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Edwards, J.
This is an appeal from an Ingham county circuit judge’s dismissal on motion of a chancery suit. Plaintiffs’ bill of complaint sought to restrain proceedings under, and to hold invalid, a judgment of restitution previously issued in a statutory proceeding before a circuit court commissioner.
This record discloses (1) that no irregularity in the statutory proceedings is alleged (see CL 1948 and CLS 1956, § 630.12 et seq., as amended [Stat Ann and Stat Ann 1959 Cum Supp § 27.1986 et seq.]); (2) that no appeal was taken; and (3) that the redemption period expired prior to the filing of the bill of complaint.
This bill of complaint alleges no facts which would justify equitable relief within the holdings in Bilandzija v. Shilts, 334 Mich 421, and Grist v. Carlton, 360 Mich 237, relied upon by appellants.
Dismissal was called for under the rule of Crugher v. Braun, 322 Mich 707.
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Kavanagh, and Souris, JJ., concurred. | [
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] |
Dethmers, C. J.
The 3 defendants were charged in a single information with conspiracy to gamble, conspiracy to keep a gambling place, and conspiracy to possess gambling paraphernalia.
A jury was waived. Trial commenced before the judge with all 3 defendants, who were out on bail, present in court and represented by 1 attorney. At the end of 2 days all of the witnesses for the prosecution had testified and the people rested. On the third day of trial the 3 defendants and all other defense witnesses completed their testimony, including a character witness for defendant Lofton.
At the opening of court on the fourth day Lofton was not present in court. His attorney announced that he had heard indirectly that Lofton was in a hospital. Officers went to the hospital to ascertain the facts about Lofton’s absence from court. One of the officers returned to court and testified that he had learned that Lofton had walked into the hospital during the middle of the previous night. He further testified that Lofton was in bed in the hospital, that, in the presence of a doctor and of defendant Gant, he had said to the officer that he did not think he could be present in court and that the “court should go ahead with this case without his presence.” This was confirmed, in open court, by defendant Gant. The defendants’ attorney then stated that the defense was “practically through”, that the other 2 defendants were agreeable to going ahead with the case in Lofton’s absence, and that, as attorney for all 3 defendants, he was ready to proceed without Lofton being present.
No further testimony was taken, there was some discussion of defense motions, and the defense then rested. Summations by counsel followed. Court adjourned until the next day, when counsel completed their summations, in Lofton’s absence, and the court, thereupon, found the 3 defendants “guilty of conspiracy to violate the State gaming law.” Several weeks later, with all 3 defendants present in court, sentence was imposed under CLS 1956, § 750.505 (Stat Ann 1954 Rev § 28.773), which permits a maximum penalty, not exceeded in this case, of 5 years’ imprisonment.
On appeal here it is contended that the court committed reversible error in proceeding with the trial in Lofton’s absence and “in the rendition of a general verdict of guilty where defendants are charged with violating several sections of the criminal statutes.”
CL 1948, § 768.3 (Stat Ann § 28.1026), provides:
“Sec. 3. No person indicted for a felony shall he tried unless personally present during the trial; persons indicted or complained against for misdemeanors may, at their own request, through an attorney, duly authorized for that purpose, by leave of the court, be put on trial in their absence.”
In People v. Medcoff, 344 Mich 108, this Court, after quoting that statutory provision, said that its fair implication is that a misdemeanant punishable by a maximum sentence of 2 years in the State prison, as well as a felon, is entitled to be present. It was also said, in the opinion in that case, however, that the record presented no question of waiver of the right to be present or of failure of counsel to object to proceeding in defendant’s absence. In the instant case the record is otherwise in those 2 respects. Not only does the record show waiver by defendant Lofton, but approval by his counsel.
In Frey v. Calhoun Circuit Judge, 107 Mich 130, this Court said:
“The general rule is that a trial for a felony cannot be had without the personal presence of the accused. We have a statute which recognizes and embodies this rule. How Stat § 9568. It is also well settled that the trial is not concluded until the verdict is received and recorded. There are eases which hold that a verdict rendered in the absence of the prisoner, whether he be in custody or out on bail, is void. State v. Hurlbut, 1 Root (Conn) 90; Clark v. State, 4 Humph (23 Tenn) 254; Sneed v. State, 5 Ark 431 (41 Am Dec 102). Few cases will be found which go to this extent, and, in nearly all of the cases where a verdict rendered in the absence of the accused has been held erroneous, the respondent has been in custody, and has therefore been prevented from attending. When, however, the absence of the prisoner is not an enforced absence, but is voluntary, as when he is out on bail, and has been present during the trial, but voluntarily leaves the courtroom pending the deliberations of the jury, or neglects to appear at the adjourned hour of the court, the clear weight of authority favors the rule that a verdict rendered under such circumstances is valid and binding. * * *
“In the present case, the court having adjourned until the next morning, the respondent was justified in assuming that nothing would be done until that time; but he was bound to take notice of the hour at which the court convened, and his absence thereafter must be regarded as voluntary, and the court would have been justified in treating it as a waiver of his right to be present.”
In Diaz v. United States, 223 US 442, 455 (32 S Ct 250, 56 L ed 500), the rule is stated thus:
“Where the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.”
In defendants’ brief it is conceded that a defendant may waive his right to be present at trial and that such waiver was here attempted, but they say the waiver was insufficient. No showing was made that Lofton was not able to leave the hospital and come into court. In fact, no showing of any kind was made by the defense to justify Lofton’s absence. The court had nothing before it on the subject except the testimony of the officer it had sent to the hospital to investigate, confirmed by defendant Gant, as already herein noted, and, of course, that officer’s testimony that a doctor there had said that Lofton possi bly could appear in court was hearsay and not properly to be considered.
In view of all the circumstances attending Lofton’s absence and the occurrences in court on the morning in question, and the fact that no additional testimony was taken concerning the criminal charge and no further proceedings were had to which Lofton’s presence could have been vital or important, we conclude that he must be deemed to have waived his right to presence at that time.
Defendants cite People v. Stuart, 274 Mich 246, and People v. Huffman, 315 Mich 134, in support of their contention that the court’s verdict was rendered erroneously. Stuart was charged with embezzlement and with larceny by conversion. This Court said that the essential elements of these 2 statutory offenses were different, that different maximum penalties were prescribed by statute, and that a determination of “guilty as charged” would leave defendant uninformed as to the offense of which he was convicted. Huffman was charged with breaking and entering a store building in the nighttime with intent to commit larceny therein, and with larceny. The jury returned a verdict of “guilty as charged.” The maximum penalty for the first offense was 15 years and for the second 4 years. Sentence imposed was 5 to 15 years. It could not be known of which of the 2 offenses defendant had been convicted. The elements of the 2 offenses there involved differed. Hence, the reversal in this Court.
The court here found defendants “guilty of conspiracy to violate the State gaming law.” Defendants say there is no such crime. That terminology and offense are well known, however, in cases in which convictions thereof have been affirmed in this Court. People v. Taylor, 341 Mich 570; People v. Simms, 322 Mich 362; People v. Bommarito, 309 Mich 139.
As the people well state in their brief, this is not a case, such as Stuart or Huffman, in which 2 separate and distinct offenses are charged. Rather, a single conspiracy to violate the antigambling laws', is charged, detailing, in 3 separate counts, 3 of the “operational ingredients” of that 1 conspiracy. In People v. Chambers, 279 Mich 73, defendants were charged with conspiracy to steal, to receive and to dispose of stolen goods. The information was held not bad for duplicity inasmuch as but 1 conspiracy was charged with a multiplicity of criminal activities as its objects. So it is here. Defendants were charged with a conspiracy to violate the gambling laws and, in furtherance thereof, to gamble, keep a place for gambling, and possess gambling material.
Affirmed.
Caer, Kelly, Smith, Black, Edwards, Kavanagh, and Souris, JJ., concurred. | [
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] |
Kavanagh, J.
This is a garnishment action, plaintiff having recovered a judgment against defendants Garold W. Fetterolf and Eleanor Lashway in the amount of $7,988.06.
Eleanor Lashway, sister of Garold W. Fetterolf, owned a 1948 Oldsmobile. She was leaving Midland to live and work in Kalamazoo. Her brother, Garold W. Fetterolf, was mechanically inclined and worked for a gasoline station. Her parents, with whom she was living in Midland, had no place to keep the car. She had no place to keep it in Kalamazoo. She left the car with her brother, asking him to keep it up for her and more or less take care of it for her, giving her brother permission to use her car if need be, but not to use as a second car. The brother owned another car which was in good condition and which he drove daily to and from his work. Occasionally he drove his sister’s car in and around Midland. A few times he drove it to work, but ordinarily used his own car, which was a much newer model. On the day of the accident, June 27, 1957, he was driving his sister’s car.
After obtaining the judgment in the lower court, plaintiff garnisheed State Farm Mutual Automobile Insurance Company. The garnishment action was predicated upon a claim that State Farm had a valid policy of insurance in effect on the car owned by Garold W. Fetterolf and that coverage was extended to the car owned by his sister and driven by him at the time of the accident by virtue of what is commonly referred to as a “drive other car” provision in the policy.
State Farm defended on the ground that paragraph 4 of the insuring agreement exempts a car furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse. Paragraph 4 referred to reads in part as follows :
“(c) Insuring agreement 4 does not apply:
“(1) To any automobile owned by, registered in the name of, hired as part of a frequent use of hired automobiles by, or furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse(Emphasis supplied.)
The trial court found the vehicle was not furnished for regular use within the meaning of paragraph 4 (c)(1). State Farm claims the undisputed testimony shows the contrary to be true.
Judgment was entered by the trial court against State Farm Mutual Automobile Insurance Company for the amount of plaintiff’s judgment together with interest and costs of the suit, making a total of $8,478.06.
State Farm appeals presenting 2 questions:
(1) Is the policy of insurance ambiguous as to paragraph 4(c) as found by the trial court?
(2) Did the evidence given in the garnishment proceedings support the trial court’s finding that the automobile was furnished the principal defendant Fetterolf “for occasional use” only?
The lower court did not hold the policy of insurance ambiguous, but indicated that if there was a question of ambiguity it must be construed most strongly against the insurance company, the policy having been drafted by the insurance company. We find no error in this regard.
We conclude there was evidence to support the trial court’s finding that the automobile was furnished the principal defendant Fetterolf “for occasional use” only. We do not in a law case tried without a jury reverse unless the evidence clearly preponderates against the findings of fact of the trial court. Houghton v. Roberts, 357 Mich 223. We cannot here so conclude.
Affirmed. Costs to appellee.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Euwards, and Souris, JJ., concurred.
“Use of other automobiles. If the named insured * * * owns an automobile covered by this policy * * * such insurance as is afforded by this policy * * * with respect to said automobile applies to any other automobile.” | [
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Souris, J.
This is an appeal from a Wayne circuit court decree reforming a lease between plaintiff Star Lanes Corporation, lessee, and defendant Satfield Company, lessor, on grounds of constructive fraud. The reformed lease would reduce the yearly rental on a bowling alley from $40,000 to $32,400. The defendant lessor appeals, claiming that the record discloses no equitable grounds for this reformation.
Essentially, this appeal concerns the plan of 4 men to pool their resources in order to build and operate a bowling alley in a suburb of Detroit. The 4 included a lawyer, a builder, a bowling consultant, and a clothing store operator with considerable sales ability.
To accomplish their mutual plan, 2 corporations were formed. The lawyer and the builder formed the first one, July 7, 1956, to buy, build, and own the bowling alley. To do so they took in others who were furnishing part of the needed money. They called it the Satfield Company.
The shareholders of Satfield are Lester Satovsky, the builder, and Margaret Satovsky, each of whom own 12-1/2% of the stock in their own name. The remaining 75% is held by Abraham Satovsky, the lawyer, as trustee for various persons.
All 4 would-be entrepreneurs then formed the prospective operating company January 16, 1957, which they called Star Lanes, Inc. This time the clothier and the bowling consultant brought in an associate.
The shareholders of Star Lanes are Lester and Abraham Satovsky, Harry Thomas (the clothier), Henry Nosakowsld (the bowling consultant), and Lewis Sulkin (associate of the last two). The Satovskys, Thomas, and Nosakowsld are the officers and directors of Star Lanes.
On February 27, 1957, the 2 corporations then negotiated and signed a lease on a building which Satfield undertook to build and Star Lanes to operate. The lease was for 10 years, with a yearly rental of $40,000. The building which Satfield was to build and Star Lanes was to operate was described thus:
“One-story bowling alley building approximately 200 ft x 162 ft on land approximately 500 ft x 250 ft containing space accommodations for 32 alleys, located at 28435 Northwestern highway, Southfield township, Michigan, landlord to be sole judge as to the erection of said building except that it shall comply with the building department requirements of Southfield township.”
Satfield built the bowling alley; Star Lanes went into possession; and on September 1, 1957, bowling commenced. Difficulties with the building and with Star Lanes’ finances ensued, and by 1959 Star Lanes was behind in its monthly payments. Satfield began proceedings before an Oakland county circuit court commissioner to regain possession. Star Lanes then filed a bill of complaint in equity in Wayne county alleging fraud and seeking to restrain Satfield’s ejectment suit and to reform the lease. The friends had, as the circuit judge put it, “lost their sense of togetherness.”
At trial 2 extraneous matters were spread extensively on the record. The first concerned the failure of the entrepreneurs to secure a liquor license for the bowling alley restaurant. It is apparent this failure adversely affected Star Lanes’ profits. The second pertained to a variety of complaints about the building supplied by Satfield. Since neither topic is referred to in any stated appellate question, we will not detail the disputed and undisputed testimony which relates to these issues. Michigan Court Rule No 67, § 1 (1945).
The essential legal dispute hinges upon Star Lanes’ contention that the $40,000 yearly rental set by the lease was agreed to as a 12-1/2% return on an investment in the bowling alley of $320,000 on the part of Satfield and that, as furnished, the bowling alley did not represent nearly that sum.
It is undisputed that no such agreement was set out in the written lease. But plaintiffs-appellees contend that the individual defendants, as members of the board of directors of Star Lanes, had a fiduciary relationship which required them to disclose the relevant facts on this subject to Star Lanes, Inc., and that they breached their duty by failing to do so.
The facts upon which plaintiffs seek to sustain allegations of actual fraud are none too clear. They involve a controversy over rental which occurred just before signing of the lease. Plaintiffs contend that they refused to sign the lease at a $40,000 figure, arguing instead that only $32,000 was justified until finally convinced by Lester Satovsky that $40,000 was justified by building costs. In this regard, they contend that Satovsky represented that Satfield’s building costs were $320,000 without any profit to it, that they believed this, and signed the lease because of that representation.
That such estimated cost was not at all exorbitant was established by testimony offered by defendants that one general contractor submitted a bid to construct the building for $310,000, not including the cost of land, and that another general contractor submitted a bid of $356,000, likewise not including the cost of land. The land actually purchased by Satfield for the bowling alley cost it about $75,000.
The record discloses that the original understanding between the parties was that the bowling alley would be constructed, at least in part, with outside funds. Efforts were made to procure a mortgage from banks, insurance companies, mortgage companies, and others and some effort was made to induce other investors into the deal, all without success. Evidently, Satovsky ultimately determined to finance the bowling alley himself, through Satfield, because he proceeded without outside financing to take the bids on the building described above. When the bids were received, he concluded that they were too high and determined to act as general contractor for Satfield himself. Had the actual cash costs equalled $320,000, there would be no basis for the plaintiffs’ present complaints and the rental provided for in the lease presumably would be satisfactory to all parties. Actual land and construction costs were substantially less, however, and this suit is, fundamentally, a contest between the parties to determine who is to benefit from the savings.
Satfield and the individual defendants rely upon a strict, literal reading of the lease and contend that any savings realized inure to Satfield’s benefit. Plaintiffs, on the other hand, reply that the agreement contemplated payment by Star Lanes of $40,000 annual rental for a $320,000 bowling alley; that the rental was computed on the basis of a 12-1/2% return to Satfield; and that any reduction in Satfield’s investment should inure to Star Lane’s benefit by a corresponding reduction in its rental obligation because it would be unconscionable to permit defendants to thus profit at the expense of Star Lanes, Satovsky owing Star Lanes a high standard of fairness as its president and a director.
Interrogatories which were entered into the record of the hearing established that the actual out-of-pocket cost of building construction and land acquisition was $249,474.37, which sum includes the cost of some land not included in the lease. The builder testified that his skill enabled him to hold the actual costs so far below his original estimate. He testified that savings resulted from “shopping around,” paying cash, doing some of the work himself, and even on occasion representing that materials he sought to purchase were to be used in the construction of a charitable institution. He testified that he felt under no obligation to inform the plaintiffs of the costs he was actually incurring.
He also contended that over and above cash outlay, he was entitled to have credited to his investment 10% ($24,947) for supervision, another 10% for overhead, another 10% for profit, and another 10% for finance charges — or a total investment of $349,-
262.37. It is conceded that none of these percentages has actually been paid.
The circuit judge held:
“Considering the relationship of the parties as outlined hereinbefore, and the fiduciary responsibilities placed upon corporate officers and directors, it is my holding that Lester Savotsky had an obligation to make a full disclosure to plaintiffs at the time the lease was executed and if he did not have full knowledge at that time, had an obligation thereafter when he acquired full knowledge to disclose to plaintiffs what they were being charged and how much profit he was expecting to realize from the transaction. To allow Lester Satovsky to not only make a profit but to make charges also for financing which indeed was not established upon trial, and for supervision and overhead as well, when Nosakowski and Thomas had made substantial contributions of talent and effort worth dollars, for which they were not compensated in dollars, would be inequitable and unconscionable. We are not surprised that the 3 friends and associates lost their sense of togetherness.
“As to the relief to be afforded, we believe that plaintiffs are entitled to reformation of the lease on the basis of constructive fraud. Although there is some question whether or not all of the real estate acquired by Satfield Corporation has been put to the use of the operating company, I shall allow the whole of the several costs listed in defendants’ answer to plaintiffs’ interrogatories, totaling $249,-474.37. I shall allow $10,000 for supervision of the project, and disallow the claimed charges for over- head, profit and finance charges; or will allow costs of $259,474.37.
“I hold that 12-1/2% annual rental is a fair relationship between cost of construction and rent. Accordingly, the lease may be reformed to show an annual rental of $32,400 per annum, or $2,700 a month.”
If we were required to decide this appeal upon grounds of actual fraud, we would reverse. We cannot find in this record that plaintiffs bore the burden of proof in establishing that defendants made material misrepresentations which induced the signing of this lease. And, indeed, the circuit judge made no finding of actual fraud. His opinion indicates that the reformation granted rests upon his finding that the individual defendants had a fiduciary duty to plaintiff Star Lanes, Inc., to disclose construction costs when they were ascertained, and presumably to adjust rental in accordance therewith.
For authority, the circuit judge relied upon very familiar case law:
“The rule is thoroughly embedded in the general jurisprudence of both America and England that the status of directors is such that they occupy a fiduciary relation toward the corporation and its stockholders, and are treated by courts of equity as trustees. They are regarded as agents entrusted with the management of the corporation, for the benefit of the stockholders collectively, and as occupying a fiduciary relation in the sense that the relation is one of trust; and are held to the utmost good faith in their dealings with the corporation. They must manage the affairs of the corporation solely in the interest of the corporation.” 2 Thompson, Corporations (3d ed), § 1320, cited in L. A. Young Spring & Wire Corp. v. Falls, 307 Mich 69, 101.
The issue, as we see it, involves consideration of Satovsky’s conduct in the light of the statutory standard of fairness imposed by section 13, snbd (5), of the general corporation law whenever 2 corporations having common directors enter into contractual relations. That section provides:
“5. No contract of any corporation made with any director of such corporation or with a partnership or other group or association of which any such director shall be a member or with any other corporation of which such director may be a member or director and no contract between corporations having common directors shall be invalid because of such respective facts alone. When the validity of any such contract is questioned, the burden of proving the fairness to the contracting parties of any such contract shall be upon such director, partnership, other group or association, or corporation who shall be asserting the validity of such contract.”
Thus, the defendants had the burden of proving the essential fairness of the lease. The circuit judge, quite obviously, concluded it was unfair to plaintiffs, and we concur.
As the circuit judge observed, we entrust a,corporation’s directors with the management of ' its affairs and impose upon them fiduciary duties requiring the utmost good faith whenever they deal with the corporation they serve. When a director buys from or sells to the corporation, his personal interests must be subordinated to the interests of the corporation, its stockholders, officers and employees, and its creditors. Our legislature has recognized the possible conflict between personal and corporate interests, but in recognition also of the occasional necessity for dealings between a director and his corporation or between 2 corporations with common directors, it has established a standard of fairness and imposed the burden of proving fair ness upon the director or the corporation whose actions are challenged.
Not infrequently, particularly when large publicly owned corporations are involved, a director may with reasonable safety deal with his corporation by so divorcing himself from the corporate action in connection with the transaction, leaving disinterested directors in complete control of the corporation’s actions, that it may be said in truth the parties dealt at arm’s length. The statutory requirement of fairness to the corporation remains the same, but the burden of proving fairness in such circumstances is substantially lessened.
In the case at bar, however, 2 closely held corporations with common directors and officers were dealing with one another. That the parties did not deal with one another strictly at arm’s length is evident not only from the fact that Satovsky was an officer and a director of both corporate parties, but also from the fact that the lease itself contains rather unusual provisions not normally expected to be found in leases negotiated between parties completely independent. The most striking provision is the one quoted at the beginning of this opinion by which it is provided that Satfield was “to be sole judge as to the erection of said building.” There were no plans or specifications for the building attached to the lease nor was there anything more from which it could be determined what was being leased except a statement that the building be approximately 200 by 162 feet on land approximately 500 by 250 feet, containing space for 32 bowling alleys. In other words, it is perfectly evident Star Lanes placed an immense reliance upon its president’s (Satovsky’s) good faith and interest in its well being by exercising his sole judgment to protect it from paying for less than that for which it bargained. The following testimony of Harry Thomas on direct examination supports this observation:
“Q. After the agreement was brought to my office, and I returned it to you in an opinion, what did you do?
“A. ¥e picked up the agreement and we had a letter with it. We went back to a meeting at Abe Satovsky’s office. Henry Nosakowski and myself, and Lester was there and Abe and we pointed out the fact, that we were told that $40,000 was too much money for that type of building, and in a letter they could put up a shanty or shack.
“Q. Was there anything said by Mr. Lester Satovsky?
“A. Well, he just kept repeating how much money it was going to cost him, I can’t get it out of my mind, $320,000 or more without any profit and he has to have $40,000.
“Q. Ho you remember my coming up to Abe Satovsky’s office for a final meeting as far as this agreement is concerned?
“A. Yes. At the final meeting all of us were there ■ — -Abe and Lester Satovsky, Henry Nosakowski, Lew Daniels and myself.
“Q. What happened at that meeting?
“A. Well, the first thing off the bat that came was the rental; and the minute Mr. Daniels pointed out about the $40,000, immediately Lester got up, stormed out, and he says, ‘That’s it’ and walked out of the room and there we were. * * *
“Q. Had you ever said anything to Lester Satovsky prior to that meeting about obtaining leagues?
“A. Yes. He at all times was aware I was constantly working, I had practically all of the leagues signed up. Here we hadn’t dug a hole in the ground, and had the leagues signed up.
“Q. He stormed out of the office, is that right?
“A. Yes.
“Q. Did you go out to him?
“A. Well, I was in a quandary, I had all of these leagues, and signed the contracts personally, I don’t know if I was liable or not, and I followed him out and explained to him and tried to pacify him and cooled bim down. He cooled down a little bit and I came back and I said, Well, be is onr partner, be said be paid $320,000 or more, we have to have confidence, we trust Mm, we are in business together, let’s give him the $40,000.’ And we signed the deal.
“Q. Did he then proceed to erect a building?
“A. Yes.
“Q. Did you ever see the plans? Did he ever show you the plans?
“A. I never saw any plans.”
We have observed that the “sole judge” contractual provision evidences an immense reliance placed upon Satovsky by Star Lanes. It seems certain that Star Lanes would not have acceded to that provision had Satovsky not been its president and a director. Under these circumstances, defendants had the burden of proving they delivered a building in accordance with the expectation of all concerned at the time the lease was executed. It is our conclusion that the “sole judge” contractual provision and the statute, considered together, involving as they do fiduciary duties of fairness, fully justify determination of that disputed issue by reference to events occurring subsequent to execution of the lease involved in this case.
From the record before us, we conclude that the individuals who executed the lease determined the rental on the basis that $40,000 per year would result in a fair return to Satfield for an investment of $320,000 represented by its costs for land and construction of the bowling alley. Satovsky testified that he never disclosed to Thomas or Nosakowski the savings he was realizing during the course of construction, savings which in this context were equivalent to secret profits to him through his interest in Satfield. To permit such unexpected profits on the transaction to inure to Satfield, and thus to Satovsky’s benefit, rather than to the benefit of Star Lanes by a pro rata reduction in its rental obligation, would be unconscionable.
It does not lie well with Satovsky to say that at the time the lease was executed he did not yet know how much more advantageous to Satfield the bargain would be than the. parties contemplated. Disclosure could have been made subsequently and the rental adjusted accordingly. Nor is it any answer to say that Satfield’s reduced costs resulted from Satovsky’s business acumen, for the law requires a director to use such acumen for his corporation’s benefit rather than his own when he undertakes to deal with his corporation.
On all the facts, it appears that the reformed lease roaches the result which all parties contemplated as being fair prior to its execution.
Affirmed. Costs to plaintiffs.
