rum, and had got within 20 rods of home, when he was felled to th¿ ground by an irpn strap about 2 feet long and 2 inches wide, used to connect iron rails together, and having in the ends thereof holes through which to pass bolts; that a struggle ensued, when he was struck over the front of the head, fracturing his skull; that he either climbed over the fence or was thrown over; that he afterwards was partially revived by the rain, and attempted to crawl to his house upon his hands and knees, and was found by his mother in a dazed condition. He said that he had been pretty nearly killed by a man with a piece of iron, who had taken his money, but did not say who the man was. He was afterwards removed to a hospital, and two days later died. In this connection it is proper to say it is claimed on the part of respondent that Mr. Buehler was at this time sufficiently possessed of his mental faculties to give a coherent narrative of what occurred, and that the reason why he did not state who was his assailant was because he did not know the man; but we think a reading of the testimony indicates very clearly that he was in a dazed condition, soon became unconscious, and remained so until his death. The cap of Mr. Buehler, with much blood on it, and the iron bar, with blood upon it, were found inside the fence. The pay envelope was also found. It had been torn open, and the money removed. It was bloody. A pocketbook carried by Buehler was not found on his person. A flask corresponding to the one which had been filled at Starkweather’s was in Buehler’s side pocket.
It was the claim of the people that about 4 o’clock the respondent left the shanty of his father-in-law, going to a house near the factory, and leaving there about the time the factory closed, and a little later was seen by and talked with one Miller, and was also seen on Court street, going west, and still later was seen by Mrs. Streichert going west on Court street, five or six blocks from Buehler’s, and that Buehler was then a short distance ahead of him, and the respondent was walking fast, as though to overtake him. The respondent was arrested for the crime. There was a purse upon his person, in which there was a $5 bill and some change; and it is the claim of the .people that there was fresh blood upon the bill, and also fresh blood upon the coat of respondent. The respondent denied all knowledge of the crime, and claimed he went near the factory to see Miller, who owed him. Miller was sworn as a witness, and denied that he owed respondent. The respondent claimed that he had been possessed of the $5 bill for some time, and had kept it hidden at his house, so it should not be spent until he needed it for a definite purpose ; that, if there was blood upon it, that fact could be accounted for by his having recently filed a butcher’s saw, just from the meat-block, and also from his having recently cleaned fish, and also from the fact that he had recently had nosebleed.
The foregoing statement embraces the principal claims of the parties. Mr. Buehler was assaulted December 20th. He died on the 22d. The respondent was arraigned in court December 30th, and upon the same day his present counsel was assigned to him by the court. His trial was commenced January 6th. It is now said that respondent was railroaded into prison, and that the court erred in refusing to delay the case, and also erred in not summoning jurors from the vicinage. It is a reply to these claims that no application was made for a continuance, and there is nothing in the record to indicate any trouble whatever about getting a competent jury.
It is also said that the court erred in allowing names to be indorsed upon the information; counsel citing the case of People v. Casey, ante, 279 (82 N. W. 883). Instead of being an authority against what was done, it is an authority sustaining the action of the court. - The record shows that, on January 3d, counsel for respondent asked and obtained an order for the subpoenaing of 13 witnesses on his behalf at the expense of the State; and in the same order leave is given the prosecuting attorney, upon a motion heretofore made, to add three names to the information. The record does not disclose that any objection was made to this order, and, under the circumstances shown, it was a very proper order to make.
Error is assigned to the opening statement of the prosecuting attorney, for the reason that he did not prove all that he stated that he should. The opening was a very temperate statement of the case which the people expected to make. There is nothing to indicate that any statement was made except in the utmost good faith. A failure to prove all that the prosecuting attorney expected to prove is not a ground for reversing a case.
Errors are also assigned concerning the admission of testimony. We do not think that any of these are well taken, and but one of them calls for discussion. The respondent was called as a witness on his own behalf. On the cross-examination the following occurred:
“Q. Just take this iron bar and put it in your pocket. '
“A. Which one?
“Q. Either one: Put it in the outside pocket of your coat.
“Mr. Hurst: Don’t go any further until I make an objection. I want it stated on the record that the attorney for the people hands the prisoner ah iron bar, and asks him to put it into his pocket. The prisoner does it, and I make an objection. I object to that, may it please the court, as incompetent and immaterial. There is no evidence to show that this man was seen by a single person with anything of that kind about his person; the evidence all to the contrary. I say there is no evidence to base it' upon. It is incompetent and immaterial, and raises a presumption against this respondent.
“The Court: He may answer. (Exception.)
“Q. Put your hand down. This comes under your arm, — just goes under your arm?
“A. Yes; it would tear the pocket.
“Q. Just put it down in your trousers pocket. It is under your arm, ain’t it?-
“A. Yes, sir.”
It is said that this compelled the respondent to give evidence against himself, and was error; citing Stokes v. State, 5 Baxt. 619 (30 Am. Rep. 72), and Kerr, Hom. § 461. In Kerr on Homicide, supra, the author says: “No principle of law is better settled than that a person shall not be compelled to be a witness or compelled to testify against himself. This is a right guaranteed by the constitution in most, if not all, the States,”—‘citing Stokes v. State, supra. The case of Stokes v. State was referred to in State v. Ah Chuey, 14 Nev. 79 (33 Am. Rep. 530), and held not to be good law. In Walker v. State, 7 Tex. App. 245 (32 Am. Rep. 595), it was held that it was not compelling a respondent to give evidence against himself, within the, meaning of the law, to require him to make an impression in a soft substance, in order that said impression might be compared with a foot-print apparently connected with the homicide. See, also, State v. Graham, 74 N. C. 646 (21 Am. Rep. 493). In State v. Ah Chuey, on a question of personal identity, a witness testified that respondent had certain marks upon his person. The court compelled the respondent, against objection, to exhibit his person to the jury. See State v. Garrett, 71 N. C. 85 (17 Am. Rep. 1). None of these cases were cases in which the respondent offered himself as a witness. In State v. Graham the following language is used:
“If an officer who arrests one charged with an offense had no right to make the prisoner show the contents of his pocket, how could the broken knife, or the fragment of paper corresponding with the wadding, have been found ? If, when a prisoner is arrested for passing counterfeit money, the contents of his pockets are sacred from search, how can it ever appear whether or not he has on his person a large number of similar bills, which, if proved, is certainly evidence of the scienter? If an officer sees a pistol projecting from the pocket of a prisoner arrested for a fresh murder, may he not take out the pistol, against the prisoner’s consent, to see whether it appears to have been recently discharged ? Suppose it be a question as to the identity of the prisoner, whether a person whom a witness says he saw commit a murder, and the prisoner appears in court with a veil or a mask over his face; may not the court order its removal, in order that the witness may say whether or not he was the person whom he saw commit the crime? Would the robber whose face was marked with the wards of a key have been allowed to conceal his identity by wearing a mask during his trial ? ”
For a good many years in this State a respondent has been allowed to be sworn as a witness in his own behalf. 3 Comp. Laws 1897, § 10211. The respondent in People v. Glover, 71 Mich. 303 (38 N. W. 874), availed himself of that- privilege. It was a material inquiry in the case whether respondent had gonorrhea or not. He swore upon his direct examination that he did not have it. On the cross-examination he was compelled, against objection, to answer questions as to his physical condition, and why he had certain bottles of medicine in the jail, and for what purpose he used their contents. It was urged that requiring him tó answer these questions was to compel him to give evidence against himself, but the court held that no error was committed in requiring him to answer the questions. In People v. Howard, 73 Mich. 10 (40 N. W. 789), it is held that, when a respondent takes the witness-stand in his own behalf, he may be cross-examined the same as any other witness. It is true, a respondent cannot be required to testify against himself, but, when he becomes a witness in his own behalf, if he can throw any light upon the transaction it is his duty to do so. Speaking for myself, even if the question is properly here, I have no hesitancy in saying that, in view of the fact that respondent was a witness, the court did not err in what was done. One of my associates suggests that counsel did not assign as a reason for his objection that the effect of what the respondent was required to do was to give evidence against himself, and that fairness to the'tidal judge required this to be done, and," not having been done, his failure to act according to a suggestion not made is not reversible error. There is much force in this- suggestion. There is another reason why the case ought not to be reversed because of what occurred at this time. It was the claim of the people that the respondent struck the deceased from behind with the bar of iron; that he had procured it before this, and, allowing the lower end to rest in his pocket, and the upper portion in his coat-sleeve or beneath his coat, had thus concealed it from view; and it was to show the possibility of this having occurred that the request was made of respondent. The prosecutor might have made the illustration just as effective by using the iron plate in the same way in his own coat or trousers pocket, and it would have been competent for him to do so, and this would be no more prejudicial to the respondent than what was actually done. If it was an error, it was error without prejudice.
Upon the closing argument of the prosecuting attorney the following occurred:
“Mr. Eaton: If this man goes free, no jury sitting in this box will find the murderer of Louis Buehler.
“Mr. Hurst: I take exception to that remark.
“ The Court: Don’t interrupt counsel’s argument.”
It is very strenuously insisted that this was an expression by the prosecuting attorney of his opinion of the guilt of the respondent, and that the reply of the judge to counsel was improper, and for these reasons, if none other, a new trial ought to be granted. This court has repeatedly expressed itself as to the impropriety of the prosecuting attorney expressing to the jury his personal opinion as to disputed facts (People v. Quick, 58 Mich. 321 [25 N. W. 302]; People v. Dane, 59 Mich. 550 [26 N. W. 781]; People v. McGuire, 89 Mich. 64 [50 N. W. 786]); but it has never been held that he may not say to the jury that certain testimony in the case impresses him with the belief that the respondent is guilty, and why it so impresses him (People v. Welch, 80 Mich. 616 [45 N. W. 482]). In People v. Hess, 85 Mich. 128 (48 N. W. 181), Justice Morse, speaking for the court, said:
“ It is not proper for the prosecuting officer to tell the jury that he believes the defendant guilty, as his belief is not evidence in the case; but he has the right to argue from the testimony that the defendant is guilty, and to state to them what evidence before them convinces him, and should convince them, of such guilt. To deny to a prosecuting officer this privilege would be to deny to him the right to place before the jury the logic of the testimony which leads his mind to the inevitable conclusion of guilt, and which he has the right to presume will lead them to the same conclusion if they view it as he does; and he has, I think, the right to state that he stands unbiased between the people and the respondent, as we have often said he ought to stand.”
An isolated sentence is taken from the argument of the prosecuting attorney, without showing the connection in which it was used. Counsel for respondent requested the court to take the case from the jury for the reason that no competent testimony showed beyond a reasonable doubt the guilt of the respondent. He doubtless argued in the court below to the jury, with great zeal, as he argues here, the truth of that proposition. Was it not competent for the prosecuting attorney, in reply to this argument, to call' the attention of the jury to the testimony tending to show that respondent, without any adequate reason, was near the factory when Mr. Buehler received his pay; that he was seen at several points in the route between the factory and where Mr. Buehler was found; that Mrs. Streichert saw him apparently seeking to overtake Buehler when but a few blocks from, where the latter was soon found badly hurt and with his money gone; that, after Buehler was found, the bloody envelope, the bloody cap, and the bloody bar of iron were found, and soon the respondent was put under arrest; that fresh blood was found upon his clothing; that in his possession was found a bill corresponding in denomination to one paid to Buehler but a few hours before, upon which there was fresh blood, — and, after reviewing this testimony, say to the jury, “If this man goes free, no jury sitting in this bos will find the murderer of Louis Buehler ? ” I think this statement was but a logical summing up of the effect of the testimony, and was entirely proper. The trial judge might have treated counsel more courteously, and should not have been so impatient as the brief extract we have taken from the record indicates he was. An examination of the record, however, shows he was not wholly without excuse for his impatience. The record abounds in objections, many of them of a trivial character; but, taken as an entirety, the record impresses us with the fact that a careful and impartial trial was given the accused.
We are strongly urged to reverse the case because the trial court did not grant a new trial. Under the provisions of Act No. 134, Pub. Acts 1893, we have no doubt of our power to review the action of the circuit judge in refusing a new trial, and in a proper case it would be our duty to do so. In this case the trial judge saw the witnesses who were sworn, and he doubtless knew many of those whose affidavits were filed both for and against a new trial, and would possess better means of deciding upon the weight to be given to these affidavits. A careful reading of the record, the affidavits, and the counter affidavits does not satisfy us that the trial court erred in the exercise of his discretion in refusing a new trial.
Judgment of the court below is affirmed.
The other Justices concurred. | [
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] |
Montgomery, C. J.
This is a bill filed to enforce two mechanic’s liens. Complainant in June, 1897, entered into a written contract to furnish to defendant company a steel gas-holding tank, “all delivered and erected on foundations” provided by defendant company, to be paid for, 50 per cent, on delivery of materials, 25 per cent, during erection, balance on completion and satisfactory test. The claim of lien filed with the register of deeds states that the last of the material was furnished on the 27th of November, 1897, and the last of the labor was performed on the 30th day of November, 1897. Complainant is also assignee of the Van Bochove & Sons Manufacturing Company,, which company filed notice of a lien for window frames, sash, and doors sold to the defendant company, to be used in a building on its premises. From a decree declaring a lien in favor of complainant under both claims, defendants appeal.
It is claimed that the bill in this case was not in season to preserve the lien under the contract with the Kerr-Murray Manufacturing Company, as the contract was made when the statute of 1893 was in force, providing that liens shall continue six months after filing claim of lien with the register of deeds, and no longer, unless proceedings are begun, etc. As this lien must be disposed of on other grounds, we do not find it necessary to determine whether the amendment of 1897, fixing the period of one year, controls in this case. This objection has no application to the claim of the Van Bochove & Sons Manufacturing Company, as its claim arose after the law of 1897 took effect.
It appears that no notice was served on defendant company stating the names of subcontractors, laborers, or material men, as required by section 4 of the act (3 Comp. Laws 1897, § 10713), which provides:
“The original contractor shall, whenever any payment of money shall become clue from the owner, part owner, or lessee, or whenever he desires to draw any money from the owner, part owner, or lessee on such contract, make out and give to the owner, part owner, or lessee, or his agent, a statement under oath of the number and names of every subcontractor or laborer in his employ, and of every person furnishing materials, giving the amount, if anything, which is due or to become due to them or any of them for work done or materials furnished; and the owner, part owner, or lessee, or his agent, may retain, out of any money then due or to become due to the contractor, an amount sufficient to pay all demands that"are due or to become due to such subcontractors, laborers, and material men, as shown by the contractor’s statement, and pay the same to them according to their respective rights, and all payments so made shall, as between such owner, part owner, or lessee and such contractor, be considered the same as if paid to such original contractor. Until the statement provided for in this section is made in manner and form as herein provided, the contractor shall have no right of action or lien against the owner) part owner, or lessee on account of such contract.”
It is stated in complainant’s brief that the record is silent as .to whether such a notice was or was not served; but counsel evidently overlook the testimony of complainant’s witness Hackius, who testified as follows: “We never served any notices on defendant company, nor filed on record any notices, except these that have been offered in evidence.” No notice or statement such as required by section 4 was offered in evidence, and we think the testimony, fairly construed, shows that none was served. This being so, it follows that the complainant is not in a position to assert a lien, unless we say that it was not a contractor, but a material man, or that defendants are in some way estopped from asserting this defense. Sterner v. Haas, 108 Mich. 488 (66 N. W. 348); Wiltsie v. Harvey, 114 Mich. 131 (72 N. W. 134); Dittmer v. Bath, 117 Mich. 571 (76 N. W. 89). It is insisted by complainant’s counsel that the record shows that there are no other parties than the complainant interested, and hence that there was no necessity for a notice. It will be noticed that the section quoted requires notice by the contractor of the names of laborers in his employ, and while this notice is not required from a material man, as distinguished from a contractor, and perhaps not of a contractor as to work expended on material before it is devoted to use under the contract, yet when, by the terms of the contract, labor is to be expended on the premises, it is clear that this statement is required. Sterner v. Haas, supra. In this case it appears by the contract itself that labor was to be expended tin the premises. It also appears by the statement of lien that labor was in fact performed after the last of the material was furnished. The complainant was a contractor, within the meaning of the statute, and we feel constrained to hold that, because of the omission to comply with this statute, it is not entitled to a lien for the work done under this contract.
A different state of facts exists as to the claim of the Van Bochove & Sons Manufacturing Company. The record shows that they were material men selling material manufactured in their own shops, and not contráctors or subcontractors. Sterner v. Haas, supra. The lien of the Van Bochove & Sons Manufacturing Company is valid.
The claim of defendant mortgagees to priority over the lien of the Van Bochove & Sons Manufacturing Company is answered against the contention of defendants’ counsel by the case of Kay v. Towsley, 113 Mich. 281 (71 N. W. 490).
Decree will be modified to conform to the views herein expressed. Appellants will recover costs of this court.
The other Justices concurred. | [
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Per Curiam.
A motion is made to dismiss an appeal from an order overruling a demurrer in chancery. Two grounds are urged:
1. That the order was not an appealable one.
2. That no bond was given.
The statute authorizes an appeal from an order overruling a general demurrer. 1 Comp. Laws 1897, § 549. The rule requiring a specification of cause in all demurrers does not abrogate or enlarge this statute. Appeals may still be taken from an order overruling a demurrer which prior to the rule might have been general. Greenley v. Hovey, 115 Mich. 504 (73 N. W. 808); Robinson v. Kunkleman, 117 Mich. 193 (75 N. W. 451). The ground of demurrer assigned is that the bill was not sworn to. This might have been ground for a general demurrer prior to the adoption of the present rule. 1 Daniell, Ch. Prac. (6th Am. Ed.) 587; 6 Enc. Pl. & Prac. 410.
By an amendment to the statute (1 Comp. Laws 1897, § 550) in 1899, a hond on an appeal is not required, except where a stay of proceedings is sought. Act No. 243, Pub. Acts 1899.
The motion must be denied. | [
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] |
Hooker, J.
On December 9th, Tuckey made an application in writing for insurance in the defendant com- party upon his gristmill, — $1,000 upon the mill building, and $1,000 on machinery, tools, implements, and fixtures therein. The application was in the handwriting of the insured, and was signed by him. It contained the following :
‘ ‘ What is the present cash value of the property to be insured, exclusive of land and property not specified? $10,000. * * _*
‘' How much insurance is there now on this property? None.
“ Give schedule of all insurance on back hereof. What will be the total insurance on the buildings, machinery, boilers, and engine ? $2,000. * * * #
“And the undersigned applicant hereby warrants that the above is a just, full, and true exposition of the facts and circumstances in regard to the property to be insured, and is and shall be considered as the basis on which insurance is to be effected and continued in force; and the same is understood as incorporated in, and forming a part and parcel of, the policy, as a continuing warranty during the life of such policy.”
The policy issued to Tuckey, and was made payable to Allan Shelden, the plaintiff, as his mortgage interest might appear. Shelden received the policy soon after its issue. It contained the following conditions:
“ Reference is made to assured’s application and survey on file in the office of this company, which is made part of this policy. * * * This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof. * * * This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy. * * * If an application, survey, plan, or description of property be referred to in this policy, it shall be a part of this contract and a warranty by the insured.”
On the day that the policy was issued, the defendant’s secretary sent to the plaintiff, Shelden, a letter of which the following is a copy:
“Lansing, Mich., Dec. 9, 1895.
“Allan Shelden & Co.,
“Detroit, Mich.
“ Gentlemen: We today received from Mr. Tuckey application for insurance in this company, and, in accordance with the same, have today sent him our policy No. 02,887, for $2,000, which you, no doubt, will receive in a day or two. You will notice, by examining the policy, that we have not permitted any other insurance besides this $2,000. This, I presume, you will understand without your attention being called to it; but, as I did not wish any misunderstanding in the matter, I mention it now.' Very truly yours,
“A. T. Davis, Secretary.
“B.”
This letter was produced by the plaintiff upon the trial, and we understand that it is not denied that he received it seasonably.
On December 15, 1897, Tuckey took other insurance on both mill and machinery. It is admitted that no permit for other insurance was ever indorsed upon the defendant’s policy, and it is not claimed that any written or oral permit was given. On January 1st defendant assessed the policy $24, which was paid January 23d. March 2, 1898, the property was burned, and the same day Tuckey gave defendant written notice of the loss. Defendant answered that its man would be there the following week. He did not go, and on March 8, 1898, Tuckey wrote defendant again as to his coming, and in this letter said : “Mr. Sage, from the Concordia Co., was here today.” On receipt of this letter on March 10, 1898, defendant wrote Tuckey that its man was sick and could not go immediately, and inquired the particulars as to other insurance, if any. March 11th Tuckey wrote, stating particulars as to other insurance. No adjuster was sent, and on March 29, 1898, the following letter was sent to Tuckey by defendant’s secretary:
“Michigan Millers’ Mutual Fire-Insurance Co.,
“Lansing, Mich.
“March 29, 1898.
“Mr. E. C. Tucket,
“Byron, Mich.
“ Dear Sir: I have to acknowledge your favors of March 11th and March 21st, by which I am for the first time advised that you had insurance' on your mill other and in addition to our policy. As this other insurance was procured by you after our policy was issued, and without a permit therefor indorsed on our policy, by condition of the contract our policy was terminated when the other insurance was takv\^out, and there is no liability on our policy for your loss. "You are therefore respectfully advised that we will not send adjuster; neither do we advise you to go to any expense or trouble in making claim against this company.
“ Respectfully yours,
“A.’T. Davis, Secy.”
April 25, 1898, Tuckey submitted proofs of loss, in which he claimed the sound value of the insured property to be $7,348.51. On May 3, 1898, these proofs were returned, and the claim made that there was a breach of the warranty as to value of the premises. August 31, 1898, the policy was assigned to the plaintiff, and this action was begun in October. The defense was based on “(1) other insurance without permission, contrary to warranty in application and to condition in policy; (2) overvaluation in application.” The plaintiff claimed (1) waiver of breach on account of other insurance; (2) that there was no overvaluation. Counsel for the appellee admits that there was a breach of the condition as to other insurance, which is fatal, unless the objection was waived. The defendant concedes that if its secretary had notice of this breach, and, with such knowledge, levied' an assessment and received payment of the same thereafter, it is estopped from setting up such breach. It contends that there was no competent evidence that the company or any of its officers had notice of other insurance until after the fire.
Tuckey testified that, as soon as he received the Concordia policy, he mailed a letter to A. T. Davis, secretary of the defendant company, at Lansing, Mich., in a return envelope, postage prepaid, notifying him that he had such insurance. This was not notice, unless the letter was received. He does not say that it was not returned. This testimony was taken under the objection that, if Davis received the letter, that fact was equally within his knowledge, and, he being dead, the testimony of the plaintiff tending to prove it was inadmissible. It was insistéd by the plaintiff that it was competent to show the mailing of the letter, because that fact was not equally within Davis’ knowledge, and the fact of mailing, proved by Tuckey, helped out by the presumption that a letter mailed reached its destination, is prima facie evidence of its reception, although the witness could not have testified to its delivery to Davis; that fact being, in such case, equally within Davis’ knowledge. Defendant denied the receipt of such a letter, and the witness was permitted to state its contents, against defendant’s objection. Subsequently Mr. Baker and a lady clerk, who were shown to be the only assistants of Mr. Davis in the home office of the company, testified that it was improbable, but possible, that Davis might have received this letter without their knowledge, and that, if he had done so, it would have been filed in the office, but that they had never seen such letter, though each had searched for, and examined every paper in the office for, it, after notice to produce it. The court took the view that, if Davis did not receive the letter, it was not equally within his knowledge, and, if he did receive it, the witness was not disqualified, because the jury were at liberty to find from the testimony of Baker, to the effect that it would be filed if received, that the other officers of the company saw the letter, and knew its contents. He charged the jury as follows:
“The circumstances which the plaintiff claims constitute a waiver in regard to the extra insurance are these: The plaintiff claims that, when this additional insurance was taken out, he wrote a letter to the defendant com pany, in which he informed it of the fact that he had taken out this. insurance. That letter was objected to upon the ground that this matter was equally within the knowledge of the secretary of the company, Mr. Davis, and, therefore, that it was not admissible. That is the law, gentlemen of the jury, that when a person, even if he is an officer of the corporation (the statute expressly says so), that if he dies, and this matter is in his knowledge solely, not equally within the knowledge of other officers of the corporation, the testimony in regard to it would be excluded, because there is one man alive to state the thing, and the other man who knew it is dead, and the living man is not allowed to take advantage of his knowledge, when the dead man is not alive to refute his testimony. But I have admitted this testimony for another reason, — for the reason that I do not think it violates this statute at all, for the reason that the writing of this letter and the mailing of this letter were not necessarily equally within the knowledge of this man Davis. Certainly the writing of the letter was not, the mailing of the letter was not, and, if he did not receive the letter, it was not. If he did receive it, it would be equally within his knowledge; that is, the contents of the letter were. But that letter was also filed, and was the property of the company, and the contents of that letter would survive the death of Mr. Davis, and would be equally within their knowledge, if it ever got into the possession of the insurance company. It has been testified to here that they preserved all their letters and correspondence in regard to matters of this kind. It would not solely be within the knowledge of Davis, and therefore it does not apply.”
He also said to the jury that, if they should find that Davis did not receive the letter, plaintiff could not recover. We must assume that they found that he did receive it, from the fact that they found a verdict for the plaintiff.
The learned • judge had told the jury that, if Davis did receive the letter, the contents were equally within his knowledge as within that of the writer; but he permitted them to find a verdict upon Tuckey’s testimony, upon the theory that it was admissible if other officers of the company had knowledge of the contents. That theory was correct under the statute, but there was no testimony that warranted the conclusion that it was or might be within the knowledge of any other officer. Baker and the clerk are shown to have been the only persons who had to do with these files, or the business of the office, aside from Davis. Both swear they never saw it, and that, although searched for in the files, it was not there. It is only by accepting Baker’s testimony as to the practice of filing letters, and basing a presumption upon it that is in conflict with their positive evidence that this letter never did come to the knowledge of the officers, and that it was not in the files, which was disregarded, that this verdict can be justified. So, if it be conceded that there can be a presumption that the letter was received, we are of the opinion that the proof of the contents was inadmissible, or, if admissible when offered, should have been withdrawn from the jury when it was conclusively, shown that the letter was not within the knowledge of, or accessible to, defendant’s officers. We think this charge was in violation of the statute.
We may add that it was error for the court to instruct the jury that “the letter was filed, and the contents would survive the death of Davis, and would be equally within the knowledge of other officers if it ever got into possession of the company.” It was in the possession of the company if Davis ever received it, but not necessarily within their knowledge as to its contents.
It is also claimed that by excusing the delay on the part of the adjuster, and failing to deny its liability at once when informed that “the Concordia man was there,” defendant waived this point. That letter contained no distinct information regarding other insurance, and called for no such immediate action. Defendant had the right to inquire into the facts before announcing its determination. There is no just claim of estoppel in regard to the delay of eight days.
The court instructed the jury that if the valuation in the policy was an honest one, and not grossly overestimated, it would not avoid the policy, but that if Tuckey over estimated the property knowingly, for the purpose of procuring a larger insurance than he was entitled to, he should not recover. The valuation was made a warranty, and, under the authorities, a substantial overvaluation would avoid it, irrespective of motive, as shown by the following cases cited by counsel: American Ins. Co. v. Gilbert, 27 Mich. 429; Van Buren v. Insurance Co., 28 Mich. 398; Ætna Ins. Co. v. Resh, 40 Mich. 241; Briggs v. Insurance Co., 65 Mich. 55, 56 (31 N. W. 616). See, also, Niles v. Insurance Co., 119 Mich. 252 (77 N. W. 933). We think this rule was not changed by Act No. 167, Pub. Acts 1897.
The judgment is reversed, and a new trial ordered.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). It is conceded that the sidewalk itself was properly constructed, and was in a safe condition for public travel. It was only made unsafe by the ice caused by the water flowing from a private hydrant. Counsel for defendant contend that the statute does not cover this case. Counsel for the plaintiff contend that, since the icy condition was not caused by the elements, the city is liable for the condition. It is unnecessary to determine this question, since there is another fatal objection tó the plaintiff’s right to recover.
It is conceded that the defendant city had no actual notice. Under plaintiff’s own evidence, the ice had been there but three days before the accident. It is not shown that any officer of the city, charged with the duty to see that the sidewalks were kept in safe condition for public travel, had been along this street during that time, or that its condition was a matter of public talk. Nothing had occurred to call the attention of an officer there any more than to any other part of the city. The city officials had the right to assume that no citizen would be guilty of so careless an act as to leave his hydrant open, and let the water flow over the sidewalk. Neither the plaintiff herself, nor any member of her household, though they lived within a few feet, appears to have known anything about its condition. If neither she nor they knew anything about it, why should the officers of the city be presumed to have known it from the fact of its existence for three days ? There had been a snow the night before, and covered it up. The city might lawfully assume that this sidewalk would remain in good condition, and that no private citizen would do any act to render it unsafe. The city was under no legal obligation to eihploy men to patrol the streets to see that such things were not done, or to remedy them when done. The record utterly fails to show a condition of affairs so notorious that a jury might infer notice to the corporation. There are many miles of sidewalk in the city of Ann Arbor. In support of their contention that the city should have known it, counsel for plaintiff say, “The place of the accident was but a few blocks from the business portion of the city.” What do they mean by “a few blocks,”- — -three, four, or five? For all that appears upon this record, it might have been a half mile from the principal business streets of the city. But this cannot make any difference. It was off the business streets, and there was no occasion for any officer of the .city to go there until in some manner notified of the condition. Moon v. City of Ionia, 81 Mich. 635, 642 (46 N. W. 25), is directly in point, and controls this case. The defendant in that case claimed that the walk was repaired August 15th. Plaintiff was injured on the 18th. It was held that, if this was so, actual notice of the defect was necessary. See, also, Smith v. City of Brooklyn, 36 Hun, 224.
Judgment reversed, and a new trial ordered.
The other Justices concurred. | [
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Moore, J.
The plaintiff recovered a judgment against defendant, from which judgment the case is brought here by writ of error. There are a good many assignments of error, but few of which we deem of sufficient importance to merit discussion.
The defendant’s railroad runs east and west, crossing the Cincinnati Northern road at Addison Junction. There is a small passenger station west of the Cincinnati Northern road, and north of the defendant’s road. There is a small freight station immediately east of the Cincinnati Northern road, and south of the defendant’s road, and not far from its track. Nearly all the freight handled at this freight house is transferred from one. road to the other. At a point east of the intersection of these two roads, at a distance not very accurately disclosed by the record, but variously stated by the witnesses to be from 30 to 80 rods,' a highway crosses the defendant’s road at right angles. West of this highway, at a distance variously stated at 10 or 20 rods, there is a Y extending from the defendant’s road in a northwesterly direction to the Cincinnati Northern road. At the highway crossing, cattle-guards have been put in, and the right of way has been fenced east of said highway. Two freight trains and two passenger trains are run over the defendant’s road each way daily. It is the claim of the plaintiff that the east cattle-guard was not kept in repair, but cinders and other things were allowed to accumulate between the slats or joists, until cattle could readily pass from the highway, over the cattle-guard, upon the defendant’s right of way. His cattle escaped from his field into the highway, and, passing over the cattle-guard, were killed.
The first point calling for discussion relates to the sufficiency of the declaration. It contained an allegation reading as follows:
“And that said guard was out of repair, in this, to wit: That there was no appearance of a pit beneath the joists constituting the said cattle-guard; that the ballast had not been excavated from between the ties upon which said guard rested; that the ballast had not been excavated from between the joists of said cattle-guard; that sand and gravel completely filled the spaces between the said joists, so that the said guard offered no resistance to cattle going over it; and that the said joists constituting said cattle-guard were too far apart; and that said joists were too small to make the same a legal cattle-guard.”
The testimony of the plaintiff tended to show that the spaces between the joists had become filled by allowing cinders to accumulate therein. It is said that cinders are not ballast, and are not sand and gravel, and that the declaration was not specific enough; citing McDonald v. Railway Co., 51 Mich. 628 (17 N. W. 210), and Smead v. Railway Co., 58 Mich. 202 (24 N. W. 761). These cases do not sustain the contention of counsel; but, to avoid any question about the declaration, the plaintiff obtained leave to amend it by inserting the word “cinders” therein. Under our statute of amendments, it was entirely compe’ tent for the court to allow this amendment.
It was claimed on the part of the defendant that it put in a cattle-guard approved by the railroad commissioner, and kept it in good repair, and therefore it was not liable. Whether the cattle-guard was in repair or not was a dis* puted question, in relation to which much evidence was given upon both sides. The court charged the jury as follows:
“You are further instructed, gentlemen, that if you find from the evidence in this case that the guards in question were not such guards as were approved by the railroad commissioner, or that they were not placed down as required by the railroad commissioner, under his plans and specifications submitted here, then you would find the defendant liable, under further instructions that I will give you. Or if you find that they were such guards, and were so placed, as required by the plans and specifications approved by the commissioner of railroads, but that the company had negligently failed to keep such guards in repair, then you will find them liable. When I say ‘ keep them in repair,’ I mean in good and sufficient repair, so they would serve the purpose for which they were placed there. I do not mean that, if you find they were in that condition, they would be liable, but you must further find that this injury was occasioned because of such defect, if you find it. In other words, gentlemen, if you find that the guards in question are such as are approved, and further find that the company negligently failed to beep the same in repair (that is, negligently permitted them to fill up between the slats with cinders, ballast, or dirt), and that these cattle went upon the railroad track, over these guards so out of repair, and that the injury was occasioned by such want of repair, then the defendant would be liable. If, on the other hand, you do not find these things to be true, then they would not be liable; that is, if you find that the guards were in repair, the company would not be liable, or, if you find that the injury was not occasioned because of the want of repair, then the company would not be liable.”
We think this was a sufficiently favorable instruction. 2 Comp. Laws 1897, § 6294, and cases cited in note thereto.
The judge was asked to cüarge the jury as follows:
“Under the pleadings and proofs in this case, before the plaintiff can recover you must be satisfied that these cattle of plaintiff got upon the railroad of defendant, and across the guard in question, without any negligence on the part of plaintiff contributory to said animals getting upon said railroad and over said guards.”
Because lie declined to do so, it is said to be error. The court did not err in his refusal to give this request Flint, etc., R. Co. v. Lull, 28 Mich. 510; La Flamme v. Railway Co., 109 Mich. 509 (67 N. W. 556).
It is said that this highway was within the yard limits, and the company was not bound to maintain a culvert at all at this point; citing Flint, etc., R. Co. v. Lull, 28 Mich. 510; Chicago, etc., R. Co. v. Campbell, 47 Mich. 265 (11 N. W. 152); McGrath v. Railroad Co., 57 Mich. 555 (24 N. W. 854); Rinear v. Railroad Co., 70 Mich. 620 (38 N. W. 599); Grondin v. Railway Co., 100 Mich. 598 (59 N. W. 229); McDonald v. Railway Co., 113 Mich. 484 (71 N. W. 859); Schneekloth v. Railway Co., 108 Mich. 1 (65 N. W. 663); Fuller v. Railway Co., 108 Mich. 690 (66 N. W. 593). It is no longer an open question in this State that railroad companies are not bound to fence their station grounds. So far as these cases are applicable at all to the facts disclosed in this record, they are against the contention of the defendant. They hold that the statute requires a railroad company to fence its track and to put in cattle-guards at road crossings, but this requirement has no reference to station grounds; the exemption from this requirement applying to cases where the common convenience of the public and the railway company require that the place should be open for the transaction of their mutual business. At the place in controversy the public was not admitted at all. The right of way was fenced. The company put in a cattle-guard, and claimed that it maintained it in good order. Prior to this accident the company did not proceed upon the theory that it was not required to fence its right of way and maintain a cattle-guard at this place, but, on the contrary, did both, and upon the trial claimed by way of defense that it did both so well as to meet the requirements of the statute. The station was from 30 to 80 rods from this crossing. The public had no access to the right of way or to the station grounds or to the freight depot at this place, and the exception to the requirements of the statute does not apply here.
During the progress of the trial the following occurred:
“During the course of Mr. Smith’s argument to the jury, Mr. Bean interrupted him with a suggestion, to which Mr. Bird, counsel for plaintiff, objected, and thereupon the following colloquy took place:
“Mr. Bean: During the time my associate is making an argument, may I not make a suggestion to him from the table ?
“The Court: I will make a record of this question that is now raised. I do not think it is proper for counsel to sit clear back where the attorneys sit, and speak to their associates when addressing the jury, — clear across the room, a distance of 10 feet.
“Mr. Bean: Can I not do it while sitting at my table ? That is what I want settled. I do it with all due respect to the court, but I contend that, when my associate is making an argument, I may make a suggestion to him, — just one word, to give him the idea.
‘ ‘Mr. Smith: And, as a part of it, I want to say that it interrupts me less to have Mr. Bean speak to me out loud than it does to whisper to me. I am sometimes unable to catch it when he whispers to me.
“The Court: I repeat it, because it results in two counsel talking at the same time, and it is very confusing in the court-room. You may assist counsel all that you desire, but in the way I suggest.”
It is said that this is error, and counsel argue seriously that they should be permitted to use their own judgment as to the manner of the argument, and that they were prevented from making their argument in accordance with their ideas of the most effective manner of doing so. They say in their brief:
‘ ‘ The matter may not be so important in this case, since the court substantially declined to submit the claims of defendant to the jury. At the same time, the question continually arises in our court, and we think that this court should determine what our rights are in the premises.”
The action of the circuit judge in insisting upon an orderly presentation of the case, instead of being ground for a reversal of the case, has our unqualified commenda tion.
The other assignments of error do not call for discussion.
Judgment is affirmed.
The other Justices concurred. | [
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Moore, J.
The bill was filed in this case to cancel a deed made by the complainant to her only son, Orsamus A. Lockwood, and to his two children, the defendants herein. From a decree rendered in favor of complainant, the defendants have appealed. The defendants interpose the following defenses:
1; That, under the proofs, the complainant has not made out such a case as entitles her to the relief prayed for, as against the defendant Orsamus A. Lockwood.
2. That, as to the other defendants, they not having been charged with any failure or fraud on their part, they cannot be deprived of their interest in the lands in question; their interest having been given to them by complainant as a gift, in consideration of love and affection.
3. That the wife of the defendant Orsamus A. Lockwood should have been made a party defendant.
It is the claim of the complainant (and the circuit judge, who heard the proofs in open court, found her claim to be supported by the evidence) that in 1882 her husband died; that, in anticipation of his death, he deeded 50 acres of his land to his only son, Orsamus A. Lockwood, and the remaining 50 acres of land to the complainant. Upon the land deeded to the complainant were the farm buildings. This 50 acres was worked by the son, and a share of the proceeds was delivered to the mother, who lived a portion of the time with the son, and a portion of the time with other persons, until in May, .1888. At this time she was about 70 years old. She claims that she was ill, and had great confidence in her son, who had either lived with her; or with whom she had lived, since the death of her husband, and that, relying upon his assurances as to what was best for her, and upon his promise that he would maintain and support her the remainder of her life, she was induced to deed to him and his two children the 50 acres of land owned by her. She alleges that he has not carried out his promise, but that he and his wife have both treated her very badly, and that in April, 1898, she was compelled by her son to leave his home, and that she is now obliged to make her home with strangers. The son denies that he promised to maintain and support his mother if she would make the deed she did, and says that she proposed to make it as it was made, and that all he agreed to do was to rent the place from her for three years.
The testimony is conflicting, but there are some things about which there can be no dispute. The complainant for some reason was induced to make to her son and his children a deed of all the property she had in the world, except a little personal property, without any writing being given her in return providing for her maintenance and support. In the deed which was made, there was simply reserved to her a life estate in the farm. The son did not bind himself by any written agreement to pay the taxes or insurance, or to keep the premises in repair, or to maintain and support his mother. It is also beyond reasonable doubt that his home is made so unpleasant for his mother that it would be cruelty to compel her to live therein, and we also think it appears by a preponderance of the evidence that complainant was sent away from his home. The proofs disclose that the complainant had confidence in her son, and relied upon him implicitly. It was his duty to see that her interests were guarded, and that his promises made to her were carried out. Instead of doing so, he has obtained from her, for himself and children, all the property she has; and at the age of 80 years she is without property, and without the home which was promised her. Such a result cannot be permitted by a court of equity to stand. Seeley v. Price, 14 Mich. 541; Witbeck v. Witbeck, 25 Mich. 439; Barnes v. Brown, 32 Mich. 146; Jacox v. Jacox, 40 Mich. 473 (29 Am. Rep. 547); Bowe v. Bowe, 42 Mich. 195 (3 N. W. 843); Finegan v. Theisen, 92 Mich. 173 (52 N. W. 619); Smith v. Cuddy, 96 Mich. 562 (56 N. W. 89); Rexford v. Schofield, 101 Mich. 480 (59 N. W. 837).
As to the claim that the interest of the grandchildren in the lands cannot be reached, because they were not guilty of any failure or misrepresentation, it is sufficient to say that nothing passed from them to the complainant, and that the only consideration for the making of the deed wholly failed, so that no injustice is done them by setting the deed aside.
As to the third defense, that the wife of defendant Orsamus A. Lockwood should have been made a party, the bill sets up that the defendant is a married man. It was not demurred to. The complainant and her lessee are in possession of the land in controversy. Orsamus A. Lockwood and his wife live upon the 50 acres of land deeded to him by his father. The interest of Mrs. Orsamus A. Lockwood in the land in controversy is but an inchoate dower interest. It is evident that this interest will never be anything more if the deed to her husband is canceled by a decree of this court. In Miller v. Thompson, 34 Mich. 12, Justice Cooley used the following language :
“It is to be observed, also, that the objection for want of parties was not taken by any pleading, but for the first time at the hearing. At that stage of the case any defect that does not preclude a decree that does justice as between the parties, and fully determines the controversy as between them, should be overlooked. Payne v. Avery, 21 Mich. 524.”
See Woodward v. Clark, 15 Mich. 110; 15 Enc. Pl. & Prac. 681.
The decree is affirmed, with costs.
The other Justices concurred. | [
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Long, J.
The whole subject of this controversy was before this court in Anderson v. Grant, 114 Mich. 161 (72 N. W. 144). It now appears that the check of $421.65 is still held hy the board of public works, and a mandamus was asked in the court below to turn it over to the relator. This the court below refused. It is claimed by counsel for relator that assuming that Dooley was injured, and that by reason thereof he had a claim against the city or against Grant or against Anderson, or against them all jointly, yet, this being an independent matter, this claim cannot be taken into consideration here. This contention cannot be sustained. In the former case it appeared that Anderson sued Grant for this $421.65, and it was held that he could not recover, on account of the pendency of the Dooley claim. This is the identical amount and the identical money which it was there held that Anderson had no right to have, by reason of the Dooley claim. It appears now that Dooley has sued the city and obtained judgment, and there is now a suit pending *in behalf of the city against Grant to recover from him the amount of the Dooley judgment. The question was settled in the former case that, under the circumstances there, Anderson could not recover. He is in the same position still with regard to the Dooley matter.
The court below very properly denied the writ of mandamus. The judgment must be affirmed.
The other Justices concurred. | [
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] |
Grant, J.
(after stating the facts). There is one controlling question in the case. Upon its determination depend the rights of the parties. It can, perhaps, be better stated by stating the several contentions. The defendants contend that complainant, by organizing under the general manufacturers’ act, obtained no franchise direct from the legislature to use the streets and highways, such as it would have acquired under the electric-light companies’ act. Their second contention results from the first, namely, that the city had no authority to grant the franchise claimed by complainant. The complainant contends :
1. That the defendant city cannot make this collateral attack upon its act of incorporation; that the State had for nine years recognized the validity of its incorporation, and that the State alone is the party which can complain.
2. That the city is estopped to claim in this suit that the complainant ought to have been organized under some other statute, or ought not to have exercised the franchise of manufacturing and vending electric light to its inhabitants.
If complainant were organized under chapter 191, 2 Comp. Laws 1897, entitled. “Electric-Light Companies,” it would be clearly entitled to the relief asked. It would come within the doctrine enunciated in Michigan Telephone Co. v. City of St. Joseph, 121 Mich. 502 (80 N. W. 383, 47 L. R. A. 87), and Michigan Telephone Co. v. City of Benton Harbor, 121 Mich. 512 (80 N. W. 386, 47 L. R. A. 104). Section 7141, 2 Comp. Laws 1897, expressly gives to electric-light companies the authority—
“To lay, construct, and maintain conductors for conducting electricity through the streets, lands, and squares of any such city, town, or village, with the consent of the municipal áuthorities thereof, under such reasonable regulations as they may prescribe; _ and such corporation may make all such contracts and by-laws as may be deemed necessary and proper to carry into effect the foregoing powers.”
By this statute electric-light companies are given the same rights in the streets as are telephone companies, when the assent of the municipality is obtained. An incorporation under this act, a petition to the city to erect poles and wires, or for a franchise for that purpose, and the grant of the same by the city, would make a contract binding for the life of the corporation. It would be immaterial that no time for the existence of the right or the franchise was specified. The grant in such case would be limited to the period of existence fixed by the charter. If a railroad company were organized for a period of 30 years, and a party, natural or corporate, should grant it a right of way without specifying the time of user, the grant would be for the lifetime of the corporation. The law would imply that both parties contracted with reference to its period of existence. The same rule is applicable here. St. Clair County Turnpike Co. v. Illinois, 96 U. S. 63, 68.
The purposes for which complainant was organized are precisely those covered by the electric-lighting act. It could not carry on its proposed business without the use of the streets, and immediately applied to the city for such use. The city so understood it. That the inhab itants of a municipality should be supplied with light is as essential as that they should be supplied with water and telephones. They are all recognized by the law as necessary, made so by modern methods of living and business. The people of the State, through their legislature, have so determined by authorizing the formation of corporations for these purposes. Whether the defendant city knew under what act complainant was organized does not appear. Why complainant organized under this act is unexplained. No good reason appears or is suggested for its doing so. The only reasonable excuse is that somebody blundered. Whether the act under which it was organized would permit its incorporation, we need not determine. The State for nine years recognized its incorporation as valid. The defendant city dealt with it for the same time as a valid corporation, granted it the franchise as requested, permitted it to erect and maintain an extensive plant; and now, when the city has gone into the business of municipal and commercial lighting, seeks to crush it, to utterly destroy its property, and compel its patrons to become the patrons of the city, which charges more for its service than does complainant. It is needless to say that defendants are without equity, and that their contention ought not to prevail if the courts of equity have the power to prevent it.