Dethmers, C. J., and Carr, Kelly, Smith, Black, Edwards, and Kavanagh, JJ., concurred.
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Souris, J.
Section 7 of part 1 of the workmen’s compensation act, CLS 1956, § 411.7 (Stat Ann 1960 Rev § 17.147), provides in part as follows:
“Sec. 7. The term ‘employee’ as used in this act shall be construed to mean:
“1. Every person in the service of the State, or of any county, city, township, incorporated village or school district therein, under any appointment, or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city, township, incorporated village or school district therein, elected at the polls.”
The parties to this appeal would have us determine whether or not a petit juror is a county employee within the meaning of section 7 so that if injured in the course of his service as such he would he entitled to receive disability benefits under the act. Plaintiff fell and broke her hip on the steps just inside the outer doors of the Saginaw county courthouse as she was reporting for jury duty on the first day of the September term of court in 1958. The appeal board of the workmen’s compensation department affirmed a referee’s award of compensation benefits to plaintiff for her disability on the ground that she was an employee of the county within the meaning of section 7, above quoted, because she was an appointee for hire.
Defendants’ counsel cite only 3 court decisions from other jurisdictions in which the question here sought to be reviewed has been considered. Our independent research failed to disclose any others. The first case cited to us is Industrial Commission of Ohio v. Rogers, 122 Ohio St 134 (171 NE 35, 70 ALR 1244), in which the supreme court of Ohio in 1930 ruled that a petit juror was an employee of the county within the meaning of that State’s workmen’s compensation law. The second case was decided 6 years later by the supreme court of Colorado and resulted in a contrary ruliiig. Board of County Commissioners of the County of Eagle v. Evans, 99 Colo 83 (60 P2d 225). The third case merely cited and, without analysis, followed the second. Seward v. County of Bernalillo, 61 NM 52 (294 P2d 625). The claimants for compensation in all 3 of those cases had been selected to serve, and were actually serving, as jurors when disabled. Mrs. Jochen, on the other hand, was en route to the courtrooms of the circuit judges pursuant to the statutory sheriff’s notice that her name had been drawn for service as a petit juror at the September term of court. Whether or not she was exempt from such service or otherwise subject to being excused therefrom had not been determined at the time of her injury, nor could it be determined until she presented herself to the court for determination of her qualification to serve. In short, Mrs. Jochen was injured before she was accepted as qualified for service as a petit juror and, consequently, it cannot be said that at the time of her injury she was a “person in the service of the * * * county” within the meaning of section 7 of part 1 of the act.
Although appellants submitted to us for determination in this appeal the broader question involved in the Ohio and Colorado cases cited above, we cannot decide, within the limitations of the facts of this case, whether or not a petit juror injured while serving as such is entitled to the benefits of the workmen’s compensation act.
Reversed. No costs.
Smith and Edwards, JJ., concurred with Souris, J.
CLS 1956, § 602.136 (Stat Ann 1959 Cum Supp § 27.261).
CL 1948, § 602.138 (Stat Ann 1959 Cum Supp § 27.263).
CL 1948, § 602.139 (Stat Ann 1959 Cum Supp § 27.264). | [
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Black, J.
The presented question duplicates that which was considered in Hardware Dealers Mutual Insurance Co. v. R. H. Hidey, Inc., 349 Mich 490. It is whether 2 parties, separately possessed of rights of action for personal injuries and consequential damages against a common wrongdoer, may unite in suit by a single declaration and thus, by the mere act and fact of agreed confederation, compel the wrongdoer to answer and defend the 2 causes as one. A secondary question is whether the corporate plaintiff, as partial assignee under the statute (CL 1948, §612.2 [Stat Ann §27.654]), may join in the suit for the- purpose of recovering that which was assigned to it.
The declaration in this case pleads the separate rights of separate plaintiffs, all represented by the same counsel. It alleges that the same acts of negligence on the part of defendant caused an automotive collision resulting in personal injuries and consequential damages separately suffered by the 2' individual plaintiffs and property damage to their jointly-owned car; that the property damage claim (less $50) passed to the corporate plaintiff by assignment on account of which it joins in the suit;that plaintiff Charles A. Robinson on account of such alleged negligence is entitled to an award of damages against the defendant in the sum of $10,000, and that plaintiff Myrtle Robinson on same account is entitled to an award of damages against him in the sum of $14,000. The corporate plaintiff’s claim amounts to $864.
Defendant moved to dismiss, assigning misjoinder of parties. Judge Brown granted the motion, concluding as follows:
“After hearing arguments of counsel and consideration of the briefs, it is the opinion of this court that defendant’s contentions are correct.
“Therefore, it is ordered that plaintiff Charles A. Robinson and Myrtle Robinson shall within 20 days, elect which one shall drop his or her cause of action and withdraw as party plaintiff; that within the same 20 days the State Farm Mutual Automobile Insurance Company shall drop the partial cause of action assigned to it by whichever one of the Robin-sons shall drop out of the case, and that upon the failure so to do on the part of anyone of the plaintiffs herein, the declaration in this cause is to be dismissed, with costs awarded to defendant.”
This I construe as requiring that the Robinsons elect which personal injury cause shall survive defendant’s motion and as authorizing recovery by the motion-surviving plaintiff of his general damages in addition to his share of the deductible amount paid toward collision repair; provided, of course, that such plaintiff shall otherwise prove right of recovery of such damages.
As for the corporate plaintiff the declaration shows that it received, prior to filing of this multilateral declaration, a valid assignment from the Robinsons of the claim it would recover as partial assignee. It may recover as such partial assignee of the Robinsons, in company with the motion-surviving plaintiff, provided its right of recovery is otherwise established at the trial. The mentioned statute so provides.
For reasons pertaining to misjoinder of law causes shown in the prevailing opinions of Hidey, supra, I would affirm dismissal on above terms of choice, with right of the corporate plaintiff to remain in the cause as partial assignee. Further, the statute considered, I would extend the time for election by Mr. and Mrs. Robinson to the 30th day following release of our opinions in this case. Defendant should recover costs of this appeal.
Dethmers, C. J., and Carr, Kelly, Smith, Kavanagh, and Souris, JJ., concurred with Black, J.
“No action at law or in equity shall be defeated by the nonjoinder ■or misjoinder of parties. New parties may be added and parties misjoined may be dropped, by order of the court, at any stage of the cause, as the ends of justice may require.” CL 1948, § 612.13 (Stat Ann § 27.665). | [
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] |
Kavanagh, J.
On June 24, 1959, a decree of divorce was granted defendant-appellee wife on her cross bill of complaint. The decree contained a provision under child support requiring the plaintiff-appellant husband to pay the sum of $35 per week per child as support until the further order of the-court.
A motion was made by appellee on July 27, I960,, to amend the decree to award her such additional sums as shall be necessary and proper for the support and maintenance of the minor children. The-wife alleged the amount awarded in the decree was not adequate for the support and maintenance of' the children.
The friend of the court recommended appellant be ordered to pay $50 per week per child for their support and maintenance. Objections were made to-the recommendation, and testimony was taken by the trial court.
Appellee testified as to the alleged expenses of supporting the children, which she claimed had risen because of their age and the normal increase in the cost of living from the time of entry of the divorce decree. Testimony was offered showing that appellant’s gross income was as follows:
1958 — $24,051.57
1959 — 22,810.87.
At the conclusion of the hearing the trial court stated as follows:
“I have studied the schedule of support payments, which we do not always follow, but I see with 2 ■children to support is about 25% of the earnings or a little more, hut just about that. I have considered the testimony of the mother and studied over the petition. The income of the father is almost exactly the same as my own. I have been blessed with 3 daughters instead of 2, but I have studied over the ■expenses and I would say that they are, if anything, on the low side. I will grant the petition and follow the recommendation of the friend of the court and ■enter the order of $50 per week per child without prejudice, of course. I realize with a man of his earnings that maybe next year they will not be as good and I will have to permit petitions, I guess. If his earnings go down he will have to be able to petition. These expenses are based upon a year of actual expenditures and I am satisfied with them.”
The order amending the decree was entered on October 27, 1960, requiring appellant to pay the sum of $50 per week per child as support money until the further order of the court. He appeals, arguing that no change of circumstances from the time of the decree has been shown in this case, and, therefore, no modification of the decree for support ■of the minor children should be entered.
The original child support provision in the decree was arrived at by negotiation between the parties. The .amendment to the decree was based upon approximately one year’s record of expenditures. We think sufficient change existed to justify the amendment to the decree, and we note with approval the trial court did not rely solely upon the schedule of support payments recommended by the friend of the ■court, but in addition considered the testimony of "the mother, the income of the father, and the list of the expenses which the court indicated he had studied over and believed, if anything, to be on the low side.
A sufficient change was shown to justify the order amending the decree. The order of the lower court is affirmed. Defendant-appellee has not filed a brief in the matter, therefore, no costs are allowed.
Dethmers, C.J., and Carr, Kelly, Smith, Black, Edwards, and Souris, JJ., concurred. | [
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GLEICHER, J.
Plaintiff, Jeanne Harrison, sustained a quarter-sized forearm burn during thyroid surgery performed by defendant Dr. -William Potthoff at Munson Medical Center, owned by defendant Munson Healthcare, Inc. Postoperatively, Harrison met with a Munson representative to learn the cause of her burn. The representative told her that an electrocautery device called a “Bovie” had created the wound but offered no additional details. Dissatisfied with that answer and unhappy about the bum’s aftereffects, Harrison filed suit.
Munson insisted throughout discovery that no one in the operating room remembered the incident, that the burn’s mechanism “may not be ascertainable and may not ever be known,” and that the witnesses lacked “any way of knowing precisely when or how the burn occurred.” During their depositions, the operating room personnel avowed that they always returned the Bovie to its protective holster when it was not in active use. Munson contended that given this habit and practice and the absence of any memories of the event, only an accidental dislodgement of the Bovie from its holster could explain the burn.
At the trial, Munson’s operating room manager revealed that it would have been her practice to interview “every single staff member in [the operating] room” following an untoward event such as Harrison’s burn. Subsequent inquiry revealed that within 90 minutes of the burn, a nurse penned an “incident report” stating: “During procedure, bovie was laid on drape, in a fold. Dr. Potthoff was leaning against the patient where the bovie was.” The operating room manager’s investigation yielded a conclusion that the Bovie’s holster “was on field for this case, however bovie was not placed in it.” The trial court perceived that this information directly contradicted the defense’s contentions that no one knew how the event had occurred and that the Bovie had inadvertently fallen on the patient and declared a mistrial.
At an ensuing evidentiary hearing the trial court explored whether the incident report was subject to the statutory peer-review privilege and whether Munson and its counsel, Thomas R. Hall, had diminished the integrity of the proceeding by pursuing a defense at odds with the facts known to Munson. Ultimately, the trial court found the incident report privileged from disclosure but nevertheless imposed a joint and several sanction of $53,958.69 on Munson and Hall. We affirm the sanction award but remand for an individual assessment of the sanctions owed.
I. BACKGROUND FACTS AND PROCEEDINGS
A. PRETRIAL PROCEEDINGS
On April 24, 2007, Dr. Potthoff surgically removed Jeanne Harrison’s cancerous thyroid gland. Richard Burgett, a certified surgical assistant employed by Mun-son, assisted Dr. Potthoff. The operative note states that when the operation was complete and the drapes removed, “[t]here was found to be a burn wound on the left forearm, evidently from the Bovie.” The note continued: “There was a burn on the drape during the case that was noticed and this was sterilely covered with sterile towel and the Bovie changed. At this point in time it became evident that the burn carried into the skin on the patient.” No other notations in Harrison’s medical record shed light on the burn’s cause.
Soon after she recovered from the thyroid operation, Harrison sought more information from Munson about the genesis of her injury. On June 5, 2007, Harrison received a letter signed by Barbara A. Peterson, Munson’s operating room manager. The letter stated, in relevant part:
This case has been confidentially reviewed and the following initiatives have been reinforced: The mandatory and active use of cautery protective devices anytime cautery is used. In addition, we have mandated the use of an alarm that is audible every time the device is activated. These precautions will decrease the likeihood of a burn event reoccuring. We will continue to measure these practices to ensure 100% compliance.
Harrison then met with Bonnie Schreiber, Munson’s risk manager, to further discuss the burn. Still dissatisfied, Harrison retained counsel.
In November 2008, attorney Thomas C. Miller filed a complaint on Harrison’s behalf in the Grand Traverse Circuit Court. The complaint sounded in negligence, rather than in medical malpractice, and named as defendants Munson Healthcare, Inc., and Dr. Potthoff. Dr. Potthoff was not employed by Munson, and the parties agreed that he did not act as Munson’s agent at the time of the surgery. Nevertheless, Munson and Dr. Potthoff agreed to a joint defense handled by Hall. Hall sought summary disposition of Harrison’s negligence claim, averring that it sounded in malpractice. Judge Philip E. Rodgers, Jr., granted the motion.
Harrison proceeded to comply with the statutory requirements governing medical malpractice actions by mailing Munson and Dr. Potthoff a notice of intent to sue pursuant to MCL 600.2912b. During the 182-day “waiting time” required by the statute, Hall provided Miller the names of the 11 people who had been in the operating room during Harrison’s surgery, identifying Burgett as the surgical assistant. Miller then filed a lawsuit against Burgett and Munson, again alleging negligence rather than malpractice. Burgett, represented by Hall, responded by filing an affidavit of noninvolvement pursuant to MCL 600.2912c, averring that he did not “use, hold, holster, or otherwise handle the Bovie device” during the surgery. The affidavit further provided:
5. Prior to the April 24, 2007 surgery, I have had occasion to assist Dr. Potthoff in numerous surgeries, estimated at several hundred. This would likewise include literally dozens of surgeries involving removal of the thyroid gland and/or surrounding tissue.
[6]. Throughout those occasions upon which I have assisted Dr. Potthoff during surgery involving thyroid removal, it has never been my habit and/or custom to use, hold, holster, or otherwise handle the electrocautery (Bovie) device, at any time before, during or after surgery.
Judge Rodgers granted Burgett and Munson summary disposition, ruling that the case sounded in medical malpractice rather than simple negligence.
Harrison then filed this medical malpractice action, which also included a res ipsa loquitur claim. With her complaint, Harrison submitted affidavits of merit signed by a general surgeon and a nurse. The parties embarked on a lengthy and contentious course of discovery focused on establishing how the Bovie had ended up on the drape covering Harrison’s arm and who — Dr. Potthoff or a Munson employee — was responsible for its presence there.
Harrison utilized interrogatories and requests for admission, supplemented with depositions, to develop her proofs. Early in the process, Harrison sought an admission that the “individuals who were responsible for the electrocautery device” were Munson employees acting in the course of their employment. If Munson denied this request for admission, Harrison demanded that Munson “please specifically identify the individual or individuals by name and position, who were responsible for the device burning Mrs. Harrison’s arm.” Munson responded:
Defendant objects to this request, in that it is vague, over broad and calls for a legal conclusion. Moreover, to the extent that this request refers in any manner to Dr. Potthoff, it has never been established that he was acting as an agent of Munson Healthcare (either real or ostensible) at the time of these events. In further answer, discovery is in its early stages and Plaintiffs counsel will be afforded the right to depose all individuals present in the operative suite at the time of surgery, who may have knowledge concerning the means by which the injury occurred or may have occurred. Finally, Defendant relies upon the medical records from Mrs. Harrison’s April 24, 2007 outpatient surgery at Munson.
In response to Harrison’s inquiries regarding responsibility for the Bovie at the time of the burn, defendants repeatedly directed Harrison to the medical record and denied that anyone in the operating room possessed any memory of the circumstances surrounding the burn. According to an affidavit filed early in the litigation by circulating nurse Cinthia Gilliand, “the injuries allegedly sustained by Jeanne Harrison, in whole or in part, were caused by acts and occurrences outside the control of the surgical team[.]” Gilliand concomitantly averred that she possessed no memory of the surgery.
Based on the absence of any participant’s memory about the cause of the burn, Munson and Potthoff advanced an accident defense. They contended that because Dr. Potthoff and the operating personnel always reholstered the Bovie after using it, the Bovie’s cord likely became entangled in a suction line, which then pulled the Bovie from its holster. Defendants theorized that the unnoticed Bovie accidentally fired when someone leaned against it. In answer to one of Harrison’s interrogatories, Hall described the defense as follows:
Defendants submit that a more fair description and/or plausible explanation of “how the burn occurred” is as follows: At some unknown point during surgery, the Bovie device evidently became unholstered while Dr. Potthoff was moving in and about the patient and attending to her. This may in fact have resulted in the Bovie cord becoming tangled upon itself, or perhaps upon other equipment at the bedside and even upon the clothing of Dr. Potthoff. (This was explained, in part by Dr. Potthoff at deposition).
In any event, the Bovie apparently came to rest above the drape in the area of the patient’s left arm, unbeknownst to the surgeon (Dr. Potthoff) and the remaining staff. From there, it appears most likely that the Bovie was inadvertently activated by Dr. Potthoff, as he leaned in toward the patient.
At his deposition, Dr. Potthoff denied any memory of the circumstances surrounding the burn, but opined that by virtue of the regular habits and practices of the surgical team, “we did everything possible to avoid such an injury.” He insisted that because those in the operating room invariably reholstered the Bovie after each use, the burn qualified as accidental rather than a breach of the standard of care. Dr. Potthoff elaborated:
The problem with the Bovie is it’s attached to a cord which can get entangled, can get rubbed on, can get moved as people move around the table, as instruments get moved, as the suction, which is intimately connected to the Bovie in most cases, gets moved. The Bovie cord can get tangled up in all those things and get pulled out of the holster.[ ]
Miller deposed most of the operating room witnesses and learned nothing new until the last two participants gave their testimonies. David Scott Babcock, a surgical technologist, and Ann Tembruell, a student technologist working under Babcock, remembered Harrison’s surgery. Both recalled hearing an alarm signaling that the Bovie was in use and simultaneously observing Dr. Potthoff without the Bovie in his hand. Babcock recounted that everyone immediately looked for the Bovie. Within seconds, someone found it on the drape overlying Harrison’s arm. According to Babcock and Tembruell, Dr. Potthoff had activated the Bovie by leaning against it. Tembruell recalled stating aloud: “Dr. Potthoff, you’re leaning against the Bovie. The Bovie has fallen,” and that Dr. Potthoff “stepped back immediately.”
B. THE TRIAL
In his opening statement at the trial, Hall told the jury that Munson did not know how the burn happened and postulated that the likely mechanism was an “inadvertent unholstering of th[e] Bovie when the surgeon is in there doing his work.” Dr. Potthoff declared during his testimony that when he dictated the operative report “I did not know how it occurred ... I still don’t know how it occurred.” He admitted, however, that during his 30 years as a surgeon, this was the only “inadvertentD” Bovie burn he could recall. Similarly, none of the other operating room participants recalled any other Bovie burn incidents.
According to Dr. Potthoff, the standard of care required that he and the other operating room personnel place the Bovie in its holster after use “[absolutely every time.” Dr. Potthoff refused, however, to take full responsibility for holstering the Bovie; he testified that Burgett always handled the Bovie during surgeries and had lied in his affidavit of noninvolvement by claiming otherwise. Nevertheless, Dr. Potthoff stressed, he “absolutely” did not believe that Burgett was “in any way responsible” for Harrison’s burn.
Several other operating room witnesses testified that they had no memory of the surgery and denied having been interviewed by anyone about what had happened. Babcock and Tembruell testified consistently with their depositions, recounting the discovery of the Bovie after the alarm sounded. The parties presented nurse Gilli- and’s testimony by reading from a deposition taken 10 days earlier. In the following colloquy Gilliand addressed her memory of the surgery and her practice regarding chart notes:
Q. Now, have you ever been in a situation where you recall a specific incident were the Bovie burned a hole through the surgical drape? Has that ever happened in a procedure you’ve been involved in?
A. I’m told in this one, but I don’t remember.
Q. All right. But — and I understand that you don’t have a memory. That’s why I’m saying do you ever remember in any time in your career, the 11 or 12 years that you’ve been working as a circulating nurse, where you’ve been part of a procedure where the Bovie did burn a hole in the drape?
A No.
Q. If that had happened while you were in the operating room is that something you would’ve written in the nurse’s notes?
A. Yes.
Q. If after the sterile field was broken down following the closure, and it was determined at that point that Mrs. Harrison’s arm had been burned by the Bovie, would that also have been something you would have normally recorded in that box?
A. Usually, yes.
Q. And you have no memory of this happening in this case, true?
A. Correct.
Q. Has there ever been a procedure where you’ve been involved where the Bovie has inadvertently burned a portion of the patient’s body ?
[A]. No.
Q. And you’ve indicated that if something like that happened you would’ve made a note in the back, right-hand corner of the form, in the nurse’s notes section, right?
[A]. If that’s something that would’ve happened, it’s like the needle count being off, I would have documented it.
Q. Do you know Barbara Peterson?
[A]. She used to be the OR manager, yes.
Q. In the six weeks after this procedure, do you recall having been contacted by Ms. Peterson about what took place during this procedure?
A. No. I do not remember anything like that. [Emphasis added.]
Despite professing no memory of the surgery, Gilliand insisted that she had accurately attested in her affidavit “that the entire surgical team, including myself, took all necessary and proper measures to check and otherwise use the Bovie device.”
Harrison called Barbara Peterson, Munson’s operating room manager, to testify concerning the letter she had signed and sent to Harrison. Munson claimed that Peterson’s testimony was potentially privileged as peer review; accordingly, Judge Rodgers questioned Peterson outside the jury’s presence. During Judge Rodgers’s questioning, Peterson revealed that it would have been her practice “to talk to every single staff member in that room” before drafting the letter and expressed confidence that she did so. In response to the trial court’s question whether an incident report would have been prepared, Peterson was uncertain but stated that it would have been an appropriate action.
Noting the discrepancy between Peterson’s claim that she would have interviewed those present during the surgery and the participants’ denials that they had been interviewed, Judge Rodgers ordered Mun-son to produce for in camera review the risk manager’s file and any notes that Peterson created. The next day, Hall provided an incident report authored by nurse Gilliand, who had denied under oath any memory of the event or of participating in a postoperative discussion about it.
C. THE IN CAMERA. HEARING
The testimony in camera established that at 1:51 p.m. on the day of the surgery, Gilliand handwrote most of the first page of a multipage incident report. In a box labeled “WHAT happened?” Gilliand responded: “During procedure bovie was laid on drape, in a fold.” Gilliand’s note continued, “Dr. Potthoff was leaning against the [patient] where the bovie was.” The event occurred “around” 12:20 p.m.
At the bottom of the report’s second page, in a note dated 15 days later, Peterson handwrote: “Reviewed [at] Wednesday] inservice. Reviewed use of cautery safety devices. Use of these devices was made a ‘Red Rule’ resulting in disciplinary action if safety devices not used. Bovie holder was on field for this case, however bovie was not placed in it.” (Emphasis added.) A summary attached to the incident report concluded that “Contributing Factor #1” to the injury was: “Failure to follow procedure/policy.”
After reviewing the incident report in chambers, Judge Rodgers declared a mistrial. He ruled that an evidentiary hearing would be required to determine whether the incident report qualified as a peer-review-protected document and expressed that Munson had demonstrated “[a] shocking lack of candor” regarding the cause of Harrison’s burn. Judge Rodgers continued:
There is a concern the Court has to some degree of risk management claims, management has been dressed up as a peer review here. There are cases that have been provided to the Court by counsel for Munson that would suggest in some cases incident reports could be protected, that begs the question of whether you can have an incident report, know what occurred, not produce the report and then pretend like you don’t know what occurred. That suggests to me to be sophistry. It may be that your internal work product isn’t produced, but it doesn’t, I believe, absent authority to the contrary allow someone whose [sic] conducted an internal investigation, taken information from witnesses, to then say we don’t know. I just, I’m struggling with how that could possibly be true.
Quite frankly, as I’ve gone through this I’m concerned at this particular time with the lack of candor from Munson. And, I am feeling a degree of the frustruation that Ms. Harrison must have with regard to how this case is unfolding. And, also, some degree of empathy for Dr. Potthoff, who appears to be standing off to the side of this entire maelstrom without anybody involving him. I don’t see his fingerprints on this whatsoever, I want to be crystal clear about that.
This appears to be a mountain that has been made out of a mole hill.
Judge Rodgers then expressed concern about “ethical considerations” arising from the presentation of a defense inconsistent with the “peer review materials.” He queried: “If there is no specific memory about what occurred, can one present an analysis of what might have occurred that’s inconsistent with perhaps the peer review, can that even be done ethically [?]” Judge Rodgers concluded:
So, at this particular time it appears to me that there has been, at the very least, a gross impropriety in the discovery process here. The Court believes that is a cause to miss-try [sic] the case.
The Court believes an evidentiary hearing needs to be held with respect to these documents....
... Is this legitimate peer review, is this claims management dressed up as peer review. What can you know, and if you protect the documents, still not disclose. How can you defend a case, what are the ethical limitations with regard to what’s in the peer review documents. There is [sic] some very serious medical, legal, ethical issues encompassed in what is fortunately for Ms. Harrison a scar on her arm and not a loss of a limb or operation of a wrong eye.
D. THE EVIDENTIARY HEARING
Judge Rodgers introduced the evidentiary hearing by explaining that he intended “[t]o make a determination as to whether all, none, or part of the documents submitted to the Court are actually peer review documents.” He continued: “And then, at least from this Court’s point of view, perhaps most importantly, if in fact all or some of these documents are peer review, to discuss the ethical issues associated with presenting a defense which would appear to be inconsistent with those documents.” Before the hearing testimony commenced, the parties acknowledged that Munson had admitted liability for the burn “in open court.”
Paul Shirilla, Munson’s vice president of legal affairs and general counsel, described at length the peer-review process utilized at Munson and the relationship of the incident report to that process. According to Shirilla, oversight for the peer-review process emanates from the board of trustees, which appointed the quality committee to review information submitted by other review committees. The quality committee does not review individual incident reports, but rather receives “a collection of trends . . . that. .. emanate from these other committees” and reviews “data and knowledge related to the quality of care delivered at the hospital.” Incident reports, Shirilla claimed, are part of the peer-review process even though they are retained only in the risk-management office. Shirilla admitted, “[t]his is probably the first occurrence report that I’ve reviewed,” and further acknowledged, “I don’t believe a [peer review] committee reviewed this occurrence report.”
Bonnie Schreiber, director of Munson’s risk-management department, testified that she gave Hall a copy of the incident report several months before the trial. Schreiber admitted that when she and Hall composed answers to Harrison’s discovery requests and drafted the affidavits signed by Munson personnel, she was personally aware of the incident report’s contents. She further admitted that after speaking with Tembruell and learning of Tembruell’s recollection of the surgical events, she took no action to amend or supplement earlier discovery responses indicating that no one at Munson recalled the events surrounding the bum. Like Shirilla, Schreiber disclaimed any knowledge of a “peer review file” regarding the burn incident.
During an in camera session with Judge Rodgers, Schreiber insisted that despite Gilliand’s contemporaneous note that the Bovie “was laid on drape, in a fold,” no one knew who had last handled it. While conceding that “[e]very person at that table had a responsibility to keep that patient safe,” Schreiber expressed that what happened was an “accident” and maintained that the inadvertent-unholstering theory was not inconsistent with the incident report.
Judge Rodgers’s examination of Gilliand, however, cast some doubt on the accidental-unholstering theory:
The Court: So if it says the Bovie was laid on the drape, that’s because you saw the Bovie laid on the drape?
The Witness: To be honest with you, I don’t know that I actually saw it laid on the drape. That may have been just a poor way of stating that. It may have — that’s one of those things I try to be very articulate in my wording when it comes to things like this. And trying to get. .. my point across without showing blame at any one thing....
The Court: I’m not interested in blame.
The Witness: I understand.
The Court: Factually what happened.
The Witness: I understand that. But I’m saying that I’m not really sure that I can see it laid on the drape. I am quite aways from the field.
The Court: Let me ask you this question. If it hadn’t been laid on the drape, if it — it what — you had seen it becoming accidentally unholstered, would you have said Bovie accidentally unholstered?
The Witness: If I had seen that, yes. [Emphasis added.]
Peterson testified that she conducted one-on-one interviews with the people in the operating room before formulating her conclusion and recommendations. She expressed confidence that she had interviewed Gilliand and Babcock and told Judge Rodgers that nothing she had learned since the day she signed her report altered her conclusions.
One month after the evidentiary hearing, Judge Rodgers issued a lengthy written opinion, ruling that the incident report and related documents were privileged. Judge Rodgers further determined that Hall had violated Rule 3.1 and 3.3 of the Michigan Rules of Professional Conduct, by offering a defense that was inconsistent with known but undisclosed facts, and that Schreiber and Hall had violated MCR 2.114(D)(2), which requires that documents filed with the court be “well grounded in fact[.]” Based on these violations, Judge Rodgers ruled, sanctions would be assessed.
Judge Rodgers commenced his analysis by summarizing his initial impressions of the incident report:
First and most importantly, the incident report reached a factual conclusion as to how the Bovie had come to penetrate the drape. Second, the Defendants claimed a peer review privilege and it was evident that the issues associated with peer review could not be resolved during the course of the jury trial. Third, if the facts associated with the described incident report were provided to the Plaintiff, the jury, and the Court, the Court would not allow expert testimony based on habit and practice regarding how the Bovie may have become unholstered which theories were inconsistent with the factual findings of the contemporaneous internal investigation.
Judge Rodgers proceeded to review the evidence provided during the evidentiary hearing. He made the following pertinent factual findings:
When the Hospital was asked to explain how the Bovie came to burn a hole in the drape, the Hospital’s consistent response was “unknown” or “may not ever be known” and explanations were then based on habit and custom.... Two members of the surgical team recalled the Bovie alarm being activated, that it was not in the Defendant Physician’s hand, and that as he stepped away from the patient it was discovered between him and the Patient’s body.
No individual has a present memory of how the Bovie came to be on the drape, unholstered and in a position to burn the patient. Since the standard of care requires the Bovie to be holstered, it was critical in this case to know whether it was improperly placed on the drape out of its holster and not promptly reholstered by a member of the surgical team, or whether it became accidentally unholstered in a way that was within the standard of care.
On this point, the Defendant Hospital stated that the event was “sudden, accidental and unpreventable”----and “more than likely resulted from an inadvertent dislodging of the Bovie from its holster.” According to the Hospital, “As all Defendants have maintained throughout, what happened to this patient was entirely inadvertent, and could not reasonably have been detected and/or prevented before it occurred.” ...
The conclusion of the internal investigation was diametrically opposed to the Defendant Hospital’s statements. In fact, the Bovie had not become accidentally unholstered: “Bovie was laid on the drape,” and the “Bovie holder was on field for this case, however, Bovie was not placed in it.” .. . These facts were not charted. Whether or not laying the Bovie on the drape was determined by the Defendant Hospital to be a standard of care violation, a cause for discipline or grounds for the implementation of subsequent remedial measures are not facts sought by the Plaintiff nor would they be discoverable. Clearly, such internal conclusions drawn as part of the peer review process are protected from discovery for sound policy reasons.
Nevertheless, Judge Rodgers reasoned, the policy reasons are “not so broad as to allow the Defendant Hospital to ignore those facts and pretend they do not exist.” Judge Rodgers continued, “The finding that the Bovie was laid on the drape and not placed in the holster is grossly inconsistent with an argument that the Bovie was properly holstered and then accidentally unholstered.”
The facts noted by Gilliand and found by Peterson, Judge Rodgers elucidated, should have been recorded in Harrison’s medical record. But if defendants elected not to document those facts in the patient’s chart, Judge Rodgers drew upon MRPC 3.3(a)(1) and (3) to conclude that defendants nonetheless were “precluded ethically from offering an explanation that is inconsistent with those facts.” The hospital’s representations that the Bovie became inadvertently unholstered, Judge Rodgers found, constituted “affirmative misrepresentations and violations of the Michigan Rules of Professional Conduct.” Judge Rodgers opined: “The Hospital’s Risk Manager and defense counsel participated in a course of defense which, in this Court’s opinion, is materially inconsistent with the findings of the contemporaneous investigation documented in the . . . incident report,” thereby violating the previously cited rules of professional conduct.
Moreover, Judge Rodgers continued, defendants pursued a claim that expert testimony was required in this case despite awareness that “the unholstered Bovie was laid on the drape, a standard of care violation[.]” Had the actual known facts about the Bovie’s placement been revealed, Judge Rodgers wrote, Munson likely would have admitted liability far sooner, without need for the “[substantial time and energy ... wasted in the effort to learn how the Bovie came to penetrate the drape and burn the Plaintiffs arm.” Judge Rodgers summarized: “The Court has not found a case that would allow the Defendant Hospital to fail to disclose the causation facts and present a defense inconsistent with them.”
Judge Rodgers assessed Munson and Hall $53,958.69 in sanctions, jointly and severally. The sanctions represented travel and discovery expenses and attorney fees arising from Miller’s trial preparation. Munson brought a motion for reconsideration, contending that neither the hospital nor its counsel had any duty to review the incident report before trial and that Judge Rodgers had erroneously concluded that the incident report was inconsistent with the hospital’s defense. In support of its motion, Munson submitted a new affidavit signed by Gilliand, attesting that she “would not have been sufficiently close to the operative field to see or hear the Bovie intraoperatively” and did not know whether the Bovie had been “intentionally” laid on the drape. Peterson, too, signed an affidavit averring that her conclusions were not based on “specific knowledge” or “facts” from any source to indicate that the Bovie device had been “intentionally placed on the drape by any individuales) involved in the surgery.”
In a written opinion denying reconsideration, Judge Rodgers addressed as follows the two newly filed affidavits:
Finally, the submission of additional affidavits from two witnesses who testified at the evidentiary hearing is highly irregular. No witness has any present recollection of what occurred at the time of the surgery nor does Ms. Peterson have any present recollection of her investigation other than that she conducted one and it is reflected in her Incident Report. Given that all parties were represented by counsel at the evidentiary hearing, the submission of post-hearing affidavits not subject to cross examination regarding what these witnesses “intended” is inappropriate, self-serving and, in view of the testimony the Court received, of no substantive value.
Harrison brought a supplemental motion seeking additional sanctions representing costs and fees dating from the initiation of the litigation. Judge Rodgers also denied this motion.
Munson now appeals as of right, challenging the award of sanctions. Harrison cross-appeals as of right, arguing that she should have been granted additional sanctions. Hall also appeals as of right, asserting that he should not have been sanctioned. We consolidated these appeals. As discussed in greater detail in the balance of this opinion, we affirm Judge Rodgers’s decision to assess sanctions against Munson and Hall, as well as Judge Rodgers’s refusal to assess additional sanctions. We further affirm the sanction amount. However, we remand to the trial court to divide the sanctions award into individualized penalties according to fault.
II. ANALYSIS
A. PEER-REVIEW PRIVILEGE
We begin by addressing the parties’ claims regarding the peer-review privilege. Munson contends in its brief that because the incident report and related documents were privileged, neither Munson’s risk manager nor Hall had a duty to review them before presenting a defense. Munson further asserts that “upon the trial court’s proper determination that the Incident Report and other documents at issue were protected by the peer review privilege, further review and consideration of their content outside of the peer review process should have been foreclosed, and the inquiry brought to an end.” Harrison counters that the documents were discoverable because Munson’s medical peer-review system did not contemplate their confidentiality.
Munson’s privilege claim rests on MCL 333.21515, which shelters peer-review “records, data, and knowl edge” from court subpoena. We interpret and apply this statute de novo. See People v Smith-Anthony, 296 Mich App 413, 416; 821 NW2d 172 (2012).
“When faced with questions of statutory interpretation, our obligation is to discern and give effect to the Legislature’s intent as expressed in the words of the statute. We give the words of a statute their plain and ordinary meaning, looking outside the statute to ascertain the Legislature’s intent only if the statutory language is ambiguous. Where the language is unambiguous, ‘we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written.’ ” [Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 10; 654 NW2d 610 (2002), overruled in part on other grounds Stand Up For Democracy v Secretary of State, 492 Mich 588 (2012), quoting Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002) (citations omitted).]
In addition to these statutory construction precepts, we take heed of the general rule that statutory privileges should be narrowly construed. People v Warren, 462 Mich 415, 427; 615 NW2d 691 (2000) (marital privilege); In re Brock, 442 Mich 101, 119; 499 NW2d 752 (1993) (physician-patient privilege). “Their construction should be no greater than necessary to promote the interests sought to be protected in the first place.” People v Wood, 447 Mich 80, 91-92; 523 NW2d 477 (1994) (CAVANAGH, C.J., concurring).
Michigan’s Public Health Code, MCL 333.1101 et seq., directs that the “governing body” of a licensed hospital bears responsibility “for all phases of the operation of the hospital, selection of the medical staff, and quality of care rendered in the hospital.” MCL 333.21513(a). To fulfill this command, hospitals must ensure that all physicians and other hospital personnel “who are required to be licensed or registered are in fact currently licensed or registered.” MCL 333.21513(b). Hospitals may grant physicians only those hospital privileges “consistent with their individual training, experience, and other qualifications.” MCL 333.21513(c). And to encourage hospitals to implement and adhere to high standards of patient care, the Legislature imposes on hospitals an obligation to
assure that physicians and dentists admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients. The review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital. [MCL 333.21513(d).]
This review function is commonly known as “peer review.” “Hospitals are required [by MCL 333.21513(d)] to establish peer review committees whose purposes are to reduce morbidity and mortality and to ensure quality care.” Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 41; 594 NW2d 455 (1999). “Peer review is ‘essential to the continued improvement in the care and treatment of patients[.]’ ” Feyz v Mercy Mem Hosp, 475 Mich 663, 680; 719 NW2d 1 (2006), quoting Dorris, 460 Mich at 42 (additional quotation marks and citations omitted). To encourage candid, thorough peer-review assessments of hospital practices, the Legislature has shielded peer-review activities from “intrusive public involvement and from litigation.” Feyz, 475 Mich at 680.
At issue here is the statutory provision removing from the scope of discovery “records, data, and knowledge” collected for or by peer-review entities. The relevant privilege statute provides in its entirety: “The records, data, and knowledge collected for or by indi victuals or committees assigned a review function described in this article [Article 17] are confidential and shall be used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena.” MCL 333.21515.
Whether a particular document qualifies as privileged under the peer-review statute depends on the circumstances surrounding its creation. Thus, when a litigant challenges a hospital’s invocation of the peer-review privilege, an in camera evidentiary hearing is required. Monty v Warren Hosp Corp, 422 Mich 138, 144; 366 NW2d 198 (1985). At the hearing, the documents at issue must be identified by date and author. Id. at 146. To assist in making a peer-review-privilege determination, a court may consult hospital bylaws and “internal regulations,” and should consider whether “a particular committee was assigned a review function so that information it collected is protected,” or “whether the committee’s function is one of current patient care[.]” Id. at 147. “In determining whether any of the information requested is protected by the statutory privilege, the trial court should bear in mind that mere submission of information to a peer review committee does not satisfy the collection requirement so as to bring the information within the protection of the statute.” Id. at 146-147.
Judge Rodgers proceeded in accordance with Monty by reviewing the requested documents and related materials in camera and by convening an evidentiary hearing to test Munson’s privilege claim. At oral argument, Munson’s counsel conceded that Judge Rodgers’s review of the documents was entirely proper. Accordingly, we reject Munson’s arguments that Judge Rodgers’s consideration of the documents exceeded that contemplated by Monty or that the peer-review privilege itself prohibited Judge Rodgers from reviewing the documents.
We next turn to the parties’ arguments concerning whether the incident report was privileged. Judge Rodgers ruled that the “facts” contained in the incident report, “as opposed to the conclusions drawn in the report,” should have been documented in Harrison’s medical record. Nevertheless, Judge Rodgers found the incident report to be a “protected peer review document.” We agree with Judge Rodgers in part. Gilliand’s contemporaneous, handwritten operating-room observations were not subject to a peer-review privilege. In other words, the initial page of the incident report did not fall within the protection of MCL 333.21515. The balance of the report, however, reflected a review process and was confidential. As discussed in greater detail later in this opinion, peer-review protection from public disclosure does not shield Munson or Hall from the imposition of sanctions.
The peer-review-privilege statutes exempt from disclosure “[t]he records, data, and knowledge collected for or by individuals or committees assigned a professional review function[.]” MCL 333.20175(8). In construing this language, we remain mindful of Monty’s admonition that “mere submission of information to a peer review committee does not satisfy the collection re quirement. . .Monty, 422 Mich at 146. Monty further guides us to review the structure and function of the hospital’s peer-review system, and identifies three cases from other jurisdictions that shed light on our interpretive task. We find the cases cited in Monty enlightening and utilize them as guideposts.
In Bredice v Doctors Hosp, Inc, 50 FRD 249 (D DC, 1970), the plaintiff sought “ ‘[mjinutes and reports of any Board or Committee of Doctors Hospital or its staff ” concerning the death of the plaintiffs decedent. Id. at 249. The United States District Court for the District of Columbia relied on a common-law peer-review privilege to find that the minutes and reports were not subject to disclosure, reasoning that “[cjonfidentiality is essential to effective functioning of these staff meetings; and these meetings are essential to the continued improvement in the care and treatment of patients.” Id. at 250. Only upon a showing of “exceptional necessity,” the court ruled, should such information be disclosed. Id. The court added:
The purpose of these staff meetings is the improvement, through self-analysis, of the efficiency of medical procedures and techniques. They are not a part of current patient care but are in the nature of a retrospective review of the effectiveness of certain medical procedures. The value of these discussions and reviews in the education of the doctors who participate, and the medical students who sit in, is undeniable. This value would be destroyed if the meetings and the names of those participating were to be opened to the discovery process. [Id.]
Davidson v Light, 79 FRD 137 (D Colo, 1978), another case cited in Monty, arose from the plaintiffs development of a gangrenous leg. The plaintiff requested production of a report prepared by the defendant hospital’s “Infection Control Committee.” Id. at 139. The United States District Court for the District of Colorado ordered the report produced and distinguished Bredice, finding that unlike in that case, the infection-control records “apparently contain[] both factual data relating to the plaintiffs infection, and opinions or evaluations by the review committee of the care received by the plaintiff from the staff.” Id. The court continued: “The report’s mixed nature indicates that the review committee involved here, unlike that in Bredice, functions as a part of current patient care, investigating the source of infections and attempting to control their proliferation.” Id. Further, the district court judge explained, the Colorado Supreme Court had held in Bernardi v Community Hosp Ass’n, 166 Colo 280; 443 P2d 708 (1968), that factual information contained in an incident report was discoverable “because it is concerned primarily with the problem of a single patient, relates to current patient care, and is generated because of a specific incident or occurrence rather than a general desire for discussion or improvement.” Davidson, 79 FRD at 140.
Monty’s third cited case, Coburn v Seda, 101 Wash 2d 270; 677 P2d 173 (1984), is particularly instructive. The plaintiff in Coburn propounded interrogatories to the defendant hospital seeking to learn whether a hospital review committee had considered the circumstances of a heart catheterization that led to the death of the plaintiffs decedent and whether “ ‘a written report’ ” had been prepared by the committee regarding the incident. Id. at 271-272. Applying Washington’s peer-review-privilege statute, the Washington Supreme Court ruled that reports generated by the hospital’s peer-review committees were protected from discovery. Id. at 275. Citing Bredice and Davidson, the court remanded to the trial court for a determination whether the statute applied to the particular committee whose report was sought. Id. at 277-278. The Washington Supreme Court further instructed:
The statute may not be used as a shield to obstruct proper discovery of information generated outside review committee meetings. The statute does not grant an immunity to information otherwise available from original sources. For example, any information from original sources would not be shielded merely by its introduction at a review committee meeting. Further, the hospital must identify all persons who have knowledge of the underlying event which is the basis of the malpractice action regardless of whether those persons presented evidence to a hospital review committee. [Id. at 277.]
We derive from these three cases a distinction between factual information objectively reporting contemporaneous observations or findings and “records, data, and knowledge” gathered to permit an effective review of professional practices. Gilliand’s notation reporting that the Bovie “was laid on drape, in a fold” falls in the former category and as such was not privileged from disclosure, despite its inclusion on a form labeled “Quality/Safety Monitoring.” Employing Davidson, we find it critical that Gilliand’s note concerned a single patient and was “generated because of a specific incident or occurrence rather than a general desire for discussion or improvement.” Davidson 79 FRD at 140. And as Cobum counseled, this information is not to be “shielded merely by its introduction at a review committee meeting.” Cobum, 101 Wash 2d at 277. These excerpts from the cases cited by our Supreme Court in Monty give context to the Monty Court’s admonition that “mere submission of information to a peer review committee does not satisfy the collection requirement . .. .” Monty, 422 Mich at 146. Here, Gilliand’s preparation of a firsthand, contemporaneous factual report about a patient that she elected to place on a risk-management form rather than within the patient’s medical record did not trigger the statutory privilege.
Centennial Healthcare Mgt Corp v Dep’t of Consumer & Indus Servs, 254 Mich App 275; 657 NW2d 746 (2002), buttresses our holding. In Centennial, the defendant state agency requested incident and accident reports as part of an investigation of a nursing home. Id. at 276-277. State administrative rules required that the plaintiff maintain accident and incident reports and make them available for review by the defendant. Id. at 280. The plaintiff insisted that incident reports were privileged pursuant to MCL 333.20175(8) because they were used for peer review. Id. at 277. This Court discerned no conflict between the administrative rule and the statute. We explained:
Subsection 20175(8) is made up of five parts: (1) a list describing the types of items that are potentially covered by the peer review privilege [records, data, and knowledge]; (2) the requirement that these items be “collected for or by individuals or committees assigned a peer review function”; (3) a list of the entities to which the privilege applies; (4) the pronouncement that items satisfying these three criteria are “confidential”; and (5) a limit on the uses to which these items can be put, which includes the command that those uses are to be found in article 17 of the Public Health Code, as well as the specific directives that these items “are not public records” and “are not subject to court subpoena.” [Centennial, 254 Mich App at 286, quoting MCL 333.20175(8).]
The Court observed that “a peer review committee could be said to have collected anything that it directs its facility to compile.” Centennial, 254 Mich App at 290. This definition of the term “collect,” the Court explained, would require “simply too broad a reading of the statutory privilege.” Id. Rather, “in keeping with the interests the privilege is protecting,” a peer-review committee “collects” material by accumulating it for study. Id. The Court continued:
Certainly, in the abstract, a peer review committee cannot properly review performance in a facility without hard facts at its disposal. However, it is not the facts themselves that are at the heart of the peer review process. Rather, it is what is done with those facts that is essential to the internal review process, i.e., a candid assessment of what those facts indicate, and the best way to improve the situation represented by those facts. Simply put, the logic of the principle of confidentiality in the peer review context does not require construing the limits of the privilege to cover any and all factual material that is assembled at the direction of a peer review committee.
In the context of the circumstances in the case at bar, it is true that [the nursing home’s] peer review committee could not effectively do its work without collecting basic information about the various incidents and accidents that occur at a nursing home. However, it is not the existence of the facts of an incident or accident that must be kept confidential in order for the committee to effectuate its purpose; it is how the committee discusses, deliberates, evaluates, and judges those facts that the privilege is designed to protect. [Id. at 290-291 (emphasis added) (citation omitted).]
We find Centennial’s, reasoning compelling. MCL 333.20175(8) and MCL 333.21515 shield from disclosure materials accumulated for study by individuals or committees “assigned a professional review function.” Objective facts gathered contemporaneously with an event do not fall within that definition.
Other courts interpreting peer-review statutes have similarly determined that facts concerning a patient’s care, and in particular facts incorporated within an incident report, are not entitled to confidentiality. For example, in Columbia/HCA Healthcare Corp v Eighth Judicial Dist Court, 113 Nev 521, 531; 936 P2d 844 (1997), the Nevada Supreme Court observed that “[o]ccurrence reports . . . are nothing more than factual narratives” which contain information usually unearthed in discovery. The Nebraska Supreme Court held in State ex rel AMISUB, Inc v Buckley, 260 Neb 596, 614; 618 NW2d 684 (2000), that “[r]eports which are merely factual accounts or fact compilations relating to the care of a specific patient are not privileged” under the Nebraska peer-review statutes. The Court reasoned:
The [statutory] language .. . does not protect antecedent reports relating to the care of a specific patient which memorialize bare facts and which were written by or collected from percipient witnesses notwithstanding the fact that such documents may have been forwarded to a hospital-wide committee, nor does [the statute] protect an assembly of such facts outside the committees identified in [the statute]. [Id]
The Arizona Court of Appeals concluded in John C Lincoln Hosp & Health Ctr v Superior Court, 159 Ariz 456, 459; 768 P2d 188 (1989), that because incident reports “are issued by hospital personnel in the regular course of providing medical care,” they did not fall within Arizona’s peer-review-privilege statute. The Court reasoned:
These reports are intended for use whenever there is an unusual occurrence of any kind in the day-to-day administration of the hospital. Thus they are very broad in nature and cover situations as diverse as an electrical failure, a patient’s loss of personal articles, and an incorrect type of anesthesia. Though Incident Reports sometimes precipitate peer review, they do not always do so, and they are not made solely for that purpose. [Zd]
And the Connecticut Supreme Court explained in Babcock v Bridgeport Hosp, 251 Conn 790, 838; 742 A2d 322 (1999), that based on the language of that state’s statute, “the notations of a treating physician or nurse are not protected, even if those notations are utilized in a study of morbidity or mortality undertaken for the purpose of improving the quality of care.”
Here, Shirilla confirmed that Munson’s quality committee does not “collect” or even review incident reports. He and Schreiber agreed that at Munson, incident reports are stored within the risk-management department and are not provided to peer-review committees for study. And Schreiber acknowledged that no “peer review file” was ever created concerning Harrison’s burn. Given this evidence, we conclude that the factual information recorded on the first page of the incident report was not immune from disclosure as material collected pursuant to MCL 333.21515. To hold otherwise would grant risk managers the power to unilaterally insulate from discovery firsthand observations that the risk managers would prefer remain concealed. The peer-review statutes do not sweep so broadly.
We reach a different conclusion, however, regarding the incident report’s remaining pages. In the balance of the document, Peterson or another Munson employee summarized the result of the investigation Peterson conducted in her role as a peer reviewer: that the burn occurred because someone failed to reholster the Bovie. The documentation following Gilliand’s note reflects a deliberative review process. Judge Rodgers correctly concluded that this portion of the incident report qualified as confidential.
Against this legal backdrop, we turn to Munson’s argument that because the incident report was a peer-review-privileged document, Schreiber and Hall had no duty to consider it while defending Harrison’s malpractice claim. For the sake of this argument, we assume that Schreiber appropriately believed that the entirety of the incident report was confidential pursuant to MCL 333.21515.