We are of the opinion that the defendants are not in a position to raise the question of lack of power in the complainant, and that that question is one which the State alone can raise. Detroit City Railway v. Mills, 85 Mich. 634 (48 N. W. 1007), and authorities cited in paragraph 2 of the opinion, page 647. Where national banks have exceeded their authority in taking securities, the United States Supreme Court held that the parties interested could not complain so long as the government did not. National Bank v. Matthews, 98 U. S. 621; National Bank v. Whitney, 103 U. S. 99. Applying the same rule to this case, defendants cannot complain so long as the State does not. The contract is not ultra vires the corporation, but, on the contrary, is one expressly authorized by the statute above cited and the charter of the city. It now seeks to interpose a mere technicality to destroy a valuable property. This courts of equity will not permit. “A court of equity is always reluctant in the last degree to make a decree which will effect a forfeiture.” National Bank v. Matthews, 98 U. S. 621.
The common council are authorized to enact reasonable rules and regulations for the erection and maintenance of the poles and wires, and to compel the removal of those that are dangerous. This authority is fully defined in the telephone cases above cited.
Decree affirmed.
The other Justices concurred. | [
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Manning J.:
It appears from the report of the commissioners to the Probate Court, that the claim disallowed by the commissioners was a promisory note for $5,000. In making up the issue in the Circuit Court, the plaintiff filed a declaration containing two counts, instead of one. The first count is on a promise made by the intestate in his life-time, and the other on a promise made by the administrators on an account stated after the death of the intestate, between plaintiff and the administrators.
A copy of the note, with notice that it would be given in evidence on the trial, was attached to the declaration.
The first count, with a copy of the note attached to the declaration, was all that was necessary to put in issue the claim that had been passed on by the commissioners, and the second count may be regarded as surplusage merely. It is moreover defective on its face, as it does not show a valid claim against the estate of the deceased.
Under our probate system, all claims against the estate of a deceased person, when commissioners have been ap pointed to hear and adjust such claims, are to be presented to, and to be allowed by them. The estate is not bound by any account stated with the administrator.
Had the jury, therefore, found for plaintiff on the second count, and assessed damages in her favor, it would have been the duty of the court to render the judgment it did, notwithstanding such finding, as they had found for defendants on the ' first and only count in the declaration that set forth a valid claim against the estate.
The judgment must be affirmed with costs.
Martin Ch. J., and Campbell J. concurred.
Christiancy J., was absent. | [
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Campbell J.:
The rxxle adopted in O'Flynn v. Holmes, 7 Mich. 454, was, we think, correct, and we are disposed to adhere to it. It is true, the amendment made in the court below, iix that case, was not made from the record, but from matter aliunde, xvhile here it is based entirely upon the files and records; bxxt we think there is no difference in principle, so far as our action is concerned. If we recognize the amendments as binding at all on us, when made xvithoxxt a remittitur, we can not distinguish in favor of either kind; becaxxse when we once sanction them on our own records, we can not review the decision of the court below upon the propriety of granting them: — Mellish v. Richardson, 9 Bing. 125; Matheson's Admrs. v. Grant's Admrs. 2 How. 263.
There are some amendments which will be supplied in any court, in order to make the record read consistently; and where it is unnecessary to make any amendment in form at all. Such was the case of Emery v. Whitwell, 6 Mich. 474. In all other oases, the amendment must he made in the court below. And we have already intimated, on several occasions, that no obstacle should be thrown in the way of permitting such amendments, within a reasonable time, wherever it is made to appear that they are proper, and likely to be made: — Farrand v. Bentley, 6 Mich. 281; Sweetzer v. Nye, 5 Mich. 33; Scribner v. Gay, 5 Mich. 511.
But there are, we think, very strong reasons against permitting cases to be disposed of without our previous assent, by the courts from 'which they are removed. A party who considers himself aggrieved, has a right resort to this court, by writ of error or other proper proceeding; and this court becomes possessed of the case as it stood when removed. To permit amendments after such removal, and without our sanction, to be made at the discretion of the court below, would be, in effect, to surrender to them our appellate jurisdiction, and to enable them to oust us of it at their pleasure. It is very likely that abuses would but rarely happen; but if they should happen, we should be powerless. And while we are disposed, in all reasonable cases, to give all proper facilities for amendments, we can see no propriety in recognizing the principle that an appellate court can have its hands tied by the court from which an appeal is taken.
There are several reported cases in which it is asserted, by very able judges, we admit, that an appellate court should recognize the amendments made, after error brought, in the court below. So far as our observation has gone, these assertions are found generally, if not universally, in the decisions of the courts making the amendments. We have met with but two cases in which the question arose in the appellate court, in any direct form, concerning the binding force of such amendments. In Richardson v. Mellish, 3 Bing. 334, 336, the Common Pleas amended a record while the case was pending in error in the King’s Bench. In 7 B. & C. 819, is a report of an application in the King’s Bench, to allow the amendment to be added to the transcript in that court. The court divided in opinion as to whether it should be permitted at all; and without deciding the question, allowed it to be done with an explanation of the -facts, in order that the House of Lords might determine' whether it was proper. In the House of Lords, it was held, on the opinion of the Judges (9 Bing. 125), that inasmuch as the King’s Bench had permitted the amendment to get upon their record, it was incompetent to inquire how it got there; and so they declined to decide whether the amendment of the King’s Bench record should have been allowed. The other case is that of Cheetham v. Tillotson, 4 Johns. 499. In that case the Supreme Court had, after error brought, allowed a substantial amendment, and a motion was made to have it brought into the Court of Errors, by allowing the transcript to be remitted for that purpose. The court refused to permit it. We can not learn that the rule has been changed in New York, and it seems to us entirely reasonable.
If it were proper to make distinctions, the present case would, perhaps, warrant a relaxation of the rule. But we think the principle should be adhered to. Both motions are denied. But under the circumstances, the defendants may have an order permitting a new application to the Circuit Court, with leave to the plaintiff in error to discontinue. He is entitled to his costs if he does so, under all the decisions; and this seems to have been conceded by counsel. He is also entitled to the costs of one motion.
Martin Ch. J., and Manning J., concurred.
Christianct J.:
I am not able to agree with my brethren, in the decision of this motion. The case of O'Flynn v. Holmes, 7 Mich. 454, upon which my brethren base their decision in this case, was but little discussed, and no cases cited, I assented to the decision in that case Avith reluctance, and without being satisfied of its correctness. But as it was a question of practice, I did not at the time think it of sufficient importance .to justify a dissenting opinion,
Subsequent reflection, however, and the discussion of the present case, kave satisfied me, that the course of practice there adopted seriously affects the rights of parties, and is. calculated to check the powers of amendment given by the statute, which, I think, should be liberally exercised in cases like the present, where the amendment is justified by the facts, and is in affirmance of the judgment.
Without going fully into the effect of this ruling in other cases, I will .merely say here, that when the only error complained of in the record is such as that court,, upon any showing of facts, was competent to amend, and the certificate of that court is presented, showing that the amendment has already been made since the transcript was. sent up, I can never consent to reverse the judgment for such error, unless it be shown that the amendment has been im-. properly allowed. And if we can not act directly upon such certificate as authentic eAridence (which I think we mayj See 2 Cow. 408 ; 2 Ld. Raymond, 1570; 2 Strange, 869; 7 Wend. 229 ; 3 Ind. 107), the fact that the amendment has already been made in the court below, ought to be sufficient ground for an order sending down the record to be amended, or for a certiorari to send up the record as amended; and it is of little consequence which of these methods is adopted, as both are equally safe and convenient, And I confess my entire inability to see why the defendant in error should be required to show any further cause for the amendment, to entitle him to such order or certiorari.
The fact that an amendment has been made, which that court had a right, upon a proper showing, to make, must, it seems to me, be quite sufficient ground for the amend-. ment, until something is shown to the contrary. The opposite view, it seems to me, presumes in advance, and without proof, that the amendment has been improperly granted; and assumes that the court below is not capable of judging correctly upon the question of its propriety, without our previous advice and instruction; though all the facts upon which the question depends occurred in that court, and not before us.
If the entire jurisdiction of that court -over its own record ended with the return of the transcript to this court, under the writ of error, there might be good ground for such a position. But such is not the fact with the record proper, whatever it may be with a bill of exceptions, the original of which, under the statute, is required to be returned to this court. Execution may be issued on the judgment in the court below, notwithstanding the writ of error', unless bond be given; and the issuing of execution may often involve the necessity of amending the record. Both in England and in this country, in cases where a transcript only is sent up on error, the record, for all purposes of amendment, is always regarded as still remaining in the court below. See the authorities cited by counsel for defendants in error : — 2 Sellon's Pr. 410 ; Graham's Pr. 667, 668; 2 Arch. Pr. 262 ; Tidd's Pr. 652.
The rule adopted by my brethren will not recognize the amendment made in this case, though the record should now be remitted and the same amendment returned to us on certiorari, because not made by our previous authority; and the amendment must be again made in that court to entitle it to our recognition. Why require of the court" below the idle ceremony of such a repetition ?
Will the order of this court place that court under any greater obligation than the law imposes ? Is it quite respectful to that court to indulge such a supposition, or to require it to repeat the amendment ?
In reference to the showing of cause in this court, for an amendment to be made in the court below, this will, of course, be confined to sucb amendments as can only be made on cause shown in that court, since all amendments which may be made without showing cause there, can be made here, or the record treated as amended without any amendment in fact. Hence, this rule imposes upon the defendant in error the expense, labor and delay, of first showing cause in this court, and then in the court below.
If the amendment has not yet been made by that court, whatever may be the showing here, it is by no means certain that when the parties come to be heard, as they must be, in that court, that the amendment will ever be made; and the cause has been delayed, and the expense of the proceedings incurred, to no purpose. All this is avoided by acting upon the amendment already made. And if amendments of this kind, made in the court below, are to be looked upon with suspicion, the better corrective, I think, would be to adopt the rule that we will not in the future recognize or receive as a part of the record an amendment-made without a previous application to this court, unless accompanied with the reasons or grounds upon which the amendment was made, nor unless those grounds shall appear to us sufficient.
As to the stage of the case in which an amendment is to be made, and the question of diligence, whenever this court have, in any way, reasonable ground to believe that the only error complained of in the record has not occurred in fact, and that an amendment might be made in the court below, according to the facts, so as to remove the error, it is, I think, the duty of this court, in in any stage of the cause, to take the proper means to have the record amended. Delay in the application may be good g-round for imposing terms, but can not justify the reversal of a judgment for errors which, we have good reason to believe, have no real existence. | [
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] |
Manning J.:
I can not see that the present case differs essentially from Williams v. The Mayor of Detroit, 2 Mich. 560. The city charter then in existence contained the following clause: “And the Common Council shall have full power and authority to provide funds for defraying the expenses of such paving of streets or sidewalks as may be deemed necessary, either by assessment on the owner or occupant of such lot or premises, in front of or adjacent to which such streets or sidewalks may be directed to be paved or repaired, or otherwise, as they may direct.” And it was provided by a city ordinance that, “Whenever the Common Council of said city shall deem it necessary to provide funds necessary for defraying the expenses of grading, paving, or planking any alley, avenue, or street of said city, or any portion thereof, they shall cause an assessment to be made by the city surveyor on the owners or occupants of the lots or premises in front of or adjacent to the avenue or street directed to be graded,' paved, or planked.” And it appears from the opinion of the court that the aggregate cost of the pavement was “apportioned according to the width of each lot fronting on the street paved.”
The assessment was held to be a tax, and not the taking of private property for public use.
The only difference between that case and the present is, that the revised charter requires the cost of paving and grading to be assessed “ on the owner of the lot or premises in front of or adjacent to which” the paving and grading are done. In Williams’ case the cost of the paving and grading was apportioned between the owners of the lots by the number of feet frontage each lot bore to the frontage of all the lots contiguous to the pave ment. If the street in front of some of the lots had to be cut down, and in front of others to be filled up to bring it to the grade of the pavement, the expense was assessed on all the lots in proportion to their several frontage on the street. In the .present case a different principle of apportioning the expense was adopted, to comply with the revised charter, which requires the owner of each lot to pay for the grading as well as paving in front of his lot. The thing is not impracticable. The work is done by contract; and to carry out the new rule of apportioning the aggregate cost of the whole work, the different parts of it should be, and I presume are, contracted at different prices' — the paving at one price and the grading at another. Men will differ as to which' of these two modes of apportioning the expense is most just and equitable. The difference, it seems to me, is not of such a nature that one can be a tax and the other not.
Judge Ruggles, in the case of The People v. Mayor of Brooklyn, 4, Comst. 423, says: “Taxation exacts money or services from individuals, as and for their respective shares of contributions to any public burthen.”
“Private property taken for public use by right of eminent domain, is taken not as the owner’s share of contribution to a public burthen, but as so much beyond his share,” “Special compensation is therefore to be made in the latter case, because the government is a debtor^for the property so taken; but not in the former, because the payment of taxes is a duty, and creates no obligation to pay, otherwise than in the proper apjfiication of the tax.”
“Taxation operates upon a community or upon a class of persons in a community, and by some rule of apportionment.
“The exercise of the right of eminent domain operates upon an individual, and without reference to the amount or value exacted from any other individual or class of individuals.”
I know of no case in which the distinction, with the reasons for it, between taking property by taxation and by the right of eminent domain, is more clearly pointed out; and I find no difficulty in sustaining the assessment in the present case on the principles stated by the learned judge.
Article 14 of the Constitution contains the following sections relative to taxation:
“Sec. 11. The Legislature shall provide an uniform rule of taxation, except on property paying specific taxes; and taxes shall be levied on such property as shall be prescribed by law.
“ Sec. 12. All assessments hereafter authorized shall be on property at its cash value.
“Sec. 13. The Legislature shall provide for an equalization by a state board, in the year one thousand eight hundred and fifty-one, and every fifth year thereafter, of assessments on all taxable property, except that paying- specific taxes.”
Taking the three sections together, there seems to be no reason to doubt the taxes here referred to are the ordinary taxes raised for state, county, township and municipal government. The word “assessments” in the 12th and 13th sections, does nqt mean taxes in any sense, but the valuation of property for the purpose of raising the taxes referred to in the 11th section.
Taxes for purely local public improvements, like the one before us, more generally called assessments, are not mentioned in the Constitution, nor is it necessary they should be to give the Legislature power over them. The power to impose and collect such taxes, like all other legislative powers not mentioned in the Constitution, is plenary, and in the exercise'of it is subject to legislative discretion only.
As this description of taxes does not come within the sections of the Constitution mentioned, valuation in the property taxed is not a necessary element in the apportionment of the tax. The apportionment of it may be based on valúa tion or not. This is for the Legislature to determine, which alone has power to prescribe the rule of apportionment. And as there is nothing in the power of taxation itself requiring a tax to be apportioned in any particular way, the rule by which the amount of tax to be paid by each taxpayer is to be determined (which is all that is meant by apportioning a tax when applied to him) can not be made a test of the taxing power.
But the Constitution provides, “Private property shall not be taken for public improvements in cities and villages without the consent of the owner, unless the compensation therefor shall first be determined by a jury of freeholders, and actually paid or seemed in the manner provided by law.” Art. 15, §15.
The taking here referred to is the taking of private property by right of eminent domain, which can not be done by the city of Detroit except in the manner stated.
Admitting money can be taken in this way, is the attempt made to take it in the present instance by right of the taxing power, or by right of eminent domain? If the former, the city is entitled to it; if the latter, it is not, because it has not taken the requisite steps to perfect its right.
In the case before us we have all the characteristics of a tax, and not a solitary characteristic of the exercise of the right of eminent domain;
The money is demanded as complainant’s apportionment or share of the cost of paving a part of Fort street, on which he and others have lots fronting on the part of the street paved; and the law imposes on him and them the cost of the [paving as a public burden, and prescribes the rule by which that burden shall be borne by them respectively.
Here, then, we have all the characteristics of a tax; A public burden imposed by law, a description of the property and persons by whom it is to be borne, the contingency on the happening- of which it is to be imposed, and the apportionment of it in pursuance of law. With' all of these characteristics of a tax, there is not a solitary characteristic of a taking of property by right of eminent domain. The warrant of the collector does not demand property of complainant only, but of him and others; nor does it demand property of him only, for public use, for it at the same time, makes a like demand of others for the same use. Nor is the demand made on him uncertain in amount, or made without reference to the amount to be contributed by others. The aggregate cost of the whole work is apportioned among- the several lot owners, in proportion to the work done in front of their respective lots.
If the ease before us is not an attempt to take private property for public use, without making compensation as required by the Constitution, it is most clearly a tax, and as such, subject "to no rules but legislative discretion. In the case of The People v. Mayor of Brooklyn, Judge Buggies says it is the duty of the Legislature “to prescribe the rules on which taxation is to be apportioned,” and that its determination, “being within the scope of its lawful authority, is conclusive.” And in Brewster v. City of Syracuse, 19 N. Y. 116, in which > the constitutionality of the power was again before the same court, Johnson Ch. J., in delivering- the opinion of the court, says: “The nature of this power was fully examined in The People v. Mayor of Brooklyn, 4 Comst. 419, and it was declared to be a part of the legitimate exercise of the state’s power of taxation, to ascertain, subject to no judicial review, the public burdens to be borne and the persons or class of persons who were to bear them. It would, therefore, have been within the clear authority of the Legislature to have authorized the city government of Syracuse, without the consent of any person specially interested, to construct this sewer, and to assess, by way of tax, the expenses on such persons as ought, in the judgment of the Legislature, to bear the burthen.”
It is quite evident, from the large number of cases to be found in the books of reports of the several states, that courts have experienced much difficulty in supporting this kind of legislation; and yet in almost every instance it has been sustained. The difficulty, it would seem, has generally been in determining the assessment to be a tax, because of the supposed injustice or inequality of the assessment by reason of its not being co - extensive, as in case of ordinary taxes, with some one of the civil divisions into which the state is divided for governmental purposes; that is, on all the taxable property of the county, township, city, or ward, in which the improvement is made.
When the consequences of a statute are not subversive of the very end and object of a constitutional government, they can not, —if the Constitution itself contains no inhibition, and if it does there is no occasion to resort to them, — be made the basis for declaring the law unconstitutional. In construing a statute the case is different, for the reason that they are not used to overturn the law, but to give a reasonable interpretation to the intention of the Legislature, and the language of the statute when it it is susceptible of more than one meaning. But to go beyond this, and give them the effect of annulling a statute, would be an assumption of legislative functions.
The supposed hardship in many if not most cases, it seems to me, is more imaginary than real. Things with which we are not familiar not unfrequently, at first view, meet with condemnation, although undeserving of it, while those with which we are familiar, and that really deserve condemnation, are looked upon as right in themselves. A law requiring the owner of a lot of ground in a dense and populous city, for the accommodation of the people and vehicles that throng its streets, to pave the street in front of his lot, and his neighbor to do the same thing, is looked upon by many as unjust and inequitable. Now, we have a statute requiring a specific tax of four per cent, to be paid on all ores, with the exception of iron ore, which pays but two per cent. Why this difference between iron and other ores? Why are not all ores taxed alike? And why is the miner required to contribute to the public the one twenty-fifth or one fiftieth part of the product of his mine, as the case may be, while no such tax is imposed on the products of the farmer? Again, a pecller on foot is required to pay a specific tax of $10 a year; if he uses a horse in his business, $25, and if two horses and a vehicle, $50. Why this difference ? Is it that he who goes best prepared to accommodate his customers must pay most? But why is he required to pay a tax at all? Is it because, as a vender of goods, or traveling merchant, he goes to his customers instead of requiring them to come to him ? If we were not accustomed to such and the like taxes, and they were now for the first time' about to be introduced, we have no doubt we should hear much of their- injustice and unconstitutionality. They differ, however, from the tax before us, in this, that while the exigency, the growth of a large city, that renders pavements necessary, at the same time increases the value of the lot on which the burden is imposed ten, twenty, or, perhaps, fifty times the amount of that burden, nothing of the kind exists in the case of the miner, whose ores are not more valuable by reason of the public exigency that stands in need of his money.
For all ordinary ^’purposes of government, the Constitution makes it the duty of the Legislature^44 to provide a uniform rule of taxation, except on property paying a specific tax,” cfcc. And this uniform rule of taxation is to operate on property assessed at its cash value. But the Constitution has never been understood as requiring the rule to be so framed as to make each piece of property of the same value, throughout the state, pay the same amount of tax. Such a rule would be uniform, but it has not been adopted. The taxable property of the whole state is taxed to pay state expenses, and that in the counties only to pay county expenses, and in townships to pay township expenses. All of these expenses pertain to] the administration of the government,’ but each piece of property of the same vahie, in every part of the state, does not pay the same amount of tax — the equality and uniformity of the rule of taxation consisting in requiring each county and township to pay its own expenses. These expenses are not probably the same in any two counties or townships in the state, and it is not likely that a $1,000 worth of property in any two townships in the state contributes the same amount in any one year for the support of government. We hear of no complaint, in all this, of inequality, or of a want of uniformity in the rule of taxation. Each county and township is required to pay its own exj>enses, because it is more directly interested in, and benefited by, such expenses than other counties or townships, or the state at large.
This rule of taxation, it seems to me, is analogous to the one by which the cost of the paving is apportioned in the present case; and that, to make the analogy complete, it is only necessary to suppose the counties and townships to be individuals instead of political corporations. The reason of the rule is the same in both, and its justice as obvious in one case as in the other.
The current of authorities is, that assessments for local improvements need not be co - extensive with the county, city, or ward in which the improvement is made; and this, it seems to me, removes the only obstacle in fact to this species of taxation, that courts have had to encounter where the state Constitution was silent on the subject.
To show the state of the law at different times in the state of Kentucky, I will refer to two decisions made by the Court of Appeals of that state. In Suttons's Heirs v. City of Louisville, 5 Dana, 28, it was held the expenses of a local improvement must he borne by the whole city, and not by the property more directly benefited by it. This case was, in effect, afterwards overruled by the same court, in The City of Lexington v. McQuellan's Heirs, 9 Dana, 513, Ch. J. Robertson giving the opinion of the court in both cases. The charter of the city of Lexington authorized streets to be paved or turnpiked “at the cost and expense of the lot owners fronting such street or alley.” A cross street, extending the length of a block, was graded and macadamized. A deep cut was made opposite the lot owned by McQuellan’s heirs, and the expense of making it was assessed on their lot, and not on all of the lots on both sides of the street. The court sustained the constitutionality of the charter authorizing an assessment, on the ground that, for the purpose of making such improvements, the charter might be considered as making each block a separate municipality. But as the charter required the expense of grading to be borne by all the lots, the decree of the court below enjoining the collection of the assessment was reversed, as the city should have been enjoined against collecting the exc'ess of the assessment only. Had the charter authorized the expense of the grading to be assessed on the lot in front of which it- was done, the charter would still, I think, have been sustained by the court; for, in speaking of the city at large, — and the remark was strictly applicable . to the block where the improvement had been made, and the attention of the court was called to the point by the assessment before them, — they say: “And if all those ways should be reconstructed or repaved during the same fiscal year, we are not prepared to question the public authority to require each of the owners of grounds on the streets respectively, to pay one - half of the cost of the improvement made opposite to his lot.”
I think the questions reserved for the opinion of this court should be answered in the aflirmative. | [
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] |
Campbell J.:
IjThe rules of pleading, when applied to justice’s courts, have always been extremely liberal, and we are not disposed to regard the declaration in this case as insufficient.
But a cause of action must be as fully proved in one court as in another. And facts which can not be regarded as tending to prove others which are material and necessary to establish a cause of action, can not before a justice, any more than at the circuit, be regarded as sufficient to fix a liability.
To charge an endorser, for example, several distinct things are necessary, no one of which can be disregarded, and no one of which can, therefore, when proved, raise any presumption of another. These facts to be proved are not only the making of the contract of endorsement, but presentment of the note at maturity for payment, a neglect or refusal- to pay when presented, a notice giving a sufficient description of the note and distinctly showing its dishonor, and service of such notice within the proper time personally, or at the residence or place of business of the endorser, or by mail where it is properly mailable. These are all legal conditions, which, unless waived, must be strictly complied with, in order to charge the endorser at all. And proof of performance of any one or more of these conditions has no tendency whatever to prove a compliance with the rest.
In the case before us it is not seriously claimed that all these conditions, necessary to charge the endorsers, have been proved. But it is claimed that this court has decided that, in such cases, we can not weigh the testimony, and determine whether it establishes any fact satisfactorily or or not. It is undoubtedly true that, where the court below finds facts upon pertinent evidence, we cannot review that finding in this way. To the cases heretofore decided by us on that point we are entirely disposed to adhere. If there is any evidence tending to prove a fact, and the court below regards it as proved, we cannot say it should have required more. But no court has a right to assume a fact without any evidence legally tending to prove it, or to dispense with the proof of every distinctive condition affixed to an agreement. And where a court holds that an endorser may be charged without legal notice, it is an error of law, and not a mistaken view of facts.
The justice has certified the evidence in the following terms: “I do certify the following to have been the evidence before me in the above entitled cause.” The objections taken before him, were, that necessary facts had not been proved. We must assume that we have the whole case. And as the endorsers are not shown to have been legally charged, the judgment must be reversed with costs,
Christiancy J. concurred. | [
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Manning J.:
The writ of replevin is in the name of E. & J. Can-field, plaintiff. In the affidavit annexed to the writ, John Canfield is described as the plaintiff, and the declaration is in the name of Edmund Canfield and John Canfield. Defendant made a motion to quash the writ and subsequent proceedings, but did not enter his appearance in the cause, or further appear therein after the motion was denied. The writ of replevin was a nullity, as no person was named in it as plaintiff. E. & J. Canfield, the proceedings show, was the name of a partnership. Partners can not sue in the name of the firm.
The judgment is reversed with costs.
The other Justices concurred. | [
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] |
Fletcher Ch. J.:
The appeal in this case is by the defendant, from a decree of the Court of Chancery, by which the appellant was directed to convey to the respondent a certain lot of land in pursuance of a parol agreement.
The counsel for the defendant object to the decree:
1. Because the contract was within the Statute of Frauds, and therefore can not be enforced.
2. That the contract admitted by the answer and supported by the evidence, is materially variant in substance from that set out in the bill.
3. That there has not been such performance of the agreement on the part of the respondent as to take the case out of the operation of the statute: Because, Hirst, payment of a part only of the purchase money has been made: Second, time was of the essence of the contract, and the respondent had been long in default in making payment, and this lapse of time deprives him of his right to claim specific performance: Third, the possession taken by the respondent was not under the agreement, and possession alone is not sufficient to take the case out of the statute: Fourth, the evidence of improvements made by the respondent should have been suppressed, and can not be considered as giving respondent any claim to a specific execution of the agreement, because not alleged in the bill.
The first objection obviously depends upon our deci' sion upon the third.
The respondent filed his bill in February, 1838, setting forth that, in the year 1830, he and the appellant entered into a verbal agreement,- by which the appellant agreed to sell him a certain lot of land in the county of Monroe, in this state, giving a particular description of the lot, being three arpents in front on Otter Creek, and twenty-five arpents in depth, for the sum of $150, $80 of which was to be paid in cattle on the taking possession of the lot by the respondent, and the balance in three years; but in case it would not be convenient for the respondent to pay the balance at the expiration of three years, then the appellant agreed to extend the time for such payment to four, five or six years, as might be most convenient for respondent; the balance to be paid in cattle or grain as might be most convenient for respondent, and that the appellant should execute a conveyance to respondent as soon as he obtained the legal title to said lot from Antoine Lasselle; and that the respondent assented to these terms, and agreed to make payments accordingly:
That in pursuance of such agreement the appellant caused the land to be surveyed, and put the respondent into possession, and respondent paid the eighty dollars in cattle as agreed:
That at about the time of taking possession, the appellant informed him that he had obtained the legal title to the land from Lasselle, and appointed a day on which he would make a conveyance: That he called on appellant on the day appointed, when appellant said he had forgotten the appointment: That he again called on appellant some time in the spring of 1831 for a conveyance, when appellant said he was busily engaged in settling the estate of one Lasselle, but that he would execute the same at a further day:
That from that time to the tenth of July, 1835, he frequently called on appellant for a conveyance of the land:
That on the day last mentioned he tendered to the appellant §94,50, being the balance of principal and interest due on said contract, and demanded a deed of conveyance of said land, and that the appellant refused to accept the money or make conveyance.
That from the time he was put in possession by the appellant he has remained in possession up to the time of filing his bill, and has paid all taxes and assessments on the land: And during that time he has always been ready and willing to perform Ins part of the agreement.
The appellant in his answer sets np the statute in bar, and denies having- made any contract respecting the land with respondent in the year 1829, but admits that he made a contract with him in 1830, respecting the lot in question, which lot he admits to be correctly described, but says by that agreement respondent was to give him either two or three dollars an acre, and he thinks it was three. He admits that eighty dollars was to be paid in cattle at the time respondent took possession of the lot, but he denies that he agreed to give respondent three years for the payment of the balance, but says that respondent, after paying the eighty dollars on taking possession, agreed to let him have a yoke of oxen the next fall, and' to pay the balance that should be then due in three years: That by the agreement, respondent was also to pay the taxes for three years on two other lots of land adjoining the one in question, owned by the appellant. He denies that he agreed to give a deed of the lot until the whole consideration had been paid, or that respondent ever called on him for a deed until the tenth of July, 1835. He admits that he caused the lot to be surveyed, and put the respondent in possession, and that he had continued in possession ever since, and that he had paid the taxes on that lot. He also admits the payment of the §80 in cattle after the time he gave the respondent possession. He alleges that respondent had not delivered the yoke of oxen, or paid the taxes on tho adjoining lot of land. He also alleges that, by the contract made by him with the respondent, he was to give a bond for a deed on the delivery of the yoke of oxen the next fall, and to execute a conveyance when the balance should have been . paid in full. He denies that he agreed to take the balance due after the delivery of the oxen in cattle or grain, or that he agreed to give a further time than three years for the payment of the balance if the respondent should not find it convenient to pay at that time. He admits that respondent called on him on the tenth of July, 1835, and offered to pay the balance then due, and demanded a deed for the land, and that he refused to accept the money or make the conveyance.
The objection by the appellant that the case is within the Statute of Frauds, is fatal unless there has been such part performance as will take the case out of the statute.
The next objection is, that there is a variance between the contract alleged in the bill, and the one shown in the proof.
The contract as stated in the answer varies from that stated in the bill, in these respects:
1. In the price, which the appellant in his answer states,according to his recollection, to have been $3 per acre, or $225 in all.
2. In the delivery of a yoke of oxen the next fall, as part of the balance due after paying the first eighty dollars, which the bill includes in the balance payable in three years.
3. In the time for giving the deed.
4. In the time for paying the balance, which the answer says was not extended beyond three years, the bill says four, five or six years, if not convenient for respondent to pay sooner.
5. In the payment of taxes on the two lots as stated in the answer.
6. In the payment of the balance in cattle or grain as . stated in the bill and denied in the answer.
As to the variance respecting the price of the land, the extension of the time for paying the balance beyond three years, and the payment of the balance in cattle or grain, the testimony clearly supports the bill.
In respect to the other matters of variance, the delivery of the yoke of oxen the next fall, the time for giving the deed, and the payment of the taxes on the two lots of land belonging to the appellant, in which the bill is not supported by the testimony, I think they can not be regarded as substantial parts of the contract.
The testimony shows that respondent was to deliver the yoke of oxen the next fall or pay fifty dollars in lieu of them. So that it was at the option of the respondent to deliver the oxen or pay the money, and the appellant can therefore be made good by compensation. And the time for the payment of the $50, I do not consider a substantial part of the contract.
If the contract proved correspond with that described in the bill, it will be established and enforced, even if there be some variance between the terms described and those proved, unless the variance relate to matters of substance. In the case of Harris v. Knickerbacker, 5 Wend. 638, where the answer denied the specific contract stated in the bill, but admitted one somewhat different in terms, varying from the contract stated in the bill as to the time of payment of a part of the purchase money, and as to payment of interest on certain payments, it was held to be no substantial variance. A correspondence as to price, and the description of the property, are matters of substance; but the time, place and mode of payment, are not considered matters of substance, unless by the express stipulations of the parties they are declared to be so; or unless from the special nature of the case, and the necessary intention and understanding of the parties, they must be deemed material. The objection, therefore, on the ground of variance, is not sustained.
But the next and most material point made in this case, is whether there has been such a part performance of the contract on the part of the respondent as will take the case out of the statute, and entitle him to a specific performance of the agreement.
1. It is objected first, that a payment of a part of the purchase money does not take the case out of the statute.
If this were the only act of part performance, it would be necessary to review the authorities, and establish a rule upon this point; but with the views I have taken of other points in this case, it is not necessary now to examine the question.
2. A second objection is that the time for payment of the balance of the consideration of the purchase, was of the essence of the contract, and that the respondent having been long in default in this respect, is not entitled to claim the extraordinary interposition of a court of equity to enforce the agreement.
Time may be made an essential condition of a contract in some cases, by the express stipulation of the parties; although Lord Thurlow is said to have intimated in Gregson v. Riddle, cited in 7 Ves. 268, that time could not be made of the essence of the contract, even by the positive stipulation of the parties. It has, however been well settled that, in some cases, the stipulation of the parties as to time may have such effect that a court of equity will not assist the party in default: — Lloyd v. Collett, 4 Brown’s R. 469; 4 Ves. 587, note; 7 Ves. 265; 1 Johns. Ch. 371.
But where the parties do not particularly stipulate as to the effect which a default in the payment of the money at the time shall have upon the contract, the time is not considered an essential part of, or rather a condition of the contract, unless under peculiar circumstances, where from the nature of the transaction and the condition of the parties a just and full compensation could not be awarded.
Nor is the party in default in such eases ordinarily obliged to show, by way of excuse, a good cause for his default before he is entitled to a specific execution of the agreement. It is true Chancellor Kent seems to lay down a different rule in the case of Benedict v. Lynch, 1 Johns Ch. 370; where he says: “From the review I have taken of the cases, the general principle appears to be perfectly establish ed, that time is a circumstance of decisive importance in these contracts; but it may be waived by the conduct of the parties; that it is incumbent on the plaintiff, calling for a specific performance, to show that he has used due dilligence; or, if not, that his negligence arose from some just cause, or has been acquiesced in. ” The rule laid down by the learned Chancellor would appear to cast the onus probanda, upon the party seeking a specific performance, to show affirmatively that he had used due dilligence, or that he had a just cause for excuse, or that the other party had waived or acquiesced in the default.
It will be -readily seen on a review of the cases in which the question has been raised, under what circumstances a party in default shall be entitled to the aid of a court of equity to compel the execution of a contract, that eminent men have taken different views as to the rules best adapted to secure the equitable rights of the parties before them, and to secure, prospectively, a fair, prompt and steady compliance with private contracts.
While some have been disposed to require in a court of equity the same strict compliance with such contracts as is required by the rules of the common law, and to mitigate the rigor of those rules in extreme cases only, others, considering how easily courts of equity can adapt their rules to the equitable circumstances of each class of cases, and almost every individual case, and while relieving against forfeiture or hardness arising, from the inattention and neglect of a party in the performance of his engagements, can at the same time protect the other party by a reasonable and fair compensation, have been disposed to adopt more liberal rules, as equally protecting the equitable rights of litigant parties, and contributing to secure the permanent establishment of a more safe and just system of fairness and honesty.
It appears to me, however, that the rule upon this subject has been settled upon reasonable and just grounds, and entirely in accordance with the principles of equity. In Waters v. Travis, 9 Johns. 450, on appeal in the Court of Errors, Spencer J. says that “place and time are circumstances affecting only the performance of the engagement, and. do not import, in a court of equity, conditions by which the parties are to be considered as contracting on the ground of a strict compliance, but are merely circumstances admitting of compensation,” — citing Powell on Cont. 268.
The same general principle was recognized in 1 Dessau. R. 398, and by the Supreme Court of the United States in 6 Wheaton 528.
Sugden (L. of Vend. and Pur. 205) lays down this general proposition, applicable in equity as well as at law, that “where one party fails in performing the contract, the other, if he means to rescind it, should give a clear notice of his intention” — and refers to 6 Madd. 18.
■ In the case of Reynolds v. Nelson, cited by Sugden, where the purchaser deposited £25 with the vendor, and being in default on the payments, the vendor gave notice that if the purchaser did not perform on such a day, he should consider that the purchaser had abandoned the contract, and act accordingly. In a bill filed by the purchaser for the specific execution of the agreement, it was held by the vice Chancellor that as the vendor had not given notice that he intended to rescind the contract on his part, and had not returned the deposit, the complainant was entitled to have the agreement executed.
Lord Redesdale in Davis v. Hone, 2 Sch. & Lef. 347, considering the views and proceedings of courts of equity in respect to the rights of parties, where there has not been a strict compliance with the terms of contracts, remarks: “A court of equity frequently decrees specific performance where the action at law has been lost by the default of the very party seeking the specific performance, if it be, notwithstanding, conscientious that the agreement should be performed; as in cases where the terms of the •agreement have not been strictly performed on the part of the person seeking specific performance, and to sustain an action at law performance must be averred according to the very terms of the contract. Nothing but specific execution of the contract, so far as it can be executed, will do justice in such a case.” And again in Lennon v. Napper, 2 Sch. & Lef. 684, his Lordship said: “The courts in all cases of contracts for estates in land, have been in the habit of relieving where the party, from his own neglect, had suffered a lapse of time, and from that or other circumstances, could not maintain an action to recover damages at law. And even when nothing exists to prevent his suing at law, so many things are necessary to enable him to recover at law, that the formalities alone render it very inconvenient and hazardous so to proceed-nor could, in many cases, the legal remedy be adequate to the demands of justice. Courts of equity have therefore enforced contracts specifically where no action for damages could be maintained; for at law the party plaintiff must have strictly performed his part, and the inconvenience of insisting upon that in all cases, was sufficient to require the interference of courts of equity. They dispense with that which would make compliance with what the law requires oppressive; and in various cases of such contracts they are in the constant habit of relieving the man who has acted fairly, though negligently. Thus, in the case of an estate sold by auction, where there is a condition to forfeit the deposit if the purchase be not completed within a certain time, yet the court is in the constant habit of relieving against the lapse of time. And so in the case of mortgages, and in many instances, relief is given against mere lapse of time where time is not essential to the substance of the contract.”
Mr. Justice Story (2 Eq. Juris. p. 83) says: “Where the terms of an agreement have not been strictly complied with, or are incapable of being strictly complied with, still, if there has not been gross negligence in the party, and it is conscientious that the agreement should be performed; and if compensation may be made for any injury occasioned by the non - compliance with the strict terms; in all such cases courts of equity will interfere, and decree a specific performance. For the doctrine of courts of equity is not forfeiture, but compensation; and nothing but such a decree will, in such cases, do entire justice between the parties.” And again, p. 85, he adds: “One of the most frequent occasions on which courts of equity are asked to decree specific performance of contracts, is where the terms of the contract have not, in point of time, been strictly complied with. Time is not generally deemed in eqnity to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract.”
So in the late case of Hipwell v. Knight, 1 Y. & Coll. 401, Mr. Baron Alderson, says: “In the case of a mortgage, the court, looking at the real contract, which is a pledge of the estate for a debt, treats the time, mentioned in the mortgage deed, as only a formal part of it, and decrees accordingly; taking it to be clear that the general intention should override the words of the particular stipulation. So in the ordinary case of the purchase of an estate, and the fixing a day for the completion of a title, the court seems to have considered that, the general object being only the sale of the estate for a given sum, the particular day named is merely formal, and the stipulation means, in truth, that the purchase shall be completed within a reasonable time, regard being had to all the circumstances of the case, and the nature of the title to be made.”
From an examination of these and many other authorities which might be cited upon the point, the general principle seems to be well established, that where the parties to the agreement have not expressly stipulated that performance at a particular time shall be an essential part of the agreement, and where, from the nature and circumstances of the con tract, and situation of the parties, there would be no particular hardship upon the party against whom the execution of the contract is sought to be enforced, and the conduct of the party in default not being unfair, or his claim unconscientious, a court of equity, so far as non - performance at the time is concerned, will aid' the party in default, and decree a specific execution of the agreement as the only adequate measure of equitable justice between the parties.
It is true, this rule requires of a court of equity the exercise of extensive and liberal discretionary powers, in order to determine the facts and circumstances in each case, upon which must necessarily depend the application or rejection of the rule; but the exercise of such powers by a court of equity is so far from being an objection, that it lays at the very foundation of all equity, and forms its most peculiar and excellent characteristic, as contradistinguished from the strict, precise and unyielding principles which govern in the courts of common law.
In the case before us the parties have not, by any stipulation, made the time of payment of the essence of the contract. Nor is there anything in the nature of the contract, or the general object of the parties in making it, nor any particular hardship on the part of the appellant showing that a just compensation can not be made, or any unfairness on the part of the respondent, which ought to deprive the latter of his right to a specific execution of the agreement, if by his acts of part performance the case be not within the operation of the statute.
As to the acts of part performance, the appellant in his answer admits, as stated in respondent’s bill, that in pursuance of the agreement he surveyed the land and put the respondent in possession, shortly after the agreement was made, in 1829 or 1830, when he received the $80; that the respondent has been in possession ever since, and has paid the taxes; that in July, 1835, the respondent offered to pay him the balance of the purchase money then due, and demanded a conveyance.
It does not appear that the appellant ever made any. demand of payment, or that the possession of the land be given up, or that he ever gave any notice to the respondent of his intention to put an end to the contract, or that he ever expressed any dissatisfaction as to the non-payment, until a very short time before the respondent tendered the balance due, in July, 1835.
From all that appears in the case, the respondent, under the first payment of §80, took and retained the possession, upon the fullest confidence that the agreement would be executed by the appellant; and his conduct has been fair throughout.
The possession so given to and held by the respondent, in full reliance upon the agreement, and in the absence of anything tending to show that the appellant had ever taken any steps to put an end to such contract, or even expressed any dissatisfaction at the default of the respondent with respect to the payments, and especially when the evidence shows that the appellant agreed to give a further time for the payment of the balance if the convenience of the respondent should require it, constitutes such a part performance of the agreement on the part oí the respondent, under the most rigid rule ever applied by a court of equity, as must be sufficient to take the case out of the operation of the Statute, and entitle respondent to a specific execution of the agreement.
There is evidence in the case showing that the respondent, during the time he has been in possession of the land, has made permanent and valuable improvements, building, and clearing twenty or thirty acres, and setting out fruit trees, valued at §200 to §500. It. is objected, however, that this ought not to be considered, inasmuch as it is not alleged in the bill. The general tacts relied upon, showing a part performance as a ground for taking the case out of the statute, and for enforcing the execution of the agreement, are requii-ed to be alleged in complainants bill; and therefore in this case, the fact of the improvements by tbe respondent is not taken into account in tbe decision of tbe case.
An objection was made by counsel for tbe appellant that tbe possession of tbe land was not taken by tbe respondent under and by virtue of tbe agreement set forth in bis bill. But this objection must have been founded upon tbe alleged variance between the contract stated in tbe bill, and that admitted by tbe answer and proved by tbe testimony. Tbe view I have taken of tbe objection as to variance, is an answer to this objection.
I am therefore of tbe opinion that tbe decree of tbe Court of Chancery in this case must be affirmed. That it be so modified that the respondent shall pay or tender tbe balance due to the appellant on or before tbe fifteenth day of July next, if be shall elect so to do, and that tbe appellant make conveyance within one calendar month from tbe time tbe said balance shall be paid or tendered to him; and that the respondent recover bis costs of this court, to be taxed in tbe Court of Chancery; and that if tbe respondent shall not so elect to pay dr tender tbe balance by tbe time so fixed, that then bis bill be dismissed with costs; and that tbe record be remitted to tbe Court of Chancery with directions accordingly.
Decree accordingly. | [
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Manning J.:
The errors assigned in this case present the following questions for the decision of the court: First, Is the plea of a former conviction a bar to the j>rosecution; Second, Had the Circuit Court cognizance of the offense charged in the first count of the indictment: Third, Did the court err in refusing to charge the jury' that, if Jones died in the county of St. Clair, of a wound inflicted by the prisoner on that.part of the St. Clair river not within the limits of the state, (as there was no evidence to support the second count in the indictment) they should acquit the prisoner. And Fourth, In refusing to charge that, if the jury should find the prisoner was a deputy of the Marshal of the United States, and was in the act of serving process, &c., as stated in the request to charge set out in the bill of exceptions, they should acquit the prisoner.
The first question was decided by this court when the case was before us on questions reseiwed: — People v. Tyler, 7 Mich. 161. We then held, and we have seen no reason since to change our opinion, that the Circuit Court of the United States for the district of Michigan, in which the prisoner was tried and convicted, had no jurisdiction of the offense under the act of Congress entitled “An Act in addition to An Act more effectually to provide for the Punishment of Crimes against the United States, and for other purposes,” approved March 3, 185'T, and that the prisoner’s plea of a trial and conviction in that court was therefore no bar to the present indictment.
The next question depends on the construction to be given to §5944 of Compiled Laws, which is in the following words: “ If any such mortal wound shall be given, or other violence or injury shall be inflicted, or poison administered, on the high seas, or on any other navigable waters, or on land, either within or without the limits of this state, by means whereof death shall ensue in any county thereof, such offense may be prosecuted and punished in the county where such death may happen.”