We are somewhat puzzled by Munson’s duty argument, because the testimony established without dispute that Schreiber and Hall did read the incident report and knew its contents. In her testimony before Judge Rodgers, Schreiber admitted that she had been aware of Gilliand’s note and Peterson’s analysis throughout the litigation. Schreiber verified that Hall was given a copy of the incident report at least a month before the trial. Thus, Munson’s duty argument has no application to the facts of this case. Nor do we accept as a general proposition, divorced from this case, that a risk manager may deliberately avoid reviewing or considering relevant factual information if doing so involves consulting potentially privileged documents. Certainly, the peer-review-privilege statutes were not intended to prevent a hospital from reviewing its own records. And we have located no law from any jurisdiction suggesting that a hospital may ethically present a medical malpractice defense directly conflicting with the hospital’s knowledge of how an event occurred.
Consequently, we discern nothing in the language of the peer-review statutes that would have precluded Schreiber from reviewing the incident report. We express no opinion regarding whether Munson should have produced the first page of the incident report to Harrison during discovery. As hereafter discussed in greater detail, Judge Rodgers did not sanction Munson and Hall based on their failure to produce the report. Judge Rodgers imposed the sanctions because he determined that Munson and Hall presented a defense in fundamental conflict with the facts contained in the incident report. We next consider the propriety of the sanction rulings.
B. THE SANCTIONS
Judge Rodgers grounded his sanctions order on his finding that Munson and Hall put forward a defense that was inconsistent with “known but undisclosed facts.” Judge Rodgers wrote: “The finding that the Bovie was laid on the drape and not placed in the holster is grossly inconsistent with an argument that the Bovie was properly holstered and then accidentally unholstered.” Judge Rodgers invoked several court rules, a statute, and two rules of professional responsibility as support for his sanctions assessment.
Munson and Hall assert that Gilliand’s note and Peterson’s conclusions were ambiguous, vague, and entirely consistent with the “accident” defense. According to Munson and Hall, Judge Rodgers clearly erred by finding “that the Bovie was intentionally set down upon the drape instead of being placed in its holster[.]” Hall emphasizes: “The trial court opinion has a single underlying assumption: that the Bovie device was deliberately laid on the drape.” Because that assumption should not have been made, Hall contends, this Court should reverse the sanction award.
“Trial courts possess the inherent authority to sanction litigants and their counsel[.]” Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). We review for an abuse of discretion a court’s exercise of that power. Id. A court abuses its discretion when it reaches a decision that falls outside the range of principled outcomes. Id. Judge Rodgers sanctioned Munson and Hall pursuant to MCR 2.114(D) and (E), as well as MCL 600.2591(2), and sanctioned Hall separately pursuant to MRPC 3.1 and 3.3. “The interpretation and application of a court rule involves a question of law that this Court reviews de novo.” Johnson Family Ltd Partnership v White Pine Wireless, LLC, 281 Mich App 364, 387; 761 NW2d 353 (2008). We also review de novo a trial court’s construction of the Michigan Rules of Professional Conduct. Grievance Administrator v Fieger, 476 Mich 231, 240; 719 NW2d 123 (2006). This Court reviews for clear error any factual findings underlying a trial court’s decision. MCR 2.613(C). “A trial court’s finding[] with regard to whether a claim or defense was frivolous, and whether sanctions may be imposed, will not be disturbed unless it is clearly erroneous.” 1300 LaFayette East Coop, Inc v Savoy, 284 Mich App 522, 533; 773 NW2d 57 (2009). “A finding is clearly erroneous when this Court is left with a definite and firm conviction that a mistake has been made.” Johnson, 281 Mich App at 387.
We initially address defendants’ contention that Judge Rodgers clearly erred by finding that the Bovie was “intentionally” or “deliberately” placed on the drape. Defendants misapprehend Judge Rodgers’s findings. At no point in his 12-page opinion did Judge Rodgers refer to intentional or deliberate conduct on the part of the operating room team. The words “intentional” or “intentionally” do not appear in Judge Rodgers’s opinion. Contrary to defendants’ argument, Judge Rodgers made no finding that the Bovie had been “intentionally” laid on the drape.
Rather, Judge Rodgers’s factual findings assumed the accuracy of Gilliand’s notation and Peterson’s conclusion. In construing the words used by both witnesses, Judge Rodgers interpreted the writings according to their plain, ordinary, everyday meanings. Gilliand reported: “during [the] procedure [the] bovie was laid on [the] drape, in a fold.” In normal, everyday parlance, the term “was laid” is used to describe the putting or placing of an object in a certain location. Defendants contend that Judge Rodgers should have interpreted Gilliand’s words as meaning that the Bovie “was lying” on the drape. A reasonable construction of Peterson’s note resolves this dispute. After interviewing the operating-room participants, Peterson decided that the “Bovie holder was on field for this case, however bovie was not placed in it.” (Emphasis added.) Thus, Judge Rodgers interpreted both Gilliand’s and Peterson’s words in a logical and reasonable fashion.
Moreover, whether an operating-room participant deliberately laid the Bovie on the drape or did so negligently or accidentally lacks relevance given defendants’ admission that the standard of care required reholstering the Bovie after each use. Assuming that the Bovie was accidentally laid on the drape does not excuse defendants from reholstering it, according to their own testimony that the standard of care required reholstering after each use. Moreover, defendants’ argument that Judge Rodgers misinterpreted the incident report rings particularly hollow in light of the information that Munson willingly provided to Harrison before the litigation commenced: that the event had been “confidentially reviewed” and that as a result, the hospital had “reinforced . .. [t]he mandatory and active use of cautery protective devices anytime cautery is used.” Had Munson’s internal investigation revealed that the Bovie’s transit to the drape was entirely inadvertent rather than the product of some human action, we question why the hospital would have shared with Harrison its intent to reinforce the “mandatory and active use” of Bovie holsters.
Finally, Gilliand’s belated claim that she did not actually see someone “lay” the Bovie on the drape bears no relevance to Judge Rodgers’s factual findings. Gilli- and was the sole source of firsthand, contemporaneous factual information about the Bovie’s appearance on the drape. As such, the evidence that she could have provided was unique. Had Gilliand been deposed by an attorney in possession of her note, she likely would have conceded the obvious: that reasonably interpreted, her words could be understood to mean that a surgery participant laid the Bovie on the drape. The trier of fact may draw reasonable inferences from direct or circumstantial evidence in the record. People v Vaughn, 186 Mich App 376, 379-380; 465 NW2d 365 (1990). Gilli- and’s choice of words and Peterson’s conclusions render reasonable a deduction that the Bovie was placed or put on the drape by someone who had held it and negligently failed to return it to its safe holding place. Thus, Judge Rodgers did not clearly err by finding that a surgical participant “laid” the Bovie on the drape (accidentally, negligently or deliberately) and that that person, or another individual in the room, negligently failed to holster it.
We now consider the legal bases for the sanctions imposed. MCR 2.114(E) requires sanctions if an attorney or party signs a document in violation of MCR 2.114(D), which provides:
The signature of an attorney or party, whether or not the party is represented by an attorney, constitutes a certification by the signer that
(1) he or she has read the document;
(2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and
(3) the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
Similarly, MCL 600.2591(1) provides:
Upon motion of any party, if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.
The statute defines “frivolous” to include that a party “had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.” MCL 600.2591(3)(a)(ii).
MCR 2.114 “provides for an award of sanctions against both a party and his counsel for not making reasonable inquiry as to whether a pleading is well grounded in fact[.]” Briarwood v Faber’s Fabrics, Inc, 163 Mich App 784, 792; 415 NW2d 310 (1987). Sanctions may be assessed without regard to whether the pleader harbored an improper purpose. Id. at 792-793. The purpose for punishing with sanctions the introduction of frivolous claims “is to deter parties and attorneys from filing documents or asserting claims and defenses that have not been sufficiently investigated and researched or that are intended to serve an improper purpose.” FMB-First Mich Bank v Bailey, 232 Mich App 711, 723; 591 NW2d 676 (1998). In BJ’s & Sons Constr Co, Inc v Van Sickle, 266 Mich App 400, 406; 700 NW2d 432 (2005) (quotation marks and citation omitted), this Court cited with approval a federal court’s observation that sanctions “are essentially deterrent in nature, imposed in an effort to discourage dilatory tactics and the maintenance of untenable positions.”
Judge Rodgers determined that Schreiber, Munson’s risk manager, knew throughout the litigation that a contemporaneous investigation had revealed that someone in the operating room failed to reholster the Bovie after its use. Schreiber was also aware of Dr. Potthoff s testimony that the standard of care required reholstering the Bovie “absolutely every time.” This evidence, Judge Rodgers concluded, was susceptible to only one reasonable conclusion: Harrison’s burn occurred because someone in the operating room negligently failed to reholster the Bovie after using it. Sanctions were warranted, Judge Rodgers ruled, because Munson concealed facts that would have pointed directly to its negligence and instead created a causation theory that was contradicted by evidence gathered by Munson itself.
Munson’s conduct in creating an “accident” defense scenario despite its possession of direct evidence con trary to that position qualifies as a violation of MCL 600.2591(3)(a)(ii), which prohibits a party from advancing a claim or defense when the party has “no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.” Munson presented no evidence in the trial court conflicting with Gilliand’s account that the Bovie “was laid” on the drape. Nor did Munson supply evidence that Peterson had conducted a faulty investigation or had misinterpreted the data she considered. Rather, Munson interposed “habit and practice” evidence while fully aware that the habit had not been followed in Harrison’s case. Judge Rodgers did not abuse his discretion by finding that Munson invoked MRE 406 in bad faith by introducing habit-and-practice evidence to prove conformity of conduct despite that the evidence known only to Munson soundly contradicted that defense.
In addition to these violations of MCL 600.2591(3)(a)(ii), Munson obstructed Harrison’s search for the truth throughout discovery by: (1) repeatedly insisting that no one had any information about what had happened, despite that Tembruell and Babcock clearly remembered the procedure, (2) preparing an affidavit for Burgett’s signature attesting that he had never handled a Bovie, despite Dr. Potthoff s testimony to the contrary, and (3) asserting in numerous filings that the bum was “caused by acts and occurrences outside the control of the surgical team,” in contradiction of the facts contained in the incident report. The pleadings containing these attestations, Judge Rodgers ruled, were not well grounded in the facts known to Munson. The record evidence substantiates these findings. Accordingly, Judge Rodgers’s determination that defendants’ conduct contravened MCR 2.114 fell within the range of reasonable and principled outcomes, and his imposition of sanctions did not qualify as an abuse of discretion.
In affirming the sanctions order against Munson, we emphasize that statutory privileges were not intended by the Legislature as licenses to subvert the discovery process, or as shields for the presentation of false or misleading evidence. By protecting peer review from external scrutiny, Michigan’s Public Health Code does not concomitantly erect a barrier to a patient’s quest for objective facts concerning the patient’s own surgical procedure. The discovery process is designed to allow the parties to fully explore the facts underlying a controversy as inexpensively and expeditiously as possible, and without gamesmanship. The peer-review statutes do not create an exception to this principle. Nor does any privilege, including that created for peer review, prevent a court from safeguarding the integrity of its administration of justice.
Judge Rodgers sanctioned Hall pursuant to MCR 2.114 as well as MRPC 3.3(a)(3), which prohibits an attorney from offering evidence that the attorney knows to be false, MRPC 3.3(a)(1), which disallows false statements of material fact made to a tribunal, and MRPC 3.1, which prohibits an attorney from defending a proceeding or controverting an issue “unless there is a basis for doing so that is not frivolous.” Hall admitted receiving the incident report before the trial. He further admitted during the evidentiary hearing that the “facts” stated in the incident report were not the same as those in Harrison’s medical record, and he conceded that perhaps they should have been. Hall nevertheless insisted that he stood “personally and professionally” by the “veracity” of the discovery answers he drafted.
We affirm Judge Rodgers’s determination that Hall violated MCR 2.114 and MRPC 3.1 by pursing an “accident” defense after reading Gilliand’s note and Peterson’s attribution of the burn’s cause to a failure to reholster the Bovie. Once in possession of that information, Hall had an ethical obligation to withhold an “accident” defense. Indeed, an admission of liability was forthcoming after the information contained in the incident report came to light. Hall bore a concomitant ethical obligation to amend and supplement the answer he had provided to Harrison’s request for admission early in the case. That request sought Munson’s admission that the “individuals who were responsible for the electrocautery device” were Munson employees acting in the course of their employment. Instead of answering this request, Munson relied on a boilerplate objection and referred Harrison to the medical record. When Hall reviewed the incident report, he was under an affirmative duty to change Munson’s answer to a simple admission. See also MCR 2.302(E)(l)(b)(ii) (setting forth a duty to amend a discovery answer when a party obtains information indicating that a former response, “though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment”).
Moreover, Hall had received the incident report before Gilliand’s trial deposition was taken, and knew that Gilliand had authored the note and participated in Peterson’s follow-up investigation. Despite his knowledge of these facts, Hall did nothing to correct Gilliand’s patently incorrect deposition testimony that: (1) if the event had happened while she was in the operating room, she would have written something about it in the patient’s hospital record, (2) if she had seen a burn, she would have recorded that finding in the patient’s record, (3) she had never been involved in a procedure in which a Bovie had inadvertently burned a patient, and (4) she did not recall being contacted by Peterson about what took place during the surgery. Hall’s acquiescence in presenting Gilliand’s testimony, despite awareness that the incident report substantially contradicted many of Gilliand’s statements, suffices to establish an ethical violation under MRPC 3.3(a)(3).
Nevertheless, we believe that Judge Rodgers erred by failing to render separate sanctions awards in this case. Given the limited time he had access to the incident report, Hall’s culpability is far less than that of Mun-son. On remand, Munson may elect to take full responsibility for the sanctions award. Should Munson chose not to do so, the court must conduct a hearing in which Hall’s personal liability for the amounts awarded is clarified. Hall may not be sanctioned for costs or fees that arose before the date that he was provided the incident report.
We have reviewed Harrison’s claim for additional sanctions but find it without merit for the reasons stated by Judge Rodgers.
We affirm the sanctions award but remand for individualized assessments against Hall and Munson. We do not retain jurisdiction.
OWENS, EJ., and Borrello, J., concurred with GLEICHER, J.
Numerous documents and transcripts were sealed by the trial court and remain sealed on appeal. Because defendants have relied on, quoted, and attached selective portions of these materials to their public briefs, we have cited in this opinion the portions of the sealed materials utilized by defendants.
A Bovie is a pencil-shaped instrument used to cauterize bleeding tissue or to cut through tissue. A push button on the device triggers the flow of current, which heats the device’s electrical tip.
Before the action was dismissed, Miller sent Munson a request for production of documents pursuant to MCR 2.310, requesting among other things “All incident reports and witness statements covering the incident that occurred during surgery on April 24, 2007, which resulted in Mrs. Harrison sustaining a burn on her left arm from an activated electrocautery device.” Munson did not respond to this request and Miller failed to resend it during the subsequent proceedings.
Because Burgett is an unlicensed health professional, Harrison argued that the notice of intent to file suit and affidavit of merit requirements of MCL 600.2912b and MCL 600.2912d(l) did not apply to him.
The Bovie holster was attached to the operating room table near Harrison’s chest area; no one could recall with certainty whether the holster was mounted on the patient’s left or right side.
The parties have used interchangeably the terms “incident report” and “occurrence report.”
The parties have not provided this Court with a transcript of that admission. Munson subsequently settled Harrison’s burn claim.
We also granted the Michigan Society for Healthcare Risk Management’s motion to file an amicus curiae brief. That brief was never filed in this Court.
MCL 333.20175(8) similarly states:
The records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency, or an institution of higher education in this state that has colleges of osteopathic and human medicine, are confidential, shall be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena.
“An in camera proceeding is the appropriate vehicle to determine whether information requested in discovery proceedings is protected by a statutory privilege.” LeGendre v Monroe Co, 234 Mich App 708, 742; 600 NW2d 78 (1999).
The affidavits rejected by Judge Rodgers similarly attested that the affiants did not know whether the Bovie had been “intentionally” laid on the drape. Given that medical malpractice actions employ a negligence standard of care, whether the Bovie was “intentionally” placed on the drape is of no legal consequence.
For instance: “Plaintiff and his mother-in-law both testified that the baby was laid upon an electric pad.” Wabeke v Bull, 289 Mich 551, 555; 286 NW 825 (1939) (Bushnell, J., dissenting); “Hansen testified that defendant’s coat was laud over the old man’s body in the car and was blood-stained.” People v McKernan, 236 Mich 226, 231; 210 NW 219 (1926); “Where the ends of the boxes were stationary, one end of the timber was laid down in the bottom of the car, and the other end projected over the end of the box in cases where the timber was longer than the box.” Dewey v Detroit, G H & M R Co, 97 Mich 329, 335; 56 NW 756 (1893).
The clear error standard is deferential. People v Zahn, 234 Mich App 438, 445; 594 NW2d 120 (1999). “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.” MCR 2.613(C). Judge Rodgers had the benefit of questioning Gilliand and Peterson about their notes. That their words are potentially susceptible of another meaning does not render Judge Rodgers’s factual findings clearly erroneous. | [
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BOONSTRA, P.J.
In this insurance dispute, plaintiff Wells Fargo Bank, N.A., appeals by right the September 4, 2012 order of the trial court granting summary disposition in favor of defendants Elizabeth A. Null and Auto-Owners Insurance Company under MCR 2.116(C)(10). Specifically, the trial court ruled that Wells Fargo, the mortgagee, was not entitled to coverage under an insurance policy issued by Auto-Owners to the mortgagor, Lonnie Null, Elizabeth’s brother-in-law. The trial court also held that a previous order, entered in an earlier case brought by Elizabeth against Auto-Owners and Wells Fargo, which barred her claims because the property was not covered under the Auto-Owners policy, also barred Wells Fargo’s claims in this case. We reverse the trial court’s award of summary disposition in favor of Auto-Owners, and remand for further proceedings consistent with this opinion.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The underlying insurance dispute in this case arose from an April 11, 2009 fire that destroyed a residence located at 17285 Williamsville Street, Cassopolis, Michigan. In 1994, Lonnie purchased the residence and obtained from Auto-Owners a homeowners insurance policy covering the residence (hereinafter “the policy”). Wells Fargo held the note on the residence. Accordingly, Lonnie was the mortgagor of record and Wells Fargo the mortgagee. In 1997, Lonnie executed a “Residential Real Estate Contract” with Elizabeth; however, the mortgage was never assigned to Elizabeth and the Auto-Owners policy remained in Lonnie’s name. Lonnie stayed in the residence with Elizabeth sporadically for a few days or weeks at a time, through approximately 2004. However, when the fire occurred in April 2009, Lonnie had not lived in the residence for several years. In fact, evidence of record indicates that Lonnie was incarcerated in 2008 and had not resided or stayed in the home since that time.
After the fire, Elizabeth filed a claim for insurance benefits from Auto-Owners under the policy that was then in effect for the policy term of December 22, 2008 to December 22, 2009. In a letter dated April 21, 2009, Auto-Owners advised Wells Fargo, as the mortgagee, that fire had damaged the residence and that a claim had been filed. As Lonnie remained the named insured under the policy, the letter indicated that Lonnie, not Elizabeth, was the individual who suffered damages resulting from the fire. The letter also informed Wells Fargo that, as the mortgagee, its name would be included on any insurance checks, in accordance with Auto-Owners’s policy.
In late 2009, Auto-Owners denied Elizabeth’s insurance claim for damage to the residence and her personal property on the ground that Lonnie, who was the named insured, did not reside there, which was a requirement under the policy. Specifically, the insurance policy provided in relevant part:
a. Coverage A — Dwelling
(1) Covered Property
We cover:
(a) your dwelling located at the residence premises including structures attached to that dwelling. Thisdwelling [sic] must be used principally as your private residence.
c. Coverage C — Personal Property
(1) Covered Property
We cover:
(a) personal property owned or used by any insured anywhere in the world including property not permanently attached to or otherwise forming a part of realty.
(b) at your option, personal property owned by others while it is in that part of the residence premises occupied by any insured.
Additionally, the policy defined “insured” as:
a. you;
b. your relatives; and
c. any other person under the age of 21 residing with you who is in your care or the care of a relative.
“Relative” was defined as “a person who resides with you and who is related to you by blood, marriage or adoption. Relative includes a ward or foster child who resides with you.” “You” or “your” was defined as the “first named insured,” which was Lonnie. Finally, “residence premises” was defined as “the one or two family dwelling where you reside . . ..”
A. THE COMPANION CASE
Elizabeth sued Auto-Owners for breach of contract in March 2010, naming both Auto-Owners and Wells Fargo as defendants in the case. That case was captioned in the trial court as Null v Auto-Owners Ins Co, LC No. 10-228-NI. Wells Fargo and Auto-Owners continued to correspond during the pendency of that companion case.
On December 2, 2010, the trial court entered an order granting summary disposition in favor of defendant Wells Fargo. The order stated, “This is a final Judgment as to [Wells Fargo] only and does not resolve all pending matters in this case.” Although it had been dismissed from the litigation, Wells Fargo moved to intervene as a counterplaintiff sometime in May 2011. The motion stated that Wells Fargo was not asserting a new claim against Auto-Owners, that its claim was derivative of the policy held by Lonnie, and that, if intervention was granted, Wells Fargo intended to file a counterclaim against Elizabeth only. The trial court denied this motion on May 9, 2011.
After a bench trial, the trial court reversed its earlier initial grant of summary disposition in favor of Elizabeth and granted summary disposition in favor of Auto-Owners, denying coverage in an opinion dated October 5, 2011, and an order entered on October 21, 2011.
Elizabeth appealed, and this Court issued an opinion affirming the trial court’s order on October 22, 2013. See Null v Auto-Owners Ins Co, unpublished opinion per curiam of the Court of Appeals, issued October 22, 2013 (Docket No. 308473) at 1, 3. Relevant to this appeal, this Court stated that the residence did not fall within the policy’s definition of covered property because
[t]he controlling Michigan case law establishes that defendant properly denied coverage on the basis of the policy’s residence requirements. In Heniser [v Frankenmuth Mut Ins Co, 449 Mich 155, 161; 534 NW2d 502 (1995)], our Supreme Court explained that when a property insurance policy includes a “residence premises” definition, there is no coverage if the insured does not reside at the property. The property at issue in Heniser was a vacation home that the insured had sold on a land contract, and the insured did not live in the home. Id. at 157. The Court held, “[w]e agree with those courts that have found the exact language of this policy to unambiguously require the insured to reside at the insured premises at the time of the loss.” Id. at 168.
This Court applied Heniser to confirm a denial of insurance coverage in McGrath v Allstate Ins Co, 290 Mich App 434; 802 NW2d 619 (2010). The McGrath Court determined that the residence premises requirement pre eluded coverage unless the insured lived in the premises at the time of the loss. Id. at 441. The Court rejected the argument that the insured could be deemed to reside in the premises if the insured intended to return at some time in the future. Id. at 442. The Court determined that the term “reside” had no technical meaning in the policy, and that the policy plainly required the insured to live in the premises in order to obtain coverage. Id. at 442-443.
Heniser and McGrath control the coverage question in this case. There is no ambiguity in the policy language at issue; the policy limits coverage to the dwelling in which the insured resides and which is used as the insured’s primary residence. The record confirms that Lonnie did not reside in the home at the time of the fire. Plaintiff testified in deposition that Lonnie lived at the Cassopolis house with plaintiff and her husband for approximately one month after being released from jail in 1997. After that, Lonnie “bounced around a lot,” meaning he stayed sporadically at the Cassopolis house for a few days at a time, and stayed there for two weeks in approximately 2005. Nothing in the record indicates that Lonnie resided in the home after 2005. Accordingly, the home did not fall within the policy definition of covered property, and defendant properly denied coverage. [Null, unpub op at 1-3.]
B. THE INSTANT CASE
While the companion case was proceeding, Wells Fargo filed a complaint against Auto-Owners and Elizabeth on June 13, 2011, asserting that it was entitled to any insurance proceeds recovered by Elizabeth. The complaint also alleged unjust enrichment and requested injunctive relief. Wells Fargo later amended the complaint and added a breach of contract claim against Auto-Owners.
On February 28, 2012, Auto-Owners moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). Auto-Owners acknowledged that the policy at issue contained a mortgage clause that gave rise to a separate contract with the mortgagee, and that the clause would afford coverage to the mortgagee, even if coverage would not be afforded to the insured, in cases of fraud or arson. However, Auto-Owners asserted that the first step in interpreting an insurance policy is to determine whether coverage is afforded to any named insured by virtue of the satisfaction of all conditions precedent to coverage. Then, and only then, if coverage is afforded, the policy is reviewed to determine whether any exclusions apply.
Auto-Owners argued, on the basis of the trial court’s ruling in the companion case, that the policy did not cover the residence because Lonnie did not reside there at the time of the fire. Because the residence was not a “residence premises” under the policy, it was not “covered property,” and there accordingly was no coverage under the policy in the first instance. Auto-Owners contrasted this circumstance with situations such as fraud and arson, in which coverage was afforded but then negated by a policy exclusion. Therefore, because the trial court had already held (in the companion case) that the residence was not covered under the policy, there was no coverage under the policy in the first instance, and the mortgage clause accordingly did not provide coverage to Wells Fargo as the mortgagee. Additionally, Auto-Owners argued that the order entered by the trial court in the companion case precluded Wells Fargo from bringing its claims in a new case, under the doctrines of judicial estoppel and estoppel by laches, because Wells Fargo had an opportunity and an obligation to bring its claims in the previous companion case but failed to do so.
Wells Fargo filed a response on July 12, 2012. Wells Fargo asserted that it was entitled to coverage under the policy’s mortgage clause. Specifically, Wells Fargo argued that the mortgage clause was a separate contract that was distinct from any contract Auto-Owners may have had with Lonnie, the insured. Therefore, the fact that the insured was precluded from coverage under the policy did not negate the separate contract between Auto-Owners and Wells Fargo, and Wells Fargo remained covered under the policy. Wells Fargo also argued that, as of December 8, 2010, Auto-Owners had not informed Wells Fargo of the status of its claim, as evidenced by a letter sent from Wells Fargo to Auto-Owners requesting information about the status of the claim on December 8, 2010. Auto-Owners did not advise Wells Fargo that its claim was denied until October 11, 2011. Therefore, Wells Fargo argued that the companion case did not bar the present case because it would have been “absurd” to require Wells Fargo to bring this action before it knew the status of its claim with Auto-Owners.
The trial court held a hearing on Auto-Owners’ motion on July 16, 2012. After taking the matter under advisement, the trial court entered an order on July 19, 2012, stating that “the insurance policy at issue does not provide coverage to plaintiff Wells Fargo Bank for damages to the structure arising from the fire of April 11, 2009,” and further stating that “the Order of December 2, 2010 . . . does constitute a dismissal of all claims Wells Fargo Bank may have had arising from the fire of April 11, 2009.” The court therefore granted summary disposition to Auto-Owners under MCR 2.116(C)(10). This appeal followed.
II. STANDARD OF REVIEW
We review de novo the trial court’s grant of summary disposition. Dancey v Travelers Prop Cas Co of America, 288 Mich App 1, 7; 792 NW2d 372 (2010). This Court reviews “a motion brought under MCR 2.116(C)(10) by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008), citing Greene v A P Prod, Ltd, 475 Mich 502, 507; 717 NW2d 855 (2006). Ultimately, 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.” Id. “A genuine issue of material fact exists when the record leaves open an issue on which reasonable minds could differ.” Bennett v Detroit Police Chief, 274 Mich App 307, 317; 732 NW2d 164 (2007).
With regard to whether this case is barred by the order in the companion case, the trial court granted summary disposition to defendants under MCR 2.116(0(10); however, the correct subrule for summary disposition based upon a prior order is (C)(7). See Bd of Co Rd Comm’rs for Eaton Co v Schultz, 205 Mich App 371, 373; 521 NW2d 847 (1994); MCR 2.116(C)(7) (providing that motion may be based on “prior judgment”). However, summary disposition under the incorrect subrule is not fatal, even if the moving party failed to cite the correct subrule, if the record supports review under the proper subrule. Detroit News, Inc v Policemen & Firemen Ret Sys of Detroit, 252 Mich App 59, 66; 651 NW2d 127 (2002) (“If summary disposition is granted under one subpart of the court rule when it was actually appropriate under another, the defect is not fatal and does not preclude appellate review as long as the record permits review under the correct subpart.”) (citation and quotation marks omitted). This Court reviews de novo a trial court’s decision on a motion for summary disposition pursuant to MCR 2.116(C)(7) to determine whether the moving party was entitled to judgment as a matter of law. Duncan v Michigan, 300 Mich App 176, 194; 832 NW2d 761 (2013).
The issue whether the policy covered the residence was not raised or decided in this case; it is therefore unpreserved. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). “Issues raised for the first time on appeal are not ordinarily subject to review.” Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993). “This Court has repeatedly declined to consider arguments not presented at a lower level.... We have only deviated from that rule in the face of exceptional circumstances.” Id. at 234 n 23. Nevertheless, this Court may consider an unpreserved issue “if the question is one of law and all the facts necessary for its resolution have been presented or where necessary for a proper determination of the case.” Providence Hosp v Nat’l Labor Union Health & Welfare Fund, 162 Mich App 191, 194-195; 412 NW2d 690 (1987) (citations omitted).
The “proper interpretation and application of an insurance policy is a question of law that we review de novo.” Grosse Pointe Park v Mich Muni Liability & Prop Pool, 473 Mich 188, 196; 702 NW2d 106 (2005). We therefore review de novo the trial court’s interpretation of the mortgage clause of the policy. Id. Generally, when reviewing an insurance policy dispute, an appellate court “look[s] to the language of the insurance policy and interpret^] the terms therein in accordance with Michigan’s well-established principles of contract construction.” Citizens Ins Co v Pro-Seal Serv Group, Inc, 477 Mich 75, 82; 730 NW2d 682 (2007) (citation and quotation marks omitted).
First, an insurance contract must be enforced in accordance with its terms. A court must not hold an insurance company liable for a risk that it did not assume. Second, a court should not create ambiguity in an insurance policy where the terms of the contract are clear and precise. Thus, the terms of a contract must be enforced as written where there is no ambiguity. [Id. (citation and quotation marks omitted).]
“An insurer is free to define or limit the scope of coverage as long as the policy language fairly leads to only one reasonable interpretation and is not in contravention of public policy.” Heniser, 449 Mich at 161. Policy language should be given its plain and ordinary meaning, and this Court must construe and apply unambiguous contract terms as written. Royal Prop Group, LLC v Prime Ins Syndicate, Inc, 267 Mich App 708, 715; 706 NW2d 426 (2005). “[A]n insurance contract should be viewed as a whole and read to give meaning to all its terms,” and “[conflicts between clauses should be harmonized. .. .” Busch v Holmes, 256 Mich App 4, 8; 662 NW2d 64 (2003) (citation and quotation marks omitted). This Court gives meaning to all the terms contained within the policy. See Mich Twp Participating Plan v Pavolich, 232 Mich App 378, 383; 591 NW2d 325 (1998).
III. ANALYSIS
A. THE ISSUE WHETHER THE RESIDENCE WAS COVERED UNDER THE POLICY IS BARRED FROM RELITIGATION BY THE DOCTRINE OF COLLATERAL ESTOPPEL
Wells Fargo argues that the residence was covered under the policy, and that the trial court erred by holding to the contrary. We note that, as stated earlier, this Court could decline to address this issue as unpreserved. Booth Newspapers, 444 Mich at 234 n 23. The issue presented was raised and decided in the companion case, not in the instant case. Nonetheless, as this issue presents a question of law for which all facts necessary for its resolution have been presented, we address this issue, and conclude that collateral estoppel bars its relitigation.
Generally, application of collateral estoppel requires that (1) the issue was actually litigated and determined by a valid and final judgment, (2) the same parties had a full and fair opportunity to litigate the issue, and (3) there is mutuality of estoppel. Monat v State Farm Ins Co, 469 Mich 679, 682-684; 677 NW2d 843 (2004). The issue to be decided must be identical to the one decided in a prior action, and not merely similar. Keywell & Rosenfeld v Bithell, 254 Mich App 300, 340; 657 NW2d 759 (2002).
[Mutuality of estoppel requires that in order for a party to estop an adversary from relitigating an issue[,] that party must have been a party, or in privy to a party, in the previous action. In other words, [t]he estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it, had it gone against him. [Monat, 469 Mich at 684-685 (citations and quotation marks omitted).]
“By preventing relitigation, this doctrine attempts ‘to relieve parties of multiple litigation, conserve judicial, resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.’ ” Bithell, 254 Mich App at 341, quoting Dearborn Hts Sch Dist No 7 v Wayne Co MEA/NEA, 233 Mich App 120, 124; 592 NW2d 408 (1998).
In the instant case, whether the residence was covered under the policy is an issue that has already been actually litigated and determined by a valid and final judgment. See Monat, 469 Mich at 682. The trial court in the companion case entered an order stating that the residence was not covered under the Auto-Owners policy. Elizabeth appealed that order and a panel of this Court affirmed, specifically holding that the residence was not covered under the policy in question at the time of the fire with regard to Elizabeth’s claim because “the policy limits coverage to the dwelling in which the insured resides and which is used as the insured’s primary residence.” Null, unpub op at 3. Therefore, this exact issue was the subject of a valid and final judgment. See MCR 7.202(6)(a)(i) (stating that a final judgment “disposes of all the claims and adjudicates the rights and liabilities of all the parties”); Wurzer v Geraldine, 268 Mich 286, 289; 256 NW 439 (1934) (“Final judgments are such as at once put an end to the action by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for.”) (citation and quotation marks omitted). The first prong of the collateral estoppel analysis is satisfied.
Next, the same parties or privies had a full and fair opportunity to litigate the issue.
A party is one who is directly interested in the subject matter and has a right to defend or to control the proceedings and to appeal from the judgment. A person is in privy to a party if, after the judgment, the person has an interest in the matter affected by the judgment through one of the parties, such as by inheritance, succession, or purchase. [Husted v Auto-Owners Ins Co, 213 Mich App 547, 556; 540 NW2d 743 (1995), aff'd 459 Mich 500 (1999)].
In Null v Auto-Owners Ins Co, LC No. 10-228-NI, Elizabeth was the plaintiff and Auto-Owners and Wells Fargo were defendants. In this case, Wells Fargo is the plaintiff and Elizabeth and Auto-Owners are defendants. Thus, the cases involved the exact same parties. Wells Fargo had a full and fair opportunity in the companion case to litigate whether the residence was covered under the Auto-Owners policy. Although there is no evidence of record indicating that Wells Fargo actually filed any briefing or motions in support of coverage under the Auto-Owners policy, it had the opportunity to do so as a party to the action. Moreover, Wells Fargo was dismissed from the case on its own motion. The general rule permits relitigation only if “[t]he party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action[.]” Monat, 469 Mich at 685 (citation, quotation marks, and emphasis omitted). Here, Wells Fargo — the party against whom preclusion applies — was a defendant in the initial action, was dismissed on its own motion, and as a named defendant could have participated in the appeal to this Court. See Null, unpub op at 1. Accordingly, relitigation is not permitted. Monat, 469 Mich at 685. The second prong of the doctrine is thus satisfied.
Finally, the mutuality prong is satisfied if the party “taking advantage of the earlier adjudication would have been bound by it, had it gone against him.” Monat, 469 Mich at 684-685 (citation and quotation marks omitted). The party that benefitted from the earlier judgment in this case is Auto-Owners; the earlier judgment concluded that the Auto-Owners policy did not cover the residence. However, if the earlier judgment had held that the residence was covered under the Auto-Owners policy, Auto-Owners, as a party to the judgment, would have been bound by that adverse decision. Id.-, Wurzer, 268 Mich at 289. Accordingly, Auto-Owners would have been bound by the previous judgment, had it gone against it, and the third prong of the analysis is satisfied. Monat, 469 Mich at 684-685.
Because we conclude that all three prongs of the collateral estoppel doctrine have been satisfied, we hold that the doctrine bars the relitigation of whether the residence was covered under the Auto-Owners policy.
B. WELLS FARGO WAS COVERED UNDER THE STANDARD MORTGAGE CLAUSE OF THE POLICY
“In general, there are two types of loss payable clauses, otherwise known as mortgage clauses, contained in insurance policies which protect lienholders.” Foremost Ins Co v Allstate Ins Co, 439 Mich 378, 383; 486 NW2d 600 (1992). The effect of a loss payable clause on a mortgagee’s claim depends on whether such a clause is “ordinary” or “standard.” Under an ordinary loss payable clause, “the lienholder is simply an appointee to receive the insurance fund to the extent of its interest, and its right of recovery is no greater than the right of the insured.” Id. There is “no privity of contract” between the insurer and the lienholder. Id. However, under a standard loss payable clause, sometimes termed a standard mortgage clause,
a lienholder is not subject to the exclusions available to the insurer against the insured because an independent or separate contract of insurance exists between the lien-holder and the insurer. In other words, there are two contracts of insurance within the policy — one with the lienholder and the insurer and the other with the insured and the insurer. [Id. at 384.]
See also Singer v American States Ins, 245 Mich App 370, 379; 631 NW2d 34 (2001) (“It is well settled that a policy’s standard mortgage clause constitutes a separate and distinct contract between a mortgagee and an insurance company for payment on the mortgage.”). In sum, under a standard mortgage clause, “the lienholder’s interest in the insured’s property will not be avoided by any acts, representations, or omissions of the insured.” Foremost, 439 Mich at 389. Thus, a standard mortgage clause “effects a new and independent insurance which protects the mortgagee as stipulated, and which cannot be destroyed or impaired by the mortgagor’s acts or by those of any person other than the mortgagee or someone authorized to act for him and in his behalf.” Id. at 389-390 (citation and quotation marks omitted).
The two types of clauses are generally identifiable within an insurance policy on the basis of their language. An ordinary loss payable clause simply provides that the mortgagee will be paid as its “interest may appear,” meaning that the mortgagee will only receive insurance proceeds to the extent of its interest in the insured property and will not have a right of recovery under the policy that is any greater than that of the insured. Id. at 383. A standard loss payable clause may contain the same language; however, it provides additional language that serves to afford coverage to the mortgagee even where it is not afforded to the insured. The result of such language is that “the lienholder’s interest in the insured’s property will not be avoided by any acts, representations, or omissions of the insured.” Id. at 389. A standard loss payable clause thus may contain language indicating, for example, that the mortgagee will be covered notwithstanding “any act or neglect by the insured” that may result in the denial of coverage to the insured. Id. at 386, 388.
In the instant case, the Auto-Owners policy includes the following mortgage clause:
k. MORTGAGE CLAUSE
This provision applies to only the mortgagee named in the Declarations. It does not affect your [the insured’s] rights or duties under this policy.
The word mortgagee includes a trustee under a deed of trust and a contract seller under a land contract.
Loss covered by the policy, if any, shall be payable to the mortgagee, as their interest may appear, under all present or future mortgages upon the property described in the Declarations of this policy in which the mortgagee may have an interest. If more than one mortgagee is named in the Declarations, payment shall be made in order of precedence of the mortgages.
If we [Auto-Owners] deny your [the insured’s] claim, such denial will not apply to a valid claim of the mortgagee, provided the mortgagee:
(1) notifies us [Auto-Owners] of any change of ownership or occupancy or substantial change in exposure which has come to the knowledge of the mortgagee;
(2) pays any premium due under this policy that you [the insured] or the mortgagor has neglected to pay; and
(3) submits to us [Auto-Owners], within 60 days after receiving notice from us [Auto-Owners] of your [the insured’s] failure to do so, a proof of loss signed and sworn by the mortgagee.
Whenever we [Auto-Owners] pay the mortgagee any sum for loss under this policy and deny payment to you [the insured] for such loss:
(1) to the extent of such payment, we [Auto-Owners] are legally subrogated to all rights of the mortgagee under the terms of the mortgage on the covered property; or
(2) at our [Auto-Owners’] option, we [Auto-Owners] may pay to the mortgagee the whole principal due, with interest accrued, and shall then receive full assignment and transfer of the mortgage and of all collateral.
Subrogation shall not impair the right of the mortgagee to recover the full amount of the mortgagee’s claim.
We [Auto-Owners] may cancel or nonrenew [sic] this policy at any time as provided by its terms. We will notify the mortgagee at least 10 days prior to the effective date of the cancellation or nonrenewal. We may also cancel this agreement by providing 10 days notice to the mortgagee.
All policy terms and conditions apply to the mortgagee.
Wells Fargo maintains that this mortgage clause constitutes a standard mortgage clause that acts as a separate contract between it and Auto-Owners, and that coverage under the standard mortgage clause is not avoided by Lonnie’s failure to comply with the policy’s requirement that he reside in the premises. Auto-Owners does not dispute that the clause is a standard mortgage clause, and in fact concedes that it gives rise to a separate contract that protects Wells Fargo against certain actions of the insured under the policy.
We agree with the parties, and conclude that the policy in this case contains a standard mortgage clause. The clause provides that the mortgagee will be paid “as their interest may appear,” like an ordinary loss payable clause, see Foremost, 439 Mich at 383, but it also provides that if Auto-Owners denies the insured’s claim, “such denial will not apply to a valid claim of the mortgagee,” provided the mortgagee complies with certain conditions. Thus, the policy provides that the mortgagee will be protected from loss even if coverage is denied to the insured, which is consistent with the requirements for a standard mortgage clause. Id. at 389-390.
Wells Fargo argues that this clause provides coverage for it, as mortgagee, even though it was determined in the companion case that Elizabeth was barred from recovery. That determination was based on Lonnie’s failure to reside in the premises, as a result of which the property did not meet the policy’s definition of “residence premises.” According to Wells Fargo, Lonnie’s act or neglect did not operate to avoid coverage for Wells Fargo under the separate contract of the standard mortgage clause. Auto-Owners responds that the standard mortgage clause is not applicable in situations where the policy does not provide coverage for an insured in the first instance, rather than where coverage is afforded but then negated by an exclusion.
The trial court did not provide any rationale for its conclusion that Wells Fargo was not covered under the policy. The trial court’s order only provided that it granted summary disposition under MCR 2.116(0(10) because “the insurance policy at issue does not provide coverage to plaintiff Wells Fargo Bank for damages to the structure arising from the fire of April 11, 2009.”
Our review de novo of the language of the policy leads us to conclude that the trial court erred by granting summary disposition to Auto-Owners. We thus agree with Wells Fargo, and hold that the standard mortgage clause in this case is a separate contract between Wells Fargo and Auto-Owners that, by its plain language, affords coverage to the mortgagee under the circumstances presented.
As noted, “it is well settled that a policy’s standard mortgage clause constitutes a separate and distinct contract between a mortgagee and an insurance com pany for payment on the mortgage.” Singer, 245 Mich App at 379. Accordingly, under a standard mortgage clause, “the lienholder’s interest in the insured’s property will not be avoided by any acts, representations, or omissions of the insured.” Foremost, 439 Mich at 389. However, the standard mortgage clause in the Auto-Owners policy also provides that it only applies to a “valid claim of the mortgagee” when certain conditions are met and that “[a]ll policy terms and conditions apply to the mortgagee[.]” The Auto-Owners policy does not explain or define the phrase “valid claim of the mortgagee.” Likewise, the trial court did not address the meaning of this language.
Generally, the circumstances under which Michigan courts have had occasion to consider coverage under a standard mortgage clause have been in the context of policy exclusions such as those noted on appeal by Auto-Owners, i.e., fraud, arson, or loss resulting from the negligence of the insured. See, e.g., Ramon v Farm Bureau Ins Co, 184 Mich App 54, 58; 457 NW2d 90 (1990) (considering a standard loss payable clause in the context of “arson and fraud”). In Foremost Ins Co, 439 Mich at 384-390, our Supreme Court held that the insured’s intentional destruction of his motor home by arson, and the insured’s acts of fraud and misrepresentation, did not preclude coverage to the mortgagee under the standard mortgage clause. In holding that the mortgagee could still recover under the policy even though the insured’s acts precluded coverage to the insured, however, the Court stated:
As we have previously noted, there are two contracts of insurance involved in this case. One covers risk and outlines exclusions for the insured and the insurer. The other operates as an independent contract for the limited purpose of preventing the loss of coverage by any act or neglect between the insurer and the insured. The prevention of recovery under the contract between the insured and the insurer does not prohibit the recovery by the lienholder under its separate contract of insurance with the insurer .... [Id. at 388-389.]
Thus, the Court indicated that the standard mortgage clause was an independent contract of insurance meant to prevent loss of coverage for the mortgagee for any act or neglect between the insured and the insurer. While the case may have involved denial of coverage to the insured pursuant to an exclusion, rather than a finding that no coverage existed, the Court did not make a distinction between acts that precluded coverage and acts that excluded coverage when setting forth the rule of law.
We also reject that distinction in the circumstances presented in this case. Our decision in that regard is supported not only by Foremost, but also by our Supreme Court’s earlier decision in Citizens State Bank of Clare v State Mut Rodded Fire Ins Co of Mich, 276 Mich 62; 267 NW 785 (1936). The mortgagee in that case similarly sought coverage, notwithstanding denial of the insured’s claim, after a fire loss. The denial of the insured’s claim was not premised on a policy exclusion, but rather on the insurer’s position that the insured lacked an insurable interest or, alternatively, had obtained the policy through fraudulent representations in the application. That is, the insurer contended, as does Auto-Owners in this case, that there was no coverage in the first instance. In describing the effect and nature of a standard mortgage clause, the Court stated:
The effect of this clause has been the subject of much litigation, and the conclusion derived is well stated in 5 Couch, Cyclopedia Insurance Law, p 4435, § 1215b:
The so-called “standard” or “union” mortgage clause, making the mortgagee payee, and stipulating that the insurance shall not be invalidated by the mortgagor’s acts or neglect, constitutes an independent contract between said mortgagee and insurer, and in such case the subject-matter of the insurance is the mortgagee’s insurable interest, and not the real estate, and the risk will not be avoided by any acts, representations, or omissions of the mortgagor or owner, whether done or permitted prior or subsequently to, or at the time of, the issuance of the policy.
Since the case of Hastings [v Westchester Fire Ins Co, 73 NY 141 (1878)], the courts have declared this to be a separate contract between insurer and mortgagee and not subject to most of the defenses which the insurer might have against the mortgagor. Consequently, since the clause operates as a separate and distinct contract of insurance upon the mortgagee’s interest, it gives the mortgagee such an independent status as might authorize a recovery on the policy by him even though the mortgagor were precluded. [Citizens State Bank, 276 Mich at 67-69 (emphasis added; citations omitted).]
Thus, standard mortgage clauses operate to afford coverage to mortgagees even when coverage is denied to an insured in a context other than the application of a policy exclusion, and even when the act or neglect of the insured occurs before the issuance of the policy.
This reading is consistent with the very purpose of standard mortgage clauses. A mortgagee is in a real sense a bystander to the negotiation of an insurance policy between an insured and an insurer, and to the resulting relationship between them. Although a mortgagee facilitates an insured’s property ownership and is thus essential both to the insured’s ownership of property and to the insured’s ability then to insure that property, the mortgagee’s role in the process of obtaining insurance is essentially nonexistent. That process occurs solely between the insured and the insurer; the mortgagee is merely along for the ride. The insured makes an application to the insurer; the insurer bears the responsibility for and assumes the risks associated with evaluating the insured’s application and related representations, and the facts and circumstances attendant thereto; and it proceeds accordingly. Similarly, the mortgagee is not a party to the resulting relationship between the insured and the insurer, and possesses neither the rights nor the responsibilities that are attendant to that relationship. Unlike the insurer, the mortgagee plays no role in the application evaluation process or in any resulting relationship with the insured; consequently, in the standard mortgage clause context, the mortgagee is entitled under the law to rely on the insurer’s assumption of responsibility to engage in that evaluation to its satisfaction, and to assume the risks of the resulting relationship.
The consequence of this is that the mortgagee is protected in the event that any act or neglect by the insured, either before, during, or after the application process, causes the insured to be denied coverage under the policy. It matters not whether that act or neglect by the insured falls within a policy exclusion or causes there to be no coverage under the policy in the first instance. In either event, the standard mortgage clause affords protection to the mortgagee.
In this case, it was the insured’s act of ceasing to reside in the residence that negated the insured’s coverage. We hold that, under the rule of law announced in Foremost and Citizens State Bank, that circumstance does not negate coverage for Wells Fargo, as mortgagee, under the standard mortgage clause of the Auto-Owners policy.
Our conclusion is further supported on these facts by the language of the Auto-Owners policy itself. Specifically, the standard mortgage clause of the policy provides that a denial of the insured’s claim “will not apply to a valid claim of the mortgagee,” provided the mortgagee complies with certain conditions. One of those conditions is that the mortgagee “notifies [Auto-Owners] of any change of ownership or occupancy or substantial change in exposure which has come to the knowledge of the mortgagee[.]” The inclusion of this language in the standard mortgage clause demonstrates that a mere “change of ownership or occupancy” — such as occurred in this case — will not, in and of itself, avoid coverage to the mortgagee. Even though the consequence of that circumstance may be that no coverage exists for the insured in the first instance, the standard mortgage clause continues to afford protection to the mortgagee.
For the same reason, the use of the adjective “valid” within the phrase “valid claim of the mortgagee” is inconsequential to our analysis. The standard mortgage clause is clear that, notwithstanding the above circumstance, a mortgagee still may have a “valid claim.” To read the term more broadly, so to exclude as “invalid” any claim arising in the context of a change in ownership or occupancy, would give rise to an internal inconsistency in the policy language, and effectively would undermine the policy’s own standard mortgage clause. We decline to so interpret the policy language. See Ingersoll-Rand Fin Corp v Employers Ins of Wausau, 771 F2d 910, 914 (CA 5, 1985), quoting Couch, Insurance, 2d (rev ed), § 42:720 (1982) (“ ‘[I]nsofar as the provisions of the policy are inconsistent with or antagonistic to the clause protecting the interest of the mortgagee, they must be regarded as inapplicable in determining his rights.’ ”) (citation and quotation marks omitted). Further, to the extent- that this or other language may be read as giving rise to an ambiguity in the policy, such ambiguities must be construed against Auto-Owners as the drafter. Wilkie v Auto-Owners Ins Co, 469 Mich 41, 62; 664 NW2d 776 (2003) (“[I]t is already well established that ambiguous language should be construed against the drafter, i.e., the insurer.”).
Our conclusion draws further support from decisions in other jurisdictions. There are no Michigan cases that squarely consider whether a mortgagee continues to have a “valid claim” under a standard mortgage clause even when the property is not covered because it was not a “residence premises” at the time of the loss. However, other jurisdictions have considered the application of standard mortgage clauses in similar contexts. Caselaw from other states is not binding on this court, but may be “instructive” and used as a guide. A&E Parking v Detroit Metro Wayne Co Airport Auth, 271 Mich App 641, 645; 723 NW2d 223 (2006); see also Holland v Trinity Health Care Corp, 287 Mich App 524, 529; 791 NW2d 724 (2010).