It is insisted by the prisoner’s counsel,7) that the words, navigable waters, as they are here used in connection with the high seas, should be understood as meaning such rivers or waters only as are navigable^from the sea, and in which the tide ebbs and flows; or, in other words, tide waters. We do not feel warranted in giving to them so restricted a meaning. They are used in a statute relating to offenses against the state, and their punishment. They are not used in connection with admiralty law, or courts of admiralty; and as the state has nothing to do with such laws or courts, and there are no waters of the description referred to within her limits, or within several hundred miles of the state, it is quite evident the Legislature must have used the words in a much broader sense, and as including waters in which there is no ebb and flow of the tide. We doubt whether they were ever used in the laws of Michigan in the restricted sense imputed to them, as there is nothing within the limits of the state, or contiguous thereto, to which they could in that sense be made to apply. But there are large lakes and rivers lying partly within her limits, and partly within a foreign state, to which we think they do apply. They are used in the section under consideration (on which the first count of the indictment was framed) in the sense, we think, in which the same words are used in the ordinance of ’87, which provides that the navigable waters leading into the Mississippi and St. Lawrence shall he public highways. The Massachusetts statute from which it is said our statute was taken, does not contain these words. We are therefore of opinion the Circuit Court for the county of St. Clair had cognizance of the offense charged in the first count of the indictment.
The construction we have given to the statute disposes of the third question. Whether there was evidence or not to support the second count, which is in the usual form, it would have been error in the court to have charged as requested.
Something was said on the argument as to the power of the Legislature to enact such a law; but as it was not made a point by the prisoner’s counsel, we should not now notice it were it not that our brother Campbell, differing with a majority of the court, holds the statute to be unconstitutional. We think it clearly within the scope of the legislative power. We know of no constitutional inhibition; no part of the Constitution with which it comes in conflict: — In Sears v. Cottrell, 5 Mich. 251, we stated in substance, if not in words, that to warrant us in declaring a statute unconstitutional, we should bo able to lay our finger on the part of the Constitution violated, and that the infraction should be clear, and free from a reasonable doubt. We still adhere to the views then expressed. The ■ expediency or policy of the statute has nothing to do with its constitutionality; and if it was a legitimate subject of inquiry and] consideration in determining the constitutional question, we should not hesitate in the present instance to declare in its favor; for the crime, though commenced in Canada, was consummated in Michigan.
The shooting itself, and the wound which was its immediate consequence, did not constitute the offense of which the prisoner is convicted. Had death not ensued, he would have been guilty of an assault and battery; not murder; and would have been criminally accountable to the laws of Canada only. But the consequences of the shooting were not confined to Canada. They followed Jones into Michigan, where they continued to operate until the crime was consummated in his death. If such a killing did not by the common law constitute murder in Michigan, we think it the clear intent of the statute to make it such, to the same extent as if the wounding and the death had both occurred in the state.
The only remaining question is, whether the court erred in refusing to charge that, if the jury “believed from the evidence introduced, tending to show it, that at the time of the shooting of the said Henry Jones, as charged in- the indictment, the defendant was a deputy of the Marshal of the United States for the district of Michigan, and had in his possession and exhibited at said time, a writ of attachment of said brig Concord, duly issued under the seal of the District Court of the United States for the district of Michigan, sitting in Admiralty, and that said defendant at said time was avowedly attempting to execute said writ, as such deputy Marshal, by taking possession of said brig, unmoored and in motion, or riding at anchor in that part of the river St. Clair lying on the Canadian side of the boundary line between the United States and the province of Canada; that said brig was an American vessel, and that said Henry Jones was the master of said brig, and was at said time forcibly and with deadly weapons resisting and intending to resist said defendant, and said writ, at all hazards; that then said shooting and killing was excusable homicide, and the prisoner must be acquitted.”
The court was right in refusing to charge as requested, for two reasons:
First: Because the request assumed what does not -appear from the bill of exceptions, viz: that the prisoner was a deputy of the Marshal; that he at the time exhibited the writ, and was in the act of executing it; and that Jones forcibly, and with deadly weapons, resisted the execution of the writ. There is no evidence in the bill of exceptions tending to prove these facts, nor any statement-that there was evidence before the jury tending to prove them. Without the evidence itself, or a statement in the bill of exceptions that there was such evidence, we can not determine the propriety or impropriety of the request; or whether the charge, if made, would or would not have anything to do with the merits of the case, or be an abstract principle of law, wholly foreign.
Second: Because the writ did not authorize the seizure of the vessel in Canadian waters. The process of a court is if no force or validity beyond its territorial jurisdiction. Validity may be given to it by statute, or a law of the state, coextensive with the state, but no extra territorial validity whatever can be given to it without the consent of the sovereignty of such territory; and we know of no treaty between the United States and Great Britain authorizing the service of the writ in Canada.
The judgment must be affirmed.
Martin Ch. J., and Christiancy J. concurred. | [
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The Coukt held the notice sufficient. | [
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] |
Chuistiancy J.:
It is unnecessary to determine in this case, whether the warrant of arrest was void, though we are inclined to the opinion that it was not. The complaint was sufficient; and the warrant was to answer “ to the complaint of Garrett Pbeeland, of said county,” and the offense is charged to have been committed in the house of complainant (and occupied by him). This, together with the venue in the margin, might, perhaps, be considered equivalent to charging the offense as committed in said county. But we give no definite opinion upon this point, as the case does not call for it.
Nor is it necessary to determine whether the judgment of the justice was void, or only voidable; since, if it was in all respects valid, it did not authorize the warrant of commitment. The judgment (or what is claimed to be a judgment) was that the defendant pay a fine of five dollars within one hour, or be imprisoned in the county jail for the term of ten days, or till otherwise discharged according to law.
The commitment recites a judgment for the payment of five dollars fine, or imprisonment until the fine should be paid, or he be discharged by due course of law: and the command for the imprisonment is in accordance with this recital. The judgment proved was for imprisonment for a definite time, ten days, or till otherwise discharged, &c. The commitment purports to be founded on a judgment of imprisonment for an indefinite period of time, and commands the imprisonment for an indefinite time.
The period of imprisonment, under the judgment proved, could not have exceeded ten days. The imprisonment authorized by the commitment would be limited (if at all) by the period for which the justice had jurisdiction to punish for the offense, which, by the statute, is three months: — Comp. L. §8965.
The commitment was therefore void. This was not a mere error of judgment in the performance of his judicial duties, such as an erroneous opinion or judgment on the trial of a cause of which he had jurisdiction. . It was a clear excess of jurisdiction, and that in the performance of a ministerial rather than a judicial act.
We have been very reluctantly brought to this conclu sion, -as there does not appear, from the case as presented, any ground for suspecting that the defendant acted corruptly, or maliciously. From the facts disclosed, we should infer the contrary; that he acted with entire good faith; and that he erred only through mistake or ignorance, The imprisonment seems to have been very slight, and, for-aught that appears, well merited. But there may have been, or believed to be, something in the case which the record fails to show; and we would not lightly attribute to respectable counsel a willingness to aid in the prosecution of such a suit, where the expense of the litigation must far-exceed any damages he could expect to recover, unless it was believed that a corrupt or malicious motive could be shown.
Actions of this kind, where the officer has acted in good faith, ought not to be encouraged; for though in strict law there may be, as in this case, a legal injury sufficient to constitute a cause of action, and to entitle the plaintiff to any actual damages he may have sustained by the imprisonment, however much he may have morally deserved it; and though the court can not protect the defendant from that liability without overturning well settled legal rules, yet, upon this hypothesis of the case, the plaintiff is, indebted for the support of his action to the imperfection of the law, its inability to deny the action without the sacrifice of that certainty in its rules which is essential to, its general utility. It is quite apparent that “the utmost, strictness of the law, in such cases, is not justice.”
The judgment must be reversed, and a new trial ordered,
The other Justices concurred. | [
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Montgomery, C. J.
The plaintiff brings this action to recover for a negligent injury. The facts, as they appear b3T the testimony, are that the plaintiff was in the employ of the Schlitz Brewing Company, engaged in delivering beer to its customers. One Wright Calkins was a customer of the brewing company. On his premises, and in the cellarway through which plaintiff passed in delivering the beer, was an electric light, attached to a movable wire, supplied with a brass or metal handle or hanger, by which it was hung upon a nail in the cellar-way. The wire connecting therewith passed through a hole in the lower end of the handle, thence to the carbon film in the bulb. It was claimed that it was necessary in using the light, and 'customary, to take hold of the handle or hanger. The breach of duty alleged is that the defendant failed to insulate the wire and handle to the fixture properly. It appears by the testimony of Calkins that the handle had formerly had a kind of cement wrapper on, but, in carrying it through the cellar, it would get loose and drop off, and that it was off at the time of the accident; that, some two or three weeks before the accident, an agent of the defendant put in a new wire, but did not put any cement or wrapping on at that time; that the agent of the defendant was notified that the wrapper to the handle was off, and that he (Calkins) wanted a new one put on, and that the agent promised to-fix it, but that it never was fixed prior to the accident. Plaintiff recovered a judgment for injuries sustained, and the defendant brings error.
The principal contention of defendant is that, upon this state of facts, it does not appear that there was any such privity between the plaintiff and the defendant as entitles the plaintiff to recover for the defendant’s neglect; that whatever duty the defendant owed it owed to Calkins; and that third parties injured by reason of this neglect of duty are not entitled to recover against the defendant. There was evidence tending to show that the defendant was the owner of this fixture, but this does not determine the question of liability. In the leading case of Winterbottom, v. Wright, 10 Mees. & W. 109, the defendant was the owner of the mail coach supplied, and it was also his duty to keep it in repair; and it may be stated as a general rule that one who lets property for use, like one who sells it, is not responsible to'third parties injured by reason of a defect in the article or property let or sold. See Necker v. Harvey, 49 Mich. 517 (14 N. W. 503); Fowles v. Briggs, 116 Mich., at page 428 (74 N. W. 1046, 40 L. R. A. 530, 72 Am. St. Rep. 539), and cases cited. In Howies v. Briggs it was said that the only apparent exceptions to this rule were where the fault consisted of defendant failing to keep his premises in a suitable and safe condition, or where the defendant had reserved the right to direct the manner of the work or undertaken to supply the instrumentalities,- or where the shipper of a dangerous substance, the character of which was not made known to the carrier, had been held liable. If it be suggested that this case comes within the latter class of cases, namely, where the defendant is dealing with a dangerous substance, the limitation of the rule, as we understand it, is that there shall be no intervening human agency which might have arrested the injury or furnished protection. This is well illustrated in the case of Carter v. Towne, 103 Mass. 507, where gunpowder was sold to a boy 8 years of age, and it was, of course, conceded that the defendant was responsible for the injury likely to occur from the explosion of this dangerous substance. But it appeared that, after the sale, the boy had carried home the gunpowder, and put it in the custody of his parents, and that a part of it had been fired off by him, with their permission, before the explosion occurred by which he was injured. It was held that the sale of the gunpowder to the boy was not, therefore, a direct, proximate, or efficient cause of the injury.
So, in the present case, it appears that Calkins knew of the necessity of a protection for the lamp, and, whatever may be said of the failure of duty on the part of defendant to him, he saw fit to make use of it in its imperfect condition, and this must be held to be the intervention of an other agency between the defendant’s neglect and the plaintiff’s injury. Of the cases cited by plaintiff’s counsel,none of them militate against the rule which we think must govern the present case. See Reagan v. Electric-Light Co., 167 Mass. 406 (45 N. E. 743); Atlanta, etc., R. Co. v. Owings, 97 Ga. 663 (25 S. E. 377, 33 L. R. A. 798); and Ahern v. Telephone Co., 24 Or. 276 (33 Pac. 403, 22 L. R. A. 635). In each of these cases the fault was a fault of the defendant’s system, wholly under its own control, and with which no person other than the defendant had authority to interfere in any manner whatever. But such is not the present case.
Whether we may deem electricity, in the voltage used by the defendant, a dangerous substance, within the meaning of the rule that one transmitting such dangerous substance shall be held liable, where there is no intervening person charged with any duty connected with it, who has knowledge of its dangerous character, in a case presenting facts involving that principle, we need not here decide, as we think that, upon the ground stated, the verdict should have been directed for the defendant.
The judgment will be reversed, and a new trial ordered.
The other Justices concurred. | [
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Long, J.
Plaintiff was injured by a wabble saw upon which he was working in defendant’s factory. It appears that formerly the defendant had used a single saw for grooving cleats for end boards to wagon boxes. Finding that this single saw did not do the work properly, the foreman of defendant’s shop, one John Belz, devised this wabble saw, which was made by placing’ two saws together side by side. This did not work satisfactorily, as dust got between them; and finally he put a pasteboard washer between the saws, about three-sixteenths of an inch in thickness. The saw thus constructed was run in defendant’s shop occasionally in cutting these grooves, being operated mostly by the foreman and by a workman by the name of Monroe. Testimony was introduced tending to show that saws built in this way are dangerous, as they are liable to make slivers wedge in and throw the board from under the hand; that it has a tendency to wedge splinters between the two saws. The foreman and superintendent of defendant’s shop for 13 years, one Mr. Reed, testified that in all his experience he had never seen a double saw used for grooving; that a single saw was used as far as he knew; that he had worked in shops in Lansing, Jackson, Saginaw, Kalamazoo, Adrian, Tecumseh, and other places, and had there seen wabble saws, but that he never saw one made of two saws thus fastened together. There was some evidence also given by plaintiff tending to show that the table was not properly adjusted; that it was not rigid; that the blocking used at the time of the injury was an unsafe way of adjusting the table.
The plaintiff was a man 51 years of age, who had worked as a carpenter and joiner for about 30 years, and had worked for the defendant, off and on, since 1895. He worked first on a boring machine, then on a planer, and then on a jointer. He had never worked on the wabble saw until the day of his injury, September 12, 1898. The foreman then put him to work on that saw. He testified that the foreman told him how to work it; that he set the saw up for him, and ran a piece over it himself, measured the depth of the groove, and said it was all right, and that plaintiff should go- ahead with the work; that the foreman came back a number of times to measure the groove, and cautioned him to keep the piece against the gauge; that the foreman did not tell him anything about managing the saw; that the table was an-ordinary ripsaw table. He was asked:
“Q. Had you discovered before you were injured that it was possible for a piece to become wedged in there ?
“A. No, sir; I had no idea of such a thing. The thought never occurred to me. I had never seen a saw of this design used for grooving. The larger the saws, the more they would spring out and let a larger sliver get between them, and the liability of slivers getting between them would be increased. The saw was made to wabble by placing a wedge on either side, so as to throw it out of true. It wabbled seven-eighths of an inch.”
It appears that, after plaintiff had been at work for about five or sis hours, a sliver caught in the saw, threw the piece of board upon which he was working back, and, letting his hand drop on the saw, injured it severely, cutting off two fingers and injuring his thumb.
Defendant’s foreman testified that he put the plaintiff at work at the saw; that there was no other man he could spare that could run it; that it required a man of good sense to run it, and that, if he had not got sense, he had better keep away from it. He was asked:
“Q. Did you not always, when you put a man on a dangerous machine, give him instructions with reference to the probable danger ?
“ A. If a man thinks a machine is dangerous, he must not go near it. If I think a man is not fit for that machine, and does not know the danger, I won’t put him on there.
“ Q. Then you never instruct anybody that you put on a machine as to its danger ?
“ A. Well, I do sometimes, if I think it necessary; if I think he don’t know anything about it.”
It is contended by counsel for defendant that the case alleged in the declaration is not sustained by the proofs. The first count of the declaration alleges that pieces of timber being worked would become wedged or fastened between the saws, thereby throwing it from under the hand of the operator and the hand upon the saws; that of all this the defendant had notice, and failed to warn the plaintiff of such danger. There was considerable testimony showing that a saw constructed in the way this one was was liable to hook into the timber, and throw the timber operated on back from under the hand; that the teeth had too much rake and made slivers; that it was a dangerous saw to operate; that, being made of two saws, the saws would spread apart, and thus compel the timber to be thrown back from under the hand. Many witnesses concur in the statement that it was a dangerous saw to operate. It was shown that the plaintiff had had no experience with this kind of a saw, and did not know of its dangerous character. He was not informed that it was dangerous when he was set to work upon it, though most of the witnesses, who were men employed about the building, testified that it was a dangerous machine to operate. The plaintiff had a right to rely upon the defendant’s foreman to furnish him with not only a safe place to work, but also a safe machine to work with. We think there was some testimony to sustain the allegations of the declaration, and that the cause was properly submitted to the jury.
It is claimed that the plaintiff assumed the risk in engaging to work on this saw. We cannot concur in this. It is true that he knew before that they had been using a single saw to do this kind of work, and knew when he went to work that they had changed it to a double saw. He had seen the foreman grooving cleats upon this saw before he went to work, but he testified that he did not know of its dangerous character.
The testimony of the plaintiff tended to show that the table was defective, in that it was not firm and rigid; that it was supported by strips, with no device to hold them in position, and that they would work out, and permit the top of the table to drop down; and plaintiff testified that, when these strips would drop down, it would cut the grooves too deep; that, when it occurred, he would put the strips back in place; that, if he saw a piece coming out, he would put it back in place. It is the contention of counsel for defendant that plaintiff was guilty of contributory negligence in using this table knowing its defective condition. We think the question of the negligence of defendant and of the contributory negligence of the plaintiff was fully and fairly submitted to the jury under the charge of the court.
It is contended that the testimony offered by the plaintiff showed conclusively that it would be apparent to any man used to saws that pieces would lodge in a saw of this construction, and that the submission of the question to the jury whether the plaintiff knew, or ought to have known, by the exercise of care and the knowledge he had acquired by his experience, of this danger, was error. The court, we think, very properly charged the jury upon this question as follows:
“It was the plaintiff’s duty to exercise care to avoid injury. He was under as great obligation to provide for his own safety from dangers known to him or discoverable by ordinary care on his part as the defendant was to provide for him. It was his duty to learn the danger. He could not go blindly to his work where danger existed. He was bound to inform himself and observe and take such knowledge of danger as could have been attained by observation. If he failed to do so, the risk was his own. And, although you find that the saw and table referred to were improperly constructed or adjusted, your verdict must be for the defendant, unless you find by a preponderance of the evidence that such defective construction or adjustment would not, by ordinary, careful observation, have been discovered.”
Upon an examination of the whole record, we are satisfied that the case was fairly tried and submitted to the jury. We find no error. The judgment below must bo affirmed.
The other Justices concurred. | [
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Moore, J.
The complainant filed a bill against defendant, alleging extreme cruelty, and praying for a divorce and permanent alimony. The circuit judge rendered a decree in accordance with the prayer of the bill. The de-' fendant has brought the case here by appeal. He alleges the proofs do not show a case of extreme cruelty. We cannot agree with him. It would profit no one to repeat the testimony here, but we think it clearly justifies the conclusion of the circuit judge that defendant was guilty of extreme cruelty.
It is alleged by way of defense that, when the parties to this action were married, the complainant had a living husband, and that defendant never was her husband. In this connection it becomes necessary to make a statement of the substance of the testimony. In May, 1883, the complainant, whose name was then Martha A. Harris, married one Hampton, and lived with him, keeping house at Saginaw, Mich. Their relations were pleasant. Hampton was a plasterer by trade. About 15 months after his marriage he went to a point near Louisville, Ky., for the purpose of getting employment. The arrangement with his wife was that he would either return to Saginaw, or send for her to come to him. He had chronic diarrhea when he left home. His wife did not hear from him after he went South, and she sent letters of inquiry, in reply to one of which Mrs. Haines wrote her from Louisville, Ky., saying her husband had been there and was sick, and told her if he did not get better in a few days he was going back home. In reply to later letters Mrs. Haines wrote she had not again seen or heard from Mr. Hampton. He never returned to Saginaw, and complainant testified she supposed he was dead. In 1887 the defendant began to pay attention to Mrs. Hampton. She testified that, in reply to an inquiry from him where her husband was, she told him she supposed he was dead; that she had not heard from him since he went away, and the only news she had of him was that he was sick, and told the circumstances of his going away; and Mr. Wagoner agreed with her, after she told him what she knew about Mr. Hampton, that he must be dead. She testified that, at the earnest solicitation of defendant, on Christmas day, 1887, she married him. The marriage ceremony was performed by a minister of the gospel, and the parties lived and cohabited together as husband and wife until March, 1900. Mr. Hampton had not returned to Michi gan when the case was tried in the court below, and his wife never heard from him after he left Saginaw. Upon this statement of facts, can it be said the second marriage was invalid, and the court was not authorized to grant a decree of divorce ?
In the case of Kelly v. Drew, 12 Allen, 107 (90 Am. Dec. 138), the question arose as to whether the second marriage of a woman was valid, where she had lived separate from her first husband for about 4 years without hearing of him or his death at the time of her second marriage, and did not hear of him for 16 years afterwards. It was held the presumption was she was the lawful wife of the second husband. Justice Gray, speaking for the court, said:
“The state of facts offered to be shown by the witness was only that more than 20 years ago she was married to another man, and lived with him for a few months, and about 4 years afterwards married the defendant, without having heard of her first husband’s death. No evidence was offered that the first husband had been heard from for 20 years, or that he had not died or been divorced from her before her second marriage. Under the circumstances of this case, the presumption of the wife’s innocence in marrying again might well overcome any presumption that a man not heard from for 4 years before the second marriage^ or for 16 years afterwards, was alive and her lawful husband when she married the second time. Rex v. Inhabitants of Twyning, 2 Barn. & Ald. 386; Lapsley v. Grierson, 1 H. L. Cas. 505; Loring v. Steineman, 1 Metc. (Mass.) 211; Town of Greensborough v. Town of Underhill, 12 Vt. 604.”
In the case of Wilkie v. Collins, 48 Miss. 496, a husband left his home in Mississippi on October 30, 1859, and went to Louisiana on business, where he was last heard from by letter to his wife written November 30th of the same year, in which he said he was sick in bed, and would return as soon as able to travel. He did not return, and the wife, believing him dead, married again December 22, 1861. The absent husband was never heard of alive. The question arose, Was the second marriage valid? In deciding the case the court used the following language:
“About two years after Roberts left home, Mrs. Roberts married Wilkie. There is always a presumption that every individual conforms his conduct to the requisitions of duty, as prescribed by law. It belongs to universal jurisprudence that innocence of an act which the law forbids and denounces as criminal shall be presumed. Therefore, if a man or woman contracts a marriage in due form, the presumption is that the marriage is legal; that is, that there was no legal impediment in the way. It was very properly said in Powell v. Powell, 27 Miss. 785, that the ‘law favors marriage,’ and ‘requires clear testimony to invalidate it.’ The'superstructure of society rests upon marriage and the family as its foundation. The social relations and the rights of property spring out of it and attach to it, — such as dower, administration, distribution, and inheritance. All controversies, therefore, growing out of marriage, assume the dignity and importance of quasi public questions.
“The marriage of Mrs. Roberts with Wilkie is said to be bigamous, because, at the time it was contracted, Roberts had not been absent for five consecutive years without being heard from, and therefore the presumption did not arise that he was dead. Rev. Code 1857, p. 577, art. 29. The precise fact to be ascertained is whether Roberts was living when Mrs. Roberts was married the second time. If no other fact appeared but simply the marriage, the presumption is in favor of -validity. But there is also a presumption in favor of the continuance of life, which is only overcome by a protracted absence for the time specified. In such circumstances, founded on considerations of policy, and in favor of innocence, the presumption in favor of the marriage will prevail, as against that of the continuance of life, and it will devolve upon the disputant of the marriage to overcome it by testimony that the first husband was living at the time of the second marriage. 1 Greenl. Ev. § 35; Rex v. Inhabitants of Twyning, 2 Barn. & Ald. 386. In Rex v. Inhabitants of Harborne, 2 Adol. & E. 540, it was proved that a letter had been written by the first wife, from one of the colonies, only 20 days before the husband married the second time. This was deemed sufficient to warrant the presumption that the wife was living.
“The case reported in 2 Barn. & Ald. supra, arose in respect to a settlement in the parish. The woman, 12 months after the husband was last heard from, married a second husband, by whom she had children. It was held that it was rightly presumed that the first husband was dead at the time of the second marriage. This application of the principle was accepted and adopted in Spears v. Burton, 31 Miss. 547. The action was ejectment. The title was claimed by descent, cast upon the issue of the marriage, which was impugned as illegal because the marriage with Burton, the plaintiff’s father, took place within five years after the desertion of Bayard, the first husband; therefore there was no presumption of his death, and it was incumbent on the plaintiff to prove his death. The court, however, affirm the rule to be that the presumption is that the marriage was valid, and the onus was upon the defendant to show the contrary by proving the .first husband living at or shortly before the date of the second marriage. Gibson v. State, 38 Miss. 322, was a prosecution for bigamy. The court declare that there is no difference between the civil and criminal consequences when the fact of marriage in due form of law has been proved.
“ The presumption in favor of the marriage of Mary Elizabeth with Wilkie is greatly sustained and aided by the testimony. It was in evidence that her relations with her first husband, Roberts, were agreeable and pleasant; that he left home in the fall after the marriage to go to Louisiana on business; that he wrote several times to his wife. The last letter, written from a sick bed, stated that so soon as he recovered he would return home. He was represented as a delicate man, in feeble health. The correspondence suddenly ceasing, and Roberts not being heard from for quite a year, when Mrs. Roberts married again, begets the strong impression that his feeble frame succumbed to the disease which was upon him when he wrote the last letter to his wife, and that when she married Wilkie she was a widow. Such was the belief of the family. Connect this part of his history with the further circumstance that the other contestant offered no testimony that Roberts was ever afterwards heard of by his family connections and friends, and the inference is legitimate and strong that he died about the time supposed by his wife. The controversy originated about this administration in 1871, — 11 years after Mrs. Roberts supposed that her husband had died, and about 9 years after she had married Wilkie, the intestate; and yet in this long interval nobody has ever heard of him alive. At the time of Mrs. Roberts’ second marriage, the facts shown in evi dence were sufficient to satisfy her that her first husband was dead. Acting on that belief, she married a second time. The last marriage cannot be invalidated except by proof that the first husband was living at the time, or so shortly before as to put upon her the necessity of proving his death.”
This case would seem to be on all fours with the case at bar. See Yates v. Houston, 3 Tex. 433; Carroll v. Carroll, 20 Tex. 731; Canady v. George, 6 Rich. Eq. 103; Cartwright v. McGown, 131 Ill. 388 (3 Am. St. Rep. 105); Boulden v. McIntire, 119 Ind. 574 (13 Am. St. Rep. 453); Johnson v. Johnson, 114 Ill. 611 (55 Am. Rep. 883).
The only remaining question calling for discussion is, Did the court err in the amount of permanent alimony he decreed? The testimony in relation to the amount of property owned by defendant is very unsatisfactory. This case was commenced on the 31st day of April, 1900. It was shown by the cashier of the Bay City Bank that on the 9th of April the deferidant drew from' that bank deposits amounting to 11,484.78, and that he made no deposits after that date. It was also shown that he had a quantity of real estate. The defendant offered no testimony in the court below, but he was called as a witness by the complainant, who attempted to show by him what property he had. His answers-were not frank, and, after some questions had been put to him, his counsel objected to his further examination, and the court 'sustained the objection. A stipulation is attached to the record stating that affidavits were filed upon the hearing of the application for temporary alimony stating that defendant’s real estate was worth not more than $660, and his personal property not more than $150,' and that he had no money in any of the banks of Bay City. The circuit judge allowed complainant $600 permanent 'alimony. In view of the situation of the record, we are not prepared to say this is excessive.
The decree of the court below is affirmed, with costs.
Montgomery, C. J., Hooker and Long, JJ., concurred. Grant, J., did not sit. | [
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] |
Moore, J.
This is a proceeding to compel the respondent to entertain a prosecution against one William Allen.
There is an ordinance in the city of Detroit the material portions of which read as follows:
“An ordinance to regulate the use of public streets, avenues, parks, grounds, and other public places in the city of Detroit.
“It is hereby Ordained by the People of the City of Detroit:
“Section 1. No person shall, in or upon any of the public streets, avenues, parks, grounds, or other public places within the one-half mile circle from the city hall, make any public address, beat drums, blow horns, or expose for sale any goods, wares, or merchandise, erect or maintain any booth, stand, tent, or apparatus, except in accordance with á permit from the mayor, such permit to designate the time and place when said person or persons may avail themselves of the privileges herein granted. And no permit shall be granted to any person or persons for more than one night in each week.”
After this ordinance was passed, a complaint was made, the essential part of which is as follows:
“ William Rutledge, being first duly sworn, makes complaint and says that at the city of Detroit aforesaid, on the 13th day of August, A. D. 1901, within the corporate limits of the city, in a public place known as the ‘ Campus Martius,’ being within the one-half mile circle from the city hall, one William Allen did then and there unlawfully and willfully make a public address in the aforementioned public place without first having obtained a permit therefor from the mayor of the city of Detroit, and did, by reason of making such address, gather or cause to gather a large crowd of people, to wit, one hundred people or thereabouts, to the evil example of all others in the like cause offending, and contrary to the ordinances of said city in such,case made and provided.”
This complaint was presented to the recorder, and, when Mr. Allen was arraigned, the recorder, deeming the ordinance to be invalid, declined to allow the case to proceed, and discharged the accused.
Two questions call for discussion: First. Does the charter confer upon the common council power to pass the ordinance? Second. Is the ordinance a reasonable and valid exercise of such power ?
Section 34, chap. 7, Charter 1893, reads in part as follows:
“Said council shall have power to provide for cleaning the highways, streets, avenues, lanes, alleys, public gi’ounds and squares, crosswalks, and sidewalks in said city, of dirt. * * * It shall further have power to prohibit and prevent incumbering or obstructing streets, lanes, alleys, crosswalks, sidewalks, and all public grounds and spaces with vehicles, animals, boxes, signs, barrels, posts, buildings, dirt, stones, brick, and all other materials or things whatsoever, of every kind and nature, and to remove the same therefrom; * * * also to control, prescribe, and regulate the manner in which the highways, streets, avenues, lanes, alleys, and public grounds and spaces within said city shall be used and enjoyed.”
Section 35 of the same chapter provides that:
“The council may regulate the ringing of bells and the blowing of steam whistles, and may provide for the prohibition and prevention of any riot, rout, disorderly noise, disturbance, or assemblage, or the crying of any goods in the streets or elsewhere in said city.”
It is conceded that the Campus Martius is an open paved space nearly front of the city hall, where many of the principal streets of the city join each other. A portion of it is occupied by the soldiers’ monument, and nearly all of the street-car lines in the city pass upon one or the other of its borders. Ever since the city has existed it has been a public space within the city. It is difficult to see how power over this space could be more explicitly conferred upon the council than by the language used in the charter giving to it the power “to control, prescribe, and regulate the manner in which the highways, streets, avenues, lanes, alleys, and public grounds and spaces within said city shall be used and enjoyed.”
We then come to the second question, Is the ordinance a reasonable and valid exercise of the power conferred ? No question is raised as to the manner of the passage of the ordinance, but its reasonableness is questioned. It is insisted by counsel that this phase of the controversy is controlled by what is known as the “Frazee Case” (In re Frazee, 63 Mich. 396 [30 N. W. 72, 6 Am. St. Rep. 310]). We quote from the brief of counsel:
“ I submit that no good reason can be shown why this court should overrule the Frazee Case, nor the declarations therein contained for personal liberty. Nearly a . generation has passed since this court made the widespread promulgation for personal liberty embodied in the unanimous opinion of this court in the Frazee Case. It has become a landmark among the opinions of this court, and has been more frequently followed and quoted with approbation than any decision in favor of personal liberty it ever rendered. This is my judgment. It has in great measure been the basic stone upon which the Wisconsin case, the Illinois, Kansas, North Carolina, Maryland, and New York cases, rest. While not so famous as the Sommersett Case, 20 How. St. Tr. 1, of Lord Mansfield, who declared no man could breathe the air of Great Britain but his shackles fell from him instantaneously; that he was no longer bond, but free; that famous decision which will live, and justly so, as long as history does, as the particular glory of Lord Mansfield’s judicial diadem, — the Frazee Case is along the same lines. Courts are not organized to aid in repressing innocent liberty, but to give liberty. It is their blessed privilege to make men more free as they become able to enjoy their freedom. Let it not be said that in Detroit a citizen has not the liberty to preach the gospel if he does so to the inconvenience of no-public travel.”
We think, in his application of the Frazee Case to the case at bar, counsel has misunderstood the former case. The question in that case was, Who may travel in the highways ? The question in this case is, Who may occupy • the public spaces in the city, — some individual who happens to get there first, or shall-all the citizens of Detroit have equal rights there? and what shall be the manner of the occupancy ? It is evident that no considerable portion of the citizens of a great city like Detroit could occupy this limited space at one time; nor could all of the preachers, teachers; and public speakers in that city who might think they had a message to deliver to the people, with the audiences they would naturally draw, find room at one time in this public space, without rendering it useless as a place across which the public might travel. Under such circumstances, what can be more reasonable than to lodge the power of deciding when and where one may occupy this public space in one having sufficient intelligence and so possessing the confidence of his fellow citizens that they have placed him at the head of the municipal government? The court in the Frazee Case had no trouble in seeing tbe difference between tbe use of a street by a moving procession and a stationary assemblage •of people, as is shown by the following language used by the court:
“ It is not unusual to confine noisy doings to such hours' of the day and night as will not grossly disturb the quiet rest of sleep. It has been held, with reason, that a moving crowd may be less obnoxious than a stationary one; and this was said, in substance, when a defendant, who drew crowds to his windows by libelous pictures, and thereby blocked up a highway, undertook to justify himself by the processions of the judges and lord mayor. The remarks of Mr. Justice Park on the subject of crowds which may or may not be nuisances, in Rex v. Carlile, 6 Car. & P. 636, are quite instructive on this head.”
In the case of Rex v. Carlile, cited by the court, it was field that if a party having a house facing a street exhibit effigies in his' window, attracting a crowd, which causes the walks to be so obstructed that the public cannot pass as they ought, this would be an indictable nuisance, even though the effigies were not libelous, nor the crowd made up of idle or dissolute persons.
It is said the ordinance is directed against freedom of speech; but this is a mistake. It is simply directed to the method of using a public space, and is no more a curtailment of the right of free speech than would be an ordinance that prohibited the making of public addresses in the corridors of the city hall. Perhaps no city in the world has been more jealous of the right of free speech than has the city of Boston. But in the growth of that city it was confronted with a like question to the one involved here; that is, How should the use of Bosion Common, a public space or park near the center of the city, be regulated and controlled? To meet this condition, the common council passed an ordinance similar to the one in Detroit. The validity of this ordinance was -sustained in Com. v. Davis, 140 Mass. 485 (4 N. E. 577). In 1892 an •ordinance was passed reading substantially the same as the Detroit ordinance. Its validity was challenged for the reasons presented here. The ordinance was sustained. in Com. v. Davis, 162 Mass. 510 (39 N. E. 113, 26 L. R. A. 712, 44 Am. St. Rep. 389). The case was then removed to the Supreme Court of the United States. In the opinion the following language is used:
“It is argued that ‘Boston Common is the property of the inhabitants of the city of Boston, and dedicated to the use of the people of that city and the public in many ways, and the preaching of the gospel there has been, from time immemorial to a recent period, one of these ways. For-the making of this ordinance in 1862, and its enforcement-against preaching since 1885, no reason whatever hásbeen or can be shown.’ The record, however, contains no evidence showing the manner in which the ordinance in question had been previously enforced, nor does it include-any proof whatever as to the nature of the ownership in the common from which it can be deduced that the plaintiff in error had any particular right to use the common apart from the general enjoyment which he was entitled, as a citizen, to avail of along with others, and to the extent only which the law permitted. On the contrary, the legislative act, and the ordinance passed in pursuance thereof, previously set out in the statement of facts, show an assumption by the State of control over the common in question. Indeed, the supreme judicial court-, in affirming the conviction, placed its conclusion upon the express! ground that the common was absolutely under the control of the legislature, which, in the exercise of its discretion, could limit the use to the extent deemed by it advisable, and could and did delegate to the municipality the power to assert such authority. The court said:
“ ‘There is no evidence before us to show that the power of the legislature over the common is less than its power over any other park dedicated to the use of the public, or over public streets, the legal title to which is in a city or town. Lincoln v. City of Boston, 148 Mass. 578, 580 (30 N. E. 829, 3 L. R. A. 257, 12 Am. St. Rep. 601). As representative of the public, it may and does exercise control over the use which the public may make of such places, and it may and does delegate more or less of such control to the city or town immediately concerned. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no-more an infringement of the rights of a member of the public than, for the owner of a private house to forbid it in his house. When no proprietary right interferes, the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the lesser step of limiting the public use to certain purposes. See Dill. Mun. Corp. §§ 393, 407, 651, 656, 666; Brooklyn Park Com’rs v. Armstrong, 45 N. Y. 234, 243, 244 (6 Am. Rep. 70). If the legislature had power, under the constitution, to pass a law in the form of the present ordinance, there is no doubt that it could authorize the city of Boston to pass the ordinance, and it is settled by the former decision (Com. v. Davis, 140 Mass. 485 [4 N. E. 577]) that it has done so.’
“It is therefore conclusively determined there was no right in the plaintiff in error to use the common except in such mode and subject to such regulations as the legislature in its wisdom may have deemed proper to prescribe. The fourteenth amendment to the Constitution of the United' States does not destroy the power of the States to enact police regulations as to the subjects within their control (Barbier v. Connolly, 113 U. S. 27, 31 [5 Sup. Ct. 357]; Minneapolis, etc., R. Co. v. Beckwith, 129 U. S. 26, 29 [9 Sup. Ct. 207]; Giozza v. Tiernan, 148 U. S. 657 [13 Sup. Ct. 721]; Jones v. Brim, 165 U. S. 180, 182 [17 Sup. Ct. 282] ), and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the constitution and laws of the State.
“The assertion that, although it be conceded that the power existed in the State or municipality to absolutely control the use of the common, the particular ordinance in question is nevertheless void, because arbitrary and unreasonable, in that it vests in the mayor the power to determine when he will grant a permit, in truth, whilst admitting on the one hand the power to control, on the other denies its existence. The right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser. The finding of the court of last resort of the State of Massachusetts, being that no particular right was possessed by the plaintiff in error to the use of the common, is in reason, therefore, conclusive of the controversy which the record presents, entirely aside from the fact that the power conferred upon the chief executive officer of the city of Boston by the ordinance in question may be fairly claimed to be a mere administrative function, vested in the mayor in order to effectuate the purpose for which the common was maintained and by which its use was regulated. In re Kollock, 165 U. S. 526, 536, 537 (17 Sup. Ct. 444).” Davis v. Massachusetts, 167 U. S. 43 (17 Sup. Ct. 731).
See, also, Com. v. Brooks, 109 Mass. 355; Com. v. Abrahams, 156 Mass. 57 (30 N. E. 79); Wilson v. Eureka City, 173 U. S. 32 (19 Sup. Ct. 317).
It.was within the power of the common council to pass the ordinance. It was the duty of the recorder to proceed with the trial of the cause. People v. Swift, 59 Mich. 529 (26 N. W. 694); Sadler v. Sheahan, 92 Mich. 630 (52 N. W. 1030). It is so directed.
Montgomery, C. J., Hooker and Long, JJ., concurred. Grant, J., did not sit. | [
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] |
Campbell, J.
Ejectment was brought by plaintiffs against defendant to recover an undivided interest in certain premises in Detroit, whereof one Denis Campau died seized in 1818, from whom it is claimed by plaintiffs that all the parties derive title. The defense rested on long and undisturbed possession, by reason whereof they claimed plaintiffs were barred, by the presumptions which the law raises from adverse possession under the circumstances shown.
Joseph Campau, defendant’s father, had been in undisturbed possession from 1835 till 1863, and defendant under him ever since; and the evidence showed that he gave leases, received rents, and had possession, and paid taxes all that time. It also appeared that the premises had always been in possession of some one since Denis Campau’s death, as well as before.
The only evidence offered, .supposed to have an adverse bearing upon the character of Joseph Campau’s possession, was an offer to show that by assessment rolls during several years the land was assessed to Denis Campau. , But we think the court rightly held this was not important, as it did not appear that Joseph Campau had any thing to do with having it so assessed. If the land was assessed it was no more than prudent in him to pay the taxes without reference to names. And as the Denis Campau under whom plaintiffs claim ' had been dead for more than thirty years, it is difficult to see what bearing the form of assessment to Denis Campau as a living person could have had in their favor.
The plaintiffs asked to have two questions submitted separately to the jury. First — “At what date did Joseph Campau take possession of said property?” To this they answered, “In the year 1835.” Second — “By what acts did Joseph Campau claim to hold possession adversely to the plaintiffs?” This the court declined to present to the jury as too general.
The questions to be separately submitted to the jury are required to be “particular questions of fact” (2 C. L., § 6026), and these, as we have held, should be such as to involve legal consequences. — Grane v. Reeder, 25 Mich., SOS. We think such a question as that which was put here could not.be fairly called a particular question of fact, and it is difficult to imagine any answer that could have had any controlling force in reaching a conclusion. And it is quite evident that allowing such a question would not come very far short of requiring the jury to find a special verdict rather than a particular finding. Upon particular questions they may be expected to be able to find distinctly, as to all their attention is called to. But no jury can be expected to respond to any such sweeping inquiry, without the likelihood of introducing some irrelevant matter, or leaving out relevant facts which they would have found had their attention been expressly turned to them. Such questions are ensnaring, and not conducive to certainty. The court properly refused to put the question.
The case finally turned upon a general charge, or series of charges, whereby the court instructed the jury that if they found that Joseph Campau had occupied the property for more than twenty years, without any claim by the plaintiffs or their ancestors to a share of the rents and profits, and without actual acknowledgment of the rights of the plaintiffs or their ancestors, and with the knowledge of the latter, then they are well warranted in presuming any thing in support of defendant’s title, and they may presume either an actual ouster of the plaintiffs and their ancestors by Joseph Campau, or a conveyance by them to Joseph Campau. Joseph Campau being in possession, he and his heirs are presumed to have had a good title, and the burden of proof is upon the plaintiffs to show title in them selves. The mere fact that a deed of the premises was given to their ancestors more than fifty years before this suit was brought, is not enough to entitle them to recover.
The effect of this was, and was intended to be, that the jury might, upon finding the facts mentioned, give a verdict for the defendant; or, in other words, that upon those facts his possession and claim should prevail.
It is not therefore very important whether the presumptions were nominally referred to conveyances, releases, or any other bar to the plaintiffs; inasmuch as the defendant was only to prevail by reason of his long and undisturbed enjoyment; and that, if sufficient, would be sufficient without the aid of any specific presumptions, and would not be prejudiced by the existence or non-existence of presumable grants or releases.
The case may properly enough be treated as involving no more than would have been involved had no reference been made to any rights or presumptions which would not have arisen in any case of ouster and adverse possession. A general direction, such as was given here, would be correct if sustainable on that basis, and was not really sought to be placed on any other. The question on which the case turned, so far as it was presented under the ruling chiefly complained of, is whether upon certain facts stated, the inference of the tenant’s right is one of fact or of law. The jury were very clearly and carefully informed that the question of adverse possession was one of fact for them. The only point on which the charge can be supposed to have taken any thing away from them is the effect of a long possession without interference or claim from the alleged co-tenants. The court did not assume in any way to pass upon any of the facts, but merely told the jury that if certain facts existed they would be warranted in making the presumption that Joseph Campau. had a title by ouster or conveyance. I am by no means sure that the form of this charge did not leave all questions to the jury which are referred to in any of the authorities as jury questions, upon the theory of the narrowest rules. But it is not very important, because I think the court might quite as properly have directed the jury if they found, those facts to bring in a verdict for the defendant.
The plaintiffs, who claimed as tenants in common with defendant, by descent or grant under a common ancestor, Denis Campau, had themselves shown a state of things which left little, if any, occasion for defendant to prove any thing. They showed that Denis Campau died seized in 1818, and that the premises had been continuously occupied since 1814 to the trial. They showed further, and the jury found expressly, that .Joseph Campau took sole possession in 1835, and held possession, and gave leases and received rents, and paid taxes till his death in 1863, and his heirs since his death had so continued up to the trial,— a period of twenty-eight years in his lifetime, — and a continuous possession altogether, in the same right, of about thirty-seven years before suit. The charge complained of did not hold this possession alone as necessarily warranting any presumption of title, but told the jury it would do so if the possession of Joseph Campau had been continued more than twenty years “without any claim by the plaintiffs or their ancestors to a share of the rents and profits, and without actual acknowledgment of the rights of the plaintiffs or their ancestors, and with the knowledge of the latter.”
It is admitted that if these facts induced the jury to to believe the possession was held by Mr. Campau in his own sole behalf, they must have been bound to give a verdict for defendant. But if this would have been -warranted (as all authorities agree it would), it is difficult to see why, if they had found the same facts by special verdict, that verdict would not have entitled defendant to judgment.
The only occasion for the intervention of a jury is to draw inferences from disputed facts, or facts leading by themselves to no one presumption rather than to another. But in treating any of these facts such legal presumptions as arise from any of them, or which bear upon the issue, must be given their full effect. ■ And when any facts are found which, in combination with such legal presumptions, lead to one result, that result is one of law, and ' not open to the discretion of a jury. A special verdict containing them would be sufficient to warrant a judgment.
A plaintiff in ejectment has always the burden of making out a complete right. If he leaves his case open to such doubt that the facts are just as consistent with the defendant’s right as with his own, he must be defeated. He must always show a right which necessarily negatives that of any one else.
In order to give one tenant in common the benefit of another’s possession, that possession must have been taken as a common, and not as a sole possession. The mere fact of possession is of no special weight. It depends upon the circumstances. If a person enters avowedly as a tenant in common, it would require some state of things indicating a change of intention before the character of the possession could be altered. But where possession is not so taken it. would not be reasonable to require the same amount of proofs to justify its treatment as a sole possession. And it certainly devolves upon the plaintiff in ejectment to establish the' fact in some way that within the statutory period of limitation the defendant or his ancestor had been in possession in their common right, and not iu his own right.