In Ingersoll-Rand, 771 F2d at 911-914, the United States Court of Appeals for the Fifth Circuit addressed a standard mortgage clause that provided no coverage for the insured. The case involved an insurance policy covering a ship that was stolen because of the insured’s negligence; however, theft of the ship was not covered under the policy. Id. at 911. As the Fifth Circuit explained, “[b]oth parties agree that loss by theft of the vessel was not among the named perils covered by the policy; so that the insured mortgagor-owner . . . could not itself recover on the policy for the present loss if occasioned by a theft of the vessel.” Id. at 912. Nevertheless, the Fifth Circuit held that the mortgagee could recover under the policy’s standard mortgage clause, stating:
Where the issue has been squarely presented, the modern decisions are unanimous, and the earlier decisions virtually so, in holding that a mortgagee under a standard mortgage clause may (where not guilty himself of any breaches of policy conditions) recover from the insurer for a loss sustained by the mortgaged property, even though the risk be excluded from the policy coverage ....
. .. The intent of the standard mortgage clause is that the mortgagee’s right to recover will not be invalidated by the act or negligence of the mortgagor and that no act or default of any person other than the mortgagee .. . shall affect the rights of the mortgagee to recover in case of loss. “[IJnsofar as the provisions of the policy are inconsistent with or antagonistic to the clause protecting the interest of the mortgagee, they must be regarded as inapplicable in determining his rights.” [Id. at 913-914, quoting Couch, § 42:720 (citations and quotation marks omitted).]
Additionally, under facts closely resembling the facts of the instant case, the California Court of Appeals has held that a mortgagee was covered under a policy’s standard mortgage clause. In Home Savings of America, FSB v Cont’l Ins Co, 87 Cal App 4th 835; 104 Cal Rptr 2d 790, 792 (Cal App, 2001), the insured homeowners vacated their residence and demolished the property with the intent to rebuild; however, they did not notify the insurer or the mortgagee of their actions. Id. After the loan went into default, the mortgagee learned of the vacancy and demolition and sought to recover under the policy’s standard mortgage clause. Similar to the terms of the policy in this case, the policy contained a “residence premises” definition and a standard mortgage clause providing that a denial of the insured’s claim would not apply to a “valid claim of the mortgagee, if the mortgagee . . . notifies [the insurer] of any change in ownership, occupancy or substantial change in risk of which the mortgagee is aware[.]” Id. at 792, 796. The California court cited with approval Foremost, 439 Mich at 383-384, for its description of the nature and effect of standard mortgage clauses. The court concluded that, even though the insured did not reside in the home, and had actually demolished the home when the mortgagee filed its claim, the mortgagee remained covered under the policy’s standard mortgage clause. More specifically, the court held that “[e]ven though ownership and occupancy are requirements of coverage as far as the named insured is concerned . .., a change in ownership and occupancy will not defeat coverage for the mortgagee, provided the mortgagee gives notice of the changes of which it is aware.” Id. at 796.
In Waterstone Bank, SSB v American Family Mut Ins Co, 2013 Wis App 60, 348 Wis 2d 213, 221-222; 832 NW2d 152 (2013), however, the Wisconsin Court of Appeals upheld the insurance company defendant’s denial of coverage to the plaintiff mortgagee, because the business-owner’s policy did not cover certain losses if the property was “vacant” (defined as less than 31% of the total space rented or used) for a specified period of time prior to the occurrence of the losses. Importantly, the court noted that vacancy was not prohibited by the policy; in fact the policy specifically contemplated that a building may become vacant, in which case certain losses would not be covered; thus, the vacancy clause was “not a term or condition, the violation of which by the property owner’s act would forfeit or void the policy.” Id. at ¶ 11.
We find Ingersoll-Rand and Home Savings to be persuasive and to support our conclusion that the rule of Foremost provides for coverage for Wells Fargo in the instant case. We find Waterstone Bank to be distinguishable, because it involved a business-owner’s policy under which “noncoverage existed by virtue of the vacancy provision and not by any breach or violation by the property owner,” Waterstone Bank, 2013 Wis App at ¶ 10, rather than, as here, a homeowner’s policy under which the insured was denied coverage because the insured had failed to abide by the residency requirement of the policy (“Thisdwelling [sic] must be used principally as your private residence.”). Thus, unlike this case, Waterstone Bank did not involve the sort of act or neglect on the part of the insured from which the standard mortgage clause was designed to protect the mortgagee.
For all these reasons, we conclude that the trial court erred by granting summary disposition to Auto-Owners with respect to Wells Fargo’s coverage under the standard mortgage clause of the policy. Further, for the reasons indicated, we hold that the standard mortgage clause of the policy unambiguously provides coverage for Wells Fargo in the circumstances presented. For the reasons discussed later in this opinion, however, we conclude, on the basis of the record that is now before us, that it would be premature to direct the entry of summary disposition in favor of Wells Fargo.
C. THE ORDER GRANTING SUMMARY DISPOSITION TO WELLS FARGO IN THE COMPANION CASE DOES NOT BAR ■WELLS FARGO’S CLAIM IN THIS CASE
Finally, Wells Fargo argues that the trial court’s order granting summary disposition to Wells Fargo in the companion case does not bar its claim in this case. Auto-Owners responds that the doctrines of judicial estoppel and estoppel by laches apply to bar Wells Fargo’s claim because Wells Fargo was aware of the claim and had an opportunity to bring the claim during the companion case. The trial court did not provide any rationale or reasoning for its conclusion that the companion case barred Wells Fargo’s claim in this case. The trial court only stated that its previous order “does constitute a dismissal of all claims Wells Fargo Bank may have had arising from the fire of April 11, 2009.” We agree with Wells Fargo that the companion case does not bar its claim in the instant case.
“Judicial estoppel precludes a party from adopting a legal position in conflict with a position taken earlier in the same or related litigation. The doctrine protects the integrity of the judicial and administrative processes.” Ford Motor Co v Pub Serv Comm, 221 Mich App 370, 382-383; 562 NW2d 224 (1997). This Court has held that “[u]nder the doctrine of judicial estoppel, a party that has unequivocally and successfully set forth a position in a prior proceeding is estopped from setting forth an inconsistent position in a later proceeding.” Detroit Int’l Bridge Co v Commodities Export Co, 279 Mich App 662, 672; 760 NW2d 565 (2008). For the doctrine to apply, the party’s position in the prior proceeding must have been “ ‘wholly inconsistent’ ” with the same party’s position in the later proceeding. Szyszlo v Akowitz, 296 Mich App 40, 51; 818 NW2d 424 (2012), quoting Paschke v Retool Indus, 445 Mich 502, 510; 519 NW2d 441 (1994). The doctrine was developed to prevent parties from playing “ ‘fast and loose’ with the legal system.” Paschke, 445 Mich at 509 (citation omitted).
“Estoppel by laches is the failure to do something which should be done under the circumstances or the failure to claim or enforce a right at a proper time.” Schmude Oil Co v Omar Operating Co, 184 Mich App 574, 583; 458 NW2d 659 (1990), citing Bartnicki v Wayne Co Drain Comm’r, 18 Mich App 200, 205; 170 NW2d 856 (1969). “To successfully assert laches as an affirmative defense, a defendant must demonstrate prejudice occasioned by the delay.” Id., citing Lothian v Detroit, 414 Mich 160, 168; 324 NW2d 9 (1982).
We conclude that neither of these doctrines is applicable to the circumstances of the instant case. With regard to judicial estoppel, there is no record evidence that Wells Fargo “unequivocally and successfully set forth a position in a prior proceeding” and is now attempting to present “an inconsistent position” in this proceeding. Detroit Int’l Bridge Co, 279 Mich App at 672. The companion case concerned whether Elizabeth was entitled to benefits under the Auto-Owners policy. This case concerns whether Wells Fargo is covered under the standard mortgage clause of the Auto-Owners policy. There is no evidence of record that Wells Fargo argued in the companion case that it was not entitled to coverage under the standard mortgage clause of the policy. In fact, even after Wells Fargo was dismissed from the companion case, it moved to intervene as a counterplaintiff, seeking to assert that it was entitled to its share of the proceeds that Auto-Owners owed Elizabeth. This position is congruent with the one Wells Fargo takes in this case, by arguing both that coverage was afforded to the insured under the policy, and that coverage was separately afforded to it under the standard mortgage clause of the policy. Wells Fargo’s position thus is not “ ‘wholly inconsistent’ ” with its position in the companion case, and the doctrine of judicial estoppel does not apply. Szyszlo, 296 Mich App at 51, quoting Paschke, 445 Mich at 510.
Further, even though it may have been more efficient for Wells Fargo to have asserted its claim against Auto-Owners in the companion case, “[t]o successfully assert laches as an affirmative defense, a defendant must demonstrate prejudice occasioned by the delay.” Schmude Oil, 184 Mich App at 583. There is no evidence of record that Auto-Owners was prejudiced by virtue of the disposition of Elizabeth’s claim and Wells Fargo’s claim in two different lawsuits. Wells Fargo acted promptly to protect its interest upon the denial of its claim in late 2011. In fact, the present case was filed while the companion case was still pending in the trial court. Regardless of these circumstances and judicial efficiency, however, the record does not support the conclusion that Auto-Owners was prejudiced by the resolution of these claims in separate actions. Accordingly the doctrine of estoppel by laches does not apply.
IV REMAND IS NECESSARY FOR DETERMINATION OF WHETHER WELLS FARGO COMPLIED WITH THE REQUIREMENTS OF THE POLICY
In its motion for summary disposition before the trial court, Auto-Owners alternatively argued that, even if coverage was afforded to Wells Fargo under the mortgage clause, Wells Fargo had failed to comply with the requirement that it “submitf] to us [Auto-Owners], within 60 days after receiving notice from us [Auto-Owners] of your [the insured’s] failure to do so, a proof of loss signed and sworn by the mortgagee.” Auto-Owners alleged that it informed Wells Fargo in correspondence dated August 17, 2009, that it was required to submit a sworn proof of loss within 60 days, and that Wells Fargo failed to do so. Thus, it argued, Auto-Owners properly denied Wells Fargo’s claim.
Wells Fargo responded that a genuine issue of material fact existed regarding whether it had “received” the requisite notice from Auto-Owners, so as to trigger its obligation to provide a sworn proof of loss within 60 days. Wells Fargo further argued that deposition testi mony from an Auto-Owners claims representative supported the notion that it had made a valid claim under the policy, and that in any event correspondence from Auto-Owners on April 21, 2009, contained the representation that Auto-Owners had received a claim from the insured and that Wells Fargo needed to take no further action to secure its rights under the policy.
The parties addressed this issue at a hearing before the trial court and presented arguments consistent with the positions taken in their respective briefs. However, the trial court made no specific ruling on this issue in its order granting summary disposition to Auto-Owners. Because the trial court concluded that the policy did not provide coverage to Wells Fargo, and further that its order in the companion case barred Wells Fargo’s claim, it apparently saw no need to address the issue of Wells Fargo’s compliance with policy provisions.
Because we conclude that the trial court erred by ruling that the policy did not provide coverage to Wells Fargo and that the companion case barred Wells Fargo’s claim, we conclude that the proper course of action is to remand to allow the trial court to decide whether a genuine issue of material fact exists concerning Wells Fargo’s compliance with the requirements of the policy. This comports with the principle that “[ajppellate review is generally limited to issues decided by the trial court.” Candelaria v B C Gen Contractors, Inc, 236 Mich App 67, 83; 600 NW2d 348 (1999). This is especially true where, as here, the issue has not been briefed on appeal, and it would be inappropriate to request supplemental briefing on the issue in the absence of a ruling from the trial court. Id. Consequently, and notwithstanding our holding that the standard mortgage clause of the policy unambiguously provides coverage for Wells Fargo in the circumstances presented, the trial court, on remand, should determine whether there is any genuine issue of material fact as to whether Wells Fargo complied with the requirements of the policy.
V CONCLUSION
We conclude that the doctrine of collateral estoppel bars relitigation of whether the residence was covered under the policy. We further conclude that the trial court erred by granting summary disposition to Auto-Owners on the issue of Wells Fargo’s coverage under the policy. We hold as a matter of law that the policy’s standard mortgage clause afforded coverage to Wells Fargo, the mortgagee, despite the lack of coverage for the insured. Additionally, we conclude that the doctrines of judicial estoppel and estoppel by laches do not bar Wells Fargo’s claim in the instant case. We further conclude, however, that it would be inappropriate at this juncture to determine as a matter of law whether Wells Fargo complied with the requirements of the policy, without consideration of that issue by the trial court.
We therefore reverse the trial court’s grant of summary disposition in favor of Auto-Owners and remand this case for further proceedings consistent with this opinion. On remand, the trial court should determine whether, in light of our decision that the policy provides for coverage for Wells Fargo and Wells Fargo’s claims are not barred by the companion case, a genuine issue of material fact exists regarding Wells Fargo’s compliance with the requirements of the policy.
Reversed and remanded. We do not retain jurisdiction.
CAVANAGH and FITZGERALD, JJ., concurred with BOONSTRA, P.J.
The trial court’s grant of summary disposition in favor of Elizabeth is not at issue on appeal, and we do not disturb that ruling.
The July 19, 2012 order made no mention of Elizabeth, who was also a defendant in the action. The tried court entered another order on September 4, 2012, providing that all claims, against both Auto-Owners and Elizabeth, were dismissed with prejudice for the reasons provided in the previous order.
We note that our Supreme Court has held that “where collateral estoppel is being asserted defensively against a party who has already had a full and fair opportunity to litigate the issue, mutuality is not required.” Monat, 469 Mich at 695. However, we find the mutuality prong to be satisfied in this case, whether or not applicable.
We disagree with Wells Fargo’s contention that denial of coverage to Elizabeth under the policy renders the policy illusory or in violation of Michigan law. Had Lonnie resided in the home as required by the policy, the home would have been covered under the policy. The policy was thus not “so insubstantial as to impose no obligation,” Black’s Law Dictionary (9th ed), p 1332 (defining “illusory promise”), nor did it violate any statutory provisions governing the issuance of fire insurance policies, see MCL 500.2833 and Heniser, 449 Mich at 161.
For the same reason, we decline to read the language “[a]ll policy terms and conditions apply to the mortgagee” as meaning that the mortgagee is subject to all defenses to which the insured may be subject. Such a reading would be contrary to specific language of the policy, would serve to undermine the law’s recognition of the purpose and effect of the standard mortgage clause, and would be inconsistent with and antagonistic to the clause that protects the interest of the mortgagee. Ingersoll-Rand, 771 F2d at 913. | [
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PER CURIAM.
A jury convicted defendant of one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(l)(a) (victim less than 13 years old), for which he was sentenced to 30 to 50 years in prison. Defendant appeals by right, challenging his sentence on two separate grounds. We vacate defendant’s sentence and remand for resentencing consistent with this opinion.
i
Defendant, aged 17V2 years at the time of the offense, was charged with CSC-I arising from the alleged penile-anal penetration of the five-year-old victim on June 3, 2012. Although defendant initially denied the allegations against him, he later admitted to officers from the Van Burén County Sheriffs Department that “the five-year-old boy pulled his pants down and that he stuck his penis in the child’s butt. . . .”
At trial, the young victim testified that defendant “put his pee-pee in my butt” and “[i]t hurt.” The victim testified that, after the incident, he ran away and told his mother and grandmother what had happened. Paul Wahby, M.D., an emergency room physician, testified that his examination of the victim showed “trauma to the peri-anal area and it was fresh.” Dr. Wahby further testified, “[T]he degree of trauma I saw was consistent with penetration.”
Defense counsel argued that defendant was not guilty by reason of insanity or, in the alternative, guilty but mentally ill. Defense counsel stressed defendant’s premature birth, intellectual difficulties, and ongoing treatment for various mental-health disorders. The jurors heard the testimony of defense witness Robert Dempsey, M.D., a psychiatrist with Van Burén County Community Mental Health. Dr. Dempsey testified that defendant had received treatment for bipolar disorder, oppositional defiant disorder, attention deficit hyperactivity disorder, personality disorder, and Tourette syndrome. Dr. Dempsey agreed with defense counsel that defendant had a “substantial mental illness,” and testified that defendant’s conditions could cause him to behave impulsively. Dr. Dempsey opined that some of defendant’s disorders were inherited and that others were likely caused or exacerbated by his premature birth. On cross-examination, however, Dr. Dempsey admitted that defendant was “able to conform his conduct to the requirements of the law” and “[t]here was nothing to lead me to believe that [defendant] didn’t understand his conduct.”
As a rebuttal witness, the prosecution called Susan Tremonti, Ph.D., a psychologist from the State Center for Forensic Psychiatry. Dr. Tremonti testified that she had examined defendant prior to trial and had concluded that “[defendant] did not meet the legal criteria for insanity as defined by statute.” Dr. Tremonti also concluded that, although defendant appeared to suffer from borderline intellectual functioning, there was no evidence to suggest that he was mentally retarded. With respect to the issue of mental illness, Dr. Tremonti acknowledged defendant’s prior diagnoses of bipolar disorder and oppositional defiant disorder. However, she opined that these conditions did not cause defendant to “lack... a substantial capacity to appreciate the nature and quality of his behavior” at the time of the offense.
The jury convicted defendant of CSC-I as charged. The jury specifically rejected defendant’s arguments that he was not guilty by reason of insanity or guilty but mentally ill. As noted previously, the circuit court sentenced defendant to 30 to 50 years in prison.
ii
Defendant first argues that the circuit court erred by exceeding the mandatory minimum sentence of 25 years without articulating any substantial and compelling reasons for doing so. Therefore, he asserts, he is entitled to resentencing. We agree.
The Legislature has provided that, when a defendant who is 17 years of age or older is convicted of CSC-I against a victim who is less than 13 years of age, the defendant shall be punished “by imprisonment for life or any term of years, but not less than 25 years.” MCL 750.520b(2)(b). Defendant argues that this provision establishes a flat 25-year mandatory minimum sentence and that the circuit court was therefore required to articulate substantial and compelling reasons to justify its upward departure in this case. In contrast, the prosecution argues that the statutory provision establishes a mandatory minimum sentence of “not less than 25 years” and that the circuit court was consequently entitled to set defendant’s minimum sentence at 30 years without articulating any substantial and compelling reasons.
The prosecution’s argument in this regard was implicitly rejected by our Supreme Court in People v Wilcox, 486 Mich 60; 781 NW2d 784 (2010). In Wilcox, 486 Mich at 62, our Supreme Court examined MCL 750.520f(l), which requires the circuit court to impose “a mandatory minimum sentence of at least 5 years” when a defendant is convicted of a second or subsequent criminal sexual conduct felony offense. The defendant contended that the statute prescribed a mandatory minimum sentence of 5 years and that the circuit court was required to articulate substantial and compelling reasons before upwardly departing and imposing a minimum sentence of 10 years. Wilcox, 486 Mich at 62. In contrast, the prosecution contended that because the defendant’s minimum sentence of 10 years was “at least 5 years” within the meaning of the statute, the circuit court was entitled to impose the 10-year minimum without providing any substantial and compelling reasons. Id.
Our Supreme Court agreed with the defendant, holding that “the guidelines apply to defendant’s sentence and . .. the ‘mandatory minimum’ sentence in MCL 750.520f(l) is a flat 5-year term.” Wilcox, 486 Mich at 62. The Wilcox Court explained that although the words “at least 5 years” in MCL 750.520f(l) permitted a minimum sentence of greater than 5 years if supported by substantial and compelling reasons, only a flat 5-year term qualified as a “mandatory minimum” within the meaning of MCL 769.34(2)(a). Wilcox, 486 Mich at 69-70. Therefore, only a flat 5-year minimum was exempt from the substantial-and-compelling-reasons departure requirement of MCL 769.34(3). Wilcox, 486 Mich at 70; see also MCL 769.34(2)(a).
Under the reasoning of Wilcox, it is clear that the “mandatory minimum” sentence in MCL 750.520b(2)(b) is a flat 25-year term for purposes of MCL 769.34(2) (a), and that any upward departure from this 25-year mandatory minimum must be supported by substantial and compelling reasons. See Wilcox, 486 Mich at 62; see also MCL 769.34(3).
In the present case, defendant fell within cell C-III on the sentencing grid for Class A felonies, providing for a minimum guidelines range of 81 to 135 months. MCL 777.62. Nonetheless, because defendant was 17 years of age or older and committed CSC-I against a victim less than 13 years of age, the circuit court was required to impose a minimum sentence of at least 25 years. MCL 750.520b(2)(b). Because the upper limit of defendant’s minimum- sentence guidelines range (135 months) was less than the 25-year statutory minimum, the circuit court had two options. First, the court could have imposed a flat 25-year minimum without articulating any substantial and compelling reasons. MCL 769.34(2)(a); Wilcox, 486 Mich at 70. Alternatively, the court could have imposed a minimum sentence of greater than 25 years if supported by sufficient substantial and compelling reasons. Id. But the court chose neither of these two options. Instead, it imposed a minimum sentence of 30 years without articulating any reasons whatsoever for its upward departure. This was error.
We vacate defendant’s sentence and remand for resentencing. On remand, the circuit court shall either (1) impose a flat 25-year minimum, or (2) if it again decides to upwardly depart from the 25-year mandatory minimum, articulate substantial and compelling reasons sufficient to justify its departure and the extent thereof. Wilcox, 486 Mich at 72. After resentencing, the circuit court shall prepare a new judgment of sentence and transmit a copy to the department of corrections.
hi
Because we are remanding this case for resentencing, we must address defendant’s second issue on appeal. Defendant argues that the 25-year mandatory mini mum of MCL 750.520b(2)(b) constitutes cruel or unusual punishment as applied to an offender who was less than 18 years old at the time of his CSC-I offense. Relying in part on Miller v Alabama, 567 US_; 132 S Ct 2455; 183 L Ed 2d 407 (2012), he asserts that “[requiring juveniles to serve a 25-year mandatory minimum without any sort of individualized consideration violates the Eighth Amendment. . . .” We disagree.
In People v Benton, 294 Mich App 191, 203-207; 817 NW2d 599 (2011), this Court determined that the 25-year mandatory minimum prescribed by MCL 750.520b(2)(b) is neither cruel nor unusual when imposed for an adult offender. The Benton Court observed that the offense of CSC-I against a child victim is particularly reprehensible and that the 25-year mandatory minimum is not disproportionately harsh when compared to sentences for similar sexual offenses in Michigan and other states. Benton, 294 Mich App at 205-207.
We acknowledge that “[a]n offender’s age is relevant to the Eighth Amendment,” Graham v Florida, 560 US 48, 76; 130 S Ct 2011; 176 L Ed 2d 825 (2010), and that “a sentencing rule permissible for adults may not be so for children,” Miller, 567 US at_; 132 S Ct at 2470. “[CJhildren are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform . . . ‘they are less deserving of the most severe punishments.’ ” Id. at_; 132 S Ct at 2464, quoting Graham, 560 US at 68. A 17-year-old offender is considered a juvenile for purposes of the Eighth Amendment, even if he or she is classified as an adult by state law. See, e.g., Miller, 567 US at_; 132 S Ct at 2460; Roper v Simmons, 543 US 551, 570-571; 125 S Ct 1183; 161 L Ed 2d 1 (2005); United States v Marshall, 736 F3d 492, 498 (CA 6, 2013).
We cannot conclude that the 25-year mandatory minimum prescribed by MCL 750.520b(2)(b) is cruel or unusual when applied to a juvenile offender such as defendant. Although a minimum sentence of 25 years is unquestionably substantial, it is simply not comparable to the sentences of death and life without parole found unconstitutional when applied to juveniles in Miller, Graham, and Roper. Sentences of death and life without parole are the harshest criminal penalties in American law. See Miller, 567 US at_; 132 S Ct at 2466, 2468. Such penalties violate the Eighth Amendment when applied to juvenile offenders because, by their very nature, they preclude any meaningful opportunity for release based on demonstrated maturity or rehabilitation. See id. at_; 132 S Ct at 2466-2469.
By contrast, the 25-year mandatory minimum sentence at issue in this case does allow for review of an individual defendant’s progress toward rehabilitation and provides a meaningful opportunity for release on parole. It is simply not the type of mandatory sentence found objectionable in Miller. See Commonwealth v Brown, 466 Mass 676, 686; 1 NE3d 259 (2013) (noting that “the reasoning of Miller does not necessarily extend to mandatoiy sentences that afford the possibility of release”). For example, a 17-year-old offender who is convicted one year after the offense and sentenced to the mandatory minimum of 25 years will be either 43 or 44 years old at the time of his first parole eligibility date. See MCL 791.234(1) (noting that, in general, “a prisoner sentenced to an indeterminate sentence and confined in a state correctional facility with a minimum in terms of years ... is subject to the jurisdiction of the parole board when the prisoner has served a period of time equal to the minimum sentence imposed by the court for the crime of which he or she was convicted”). “A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give [juvenile] defendants . . . some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham, 560 US at 75. See also Miller, 567 US at_; 132 S Ct at 2469.
The 25-year mandatory minimum sentence prescribed by MCL 750.520b(2)(b) provides “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” for juvenile offenders. Graham, 560 US at 75. Therefore, the 25-year mandatory minimum sentence does not violate the Eighth Amendment, US Const, Am VIII, or constitute “cruel or unusual punishment” under the Michigan Constitution, Const 1963, art 1, § 16. See Miller, 567 US at_; 132 S Ct at 2469. See also Benton, 294 Mich App at 204.
We vacate defendant’s sentence and remand for resentencing consistent with this opinion. We do not retain jurisdiction.