When an original entry was really- made as a sole entry, the only way in which its nature and purpose could usually be proved would be by the use of the land in the same way in which sole owners commonly use it. It is only when there has been a change in the character of the holding that the tenant can be expected to show the change. And if a person acts from the beginning, just as he would act where he had an undisputed title, it would not be proper to presume he held on any other basis. When a tenant in common enters on land in that way and so continues, there is no reason why his sole management and possession should not put co-tenants as well as others to the duty of at least inquiring to ascertain whether he denied their rights. No man in his senses is in the habit of making verbal or conspicuous manifestations and professions unless a controversy arises, or unless he is changing his position. An unchanged enjoyment is the best possible evidence of an unchanged intent.
The object of statutes of limitation would be defeated if a tenant in possession, could be compelled to go back indefinitely and prove any thing anterior to his uniform and exclusive possession during the statutory period. The law presumes that in that time evidence will probably be lost, or at least may be so, and that a party who has been entirely inactive during that period should have all the risk and. burden thrown upon himself of proving what will overcome the defendant’s right by possession.
Take the present case as an example. Joseph Campau, if sued in his life-time, would have appeared, by plaintiffs’ own showing, to have been in possession of the lands in controversy for eight years beyond the statutory period, acting in all respects as he acted in regard to any other lands in which there never had been any common estate. If sued by an adverse claimant for such other lands, the possession would be conclusive, unless shown to have been held under that claimant’s right and title within the time of limitation. The possession could be shown not to have been really adverse, but the presumption would be otherwise. It would be as difficult for him to show the facts against a tenant in common as against any one else; and there is the same reason why such a tenant should look after his rights within twenty years, as well as any one else. The charge, in this case, did not require any more than this, and only authorized a verdict upon the finding that both plaintiffs and defendant had for all that time treated the property as they would if it had been confessedly defendant’s. For twenty years acquiescence in the defendant’s possession is not all that was to be found. It was required of the jury to take with this the entire absence of any of those steps which are incumbent on every land owner in good faith, if he desires to retain his inheritance. The rents and profits of land cannot be sued for except within a short period. The law cannot presume that a man having such claims will uniformly neglect them. The taxes are a lawful burden which the owner is bound to pay or see paid. The law will make no presumptions in favor of violators of the law. When a tenant in common, out of possession, acquiesces in the exclusive enjoyment of the person in possession for twenty years, and neither enters nor tries to enter, and neither seeks the rights nor performs the duties of a land owner, the presumptions against him ought to have their full force. It is as easy for him to prove the possession to have been subject to his rights as for the possessor to make proofs to the contrary, and when he invokes the interference of justice in his favor, he should be compelled to prove his case.
In most of the cases where the lapse of time has been held to warrant a presumption in favor of the tenant in possession the facts have been less favorable than here-Usually the reports show that there had been originally a possession under acknowledgment of the co-tenancy, and the defense rested on the presumption of an ouster or release thereafter. But here there is nothing to warrant the inference that the possession was ever any thing but adverse. There was a lapse of more than fifteen years between the death of Denis Campau and the entry of Joseph Campau; and the property had never been vacant. If this does not affirmatively show a change from a previous common to a several possession, it certainly has no tendency to show that the entry was not in a sole right. And inasmuch as an entry on behalf of all is the only thing which could under any circumstances raise any presumption of a subsequent holding in the same behalf the lapse of time with no assertion of right by the other tenants in common is very much more convincing than if it had appeared their title had ever been recognized.
Putting all these facts before, a jury, unless the presumption of title is one of law, the result must be very strange. How can they, if the question is open as one of fact, find any means of telling without proof whether there was ever a common tenancy recognized, or if so, when and how it was changed. It would be mere guesswork, and there is no case in which a jury can be allowed to draw inferences of fact without evidence • tending to prove the fact. In the absence of evidence the decision must always be against the party on whom the burden of proof rests.
In Doe v. Prosser, Cowp., 217, the case was put to the jury in substantially the same way as here, and the form of the charge given by Judge Patchin is the same, so far as relates to this question, as is recognized as proper in the opinions delivered by the king’s bench. The judges evidently understood that they were dealing with a presumption of law and not of fact. And such has been the view taken by the best American authorities. In Cummings v. Wyman, 10 Mass., 464, the court said that a contrary finding would have been erroneous and against evidence. In Rickard v. Rickard, 13 Pick., 251, it was held that the jury “ought” to make the presumption, and it was not spoken of as open to any other course. In Vandyck v. Van Beuren, 1 Caines, 84, and in Jackson v. Whitbeck, 6 Cow., 632,- the presumption is expressly declared to be a legal presumption. The discussion in Clapp v. Bromagham, 9 Cow., 532, is also very plain on this point.
The ambiguity of language which may have seemed to permit the reference of the question to a jury is more apparent than real. No case was found by the learned counsel for the plaintiffs in error favoring the application of such a doctrine. If juries should find against such a presumption, the best authorities agree that the verdict could not be allowed to stand. If the right to pass upon the presumption is with the jury, it would be a bold assumption for a court to interfere with it. And it would not only involve a different mode of dealing with cases in ■no way distinguishable (which would be trifling with justice), but it would introduce into jury trials the right ■to draw conclusions by pure guesswork, and without any evidence; which would be equivalent to allowing them to give the estates of suitors at their option and caprice, and not according to right.
I think that all the analogies of the law require such presumptions to stand as conclusive until rebutted by proof, and to govern both courts and juries as matters of right and not of discretion; and that the judgment should be affirmed, with costs.
Graves, J., concurred.
Christiancy, Ch. J.
While I agree fully with my brother Campbell upon some points, and in much that he has said upon others, -there are some principles which he has laid down as law, in the correctness of which I cannot concur; and while the differences between us might not ultimately be of great practical importance to the final result of this case, since, if submitted to the jury upon the principles which I ■ deem correct, the verdict would very probably have been the same; yet, to avoid errors and confusion in cases which may hereafter arise, I think it important that just results should be reached through the application of correct prin•ciples.
The evidence tended to show that Denis Oampau died -seized of the premises in 1818,'leaving several brothers and sisters his heirs; that plaintiffs, as the children of two of his brothers, were the heirs of one-third interest in the premises; that said premises have been occupied since 1814, but it does not appear by whom prior to 1835; that • Joseph. Campau, who died in 1863, was a brother of said Denis, and owned at the time of his death, by inheritance from him, and by purchase of the interests of other heirs, the balance of the title j that Joseph Campau had possession from the year 1835 to the time of his death in 1863, gave leases, received rents and paid taxes from year to year, and that his heirs, and defendant, claiming through him, haye had possession since.
The main question, and as I think, the only one'necessary to the decision, and with reference to which only the other questions become important, is that of the statute of limitations. If the possession of Joseph Campau, or his and that of his heirs together, had been adverse to the plaintiffs and their ancestors for twenty years or more before the institution of' this suit (February 20th, 1871), then their rights were barred by the statute; otherwise not. And by an adverse possession I mean a possession under claim of title, hostile to and in defiance of the rights of the plaintiffs, and those under whom they claim.
In a case where the plaintiff does not claim as tenant in common with defendant, or rather when the evidence does not prima facie show that the documentary or legal title was such as to make the party in possession a tenant in common (or joint tenant) with the plaintiff or those under whom he claims, at the time when he entered into possession, the mere open, notorious and exclusive possession, use and enjoyment of the property, in the same manner as if he were the owner, for the requisite period of time, would, as matter of evidence, furnish a strong natural presumption or inference, that he claimed to hold it as his own, and therefore adversely, unless there were something' to show the contrary. And in such case, if any where, this presumption would approach the character of a legal presumption. He stands in no fiduciary relation, and there would therefore seem to be no very strong grounds for presuming that he held the possession for the benefit of a party out of possession. And yet, even in such cases, by the great weight of authority, it is not the fact of taking. and holding the exclusive possession for the requisite period, which makes 'it adverse, but it must have been with a claim of right and the intention of holding it as his own, or it will not be adverse. The question of adverse possession is, therefore, even in such cases, one of mixed law and fact. The court are to instruct the jury as to the principles of law involved, but the quo animo, the intention with which the possession is taken or held, and which is to be inferred only from the facts and circumstances in evidence, is a question of fact exclusively for the jury. — See Angell on Limitation (2d ed.), pp. 410 to 416, especially cases-cited in note 2, p. 414, and authorities there cited. And it must be a very clear case indeed in which the court would be authorized to instruct the jury that if they should find certain specified facts and circumstances (however strong and tending to show the quo animo) they must find the party held with the intention of claiming the property as his own, and therefore adversely, or in which the court, upon a special verdict finding such facts and circumstances, would have the right to draw the inference of adverse holding as one of law.
But where the evidence (aside from the inference to be drawn from the use and enjoyment of the property) all shows that the person in possession was, at the time of taking it, and afterwards, a tenant in common of the title with the plaintiff and those under whom he claims, the inference in favor of the adverse character of the possession, to be drawn from the possession, use and enjoyment for the like period of time, is by no means so strong as in the case where no such tenancy in common of the title exists; nor do all the same presumptions arise; and the two classes of cases cannot be placed upon the ’same ground, in respect to the burden of proving the character of the possession by the like evidence, nor can all the same inferences be drawn from the same period of exclusive possession, in both classes of cases, without disregarding the very nature of a tenancy in common, and the unbroken ■current' of authorities from the earliest period down to this •day.
Tn some respects, it is true, both classes of cases are alike; it is for the plaintiff in both to make out his own title; in both, however, when the documentary or legal title appears from the evidence to be in the plaintiff, and the defendant relies only upon an adverse possession to defeat it, the burden is on him to show all that is essential to make it adverse. — Rowland v. Updike, 4 Dutch., 101; 3 Wash. R. Pr., p. 129, paragraph 25. But tenants in common sustain towards each other. a relation which is, to some extent, fiduciary. The possession of one is deemed to-be the possession of all the tenants in common. — Coke, Lit., 199 (b); 2 Cruise Dig. (by Greenleaf), Title 20, § 14; 1 Wash. R. Pr., pp. 566-567; 8 id., p. 128, § 121¡., and all other works upon this branch of the law. And as tenants in common of the title are equally entitled to a possession extending over all the common property, and the law presumes until the contrary is shown, that one of them going into and remaining in possession of the whole, intended to act honestly rather than dishonestly towards his co-tenants, in accordance with, rather than in hostility to their rights, it must, in the absence of contrary proof, presume that he holds possession, not only for himself but for his co-tenants. And such accordingly is the presumption which the law raises, both as to the taking and continuance in possession until the contrary is shown by proof to the satisfaction of a jury. See authorities above cited, also 3 Phil. Ev., Cowen, Hill & Edwards, 583; Knox v. Silloway, 1 Fair. (Me.), 201; Humbert v. Trinity Church, 24 Wend., 587; Thornton v. York Bank, 45 Me., 158; McClung v. Ross, 5 Wheat., 116; German v. Machin, 6 Paige, 288; Colburn v. Mason, 25 Me., 434; Lloyd v. Gordon, 2 Har. & McH, 254; Allen v. Hall, 1 McC. (S. C.), 131; Barnard v. Pope, 14 Mass., 434; Brown v. Wood, 17 Mass., 68; Catlin v. Kidder, 7 Vt., 12; Thomas v. Hatch, 3 Sumner, 170 ; Clyner v. Dawkins, 3 How., 674; Story v. Saunders, 8 Humph., 663; Jackson v. Tibbits,9 Cow.,241; Jackson v. Brink, 5 Cow., 483.
To make such possession of one tenant in common)therefore, a bar under the statute to an action by a co-tenant, it must, as in all other cases, of course be affirmatively shown to have been adverse; and this, in this class of cases (unless the original entry be shown to have been so), can only be shown by an actual ouster or disseizin prior to the statute period, or such a state of facts as is equivalent to' an ouster. As the tenant thus in possession had a legal right to enter, and the co-tenant had no right to object to his entry, such entry of itself can be no notice to the co-tenant of any invasion or intended invasion of his rights-; but he has a right and is bound to infer that he entered under his right as tenant in common, and if the premises were before vacant, that the entry and possession will enure to his benefit as well as that of the tenant thus entering, and that his own rights will be accorded to him when demanded. And whether the co-tenant against whom the possession of another is set up, was himself in or out of the possession previous to the entry of the other,, as he could in neither case object to the entry or possession itself, though made or held with a claim of the whole; it would seem to require a very peculiar state of facts which would make the entry itself constitute a disseizin or ouster. If one tenant be already in when the other enters, there could be no ouster or disseizin without actually turning him out, however hostile the claim under which the entry was made; but if the premises were vacant, and the entry even made by one with the knowledge of the other, expressly under some title or claim of title wholly adverse to the title in common, and with the avowed intention of holding it as his own and in defiance of any right of the other, so that the one out of possession would have fair notice that his own entry or claim of right would be resisted, and that he must resort to a suit to obtain them; this might be treated in effect as an ouster; and there are some few eases which have so held. But cases of this Bind seldom happen, and the question of the adverse nature of the possession or of an ouster, must generally (as in the present case, where the evidence is silent as to any acts or declarations accompanying the entry) depend upon the acts or conduct of the party, or of both parties, after the entry has taken place. The possession could therefore generally become adverse to the co-tenant, only by subsequent hostile .action, as by actually ousting the co-tenant if already in; •and, if not, then by claiming the whole against him, refusing to permit him to enter, denying his rights when he should demand their enjoyment, or in some way, in short, which ren- . ders the possession hostile in fact, so as fairly to notify him that he could no longer rely upon the presumption of his holding as tenant in common, upon which (until some act fairly giving this notice) he had a right to rely, and that he is to be driven to a suit for the recovery of his rights.— See Roberts v. Morgan, 30 Vt., 319; Holley v. Hawley, 39 Vt., 534; Doe v. Bird, 11 East, 49; McClung v. Ross, 5 Wheat, 116; Dexter v. Arnold, 3 Sumn., 152; Bracket v. Norcross, 1 Greenleaf, 89; Harpending v. Dutch Church, 16 Pet., 455; Willison v. Watkins, 3 Pet., 52; Zeller v. Eckert, 4 How., 297; Jackson v. Tibbits, 9 Cow., 244; Ricard v. Williams, 7 Wheat, 121; Hogsett v. Ellis, 17 Mich., 351.
From the fact that the tenant out of possession, until some hostile claim and action of the tenant in possession indicating the contrary, has the right to rely upon the ■presumption that the entry and possession of the other were in accordance with the title and as tenant in common, and that his own rights will be accorded to him when he may choose to demand them, it follows that such tenant out of possession cannot be held to the same promptness of diligence in asserting his rights as in cases where no such tenancy in common of the title exists.
The statute of limitations in barring a right of action is based upon the idea of the acquiescence of the party out of possession, in the hostile or adverse possession and enjoy menfc of the property by another; it therefore involves the idea of notice to the party out of possession, of such adverse enjoyment by the other; and especially in the case of a tenancy in common, that the tenant in possession (to which he has a right) is doing acts and asserting claims hostile in their nature to his own. In cases where no such tenancy exists the possession may be so open and notorious, and the mode in which the possessor deals with the property of such an open and unequivocal character, as to be properly held to be constructive notice to the owner, of the possession and its adverse character. And though it is possible there may be cases in which the acts of a tenant in common in possession, and the notoriety of the hostile nature of the possession, may be such that notice to the co-tenant might be implied, yet as the tenant in common in possession as such, may rightfully in almost if not in all respects treat the property as if it was his own, there can be but very few cases in which his mode of using and enjoying it could of itself be held to operate as such notice. And in such case, therefore, when the entry is not shown to have been under an adverse claim of right, the acts of a tenant in possession, to amount to an ouster of the co-tenant, must be substantially such as would constitute an ouster of a landlord by his tenant, or of one to whom he stood in some other fiduciary relation. — Holley v. Hawley, 89 Vt., 534; Roberts v. Morgan, 30 Vt., 319.
.It is well settled that neither the sole possession by one who is tenant in common nor his reception and appropriation of all the rents and profits, will amount to an ouster. — 2 Cruise Dig. (by Greenleaf), Title 20, Secs. 14, 15, and 16, and eases there cited; nor will the failure or even the refusal to account to the co-tenant for his share of the profits, unless the refusal is based upon a claim of right to the whole, and denial of the right of such co-tenant. — Doe v. Prosser, Cowp., 217; Doe v. Bird, 11 East, 49; Fairclaim v. Shackleton, 5 Burr., 2604.
And as the reception of the whole rent will not consti 'tute an ouster, so neither would the abstract fact of giving-leases; as rent pre-supposes a lease of some kind, and there-can be no difference in principle, whether the occupancy be in person or by tenant, unless, possibly, when the lease might be for a great length of time, or contain some peculiar provisions clearly inconsistent with any rights of a. co-tenant. What the leases were in this case, whether verbal or written, or for what time, we are not informed.. And certainly the payment of taxes cannot either alone or with the possession and pernancy of the profits constitute an ouster, nor any evidence tending to show one ; since a tenant in. common in possession of the whole is here bound by law to pay the taxes on the whole.
These are all the acts of Joseph Campau which the evidence tended to prove; and it is very clear that no one of them alone, or all of them together, can be held, projprio vigore, to amount to an ouster in law; and except as connected, with the consideration of the great length of time during which the possession and reception of the profits continued, without his being called upon by the plaintiffs or their ancestors for any share of the possession or profits, these facts would not even tend as evidence to prove an ouster; as without reference*to the great length of time and neglect or acquiescence, all these acts were equally consistent with a holding as tenant in common in harmony with the title of the co-tenants.
No evidence appears to have been given tending to show whether the plaintiffs or their ancestors ever called upon Joseph Campau, or his heirs, or the' defendant, after his death, or demanded their share of the possession or of the rents and profits, or not; and in the absence of all evidence, the law cannot presume any such demand. And since if there was any such demand more than twenty years before the institution of the suit, and it was refused by Joseph Campau on the ground that he claimed the property as his own, it would have amounted to an ouster; the defendant would have been interested to prove it, to bring the case within the statute of limitations; and if a demand had been made and refused on some other ground than that of a claim of title, and therefore not amounting to an ouster, the plaintiffs would hare been interested to show it, to rebut the idea of acquiescence for so long a period; we may safely assume that no such demand was made, nor any efforts of the plaintiffs or their ancestors to assert their right to the property from 1835 down to February, 1871, a period of some thirty-six years.
We are now to consider how this neglect of the plaintiffs and their ancestors, for so long a period, to demand their share of the possession or rents and profits affects the case in view of the circumstances in proof And as the cases are not entirely harmonious (though generally involving substantially the same principles), it is proper to look to the principles involved. As a general rule it is safe to presume that men will act in accordance with their own obvious interests, and will not surrender their rights or the enjoyment of their property to another having no just claim, without compensation in some form. This is a principle of human conduct which experience has shown to be generally reliable; it is equally recognized by courts in the administration of justice, and by the world at large in the ordinary affairs of life. Upon this principle the continued neglect or forbearance of the plaintiffs and their ancestors to demand or assert their rights in any form, and their acquiescence in the enjoyment of the property and its income for so long a period, furnishes grounds for the inference, and is therefore evidence tending to show, that the plaintiffs and their ancestors were conscious, and must have been satisfied that Joseph Campau was entitled of right to the sole use of the property and its income as against them, and also, in this manner, to show that whatever interest they might once have had had been released or conveyed, or for some good reason given up to him, though without a release or conveyance of record, and that they, therefore, knew that he was holding the property rightfully as his own, and under a claim of title to the whole, which was recognized and acquiesced in by them. This would of course make the possession adverse and constitute an ouster, and would also tend in some degree to show that such had been the position of the parties from the commencement of Joseph Campau’s sole possession; as this would best account for and explain the conduct of all the parties. In this view the neglect, forbearance and acquiescence for so long a period, merely create a natural presumption or furnish an inference of fact, in other words, presumptive or circumstantial evidence tending to prove a •conveyance or ouster; which, like other circumstantial ■evidence, is to have weight according to its greater or less tendency to produce in the minds of the jury actual belief that such was the fact. And it would be quite immaterial whether the jury should believe that this neglect or acquiescence had been for the reason that a deed or release had been given, or some agreement or understanding had, by which Joseph Campau’s right to the whole was recognized, or whether without such deed, release or agreement, they should believe that the plaintiffs and their ancestors knew that his possession was under an adverse claim of right to the whole, or that without gross negligence and inattention to their own interests they must have known it; as in either view the possession must be regarded as adverse and kuown to be so. In this view it ■seems to me obvious that the strength of the presumption, ■the force of the inference from such evidence, must depend •much upon the situation of the parties, the nature of the .property, and the surrounding circumstances in each particular case. If the tenants out of possession were absent from the country, without opportunity to know the facts, or under the influence of the party in possession, or kept in ignorance of their rights by him, etc., the inference would be less strong than under an opposite state of facts. It might also depend much upon the value of the use of the property, the amount of its income as compared with taxes and necessary expenses. For if the income was not more or much more than sufficient to compensate the taxes and other necessary expenses of managing the property, the co-tenant would be less interested to call for his share of the profits, and might be willing the tenant in possession should continue to receive the income and pay such taxes and expenses; when if the income were much greater it would be- clearly for his interest more promptly to demand participation. If, on the other hand, it appeared that the tenants out of possession, were living for the whole period in the vicinity, that they knew, or without gross neglect of their own interests, must have known their rights, and that the other tenant was in the sole possession and enjoyment of the profits, that these were largely in excess of taxes and expenses; that they were in no way deceived or kept in ignorance of their rights by him, and that up to the time when such sole possession commenced, the plaintiffs and their ancestors had been in the possession or enjoyment of the property; the inference would be very strong and convincing, that they knew he was holding the property adversely to them, and that for some good reason they deliberately acquiesced and recognized his right to the whole, and that there had therefore been an ouster more than twenty years before. — See Mathews Pr. Ev., (marginal page) 10. Upon proof of such a state of circumstances, I should agree that, if a jury were to find there had been no ouster, or that the possession had not been adverse, the verdict ought to be set aside as against evidence.
But in the present case we have no proof of special circumstances under which the delay and acquiescence took place, and there being no evidence characterizing the original entry into sole possession, except what may be inferred from the long acquiescence; and as tenants in common out of possession cannot be held bound to the same promptness in asserting their rights as persons in other cases, but have a right to presume, till something appears to indicate the contrary, that the possession and enjoyment are according to the title; and the inference of a deed or ouster, or that the possession is adverse, can only be drawn from their acquiescence in the possession and enjoyment by another for an unreasonable l,ength of time without calling for a share of the rents and profits; and what would be a reasonable time must depend upon the circumstances of each particular case; and the statute allows the parties any period short of twenty years to bring suit, even after the possession may be known to be adverse; it seems to me very clear, first, that the presumption or inference in question is necessarily one of fact to be drawn by the jury in the same way as they may infer any other fact from circumstantial evidence tending to prove it; second, that the jury can only be authorized to draw it from such delay or acquiescence when the length of time has been somewhat more than that required by the statute of limitations, and except under very peculiar circumstances considerably beyond that period. — See Doe v. Proser, Cowp., 217; Peaceable v. Read, 1 East, 568 ; Taylor v. Horde, 1 Burr., 111; Doe v. Hellings, 11 East, 49 ; Frederick v. Gray, 10 S. & R., 182; Bolton v. Hamilton, 2 Watts & Serg., 294; Hart v. Gregg, 10 Watts, 190; Jackson v. Whitbeck, 6 Cow., 632; Northrop v. Wright, 24 Wend., 221; Thomas v. Garvan, 4 Dev. (N. C.), 223; Parker v. Proprietors, etc., 3 Metc., 100; Cummings v. Wyman, 10 Mass., Lefavour v. Homan, 3 Allen, 355; 1 Wash. R. Pr. (3d ed.), 567; 3 id., 128. So far as some of the cases in Pennsylvania may seem to decide that the possession by one tenant in common for the period fixed by the statute of limitations would of itself be sufficient to warrant the presumption, I do not think they can be supported upon any sound principle. Third, for the same reasons I think it • also clear that the court cannot raise the presumption or draw the inference as one of law. The court cannot say, because one tenant has been long in sole possession, that the original entry must have been adverse to the others, nor at what particular period a possession originally consistent with the co-tenant’s rights, first became adverse, nor consequently in the present case, that it became so twenty years before the suit was instituted. And to hold that twenty years’ sole possession and pernancy of profits by one of the tenants, without the assertion of a claim by the other, necessarily makes the possession adverse for the whole period, and brings the case within the statute, is to ignore the distinction in this respect between estates in common and sole estates, which has always been recognized since statutes of limitation have been known. It is nothing less than the enactment by the court of an arbitrary period of limitation for a class of cases for which the legislature did not see fit to enact one.
It might be said with more appearance of reason in the present case that, though the tenants out of possession cannot be held to the same promptness in demanding their rights of the co-tenant in possession, as in cases where no such tenancy is claimed to exist, and could not, therefore, be held bound to the twenty years applicable to other eases; and though the court cannot lay down any precise period within which they must demand participation in the possession or profits, yet that the delay for the period of sixteen years prior, and in addition to the statute period, is more than could prima facie be deemed reasonable under ordinary circumstances, to forbear making such demand, if ■they believed they had any rights in the land; that such delay could therefore only be justified by some special or extraordinary circumstances, and that the burden of proving such circumstances should be thrown upon them, when they seek to assert their rights after so long a time. But this reasoning would seem to be open to the objections, that it assumes that ■ the law defines, and the courts can judicially say, what are the ordinary and what the extraordinary circumstances accompanying the possession by one tenant in common who does not deny the right of the others, and that it fixes an arbitrary period which shall be deemed reasonable in ordinary cases, and that it reverses the general rule of the burden of proof. But subject even to these objections, it would, in my opinion, be much safer and less likely to prove injurious, than to hold the presumption of a deed or ouster to be one’of law, or than to break down all distinction between tenancies in common and other cases, in reference to adverse possession and the statute of limitations.
That what is called the presumption of an ouster, or of a deed or release, in a case like this, is not a presumption of law which the court can draw, but that it must be submitted to, and fonnd by, the jury, in some way, seems to be settled by the general, and I think I am warranted in saying, by the uniform, current of authorities.
Mathews on Presumptive Evidence treats it as a presumption or inference of fact to be drawn from “the particular circumstances of individual cases; and yielding a kind of indirect or presumptuous evidence of their existence:” — p. 186, 188, and p. 11 (though he erroneously cites Eoe dem. Fisher v. Prosser as holding that possession for twenty years by one tenant in common with an exclusive appropriation of the profits afforded the presumption of a conveyance: the possession was 36 years, and it was left to the jury, if they thought the evidence warranted it, to presume an ouster). Greenleaf, in his work on evidence, Vol. 1, sec. 44 to 48, speaks of it (as I have done) as not in any proper sense classed as a presumption, but as “a mere argument of which the major premise is not a rule of law,” and to be judged by the common and received tests of the truth of propositions and the validity of arguments.” And he says, in reference to these inferences, the jury “are usually aided in their labor by the advice and instructions of the judge, more or less strongly urged at his discretion; but the whole matter is free before them, unembarrassed by any considerations of policy or convenience, and unlimited by any boundaries but those of truth, to be decided' by them according to the convictions of their own understanding” (§ 48). And neither Mr. Starkey nor Mr. Phillips treats it as a presumption of law in any case, but both admit that the presumption of a grant, release, conveyance, or ouster, is one which must in all cases (at law) be found by a jury, and cannot be raised or applied by the court. There are various classes of cases where a grant, release, conveyance, surrender, and perhaps ouster, may be presumed or inferred in cases and for purposes having no connection with the statute of limitations or the question of adverse possession, in which it has been customary for the English courts to advise the jury more or less strongly, and even sometimes to instruct them to find such presumption. This is true of the presumptions of a conveyance from a trustee to a cestui que tncst in possession, or the surrender of outstanding terms, etc., where, as Mr. Phillips says, “ although they must be submitted to the jury, yet, in point of fact, they will ordinarily be decided upon principles of law by the judge;” in other words, the court strongly advises or instructs the jury that they find the presumption, rather as matter of course and without reference to their actual belief. — 1 Phil. Ev. (by Cowen, Hill and Edwards), p. 673. But this is not done in cases like the present, and as stated by the same author (which is precisely applicable here):: “But when the original possession of property may be-accounted for and is consistent with the fact of there having been no conveyance, it seems proper to direct a jury' to presume a conveyance, or not, according to their actual belief on the subject.” — id. p. 672. And Doe on demise of Fenwick v. Reed, 5 B. & Ald., 232, very clearly and emphatically shows that in cases like this the presumption is one of fact exclusively for the jury, to be determined only-according to their actual belief. Bailey, J. had so left it to the jury, and Abbot, C. J., in giving his judgment, says:- “ I am clearly of opinion that the direction was according to law. In case where the original possession cannot be-accounted for, and would be unlawful unless there had been a grant, the rule may perhaps be different, and all the cases cited are of that description. Here the original. possession is accounted for, and is consistent with the fact of there having been no conveyance. It may indeed have •continued longer than is consistent with the original condition. But it was surely a question for the jury to say whether that continuance . was to be attributed to a want of care and attention on the part of the Charletou family, or to the fact of there having been a conveyance of the estate.” And in conclusion he says: “I think the point presented to the jury was the correct one. In my opinion, presumptions of grant and conveyance have already gone to too great length, and I am not disposed to extend them further.” And Bailey, J. says: “ I thought at the trial, and think still, that the question for the jury was, whether in fact a conveyance had ever been made.” See also Livett v. Wilson, 3 Bing., 115; 10 Moore, 439; 3 Man. & Ryl., 239 ; Hill v. Crosby, 2 Pick., 466.
The present case comes directly within the principle ¡here laid down. Joseph Oampau’s original possession was lawful, and sufficiently accounted for as tenant in common.
Mr. Starkey, in reference to presumption of grant, etc,, in ordinary cases (though there is nothing to show that he intended to extend the doctrine to cases where the possession was originally lawful, any more than Mr. Phillips does), seems to hold that the court may advise, and sometimes even instruct and direct the jury to make the presumption, yet he admits that if the jury do not find it, the court cannot do it.— Vol. I. (6th Amer. ed.), p. 76; Vol. II., p. 683-684- He calls it a mixed presumption of law and fact. But (though I do not mean to discuss the question as applied to the presumption of deeds, etc., generally, nor beyond cases of the kind now- before us) it must, I think, in principle, be one or the other, and not a mixture of both, in any other sense than all inferences of fact from circumstantial evidence are so. The court are to determine the admissibility and tendency of evidence* If a presumption of law, the court should draw it from the particular facts and circumstances, where these may be found by the jury, which he admits they cannot do. If a presumption of foot, to be drawn from the evidence, the jury must draw it, and not the court. If he means by a mixed presumption a presumption or inference of fact, which the jury are to find under the direction of the court, without believing it, or even against their belief, then I strongly doubt the power of the. court to give such instruction, or the right of the jury to follow it, in any case, and have no hesitation in denying it in cases of the class now before as. But in reference to this class I shall return to this point again.
The only authorities relied upon here to show that the presumption is one of law, are the following: — Cummings v. Wyman, 10 Mass., 464; Rickard v. Rickard, 13 Pick., 251; Vandyck v. Van Beuren, 1 Caines, 84; Jackson v. Whitbeck, 6 Cow., 632; and Clapp v. Bromagham, 9 Cow., 532. In Cummings v. Wyman the question arose upon the report of a referee which found an adverse possession. The court considered the case upon the evidence returned, and confirmed the finding (the question arose precisely as it would upon a motion for a new trial). The evidence was direct and positive of facts which of themselves constituted an actual ouster long prior to the statute period, and showed affirmatively that the possession was adverse, and there was no evidence of an opposite tendency. And the remarks of the court, that if the case had been submitted to a jury and they had found the other way, the verdict would have been set aside (though unnecessary and by way of illustration), was well founded. But an actual ouster and adverse possession being affirmatively shown by direct evidence, without any evidence to the contrary, there was no room for, and no need of, any presumption; and all that is said upon that point is a mere dictum. The court however expressly treats the presumption as one of fact, not of law, so that the case as well as the dictum is directly opposed to the doctrine for which it is cited here. Rickard v. Rickard also expressly holds the presumption to be one of fact, to be found by the jury from the evidence. But it is remarked, “it is well settled, that a long, exclusive and uninterrupted possession by one, without any possession or claim of profits by the other, is evidence from which a jury-may and ought to infer an actual ouster.” The case was a petition for a partition, where the court, like a jury, considered it upon the weight of the evidence, and found, as any sensible jury must have found from so long a period of exclusive possession under a claim of the whole title, (which was there shown), that the possession was adverse. And if a jury in such a case, and upon such evidence had found otherwise, I should have held without hesitation that the verdict ought to be set aside as against evidence.
Vandyck v. Van Beuren is the only case which I have discovered (there may be other sporadic cases and loose dicta to the same effect) which contains the assertion that the presumption in question is one of law, which the court may draw.
In that case the facts as stated by the court (pp. 89 to 91) showed clearly an adverse possession of some fifty years; so that it could hardly be necessary to presume any thing; if adverse, as all the evidence showed that it was, this was sufficient for the defense, and of course included an ouster. •The jury had, on the second trial, found in favor, of the defendant (which must have been on the ground of an ouster, or adverse possession which included it: the case is blindly reported), and a motion was made for another new trial. This the court denied; and I should certainly have concurred with them in denying it; but in denying it, they treat the presumption as one of law. It is easy to see that no such point was necessary to the decision, and if any thing more than a mere dictum it has never since been recognized as law in that state, nor elsewhere so far as I have discovered, and has in effect been repeatedly overruled.
In Jackson v. Whitbeck (another case relied upon here as supporting the same doctrine), where the exclusive pos session was accompanied by circumstances strongly showing it to be adverse in fact, this case of Vandyck v. Van Beuren was relied upon on the argument, but the court expressly waived the point, and held that on a verdict taken subject to the opinion of the court upon a case made, the court may draw the same conclusions of fact as a jury; and they proceeded to draw them. And Northrop v. Wright, 24. Wend., 221; Humbert v. Trinity Church, id., 587; and Butler v. Phelps, 17 Wend., 642, are utterly inconsistent with the idea that the presumption is one of law to be drawn by the court. Clapp v. Bromagham (9 Cow.), as I understand it, does not hold the presumption to be one of law, but directly the contrary. The point seems to have arisen upon the charge; and the opinion holds that there being clear evidence of the exclusive adverse possession for more than twenty years by the defendant claiming the property as his own, the judge ought to have instructed the jury that if, in their opinion, an adverse possession of over twenty years was proved, they ought to find a verdict for the defendant (p. 566). In this I entirely concur.
So stands this question upon the authorities cited, and though there may perhaps be some few others more directly favoring the rule for which they were cited, I may safely say that no rule or principle of the law of real estate is more clearly settled by the generally uniform current of authority than that the presumption in question is one of fact to be found by the jury, and not one of law for the court. I am as much opposed to allowing ancient possession to be disturbed by stale claims as any of my brethren can be; but I am equally averse to violating the principles of law, or usurping legislative power, to accomplish the desired end, more especially when I see no reason to doubt that justice would be as readily attained by a fair submission of the question to a jury as one of fact. If our present statute of limitations is not sufficient to meet such case? without the aid of arbitrary fictions by the court, the remedy is with the legislature to make special provision for such cases, as has been done in England by 3 and 4, W. 4, Ch. 27, Sec. 9.
"With reference to the practice of instructing juries to ■find the presumption of a conveyance, release, etc., without reference and even contrary to their belief from the evidence, in cases other than those which raise the question of the statute of limitations, or of adverse possession as between parties where the original possession was unlawful, I propose to consider the question of giving such instruction in a case like the present, which raises the question of the statute of limitations and of adverse possession as between tenants in common, where the tenant in sole possession had a right to enter without any conveyance or release from his co-tenant out of possession. I have already shown that the presumption in this class of cases, is but an inference to be drawn from the particular facts and circumstances in evidence. If the court have the right so to instruct the jury, and the jury are under any obligation to follow the instruction, and if either this obligation can be enforced in case of their refusal, or if in case of such refusal the court can treat it as found, or draw it themselves, then I concede this would be the same in effect as to make the presumption one of law. But this would be to make its submission to the jury an idle and unmeaning farce. And it would be more frank and manly, and more creditable to the judiciary, to avoid all mere pretense, and without submitting it to the jury at all, to proceed to draw the presumption as one of law. But, as we have seen, even the English courts have not yet ventured to go thus far, even in cases where they venture to give such instructions at all; and Mr. Starkey admits the court cannot draw or apply the presumption, if the jury fail to do so. And it will hardly - be .contended that, if the jury fail to obey the instruction, obedience can be enforced by proceedings for contempt; so that the jury after all, have the same right to refuse, that the court have to instruct. In this view, the power to give the instruction is not so formidable in reality as in outside appearance, and amounts, after all, to the right to advise. But the jury, without explanation, might not so understand it; and to prevent their being awed into compliance and a violation of their oaths, it might be well for the court to act upon the advice of certain ancient players in a scarcely broader farce, and, if they cannot leave the lion entirely out, then at least to “request” or “entreat” the jury “not to fear, not to tremble,” and “by prologue,” or otherwise, to “tell them plainly” that what looks and roars so much like a lion is no true lion, after all, but “only Snug, the joiner.”
Where there is evidence sufficient to satisfy a jury that there must have been a conveyance, release or ouster, they will naturally so find by finding that the possession was adverse, which would meet the case, if they believed that ■any of those facts had occurred, without reference to which of them it might be; and there is no need of any fictitious presumption. It is therefore only in cases in which the court see that there is no evidence from which the jury can find it, as a fact, or in which the evidence is so slight that the court thinks they will not be likely to- infer and believe the fact, that it could be necessary to instruct the jury to presume it, or in other words, to find it without reference to their belief of its truth or falsehood, and even against their belief.'
Should the court give such instruction in the class of cases we are now considering, and fully and frankly explain their meaning and object, and the theory upon which they proceed, the charge, in plain English, would read substantially thus: “Gentlemen, here is a case of long, undisturbed possession by the defendant, and those under whom he claims, which the plaintiff, though showing a paper title, we think, ought not to be- allowed to disturb, a possession which the legislature ought to have protected by a statute of limitation. But unfortunately while the legislature have enacted a limitation applicable to other cases, it does not apply to a case of this kind, because it does not sufficiently appear, from the evidence, that the possession has been adverse; and the court, whose province is to declare, and not to make the law, cannot so change the law as to bring this case within it without usurping legislative power. But it is the province of the jury to find the facts, and if you can contrive to find a state of facts which will fit the case to the law, it will then be easy to dispose of the case as to the court justice seems to require. If you can find that there has been an ouster of the plaintiff, or those under whom he claims, at a sufficiently early period, this would bring the case within the statute, or if you can find that there has been a release or conveyance to the party in possession, the possession may also be protected, and the end which the court think desirable be attained. It is true there is little or no evidence in the ■case from which you can infer any of these facts as matters of actual belief. But we cannot reach the end which, in our opinion, justice and public policy require, without such a finding; and, upon the principle that the end justifies the means, we advise you that you ought to presume ~the fact, without reference to your actual belief of its truth or falsehood, and though you may believe it to be false. And as you may hesitate to take a responsibility .apparently so grave, we will divide it with you, and as we think it clear that it ought to be true, if it is not, we will take the responsibility of directing you to presume it; •and you may assume that of finding it in obedience to our direction; and in this manner neither will be really responsible. What we specially need, to enable us to dispose of the case according to our views of justice and sound policy, is the finding of some of these necessary facts by your verdict,-and when obtained, by presumption or otherwise, we ■shall treat it as if found upon your actual belief derived from the evidence.”
Here is the whole process, the whole principle, or want of principle, of such a charge. Here is the mongrel or ■hybrid presumption sometimes called a presumption of law and fact, but which, in truth, is neither one nor the other, and embraces no element of either. The jury do not find it as matter of fact, and the court cannot as matter of fact or law, — a mere arbitrary fiction without basis of any kind.
If it is a presumption to be found without, and even contrary to the evidence, why submit it to the jury ? The only answer is, to enable the court, under cover of a transparent sham, to escape the open avowal of a clear usurpation, and this is accomplished by not only encouraging, but directing the jury to treat the oath they have taken as a mere fiction. Fictions of law may sometimes operate beneficially, but fictions of fact in the verdict of a jury ought not to be encouraged. A sham so transparent, a subterfuge so palpable, any where outside of a court of law would be treated at best with ridicule and contempt, and it is not in the power of the courts to render it respectable.
I think, therefore, the question of a conveyance to Joseph Campau, or of an ouster of the plaintiffs or their ancestors, or what is equivalent, of an adverse possession, should have been submitted to the jury as one of fact, to be found by them according to their actual belief from the evidence, like any other fact, and not as a mere fiction to be found whether they believed it or not. And' when the jury were told that if they should find that Joseph Campau occupied this property more than twenty years without any claim of the plaintiffs or their ancestors to a share of the rents or profits, and without actual acknowledgment of the rights of the plaintiffs or their ancestors, and with the knowledge of the latter, they might presume any thing in support of Joseph Campau’s title, I think this was submitting the question as a fiction and not as a fact, and so intended to be, and that it must have been so understood by the jury. This I think ivas erroneous. | [
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] |
Cooley, J.
This is a bill for divorce on the ground of adultery. The adultery being denied, issues were framed and submitted to a jury, who were required to find, first, whether the adultery charged had been committed, and second, whether it had been condoned. The jury found against the defendant on the first issue, and failed to agree on the second. The case was then, by stipulation, submitted to the circuit judge on the testimony taken before the jury, and he has decreed a divorce.
One thing is very apparent from the evidence: that the standard of propriety of each of the parties is low; that the woman has indulged in a good deal of shameful talk, and that some of complainant’s conduct has been equally reprehensible. The evidence relied upon to prove adultery is mainly circumstantial, except what is given ■ by the children of the parties, who are called' to testify to the adulterous conduct of their mother, witnessed by them at an age when they could scarcely be supposed able to understand the significance of facts sworn to. Leaving- out this evidence, the case would not be established; and we think it exceedingly unsafe to grant a divorce on the testimony of such children, and are not disposed to encourage a practice of such evil tendency as the calling them as witnesses against their mother for such a purpose, and at such an age.
Had the question of adultery been submitted to the jury in the customary way by calling their attention to specific charges, with time, and circumstance, their verdict would be entitled to great weight; but when the general question is asked, whether the defendant committed the adultery charged in the bill — as was the case here — it is easy... to see that the jury might agree that adultery was committed without being able to agree at all upon any specific act alleged. We are therefore left to decide the case on our own view of the evidence, and we cannot say that it has brought to our minds such a clear conviction of guilt as should be had before granting a divorce. The foolish and reprehensible talk of such a woman as this defendant seems to be, is not very forcible evidence of guilt, especially as it clearly appears that on some occasions she admitted or boasted of things that had no existence.
We are disposed to reverse the decree, and dismiss the bill.
The other Justices concurred. | [
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] |
The Court
held that the order appealed from is not ■such a final order or decree as is appealable under the statute.
Appeal dismissed. | [
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Campbell, J.
Cornwall sued Atwood before a justice of the peace to recover back fifty dollars, which he claimed as the amount of a counterfeit bill received of Atwood on a balance of account. Judgment having been rendered for defendant before the justice, Cornwall appealed to the circuit, where he recovered against Atwood, who now brings error. The evidence shows that the settlement was made March 4, 1867, and that Cornwall returned the fifty dollar bill now claimed to be counterfeit, to Atwood,. August 9, 1867. Upon the trial questions arose whether any such bill was paid to Cornwall by Atwood, as well as whether the bill was identified, and was counterfeit, and whether the delay should affect the rights of the parties. Also, there were objections made to the admission and rejection of evidence.
There was evidence given tending to show that Cornwall transferred the note in question to one Kellogg, who, on the same day, or immediately thereafter, returned it. Cornwall was allowed to testify that Kellogg, when he returned it, said it was bad. Kellogg was allowed to state his conversation with Mr. Brees, a banker, with whom he deposited it.
The only questions material to the issue, which were touched upon by this evidence, were the identity and the genineness of the bill in question. Identity could only be made out by tracing the bill through the various hands into which it had been passed. Genuineness could only be determined by evidence on the trial. To prove identity it was only necessary to show the transfer from Atwood to Cornwall, Cornwall to Kellogg, Kellogg to Sheldon & Co. (of whom Brees was a partner), and back from these various parties to Atwood. The conversations and opinions of any of them were foreign to the subject of identification, and could not be lawful evidence of the bad character of the note. They were not legitimate for any purpose, and had a direct tendency to lead the jury to assume the bill was counterfeit, from mere hearsay. The fact that several persons had so treated it could not fail to impress them, although all of these acted on one man’s opinion, who was not sworn in the cause. Kellogg claiming it to be bad was perhaps so connected with the res gestee that it might be received with a proper caution to the jury that it was no evidence of the fact that it was counterfeit. But his statements as to what was told him by others are not within that rule. This testimony ought to have been excluded.
It is also difficult to perceive any .pertinence in the testimony allowed to be introduced, that on the trial before the justice, Atwood produced a genuine bill. It does not appear that he did it as a, witness, nor that he made any admissions or statements in regard to it. He had a. right to take any proper measure to test the memory and honesty of Cornwall, who was seeking to cast a liability on' him as having passed a bad bill; and as the question of identification was throughout a very important one, the course alleged to have been taken before the justice was in no way reprehensible, and was not a proper subject of proof as such at the circuit.
The justice who tried the cause below gave testimony as to various conversations between the parties in his presence. This testimony was in the form of a written statement which the parties admitted contained such facts as he would swear to if put on the stand. His statement contained the following clause, which was ruled out as inadmissible: “Atwood said to him, you did not take the number of the bill until after you tried to get me to take it; and Cornwall did not deny it. I understood him to admit that he did not take the number of the bill until after he carried it back to Atwood.”
The time when Cornwall took down the number of the bill was very material. It was the only mark by which he claimed to identify it. If not taken down before its delivery to Atwood, the question of identity was left very much in doubt. The record contains no other proof definitely and positively connecting that bill with the one paid over to Kellogg and deposited with Sheldon & Co. Cornwall, on his cross-examination, admitted that he took down the number when he returned it to Atwood, and there was room for an argument upon a comparison of that with his direct testimony on the same subject. If he admitted that fact in a conversation with Atwood, or if when conversing fully on the subject he did not deny it when asserted, this was pertinent and should have been received. The statement of the justice that he understood Cornwall to admit the fact, is not given as an expression of opinion, but as a fact, and is the only way in which conversations can often be proven. If obscure, it could have been made clear by further statement or cross-examination. Where counsel, to avoid the necessity of having a witness called, admit what he would testify to, they cannot be permitted to rely on refined distinctions which could have been obviated by a fuller examination.
We see no error in allowing the character of the note to be shown by bankers. It would be impracticable to obtain the testimony of the treasury officers on all occasions, and those who are in the habit of handling money constantly become sufficiently skilled to detect from its appearance, with some degree of certainty, whether it is genuine. This knowledge is not necessarily obtained from seeing other bills of the same series, or even of the same denomination, although a person who has not seen fifty dollar bills must have had a very limited experience in banking. It is well understood that counterfeits are oftener detected from general appearances not easy to be explained, than from any investigation of letters and numbers. The knowledge shown in the case before us was sufficiently general to show the witness ought to have been able to give an opinion on the note in question. It was a legal tender, with which all persons are expected to have some acquaintance. The rule as to proof of counterfeits, which has been enforced in criminal prosecutions, would always have allowed such testimony, and we think it was properly received.
A more important question, however, arises concerning the relative duties and liabilities of parties who honestly receive and pay out counterfeit money.
The general current of authority appears to sustain the position that a person passing negotiable paper warrants its genuineness to such an extent that he is bound to make it good, if found bad and returned within a proper time. But where paper is genuine but worthless, although not supposed to be so by either party, the authorities are in conflict as to such liability and its extent. The decisions applied to bank-notes have all gone upon the analogy of ordinary negotiable securities. There is no modern decision which we have been able to find, which draws any line in dealing with payments in counterfeits, or refers specially to that coin or paper which the law deals with as money— receivable not by currency merely, and by consent, but by statute and by obligation.
The decisions, in giving reasons for their results, were originally based on the doctrine that payments by negotiable paper were in a measure conditional, and not absolute in all cases, but dependent on the possibility of getting payment by diligence. And the distinction between counterfeit and otherwise valueless paper has not always been kept up, nor always well defined. See authorities in Story on Cont., § 411; Edwards on Bills, 205-6-7, and notes.
The decisions, however, agree generally that a party who would otherwise be able to recover back the amount of bad money passed upon him, will be debarred of his action by lack of diligence. And it is much to be regretted that upon the whole subject there are more dicta than decisions. It is necessary, in order to discover the real difficulties of the matter, to consider how the doctrine bears practically on the business of the community.
The paper which is in controversy is for all legal purposes of currency on a similar footing with coin; that is to say, it is a legal-tender, and all creditors are compelled to receive it in payment. , They do not exercise an option in taking it, as they do in receiving other paper. Inasmuch as they refuse a tender at their peril, the law assumes, and business must be done on the basis, that every business man will become generally familiar with the appearance of the money of the country, so as to be able to exercise a judgment upon it. And while those who are constantly handling money in banks and exchange offices cultivate their faculties more thoroughly in a knowledge of currency, all persons are supposed to have some such knowledge, — sufficient to enable them to do business with ordinary security. And it is not to be expected that among ordinary dealers one, will have any great advantage over others; while all have means of access, in every community, to some persons who have by their peculiar experience the means of aiding the judgment of those of less experience.
It is not customary, and cannot be expected, that persons will note down all the bills which they receive,, and put ear-marks on them, so that they can recall the persons from whom they are received. Nothing would have a surer tendency to hinder the negotiability of genuine bills than such ear-marks; while the delay and trouble of doing so w’ould be a great hindrance to the dispatch of busr iness. Most currency gets into circulation through the medium of banks, and other instrumentalities capable of detecting bad money; and where counterfeit money is circulated, it, is usually uttered in such quarters as to render it difficult, if not impossible, to trace it back to its source. The innocent taker of such paper is not generally guilty of any culpable negligence; and between several successive takers it is impossible to hold one any more in fault than the rest, for not detecting the cheat. It is often nothing but a suspicion of forgery that induces a taker to notice from whom he receives a particular bill; and where this suspicion is entertained, and not communicated to the person from whom the paper is received, its concealment may easily operate as a fraud upon him, by preventing him from tracing it back. This would create a strong moral equity in his favor, whatever the law may determine in regard to it.
At common law, such authority as we have seems to indicate that, as between two innocent parties, the taker of counterfeit coin cannot claim recourse against him from whom he took it. — Shep. Touchstone, 140; Wade’s case, 5 Co., 114. This must have been on the ground already referred to, that parties in equal equity shall not be disturbed. The common law and equity are both full of instances where persons dealing honestly on an equal footing, and with equal means of knowledge, are left where their dealings have placed them, — neither having recourse against the other to undo their agreements or transactions. And while in Markle v. Hatfield, 2 J. R., 455, Kent, C. J. doubts the propriety of the doctrine, the case called for no such doubts, and no decisions were found shaking it. It cannot be denied that there is much force in the doctrine which requires a party to be vigilant before taking bad money. That, after all, is the only rule likely to prevent its circulation. A person who takes it without dispute and examines it afterwards, if he is able to remember from whom he took it, and is allowed to recover back the amount, may save himself, but will usually subject an equally innocent party to loss. And it is also manifest that if he is ready to testify positively from whom he received it, his adversary cannot generally be as certain whether or no he paid it out, and cannot, by his own oath alone, even if he is certain, convict a false witness of perjury. It will never do, in laying down rules, to overlook the consequences.
If the rule of liability is to be. enforced, it cannot be justly enforced without requiring a degree of vigilance conforming to the occasion. If payment in what is supposed to be legal tender paper is to be regarded as contingent and not absolute, the receiver should be regarded as having elected to retain it unless he uses speedy and active diligence to determine its character, and to notify the giver that he may protect himself against prior parties. In Camidge v. Allenby, 6 B. & C., 373, a party who kept broken bank bills seven days without action was held estopped. In Jennison v. Parker, 7 Mich. R., 355, this rule of diligence was applied where a debtor had indorsed a note as collateral security, and it was not protested as against him. In Phoenix Ins. Co. v. Allen, 11 Mich. R., 501, and Phœnix Ins. Co. v. Gray, 13 Mich., 191, it was held a party receiving sight paper was bound to forward it without any delay beyond what was necessary in the ordinary course of business, or compelled by circumstances. The rule gathered from the cases by Mr. Edwards is that in regard to forged paper also, there must be no “unnecessary delay.” — Edwards on Bills, 207, 551. It is entirely safe.to say that a person taking such paper should not, without some adequate excuse, retain such paper without action beyond such time as would give him reasonable opportunity to inform himself without inconvenience or a neglect of other business to attend to it. The necessity for promptness exists in all cases; and where it appears there has been any delay beyond what was reasonably adequate under the circumstances to enable the party to inform himself, he should not recover. And there should be some care in the taking as well as afterwards.
In the present case it appeared from plaintiffs testimony that he kept this money on his person more than five months, without at any time attempting to obtain the opinion of any banker upon it, although several times where he had the means of doing so. It certainly can never be contemplated that a person, whatever may be the extent of his dealings, can keep alive the liability of another upon paper taken from him, without some use of his opportunities for information. And when it affirmatively appears that he has neglected his opportunities, there is no question left for a jury. And in such cases, therefore, the facts being clear, the result is one of law.
The court should have granted the request to that effect, and it becomes unnecessary to decide the question whether the payment, when honestly made, and without suspicious circumstances, would have been absolute, If diligence had been used to discover the quality of the paper.
The other Justices concurred. | [
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] |
Graves, Ch. J.
Barber brought general assumpsit against Swift, and appended to his declaration a notice that he would give in evidence under the money counts a certain promissory note which was set forth as follows:
“One year from date I promise to pay W. H. Hall or bearer one hundred and seventy-five dollars, for value received, with use.
“Parma, June 9th, 1869.
“At ten per cent, after December 19, 1870, by agreement.
Thomas Swiet.”
Swift pleaded the general issue and filed and served his affidavit in -which he denied that he signed or executed the note or instrument set forth in the declaration.
The case came on to be tried before a jury, when it appeared that the note as given by Swift; did not contain the clause raising the interest to ten per cent, after December 19, 1870, aud that Barber became the holder before such addition was made. There was no dispute about the 'fact of alteration. Indeed, Barber testified that he himself .•added the clause in question.
He claimed that it was done with the assent of Swift, but admitted that the latter was not present, and had no ¿knowledge that the note was changed. His explanation is, that on or about the 19th of December, 1870, he conversed with Swift about an extension of time for payment, and that Swift then said, “make the note ten per cent.;” that the note was then at a bank; that he went at once to the bank and found it closed, and the next day went to Colorado, and on returning five or six months after-wards, and which was in August or September, 1871, he •called at the bank and added to the note the passage before noticed. Swift swore that no such arrangement was made. The court allowed the jury to find for the plaintiff, if they should be satisfied that he wrote the addition to the note pursuant to the verbal statement made several months previously by Swift as sworn to by Barber.
We think in this the court went too far. The rate of interest which the note originally called for was seven per cent., and conceding that it was competent for the parties by mutual agreement to change the rate to ten, that could only be done under the statute by a stipulation in writing. — Comp. L., § 1632. The law does not authorize a verbal agreement for interest at ten per cent. If it should be admitted, which I think can hardly be done, that the statement imputed to Swift by Barber as to the alteration of the rate of interest, imported that Barber might then alter the note substantially to the extent to which it was altered, it is still very clear that it did not import a continuing assent and authority which would justify and make valid and binding an alteration written out by Barber several months after the alleged statement.
When the holder of negotiable paper assumes to alter it in a material part, in the absence and without the knowledge of the party liable upon the paper, it ought not to be maintained as a lawful alteration, except upon very clear proof that when actually made it had the assent of the party to be charged. Any other rule less stringent would lead to mischief. ,
As this disposes of the case, it is not necessary to consider the other questions. , ....
Tbe judgment must be reversed, with costs, and a new trial ordered.
Cooley and Campbell, JJ., concurred.
Christiancy, J., did not sit in this case. | [
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] |
Christiancy, Ch. J.
This was an action of replevin brought by Braidwood against Bristol in the circuit court for the county of Lapeer, for a pair of colts which the former bad sold or traded to the latter for forty dollars in cash and a mortgage and accompanying note of one Henderson, given not long before to one Goetchius, for four hundred dollars at ten per cent, interest, upon which two hundred and fifty dollars had been paid and endorsed. This mortgage tbe defendant (below) represented to tbe plaintiff to be “'as good as tbe wheat,” “as good as .the money to any one who did not want to use the money; for,” said be, “it is drawing ten per cent, interest.” And being asked by plaintiff if there was any mortgage ahead of this, he replied that there was not, as far as be knew.
The plaintiff, about four days after the trade, claiming to have ascertained that there was a prior mortgage upon tbe land, executed by one Augustus Hilliker to one James Lee for some fourteen hundred dollars, which had been foreclosed and a deed given by the sheriff, tbe right to redeem from which would expire in about twenty-three days, and claiming to have been defrauded by the representations of the defendant, tendered back to him the mortgage and the forty dollars (which the defendant refused to receive), and demanded his colts, thus attempting to rescind the contract.
If the representations complained of were such as to entitle the plaintiff to rescind the contract and bring replevin, on the ground that they were false and fraudulent in reference to a prior incumbrance, it is very clear that this could be so only because such prior incumbrance affected the title upon which the Goetehius mortgage (transferred to plaintiff) depended, and because its enforcement might defeat the latter in whole or in part. For, though such prior mortgage might describe the same land, yet, if executed by some one having no connection with the real title, but outside of the chain of title, it could in no way defeat or affect the Goetehius mortgage or impair its security.
It was therefore incumbent upon the plaintiff not only to show, first, a prior mortgage describing the land, but, second, that it was connected with, and affected the title in such a manner as to impair the value of the Goetehius mortgage. All he did was to prove by the record the existence of a prior mortgage describing this land, executed by Augustus Hilliker to James Lee, and that this mortgage had been foreclosed, and a sheriff’s deed executed to one Baldwin Copeland. He entirely failed, and did not even attempt, to show that Hilliker, who executed this prior mortgage, ever owned the land, or had any connection with the title.
Goetehius, however, was sworn for the defense, and gave some testimony tending to show that he, when he took his mortgage from Henderson, and afterwards, recognized the existence of a prior mortgage affecting the value of his security; and it might have been a question whether this evidence might not have warranted a jury in finding that the prior mortgage did affect the title and impair the secu rity of the Goetchius mortgage. But this cannot avail the the plaintiff below upon this record, since the court, in denying the request of the defendant for a contrary charge, instructed the jury that the mere proof of the existence of the prior mortgage describing the same land, and the sheriff’s deed on foreclosure, made a prima facie case that there was a prior incumbrance upon the land, and threw upon the defendant the burden of proving that it did not affect the title. This we think was clearly erroneous. ' The burden of proof was upon the plaintiff throughout, to show that it did affect the title, and not upon the defendant to prove that it did not.
This disposes of the casé; but as a new trial is to be awarded, it is proper to notice another feature of the case, which will be likely to appear upon the new trial substantially as it does here; as the plaintiff and defendant substantially agree upon what the representations of the defendant were upon the points we have noticed above. These representations, so far as material to the question of fraud and the right of the plaintiff to rescind, I have set forth above; and so far as they relate to the value of the mortgage, — irrespective of the question of a prior mortgage, — they should, I think, be looked upon merely as the expression of an opinion, or as a matter of commendation by the vendor, the defendant. Its value also would depend not merely on the value of the mortgage security, but upon the personal responsibility of Henderson, whose note accompanied the mortgage, and so far as the mere question of value is concerned, — if there was no previous mortgage, — it was a question upon which the plaintiff, in the exercise of ordinary diligence, should have ascertained for himself, and upon which he would have been as competent to judge as the defendant. And upon this question there is nothing in the case which should, as it seems to me, relieve the plaintiff from the application of the principle of caveat emptorj especially as it does not appear, and is not pretended, that the mortgage would not have been perfectly good, and as valuable- as represented, if there had been no prior mortgage upon the land.
The whole question of misrepresentation and fraud must therefore turn upon the representation in reference to the fact, whether there was a prior mortgage; and upon this point it may, for the purposes of this case, be admitted that if the defendant, for the purpose of obtaining the plaintiff’s property for the mortgage, asserted to him, as a fact of which he professed to have knowledge, that there was no prior mortgage upon the land, when he knew, or had good reason to believe the contrary, or no good reason to believe his assertion to be true, he would be liable ag for a fraudulent representation, and the plaintiff might have rescinded the contract and reclaimed his property. And in such a case it would not be material whether Henderson’s note, without the mortgage, would be good, or whether the land was worth more than enough to pay off both the mortgages (though it would be otherwise where he retained the property and brought his action for damages), because, notwithstanding these facts, the plaintiff might not have consented to part with his property for the mortgage, and the plaintiff was entitled to have substantially the thing bargained for, and such as the defendant represented it to be, and if it turned out to be essentially different, he would have a right to rescind, by tendering back the mortgage and demanding his property.
I cannot, however, assent to extend the maxim caveat emjotor so far as to hold (as seems to have been held in some cases) that where a vendor of real estate, for the fraudulent purpose of effecting a sale, makes a positive representation of particular facts respecting the title, which he knows, or has good reason to believe to be false, and which turn out to be false in fact, but which, if true, would make the title good, he cannot be held liable in an action for the fraud, or the vendee can have no right to rescind, because he had it in his power to ascertain from the records the truth or falsehood of the representation, and the true state of the title, but has neglected to do so, in reliance upon the truth of the vendor’s representation of the facts. There may be good, prudential reasons why, when I am selling you a piece of land," or a mortgage, you should not rely upon my statement of the facts of the title, but if I have made that statement for the fraudulent purpose of inducing you to purchase, and you have in good faith made the purchase in reliance upon its truth, instead of making the examination for yourself, it does not lie with me to say to you, “It is true that I lied to you, and for the purpose of defrauding you, but yon were guilty of negligence, of want of ordinary care, in believing that I told the truth; and because you trusted to my word, when you ought to have suspected me of falsehood, I am entitled to the fruits of my falsehood and cunning, and you are without a remedy.”
But these questions are no further involved than this: if no- action could be maintained and no contract rescinded on the ground of such fraudulent misrepresentation of facts regarding the title of real estate, simply because the vendee neglected to examine the records, the present action could not be maintained, whatever the representations may have been. But what were the representations in regard to the existence of a prior mortgage? When asked if there was any such, the defendant simply says, “there is not, that I know of.” He does not attempt to make any representation whatever of the fact, whether there was such prior mortgage or not; and the whole import and fair understanding of the representation was, as it seems to me, that he did not know what the fact was, whether there was or was not such prior mortgage; but only that he did not know of any. This was fairly putting the plaintiff upon inquiry, to ascertain the fact for himself. I will not undertake to say, — nor does this case call for an opinion upon the point, — that if the defendant knew at the time, of a prior mortgage affecting the title of the property, he might not be held liable for a fraud, if, for a fraudulent purpose,. he stated that he did not know it; — though this might be going a great ways, when tbe plaintiff was thus fairly put upon inquiry by being told simply that be did not know of any. But was there any evidence fairly tending to show that tbe defendant did know of the existence of tbe prior mortgage ?
The only evidence which can possibly be claimed to have this effect, is that of Charles Sheine, who testifies that, in a conversation with.tbe defendant in reference to purchasing the G-oetchius mortgage, — some time prior to the trade with the plaintiff, — he [Sheine] told the defendant that he had heard that the .mortgage was not good, that he had heard that there was a mortgage ahead of it. This was not only hearsay, but second-band hearsay, which, if tbe defendant was not entitled to treat as a mere idle rumor for all purposes, cannot, as it seems to me, have any fair tendency to show that he bad falsely or fraudulently misrepresented when be told the plaintiff he did not know of any mortgage. I see nothing in this‘evidence calculated to induce the belief of tbe defendant in the existence of such a prior mortgage.
The judgment must be reversed, with costs, and a new trial awarded.
The other Justices concurred. | [
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Grates, Ch. J.
In 1869 Busli and Pattison constructed the International Hotel at Kalamazoo, for Davis, and in 1870 they sued him on the quantum meruit for the labor and materials. He set up in defense that the service and materials sued for were rendered under a special contract which fixed the price at thirty-one thousand dollars; that he had paid this price, and further,.that there were defects which entitled him. to recoup damage. The jury, under the instructions of the court, found against him, and he caused a bill of exceptions to be settled, and removed the cause hither by writ of error. The exceptions are very numerous. A large number are quite unimportant, and would never justify discussion. Very many relate to mere discretionary rulings, and several refer to questions which, however decided, could have produced no legal prejudice.
The stress of the case was upon whether, in the state of things which existed, the defendants in error were entitled to go upon the quantum meruit or had restricted themselves tó a definite price, and a large mass of verbal testimony was given on this subject.
This testimony was contradictory in itself, and some of it wás open to different interpretation. It embraced statements of parties and representations of conduct supposed to favor or repel the idea that the work was carried on under an express arrangement for a fixed sum. Bach of the parties testified. Davis swore that it was expressly agreed 'that the building should be put up according to plans and specifications for thirty-one thousand dollars; that the defendants in error were to take a specified house and lot at seven thousand dollars, a mortgage against one Penfield of ten thousand dollars, at that sum and the interest upon it, and were to have the residue in cash. Bush swore, that the work and materials were not rendered “under any contract;” and Pattison, when first examined, swore that he had no knowledge of “any contract” for the construction of the building, and when called afterwards upon the rebutting case he further stated “that there was never any amount fixed upon thatr was to be paid for constructing that building.”
■' It is fair and reasonable to assume that these parties in denying that there was any contract, intended simply to assert that no price was agreed upon. Because the theory of their action as well as many uncontested facts implied ■ the existence of a contract having greater or less scope. The defendants in error were actually employed, and for the entire thing. The business was not undertaken or carried on as piece work. There were plans, specifications, and estimates, and these plans and specifications were designed as guides. Davis claimed that it was agreed that some changes might be made if he should desire any. The whole 'case shows clearly that there was an express agreement which covered some portion of the transaction. The final controversy was, in substance, whether the parties had so conducted that the price had become settled and fixed, or whether that was a matter still at large and subject to be measured by market value. In the outset the parties talked about the cost. This is certain. Mr. Pattison testified. that Davis came to the shop and said he had been talking with Bush about building a boarding house and wished to talk with him, Pattison, about getting up some plans and specifications; that he, Pattison, had a second interview with ■Davis; that Davis looked at the plans and said they would do, and wished him, Pattison, to go to work and get up some more definite plans; that he, Pattison, told him he would; that at the request of Davis he, Pattison, made an •estimate in figures of the cost; that Bush told Davis that if there was no additional work than he, Pattison, had figured upon, the building might be built for that amount. These estimates the defendants in error insisted at the trial, and now insist, were not made as an offer, or as connected with an offer to put up the building at the price they indicated, but were made at the request of Davis and solely to assist his judgment in deciding what he would do.
It does not become necessary to inquire how the jury should have been instructed to interpret this part of the transaction, if the circumstances warranted the opinion that Bush and Pattison knew that Davis understood that they assumed the job at the price fixed by their estimate. — 2 Kent, 557; Barlow v. Scott, 24 N. Y., 40 ; 1 Parsons on Con., 5 ed., 475 and notes, and 477 and notes; Fry on Spef. Per., 135-145, 2 Am. ed., and notes; Hartford & New Haven R. R. Co. v. Jackson, 24 Conn., 514; Allen v. McKean, 1 Sum., 276, 304-310.
The paper plans, specifications, estimates, and an instrument dated July 5, 1869, containing certain receipts and recitals, were given in evidence. Most of these, and especially the last paper and the formal specifications, were ■drawn up when the work was in progress.
The court allowed the jury to take all the papers into •consideration as facts with others to enable them to decide whether the parties did or did not come to an express .agreement as to the price ; but expressly directed them that the matters contained in the paper of the 5th of July, 1869, did not constitute such a contract, and further, that such paper did not preclude the defendants in error from claiming that in fact there was no such contract.
This charge left the jury no alternative but to find for the defendants in error on this branch of the case, if they should be of opinion that the documents when regarded as inducing media merely, and taken in connection with the other circumstances, did not show that a price was agreed on. It absolutely excluded all right to give to these papers or any of them any other effect than such as might be due to them as circumstancial indications of the production of an agreement for the price.
The point upon the propriety of the instruction to the jury will be more apparent by an inspection of the paper of the 5th of July, as set forth in the bill of exceptions. It reads as follows:
“Received of E. H. Davis seventeen thousand two hundred and twelve and thirty-nine one hundredth dollars, as follows: May 6, 1869, twenty-five hundred dollars; June 2, 1869, three thousand and one hundred and sixty-six dollars; July 5, 1869, Penfield mortgage for ten thousand dollars, interest thereon from January 1, 1869, five hundred dollars; H. S. Parker & Co.’s note, one thousand dollars, interest thereon forty-six and thirty-nine one hundredth dollars, the same to apply on building contract as per plan and specifications made by Bush and Pattison, the same amounting to thirty-one thousand dollars, as follows:
Davis house, corner of Burdick and Dutton streets..$7,000
Penfield mortgage $10,000, interest and cash $14,000...24,000
Total.........................$31,000
July 5, 1869. Bush & Pattison.
$500. Received as per contract five hundred dollars, July 7, 1869.
$7,000. Received as per sale of house, seven thousand dollars, July 15, 1869.
$2,550. Received as per-twenty-five hundred and fifty dollars, July 23, 1869.
$2,834. Received as per-twenty-eight hundred and thirty-four dollars, August 3, 1869.
Bush & Pattison.”
It. was stated at the bar, and not disputed, that in point of fact each of the last two endorsements specified like the first that the payment was as “per contract.” But the printed record is as here given, and whichever version is correct the meaning will not be varied. There was no question about the authenticity or validity of this paper. The controversy was upon its construction, import and effect.
The defendants in error insisted that it was a mere voucher or receipt, and entitled to no higher or fether consideration than would be due to a bare acknowledgment of defendants in error of the receipt of so much money from Davis on the work and materials. It does not appear what precise view the court below took of the instrument. He, however, expressly told the jury that it did not constitute a contract, and, as already stated, that it did not preclude the defendants in error from claiming that there was in fact no contract.
We cannot concur with the court below in this position. We think it was incorrect and misleading. The instrument was undoubtedly, as claimed by defendants in error, a receipt. But it was something more, and it had a special bearing upon the rights of the parties in the pending litigation, beyond that of a mere general receipt of money for work and materials supplied and used in connection with the particular building.
Of course it was not the embodiment in writing of a contemporaneous agreement, unless it was the result of some understanding then reached, and it does not appear that the parties were then treating to agree upon terms.
It appears to have been drawn in reference to a preunderstood arrangement, an arrangement which the parties recalled to their attention when the writing was made. There is no suggestion or indication that it originated in any fraud or mistake, and the signs are that it was deliberate.
Whether it is susceptible of being considered as the formal record of a past verbal express contract so as to bind in that .sense is not material in the present posture of the-case.
It expressly declared what the contract relation of the parties was understood to be in respect to price, and plainly imported that the defendants in error were entitled to a fixed price, namely, thirty-one thousand dollars, and not an indefinite amount for the job; and by consequence as plainly negatived the prbposition that they were authorized to claim some indefinite compensation, some amount or price-dependent upon the state of the market. Upon the footing of this explicit declaration and admission that their demand was considered as specific and not one upon quantum meruit, Davis paid, and they deliberately received and acknowledged nearly thirteen thousand dollars.
Was1 it admissible for the defendants in error after such declaration and admission, and after such payments and receipts upon the basis of it, to shift their ground and take-an inconsistent position? Were they at liberty to say that having got all they could by putting one face upon the transaction, they would then repudiate as one no longer of service to them the status they had thus admitted, and put forward another and inconsistent position and relation in order to get more?
Unless we depart from settled principles, these questions must be answered in the negative, even though we should feel that defendants in error would have been warranted in Bteadily standing out from the beginning for-a different measure of compensation. If they meant eventually to contend that their true contract relation with plaintiff in error was one giving them the right to require him to pay according to the standard of market value because no price-was settled upon, they should have acted, in dealing with him about the rate and in receiving pay, consistently with that construction of the transaction, or at least they should have avoided the contradictory and misleading course which was taken.
In the light of this record it appears that the parties deliberately determined for themselves that the contract relation between them had an identical character; that it was specific as to price, and not general; that it gave defendants in error the right only to call for pay, and imposed on Davis only the duty of paying a fixed and ascertained amount, and not a fluctuating one,-and that they respectively acted and changed their conditions on the basis of such determination. The paper of the 5th of July went to establish this state of things, and there seems no l’eason to doubt but that it was sufficient to preclude the defendants in error from claiming that the price was not thereby liquidated. — Broom’s Max., 160; Farrow v. Bragg, 30 Ala., 261; Rodermund v. Clark, 46 N. Y., 354; Sanger v. Wood, 3 J. C. R., 416; Morris v. Rexford, 18 N. Y., 552; O’Donnell v. Kelsey, 6 Seld., 412 ; Phila., Wil. and Bal. R. R. Co. v. Howard, 13 How., 307; Hooker v. Hubbard, 102 Mass., 239; Tobey v. Chipman, 13 Allen, 123; Stagg v. Ins. Co., 10 Wall., 589; Harding v. Ambler, 3 M. & W., 279; Davenport v. Wheeler, 7 Cow., 231; Gillespie v. Carpenter, 1 Robertson, 65; Frost v. Mutual Ins. Co., 5 Denio, 154; Hills v. Lanning, 24 E. L. & E., 452; Ashpitel v. Bryan, 3 B. & S., 474 [E. C. L., Vol. 113]; Donohue v. Woodbury, 6 Cush., 148; Wilkinson v. Byers, 1 Adol. & Ell., 106; McDaniels v. Lapham, 21 Vt., 223; Babcock v. Hawkins, 23 ib., 561; Palmerton v. Huxford, 4 Denio, 166; Lilley v. Adams, 108 Mass., 50.
The jury were therefore wrongly instructed on this vital question, a question upon which the case most probably turned, and on that account the judgment must be reversed, and a new trial ordered.
As there is little reason to suppose that any of the other points which are worth considering will come up on another trial, their discussion is waived.
Cooley and Campbell, JJ., concurred.
Christiancy, J., did not sit in this case. | [
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] |
Carr, J.
The defendant city of Northville is located in the counties of Wayne and Oakland. It is conceded that its population at the time of the proceedings in question here was less than 15,000. Territory has heretofore been annexed to it from the township of Novi in Oakland county. PA 1958, Appendix, p 403.
The proceedings involved in the instant case were initiated by a petition filed with the secretary of State under the provisions of the city home-rule act for the annexation to the city of Northville of lands in the township of Novi, description of which was set forth in said petition. Embraced within the description was 135 acres of unplatted land in the village of Novi, plaintiff herein. By stipulation of the parties there has been filed in this Court a photostatic copy of said petition. The secretary of State on examination concluded that it complied with the statute, and the exhibit before us supports such conclusion. It appears therefrom that there were 31 signers of the petition who were qualified electors and freeholders in the village of Novi, the circulators of said petition duly verifying under oath the facts in this respect. No question is raised as to the number of signers from the city of Northville or from the township of Novi, and the undisputed facts appearing from the exhibit indicate that there were more than the statutorily required number of 25 signatures of qualified electors from the village. CLS 1956, § 117.11 (Stat Ann 1959 Cum Supp § 5.2090).
In accordance with his conclusions the secretary of State certified that the petition conformed to the provisions of the statute and directed that an election be held on March 28,1960, at which the question of annexation of the described property to the city of Northville should be determined. Such election was duly held in said city and in the portion of the territory proposed to be annexed. The proposal carried in the city by an affirmative vote of 289 to 144, and within the territory proposed to be annexed the vote was 53 to 9 in favor of such action. No election was held in the balance of the village of Novi from which a portion of the territory was proposed to be taken.
Plaintiffs herein challenge the validity of the election in a quo warranto proceeding, the information being filed by permission of this Court. It is the position of plaintiffs that the question of the proposed annexation should have been submitted to all of the qualified electors of the village of Novi. The claim in this respect is predicated on the provisions of the village home-rule act. Defendants assert that the village act is in no way involved in the instant proceedings, and point ont that its provisions relate to the incorporation of villages, to the annexing of territory thereto, and to the detaching of territory therefrom which, when detached, assumes the status that it had before becoming a part of the village. CL 1948, §78.9 (Stat Ann §5.1519). Its provisions do not govern the annexation of territory to cities, which is fully covered by the provisions of the city home-rule act above cited.
Section 9 of the act under which the present proceedings were instituted declares that:
“The district to be affected by every such proposed incorporation, consolidation or change of boundaries shall be deemed to include the whole of each city, village or township from which territory is to be taken or to which territory is to be annexed.” CLS 1956, § 117.9 (Stat Ann 1959 Cum Supp §5.2088).
It will be noted that the language above set forth indicates that it was the intention of the legislature that territory constituting a part of a village might be annexed to a city. The provision quoted is subject to certain provisos, among which is:
“That territory may be attached or detached to or from cities having a population of 15,000 or less if a majority of the electors voting on the question in the city to or from which territory is to be attached or detached, and a majority of the electors from that portion of the territory to be attached or detached, as the case may be, both vote in favor of such proposition.”
That the instant proceedings were subject to this proviso is not open to question. As before mentioned, the population of Northville was less than 15,000. In consequence, the election on the question of annexation as ordered by the secretary of State was properly restricted to the city of Northville and to the territory proposed to be annexed. The portion of such territory within the village of Novi was also a part of the township. Ford Motor Company v. Village of Wayne, 358 Mich 653, and prior decisions there cited. Counsel for plaintiffs have suggested in argument that before a part of a village can be annexed to a city it must first be detached from the village under the provisions of the village home-rule act. The argument is inconsistent with the statutory provisions governing the instant proceedings.
As further indicating the intention of the legislature attention is called to section 14 of the city home-rule act (CLS 1956, §117.14 [Stat Ann 1959 Cum Supp § 5.2093]) which relates to the division of assets and liabilities in annexation proceedings. Said section prescribes the manner of division of both real and personal property whenever “a part of a city, village or township is annexed to a city.” Such provisions are in recognition of the intent of the legislature that a part of a village may be annexed to a city, in which event rights and equities shall be adjusted in the prescribed manner. The village home-rule act on which plaintiffs rely contains no provisions for property adjustments in the case of an annexation of territory to a city. Obviously such provisions would not be within the scope of the purpose of said act.
In view of the intent of the legislature as indicated in the city home-rule act, we do not think that further discussion of the matters raised by counsel is required. An order will enter denying the relief sought by plaintiffs and dismissing the information. In view of the nature of the controversy, no costs are allowed.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
PA 1909, No 279, as amended (CL 1948, § 117.1 et seq., as amended [Stat Ann 1949 Rev and Stat Ann 1959 Cum Supp § 5.2071 et seq.]).
PA 1909, No 278, as amended (CL 1948, § 78.1 et seq., as amended [Stat Ann and Stat Ann 1959 Cum Supp § 5.1511 et seq.\). | [
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Per Curiam.
This case in legal principle cannot be distinguished from Dequindre Development Co. v. Charter Township of Warren, 359 Mich 634. Also, it is closely related to Dequindre in a factual way. Immediately south of the tract considered in Dequindre is plaintiff’s trailer coach park (see page 636 of Dequindre report). Adjacently south and west of such trailer coach park the remainder of plaintiff’s premises are located. It is with respect to use of such remainder that the present controversy has arisen.
Plaintiff, desiring to extend his trailer coach park to such remainder, applied to the defendant (formerly township and now city of Warren) for certain permits authorizing water, sewer, and electrical services therefor. The application was denied on assigned strength of the same ordinances as were considered in Dequindre. Plaintiff then applied in the Macomb circuit for a writ of mandamus to compel issuance of such permits. The writ, following due hearing, was issued. Defendant appeals.
For reasons given in the majority opinions of Dequindre, and for corresponding reasons recorded in the opinion of the trial judge, we find that the defendant has arbitrarily and capriciously refused to issue the permits sought by plaintiff and that issuance thereof will in no manner impede statutory and local regulation, for purposes of health, safety, morals, and public welfare, of plaintiff’s present and prospectively extended trailer coach park. The trial judge concluded, and we agree:
“It is apparent that the defendant city desires to and has made every effort at dissuading or flatly prohibiting mobile home courts or trailer parks. By its Ordinance No 60, adopted in 1952, in effect, trailer parks were prohibited. By its Ordinance No 76, adopted by the now city rather than township government, the defendant has in effect, again prohibited trailer parks by, on the one hand, making them lawful and on the other by failing to give substance to their intent by not zoning any property within the city limits to an R-4 district. Certainly, it must be further assumed that the defendant is fully cognizant of the general property conditions in the area involved and its unsuitability to the purposes of the district zoning now in effect.
“The only logical conclusion to be drawn from these sundry facts is that the refusal of the defendant to rezone any parcel to R-4, regardless of location and suitability, and in particular as to this plaintiff’s property, is arbitrary and capricious, and that Ordinance No 76 is, in its application to plaintiff’s property, unreasonable, and confiscatory.
“While it is well established that courts resist the temptation to legislate, and to substitute themselves and its judgment for the duly elected representatives of the general public, yet the right of each individual, if infringed upon, must with equal zealousness be protected. In the case under consideration, the existing ordinance as it affects plaintiff’s property is not a reasonable exercise of the police power, and is not predicated upon a substantial tendency to promote the public health, safety, morals, or welfare of the people.”
Affirmed. No costs.
Dethmers, C. J., and Carr, Kelly, Black, and Kavanagh, JJ., concurred. | [
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Edwards, J.
This is a suit for damages resulting from a rear-end collision. Plaintiff had stopped her car in line behind others when defendant’s car ran into a third car and drove it into the rear of plaintiff’s car. Trial resulted in a judgment for plaintiff based upon a jury’s verdict of $18,000. Á motion for new trial was made and denied. On appeal defendant claims several grounds for reversal, none of which concerns liability.
Plaintiff suffered a “whiplash” injury in the accident.
For a long period of time prior to the collision plaintiff had suffered occasional migraine headaches. Following the collision she testified she experienced almost continuous neck and head pains. Much of the controversy in this case at trial and on appeal concerns extent of the pain and establishment of a causal connection between plaintiff’s condition and the accident.
The only medical testimony in the trial was offered by plaintiff and included the testimony of 2 doctors who treated her for her complaints. Plaintiff’s counsel asked a hypothetical question which concluded :
“Now, Doctor, assuming all of those facts to be true, do you have an opinion, based upon a reasonable medical certainty, as to whether they could be, whether there could be a causal connection between the rear-end collision, which I described at the beginning, the rear-end collision accident, and the condition of pain and ill-being as set forth in this question in that person?”
In response, Dr. Taran testified:
“My opinion is that there is a possible relation between the accident so described and the complaints which the patient makes.”
Defendant’s counsel objected and asked that the answer be stricken because it was based upon “possibilities, guesses, or conjectures.” The trial judge refused and defendant claims error, citing Buehler v. Beadia, 343 Mich 692, 708, and other authorities. At the outset, it must be observed that we are not dealing here with a jury’s verdict which rests alone upon the challenged opinion testimony. The jury had the benefit also of Dr. McIntyre’s testimony which had been taken by- deposition and which was read to the jury. Dr. McIntyre testified:
“My opinion is that the accident caused her to have the bruising of the nerve roots and the pain which developed as a consequence of it.”
■Indeed, Dr. Taran himself testified, on cross examination, that the accident was the most probable cause of plaintiff’s worsened headaches and pain.
At the time of Dr. Taran’s testimony, Dr. McIntyre’s deposition had already been introduced in •evidence and the trial judge then knew that other more direct testimony of causal connection was before the jury. Under such circumstances, there exists no valid reason for excluding opinion testimony which, was stated in the manner permitted prior to adoption of Court Rule No 37, § 16 (1945). Even in the absence of prior testimony such as Dr. McIntyre’s, expert opinion evidence cast in terms of possibility or probability should be admitted subject to protective instruction by the trial judge in his charge to the jury.
Section 16 was added to Court Rule No 37 in belated recognition of the fact that our prior evidentiary limitations upon expert witnesses, called upon to express opinions concerning matters of specialized knowledge beyond the knowledge of laymen, unduly restricted such witnesses. Such witnesses now may testify, if they can, in terms of the ultimate issue to be decided by the trier of the facts. It would be a strange result if we were to conclude that such witnesses may testify now only if they can do so in terms of ultimate fact. Our new rule designed to unseal the lips of experts, instead, would gag them even more effectively than they were before. We find no error in the admission of Dr. Taran’s testimony.
Nor do we find error, as defendant claims, in the trial judge’s failure to instruct the jury specifically as to the “probative value” of Dr. Taran’s opinion testimony. We assume defendant’s claim is that the trial judge should have instructed the jury to disregard the testimony or to give it little weight. Even had defendant requested such instruction (and he did not), we believe the trial judge would not have erred in refusing the request.
The court did charge at length on the jury’s function in determining the facts concerning plaintiff’s claim of injury:
“You shall receive the evidence on damages and discard that which you believe was not caused by, or was not related to the accident. Damages included pain and suffering. There is evidence here that the plaintiff had a history of re-occurring headaches from childhood. Further that her experience with migraine headaches continued to the present time. If you believe that her headaches were caused by the accident then you shall make that decision. In the same way if you find that her headaches were not caused from the accident then you should so determine and disallow as much of such claim as you find was occasioned by her headaches.”
In other paragraphs bearing on the same topic, the circuit judge instructed the jury to find for plaintiff only as to those damages which the jury found to have been “strictly caused” by the accident or occasioned as “a direct result of the accident.” Four times his charge employed the terms “reasonable certainty” or “reasonably certain,” as describing the test to be applied to expert opinion evidence concerning plaintiff’s damage claims.
We find no error which was prejudicial to appellant.
Defendant next claims the trial judge committed reversible error in refusing even to consider certain handwritten requests to charge submitted to him by defendant at the conclusion of proofs. The record indicates that the trial judge’s refusal was based upon the fact that opposing counsel had not had a chance to see them. We think it would have been better practice for the judge to have reviewed defendant’s additional requests with counsel for both parties and to have taken whatever time was necessary to do so. Although trial counsel should be encouraged to prepare requests to charge well in advance of their need by anticipating the issues which the proofs will develop, they should not be discouraged from making changes therein, or additions thereto, at any time before the jury retires to deliberate if developments in the late stages of the case (or even in the court’s charge) indicate such changes or additions are necessary to the protection of the rights of the parties. Crippen v. Hope, 38 Mich 344.
For a failure to afford counsel an opportunity to submit legitimate requests to charge where prejudice to his client can be fairly inferred, we will not hesitate to reverse. However, in the case at bar, although we conclude error was committed by the summary refusal to consider defendant’s additional requests to charge, we do not reverse on this ground, either because the jury instructions given covered the instructions requested or because defendant was not entitled to them. None of the additional requested instructions is of such merit that further discussion thereon in this opinion is warranted.
Finally, defendant directs our attention to plaintiff’s lawyer’s argument to the jury in which he suggested a mathematical formula to aid in determination of damages for pain and suffering.
The trial judge, in whose hands our rules place considerable discretion, did not believe that the mathematical formula employed by plaintiff’s counsel in his jury argument was objectionable. Nor do we. The cases relied upon by appellant which have reversed jury verdicts on this ground have generally cited the impossibility of evaluating pain in dollars and cents (see Botta v. Brunner, 26 NJ 82 [138 A2d 713, 60 ALR2d 1331]; Affett v. Milwaukee & Suburban Transport Corporation, 11 Wis2d 604 [106 NW2d 274]). Yet this is exactly the task which is imposed upon the jury and to which the lawyers’ arguments are required to be directed.
' The same speculative quality which exists in a lawyer’s estimate of money value of a day’s pain and suffering exists likewise in plaintiff’s ad damnum clause and in the jury verdict to the extent that they allow for pain and suffering.
I Michigan permits plaintiff’s claim as set forth in the ad damnum clause to be placed before the .jury. Court Rule No 37, §2 (1945). And, like every other State, we require juries to determine the value of pain and suffering. We see little merit in forbidding lawyers to try to help in that difficult task.
Nor are we impressed that plaintiff’s lawyer’s use of the mathematical formula will lead toward horrendous verdicts. Such an argument is not, like the judge’s instruction, binding on the jury. It will undoubtedly be effectively balanced by defendant’s lawyer’s counterargument. Further, juries automatically discount “lawyer talk” to some degree. And trial judges automatically instruct that such arguments are not evidence.
In addition, if more be needed, the trial and appellate courts have ample means to restrain excessiveness in verdicts.
With respect for the views of our learned brothers in New Jersey (Botta, supra) and Wisconsin (Affett, supra), we prefer the reasoning on this problem of the Kentucky, Utah, Washington, and Florida courts: Louisville & Nashville Railroad Company, Inc., v. Mattingly (Ky), 339 SW2d 155; Olsen v. Preferred Risk Mutual Insurance Company, 11 Utah2d 23 (354 P2d 575); Jones v. Hogan, 56 Wash2d 23 (351 P2d 153); Ratner v. Arrington (Fla), 111 So2d 82.
A lawyer’s attempt in his jury argument to evaluate pain on a daily basis for purposes of illustration, we deem no more objectionable than his at tempt to place a monetary value on the total pain and suffering experienced.
The defendant made no objection during or after the plaintiff’s closing argument, but now claims that it was so objectionable (on this and another ground) that the trial judge could not have corrected the harm done even if timely objection had been made.
This Court held in Taliaferro v. Pere Marquette R. Co., 249 Mich 281, 287:
“It has been repeatedly held that, if counsel in their argument make improper statements, the attention of the court should be called to it by counsel on the other side. If they do not do so, they waive their right to objection, unless the statement is so extremely prejudicial that even a correction by the court would not undo the harm. * * * The opposite party may not permit such statements to go unchallenged and then on account of them seek a reversal of the case in this Court. Freeman v. Hoag, 217 Mich 587; Habitz v. Wabash R. Co., 170 Mich 71.”
See, also, Schankin v. Buskirk, 354 Mich 490, 498.
It is interesting to note that defendant does not contend that plaintiff’s closing argument resulted in an excessive jury verdict to his prejudice or that a miscarriage of justice otherwise resulted therefrom. On this record, we cannot infer such result. Plaintiff was about 40 years old at the time of trial her out-of-pocket expenses, some disputed, were approximately $5,000; there was evidence of pain and suffering for more than 2 years preceding the trial and testimony substantiating her claim that it would continue for the rest of her life. The verdict of $18,000 does not so shock our consciences that we would be disposed to set it aside as excessive.
We find no prejudicial error.
Affirmed. Costs to plaintiff.
Dethmers, C. J., and Carr, Kelly, Black, Kavanagh, and Souris, JJ., concurred.
Smith, J., did not sit.
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Per Curiam.
Plaintiff, having alleged negligent maintenance of an “unmarked, open manhole, located on the shoulder of an unlighted suburban street in Lansing township that was under the control of the county of Ingham,” advises that “this cause of action was started by appeal from the decision of the board of supervisors” disallowing his claim for personal injuries suffered January 1, 1959, by a fall into such open manhole. He avers right to proceed directly against the county under article 8, § 9, of the Constitution (1908) and the general enabling act of 1909, as amended (CL 1948, §§46.71-46.77 [Stat Ann §§ 5.521-5.527]).