DONOFRIO, P.J., and CAVANAGH and JANSEN, JJ, concurred.
MCL 769.34(2)(a) provides in relevant part: “If a statute mandates a minimum sentence for an individual sentenced to the jurisdiction of the department of corrections, the court shall impose sentence in accordance with that statute. Imposing a mandatory minimum sentence is not a departure under this section.”
Whereas the Eighth Amendment of the United States Constitution prohibits “cruel and unusual punishments,” US Const, Am VIII, the Michigan Constitution prohibits “cruel or unusual punishment,” Const 1963, art 1, § 16. See Benton, 294 Mich App at 204. “If a punishment ‘passes muster under the state constitution, then it necessarily passes muster under the federal constitution.’ ” Id., quoting People v Nunez, 242 Mich App 610, 618-619 n 2; 619 NW2d 550 (2000).
Defendant contends that although his chronological age was 17V2 years at the time of the offense, he lacked the mental maturity of a 17V2-year-old because of his developmental delays, intellectual difficulties, and premature birth. Nevertheless, “[u]nder the Supreme Court’s jurisprudence concerning juveniles and the Eighth Amendment, the only type of ‘age’ that matters is chronological age.” Marshall, 736 F3d at 498. | [
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PER CURIAM.
Plaintiffs appeal by right the trial court’s ruling, after a bench trial, that defendant township’s zoning regulations did not cause an unconstitutional taking. We affirm.
I. FACTS
Plaintiffs Robert, Marcia, and Dennis Leland own four parcels of land totaling approximately 220 acres (the property) in Northfield Township. Before the events that gave rise to the present dispute, the property had been zoned AR (Agriculture District), and had been farmed for over 100 years.
In January 2002, plaintiff Grand/Sakwa of North-field, LLC (or its predecessor or agent), executed an agreement to purchase the property from the Lelands for $30,000 per acre and paid a nonrefundable deposit of $25,000. On June 30, 2003, plaintiffs applied to rezone the property from AR to SR-1 (Single-Family Residential District One). SR-1 zoning allows up to four dwellings per acre with sewer service, or one dwelling per acre without sewer service. On November 18, 2003, the township board approved the rezoning, limited to 450 homes. Following that approval, township residents organized a successful referendum, held May 18, 2004, that overruled the board’s decision, thereby leaving the property zoned AR. After the referendum, the North-field Township Zoning Board of Appeals denied plaintiffs’ requests for use or dimensional zoning variances.
Plaintiffs filed this lawsuit on October 22, 2004. They alleged that application of any zoning classification more restrictive than SR-1 constituted a regulatory taking. Shortly after the lawsuit was filed, a new township board took office. A majority of the new board’s members were organizers or supporters of the referendum that overruled the board’s 2003 rezoning of the property to SR-1. The new board fired its planner and took action to amend the zoning ordinances, rezoning the property from AR to LR (Low Density Residential District). The LR classification itself was amended to allow only one home per two acres, instead of the previously allowed one home per acre.
At the time of the bench trial, therefore, the property was zoned LR. Plaintiffs argued that whether or not a regulatory taking had occurred should be determined by evaluating the AR zoning that existed at the time the lawsuit was filed. The township argued that whether or not there was a taking should be determined on the basis of the LR zoning that existed at the time the trial court heard the proofs and rendered a decision. Therefore, before determining whether the zoning constituted a regulatory taking, the trial court had to determine which zoning ordinance was to be tested. The trial court ruled that the relevant zoning ordinance was the one then in place, i.e., LR zoning. After the full trial, the court held in the township’s favor on all of plaintiffs’ claims, finding no constitutional violation. Plaintiffs appealed by right.
II. THE RELEVANT ZONING ORDINANCE
Plaintiffs first argue that the trial court erred by ruling that their challenge was to the LR zoning classification in place at the time the court made its decision rather than the AR classification in place when the lawsuit was filed. We disagree.
Plaintiffs’ view that the zoning classification in effect when their suit was filed should apply is contrary to the guiding caselaw. We have stated that “[t]he general rule is that the law to be applied is that which was in effect at the time of decision [by the trial court]. Thus, if a zoning ordinance has been amended [after suit was filed] ... a court will give effect to the amendment^]” Klyman v City of Troy, 40 Mich App 273, 277-278; 198 NW2d 822 (1972), citing City of Lansing v Dawley, 247 Mich 394; 225 NW 500 (1929).
This general rule is subject to two narrow exceptions. “A court will not apply an amendment to a zoning ordinance where (1) the amendment would destroy a vested property interest acquired before its enactment, or (2) the amendment was enacted in bad faith and with unjustified delay.” Lockwood v Southfield, 93 Mich App 206, 211; 286 NW2d 87 (1979) (citation omitted).
The first exception does not apply here because there is no vested property interest at issue. At the time of the sale, the property was zoned AR and remained so until the amendment rezoning it LR was adopted. Plaintiffs concede that the township board’s 2003 decision to rezone the property SR-1 never took effect because it was superseded by the referendum. Thus, there was never any vested right to develop the property under any zoning classification other than AR.
The second exception applies if the trial court finds that the newer classification “was enacted for the purpose of manufacturing a defense to plaintiffs suit.” Landon Holdings, Inc v Grattan Twp, 257 Mich App 154, 161; 667 NW2d 93 (2003) (quotation marks and citation omitted). In Klyman, we defined the exception more narrowly, stating that a change in an ordinance shall be applied unless it “was ... enacted simply to manufacture a defense.” Klyman, 40 Mich App at 279 (emphasis added).
Plaintiffs have cited only one case of record, Willingham v Dearborn, 359 Mich 7; 101 NW2d 294 (1960), in support of their view on this issue. There, the plaintiff was denied a permit to construct a service garage on his property on the ground that the plans did not provide for a 160-foot setback. Id. at 8. However, no ordinance required such a setback. Id. Accordingly, the plaintiff filed suit to require the defendant city to issue a building permit. Id. While the suit was pending, the city adopted an ordinance requiring, for the first time, a 160-foot setback. Id. at 8-9. The trial court declined to consider the amended ordinance, finding that it “ ‘can place no other construction’ ” on the city’s actions other than it serving as a basis to retroactively legitimize its denial of the sought-after building permit. Id. at 9. Our Supreme Court held that the trial court properly declined to apply the zoning ordinance adopted during litigation. Id. at 10.
The facts in Willingham bear no resemblance to those in the instant case. In that case, the city sought to adopt an ordinance tightening its zoning requirements to bar a use that was permitted when the plaintiff initially sought the building permit. Here, the development sought by plaintiffs was never within the zoning classification, and the ordinance they seek to exclude from consideration is one that grants, rather than restricts, development rights.
In all the other cases addressing the issue, our courts have held that it is the postsuit ordinance that controls. Franchise Realty Interstate Corp v Detroit, 368 Mich 276, 279; 118 NW2d 258 (1962); London Holdings, 257 Mich App at 165; MacDonald Advertising Co v McIntyre, 211 Mich App 406, 410; 536 NW2d 249 (1995); Lockwood, 93 Mich App at 211; Klyman, 40 Mich App at 279.
We agree with plaintiff that the trial court wrongly characterized the relevant test as requiring application of the newer zoning ordinance unless its adoption was “done solely” to improve the municipality’s litigation posture. However, we similarly reject the notion that if improving the municipality’s litigation position plays any role in the decision to adopt the new ordinance, bad faith has been sufficiently established. None of the cases cited by the parties adopt such a standard, and there was evidence of mixed motives in several of the cases in which Michigan courts held that the newer ordinance applied. Accordingly, we will not void a municipality’s action simply because it served to strengthen its litigation position. The factual determi nation that must control is whether the predominant motivation for the ordinance change was improvement of the municipality’s litigation position. And, because this is a factual determination to be made by the trial court, we review it for clear error. MCR 2.613(C).
In making their argument to the trial court, plaintiffs relied on several quotes from board meetings that demonstrated that the board was partially motivated by a desire to defend against the instant litigation. However, the trial court, after hearing the evidence, concluded that “the rezoning to LR was not done solely as an attempt to improve the Defendant’s position at trial.” The court further noted that the township’s “GMP [Growth Management Plan] was amended to reflect that the LR zoning permits ‘limited residential development while preserving significant areas of agriculture, open space, and natural features’, and preserves ‘a predominantly rural character,’ while providing ‘certain residential and public uses . . . compatible with the principal use....’” It also noted that the rezoning to LR was undertaken “pursuant to recommendations from a newly hired land use planner.” In other words, the board made a decision to allow residential development that maintained a rural character, rather than allow either more substantial development or none at all. The trial court also noted that the zoning board had previously granted plaintiffs’ request to rezone the property SR-1. Plaintiffs suggest that we should ignore this fact, since the membership of the township board changed after the time the request was granted and the new board was hostile to development. However, the events can fairly be read as demonstrating recognition by both boards that development was in order, though they disagreed on the degree of that development. Plaintiffs suggest that the township was opposed to all development, as demonstrated by the referendum, and only adopted the LR zoning as a litigation strategy. However, plaintiffs concede that, after the old board adopted the SR-1 zoning, it was not possible to propose a referendum that would void the SR-1 zoning and institute LR zoning in its place. The only mechanism for the residents to challenge the SR-1 zoning in a referendum was to put it to an up or down vote, i.e., SR-1 or AR.
Given the deference we show to a trial court’s superior ability to judge the credibility of witnesses, Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n, 264 Mich App 523, 531; 695 NW2d 508 (2004), and that affording such deference leads us to the conclusion that the evidence did not demonstrate that obtaining a litigation advantage was the predominate reason for the ordinance change, we find that the trial court did not clearly err by applying LR zoning as the law of the case.
III. REGULATORY TAKING
Plaintiffs next argue that the LR zoning constitutes an unconstitutional governmental taking. We disagree.
Both the United States and Michigan Constitutions prohibit the government from taking private property for public use without just compensation. US Const, Am V; Const 1963, art 10, § 2. A taking may be caused by overly burdensome regulations in two situations: if the regulation does not advance a legitimate state interest or if “the regulation denies an owner economically viable use of his land.” K & K Constr, Inc, v Dep’t of Natural Resources, 456 Mich 570, 576; 575 NW2d 531 (1998) (K & K I). The second type of taking may be found two ways. First, there is a “categorical taking” if a regulation denies the owner of “all economically beneficial or productive use of land.” Lucas v South Carolina Coastal Council, 505 US 1003, 1015; 112 S Ct 2886; 120 L Ed 2d 798 (1992). Second, a regulatory taking may be found on the basis of the traditional balancing test established in Penn Central Transp Co v New York City, 438 US 104; 98 S Ct 2646; 57 L Ed 2d 631 (1978).
Plaintiffs do not claim a categorical taking, arguing only that the trial court should have found a taking under the Penn Central test. Penn Central calls for the court to consider three factors: the character of the government’s action, the economic effect of the regulation on the property, and the extent by which the regulation has interfered with distinct, investment-backed expectations. Id. at 124; K & KI, 456 Mich at 577.
A. CHARACTER OP THE GOVERNMENTAL ACTION
Penn Central provides that the central question in analyzing the character of the governmental action is whether that action constituted a physical invasion. Penn Central, 438 US at 124. Where it does, the factor weighs in favor of finding a taking. Id. Here, it is undisputed that the actions of the township board did not create a physical invasion of plaintiffs’ property. Zoning regulations are not a physical invasion. Id at 125. Indeed, the Penn Central Court cited zoning ordinances as “the classic example” of governmental action affecting land interests and stated that such regulations are generally permissible. Id.
Penn Central further provides that the “government may execute laws or programs that adversely affect recognized economic values,” and that a regulatory taking will not be found where a state tribunal reasonably concludes that the land-use limitation promotes the general welfare, even if it “destroy[s] or adversely affect[s] recognized real property interests.” Id. at 124-125. Accordingly, the trial court did not clearly err by finding that the first prong of the Penn Central test weighed in the township’s favor.
B. ECONOMIC EFFECT OF THE LR ZONING
Plaintiffs maintain that the LR zoning created a loss of the value that they would have received had the property been zoned SR-1. The township does not dispute this allegation, because it is clear that property on which 450 homes can be built has greater value than the same property on which 80 homes can be built. However, the question, contrary to plaintiffs’ suggestion, is not simply whether their preferred zoning results in an increase in the value of the land. If that were the case, virtually every zoning regulation could be successfully challenged as a regulatory taking. Plaintiffs correctly assert that a comparison of the values is relevant to the overall analysis, but it is by no means controlling.
In Penn Central, 438 US at 131, the Court agreed that the regulation in question diminished the value of the plaintiffs’ property. However, it relied on the fact that the regulation “does not interfere in any way with the present uses of [the property].” Id. at 136. The same is true here. Indeed, the LR zoning classification allows a much more valuable use of the property than does AR zoning, the classification in effect when plaintiffs entered into the purchase agreement. Moreover, although the restriction imposed in Penn Central was quite significant in that it prevented the plaintiffs from building their planned structure, the Court held that this was insufficient to establish a taking because the plaintiffs were not “denied all use of even those preexisting [property] rights.” Id. at 115-117, 137. In the instant case, the only preexisting rights of use of the property were those permissible under AR zoning. No rights existing under AlR zoning are denied under the LR zoning; indeed, as noted, the LR zoning substantially expands plaintiffs’ land use rights, allowing residential development to occur.
Plaintiffs also argue that the trial court made several errors in its decision to admit or exclude certain evi dence regarding the value of the property. We review these evidentiary challenges for an abuse of discretion. Lewis v LeGrow, 258 Mich App 175, 200; 670 NW2d 675 (2003). First, plaintiffs contend that the trial court should not have admitted evidence of a 1998 sale of 77 acres by the Lelands for $10,000 per acre. Plaintiffs argue that because that purchase was made by the Whitmore Lake School District, it was likely a unique event and should not be considered in determining value. Second, plaintiffs object to the consideration of a 1996 appraisal that valued 120 acres of the property at $3,500 per acre. Plaintiffs note that the appraisal was made under the previous AR zoning and was, therefore, inapplicable to a current valuation. Third, plaintiffs assert that the trial court should not have considered evidence that a local church was interested in purchasing 15 acres of the property for as much as $43,000 per acre. Plaintiffs argue that this church would not have developed the land for profit, that the sale would affect only a small portion of the property, and that the church’s interest may have been a result of the anticipated residential development. We conclude, particularly given that this was a bench trial, that each of these challenges addresses the weight to be given to the evidence, not its admissibility.
Plaintiffs similarly assert that the trial court should have excluded the testimony of Robert Walworth, defendant’s expert witness, who testified regarding the economic viability of the property under the LR and AR zoning classifications. Plaintiffs argue that the method employed by Walworth was improper and that he did not provide any useful information regarding the feasibility of development. Plaintiffs’ expert, John Widmer, detailed what he perceived to be deficiencies in Walworth’s calculations. The trial court heard this testimony and appropriately held that it went to the weight of the evidence, rather than its admissibility. Walworth testified that he used estimated costs of development, some of which came from plaintiffs’ evidence, added in a profit margin, and calculated the average price at which each lot would need to be sold in order to be economically viable. He explained certain differences between his analysis and that of Widmer, including that Widmer’s analysis involved a prospective rate of return, whereas Walworth calculated a simple profit factor that did not discount future cash flows back to the present. Plaintiffs’ objection appears to stem from the fact that Walworth and Widmer simply tried to calculate different things. In the context of a bench trial in which the experts underwent extensive cross-examination, we find no abuse of discretion in the trial court’s admission of Walworth’s testimony.
Plaintiffs next argue that the trial court erred by excluding testimony from lay witnesses regarding the value of the property under SR-1 zoning. The court held that this evidence was only relevant to damages and deferred the testimony pending a ruling on the cause of action. We agree with plaintiffs that the trial court should have taken the testimony, given that the balancing test “requires at least a comparison of the value removed with the value that remains.” K & K I, 456 Mich at 588 (quotation marks and citations omitted). However, we cannot conclude that the court’s ruling constituted an abuse of discretion, given that the township conceded that the property would have greater value if zoned SR-1 and that the court heard extensive testimony from plaintiffs’ appraisal expert regarding the extent of the difference in value, including the admission of an economic feasibility report. It is well established that we defer to the trial court’s credibility determinations. Glen Lake, 264 Mich App at 531. Moreover, the relevant caselaw provides that even a large diminution of value does not, standing alone, constitute a taking. K & K Constr, Inc v Dep’t of Environmental Quality, 267 Mich App 523, 553; 705 NW2d 365 (2005) (K & K II) (noting that the United States Supreme Court has refused to find takings in cases involving 75% and even 87.5% diminutions of value). There was sufficient evidence, albeit evidence with which plaintiffs disagreed, to allow the trial court to properly conclude that the diminution in value was not so significant as to weigh the second prong of the Penn Central test in plaintiffs’ favor.
C. INTERFERENCE WITH DISTINCT INVESTMENT-BACKED EXPECTATIONS
The role of investment-backed expectations was discussed at length in K & K IT. In that case, we did not wholly foreclose a taking claim based on a regulation in effect at the time the land was purchased; however, we held that “[a] key factor is notice of the applicable regulatory regime[.]” Id. at 555. A claimant who purchases land that is subject to zoning limitations with the intent to seek a modification of those limitations accepts the business risk that the limitations will remain in place or be only partially modified. As Justice O’Connor noted in her concurrence in Palazzolo v Rhode Island, 533 US 606, 633; 121 S Ct 2448; 150 L Ed 2d 592 (2001), “the regulatory regime in place at the time the claimant acquires the property at issue helps to shape the reasonableness of those expectations.” Notice of the regulation cannot absolutely bar a taking claim, but should be taken into account. When plaintiffs entered into the purchase agreement, they were aware that the property was zoned AR. Plaintiffs argue that they had a reasonable expectation that the zoning classification would change, but they do not refer us to any evidence in support of that proposition. Instead, they rely on the fact that the previous board agreed to change the zoning to SR-1 in 2003. However, as plaintiffs conceded at oral argument, they understood that the zoning modification adopted by the board remained subject to a timely referendum challenge and that, when a timely challenge is made, the new zoning classification would not take effect at all, unless approved by the voters. Thus, plaintiffs’ implicit suggestion that the property was for some time subject to the SR-1 zoning and that the SR-1 classification was taken away from them, after they spent money on the project, fails because of the fundamental fact that the property was never actually zoned SR-1. Moreover, any funds expended by plaintiffs once the petition was filed cannot be said to have been expended with a reasonable expectation that the proposed development could be built, in light of the referendum challenge.
In sum, Grand/Sakwa chose to purchase AR-zoned property upon which, according to its own arguments and expert testimony, it could not build an economically viable development. It made efforts to get the zoning changed and failed. Contrary to plaintiffs’ claim, we are unaware of any caselaw that provides that monies expended in pursuit of a zoning change are, themselves, grounds to claim a taking.
The trial court did not clearly err by holding that the third Penn Central factor favored the township. Accord ingly, because each of the Penn Central factors weighed in the township’s favor, we find that the trial court did not err by finding that the rezoning of the property to LR did not constitute an unconstitutional regulatory taking.
IV DUE PROCESS AND EQUAL PROTECTION
Finally, plaintiffs argue that rezoning the property to LR violated their due process and equal protection rights because it rendered the property not economically viable. We disagree.
To show a violation of substantive due process, “a plaintiff must prove (1) that there is no reasonable governmental interest being advanced by the present zoning classification, or (2) that the ordinance is unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area under consideration.” A & B Enterprises v Madison Twp, 197 Mich App 160, 162; 494 NW2d 761 (1992). Plaintiffs argue that AR and LR zoning render the property dead land. However, as already discussed, the trial court did not clearly err when it found that this was not the case. Accepting the trial court’s finding on that point, plaintiffs cannot show that it was a due process violation for the township to zone the property LR.
Regarding the equal protection challenge, it is true that the rezoning to LR affected only plaintiffs’ property. However, it is not the case that the rest of the AR-zoned land in the township was rezoned to SR-1, with only plaintiffs left behind. Rather, after the referendum, the township acted to give plaintiffs at least some of the relief they sought without completely abandoning the traditionally rural character of the area. It was appropriate to rezone only plaintiffs’ property when it was the only property for which a change in zoning was sought. Moreover, the amendment of the LR zoning classification itself affected all LR-zoned properties, not just plaintiffs’ property.
The township’s goals of controlling growth and maintaining open space were legitimate, the method chosen was not arbitrary or capricious, and plaintiffs’ property was not improperly singled out under the circumstances. Moreover, following the referendum denial of the SR-1 zoning, the township acted to provide plaintiffs with a more economically viable zoning classification than AR.
Accordingly, we find that the trial court did not err by ruling for the township on plaintiffs’ due process and equal protection claims.
Affirmed.
SHAPIRO, EJ., and HOEKSTRA and WHITBECK, JJ., concurred.
Following a bench trial, we review the trial court’s findings of fact for clear error and review de novo its conclusions of law. City of Flint v Chrisdom Props, Ltd, 283 Mich App 494, 498; 770 NW2d 888 (2009).
The Willingham Court also criticized the city for unduly delaying its change of classifications. Id. at 10. Plaintiffs here do not claim that the township unduly delayed action, complaining instead that the township acted too quickly.
The township urges us to apply an abuse of discretion standard, citing Landon Holdings, 257 Mich App at 161, for the view that “a trial court’s decision to admit or exclude evidence of ordinance amendments during litigation” is reviewed “for an abuse of discretion!.]” We decline to do so because the trial court was not asked to decide whether evidence of an ordinance change was admissible, but rather to make a factual finding that would determine which of the ordinances was to undergo constitutional review.
We review de novo constitutional questions. Great Lakes Society v Georgetown Charter Twp, 281 Mich App 396, 425; 761 NW2d 371 (2008).
Essentially ignoring the question of physical invasion, plaintiffs argue that this prong of the Penn Central test should weigh in their favor, relying on Pulte Land Co LLC v Alpine Twp, unpublished opinion per curiam of the Court of Appeals, issued September 12, 2006 (Docket Nos. 259759 and 261199). Because Pulte is unpublished, it is not binding. MCR 7.215(C)(1). Moreover, in Pulte, while the zoning ordinance restricted the plaintiffs’ land to agricultural uses, the master plan showed that the area was planned for medium-density residential development in the future. Pulte, unpub op at 2. Because the zoning ordinance and master plan were in conflict, this Court found that, in the long term, retaining the agricultural zoning of the plaintiffs’ property would harm the public interest, rather than serve it. Id. at 5-6. On that basis, this Court held that the character of the governmental action favored the plaintiffs. Id. at p 6. By contrast, in the instant case, plaintiffs assert that the township’s growth management plan called for the residential development of plaintiffs’ property. However, plaintiffs fad to note that the plan, according to a report commissioned by plaintiffs, specified a density of one dwelling unit per five acres, i.e., the exact density permitted under AR zoning. The excerpts of the plan in the record do not demonstrate an intent to adow high-density residential development of plaintiffs’ property.
MCL 125.3402(2) provides that a petition to overrule the zoning ordinance may be submitted within 30 days of its publication. The petition must contain the signatures of “not less than 15% of the total vote cast within the zoning jurisdiction for all candidates for governor at the last” gubernatorial election. The statute provides that if such a petition is filed and determined to contain the requisite number of signatures, “the zoning ordinance adopted by the legislative body shall not take effect until... the ordinance is approved by a majority of the registered electors residing in the zoning jurisdiction!.]” MCL 125.3402(3)(c).
We review de novo constitutional questions. Great Lakes Society, 281 Mich App at 425. | [
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] |
T. E. Brennan, C. J.
The Case.
This case involves the appointment of counsel for an indigent convict to assist him in the preparation of an application for leave to appeal.
The facts are these. Eugene Arthur Jensen was arrested on January 18, 1961, in Wausaukee, Wisconsin, and taken to the Marinette county jail. On the following day, he waived extradition and was turned over to the Menominee county sheriff.
A complaint was filed and warrant issued on January 20th, charging that on the day before his arrest, Jensen, who was 28 years of age, had committed an assault on a 14-year-old girl, with intent to rape her. A second count charged Jensen with taking indecent liberties with the girl.
On the 23d of January, 1961, Jensen was brought before the appellant circuit judge and arraigned upon an information containing the same charges as the warrant. The prosecutor read the information to Jensen. He read it again for himself.
The circuit judge advised Jensen of his right to counsel, at public expense if necessary. Jensen said he did not want an attorney. The judge explained the difference between the two counts charged in the information. Jensen pled not guilty to the charge of attempted rape, and guilty to the charge of taking indecent liberties.
The judge explained the charge of indecent liberties in common terms, twice told the accused that the crime carries a maximum penalty of 10 years, and carefully interrogated him upon the voluntariness of his plea.
Finally, the plea was accepted, and after receiving a presentence report, the court sentenced Jensen on February 10, 1961. The sentence was imprisonment for not less than 3 nor more than 10 years.
The conviction was not appealed, and Jensen was confined in accordance with the judgment of the court.
Phase Two.
In June of 1967, more than three years after the expiration of his minimum sentence, Jensen was still confined at Marquette. He then filed a request for the appointment of appellate counsel, requesting that a transcript of his arraignment and plea he provided to him at public expense.
The transcript was provided, and on June .8, 1967, appellant circuit judge appointed appellate counsel for Jensen,
At this point, matters took a novel turn. On June 8, 1967, the day of the appointment of Jensen’s appellate counsel, the Supreme Court repealed all of the amendments to OCR 1963, 785, and reinstated the rule as it was originally promulgated in 1963.
Repealed was that provision of Rule 785 (OCR 1963, 785.4[2]) which provided for the appointment of appellate counsel for postconviction proceedings on behalf of indigent persons convicted and sentenced prior to August 1, 1964.