Judge Coash dismissed on ground that plaintiff’s right of action was exclusively suable against the county road commission under amended section 21 of chapter 4 of the highway law (CLS 1956, § 224.21 [Stat Ann 1958 Lev § 9.121]) . Plaintiff, appealing, relies on certain language appearing in Braun v. County of Wayne, 303 Mich 454, 458-460. His contention is that the legislature has provided a choice of remedies for negligent injury sustained on county roads, and that such choice may he made by one who has failed of timely compliance with the requirement of written notice set forth in the quoted portion of said section 21.
The Braun Case does include dicta indicating the claimed right of choice. However, the presented issue was whether the defendant county, having considered the merits of the presented claims, thereby waived the requirements of section 2 of the general act above (CL 1948, §46.72 [Stat Ann § 5.522]). The language employed must, the context of the opinion considered, be taken as proceeding on assumption arguendo of a choice and as holding that, whether the plaintiffs were to be treated as having proceeded under the one statute or the other, they were out of court for these reasons (p 460):
“If plaintiffs sought recovery by suit under the first method, this action must fall because of their failure to serve the required statutory notice. If they sought recovery under the second method by presenting their claims to the board of auditors, this action also must fall because of their failure to appeal within 20 days after the disallowance of the claims. Plaintiffs have not wholly pursued either method and cannot be permitted to combine procedural steps of both methods.”
The circuit judge was right in holding that the latest expression of the legislature, providing a specific remedy and the procedures thereof for negligently inflicted personal injury as claimed in this case, controls over the earlier act. Enactment of the statute on which the plaintiff relies, including its sole amendment of 1911, took place long before county road commissions were authorized to “take over” township roads. To the extent of conflict between the old and the new, the latter impliedly voids the earlier remedy under well known rules of statutory construction. The conflict is, of course, that of providing a precise and modern remedy by suit against the county board of road commissioners for personal injury sustained on county roads, conditioned on the giving of timely written notice as in section 21 provided; whereas the earlier remedy was and is general, was and is available against the county directly, and was and is auditable in first instance by the board of supervisors or board of auditors — distinguished from the board of road commissioners — without any prerequisite of immediate-upon-injury notice, written or otherwise.
We are unwilling to impute, to the legislature, the intent of providing 2 alternative remedies for a defined class of wrongs, one relieving the whimsical plaintiff from the rigors of an on-time written notice and the other taxing him therewith. Such an imputation would nullify the most recent expression of the legislature, which in abbreviation is that no one may “hold such county liable” for injury sustained on a county road unless he complies with said section 21.
True, section 21 as amended in 1951 and 1954 is uncritically phrased. The county and the county board of road commissioners are referred to loosely and interchangeably. The statutory duty devolves on the county, as it did prior to the amendments of 1951 and 1954. However, the provided right of action for breach of that duty is against the board as defendant, which was not the case prior to the amendments of 1951 and 1954 (see CL 1948, § 224.21 [Stat Aim §9.121]). The present proviso is that “no board of county road commissioners, subject to any liability under this section, shall be liable for damages * * * unless such person shall serve or cause to be served within 60 days after such injury shall have occurred,” the required notice in writing. The notice must be one of intent “to hold such county liable for such damages as may have been sustained by him.”
A construing judge, reading the older statute in light of the newer one, can only conclude that the present legislative intent is that injured persons, of the class to which this plaintiff belongs, are confined exclusively to the remedy said section 21 provides. To “hold such county liable” for injuries sustained on account of breach of the duty imposed by the section, it is necessary that the board of county road commissioners be given timely notice and that it, the board, be sued. This the plaintiff has not done.
Affirmed. No costs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
The relevant portion of 1954-amended section 21 of the statute reads as follows:
“It is hereby made the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges and culverts that are within their jurisdiction and under their care and control and which are open to public travel. The provisions of law respecting the liability of townships, eities, villages and corporations for damages for injuries resulting from a failure in the performance of the same duty respecting roads under their control, shall apply to counties adopting such county road system. Actions arising thereunder shall be brought against the board of county road commissioners of the county and service shall be made upon the clerk and upon the chairman of the board made defendant therein, which shall be named in the process as the ‘board of county road commissioners of the county of ..............’ and any judgment obtained thereon against such board of county road commissioners shall be audited and paid from the county road fund as are other claims against such board of county road commissioners: Provided, however, That no board of county road commissioners, subject to any liability under this section, shall be liable for damages sustained by any person upon any county road, either to his person or property, by reason of any defective county road, bridge or culvert under the jurisdiction of the board of county road commissioners, unless such person shall serve or cause to be served within 60 days after such injury shall have occurred, a notice in writing upon the clerk and upon the chairman of the board of county road commissioners of sueh board, which notice shall set forth substantially the time when and place where such injury took place, the manner in which it occurred, and the extent of sueh injuries as far as the same has become known, the names of the witnesses to said accident, if any, and that the person receiving such injury intends to hold such county liable for sueh damages as may have been sustained by him. It is the intention that the provisions of this section shall apply to all county roads whether such roads become county roads under chapter 4 of the general highway laws, Act No 283 of the Publie Acts of 1909, as amended, or -under the provisions of the Covert Aet, so-called, the same being Act No 59 of the Public Acts of 1915, as amended.” (PA 1954, No 12.) | [
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] |
Kavanagh, J.
Defendants appeal from a decree setting aside 2 deeds — one given by plaintiff Fred H. Johnson to his brother Oscar A. Johnson covering plaintiff’s 240-acre farm located in Sparta township, Kent connty, Michigan; the second from Oscar A. J ohnson as grantor to himself and Annette Alley Johnson, his wife, as grantees, covering the same farm.
Plaintiff is a resident of Kent county, Michigan, and defendants, husband and wife, are residents of New Orleans, Louisiana.
On September 25, 1959, plaintiff filed his bill of complaint asking that the court decree defendants have no legal or equitable interest in his farm. Plaintiff alleges defendants had paid no consideration for the deed and had by fraud been able to secure plaintiff’s signature on what plaintiff now understands was a deed. Plaintiff, age 71 at the time of the trial, was ill (mentally and physically, off and on) for some little time prior to the execution of the deed. The mental condition does not seem to have been a serious one, yet a probate court petition for appointment of a guardian made and filed in early 1959 resulted in no hearing but in the placing of plaintiff in a convalescent home. Plaintiff was a patient in the home from January 8,1959, to April 1, 1959.
The deed in question was executed on December 26, 1958, while the plaintiff was visiting defendants in New Orleans. It is alleged plaintiff knew nothing about the deed until informed of its existence; that he was physically and mentally sick at the time of the execution; that the deed was without consideration; and that defendants fraudulently secured plaintiff’s signature.
It is alleged plaintiff took or had administered to him (during the New Orleans visit when the deed was signed) a drug or sedative called “deprol.” Plaintiff’s theory is that he must have been under the influence of deprol with knowledge of the defendants when the deed was placed before him for signature ; also, that on account of his mental and physical condition defendant brother occupied the position of a fiduciary with respect to the transaction in question.
Defendants answered the bill of complaint averring they were the owners by the entireties of the farm, and denying fraud and all the other allegations in 'the bill of complaint.
At the trial it developed plaintiff, while in New Orleans, was ill and received treatment from a psychiatrist, who prescribed the drug. It further developed plaintiff had lost some 35 pounds in a short period of time. It was also shown an attorney employed by the defendants drafted the deed.
The trial court filed a written opinion in which he related the pertinent facts with reference to the testimony in regard to plaintiff going to New Orleans,' his health, his reliance upon his brother Oscar for business advice, the handling of plaintiff’s money by Oscar both in Michigan and in New Orleans, and found that plaintiff was known to be ill when his brother took him to New Orleans.
The trial court found that at the time of the execution of the deed by plaintiff to defendant Oscar A. Johnson, plaintiff was not a well and healthy, able-bodied person, and then concluded:
“I feel that based upon all of the testimony, and not based upon, solely upon fraud, and not based solely upon the mental competency or incompetency of the plaintiff, but based upon all of these reasons; namely, the fact that he was in a weakened condition r the fact that he was away from home; the fact that he- was ill; the fact that he was under a doctor’s treatment ; the fact that he did not have independent legal advice from an attorney of his own choosing; the fact that his brother was in a, more or less, fiduciary relationship, requires that the court set aside this conveyance of December 26,1958, and the subsequent conveyance between the defendants; so, that the decree may be drawn setting aside the conveyance^”
A reading of the record in this case and the opinion of the court brings us to a conclusion there was ample evidence to support the conclusions reached by the trial judge. He carefully pointed out that each separate act perhaps did not constitute fraud, but that in his opinion the accumulation of those acts was sufficient to justify his finding.
We hear and consider chancery cases de novo on the record on appeal. Osten-Sacken v. Steiner, 356 Mich 468; Futernick v. Cutler, 356 Mich 33; A & C Engineering Co. v. Atherholt, 355 Mich 677; Straith v. Straith, 355 Mich 267; Ball v. Sweeney, 354 Mich 616. This Court, however, is inclined to give considerable weight to the findings of the trial judge in equity cases. This is primarily because the trial judge is in a better position to test the credibility of the witnesses by observing them in court and hearing them testify than is an appellate court which has no such oportunity. We do not ordinarily disturb the findings of the trial judge in an equity case unless, after an examination of the entire record, we reach the conclusion that had we been in the position of the trial judge we would have arrived at a different decision. A reading of the appendices and briefs in this case does not lead us to such a conclusion.
We, therefore, affirm the decree of the lower court. Plaintiff shall have costs.
Dethmers, C.J., and Carr, Kelly, Smith, Black, Edwards, and Souris, JJ., concurred. | [
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Caer, J.
The parties to this divorce suit were married on October 5, 1946. They lived together in Stambaugh, Iron county, Michigan, until June 13, 1959, on which date they separated. Shortly thereafter plaintiff filed her bill of complaint charging defendant with extreme and repeated cruelty and asking that a decree enter granting her a limited divorce from bed and board.' Counsel for defendant entered an appearance in his behalf but no answer to the bill of complaint was filed.
On the hearing of the cause plaintiff offered proofs in support of the charges made by her in the bill of complaint and also with reference to the property interests of the parties. Defendant was called for cross examination by her counsel and in effect admitted the more serious charges made against him. At the time the proofs were taken on June 9, 1960, plaintiff was 38 years of age and defendant was 35.. So far as the record before ns discloses, each was-in good health. During the marriage plaintiff did not work outside the home, although previously she-had been employed as a dental receptionist. She testified that except as the necessity of caring for the 3 children of the parties interfered she was capable of doing the work that she had performed prior to the marriage. The children at the time of hearing were in the custody of the plaintiff and were, respectively, 6, 9, and 12 years of age.
The trial judge entered a decree granting plaintiff an absolute divorce and giving to her the custody of the 3 children until they respectively reached the age of 18 years, or until the further order of the court. Defendant was given the right of reasonable visitation at all times, subject to the limitation that such right should not interfere with the health, welfare, or education of such children. Defendant was ordered to pay plaintiff by way of alimony the sum of $50 per month and also to pay a like amount for the support of each child until the age of 18 years was attained thereby. In addition to the monthly payments required to be made defendant was ordered to carry adequate medical and hospitalization insurance for the 3 children, to continue to pay the premiums on life insurance policies thereof, and to continue in force the insurance on his own life for the benefit of the minor children.
No complaint is made on behalf of defendant and appellant with reference to the above mentioned provisions of the decree. It is, however, insisted that the property division as made by the trial court was inequitable. The home of the parties in the village of Stambaugh, owned by them as tenants by the entirety, was given to the wife together with the household furnishings and furniture therein. The testimony indicates that the value of the home was approximately $8,500, and that the personal property therein was of a value between $2,000 and $3,000. Plaintiff was also given the joint bank account of the parties in the sum of approximately $650. Defendant, who was engaged in an automobile repair business in which he earned an annual net income between $3,800 and $3,900, was awarded a 1957 Oldsmobile, a 1947 Ford truck and other business property used in connection with the business, a certificate in the Investor’s Syndicate of America, Inc., a boat, and his personal belongings in his possession at the time of the entering of the decree. The exact value at time of trial ofithe certificate referred to is not shown. Apparently it was purchased on an installment basis from the earnings of defendant. The proofs indicate that the sum of $190.50 had been so paid annually for approximately 9 years.
On behalf of appellant it is insisted that since the home had been paid for by the earnings of defendant it should have been awarded to him, perhaps with a right of occupancy by plaintiff and the children until the youngest reached the age of 18 years, thus insuring a home for them during the period of dependency of the youngest child. On behalf of appellee it is claimed that she had approximately $1,000 at the time of the marriage. Whether such amount was used for the expenses of the family, or otherwise, does not appear. It is not in dispute that the property acquired, including the home, was the result of defendant’s labor. As above stated, he is required by the decree to pay $50 per month for the support of each of the 3 children until the age of 18 years is reached, or until the further order of the court, and a like amount by way of alimony for plaintiff. Such payments must come primarily from the results of his labor. In view of such payments he was properly given rights of visitation of the children.
Testifying in her own behalf on the trial plaintiff indicated that she had received an offer for the home of $8,500. She further testified as follows:
“Q. Mrs. Christofferson, are you contemplating moving to California or some locality other than this?
“A. I was thinking about it.
“Q. In fact now you have had an offer to sell the home, I think you said — what was it? — I think you said $8,500.
“A. Yes. * * *
“Q. Let me see if I could aid you any this way, Mrs. Christofferson: If these people you have been negotiating with for the sale of the home would pay you $8,500 for it, and if the home should be awarded to you completely, then your purpose would be that very likely you would move — where is it? — to California or some place in the "West?
“A. Yes, sir. * * *
“Q. All right. Counsel asked you whether or not you immediately intended to move to California if you sold the house. Whether we play on the word ‘immediately’ now or a little later or something else, your plan, if the home is given to you, is to sell it and take the children and settle in California, is it not?
“A. Yes.”
It thus appears from the testimony of plaintiff that, if she becomes sole owner of the home, she does not intend to continue to use it as such for herself and the children. The contemplated removal to the State of California would obviously interfere with the rights of visitation of the children as granted to defendant by the decree of the trial court. Conceivably plaintiff may alter her plans and conclude to remain in Stambaugh. The factual situation is somewhat uncertain and unusual. The question is presented whether, considering all aspects of the case, the property division as made by the trial court was fair and equitable.
On behalf of appellant it is argued that the plan should be followed that was found to be equitable under the facts in Karwowski v. Karwowski, 313 Mich 167. The proposition is well-settled that each case of this nature must be determined in the light of the facts as disclosed by the proofs. No definite rule exists for the division of property interests by decree of divorce. Such division is not required to be equal, but it may not be inequitable. Pusylo v. Pusylo, 279 Mich 623; Cartwright v. Cartwright, 341 Mich 68; Cosher v. Cosher, 356 Mich 567. We are not confronted here with any dispute as to the facts, either with respect to the conduct of the parties to the case or the acquisition of their property interests. There is no problem, in consequence, with respect to the credibility of witnesses appearing before the trial court. The case being heard here de novo on the record before us, it becomes our duty to dispose of the controversy in accordance with the recognized principles applicable to a case of this nature.
Title to the property in dispute, the home of the parties, was taken in the names of both. Such fact indicates the intention at that time that plaintiff and defendant should own it together. The dissolution of the marital relation necessitates a change in the title. Under the facts as above set forth we think that the decree entered should create a tenancy in common, each party having an undivided 1/2 interest. To the end that the rights of the children to a home may be safeguarded, the modified decree to be entered will give to plaintiff the right of occupancy of the property as a home for herself and the children until the youngest reaches the age of 18, subject to the condition that during such period of occupancy plaintiff shall keep the premises in reasonable re pair and shall pay the taxes thereon as they fall due. The decree to be entered will reserve the right in the circuit court to modify it with reference to such right of occupancy if the condition specified is not ■observed. The further authority will be reserved to said court, in the event that plaintiff abandons her occupancy of the property as her home and that •of her children, to make such further order with reference to the sale of the property and the division of the assets between the parties as may be deemed expedient under the situation existing at the time.
The case is remanded to the trial court for entering of a modified decree' in accordance herewith and for the execution of the provisions thereof. No costs are allowed.
Dethmers, C. J., and Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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Kavanagh, J.
Plaintiff sued defendant in assumpsit declaring upon 5 promissory notes, each dated January 17, 1955, and made payable to “Windsor House.” Each was in the amount of $500, payable' on January 28, February 16, February 28, March 28, and April 18, 1955. Plaintiff alleged defendant had refused and neglected to pay the amounts due on the notes though often requested so to do. Each of the notes contained on the reverse side thereof the following:
“For valuable considerations I hereby sell, assign, and set over unto Mas Frischman, all rights, title and interest in the within note.
“/s/ Windsor House
“/s/ Ella Frischman”
Defendant filed an answer denying the execution of the notes, alleging there were actually 10 notes prepared by plaintiff Max Frischman and that defendant was requested to sign them as an accommodation for the plaintiff, although the notes were payable to plaintiff’s wife and were strictly as an accommodation with no consideration of any kind or nature. Defendant denied he was ever requested to pay the notes and asserts the truth is that the first 5 of the 10 notes were paid by plaintiff. Defendant further submitted there was fraud in the inception by reason of plaintiff’s request for said notes with the knowledge and intent that payment would be requested of defendant, even though plaintiff well knew there was no consideration.
No reply to the affirmative matters alleged in the answer was made by plaintiff.
The pretrial statement set forth defendant’s claim as follows: Defendant admits the execution of the notes in question, but denies there was any consideration for the notes. He claims he owes the plaintiff nothing; that the notes were given to plaintiff’s wife as an accommodation and on the representation of plaintiff and his wife that they would discount the notes and obtain funds. Defendant further claims plaintiff and his wife were to pay the notes and there was to be no liability on the part of defendant.
At the conclusion of plaintiff’s opening statement to the jury, defendant made a motion, based on the opening statement and pleadings, for a judgment of no cause of action. Defendant claims the answer set up special defenses, affirmative defenses and affirmative matters and since no reply to the affirmative matters was made in the pleadings they are admitted as facts without any further proofs. The trial court, after argument of the issue, granted a motion for no cause of action in favor of defendant holding that failure to reply to affirmative matters or new matters alleged in the answer was tantamount to admissions of such matters.
After it was apparent to plaintiff’s counsel the court was going to direct the judgment on the pleadings, he sought the opportunity to file a reply and made an oral motion to the court to permit him to answer the affirmative matters. This was denied by the trial court.
Two questions are presented on appeal by plaintff:
(1) Was the trial court in error in directing a' verdict upon the ground that plaintiff should have filed a reply to defendant’s answer?
(2) Should the trial court have permitted amendment at trial, no claim of surprise or prejudice being claimed by defendant?
In granting defendant’s motion, the trial court relied upon the opinion of Justice Carr in Neada v. State Farm Life Insurance Co., 324 Mich 233. Mr. Justice Carr, writing for the Court, called attention to Michigan Court Buie No 23, § 2 (1945), which reads in pertinent part as follows:
“Every material allegation in the declaration or bill to which the defendant shall not make answer shall be taken as admitted by the defendant.”
Justice Carr then referred to Michigan Court Buie No 24, § 1 (1945), which provides as follows:
“New matter alleged in the answer filed in any action shall be answered by a reply in the same manner that allegations in the declaration or bill of complaint are required to be admitted or denied in the answer.”
It was concluded that affirmative matters properly averred in an answer but not denied in a reply should be considered as admitted.
In the instant case, clearly new matters were alleged in the answer contrary to the argument of plaintiff. No reply to the affirmative or new matters having been filed, we think the trial court was correct in granting the motion for a directed verdict for no cause of action. See Zdero v. Briggs Manufacturing Co., 338 Mich 549.
The second question involving amendment by plaintiff at trial was clearly a matter within the discretion of the trial court. Grant v. National Manufacturer & Plating Co., 258 Mich 453. The trial court pointed out to plaintiff’s counsel that not only had he failed to follow the court rules with respect to answering affirmative matters by filing a reply, but that at the time of pretrial hearing, when defendant clearly stated his position, plaintiff sought no opportunity to file a reply. Plaintiff informed the court he was satisfied with the pleadings at the time of pretrial. Pertinent portions of Rule No 32 of •circuit court rules for the third judicial circuit of Michigan read as follows:
“(c) Attorneys who will conduct the trial, unless excused by the pretrial judge, shall appear in court promptly and shall be prepared to consider the following matters and to perform the following acts: * * *
“(5) to amend pleadings where leave to do so is timely requested and to concede that each of the .parties may, without further amendment to their pleadings, introduce competent proofs to support tlieir respective versions of the case as pleaded and as stated by them at the pretrial conference.”
See Simonelli v. Cassidy, 336 Mich 635, 640, where this Court said:
“The purpose of that portion of the rule quoted is to expedite the trial of cases by disposing of all amendments to the pleadings on a pretrial hearing and before the cause is assigned to a judge for final hearing. While the right to amend for good and sufficient reason, in the discretion of the trial court, exists after the pretrial hearing, nevertheless in the orderly administration of justice, such amendments should be permitted only under the most compelling circumstances.”
We cannot say, under the circumstances of this case, that the trial court abused his discretion.
The judgment of the lower court for no cause of action is affirmed. Defendant not having filed a brief on appeal, no costs are allowed.
Dethmers, C. J., and Carr, Kelly, and Black, JJ., concurred with Kavanagh, J.
See Honigman, Court Rules Annotated, 1959 Supp, p 300.—Re-porter. | [
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] |
Per Curiam.
The petition before us, filed April 20, 1959, supported by affidavit of ownership executed by one Samuel Kapson, prayed that the court order delivery to named persons, and “to the Sportsman’s Club in the State of Indiana,” certain moneys and personal property allegedly owned by petitioner and seized in a raid upon said club on September 3, 1951. Information filed against said defendants was quashed upon motion, June 12, 1953, upon grounds of venue and jurisdiction.
Motion by the people to dismiss petition herein filed based upon lack of jurisdiction over the subject matter, lack of proper party in interest, neither affiant nor petitioner being party to criminal action in which petition is filed, running of statute of limitations, adequacy of remedy “on the civil side of the court,” and other grounds. Petitioner relied upon People v. Krol, 304 Mich 623. Circuit court dismissed for lack of jurisdiction.
Affirmed, without opinion as to civil remedy, if any, upon the facts presented.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred.
See CLS 1956, § 767.24 (Stat Ann 1954 Rev § 28.964). | [
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Kelly, J.
Plaintiff Shirley Budman sought damages for ankle injury caused by slipping on a greasy puddle of water in defendants’ store. Her husband, plaintiff Abe Budman, sought damages for loss of his wife’s services and for medical expense and care in connection with his wife’s injury. The cases were-consolidated for trial. At the conclusion of plaintiffs’ proofs, the lower court directed a verdict in favor of defendants, finding that plaintiff Shirley Budman was guilty of contributory negligence as a matter of law. By stipulation the cases were also consolidated on appeal.
Defendants owned a kosher meat market, which plaintiff had visited for a period of approximately 1-1/2 years. On the day of the injury (January 10,, 1956), plaintiff, being unable to find a parking place-in front of the store, went around to the rear,, through an alley, and parked behind defendants’ store. This area was normally used for deliveries.. On the day of the injury it had rained, and as a result the grounds were muddy and slushy.
Plaintiff testified that she had used the rear entrance previous to the day of injury with defendants’’ knowledge and permission; that she entered the-store from the rear through a steel door which opened into a storage room and which, in turn, led to the sales portion of defendants’ store; that upon opening the door she noticed a puddle of water on the floor preventing entrance without going through the puddle; that she was wearing rubber stadium boots over low heeled shoes; that she stepped through, the puddle and noticed it was greasy underneath;that she shopped in the sales portion of the store and returned to her car by the same route that she entered; that she carefully stepped into the puddle-but this time she slipped injuring her ankle.
Defendants contend that Jones v. Michigan Racing Association, 346 Mich 648, sustains the lower court’s-finding. In the Jones Case, plaintiff, realizing that muddy puddles of water and wet discarded race-tickets in the puddles and on the floor created a dangerous condition between him and the race track window, attempted to jump over a puddle. This; Court found that the plaintiff could have walked through the puddle, or have remained on the dry spot where he was standing, and that by jumping over the puddle he was guilty of contributory negligence. The facts in the Jones Case are materially different than the facts before us in this appeal.
In Great Atlantic & Pacific Tea Co. v. McLravy (CCA 6), 71 F2d 396, appellee McLravy was injured when she slipped on an icy vestibule when leaving appellant’s store, in Hastings, Michigan. When entering the store, appellee had observed the icy •condition and had shopped for 15 minutes before leaving. The court, commenting upon her contributory negligence, stated:
“As to contributory negligence: Appellee admits that she knew the icy condition of the vestibule but she had walked over the slippery streets from her home, a distance of 2 blocks, without injury. As she came out of the store she naturally thought that her rubber overshoes would to some extent serve as a safeguard. She testified that she walked carefully and that just before she slipped she put her hand upon one of the posts (evidently meaning one of the pilasters) to protect herself. Numerous other people were coming and going in safety. Her alternatives were to call for assistance or to wait until the vestibule was cleaned or to pass out through a rear door into an alley, which was not shown to be a safer way. We cannot say as a matter of law that she should have taken any other course than the one adopted.”
Defendants contend Great Atlantic & Pacific Tea Co. v. McLravy, supra, is not applicable since in the present case the plaintiff was using the rear entrance not as an invitee hut as a licensee, and, therefore, defendants did not owe the same standard of care.
While this issue — the question of defendants’ negligence — is not stated in plaintiffs’ statement of questions involved, was not seriously presented at the trial, and normally need not be considered by this Court on appeal (Garch v. Kelsey-Hayes Wheel Co., 327 Mich 572; Marrs v. Taylor, 327 Mich 674), it is sufficient to call attention to the fact that the record discloses that a former employee of defendants testified that whenever it rained hard the puddle would accumulate; that this condition was observed for at least 6 months prior to plaintiffs injury, and that when, on such occasions, he put sawdust down it would absorb the water; further, plaintiff testified that defendants knew she was using the rear door and did not object in any way to her use of this-entrance.
We have repeatedly held that on a motion for directed verdict the evidence must be viewed in the light most favorable to the party opposing the’ motion and that to justify the taking of a case from the jury the evidence must be such as to preclude any reasonable view establishing plaintiffs claim for the-right to recovery. See Kuhn v. King, 330 Mich 49, and Normand v. Thomas Theatre Corporation, 349 Mich 50.
The record submitted in this appeal discloses that the decision as to whether plaintiffs were entitled to-recovery should have been by a jury verdict and, consequently, we reverse for a new trial.
Reversed and remanded for new trial. Costs to: appellants.
Dethmers, C. J., and Carr, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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Smith, J.
The cases before us are upon implied warranty. One plaintiff is Theresa Manzoni. It is her claim that she was injured as a result of drinking Coca Cola in which something foreign was present. The other plaintiff, her husband, claims damages for medical expenses and loss of services. The cases were consolidated for trial and appeal.
In the store where the Coca Cola in question was-purchased, some 4 or 5 days before it was consumed,, it was set out on the floor, in cases stacked one on top of another, in fact, all over the place. A case was taken home by Mr. Manzoni and kept in a heated basement.
On the evening in question, after supper, Mrs. Manzoni took a bottle from the ease, brought it upstairs, opened it in the kitchen, gave a little to her ■5-year-old daughter (who experienced no ill effects) and consumed the balance herself, in front of the television. As she drank it, “it didn’t taste right” but she finished it anyway. “After it was gone,” ■she continued, “I set the thing on the table. I didn’t feel so good, so I went into the bathroom, and then I came out, and there was the coke setting on the table; it had that sticky thing stuck to the bottle, all brown and dirty, * * * slimy looking like shreds •of tobacco.” That, she says, is when she took sick (nausea and vomiting). She called her doctor, and the following day the bottle was turned over to a representative of the Detroit board of health for examination. Analysis disclosed the foreign substance : “mold filaments and mold spores.”
At the trial, to a jury, it was shown that the wife had “a nervous stomach” which, apparently, has not been quieted by this experience. The defendant, in turn, introduced evidence of its care in manufacture, and, in addition, that molds require oxygen for growth and that a bottle of Coca Cola contains carbon dioxide rather than oxygen. In addition, evidence was introduced challenging, in effect, that Mrs. Manzoni’s illness, or at least its persistence, was .attributable to the foreign substance at all. It would serve no useful purpose to describe the whole spectrum of the evidence, pro and con. The jury heard it and brought in verdicts of $650 for the wife .and $350 for the husband. The cases are before us ■on a general appeal.
Defendant urges 2 general arguments. The first has to do with the form of action. It runs something like this: Plaintiffs sued upon an implied warranty; there is “no distinction between a count in implied warranty or in tort;” therefore “the burden was upon the plaintiffs to show negligence,” and since they allegedly did not, they must fail.
The fallacy in what is urged is the assertion that there is no distinction between counts in warranty and in tort. Their similarity in the present context lies only in the fact that each is a remedy aimed at the liability of the manufacturer and that each may be grounded upon the presence of a deleterious or harmful substance (e. g., mouse, fly, snake, mold, animal or human organs, or residue) in an article intended for human consumption. At this point, however, similarities end and distinctions take over. The warranty action, of ancient lineage, did not require a showing of negligence (though a showing of negligence, of course, did not defeat it) but it did require privity of contract. The negligence action, on the other hand, did not require privity but it did require that the plaintiff show a lack of due care with respect to the particular article, e.g., the bottle of Coca Cola in the present case. Either of these doctrines, literally applied, gave the manufacturer a virtual immunity. As for privity, the injured consumer and the manufacturer were contractual strangers, unless related by a fiction. As for negligence, the annual output of such bottles often ran into the millions. To show the negligence of the manufacturer with respect to any particular bottle was an impossibility.
Yet there was a problem here that required solution within the framework of modern commercial realities. At an earlier day, the day, in fact, when many of our precedents began to take form, commerce, as Llewellyn puts it, was “only one step removed from barter.” Sales were little more than neighborhood trades. The “manufactured” article was a product of the local arts. It was made under the very eyes of the person who ultimately used it. That day is long over but the precedents linger. We need not trace the industrial development, the rise of the factor, the employment of agents and sellers far removed, the commercial necessity that the consumer’s reliance be placed upon the product’s name, or that of its maker, rather than upon his own inspection.
Today we have no barter, no simple village shop, no personal knowledge of the maker, of the source of his materials or of his methods of manufacture. Rather, rudely intruding upon the ancient precedents “like a belligerent wife crashing in on an assignation with a hussy,” we have the facts of modern trade and commerce, centralized manufacturing operations in strategic areas complemented by regional or nationwide distribution networks, accompanied by advertising and assurances of quality directly aimed at the ultimate consumers.
The result of the operation of these forces has been a marked change in legal theory on a wide front. The food and beverage area is but a small subdivision of a field much more comprehensive, involving the whole topic of products liability. It ranges through areas both of contract and tort, from the liability of the manufacturer of a defective automobile wheel, or cinder blocks to that of the seller of an inflammable dress, or the distributor of unwhole some food or contaminated drink, or even the purveyor of a caustic perfume.
The supreme court of New Jersey has recently given this modern development exhaustive examination, concluding as follows:
“The limitations of privity in contracts for the sale of goods developed their place in the law when marketing conditions were simple, when maker and buyer frequently met face to face on an equal bargaining plane and when many of the products were' relatively uncomplicated and conducive to inspection by a buyer competent to evaluate their equality. See, Freezer, ‘Manufacturer’s Liability for Injuries-Caused by His Products,’ 37 Mich L Rev 1 (1938).. With the advent of mass marketing, the manufacturer became remote from the purchaser, sales were-accomplished through intermediaries, and the demand for the product was created by advertising-media. In such an economy it became obvious that the consumer was the person being cultivated. Manifestly, the connotation of ‘consumer’ was broader than that of ‘buyer.’ He signified such a person who, in the reasonable contemplation of the parties to the-sale, might be expected to use the product. Thus,, where the commodities sold are such that if defect tively manufactured they will be dangerous to life or limb, then society’s interests can only be protected by eliminating the requirement of privity between the maker and his dealers and the reasonably expected ultimate consumer. In that way the burden of' losses consequent upon use of defective articles is borne by those who are in a position to either control the danger or make an equitable distribution of the losses when they do occur.”
Thus the older and narrower doctrines have given way in response to the “ever-growing pressure for protection of the consumer, coupled with a realization that liability would not unduly inhibit the enterprise of manufacturers and that they were well placed both to profit from its lessons and to distribute its burdens.” As a result the requirement of privity has been abandoned outright in many jurisdictions rather than by the use of fictions, thereby opening the door to the widespread use of the warranty theory.
In this State we permit recovery in this type of case “either on a theory of negligence or implied warranty.” We have given the consumer, for reasons hereinabove set forth, this choice of remedies. We are not persuaded that we should now retract, and narrow his choice by holding that there is no difference between the two and thus he must prove negligence in every case. We are not ruling that no negligence was proved. We are holding that in a suit upon a warranty theory it is not necessary to show negligence, but rather breach of the implied warranty that the food is wholesome and fit for human consumption, and that “such warranty is available to all who may suffer damage by reason of their use in the legitimate channels of trade.”
But, whether the theory employed is that of warranty or negligence, it must be shown, in an action against the manufacturer, that the offensive condition was present when the product left the defend ant’s control. This, however, does not impose an impossible burden on the plaintiff. Rather he is aided by the doctrine most clearly enunciated by Mr. Justice Wiest many years ago when, speaking for a unanimous Court on the showing to be made in a food poisoning case, said, “The poisoned flour speaks for itself; unexplained it evidences negligence, for no proof of negligence could be more direct than the flour with arsenate of lead in it.” It speaks with equal clarity when the action is brought on a theory of warranty. Unexplained it evidences such breach, as well as negligence. Here the jury was not satisfied with the explanation tendered, and we are not persuaded there was error of law in their determination.
Finally, defendant complains of many errors in the charge given, particularly that a careful distinction was not observed throughout between cause of action based upon negligence and upon warranty, that the jury was not charged as to contributory negligence, that the jury was not instructed to the effect that defendant would no longer be responsible when it relinquished control of the bottle to the retailer, that the statement of the doctrine of implied warranty was tantamount to directing a verdict for plaintiffs, that no charge was given re proximate cause, and that plaintiffs’ burden was to show that the foreign substance was in the bottle when it left the manufacturer.
Much of this is utterly inconsistent with an action based on a warranty theory. It was plaintiffs’ theory of their cause of action that a manufacturer who prepares “foodstuffs destined to be sold to and consumed by the public is bound by an implied warranty that its product is free from foreign, poisonous or deleterious substances,” Cheli v. Cudahy Brothers Co., 267 Mich 690, 696, and they were entitled to go to the jury on it. As to the balance we are not impressed that the charge taken as a whole failed to advise “the jurors of the law applicable to the case in such a manner as [to enable] them to make an intelligent and just disposition of the controverted issues.” The topic is discussed in Gilson v. Bronkhorst, 353 Mich 148.
Affirmed. Appellees having submitted no briefs will not be awarded costs.
Black, Edwards, Kavanagh, and Souris, JJ., concurred with Smith, J.
See Kenower v. Hotels Statler Co. (CCA 6), 124 F2d 658.
“During the year * * * [defendant’s] plant bottled 14,000,000 bottles of Coca-Cola.” Norfolk Coca-Cola Bottling Works, Inc., v. Krausse, 162 Va 107, 112 (173 SE 497).
Llewellyn. Cases and Materials on Sales, p 204.
Moog Industries, Inc., CCH, Trade Reg Rep (10th ed) Complaints and Orders Transfer Binder 1954-1955, paragraph 25,444 (dissenting opinion).
See Wilson, Products Liability, 43 Cal L Rev 614, 809.
MacPherson v. Buick Motor Co., 217 NY 382 (111 NE 1050, LRA 1916F, 696, Ann Cas 1916C, 440, 13 NCCA 1029).
Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich 120.
Noone v. Fred Perlberg, Inc., 268 App Div 149 (49 NYS2d 460), aff’d mem 294 NY 680 (60 NE2d 839).
Jacob E. Decker & Sons, Inc., v. Capps, 139 Tex 609 (164 SW2d 828, 142 ALR 1479).
Sharp v. Pittsburg Coca Cola Bottling Co., 180 Kan 845 (308 P2d 150).
Carter v. Yardley & Co. Ltd., 319 Mass 92 (64 NE2d 693, 164 ALR 559).
Henningsen v. Bloomfield Motors, Inc., 32 NJ 358, 379 (161 A2d 69, 80, 81).
2 Harper and James, Torts, § 28.1, at 1535. See, also, Professor (now Mr. Justice) William O. Douglas, Vicarious Liability and Administration of Risk, 38 Yale LJ 584, 720.
E.g., The consumer is a third-party beneficiary of the manufacturer-dealer contract, or, the dealer’s cause of action is “assigned”" to the consumer, et eetera.
Spence v. Three Rivers Builders & Masonry Supply, Inc., 353 Mich 120, 135.
LaHue v. Coca Cola Bottling, Inc., 50 Wash2d 645, 647 (314 P2d 421). See, also, 77 ALR2d 7, 215, 241.
Hertzler v. Manshum, 228 Mich 416, 421, See, also, Pattinson v. Coca-Cola Bottling Company of Port Huron, 333 Mich 253.
Eger v. Helmar, 272 Mich 513, 517. | [
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Edwards, J.
(dissenting). This is a saga of modern American initiative — as to which we are asked to indorse a bitter penalty.
An auto-worker named Lyons had a wife, 7 children, a house, and a job all located in a Detroit-area community. He was laid off from the job — but not from the other responsibilities.
While he was laid off and drawing unemployment compensation, Lyons heard about a chance for work at the Chrysler plant at Indianapolis — 273 miles from his home in Trenton. Promptly he drove to Indianapolis, was offered a job, and took it.
What this record shows beyond all dispute is that Lyons was an optimist. Whatever his hopes may have been, 2-1/2 weeks later, the car he had depended on for transportation had broken down; the friend with whom he had planned to commute to Indian apolis had gotten sick and quit; Lyons had received no overtime work or pay; and his 15-year-old son had left home. At this point, Lyons took stock and decided, in his own words, “I just couldn’t make it, that’s all.”
It is suggested to us that this represents the sort of voluntary desertion of employment which the employment security act forbids, and that Lyons, his wife and his 7 children must lose the benefit of all of the unemployment compensation as to which he had built up credits in his former job in Trenton.
No one argues that Lyons had any duty to take the Indianapolis job in the first place. Indeed, the inference is that he was stupid to do so. If he had spent most of his days in a rocking chair and never left the Detroit area to look for work, his unemployment compensation checks would have been safe enough.
Because our hardy optimist took a chance (along with a job) and soon found he “couldn’t make it,” he would be held to be a quitter of the “voluntary” variety. As to him (and his wife and children), his decision in the Indianapolis employment office is to be made one of the sudden death variety.
We hold that this result is not in accord with the facts; is not in accord with the express language of the employment security act; is not in accord with the basic purpose and spirit of the act. Further— although hardly controlling of decision — such a result would make a mockery of our claim that we prize the individual spirit of initiative.
This appeal requires interpretation of one of the disqualification provisions of the employment security act. Ultimately, it turns upon a single word. Yet that word expresses a concept which through the ages has provoked vast dispute amongst the world’s greatest philosophers. It is the word “voluntary.”'
Except in 1 particular, the facts are not at issue.
The claimant, Charles Lyons, worked for Chrysler Corporation at its Trenton, Michigan, engine division plant. He lived with his wife and 7 children at Trenton, where he was buying his home. He was. laid off July 15, 1957, because of lack of work. He applied for and began to receive unemployment compensation.
A month later, having heard of job possibilities there, claimant drove 273 miles to Indianapolis, Indiana, where on August 19th he hired in as a cutter grinder at the Chrysler Indianapolis plant. He claims that on being hired he was promised overtime which he said was important to him because of the-distance of the job away from his home. A company witness admitted telling Lyons the cutter grinding department was working overtime, but denied any promise.
After working 2-1/2 weeks without overtime or any early prospect of it, claimant quit the job in Indianapolis. On his return to Trenton, he reapplied for unemployment compensation. At a hearing before a referee, he gave this testimony:
“A. Well, sir, see, when you have compensation you don’t make too much money, so we heard about the Indianapolis plant going down there and we went down there; and Pete Janis and I, this fellow sitting-over here, and we went down there and talked to the employment man. He said, ‘Yes, we are hiring cutter grinders. You a cutter grinder!’ I said, ‘Yes. I worked in Trenton plant.’ I said, ‘First, I want to know what I’m going to get and everything else!’ So he told us what we would get and he called the general foreman out, the cutter grinder. That’s Mr. Moore, Bill Moore. He promised us 9 hours a day for 6 days a week. I says, ‘I can take the job,’ and. I knew I could keep up to home, you know, because 1 got a large family. I got 7 children and my wife •and myself. So I decided, well, we’ll take that there. Well, they never fulfilled the thing, and Mr. Janis, he got sick. He had to have an operation so it just doubled the thing on me. He was driving his ear until his car went ‘bang!’ and my car — I got a 1950 Packard and it’s gone. It’s no good. I used 6 gallon ■of oil going up there and 6 gallon coming back. It’s ■only 280 some miles. I just couldn’t make it, that’s .all.”
As frosting on the cake of his trouble, Lyons got word from home that his 15-year-old son had left home to look for work.
The referee who heard the case held that claimant “left his work of his own volition, his own choice and election,” that there was no express agreement on the part of the employer to give him overtime work, and that claimant was disqualified for benefits under section 29(1) (a)(1) for the duration of his unemployment.
The appeal hoard affirmed the referee’s decision in toto.
On appeal in the nature of certiorari, the circuit judge reversed the decision of the appeal hoard. The preliminary reasoning in his opinion was :
“The claimant did not have to go to Indianapolis, Indiana, 273 miles away, to seek work. In desperation he tried to earn enough down there to support his family. Because of this energetic action, it is now held that he voluntarily left his work without good cause attributable to the employer under section 29(1) (a)(1), and that therefore any wages earned prior to such leaving shall not he used as a basis for computing or paying benefits for any period subsequent to the time of said disqualifying act. If claimant had just sat, as he had a right to do under the circumstances, he would be all set. Since he went to Indianapolis and found it impossible to con- tin no, he is sunk. Such a result should be avoided if possible.”
The logic of this reasoning would suggest that the circuit judge did not believe that claimant’s leaving* the job was “voluntary.” The reversal, however, the circuit judge pinned squarely to a holding that the disqualification provision of section 29(1) (a) (1) did not apply to workmen outside of Michigan, or to plants outside of Michigan.
This led appellant, Michigan employment security commission, to suggest the following as the sole question to be decided:
“Is section 29(1) (a)(1) of the employment security act, which disqualifies an individual if he leaves his work voluntarily without good cause attributable to his ‘employer’ or ‘employing unit,’ applicable to separations from work performed outside the State of Michigan ?”
Whereupon, appellee-claimant added a second one :
“Where an individual accepts employment under circumstances where a refusal would not disqualify him for unemployment compensation benefits, does his leaving necessarily constitute a voluntary leaving without good cause attributable to his employer or employing unit ?”
We believe appellant Michigan employment security commission’s question must be answered affirmatively. The disqualification does apply to employment outside Michigan.
Nothing in the language of the disqualification section itself supports a contrary view. It says:
“Sec. 29. (1) An individual shall be disqualified for benefits:
(a) For the duration of his unemployment in all cases where the individual has: (1) Left his w*ork voluntarily without good cause attributable to the employer or employing unit.” CLS 1956, § 421.29 (Stat Ann 1960 Rev § 17.531).
Further, the contrary interpretation is in conflict with those provisions of the act which recognize the mobility of labor and provide for reciprocal agreements between States for 1 State to pay accrued benefits to an employee after he has moved to another State and become unemployed there.
Further, such an interpretation is in obvious conflict with the basic scheme of the aet. See section 42, ■subd (2) (CLS 1956, § 421.42, subd [2] [Stat Ann 1960 Rev § 17.545, subd (2)]). Many employees of Michigan firms work temporarily outside the State, or partly within and partly without the State. To hold that the disqualification section is not applicable to them when they are employed across State lines would result in imposition of far more stringent standards of conduct on employees working wholly in Michigan than those whose employment takes them outside the State.
We recognize that the circuit judge relied upon the specific wording of the statutory definition of “employing unit” in section 40.
A careful reading of this section does not result in the conclusion that it must be read as holding the disqualification clause inapplicable to out-of-State employment. It does say that for an employing unit to he covered by the Michigan act, it must have some employees who do work for it “within the State.” This is customary and perhaps necessary language when the Michigan statute also levies a tax upon the employing unit as does this statute. But this definition does not by its language or necessary implication require us to adopt an interpretation of' section 29(1) (a) (1) which is so obviously out of accord with the balance of the act.
As to the second question, however, we find ourselves in thorough agreement with the circuit judge’s preliminary thoughts and his ultimate result. The crucial question is whether or not on these facts; claimant “left his work voluntarily without good cause attributable to the employer or employing unit”' within the meaning of section 29(1) (a)(1) of the Michigan employment security act.
At the outset, we read the facts in this case and the definitions of the word “voluntary” with the basic-purposes of the Michigan employment security act in mind. Section 2 contains this great declaration of policy:
“The legislature acting in the exercise of the police power of the State declares that the public policy of the State is as follows: Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this State. Involuntary unemployment is a subject of general interest and concern which requires action by the legislature to prevent its spread and to lighten its burden which so often falls with crushing force upon the unemployed worker and his family, to the detriment of the welfare of the people of this State. Social security requires protection against this hazard of our economic life. Employers should he encouraged to provide stable employment. The systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment by the setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own, thus maintaining purchasing power and limiting the serious social consequences of relief assistance, is for the public good, and the general welfare of the people of this State.” CL 1948, § 421.2 (Stat Ann 1960 Rev § 17.502). (Emphasis supplied.)
We also note that the other paragraphs of section 29 provide for disqualification for “misconduct” or “intoxication” and for failing “without good cause” to apply for “suitable work,” or accept it when offered.
Thus the general purpose section of the statute, and all of the other disqualification provisions, are consistent in seeking to provide unemployment benefits for persons unemployed through no fault of their own.
Still another provision of the same section 29 defines the social policy of the State in relation to what constitutes “suitable work” (l)(a)(5):
“In determining whether or not any work is suitable for an individual, the commission shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.” (Emphasis supplied.)
With these provisions in mind, it is our opinion that there is plainly no fault involved in a man who-has a wife and 7 children living in Trenton in the Detroit area quitting a job 273 miles away when, aft er trying it for 2-1/2 weeks, he found that his earnings could not support him and his family in separate cities and pay the cost of transportation back and forth each weekend.
This view, however, important as it is to this ease, does not completely resolve our problem under the present version of section 29 (1) (a) (1). The original version of section 29(1) (a)(1) explicitly reiterated the “unemployed through no fault” doctrine by providing disqualification when an employee “left work voluntarily without good cause.” (PA 1936 [Ex Sess], No 1, § 29[a].) But in 1941, PA 1941, No 364, amended section 29(a)(1) so as to make the relevant portion read “voluntarily without good cause attributable to the employer.” By so doing, Michigan joined a minority of States in restricting “good cause” to something related to the employment — but retained the requirement that the leaving of work must have been done “voluntarily.”
In seeking the meaning of this last word, we make no attempt to draw a precise line between those philosophers writing on freedom of will who seem to imply that man is the servile creature of circumstance, and those bolder souls who appear to proclaim that a man of true character can control all destiny to his purpose. But customary usage of language and prior employment by the courts provide some guidance.
Webster supplies the following as its first 2 definitions of “voluntary”:
“1. Proceeding from the will, or from one’s own choice or full consent; produced in or by an act of choice; as, voluntary action.
“2. Unconstrained by interference, unimpelled by another’s influence; spontaneous; acting of oneself or itself; free. ‘Our voluntary service he requires.’ Milton." Webster’s New International Dictionary (2d ed), p 2858.
The courts’ most frequent occasion to deal with the word “voluntary” comes in relation to the admission of confessions in criminal trials. Repeatedly and unanimously, courts have held that confessions induced by compulsion and duress were not admissible because not voluntary. Chambers v. Florida, 309 US 227 (60 S Ct 472, 84 L ed 716); McNabb v. United States, 318 US 332 (63 S Ct 608, 87 L ed 819); People v. Hamilton, 359 Mich 410.
In 2 leading cases concerning unemployment disqualification clauses, w;e find comment on the nature of the word. The Minnesota supreme court said:
“An act of necessity may not be a voluntary act. See Duncan v. Preferred Mut. Acc. Assn., 36 NY St Rep 928 (59 NY Super [27 J & S] 145, 13 NYS 620); Town of Cleveland v. Industrial Comm., 232 Wis 147 (286 NW 558). We cannot escape the conclusion that where, as here, an employee is impelled because of sickness and disease to terminate employment because continuance thereof would endanger his health and personal welfare, such termination is an involuntary rather than a voluntary act on the part of the employee within the meaning of § 4337-27(A). " Fannon v. Federal Cartridge Corporation, 219 Minn 306, 311, 312 (18 NW2d 249, 252, 158 ALR 389).
In Sturdevant Unemployment Compensation Case (Bliley Electric Co. v. Unemployment Compensation Board of Review), 158 Pa Super 548, 556 (45 A2d 898, 903), the court said:
“Willingness, wilfulness, volition, intention reside in ‘voluntarily.’ ”
And in Thomas v. Employment Security Commission, 356 Mich 665, 669, this Court recently, in con struing the word “voluntarily,” held claimant’s “purpose or intent” to be controlling.
See, also, annotations 165 ALR 1382; 13 ALR2d 874.
We take it all would concede that a decision to refuse or to leave work compelled by law, or by the overwhelming force of a hazard of nature, or the equally awesome power of serious illness, would not constitute a “voluntary” quit. Nor do we believe that a quit compelled by the iron hand of physical and economic circumstance is “voluntary” either.
The physical circumstance in this case is the fact that the job was 273 miles from claimant’s home and family. Cases involving distance and transportátion problems in relation to refusing or leaving work are not novel. Many such cases have held refusal or leaving justifiable on the grounds of infinitely less physical distance than is involved here.
In Industrial Commission v. Lazar, 111 Colo 69 (137 P2d 405), the Colorado supreme court held 2 miners who were offered mining jobs 175 miles away from their homes and families were not disqualified for refusal of the jobs.
And we find none where the administrative agencies or courts have construed the disqualification clauses of an employment security statute as imposing the duty of accepting or continuing employment 273 miles from his home and family.
The compelling economic circumstances bear upon the question of overtime as it related to claimant’s ability to maintain his family and himself in separate cities and get back and forth between them. On the only dispute of facts in this case, the referee and appeal board found that claimant was not “guaranteed” overtime. We accept this finding as not being against the great weight of the evidence. Michigan Tool Co. v. Employment Security Commission, 346 Mich 673; Palmer v. Unemployment Compensation Commission, 310 Mich 702 (158 ALR 909); CL 1948, § 421.38 (Stat Ann 1960 Eev § 17.540). Obviously, however, claimant had hoped for more hours of work (and hence more pay) than he got. Obviously, too, he had hoped his friend’s car would continue to serve to transport them 273 miles to Indianapolis, and 273 miles back home each weekend. Disappointed on both these scores, he concluded, “I just couldn’t make it, that’s all” — a conclusion which perhaps a wiser or less daring man might have reached earlier, and a conclusion which nothing in this record disputes.
In construing a similar disqualification clause, the superior court of Delaware took judicial notice that, where a claimant’s earnings had shrunk to $1,000 a year, he was not able to earn a living wage at his job and hence that his leaving it was not a voluntary quit. Brainard v. Unemployment Compensation Commission of Delaware, 45 Del 528 (76 A2d 126).
See, also, Setta v. ESC and Chrysler Corp., Michigan Wayne circuit court, 5 CCH Unemployment Insurance Service, § 8744.
In an English case remarkably like our own, the umpire held that the claimant was not able to find suitable housing for his family in London 185 miles from tlieir home, and was therefore not disqualified. In view of the report’s brevity and relative inaccessibility, we set it out in full:
“CASE No 455/25 (11/3/1925). — Section 8(2) of the principal act. Employment left voluntarily.
“Fitter Left Job Away From His Home — Unable to Continue to Support Two Homes After Nine Months’ Trial — "Wife Expected Early Confinement.
“The applicant, a fitter, who had been employed for 9 months, left his employment on the 19th January, 1925, and his claim for benefit was disallowed under the provisions of section 8(2).
“He stated that he took up the job, which was in London, on the understanding that the employers would find him a house. He removed from Leeds, where he had a house, with his wife and 2 children, to London, but after 2 months, during which time he and his family occupied 1 room, no house had been obtained. His wife and children were then obliged to return to their former home, as he could not afford to keep them with him. He, however, continued his efforts to secure a house, but without avail, and after a period of 9 months he decided to return to his home, as he could not continue to keep 2 homes indefinitely.
“The employers, on the other hand, stated that no definite promise to secure the applicant a house had been made. They had made efforts to assist him in finding a house, but owing to the general housing' shortage they were unsuccessful. The applicant’s work was satisfactory and he could have continued in the employment had he wished.
“Recommended by the court of referees that the claim for benefit should be disallowed. The court held the opinion that the employment was suitable for the applicant as it was in his own occupation and standard wages were paid. They were therefore of the opinion that he was not justified in leaving voluntarily without having obtained any definite promise of work near his home. The court gave the applicant leave to appeal to the umpire.
“He stated, on appeal that he left his employment because he was unable to keep himself in lodgings and at the same time support his wife and family at home. His wife was confined on the 18th February, 1925.
“Decision. — ‘On the facts before me my decision is that the claim for benefit should be allowed.
“ ‘This case may be allowed in accordance with the principle of decision 5387 (O.W.D.) (Appendix to Pamphlet No 19). This is a stronger case, as the applicant’s wife expected to be confined shortly.’ ” 4 Gt Brit, Umpire Benefit Decisions (1925), 76.
For a factory worker with 7 children and a home in the Detroit area to take a job 273 miles distant in Indianapolis is to attempt something almost impossible. With his optimistic hopes of excess earnings dashed, and his means of transportation removed, the “almost” was eliminated.
We hold that the word “voluntary” as used in section 29(1) (a) (1) must connote a decision based upon a choice between alternatives which ordinary men would find reasonable — not mere acquiescence to a result imposed by physical and economic facts utterly beyond the individual’s control.
This record demonstrates a most unusual “purpose or intent” (see Thomas, supra, p 669) on the part of claimant to seek employment. It contains no facts at all which demonstrate any purpose or intent to leave work except as compelled to by physical and economic circumstances which would similarly compel any reasonable man similarly situated.
The decision of the referee and the appeal board was either based upon a misconstruction of the term “voluntarily,” or it was clearly against the great weight of the evidence.
The circuit judge reached the right result for the wrong reason. In such a situation, we do not reverse.
The order should be affirmed. No costs, public questions being involved.
Smith and Souris, JJ., concurred with Edwards, J.
Carr, J.
Plaintiff worked as a cutter grinder in the Trenton Engine Division plant of defendant Chrysler Corporation from January 10, 1957, to and including July 15th following when he was laid off for lack of work. His application for unemployment benefits was granted and he was given a weekly benefit rate of $55, potentially payable for 24 weeks, the determination being based on 36 credit weeks earned. After drawing several benefit payments he sought work as a cutter grinder at the Indiana plant of Chrysler Corporation, at Indianapolis, and was hired there on August 19, 1957.
The record discloses that plaintiff worked 40 hours during his first week at Indianapolis. His time during the second week was reduced by 1/2 day which he took off for the purpose of returning to his home in Trenton. During the third week he quit his employment at the end of the third day, having worked 24 hours during said week. He gave as his reason for quitting his job that he was leaving the city of Indianapolis. Following his return to Trenton where his family resided he sought further unemployment compensation but his application therefor was denied by the defendant commission. He sought a redetermination, and the first finding was sustained. He then appealed to a referee pursuant to the Michigan employment security act. Testimony was taken in Detroit, Michigan, and also in Indianapolis. After consideration thereof the referee concluded that plaintiff was disqualified from receiving benefits under section 29(1) (a)(1) (CLS 1956, § 421.29 [Stat Ann 1960 Rev § 17.531]) for the reason that he had left his work in the Indianapolis plant “voluntarily without good cause attributable to the employer.”
The action of the referee was appealed by plaintiff to the appeal board of the employment security commission, which affirmed. Plaintiff then sought review by certiorari in the circuit court of Wayne county where the matter was heard before the Honorable Halford I. Streeter, circuit judge. Judge Streeter rendered an opinion holding that plaintiff was not disqualified from receiving unemployment compensation on the ground that the statutory provision involved had application only to services within the State of Michigan. Accordingly the order of the appeal board was reversed. The defendant Michigan employment security commission, represented in the proceeding by the attorney general of the State, has appealed to this Court claiming that the decision of the circuit judge was based on an erroneous interpretation of the statute.
In writing for affirmance of the order entered in the circuit court Mr. Justice Edwards concludes that the reason assigned as the basis of the reversal of the appeal board was not well-founded, and that the application of the disqualifying clause of the statute here in question is not limited to services performed within this State. With that conclusion we are in accord for the reasons advanced by the attorney general in his brief and in substance accepted by Justice Edwards. However, Justice Edwards would uphold the action of the circuit court on the ground that plaintiff did not voluntarily quit his employment at the Indianapolis plant of Chrysler Corporation.
We believe that the proofs submitted to the referee and considered by him and by the appeal board do not justify such disposition of the cause. The legislature has prescribed in clear and unambiguous terms certain specified grounds for disqualification for the receipt of unemployment compensation. As stated in Thomas v. Employment Security Commission, 356 Mich 665, 669:
“It is not the proper function of the court to amend the statute to broaden or extend the disqualifications fixed, in plain language, by the legislature. Whether one in claimant’s situation ought to be disqualified is a question of policy for the legislature, not a judicial question to be determined by the court.”
It is equally obvious that the court may not disregard a disqualification declared by the statute and applicable under the established facts.
The facts in the case are somewhat unusual and the determination of the issue before us must necessarily be based on the proofs. It must be borne in mind in this connection that under the statute (CLS 1956, §421.38 [Stat Ann 1960 Rev §17.540]) the circuit court may reverse a decision of the appeal board “upon a question of fact only if it finds that said decision of the appeal board is contrary to the great weight of the evidence.”
The referee to whom the controversy was submitted summarized his conclusions in the following language:
“Carefully considering all of the facts as submitted in this case, the referee finds that at the time of claimant’s hire, he was not guaranteed overtime pay as an inducement or condition for his acceptance of said employment. The fact that the department into which he was being hired was then working on an overtime basis, and the claimant assumed or ‘understood’ that he may also be able to work overtime, is held not determinative of the issue, in the absence of an express promise and agreement on the part of the employer to provide claimant with such an overtime schedule of work.
“If it is considered that the claimant terminated his employment because of his problem at home, as the primary reason, then it must also be concluded that the leaving was not for reasons for which the employer was responsible.
“In either event, it is held that the claimant left said employment without good cause attributable to the employer, and the redetermination issued by the commission must be sustained.”
The appeal board agreed with the findings of fact made by the referee and with the order affirming the action of the Michigan employment security commission. After referring at some length to said findings, it was said in the opinion filed :
“The above quoted statement of the claimant and the entire record establishes that the claimant’s leaving was voluntary and for purely personal reasons. We find, therefore, that the referee properly held that the claimant’s leaving was voluntary and without any good cause attributable to the employer. It is accordingly our finding that the referee’s decision holding that the claimant’s separation was under disqualifying circumstances is in accord with and fully supported by the facts and law and cannot be disturbed.”
As before noted, when plaintiff left his employment at the Chrysler Indianapolis plant he gave as his reason for so doing that he was “leaving the city”. Subsequently, in pressing his claim before the defendant commission, he made the following statement in his own handwriting over his signature:
“I was laid off at Chrysler-Trenton on 7-15-57 due to lack of work. I was hired by Chrysler in Indi anapolis, Indiana, on 8-18-57 as a cutter grinder at the same rate of pay. My wife and 7 children remained in Michigan because it was my understanding that the Indiana job would only be temporary as my seniority would hold at Chrysler-Trenton. I did not want to sell my home and move my family to Indiana for this reason. However, due to family difficulties,. I was needed home and had to quit my job after 3, weeks duration. i
“I understand the above statement.”
On the hearing before the referee plaintiff advanced the further claim that at the time he was given employment at the Chrysler Indianapolis plant he was told by the representative of the company with whom he dealt that he would, in addition to the regular hours of work, have overtime. He stated that during his stay in the plant, approximately 2-1/2 weeks, he was not given overtime, and that for such reason he became dissatisfied with his work. In effect, he asserted a breach of an agreement made at the time he was hired. However, the referee and the appeal board found that no promise was made to him, or agreement arrived at, giving plaintiff assurance as to overtime pay. At the time his application for employment was accepted he was accompanied by a friend who had also been employed at the Trenton plant and was seeking work at Indianapolis. This man, Peter Janis, testified before the referee as follows:
“Q. Were you present when Mr. Lyons was discussing the job with the employment man?
“A. Yes, I was.
■ “Q. Did the employment man make any offer or promise of work at 9 hours a day, 6 days a week?
“A. No.
“Q. Didn’t you tell him you came down there for that reason?
“A. No. We asked for the job as cutter grinders.”
Further testimony of witness Janis indicated that he fully understood the situation from the conversation with defendant Chrysler’s foreman. The latter, in explanation of the policy of the company and of the department in which he was working, testified:
► “When a new employee comes into the department his name is put in the bottom of the equalization of hours list. At the time, I’m not too clear on how many employees we had but he would, and along with Mr. Janis would, go to the bottom of the list. On Saturday, as I said before and on Sunday, we work a certain percent of our people, maybe out of, take for example maybe out of 50 people who is on my payroll I might work 20 of those people on Saturday and the same people on Sunday so it would probably take 2 to 3 or maybe 4 weeks for Mr. Janis’ and Mr. Lyons’ name to get to the top of the overtime list, which at that time they would be eligible for overtime. Since Mr. Lyons was only there 2-1/2 weeks approximately I can see why he hadn’t gotten any overtime. We were probably working, I’m not too sure, 9 hours at the time that I hired Mr. Lyons, but the picture on our overtime can change from day to day so no way shape or form was any guarantee made. I probably did say at the time, ‘We’re working lots of overtime.’ ”
It further appears in the proofs that plaintiff was employed at the Indianapolis plant at an hourly rate of $2.72, slightly higher than the pay that he had been receiving previously at Trenton. In addition there was a living allowance of 16^ per hour prior to September 1, 1957, and 19^ per hour thereafter. Because of his leaving his work midway in the third week he did not receive overtime. His loss of 1/2 day during the second week resulted from his taking the time off in order to return to Trenton with Mr Janis. It is a fair inference that had plaintiff remained at Indianapolis he would have received, in due time, in accordance with the policy of the divi sion in which, he was working, desired overtime, hnt according to his testimony he was not satisfied to await his turn.
It is of further significance that other former employees at the Trenton plant had obtained work in the Indianapolis plant, which fact the record indicates was one reason why plaintiff and Mr. Janis likewise sought employment there. It clearly appears from the proofs that both men discussed the situation at Indianapolis with their fellow employees, and presumably sought employment in reliance, to some extent at least, on the information so received. It is clear from the testimony of Mr. Janis that there was no misunderstanding on his part as to his exact status and that of plaintiff.
Some emphasis has been placed by counsel for plaintiff on their claim that plaintiff had he been tendered employment at Indianapolis would not have been required to accept it. Such is not the situation presented by the record in this case. Plaintiff sought the employment and received it in accordance with his application therefor. He worked for a limited time and then, as clearly appears from the proofs, left Indianapolis and returned to Trenton for purely personal reasons. The finding of the referee and of the appeal board in this particular is fully supported by the proofs. Obviously plaintiff concluded that he would rather draw unemployment compensation than to continue working in Indianapolis.
Of significance also is the fact that Mr. Janis was compelled to leave work at the end of the second week because of illness and the necessity of undergoing a serious operation. Apparently he and plaintiff had planned on returning to Trenton each weekend if overtime work did not interfere. On such trips they were apparently operating on a “share the ride” plan. The following excerpt from the testi mony of plaintiff is significant as bearing’ on his reasons for leaving Indianapolis:
“Q. Now, if Mr. Janis had not become ill and had he continued to work there so that you would have a riding partner, would you have continued to work?
“A. I don’t understand that. Explain it.
i “Q. You advised earlier that Mr. Janis’ leaving had bearing on your decision to leave the employ, because you had a car and it wasn’t very new, and it was expensive to drive to and from that area. Now, my question is: If Mr. Janis had not become ill and discontinued working because of his illness when he did, would you have continued to work there?
“A. Yes, sir, I would have continued working there.
“Q. You would have continued to work there?
“A. Yes, sir.
“Q. So one of the chief reasons for leaving is Mr. Janis was not going to be able to ride with you or share the ride or whatever the program was between you:
“The Referee: Is that correct?
“The Witness: Yes, sir.”
The practical situation presented is that the employer did not in any respect breach its agreement with plaintiff at the time the latter’s application for employment was accepted. Plaintiff did not quit because of the condition of his health or because of any dissatisfaction with the work that he was doing, aside from the lack of overtime during the initial weeks of his employment, and he was not entitled to insist that he be given a preference as to overtime to the prejudice of other employees entitled thereto under the company policy. His testimony that he would have continued to work had Mr. Janis been able to remain in Indianapolis clearly suggests that he did not quit his employment for good cause attributable to his employer.
Plaintiff’s claim to the defendant commission that there were difficulties in his home at Trenton that, impliedly, required his presence there apparently referred to the attitude of his 15-year-old son who desired to go to work. No detailed explanation of the situation was made and we are left to conjecture and speculation with reference to the exact situation. There was no showing before the referee that the boy had left home, or that some gainful employment on his part would not have been proper. Plaintiff’s statement that he would have continued to work had Mr. Janis remained with him indicates that he did not consider the home situation as imperatively demanding his presence there or that the mother was incapable of properly controlling the children. Neither does it appear that the home difficulties, whatever may have been their precise nature and extent, did not exist prior to plaintiff’s making application for employment at Indianapolis, or were in any way aggravated by his absence from the home during the days of his employment.
Doubtless the illness of Mr. Janis and the consequent interruption of their trips home over weekends, if not given overtime on Saturday and Sunday, complicated to some extent the matter of transportation for plaintiff. He claimed that his automobile was old and not operating efficiently. There is no proof, however, that the difficulties, whatever they may have been, could not have been remedied, nor does it appear that plaintiff sought to make other arrangements for transportation. We may not assume that, even without the help of Mr. Janis, plaintiff could not have made reasonable visits to his family in Trenton.
The order of the appeal board was not “contrary to the great weight of the evidence.” From our examination of the testimony of the witnesses in the case ■as set forth in full in the transcript returned to this Court as a part of the original record we are led to the conclusion that the evidence considered by the referee and the appeal board fully supported the findings of fact and the conclusions reached. Plaintiff voluntarily left his employment without good cause attributable to his employer. He did' so because he did not wish to stay in Indianapolis during days of each week on which he was employed, without his friend and cp-worker Mr. Janis. Doubtless he considered that he would be better satisfied to return to his home and seek the restoration of unemployment compensation benefits. Such was obviously the course that he chose to follow. As before pointed out, the action was not impelled by the condition of his health or any other circumstances that rendered it impossible or impracticable for him to continue his employment in the Indianapolis plant. Presumably he considered that he was justified for the reasons urged by him in leaving his employment. Such reasons, however, were wholly personal and the fact is obvious that his action was voluntarily taken without good cause attributable to the employer. Such being the situation, the disqualifying provision of the statute clearly applied, and required the order entered by the appeal board of the employment security commission.
The situation is not at all analogous to that presented in Fannon v. Federal Cartridge Corporation, 219 Minn 306 (18 NW2d 249,158 ALR 389), to which counsel for plaintiff have referred. There the plaintiff terminated her employment with the defendant because of illness resulting from conditions arising from the employment. She was, it appears, allergic to gun powder, in consequence of which it became necessary for her health that she discontinue employment in defendant’s ammunition factory. It was held in view of the factual situation presented that she was not disqualified under the Minnesota statute from receiving unemployment compensation. Decisions from other States indicating the interpretation of the particular statutory provisions involved will be found in annotations, 158 ALR 396, and 165 ALR 1382.
Under the facts here presented a proper interpretation of the Michigan statute requires a holding that plaintiff was disqualified from receiving unemployment benefits. The purpose of the act is set forth clearly and specifically in section 2 thereof (CL 1948, §421.2 [Stat Ann 1960 Rev § 17.502]). It appears that it was the legislative policy to guard against involuntary unemployment and to establish unemployment reserves for the benefit of persons who are out of work through no fault of their own. The provisions of the act must be construed in accordance with the general purpose sought to be served thereby. Squarely in point is the terse statement of the supreme court of Ohio in Chambers v. Owens-Ames-Kimball Company, 146 Ohio St 559, 570 (67 NE2d 439,165 ALR 1373), that:
“Unemployment compensation is based upon the philosophy that employment and not unemployment is the goal to be attained; that payments are always limited to persons who are involuntarily unemployed ; and that labor, as well as industry, must cooperate in all reasonable measure in the proper administration of the law.”
An order will enter reversing and setting aside the order entered in circuit court, and affirming the action of the appeal board of the Michigan employment security commission. A question of statutory interpretation being involved, no costs are allowed.
Dethmers, C. J., and Kelly, J., concurred with Carr, J.
PA 1936 (Ex Sess), No 1, as amended (CL 1948 and CLS 1956, § 421.1 et seg. [Stat Ann and Stat Ann 1957 Cum Supp § 17.501
See CLS 1956, § 421.11, subd (g) (Stat Ann 1960 Rev § 17.511, subd [g]). — Reporter.
“ ‘Employing unit’ means any individual or type of organization, including any partnership, association, trust, estate, joint-stoek company, insurance company or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person, which has or subsequent to this amendatory aet, had in its employ 1 or more individuals performing services for it within this State. All individuals performing services within this State for any employing unit which maintains 2 or more separate establishments within this State shall be deemed to be employed by a single employing unit for all the purposes of this aet. Each individual employed to perform or to assist in performing the work of any agent or employee of an employing unit shall be deemed to be employed by such employing unit for all the purposes of this act, whether such individual was hired or paid directly by such employing unit or by sueh agent or employee, provided the employing unit had actual or constructive knowledge of the work.” CLS 1956, §421.40 (Stat Ann 1960 Rev § 17.542).
Kempfer, Disqualifications for Voluntary Leaving and Misconduct, 55 Tale LJ 147.
Paradise Lost, Book 5, line 529.—Reporter.
Mason’s Minn St 1944 Supp.—Reporter.
V 6 No 5, Benefit Series, Unemployment Compensation Interpretation Service (U S Soeial Security Board), No 7983-RI A (induction into army) ; V 6 No 5, Ben Ser, No 797Í — Hawaii A (evacuation by military authorities) ; V 6 No 5, Ben Ser, No 7939-NJ A (statute abolishing home work).
V 2 No 12, Ben Ser, No 2323-Mieh A (lumberjack forced by blizzard to quit cutting timber).
Fannon v. Federal Cartridge Corporation, supra (allergy to gunpowder); Miller Unemployment Compensation Case (Bliley Manfg. Corp. v. Unemployment Compensation Board of Review), 158 Pa Super 570 (45 A2d 908) (nervous exhaustion related to nature of work).
Claim of Canale, 277 App Div 960 (99 NYS2d 634) (18 miles and $2.35 per week added transportation cost); V 6 No 6, Ben Ser, No 8028-Mass A (transportation time 3 hours) ; V 7 No 1, Ben Ser, No 8356-NC A (12 miles and no ride) ; V 5 No 3 Ben Ser, No 7139-Pa A, air'd Pa Bd of Rev, B-44-2RB-313 (unpublished) (50 miles and no transportation).
As indicated below, both the English statutory provisions and case interpretations are generally liberal as compared to American counterparts:
“611. Where it appears that a claimant has left his employment voluntarily he is subject to the like disqualification as in the ease of misconduct unless he proves that he had just cause for leaving. The main grounds upon which it has been held that just cause was shown are breach of contract of service by the employer or the imposition of new conditions of service unfavourable to the claimant, and the claimant’s personal circumstances. He is required, as a general rule, to exhaust all reasonable means of getting his grievance remedied before leaving his employment, and if the conditions of his-employment are governed by agreement between the employer and the association of which he is a member he should report the matter to his association so that his grievance may be investigated and remedied by negotiation.
“If employment or the conditions of employment are in themselves suitable a claimant has not just cause for leaving merely because he is required or requested to do so by his trade union or, in the ease of a young person, by his parents. A person who voluntarily accepted employment with knowledge of the wages and conditions is not justified in leaving it without notice or reasonable trial merely because he could, without incurring disqualification, have refused it as unsuitable at the time when he in faet accepted it.
“612. Where mitigating circumstances are shown, either in the ease of employment lost through misconduct or voluntarily leaving without just cause, the period of disqualification may, in the discretion of the court of referees or the umpire, be reduced to any period less than 6 weeks. Where the period of employment lost in either case is definitely ascertained, the disqualification may be limited to the like period. The punishment inflicted after conviction in criminal proceedings relating to the subject-matter of misconduct may not be taken into account in determining the period of disqualification.
“(iv.) Failure to accept or apply for suitable employment.
“613. If, on a claim for benefit, it is proved by an officer of the ministry of labour:—
“(I) that the claimant, after a situation in any employment which is suitable in Ms case has been notified to Mm by an employment exchange or other recognised agency or by or on behalf of an employer as vacant or about to become vacant, has without good cause refused or failed to apply for that situation or refused to accept it when offered to him; or
“(2) that the claimant has neglected to avail himself of a reasonable opportunity of suitable employment; or
“(3) that the claimant has without good cause refused or failed to carry out any written directions given to him by an officer of an employment exchange with a view to assisting him to find suitable employment, being directions which were reasonable having regard both to the claimant’s circumstances and to the means of obtaining that employment usually adopted in the district in which the claimant resides, the claimant is disqualified for receiving benefit for a period of 6 weeks or such shorter period, and beginning as from such date, as may be determined by the court of referees or the umpire.” 34 Halsbury’s Laws of England (2d ed), pp 526-529.
PA 1936 (Ex Sess), No 1, as amended (CL 1948 and CLS 1956, § 421.1 et seq. [Stat Ann and Stat Ann 1957 Cum Supp § 17.501 et se<p] ). | [
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Edwards, J.
Appellant appeals from the dismissal on motion of its suit in assumpsit for recovery of certain taxes paid by it in relation to a period extending from the third quarter of 1953 through the second quarter of 1955.
This is still another attack upon the constitutionality of the business activities tax (PA 1953, No 150) which we have recently affirmed. (See Armco Steel Corp. v. Department of Revenue, 359 Mich 430, and Eaton Manfg. Co. v. Department of Revenue, 359 Mich 459.) In this instance, however, plaintiff relies upon procedural omissions in legislative adoption of the final version of the tax bill which it asserts violated sections 22 and 23 of article 5 of the Michigan Constitution of 1908.
The applicable portion of section 22 provides:
“No bill shall be passed or become a law at any regular session of the legislature until it has been printed and in the possession of each house for at least 5 days.”
The applicable portion of section 23 provides:
“Every bill shall be read 3 times in each house before the final passage thereof.”
It is conceded that the original version of House Bill No 353, which became PA 1953, No 150, was before both houses for more than 5 days and was read at least twice by title and once in full before each house. This has been held repeatedly by this Court to be substantial compliance with sections 22 and 23, and no question is presented by this appeal in this respect. People, ex rel. Hart, v. McElroy, 72 Mich 446 (2 LRA 609); McClellan v. Judge of Recorder’s Court of Detroit, 229 Mich 203.
House Bill No 353 (exhibit D) was originally introduced by Representative Christman.* 2 Subsequent to its introduction, substitute versions were presented (exhibits A and B). The second of these exhibits, introduced by Senator Higgins, was the final version of House Bill No 353 which ultimately became the business activities tax, PA 1953, No 150.
Exhibit B was first introduced in the senate on May 12th, printed in the senate journal on May 18th, and passed the senate on May 19,1953. The exhibit B (Higgins) version of House Bill No 353 went to the house on the same day where it was adopted the following day, May 20, 1953.3
There is no record that the substitute version was ever read in the house and, of course, it was not before that house for 5 days.
Appellees’ answer is that the substitute served the same purpose as that proposed by the original bill, was germane to it, and hence should not be regarded as a new bill.
This was essentially the issue presented to the Wayne county circuit court by appellant’s motion for summary judgment. The circuit judge had before him a factual record of the legislative proceedings presented under local court rule 14, subd (b), of the 3d judicial circuit:
“When public records are to he used as evidence, the party intending to use them may prepare a copy, synopsis or abstract of them, insofar as they are to be used, and may present such copy, synopsis or abstract to the adverse party at the hearing on the pretrial admission and discovery conference docket, and such copy, synopsis or abstract shall thereupon be admissible in evidence as admitted facts in the ease, if otherwise admissible, except insofar as its inaccuracy shall be pointed out, under oath, by the adverse party, in an affidavit filed and served before the ease is passed from the pretrial admission and discovery conference docket.”
From the factual record thus presented, appellant makes the following comparison of the original bill and the substitute which was ultimately adopted:
“The caption of the Christman bill, in part, described it as prescribing certain specific taxes ‘on income.’ The Christman bill consisted of 14 sections and would have provided for a general unclassified tax of 1% on personal income and business income of every person who paid a Federal income tax. The tax base would have been the same as ‘taxable net income’ for Federal income tax purposes. Among its other salient features, the Christman bill would have expressly provided for:
“(a) a supplementary $600 ($1,200 if married) exemption for individual taxpayers only;
“(b) a 3-factor apportionment formula (applicable to corporations only) based on property, payrolls, and sales, for allocating multi-State income to Michigan ;
“(c) authority for the State commissioner of revenue to permit deviations from the 3-factor apportionment formula in ‘special cases’;
“(d) authority for the State commissioner of revenue to adjust for collusive misallocations, less than arm’s length transactions, and transactions between affiliated corporations;
“(e) combined returns;
“(f) procedures for compelling testimony and the production of books and records before the State commissioner of revenue;
“(g) immunity from prosecution for witnesses; “(h) publication of the department of revenue’s rulings and orders; and
“(i) maximum criminal penalties of $1,000 fine and/or 1 year’s imprisonment for violation of the act. * * *
“The Higgins substitute consisted of 23 sections and provided for a classified tax on the ‘adjusted receipts’ of businesses only at the rate of 4 mills, with a'special rate of 1 mill for public utilities. The tax base was to be adjusted receipts determined by allowing certain deductions from business gross receipts, but not permitting any deductions for depreciation or for wages and salaries paid. Among its other salient features the Higgins substitute expressly provided for:
“(a) exemption of the first $10,000 of adjusted receipts;
“(b) a standard 50% minimum deduction from gross receipts;
“(c) a single factor apportionment formula based -on receipts only, with special provisions for service businesses, transportation businesses, and financial businesses;
“(d) civil remedies to enforce collection, including injunctive relief.”
These are, of course, substantial differences both in content and impact as between the 2 versions. But the question for our decision really is whether •or not the new version was so completely different as to constitute a new bill within the meaning of the word as it is used in Const (1908), art 5, §§ 22 and 23.
The circuit judge (we think correctly) viewed the legal situation thus:
“The legislature has the right to amend any bill by enlarging or diminishing, being bound only to the territory included in the bill. Attorney General v. Rice, 64 Mich 385; Pack v. Barton, 47 Mich 520; Attorney General v. Amos, 60 Mich 372, 380. In this latter ease it was held that it was immaterial whether the method pursued by the legislature was by amendment or by substitute for the original bill so long as the substitute was for the same purpose as the original bill and not for another and different purpose; in other words, is the substitute bill in harmony with the objects and purposes of the original bill and germane thereto ? See, also, People, ex rel. Hart, v. McElroy, 72 Mich 446 (2 LRA 609); Moeller v. Wayne County Board of Supervisors, 279 Mich 505, 517; Allied Mutual Ins. Co. v. Bell, 353 Mo 891 (185 SW2d 4, 158 ALR 415); and annotation 158 ALR 421.”
The circuit judge held exhibit B to be germane.
Appellant contends that the substitute was substantially different from the original, and that the procedure employed by the legislature defeated the public-knowledge purpose of article 5, §§22 and 23 (Const 1908). The public-knowledge purpose is not spelled out in the constitutional requirement — and may have been fulfilled (for all this record shows) beyond the greatest expectations of 1908. Differences there certainly were, as we have indicated, but the question remains as to whether or not there was sufficient similarity of purpose as to be described as germane.
The question of when an amendment or substitute is germane to the original bill is a difficult one. See 158 ALR 421, annotation. The test is whether or not the change (by either method) represented an amendment or extension of the basic purpose of the-original, or the introduction of entirely new and different subject matter. 1 Sutherland, Statutory Construction (3d ed), § 805.
If the actual situation revealed the latter purpose, this Court has not hesitated to hold void legislation enacted to evade the procedural requirements which the Constitution places on legislation. Sackrider v. Board of Supervisors of Saginaw County, 79 Mich 59; Attorney General v. Detroit & Saline Plank Road Co., 97 Mich 589.
Where, however, the changes fall within the general purpose of the original bill, or are extensions of it, the Court has termed them germane.
In an early case involving the then-constitutional prohibition against introduction of any new bill after the first 50 days of the legislative session, Mr. Justice Cooley wrote the opinion of the Court:
“The facts in the case are that within the 50 days a bill was introduced for the organization of the township of Montmorency, and that after the 50 days had expired this hill was so changed as to make it a hill for the organization of the county of Montmorency. The territory embraced in each bill was the same. The relator contends that the second was to all intents and purposes a new bill; the defendants insist that it was only the first bill amended.
“It may be said of the 2 that they had in view the same general purpose, to give to the inhabitants of the territory described a distinct municipal government. The first contemplated a government of one grade; the second, one of another; but there was no departure in the second from the general intent of the first. Neither does any necessary inference arise that in the change made there was a purpose to evade the constitutional command. The question being one of organizing the inhabitants of a particular territory for the purposes of local government, the legislature, on consideration of the scheme proposed, concluded to modify it to the extent of conferring county powers where only township powers had been proposed.
“To attempt on this record to indicate the limits of constitutional power in the amendment of bills previously introduced would be uncalled for and therefore unwarranted. It suffices to say that in this ease, where the general purpose has been kept in view, and a design to circumvent or disregard the Constitution is not apparent, it cannot be held that the constitutional authority has been exceeded. No one disputes that whatever is within the proper scope of amendment is as much admissible after the 50 days as before, and this must embrace whatever is germane to the purpose which the bill had in view. And if in any case we doubt whether the Constitution has been disregarded, we must defer to the legislative judgment. Sears v. Cottrell, 5 Mich 251; People v. Mahaney, 13 Mich 48.” Pack v. Barton, 47 Mich 520.
In a more recent case dealing with 1 of the identical constitutional requirements relied on herein, the Court, after a review of case precedent, held:
“It would appear from the foregoing cases that that part of Const 1908, art 5, § 23, is not violated if the amendments are germane to the purpose of the original bill, even though not read 3 times, provided the original bill complies with section of the Constitution above quoted.” Moeller v. Wayne County Board of Supervisors, 279 Mich 505, 517.
Turning directly to the issue of germaneness, we find that the Higgins substitute for the original version, House Bill No 353, was, like the original, (1) a bill to raise revenue; (2) a tax on income; (3) a bill to set up machinery for collecting and enforcing-same. These major purposes were all within the-original objectives of the bill as first introduced and as described in the title of the original version of' the bill.
Further, though certainly not controlling of decision, we have in this instance the recorded legislative-view through the adoption of the substitute that it was germane and within the purposes of the original bill.
There is, of course, a strong presumption that constitutional requirements have been met in enacted legislation. 1 Sutherland, Statutory Construction (3d ed), § 905. And attacks upon tax statutes (particularly as here — belated ones) are not favored. Thoman v. City of Lansing, 315 Mich 566.
On the factual situation shown by this record, we hold that the Higgins substitute, exhibit B, was germane to House Bill No 353 as originally introduced, and hence that no constitutional violation was established.
Affirmed. No costs, a public question being involved.
Dethmers, C. J., and Carr, Kelly, Smith, and .Souris, JJ., concurred with Edwards, J.
See, currently, CLS 1956, § 205.551 et seq., as amended (Stat Ann 1960 Rev § 7.557[1] et seq.).
1 House Journal 1953, p 449.
2 Senate Journal 1953, pp 1130, 1274-1292, 1304-1307.
2 House Journal 1953, pp 1612-1615.
Honigman, Michigan Court Buies Annotated, 1959 Supp, p 291.
House Bill No 353, entitled: “A bill to provide for the raising-of additional public revenue by proscribing certain specific taxes on income; to provide for the ascertainment, assessment and collection thereof; to prescribe certain exemptions; to prescribe the powers and duties of the State department of revenue with respect thereto; to provide for the disposition of revenues received therefrom; and to-prescribe ioenalti.es f0r violations of the provisions of this act.” 1 House Journal 1953, p 449. | [
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] |
PER CURIAM.
Defendant, Department of Human Services (the Department or the DHS), appeals by leave granted the trial court’s order denying its motion for summary disposition and certifying a class of plaintiffs who are males of African-American, Hispanic, Arab, and Asian racial and ethnic backgrounds who work for the Department (the minority males). Because the minority males have not established the requirements of class certification, we reverse.
I. FACTS
A. FACTUAL BACKGROUND
This Court summarized the background facts of this case in our previous opinion:
In this disparate treatment, employment discrimination suit, plaintiffs allege discrimination based on race, ethnicity, and gender in promotions to supervisory and management positions. The proposed class is comprised of all “minority” male employees of the DHS, including 616 African-American, Hispanic, Arab, and Asian males in various departments and offices throughout the state.[ ] Plaintiffs maintain that, since 2003, fewer minority males have been promoted within the DHS to the positions of program manager, district manager, county director, and first line supervisor because of “department wide cultural deficiencies regarding minority males.” According to plaintiffs, these deficiencies include: ineffective communication with minority males; a failure to neutrally and consistently apply promotional policies, criteria, and procedures; a real or perceived preference for the promotion of nonminority male or female candidates; a failure to recruit or appoint minority males to the DHS leadership academy [an employee training program] and supervisory positions; and a failure to hold accountable and train managers about promoting and working with minority males. Plaintiffs assert that some of the plaintiffs applied for and were denied promotions or training opportunities for which they were qualified and some of the plaintiffs were “too discouraged to apply” for promotions “due to [their] frustration with some of [the Department’s] supervisory and management employees’ discriminatory attitudes and practices involving racial and gender bias directed against minority males ....”
On the basis of the above grounds, plaintiffs allege that the DHS violated the equal protection and antidiscrimination clause of Const 1963, art 1, § 2, and the Civil Rights Act, MCL 37.2101 et seq. Plaintiffs asked the trial court to enter a permanent injunction to stop discrimination against minority male employees, to order the DHS to promote minority male employees to positions that were denied them, and to provide monetary compensation for promotional opportunities withheld from class members.
In support of their claims, plaintiffs largely rely on an internal memo authored by DHS Chief Deputy Director Laura Champagne, dated January 5, 2006. The memo provides, in part:
The Office of Equal Opportunity and Diversity Programs (EODP) is currently undertaking a series of ease studies. These case studies will look at identifying barriers that specific groups of employees may have in either applying for or being successful in being promoted into District Manager, County Director, Section Manager, and first line FIM or Services supervisor positions. The first part of the study will focus on the impact on minority males in the department for the above named positions.
On the basis of data collected from the DHS leadership academy, hiring data, and information gathered through a focus group, the memo cites its “major finding” as follows: “A disparity exists in minority males being promoted into upper management positions, more specifically program manager, district manager, county director and first line supervisory positions throughout the Department.” The recommendations to correct the problem include: providing applicants with more information about screening criteria and job requirements; facilitating access to position postings; expanding interview training; requiring department-wide consistency in application submission requirements, screening criteria, and hiring policies; preventing “working out of class” candidates from competing for positions; requiring diversity on interviewing panels; and implementing targeted recruiting for the leadership academy.[ ]
B. PROCEDURAL HISTORY
The minority males filed their complaint on May 24, 2006, and moved to certify their class on January 8, 2007. The Department responded that the minority males had failed to satisfy requirements for class certi fication under MCR 3.501(A)(1). The trial court granted the minority males’ motion for class certification.
Applying a “rigorous analysis” standard, a panel of this Court reversed the trial court’s certification decision on the basis that the minority males had not established the numerosity, commonality, typicality, adequacy, or superiority requirements of MCL 3.501(A)(1). The minority males applied for leave to appeal this Court’s decision in the Michigan Supreme Court. After this Court’s decision, the Michigan Supreme Court in Henry v Dow Chem Co specifically rejected the rigorous-analysis standard. In lieu of granting leave to appeal, the Michigan Supreme Court vacated this Court’s decision and remanded this case to the trial court for reconsideration in light of its decision in Henry.
After remand, the Department moved for summary disposition. The minority males moved for class certification. The trial court denied the Department’s motion for summary disposition and certified the minority males’ class in a detailed opinion.
In support of its decision to certify, the trial court found that the minority males established numerosity because, while not all class members had applied for promotions, all class members had “an interest in making sure that they are not discriminated against if they do.” The trial court found that the minority males had established commonality because the Department’s culture of discrimination was the predominant question of fact and law. It found that the minority males established typicality because, while some members may have applied for the same promotions, all class members “allegedly share the same fear of being discriminated against.” The trial court also found that, while the named plaintiffs had different levels of training and education, they were all denied potential advancement when the Department denied their Leadership Academy selection. The trial court determined that the minority males had established adequacy on the basis that any potential conflict between the named plaintiffs and other class members were mitigated by their common interest in ending discrimination. The trial court found that the minority males established superiority because “the consolidations of numerous similar claims and the resulting consistent adjudications” was superior to individual determinations.
II. CLASS CERTIFICATION
A. STANDARD OF REVIEW
We review de novo the proper interpretation and application of a court rule. We review for clear error the trial court’s factual findings regarding class certification, and review for an abuse of discretion the trial court’s discretionary decisions. A finding is clearly erroneous if, after reviewing the entire record, we are definitely and firmly convinced that the trial court made a mistake.
B. LEGAL STANDARDS
Members of a class may only sue or be sued as representatives of all class members if they meet the requirements of MCR 3.501(A)(1). MCR 3.501(A)(1) allows a suit to proceed as a class action if all the following circumstances exist:
(a) the class is so numerous that joinder of all members is impracticable;
(b) there are questions of law or fact common to the members of the class that predominate over questions affecting only individual members;
(c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(d) the representative parties will fairly and adequately assert and protect the interests of the class; and
(e) the maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice.[ ]
“These prerequisites are often referred to as numerosity, commonality, typicality, adequacy, and superiority.”
Michigan requires the party seeking class certification to establish each prerequisite for class certification. The party’s pleadings will only be sufficient to support certification if the facts are “uncontested or admitted by the opposing party.” The court should not question the actual merits of the case. However, the proponent of certification must make “an adequate statement of basic facts to indicate that each prerequisite is fulfilled.”
C. APPLYING THE STANDARDS
1. NUMEROSITY
The Department contends that the trial court erred by finding that the plaintiffs had met the requirements of numerosity. We agree.
A plaintiff need not show a particular number of members to establish numerosity. But the plaintiff “must adequately define the class so potential members can be identified and must present some evidence of the number of class members or otherwise establish by reasonable estimate the number of class members.” The proponent must establish that a sizeable number of class members have suffered an actual injury.
In this case, the trial court found that the minority males established numerosity because their class included 586 individuals. The trial court recognized that “class members may or may not have applied for promotions,” but determined that “all members of the class have an interest in making sure that they are not discriminated against if they do.”
The minority males’ proposed class consists of all minority males employed by the Department, except those who have opted out. However, the minority males presented no evidence — and the trial court did not find — that a sizeable number of these class members suffered an actual injury. Indeed, the trial court recognized that not all class members even applied for the promotions that the minority males assert the Department denied them. Employees who did not apply for promotions out of fear of discrimination are not properly included in a class because class membership must be based on objective criteria. Therefore, while the minority males established an estimate of the number of class members, they did not provide an adequate statement of basic facts to support that a sizeable number of those class members suffered an actual injury.
We are definitely and firmly convinced that the trial court made a mistake because the minority males did not provide basic facts regarding whether a sizeable number of class members suffered an actual injury. We conclude that the trial court clearly erred by finding that the minority males established numerosity.
2. COMMONALITY
The Department contends that the trial court erred when it found that the minority males established commonality. We agree.
To establish commonality, the proponent of certification must establish that issues of fact and law common to the class “predominate over those issues subject only to individualized proof.” However, it is not sufficient to merely raise common questions. The “common contention . . . must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
In other words, “[cjommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury [.]’ ” For the purpose of the commonality inquiry, intentional discrimination, disparate-impact hiring or promotion criteria, and deliberate discrimination by individual supervisors are different things. In this case, the trial court found that the minority males established common questions of law and fact regarding the Department’s “culture of discrimination,” finding that “[m] embers of the proposed class experienced what they perceived to be a culture of discrimination both from their own positions, as well as in capacities outside their class — on a statewide level.”
The trial court’s finding did not support its conclusion regarding commonality. The minority males asserted that (1) some plaintiffs applied for but were denied promotions, and (2) others were too disheartened to apply for promotions. The minority males asserted that supervisory and management employees had discriminatory attitudes and practices demonstrating racial and gender bias. The minority males also asserted that there were “department[-]wide cultural deficiencies regarding minority males.” In support of these assertions, the minority males offered (1) a Departmental memo, which stated in part that departmental units had engaged in inconsistent policy application, and (2) statistical data showing an underrepresentation of minority males in the Leadership Academy.
The minority males’ assertions, as well as their proffered facts, show that commonality does not exist in their expansive class definition. The minority males’ claims include an inextricable mix of racial discrimination, ethnic discrimination, and gender discrimination claims against not only the Department as a whole, but against individual supervisors and managers as well. The supporting materials offered by the minority males do not specifically concern racial or gender discrimination. Nor do these materials show a method of discrimination by a single actor: the statistical data regarding the Leadership Academy may show Department-wide disparate-impact regarding promotion criteria, while the memo indicates that individual supervisors and managers deliberately applied discriminatory policies out of bias.
The minority males’ combined suit would require proofs regarding different types of discrimination (racial or ethnic, and gender) and different methods of discrimination (disparate impact, and deliberate discrimination) against different actors (the Department as a whole, and an undetermined number of supervisors in individual departmental units). Because there is no allegation of a single type or method of discrimination, or even an allegation that a single actor engaged in discrimination, we are definitely and firmly convinced that the trial court made a mistake when it found that the minority males raised common questions of law or fact. We conclude that the trial court clearly erred when it found that the minority males established commonality.
3. TYPICALITY
The Department contends that the trial court erred when it found that the minority males established typicality. We agree.
Typicality is concerned with whether the claims of the named representatives “have the same essential characteristics of the claims of the class at large.” As does commonality, typicality requires that the class representatives share a common core of allegations with the class as a whole.
In this case, the trial court found that the named plaintiffs “have different levels of training and education” but “were all denied Leadership Academy selection” and thus were typical of the class as a whole. However, as stated earlier, the statistical disparity regarding minority males in the Leadership Academy was just one of the theories on which the minority males based their claims. There is no indication in the record before us that the named representatives have the same essential characteristics regarding all the claims concerning all the different types and methods of discrimination by the various actors that the class definition and the minority males’ allegations encompass. We conclude that the trial court clearly erred when it found that the minority males established typicality.
4. ADEQUACY
The Department contends that the trial court erred when it determined that the minority males established adequacy. We agree.
Proponents of class certification establish adequacy by showing that “class representatives can fairly and adequately represent the interests of the class as a whole.” To show adequacy, the proponents must show that (1) counsel is qualified to pursue the proposed class action, and (2) the members of the class do not have antagonistic or conflicting interests.
In this case, the trial court failed to address whether the minority males’ counsel was qualified to pursue the class action. The trial court did find that the named representatives adequately represented the class because “all members of the class allegedly share the same fear of being discriminated against.”
We caution trial courts against relying on a proponent’s bare allegations. The trial court “may not simply accept as true a party’s bare statement that a prerequisite is met unless the court independently determines that the plaintiff has at least alleged a statement of basic facts and law that are adequate to support the prerequisite.” In this case, the minority males stated that they had remained in the case for at least seven years and have the united goal of ending discriminatory policies and practices. The minority males’ generalized statement regarding their goals fails to support either (1) counsel’s qualifications or (2) a lack of conflicting interests among the representative parties and class members.
We conclude that the trial court clearly erred when it found that the minority males supported the element of adequacy.
5. SUPERIORITY
The Department contends that the trial court erred when it found that the minority males established superiority. We agree.
The superiority and commonality requirements are related because “if individual questions of fact predominate over common questions, the case will be unmanageable as a class action.” In this case, the trial court erred when it determined that the minority males established commonality; as we outlined earlier in this opinion, the minority males do not present common questions of fact and law. Therefore, the trial court erred when it determined that the minority males established superiority. Individual questions of law and fact will predominate over any common questions, making this case unmanageable as a class action.
III. CONCLUSION
We conclude that the trial court clearly erred when it found that the minority males established numerosity, commonality, typicality, adequacy, and superiority under MCR 3.501(A)(1). Therefore, we conclude that the trial court erred by certifying this matter as a class action.
We reverse.
Fitzgerald and Whitbeck, JJ., concurred.
Because class members have opted out of this lawsuit, there are now 586 members of the proposed class.
Duskin v Dep’t of Human Servs, 284 Mich App 400, 405-407; 775 NW2d 801 (2009).
Id. at 409-426.
Duskin v Dep’t of Human Servs, 485 Mich 1064 (2010).
Henry v Dow Chem Co, 484 Mich 483, 498-504; 772 NW2d 301 (2009).
Duskin, 485 Mich at 1064.
Henry, 484 Mich at 495.
Id. at 495-496.
Peters v Gunnell, Inc, 253 Mich App 211, 221; 655 NW2d 582 (2002).
Henry, 484 Mich at 496.
MCR 3.501(A)(1). See also Henry, 484 Mich at 496-497.
Henry, 484 Mich at 488.
Id. at 500.
Id. at 502-503.
Id. at 504.
Id. at 505.
Zine v Chrysler Corp, 236 Mich App 261, 287; 600 NW2d 384 (1999).
Id. at 288.
Id. at 288-289
Mich Ass’n of Chiropractors v Blue Care Network of Mich, Inc, 300 Mich App 577, 590; 834 NW2d 138 (2013).
Zine, 236 Mich App at 289 (quotation marks and citation omitted).
Mich Ass’n of Chiropractors, 300 Mich App at 592; Wal-Mart Stores, Inc v Dukes, 564 US_; 131 S Ct 2541, 2551; 190 L Ed 2d 374 (2011).
Wal-Mart, 564 US at_; 131 S Ct at 2551.
Id. at_; 131 S Ct at 2551, quoting Gen Tel Co of Southwest v Falcon, 457 US 147, 157; 102 S Ct 2364; 72 L Ed 2d 740 (1982).
See Wal-Mart, 564 US at_; 131 S Ct at 2551.
Neal v James, 252 Mich App 12, 21; 651 NW2d 181 (2002) (quotation marks and citation omitted), overruled in part on other grounds by Henry, 484 Mich 505 n 39.
Neal, 252 Mich App at 21.
Id. at 22.
Id.
Henry, 484 Mich at 505.
Zine, 236 Mich App at 289 n 14. See A&M Supply Co v Microsoft Corp, 252 Mich App 580, 601-603; 654 NW2d 572 (2002). | [
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Per Curiam.
This is a wrongful death action initiated to recover damages for the death of Arthur McMillian, which resulted from the accidental discharge of State Police Trooper James Vliet’s revolver while Vliet was in the process of arresting McMillian following a high-speed automobile chase. We are asked in this case to review the factual finding of the trial judge, after a two-day bench trial, that, notwithstanding the negligence of the defendant, the decedent’s own conduct was the sole proximate cause of his death. Our review leaves us convinced that the trial court’s finding is clearly erroneous.
I
On July 16, 1976, at approximately 10:15 a.m., while alone on routine patrol in a marked Michigan State Police patrol car, officer James Vliet observed a vehicle being driven by the deceased, Arthur McMillian, and occupied in the front passenger seat by Michael Scott. When first observed, the car was traveling southbound on U.S. 131 in Grand Haven at what appeared to be an excessive rate of speed; however, when Vliet began following it, the driver slowed to a speed five to ten miles per hour below the posted speed limit. After following for a short distance, Vliet decided to stop the car to talk to the driver. He switched on his overhead flashing lights and signaled the driver to pull over. The automobile pulled into a parking lot and stopped, and officer Vliet followed and got out of his patrol car. However, when he reached the driver’s door, McMillian suddenly sped away. Vliet got back into his car, and a chase ensued at speeds in excess of eighty miles per hour. On at least two occasions during the chase, when Trooper Vliet attempted to pull up next to the other vehicle, McMillian swerved at the patrol car, colliding with it on at least one occasion and forcing the patrol car into the lane of oncoming traffic on another.
McMillian lost control of his car while attempting to negotiate a turn, and the car jumped a curb and struck and came to rest against a utility pole guidewire. As Vliet stopped approximately eight feet behind the stalled Ford, both the driver and passenger doors of the other vehicle were opened. Vliet got out of his car and drew and cocked his service revolver. The passenger, Michael Scott, got out and took a few steps, but complied with the officer’s commands and stopped and placed his hands on the top of the car.
The driver, McMillian, had looked out of the open driver’s door toward Vliet, but then disappeared from sight before he emerged from the passenger door. McMillian disregarded the officer’s commands and took several strides in a manner which led Vliet to believe he was intent on running. Vliet then stepped forward, placed his left hand on McMillian’s left shoulder, forced McMil-lian to the car and, when McMillian continued to resist, used the heel of his right hand at McMilli-an’s upper back to push him down over the trunk. The cocked revolver was still irtVliet’s right hand, but, according to the officer and a witness, its barrel was pointed up in the air. However, as McMillian was bent over, he suddenly swung his left elbow around and backward striking Vliet, and, turning his head to the left to face the officer, he stood up. This movement by McMillian placed the left side of his head in contact with the muzzle of Vliet’s gun and the impact jarred Vliet and caused the gun to discharge. The bullet struck McMillian in the head rendering him immediately unconscious. He died several days later.
Plaintiff, Beatrice McMillian, administratrix of the estate and mother of the deceased, brought this action against Trooper Vliet, alleging that he had acted negligently in the use of his handgun and that his negligence was the proximate cause of the decedent’s injury. Trooper Vliet denied negligence on his part and alleged that McMillian’s death was proximately caused by his own negligence and reckless, wanton, and wilful conduct.
After a full trial in the Ottawa Circuit Court, Judge Calvin L. Bosman, sitting without a jury, issued an opinion. In resolving the negligence questions presented, Judge Bosman found that Officer Vliet’s initial conduct of drawing and cocking the revolver was reasonable in light of the circumstances, which indicated that McMillian was desperate and possibly armed. However, his failure to uncock his gun after it became obvious that McMillian did not have a weapon in his hands was found to be negligent.
After McMillian exited his vehicle, his hands were in view of Vliet and it became obvious that he did not have a weapon in his hands. There no longer continued the urgency for having a cocked gun. A cocked gun under those circumstances is considerably more dangerous than one which is drawn and remains uncocked. There is a much greater danger of accidental discharge with a cocked gun and especially if the use of physical force to subdue an unarmed person is necessary. This Court believes that holding a cocked revolver is something a reasonably prudent police officer would not do because of the risk involved. This risk involves the accidental discharge when the gun is intentionally or unintentionally pointed at some person.
Judge Bosman absolved the defendant of liability by finding that McMillian’s own "wilful, wanton and reckless conduct” in making a "sudden, violent and hostile act,” by turning and lifting his own body into the line of fire while simultaneously striking Officer Vliet with his elbow, was the proximate cause of his own injuries.
Vliet, however, was careful in spite of the quickness and forcefulness of his action to keep the gun pointed up so that at no time was it pointed by Vliet at McMillian or anyone else. It was not until McMillian in a sudden, violent, and hostile act brought his body up, turning it around while swinging his left elbow in Vliet and placing his head in a position so that the lower left side of his head was against the muzzle of the gun that the gun was pointed at him. The direction of the gun was not moved by Vliet. It was McMillian’s action that placed his head against the gun. McMillian had seen that Vliet was a police officer. He saw that Vliet carried his revolver in his right hand. When Vliet put his left hand on McMillian’s left shoulder and directed him around and forced him down by pressure in the middle of his back, Mc-Millian must have known this was done by Vliet with his gun hand and yet with all of this knowledge, he chose with wilful and reckless disregard of these facts and the dangers inherent therein, to violently act in the manner which he did with total disregard for his own safety or to the safety of others. His wilful, wanton and reckless conduct was the proximate cause of his own injuries. . . . Although having found Vliet negligent, the wilful, wanton and reckless conduct of the deceased was the proximate cause of the injury and thereby bars recovery in this matter.
Judge Bosman entered a judgment of no cause of action, and the case was dismissed. Plaintiff appealed to the Court of Appeals which reviewed the record and, in an unpublished per curiam opinion filed October 29, 1982, concluded that the trial court’s finding of fact was not clearly erroneous. The judgment was affirmed. This Court granted leave to appeal on May 17, 1984. 419 Mich 870 (1984).
On appeal, plaintiff contends that the trial court erred in determining that, notwithstanding the negligence of the defendant, the decedent’s own conduct was the sole proximate cause of his death. We agree.
II
In Weissert v City of Escanaba, 298 Mich 443, 452; 299 NW 139 (1941), this Court defined "proximate cause” as "that which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, without which such injury would not have occurred . . . While the foregoing definition constitutes a test for determining whether proximate cause exists by virtue of direct causality, it also makes reference to the concept of intervening causality. An "intervening cause” is defined in 2 Restatement Torts, § 441, p 465 as "one which actively operates in producing harm to another after the actor’s negligent act or omission has been committed.” An intervening cause breaks the chain of causation and constitutes a superseding cause which relieves the original actor of liability, unless it is found that the intervening act was "reasonably foreseeable.” See, e.g., Moning v Alfono, 400 Mich 425, 442; 254 NW2d 759 (1977).
This Court has recognized a distinction between direct and intervening causal situations and set forth different tests for determining proximate cause in each:
"It appears that the modern trend of judicial opinion is in favor of eliminating foreseeable consequences as a test of proximate cause, except where an independent, responsible, intervening cause is involved. The view is that once it is determined that a defendant was negligent, he is to be held responsible for injurious consequences of his negligent act or omission which occur naturally and directly, without reference to whether he anticipated, or reasonably might have foreseen such consequences.
"There is no need for discussing proximate cause in a case where the negligence of the defendant is not established, but when his negligence has been established, the proximate result and amount of recovery depend upon the evidence of direct sequences, and not upon defendant’s foresight.” [Davis v Thornton, 384 Mich 138; 180 NW2d 11 (1970) (quoting 38 Am Jur, Negligence, § 58, pp 709-710).]
Accordingly, proper analysis of a proximate cause question frequently will turn on accurately determining whether the facts in a case present a situation involving direct causality or intervening causality. The fact that more than one cause operates to produce an injury is not in itself determinative. Two causes frequently operate concurrently so that both constitute a direct proximate cause of the resulting harm. See Brackins v Olympia, Inc, 316 Mich 275; 25 NW 197 (1946), and the cases cited therein. An intervening cause situation is distinguishable from concurrently operating causes in that it involves an intervening cause or act which begins operating "after the actor’s negligent act or omission has been committed.” 2 Restatement Torts, § 441, p 465. See also City of Aurora v Loveless, 639 P2d 1061 (Colo, 1981).
Ill
It is unclear what analysis was used by the trial court to arrive at the finding that Officer Vliet’s negligence was not a proximate cause of the harm that resulted in this case. The Court of Appeals affirmed on the basis of an intervening-cause analysis, opining that the deceased’s act of "whirling around” was "highly extraordinary” and therefore presented a question of "foreseeability” properly left to the factfinder. We do not agree. We are not convinced by the trial court’s findings of fact that that court recognized and properly applied the principle that there may be more than one proximate cause of an injury. See, e.g., Kirby v Larson, 400 Mich 585, 605; 256 NW2d 400 (1977).
We reverse the judgments of the Court of Appeals and the trial court and remand to the trial court for proceedings consistent with this opinion.
Williams, C.J., and Levin, Ryan, Brickley, Cavanagh, Boyle, and Riley, JJ., concurred.
Review in this case is conducted pursuant to the standard set forth in MCR 2.613(C) which provides: "Findings of fact by the trial court may not be set aside unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” "A finding is 'clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976). | [
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Per Curiam.
Probate court orders terminating parental rights may be appealed to the Court of Appeals. MCL 600.861(c)(ii); MSA 27A.861(c)(ii). The issue in this case is whether the Court of Appeals must use a clearly erroneous standard of review or, alternatively, whether de novo review is appropriate. In the present case, the Court of Appeals used the clearly erroneous standard and affirmed the probate court’s decision to terminate the respondents’ parental rights. In adopting that standard, it also certified, pursuant to Administrative Order No. 1984-2, that its choice of review standards conflicted with Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975), lv den 394 Mich 794 (1975). Respondent Betty Cornet has also filed an application for leave to appeal in which she seeks review of that issue and others. We resolve the certified conflict by holding that the Court of Appeals panel in this case chose the correct standard of review.
I
In October of 1981, the respondents’ three young children were temporarily placed in foster homes on the basis of allegations of neglect and sexual abuse. An adjudicative hearing was scheduled for December 7, 1981. On that date, the respondents stipulated that the amended petition stated sufficient grounds to establish probate court jurisdiction over the children. MCL 712A.2(b); MSA 27.3178(598.2)(b). In lieu of the anticipated adjudicative phase hearing, the trial court then conducted the dispositional phase hearing. See JCR 8.1.
After hearing the witnesses, the trial judge determined that the children should be made temporary wards of the court. He referred them to the Kent County Department of Social Services, which placed them in a supervised foster home. The court further ordered the respondents to begin treatment programs.
Over the next two years, at least two review hearings were held and several others were scheduled but adjourned by agreement of the parties. During that time, the respondents separated, and the father left the state and moved to Mississippi. The mother, the only appellant in this case, remained in Michigan and participated in the treatment programs. Though she made some progress, all persons who evaluated her were convinced that she would be unable to properly care for these children. Seeing no significant progress after more than two years of temporary wardship, the petitioner asked the probate court to terminate the respondents’ parental rights.
A hearing on that petition was held on March 5, 1984. After hearing the evidence, the trial judge granted the petition on the basis of MCL 712A.19a(f); MSA 27.3178(598.19a)(f). The judge made detailed findings as required by JCR 14. Further, as required by JCR 8.3(b), he found that the allegations in the petition had been established by "clear and convincing evidence.”
The respondent mother appealed that decision to the Court of Appeals, which affirmed the termination in an unpublished per curiam opinion. Before reaching the merits, however, the Court of Appeals addressed an issue not directly raised by the respondent. It acknowledged a split in decisions by the Court of Appeals on the question whether parental rights cases should be reviewed de novo or by a clearly erroneous standard of review. It opted for the latter standard and cited as authority In re Irving, 134 Mich App 678; 352 NW2d 295 (1984). However, it also certified that its reliance on Irving placed it in conflict with Bahr v Bahr, supra.
II
We hold that the appropriate standard of review is the clearly erroneous standard used in this case and in Irving. Subsequent Court of Appeals decisions have interpreted Bahr as requiring de novo review when a parent appeals a probate court decision to terminate parental rights. See, e.g., In re Mudge, 116 Mich App 159; 321 NW2d 878 (1982), lv den 417 Mich 963 (1983), and In re Schejbal, 131 Mich App 833; 346 NW2d 597 (1984). To eliminate any possible confusion, we hold that, in the absence of any statute requiring de novo review, a probate judge’s findings in proceedings to terminate parental rights must be reviewed under the clearly erroneous standard.
This holding is consistent with the general rules for appeals from probate court to the Court of Appeals.
MCL 600.866(1); MSA 27A.866(1) provides:
All appeals from the probate court shall be on a written transcript of the record made in the probate court or on a record settled and agreed to by the parties and approved by the court. An appeal shall not be tried de novo.
Of course, there is a difference between a de novo trial and a de novo review. Therefore, the quoted statute does not necessarily require the use of a clearly erroneous review standard in all appeals from probate court. However, use of the clearly erroneous standard is also suggested by MCL 600.866(3); MSA 27A.866(3), which provides:
Except as otherwise provided in sections 861 to 866,[ ] appeals from the probate court or a judge thereof shall be governed by supreme court rule.
We adopted new court rules while this appeal was pending. Both the former and present rules provide that findings of fact by a trial judge may not be set aside unless the findings are clearly erroneous. See former GCR 1963, 517.1 and present MCR 2.613(C).*
Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976), explained the proper application of the clearly erroneous review standard.
[A]n appellate court will set aside the findings of fact of a trial court sitting without a jury when such findings are clearly erroneous. In construing comparable "clearly erroneous” language in Rule 52(a) of the Federal Rules of Civil Procedure, the United States Supreme Court has stated that "[a] finding is 'clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” . . . Appropriately, the "judicial sieve” with which we have sifted the evidence in this non-jury case is "of finer mesh than the one correspondingly employed on review” of a jury’s verdict.
The Court of Appeals panel in the present case applied the correct standard and reached the correct result by affirming the probate judge’s decision to terminate parental rights.
Ill
In lieu of granting leave to appeal, we affirm the judgments of the Court of Appeals and the Kent Probate Court. MCR 7.302(F)(1). With respect to the respondent’s other allegations of error, the application for leave to appeal is denied because we are not persuaded that the questions presented should be reviewed by the Court.
Williams, C.J., and Levin, Ryan, Brickley, Cavanagh, Boyle, and Riley, JJ., concurred.
The respondent mother gave birth to another child while these proceedings were pending. That child’s status is not at issue in this appeal.
"The child has been in foster care in the temporary custody of the court on the basis of a neglect petition for a period of at least 2 years and upon rehearing the parents fail to establish a reasonable probability that they will be able to reestablish a proper home for the child within the following 12 months.”
MCL 600.861; MSA 27A.861 to MCL 600.867; MSA 27A.867.
The applicability of GCR 1963, 517.1 to probate court appeals was uncertain. However, there is no uncertainty about the present applicability of MCR 2.613(C). See MCR 5.001(A). | [
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Boyle, J.
The issue in this case is whether an indigent noncustodial parent is entitled to assigned counsel on the first appeal as of right from a probate court order terminating parental rights under the stepparent adoption provisions of the Michigan Adoption Code, MCL 710.51(6); MSA 27.3178(555.51X6).
We hold that under the Probate Court Rules and the residuary authority of the Juvenile Court Rules, in cases which may result in nonconsensual termination of the parental rights of a noncustodial parent under the stepparent adoption provisions of the Michigan Adoption Code, MCL 710.51(6); MSA 27.3178(555.51X6), the probate court has discretionary authority to appoint counsel to assist an indigent noncustodial parent in contesting the termination of parental rights. When that discretion has been exercised in the trial court, and the probate judge has determined that counsel is required to protect the rights of the indigent noncustodial parent at the initial hearing, if the right to appeal is exercised, absent some change in circumstances the proper exercise of discretion requires appointment of counsel on appeal.
Facts and Procedural History
Salvador Sanchez and his wife Cheryl Ann were divorced in 1977. Mr. Sanchez’ ex-wife, who had been awarded custody of their one-year-old son Jeremy, married Gary Bates in 1980. In 1982 Gary and Cheryl Ann (Sanchez) Bates, through the Friend of the Court, sought Mr. Sanchez’ consent to termination of his parental rights so that Mr. Bates could adopt Jeremy. Mr. Sanchez refused consent. In 1983 the Bates petitioned the Lenawee County Probate Court to terminate Mr. Sanchez’ parental rights pursuant to MCL 710.51(6); MSA 27.3178(555.51X6), and to approve Mr. Bates’ adoption of Jeremy. Mr. Sanchez appeared and opposed the petition. At a second hearing, the probate court appointed trial counsel for Mr. Sanchez.
At the trial, held July 12, 1983, Salvador Sanchez and Cheryl Ann Bates were the only witnesses. The evidence showed that Mr. Sanchez had been indicted on federal charges in August, 1980, and imprisoned in a federal facility in Illinois from January 1981 until January 1983. He had last paid the court-ordered child support of $17 per week in July 1980. He had earned $1115 during his 241á months of imprisonment, and in the five months prior to trial his only income had been $65 per month in general assistance from the state. The evidence on visitation was conflicting, Mrs. Bates testifying that Mr. Sanchez had last visited with his son in June 1978, and Mr. Sanchez testifying that his last visit had been in August 1980.
The Adoption Code provides:
If . . . the parent having legal custody of the child subsequently marries and that parent’s spouse petitions to adopt the child, the court upon notice and hearing may issue an order terminating the rights of the other parent if both of the following occur:_
(a) The other parent, having the ability to support, or assist in supporting, the child, has failed or neglected to provide regular and substantial support for the child or if a support order has been entered, has failed to substantially comply with the order, for a period of 2 years or more before the filing of the petition.
(b) The other parent, having the ability to visit, contact, or communicate with the child, has regularly and substantially failed or neglected to do so for a period of 2 years or more before the filing of the petition. [MCL 710.51(6); MSA 27.3178(555.51X6):]
The court found that Mr. Sanchez had not visited Jeremy since June 1978. Judge Kohn further found:
It’s clear that the divorce decree provided for a support payment of $17.00 per week and the Court finds that the last money paid on that decree was in July of 1980 .... And presently I find to be a fact, that he has no job. That he has no income. That he does not and could not even provide for the child at the present time .... The statutes provide that if you fail to substantially comply with the Court order for a period of two years or more before filing the petition for adoption, parental rights can be terminated. I find that position exists. As meager as the income was in prison, it certainly would not be beyond the father who was concerned with his son’s welfare to send some token to the mother for the child’s benefit.
On the basis of these findings, the court terminated Mr. Sanchez’ parental rights, and immediately thereafter entered an order of adoption.
A number of legal proceedings followed. **** Mr. Sanchez twice requested the probate court to appoint appellate counsel for him; both requests were denied. He filed a claim of appeal and brief in propria persona in the Court of Appeals, which is being held in abeyance pending resolution of the appeal of the denial of appellate counsel. In an order issued February 17, 1984, the Court of Appeals held that Mr. Sanchez- has "no right to the appointment of counsel, In re Kenneth Jackson, Jr, 115 Mich App 40, 50-51; [320 NW2d 285] (1982).” This Court granted leave to appeal on September 26, 1984. 419 Mich 934 (1984).
I
We recognize that "[c]ases involving the involuntary, permanent termination of parental rights are unique,” State ex rel Heller v Miller, 61 Ohio St 2d 6, 13; 399 NE2d 66 (1980), in the kind, the degree, and the severity of the deprivation they inflict. Unquestionably, "[t]hese are proceedings involving traditions, emotions and responsibilities which give them a unique cast,” Reist v Bay Circuit Judge, 396 Mich 326, 354; 241 NW2d 55 (1976) (opinion of Coleman, J.).
A termination of parental rights is both total and irrevocable. Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child’s religious, educational, emotional, or physical development. It is hardly surprising that this forced dissolution of the parent-child relationship has been recognized as a punitive sanction by courts, Congress, and commentators. [Lassiter v Dep’t of Social Services, 452 US 18, 39; 101 S Ct 2153; 68 L Ed 2d 640 (1981) (Blackmun, J., dissenting). Citations omitted.]
While acknowledging the importance of the right involved, our disposition of this case makes it unnecessary to decide whether the Michigan Constitution requires appointment of counsel in all stepparent adoption proceedings. Taylor v Auditor General, 360 Mich 146, 154; 103 NW2d 769 (1960).
II
The Court of Appeals, as well as the probate court, based its holding that Mr. Sanchez has no right to appellate counsel on In re Jackson, 115 Mich App 40, 51; 320 NW2d 285 (1982). In that case, the Court of Appeals held:
The primary distinction between a termination of parental rights under the juvenile code as opposed to termination under the Adoption Code is that the juvenile code proceeding is involuntarily brought by the state, whereas the Adoption Code proceeding is voluntarily initiated by the parent .... In view of the voluntary nature of a release for adoption, it appears unlikely that Reist is controlling since Reist is limited to involuntary termination proceedings.
Thus, by its own terms, Jackson does not apply to involuntary terminations of parental rights and is not controlling. Therefore we look to the court rules and statutes for resolution of the issue before us.
The Juvenile Court Rules make a specific distinction as to when appointment of counsel is mandatory and when it is merely discretionary. MCR 5.906(C)(1)(b) provides:
Unless . . . waived ..., an attorney must be appointed on the court’s own initiative to represent the parent, guardian, or custodian of a child charged with an offense against the child at a hearing which may involve termination of that person’s rights, when legal aid or public defender assistance is not available and the person is financially unable to employ an attorney. [Emphasis added.]
In all other cases, the same rule goes on to state that
[t]he court may, on request, when legal aid or public defender assistance is not available and the individual is financially unable to employ an attor ney, appoint an attorney to represent the person at other hearings conducted under provisions of the juvenile code or these rules.
Terminations of parental rights pursuant to MCL 710.51(6); MSA 27.3178(555.51X6), like terminations under the Juvenile Code, are involuntary. Where the right involved is that of a noncustodial parent, a father who has acknowledged paternity or a putative father who has established a custodial or support relationship prior to the notice of hearing, terminations of parental rights under the Adoption Code, like those of the Juvenile Code, are based on fault. The rights may be terminated only after the court finds that the parent has failed or neglected to support and have contact with the child for two years or more during which time the parent had the ability to do so.
At the time the Juvenile Court Rules were initially adopted, parental rights could be involuntarily terminated only under the Juvenile Code. Involuntary terminations became possible under the Adoption Code in 1981, when MCL 710.51(5); MSA 27.3178(555.51X5) was enacted. 1980 PA 590, immediately effective January 26, 1981._
The Michigan Court Rules, effective March 1, 1985, do not deal with the question of counsel in involuntary termination proceedings under the Adoption Code. However, the policies of both the Adoption Code and the rules reflect dual concerns for procedural fairness to noncustodial parents and for prompt proceedings to safeguard and promote the best interests of adoptees. These dual concerns are expressly recognized in the stated statutory purposes of the Adoption Code, which are:
(a) To provide that each adoptee in this state who needs adoption services receives those services.
(b) To provide procedures and services which will safeguard and promote the best interests of each adoptee in need of adoption and which will protect the rights of all parties concerned. If conflicts arise between the rights of the adoptee and the rights of another, the rights of the adoptee shall be paramount.
(c) To provide prompt legal proceedings to assuré that the adoptee is free for adoptive placement at the earliest possible time. [MCL 710.21a; MSA 27.3178(555.21a).]
The concern for procedural fairness to noncustodial parents is also evidenced by the requirements for service, MCL 710.36(7); MSA 27.3178(555.36)(7), the requirement for a hearing to determine whether there have been reasonable attempts to identify or locate the father, MCR 5.752, and the provisions for extension of time after receipt of the report of investigation where necessary to hold a hearing, MCL 710.51(2); MSA 27.3178(555.51)(2). The rules further provide for an appeal on "a written transcript” or on a "settled and agreed” upon record. MCR 5.802. Further, the rules relating to adoption themselves provide: "Except as modified by [the more specific provisions of] MCR 5.751-5.755, adoption proceedings are governed by the rules generally applicable to probate proceedings.” MCR 5.750.
The concern for prompt resolution of matters related to adoption proceedings is also evidenced in other sections of the code which provide for court docket priority, MCL 710.25(1); MSA 27.3178(555.25)(1), limit the availability of adjournment or continuance, MCL 710.25(2); MSA 27.3178(555.25X2), and provide for priority on appeal, MCL 710.65(3); MSA 27.3178(555.65)(3).
We conclude that the proper balancing of the potential for conflict between these dual concerns for procedural fairness to the noncustodial parent and for prompt proceedings to "safeguard and promote the best interests of each adoptee in need of adoption . . .” MCL 710.21a(b); MSA 27.3178(555.21a)(b) is best left for resolution to the discretion of those who have primary responsibility for application of the code, the trial judiciary.
As Justice Coleman recognized in Reist v Bay Circuit Judge, supra, p 359, these rules are judicially created and their scope can properly be provided by interpretation by this Court.
[T]he living law must reflect change. When constitutions, statutes and rules are drafted, they cannot hope to provide individually for all developments. [Reist, supra, p 354.]
We find that the probate court is authorized to appoint counsel for a nonconsenting noncustodial parent in proceedings brought pursuant to § 51(6) of the Adoption Code. In exercising such discretion, the trial court will be guided by the principle of assuring the nonconsenting parent the ability to present a case properly, measured in the particu lar case by factors such as the relative strength of the adversaries and the presence or absence of legal, factual, procedural, or evidentiary complexity. See, e.g., Cleaver v Wilcox, 499 F2d 940, 945 (CA 9, 1974).
We further find that where the trial court has determined that trial counsel is necessary to protect the noncustodial parent’s interests at the termination proceedings, counsel should also be appointed on appeal, absent some change in circumstances, identified by the trial court, which would justify denial of appellate counsel.
As Justice Levin noted in Reist, supra, p 348:
The issues on appeal from an order terminating parental rights are generally both factual and legal. Prosecution of an appeal requires a knowledge and understanding of the court rules, statutes and judicial decisions. The procedures for prosecuting an appeal are intricate and, to one not experienced in appellate work, complex.
Applying these principles we find that the refusal of the trial court to appoint appellate counsel in this case was an abuse of discretion. The trial court did not consider the factors that should have been evaluated to determine whether legal representation was required in order to make the appellant’s right to appeal meaningful. We reverse the decision of the Court of Appeals and remand this case to that Court with directions for appointment of appellate counsel.
Williams, C.J., and Levin and Cavanagh, JJ., concurred with Boyle, J.
"Dear Mr. Heffron,
"I am in receipt of your letter of February 24, 1982, concerning the proposed consensual adoption of my son, Jeremy.
"Please be advised, that while I am pleased Jeremy’s stepfather has taken such an interest in the boy, I cannot consent to his adoption and termination of my parental rights.
“I love my son very much and he figures prominently in my future plans of further education and employment; once my debt to society has been paid.
"I thank you very much for your interest and regret I cannot be of assistance in this regard.
"Yours truly,
'Salvador Sanchez’
The probate judge informed Mr. Sanchez that he had no right to appointed counsel at the first hearing on June 13, 1983. When Mr. Sanchez appeared without counsel at the second hearing on June 28, 1983, and reiterated his inability to retain counsel due to indigency, the probate judge appointed trial counsel for him because "the Court rule provides that counsel shall be provided if a defendant is indigent in all cases where the termination of parental rights is involved.” The judge was apparently referring to JCR 1969, 6.3(A)(2)(b) (current version MCR 5.906[C]).
This is an average of $10.50 per week, although, in his brief in propria persona in the Court of Appeals, Mr. Sanchez wrote that "I only made $12.50 and later $15.00 per week while I was incarcerated.” See also n 6.
Cf. MCL 710.56(2); MSA 27.3178(555.56X2).
Mr. Sanchez, represented by Legal Services of Southeastern Michigan, filed a petition for rehearing which was denied, as well as a complaint for superintending control in the circuit court, seeking an order requiring the probate court to appoint appellate counsel for him. The circuit court, commenting that "[t]his court is inclined to rule that the underlying reasons for the holding in Reist [v Bay Circuit Judge, 396 Mich 326; 241 NW2d 55 (1976)] dictate that appointed appellate counsel for indigents whose parental rights have been involuntarily severed is required, regardless of the statute under which those rights are severed,” dismissed the case on jurisdictional grounds. Legal Services, on behalf of Mr. Sanchez, appealed this dismissal to the Court of Appeals, which dismissed the appeal for lack of jurisdiction on June 18, 1984, and later denied rehearing. The dismissal was "without prejudice to appellant pursuing the question of the appointment of appellate counsel in Docket No. 74116 . . . .” (Mr. Sanchez’ claim of appeal in propria persona.)
"Statement of Facts: The probate judge of Lenawee County, Judge C. Ralph Kohn terminated my parental rights to my son Jeremy Lee Sanchez on July 12, 1983. The hearing was because my former wife wanted her husband to adopt my son. I testified and my wife testified at the hearing. I was incarcerated at Marion Federal Penitentiary in Marion, Illinois for 24 and one half months beginning in January of 1981. The Judge said I hadn’t visited my son since June of 1978 even though I saw him in August of 1980. The Judge also said I didn’t pay my support payments of $17.00 each week for my son for two years even though I only made $12.50 and later $15.00 per week while I was incarcerated. Also the Judge would not give me an attorney for my appeal even though I am indigent and he had given me one for the hearing. Mr. Crudder represented me at the hearing although he did not do any research for my case. He didn’t introduce a photograph showing me and my son together in 1980. My only income is $65.00 from the state but the Judge didn’t appoint an attorney for my appeal anyway.
I think the Probate Court should have given me a lawyer to help me on my appeal. The Supreme Court said in the Reist case [n 5 supra] that an indigent has a right to a lawyer when the Probate Court cuts off his right to his child. The Probate Judge gave me a lawyer for my hearing and I don’t see why he didn’t give me one to appeal. I would like this Court to give me a lawyer for my appeal and to let my lawyer write a supplemental brief.
The Probate Court made a mistake when it terminated my rights to my child. I saw my boy in 1980; there is a photograph of us then, but Mr. Crudder did not submit it to the Probate Court. He didn’t know my case at all. I would have seen my son if I could, but I was in prison. I did not abandon my son — I was unable to see him. The Probate Court was wrong when it said I made no effort to see my boy for more than two years.
A big mistake was made by the Probate Judge when he said that I could have made my support payments of $17.00 each week. I only made $1,100.00 during the whole time I was in prison, 24 Vi months. That is a lot less than $17.00 for each week. My weekly pay was between $12.50 and $15.00 per week. With the money I did get I had to buy personal things at the prison store. You can’t get by in prison without money for the prison store.
When I was working on my case in prison I was classified as an indigent under the Freedom of Information Act. I got the papers I needed for my case free because I was an indigent. I would have paid my $17.00 support each week if I had money but I couldn’t. The Probate Judge made a mistake when he said I could.
I ask this Court of Appeals to reverse the Probate Court and restore my right to my child or give me a lawyer to write a supplemental brief for me.”
However, the Court of Appeals remanded the case to the Probate Court "for the purpose of exercising that court’s discretion in determining whether counsel should be appointed to represent respondent-appellant pursuant to JCR 1969, 6.3(A)(2)(b).” The Probate Court held that JCR 1969, 6.3(A)(2)(b) applies only to Juvenile Code proceedings, and that under In re Jackson, 115 Mich App 40; 320 NW2d 285 (1982), the rule does not apply in proceedings brought under the Adoption Code.
Although Michigan precedents do not presume that appointed counsel is required only if physical liberty is at stake, cf. Lassiter, p 27, we are unable to conclude that the opposite is true. Cf. In re Jay, 150 Cal App 3d 251, 262; 197 Cal Rptr 672 (1983).
Thus, while this Court has construed Const 1963, art 1, § 17, to require the appointment of counsel for an indigent defendant in a paternity action, Artibee v Circuit Judge, 397 Mich 54; 243 NW2d 248 (1976), a majority was unable to agree on the doctrinal foundation for appointment of counsel on appeal by an indigent parent from an order of termination following a finding of neglect. Reist, supra; see also Sword v Sword, 399 Mich 367; 249 NW2d 88 (1976). (Appointment of attorney for an indigent in a civil nonsupport proceeding for contempt does not rise to the level of a constitutional right as a general rule.)
The grounds provided for an involuntary termination of parental rights in MCL 710.51(6); MSA 27.3178(555.51X6) are similar to the grounds provided in MCL 712A.19a(b); MSA 27.3178(598.19a)(b) which provides that the court
"may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following:
"(b) The child is left with intent of desertion and abandonment by his parent or guardian in the care of another person without provision for his support or without communication for a period of at least 6 months. The failure to provide support or to communicate for a period of at least 6 months shall be presumptive evidence of the parent’s intent to abandon the child. If, in the opinion of the court, the evidence indicates that the parent or guardian has not made regular and substantial efforts to support or communicate with the child, the court may declare the child deserted and abandoned by his parent or guardian.”
Ordinarily, this matter would be remanded to the trial court with directions for consideration of these factors or for enunciation on the record of the change in circumstances justifying denial of appellate counsel. However, our disposition of this case is based upon the stated interest of the Adoption Code in prompt resolution of these matters, MCL 710.21a; MSA 27.3178(555.21a), and our recognition that an appeal in this case is now pending. MCR 7.316(A)(7). | [
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Reported at 420 Mich 463. Reconsideration denied June 25, 1985. | [
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Montgomery, J.
This is an appeal from an order overruling a demurrer to a bill in equity. The brief of the counsel for the complainant states the t facts and law so clearly that we quote from it at length:
“The case as made by the bill is, briefly stated, as follows: The parties, at the solicitation of the defendant, entered into a purchase on joint account of certain real estate. A portion of the purchase price was secured by mortgages upon the property, and, of the balance, a portion was to be paid by complainant and the remainder by defendant. The property was purchased in the name of the defendant, and he represented to complainant that the purchase price was very much larger than it actually was; and upon such representation the complainant was induced to advance $7,400 as his share of the purchase price, when in fact the entire balance above the mortgages did not exceed $6,029, the difference between this sum and the $7,400 being retained by the defendant; the defendant further representing that, in addition to the $7,400 advanced by complainant, he (defendant) had paid on account of the purchase, and as his share of the advanced payment, the sum of $1,400. It was agreed that defendant should convey to complainant the land, to be held by him in trust, and the conveyance was made, and a written agreement was made, which recited the malting of the . purchase in the name of complainant, and agreed that complainant would make certain advances of expenses and taxes and the amount payable to the mortgagees, and the defendant should take chai’ge of the platting, improvement of the property, and the sale of lots, the amount received from sales to be applied to the payment of expenses, the payment of the mortgages, and the repayment of the advances made by each of the parties, with interest at 7 per cent., and the balance divided equally between the parties. It was further agreed: ‘ And, in case the land shall not be sold within five years, then the advances of the parties hereto shall be adjusted, computing interest at 7 per cent., so that each shall have contributed one-half of all sums paid on account of the same, and thereafter the land shall be owned in common, and all liabilities shared equally; the intention being that all losses and gains shall be shared equally.’
“ The bill further alleges that, since the making of this agreement, the complainant has paid out for interest and taxes the sum of $4,596.07, and the defendant claims he has advanced moneys on account of the lands to an amount exceeding $2,300, and has commenced a suit at law to recover from complainant the amount of such advances, claiming that the agreement has been canceled by mutual consent, but which pretenses have no foundation in fact; that the mortgages have not been paid, and are due; that five years have elapsed since the purchase and making of said agreement, and the land has not been sold as provided by the agreement; and the complainant claims that he is entitled to have the advances made by each party adjusted, and such advances made by each over and above the sum contributed by the other party repaid, so that each shall have contributed one-half of the sums paid, and thereafter the lands owned in common, as provided in the clause of the agreement recited above. The complainant acknowledges that he holds the lands in trust, and he offers to convey, upon adjustment of the accounts, one-half of the property to defendant.
“ The bill prays that an account may be taken; that the representations made by the defendant as to the purchase price be decreed to be fraudulent; that the aggregate amount actually advanced by each party be ascertained, and contributions made to equalize such advances, the liabilities adjusted as between themselves, the respective rights and interests of each party in the lands be ascertained and decreed, and the defendant restrained from prosecuting his action at law against the complainant. To this bill of complaint the defendant filed a demurrer, claiming that the complainant has not made a case entitling him to relief in a court of equity, and that he has a complete and adequate remedy at law.
“The bill does not merely seek to obtain an account between the parties, nor to establish a defense to an action at law, but to obtain a decree establishing the. rights and interests of the parties in real estate which is now held by the complainant as trustee, and that the necessary conveyances in accordance with such determination be made. It is obvious that a court of law cannot deal with the entire subject-matter, and that a court of equity can alone do justice to the parties in relation to their respective rights, not only as between themselves in the matter of the accounts, but in respect to their interest in the lands, and the conveyances or releases which should be decreed. Provision should also be made with reference to the liability upon the mortgages. The remedy at law is not only wholly inadequate, but incomplete. See Blodgett v. Foster, 114 Mich. 688.
“It is not necessary to make the formal allegation that the complainant has not a complete and adequate remedy at law. It is a mere superfluity. The facts stated confer the jurisdiction. Story, Eq. Pl. § 34.”
The order appealed from will be affirmed, and the case remanded for further proceedings.
The other Justices concurred. | [
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-20,
7,
48,
-50,
-26,
-2,
17,
15,
-21,
-1,
-25,
44,
31,
12,
23,
9,
22,
40,
27,
13,
-34,
-18,
-8,
19,
38,
-15,
13,
-19,
25,
-14,
27,
-28,
14,
66,
0,
-33,
-28,
-7,
28,
69,
-41,
18,
-12,
40,
13,
-6,
41,
11,
-2,
54
] |
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