Appellant circuit judge thereupon, on July 27, 1967, revoked the appointment of Jensen’s appellate counsel. No application for leave to take delayed appeal was ever filed on appellee’s behalf.
Jensen then sought and received from the Court of Appeals, an order of superintending control, directing the circuit judge to reinstate the appointment of counsel. We granted leave to review that order, upon application of the circuit judge.
The Issues.
First: Whether an indigent defendant, convicted prior to 1963 has a right to the appointment of coun sel for the purpose of preparing and filing an application to take a delayed appeal.
Second: Whether upon all the circumstances of this case, there was an abuse of the trial court’s discretion in revoking the appointment of counsel.
The Eight to Counsel.
By the laws of Michigan and the Constitution of the United States, an indigent accused of a crime has a right to be provided counsel at public expense to assist in his defense.
Where the Constitution or statutes of a State grant to a convicted person a right to appeal, or to pursue some other postconviction remedy on the merits, the United States Supreme Court has held that the Fourteenth Amendment guarantee of equal protection requires the appointment of counsel for indigents.
Prior to the Constitution of 1963, the conviction of a criminal offense in Michigan carried no right of appeal. Since that time, persons convicted of crimes have a right to take a timely appeal, and, where the assistance of counsel is necessary, counsel are appointed.
But the 1963 constitutional right of appeal in criminal cases is not retroactive. Persons convicted prior to 1964, have no right of appeal. They are free to make application for leave to appeal. Such an application addresses itself to the discretion of the reviewing court.
Courts are without power to prevent convicts from asking for review of their convictions. Their freedom to ask to he heard is allied to freedom of speech . and the right to petition for redress of grievances.
But freedom of speech does not require equality of forum, or of the means of communication. The right to petition for redress of grievances may be exercised grandly or humbly as the means of the petitioner, the popularity of his cause, or the dedication of his adherents may permit. Appeals may be sought from interlocutory orders, delayed appeals and delayed motions may be urged, State and Federal habeas corpus applied for, certiorari asked, and countless stays requested.
Equality of presentation is not the measure of equal consideration. Not infrequently, the most humble petition has the greatest appeal to grace. Too often, the multiple pleas of the rich are spurious.
When leave to appeal is granted, of course, the assistance of counsel is desirable and should be supplied at public expense where necessary. And certainly nothing said here should suggest that the Court does not have the power to appoint counsel to assist in the preparation of a formal application for leave to appeal, where it is convinced of probable merit, and desires '& more orderly presentation.
. But there is no right to counsel at public expense for indigents who seek leave to appeal.
Abuse oe Discretion.
A review of the transcript in this case satisfies us that the defendant was fairly convicted upon a voluntary plea of guilty. There is nothing in the record suggesting any miscarriage of justice or denial of fundamental rights.
Under these circumstances there was no abuse of the trial court’s discretion in revoking the appointment of appellate counsel.
The order of the Court of Appeals, directing the circuit judge to vacate his order revoking the appointment of appellate counsel is vacated and set aside. No costs.
Dethmers and Kelly, JJ., concurred with T. E. Brennan, C. J.
Black and Adams, JJ., concurred in the result.
CLS 1961, § 750.85 (Stat Ann 1962 Rev § 28.280).—Reporter.
CLS 1961, § 750.336 (Stat Ann 1954 Rev § 28.568) .—Reporter.
379 Mich xxx.
The repealer resolution (379 Mich xxx, xxxi), provided:
“The various amendments of OCR 1963, 785, adopted since January 1, 1963, are repealed effective instanter. * * *
“It is ordered that all amendments of GCR 1963, 785, adopted since January 1, 1963, be and the same are repealed effective this date.”
US Const, Ams 6, 14; Gideon v. Wainwright (1963), 372 US 335 (83 S Ct 792, 9 L Ed 2d 799, 93 ALR2d 733) ; Escobedo v. Illinois (1964) , 378 US 478 (84 S Ct 1758, 12 L Ed 2d 977) ; Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065, 13 L Ed 2d 923) ; Miranda v. Arizona (1966), 384 US 436 (86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974) ; Mempa v. Rhay (1967), 389 US 128 (88 S Ct 254, 19 L Ed 2d 336); Const 1963, art 1, §20; MCLA § 775.16 (Stat Ann 1969 Cum Supp § 28.1253) ; GCR 1963, 785.3(1).
Anders v. California (1967), 386 US 738 (87 S Ct 1396, 18 L Ed 2d 493), rehearing denied 388 US 924 (87 S Ct 2094, 18 L Ed 2d 1377).
Const 1963, art 1, § 20; In re Districting for Court of Appeals (1964), 372 Mich 227. | [
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Per Curiam.
These cases are companion cases to Rasar v. Chrysler Corporation (1969), 382 Mich 169. In Rasar, plaintiff was injured on July 6, 1955. He was found to be totally and permanently disabled, having suffered the loss of the industrial use of both arms as of February 12, 1958.
Plaintiff Louagie was injured on November 2, 1954. It was stipulated that he lost the industrial use of his legs as of July 1, 1956.
Plaintiff Armstrong was injured on February 1, 1956 and was found to be totally and permanently disabled as of September 4, 1963 because of the loss of the use of both legs.
Plaintiff Wronski was injured on July 16, 1955 and was found to be totally and permanently disabled as of August 1, 1956 due to the loss of the industrial use of both legs.
Plaintiff Bapst was injured on April 18, 1956 when he fell and injured his back. He was found to be- totally and permanently disabled as of April 18, 1956, having suffered the loss of the use of both legs. ' '
Plaintiff Lewandowski was injured on September 20, 1955 when he received severe burns on both hands. He was found to be totally and permanently disabled as of August 1, 1956 as the result of the industrial loss of the use of both hands.
With regard to all of the above plaintiffs, at the time they were injured the provisions of PA 1912 (1st Ex Sess), No 10, as amended by PA 1954, No 175, were in effect. Under the provisions of that act, none of the plaintiffs met the act’s definition of permanent and total disability. However, by PA 1956, No 195, effective August 1, 1956, the act was amended to add loss of industrial use as defined in subsection (7) as constituting total and permanent disability. All of these claimants met the definition of subsection (7). Then, by PA 1965, No 44, amending part 2, § 9 subd (a) (CL 1948 § 412.9 [Stat Ann 1968 Rev § 17.159]), it was provided:
“Any permanently and totally disabled person as defined in this act who, on or after June 25, 1955, is entitled to receive payments of workmen’s compensation under this act in amounts per week of less than is presently provided in the workmen’s compensation schedule of benefits for permanent and total disability and for a lesser number of weeks than the duration of such permanent and total disability shall after the effective date of any amenda-tory act, by which his disability is defined as permanent and total disability or by which the weekly benefit for permanent and total disability is increased, receive weekly, %vithout application, from the second injury fund, an amount equal to the difference between what he is now or shall hereafter be entitled to receive from his employer under the provisions of this act as the same was in effect at the time of his injury and the amount now provided for his permanent and total disability by this or any other amendatory act.” (Emphasis added.)
Under the foregoing statutory provisions, on and after August 1, 1956, the effective date of PA 1956, No 195, which defined their disability as being permanent and total, all of the plaintiffs became entitled to receive payments of compensation as totally and permanently disabled persons. All, “at the time of [their] injury,” were not entitled to receive such payments “under the provisions of this act as the same was in effect at the time of [their] injury.” Consequently, plaintiffs’ compensation should be paid “from the second injury fund.” We think this was the legislative purpose in enacting PA 1965, No 44, and apply it accordingly to the rights and obligations of all parties to the captioned cases.
A further question raised in Louagie is whether the amount of compensation is reduced when the number of dependents is reduced. Section 9, subd (d) , part 2 of the act (CL 1948, §412.9 [MOLA 1969 Cum Supp § 412.9(d), Stat Ann 1968 Eev § 17.159(d)]), provides for such a decrease. Upon remand, determination of the dependency situation since the date of the original hearing may be presented to the appeal board for disposition.
In Bapst, a question is raised as to whether the evidence failed to establish loss of industrial use of two members as defined in the act. This question was not raised on application for leave to appeal either to the Court of Appeals or to this Court. The referee and the appeal board found that plaintiff was totally and permanently disabled. The question is not properly before us. We decline to pass on same.
In Wronski, appellant contends there is no competent evidence to show that plaintiff has lost the use of both legs causally related to his employment. The referee and the appeal board found that plaintiff did suffer such a loss. The opinion of the appeal board states:
“The proofs which were presented to establish the residuals of injury and loss of use of the limbs are not quite so weighty that it is ‘obvious’ that the employment is the ‘sole’ cause of disability as defendant seemed to concede when they were here before, however, we are of the opinion that the proofs standing unrebutted as they are do establish prima facie evidence from which it is reasonable to conchide that plaintiff did suffer the industrial loss of use of two extremities as a result of injuries suffered on July 16, 1955. We so hold. The proofs show such loss did occur prior to August 1, 1956.” (Emphasis added.)
Plaintiff’s case was first decided by the appeal board on August 16,1957. Plearing on a subsequent claim for an adjustment of benefits was held on March 10, 11, 1965. The only testimony was that of plaintiff. Chrysler had had a physical examination of plaintiff on February 19, 1965, but did not produce any evidence, medical or lay. We conclude there was a factual basis for the finding by the referee and the appeal board. Such a finding is conclusive. CL 1948, § 413.12 [Stat Ann 1968 Eev § 17.186].
In Lewandowski, the employer and Michigan Mutual further contend that payments to plaintiff should be reduced by earnings received by plaintiff in favored employment during the period of conclusively presumed total and permanent disability. We are here concerned with the provisions of part 2, § 9, subd (a), of the compensation act. The provisions of part 2, § 11, cannot defeat the mandatory disability benefits relating to specific losses. The claim is without merit.
In view of our holding that liability in these cases rests upon the second injury fund, the issue of res judicata because of a prior decision of the workmen’s compensation appeal board need not be considered or passed upon.
All of the above cases are remanded to the workmen’s compensation appeal board for appropriate orders in accordance with this opinion.
No costs.
T. E. Brennan, C. J., and Dethmbrs, Kelly, Black, T. M. Kavanagi-i, Adams, and T. G. Kavanagh, JJ., concurred.
Subdivision (d) was added to PA 1912 (1st Ex Sess), No 10, pt 2, § 9, by PA 1949, No 238, and has been included in each subsequent amendment of that section. The last amendment was by PA 1968, No 227.—Eeporter.
PA 1912 (1st Ex Sess), No 10, pt 2, §11, has been amended by PA 1965, No 44, and PA 1967, No 140 (MOLA § 412.11, Stat Ann 1968 Rev § 17.161). — Reporter. | [
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Per Curiam.
1. Facts and Proceedings.
On July 30, 1949, defendant Farhat, a practicing physician, performed a cholecystectomy (removal of gall bladder) upon plaintiff Iva M. Winfrey. The operation was unsuccessful in relieving plaintiff’s distress. Plaintiff continued to treat with Dr. Far-hat until March, 1954, when she went to Dr. Ralph C. Johnson. After six years with him, she went to Dr. Julius Schwartz who referred her, in 1964, to Dr. Allan G. Silverton. In 1965, she changed to Drs. Nitz, Coriasso, and James. Dr. Nitz referred her to Dr. R. E. L. Berry, who performed surgery June 17, 1965. Dr. Berry found the cystic duet had not been removed by Dr. Farhat. "With the remnant removed, plaintiff has enjoyed good health.
.On January 24, 1966, complaint was filed in the Genesee county circuit court alleging negligence in the operation and claiming the negligence was not discovered until June 17, 1965. Defendant pled the statute of limitations and filed motion for summary judgment. At the hearing on the motion, defendant submitted plaintiff’s deposition taken by the defense. Plaintiff submitted affidavits of Dr. Silverton and Dr. Johnson. On April 11, 1967, the trial judge granted the motion. His opinion states:
“The plaintiff Winfrey, by the exercise of reasonable Care, should have discovered the wrongful act timely, and having failed to do so, the defendant’s motion is hereby granted.”
Upon' appeal to the Court of Appeals, that court affirmed by per curiam opinion, stating:
“The record on appeal contains uncontroverted facts which establish that plaintiff Iva M. Winfrey’s claim was barred by the statute of limitations.” 11 Mich App 579, 580.
Leave to appeal to this Court was granted on September 30,1968. 381 Mich 780.
2. The Law.
There is no dispute as to the law in this case. Both plaintiffs and defendant recognize that the discovery ■rule, as stated by this Court in Johnson v. Caldwell (1963), 371 Mich 368, 379, is applicable. In that case ¡this Court said:
“Simply and clearly stated the discovery rule is: The limitation statute or statutes in malpractico-cases do not start to run until the date- of discovery, or the date when, by the exercise of reasonable care,-plaintiff should have discovered the wrongful act.”
Plaintiffs maintain the date of discovery was when the second operation was performed on Mrs. Winfrey. Defendant maintains she should have discovered the claimed wrongful act by the exercise of reasonable care long before then.
3. Was the Discovery Date TJncontroverted on the Motion for Summary Judgment?
Mrs. Winfrey’s deposition, taken by the defendant; presents a candid picture of her experiences from the time when she went to Dr. Farhat in June of 1949 until she finally obtained relief on June 17, 1965. In connection with her treatment by Dr. Johnson after-she left Dr. Farhat,-she testified:
“Q. How long did you stay with Dr. Johnson?
“A. I stayed with him about 6 years.
“Q. And he didn’t do anything for' the gall bladder? , i . ,
“A. He didn’t do nothing for my gall bladder, no. X-rayed it. ,
“Q. X-rayed it ?
“A. And he said it was still in .there. ■
“Q. Pie said it was still in there? Did he suggest he wanted to take it out? ■ • .
“A. Well, he said that it -should -come out but I argued that it wasn’t in there, definitely. Every doctor I went to, I told them the gall bladder and the duct absolutely, wasn’t in there because Farhat removed it, it was supposed to have been removed.
“Q. And he took some- X-rays and said it was there? ■■f
“A. Yes, sir.
“Q. Did he suggest that you ought to be re-operated?
“A. He didn’t suggest it should be operated, no, not at the present time, no.”
In connection with her treatment by Dr. Nitz, Mrs. Winfrey testified:
“Q. Did you talk about your gall bladder with them?
“A. Yes, sir.
“Q. What was your conversation with Nitz, for instance ?
“A. He X-rayed, he said the duct possibly was there and they still argued up and down the gall bladder and duct was in, and I said it couldn’t possibly be, it was removed; that’s all I could say.
“Q. Did they ever suggest you should be re-operated?
“A. Yes, sir.
“Q. You accepted?
“A. No.
“Q. Why wouldn’t you be operated?
“A. Not then, I was too scared. Later on I did.”
Upon further questioning by the attorney for defendant, Mrs. Winfrey testified:
“Q. Just a couple things; after you left Dr. Farhat in November of 1953 you went to Dr. Johnson,, didn’t you?
“A. Yes, sir.
“Q. And Dr. Johnson had done — -Dr. Johnson, did he X-ray you ?
“A. Yes, sir.
“Q. Did he tell you that you should have this gall bladder out?
“A. Yes, sir.
“Q. All right. Do you remember when that was, first of all, he told you you had a gall bladder, I take it; did he tell you that, what was wrong with you?
“A. He said what was wrong with me.
“Q. Did lie tell you you ought to have it out?
“A. He definitely did but I wouldn’t.
“Q. But you wouldn’t but he told you this. Now, you went to Dr. Johnson in 1953, didn’t you?
“A. Yes, sir — I don’t remember when it was.
“Q. It was right after you left Dr. Farhat anyway, wasn’t it?
“A. Yes, sir.
“Q. So it was in the 1950’s some time?
“A. Yes, sir, I would say in the 1950’s some time.
“Q. And he X-rayed you, I asked you that?
“A. Yes, sir.
“Q. But you decided you couldn’t face that operation?
“A. Sure did.
“Q. All right. Then when you went to Dr. Schwartz and you went to Dr. Schwartz in about 1960, if I can remember?
“A. Yes, sir.
“Q. He had you X-rayed by Dr. Silverton?
“A. Yes, sir.
“Q. And he told you that you had this gall bladder and you ought to have it out ?
“A. Yes, sir.
“Q.. Isn’t that right?
“A. Yes, sir.
“Q. You told him no, you weren’t ready to be operated on again because you were afraid of that?
“A. Yes.
“Q. And then you went to Dr. Nitz?
“A. Yes, sir.
“Q. When did you go to Dr. Nitz again, do you remember?
“A. I went to Dr. Nitz, I would say in about 1960, and about 1961, I would say I started going to Dr. Nitz something like that.
“Q. And Dr. Nitz told you you had the gall bladder, I take it?
“A. Yes, sir.
“Q. And he also said it should be operated and removed?
“A. Tes, sir. '•
“Q. And this was what your trouble was?
“A. Yes, sir.
. “Q. Then finally in 1965, why, Dr. Berry got in the act and the gall bladder was removed?
“A. Yes, sir.
“Q. Is that about the chronological — is that about the Avay it was?
“A. Yes; sir.
“Q. Well, you knew then that this gall bladder or this duct was there when Dr. Johnson told you, didn’t you?
“A. Yes, sir.
“Q. Okay. And again when Dr. Schwartz told you and again when Dr. Nitz told you?
“A. Yes, I didn’t want to be operated on any more.
“Q. Okay.
“A. Until I had to.
“Q. You’re feeling pretty good now?
“A. Oh, I am doing fine now.”
At the same time the trial judge had the above testimony of plaintiff before him for. consideration on the motion for summary judgment, there had also been submitted to him the sworn affidavits of Drs. Johnson*and Silverton., The pertinent portion of Dr. Johnson’s affidavit reads:
“Deponent States that he treated Mrs. Iva M. Winfrey from March 14, Í954 until April 29, 1960 and that during this time he treated her for many different conditions. On only one occasion did she complain of anything which could have been consistent with biliary difficulty. This consisted of a bloating and distended feeling in the upper abdomen and bile salts were prescribed for treatment.
' “Deponent further states that at no time did he even discuss gall bladder or bile duct disease with Mrs. Winfrey, nor did he ever tell her that her gall bladder or a cystic duct remnant was causing her any difficulty in any way, or inform her or intimate to her that the gall bladder or cystic duct had not been removed.”
The pertinent portion of Dr. Silverton’s affidavit reads:
“Allan G-. Silverton # * * deposes * * * that he knows Iva M. Winfrey, one of the plaintiffs in the above entitled matter, and has seen her in the practice of his profession, that he first saw her at the request of Dr. Julius D. Schwartz, D. 0., on January 23, 1964 with a complaint of recurrent attacks of pain in the right upper abdominal quadrant and at the time of her first visit, told Mrs. Winfrey that the pain might be due to a retained cystic duct remnant.
“Deponent states that he had Mrs. Winfrey admitted to Flint Osteopathic Hospital on January 29, 1964 and that she remained there until January 31, 1964 undergoing tests and X-rays. The radiologist reported visualization by an intravenous cholangio-gram of the biliary system. The gall bladder did not visualize nor did the cystic duct. The remainder of the biliary tract appeared normal.
“Deponent further states that m view of the. fact that the cystic duct did not visualize, that he did not feel that surgical intervention was indicated and so informed Mrs. Winfrey.”
Summary judgment must be denied where there are disputed issues of material fact. A jury could come to more than one conclusion based upon just the statements of Mrs. Winfrey. While it is true that she said that various doctors had told her the gall bladder was still in her, she also said, “Every doctor I went to, I told them the gall bladder and the duct absolutely wasn’t in there because Farhat removed it, it was supposed to have been removed.” Dr. Johnson and Dr. Silverton had the benefit of their records to refresh their recollection: Dr. Johnson states unequivocally that “at no time did he even discuss gall bladder * * # with Mrs. Winfrey, * * * or inform her * * * that the gall bladder or cystic duct ha,d not been removed.” Dr. Silverton states that on January 29,1964 he had Mrs. Winfrey X-rayed. “The gall bladder did not visualize nor did the cystic duct. * * * He did not feel that surgical intervention was indicated and so informed Mrs. Winfrey.”
At what point of time can it be said that, as a matter of law, Mrs. Winfrey became obligationally aware of the facts of defendant’s “wrongful act”? It might be concluded that,' by exercising reasonable care, Mrs. Winfrey should have discovered the defendant-surgeon’s “wrongful act” within the rule of Johnson v. Caldwell years before the second operation. It might also be concluded that the date of discovery of defendant’s “wrongful act” did not occur until the performance of the second operation and report to her of the definitely ascertained fact.
In view of the conflicting lay and medical testimony, the issue as to the time of discovery or, alternatively, when Mrs. Winfrey, in the exercise of reasonable care, should have determined the defendant’s “wrongful act,” was one of fact for the jury.
ADDENDUM.
After submission of this case to this Court and oral argument, the Court instructed the clerk of the Court to request supplemental briefs by a communication to counsel reading in part as follows:
“Counsel are requested to file supplemental briefs with regard to the applicability of PA 1961, No 236, § 5838 (CLS 1961, § 600.5838, Stat Ann 1962 Eev § 27A.5838) effective January 1, 1963, to decision in the above case.
“Counsel’s attention is directed to Quinlan v. Gudes (1966), 2 Mich App 506; to an article entitled ‘Civil Procedure,’ by Roger A. Needham, Yol II, 1964-1965, p 36, Wayne Law Review; ‘Revised Judicature Act: Special Proceedings and Appeals, 1964 Supplement,’ pp 173-176, by Roger A. Need-ham; and to PA 1961, No 236, § 9905 (CLS 1961, § 600.9905, Stat Ann 1962 Rev § 27A.9905).”
In accordance with the above request, supplemental briefs have been submitted and considered.
Section 5838 above referred to reads as follows:
“A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose.”
Section 9905(1) reads as follows:
“Except as specifically stated or reasonably inferred from the provisions of this act, this act shall not impair or affect any act done, offense committed or right accruing, accrued, or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time this act takes effect, but the same may be enjoyed, asserted, enforced, prosecuted, or inflicted as if this act had not been passed.”
In Johnson v. Caldwell, supra, this Court re-examined “the last treatment rule as determinative of the time of the accrual of the cause of action and the correlative time when the limitation statute or statutes begin to run.” The Court thereupon adopted the discovery rule hereinabove quoted.
We conclude that since the plaintiff’s claims arose out of an act done prior to January 1, 1963 (the effective date of the RJ A), in view of the provision of section 9905, section 5838 is not applicable. The discovery rule is.
The Court of Appeals, and the trial judge erred. They are reversed. The case is remanded to the trial court for further proceedings. Costs to plaintiffs and appellants.
T. E. Brennan, C. J., and Dethmers, Kelly, Black, T. M. Kavanagh, Adams, and T. G-. Kava-nagh, JJ., concurred. | [
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Moore, J.
Henry W. Richardson was a dry-goods merchant in Detroit. The other defendants are his credit ors, who took possession of some of his stock, either as mortgagees or attaching creditors. Mr. Richardson at this time owed complainants, who were in his employ. They claimed the debts due them were owing for labor, within the meaning of 3 How. Stat. § 8749m. By grouping their claims together, they amounted to more than $100. It is their claim that their hiring by Mr. Richardson, and the subsequent transactions connected with the closing of his business, entitled them to the relief provided by sections 8749m, 8749o. After hearing the proofs in open court, the circuit judge found the averments of the bill to be true, and rendered a decree in favor of complainants.
The important question involved is: Were there debts owing for labor, to the amount of $100, due complainants ? The appellants say not, citing. Jones v. Avery, 50 Mich. 326; Black’s Appeal, 83 Mich. 520; Sayles’ Petition, 92 Mich. 354; Clark’s Appeal, 100 Mich. 448. The record shows Mr. Richardson proposed to engage in business in Detroit, and advertised for a salesman and manager for a dry-goods store. Mr. Lawton met him at the Russell House, and was told by Mr. Richardson that he had $18,-000 with which he was going’to buy goods. Mr. Lawton hired out to him July 25th, for $75 a month, expecting to be the manager of the store. He went to work July 27th, helping to get the store ready for business. In August, Mr. Lawton and Mr. Richardson went East, and bought the goods. August 22d, Mr. Lawton returned to Detroit, helped unpack the goods, and helped about the marking of the goods, putting them upon the shelves, and getting the stock ready for the opening day. After ’that he did the work of an ordinary clerk, helping about selling the goods, sweeping out the store, and doing the general work of the store. Mr. Richardson, at the time of the employment, asked Mr. Lawton to furnish $250 as security for the proper performance of his work. It was furnished to Mr. Richardson, and never returned. It does not form any part of the decree rendered by the cir cuit judge. Mr. Burkard also answered the advertisement, and had an interview with Mr. Richardson at the Russell House, when he was told substantially the same thing by Mr. Richardson that had been told Mr. Lawton. He also was asked to furnish $250, but did not do so, and was.hired to help in the dress-goods department, at $14 a week. The keys of the store were given to him by Mr. Richardson, and at his direction he opened the store in the morning early enough so the carpenters could go to work, got a carpenter to make shelving and railing, and gave instructions about putting in the store a desk, shelving, and counters. He opened up 60 or 70 cases of goods when .they came, and carried them into the store; sometimes working at night to do so. He also helped mark the goods, and put them on the shelves, and helped sweep the store every morning, and helped about keeping the stock in order, including the display of the goods outside, and had charge of the dress-goods department. The other complainants were clerks, working for five and six dollars a week.
The store was closed about September 24th by the creditors, either by commencing replevin and attachment suits, or by mortgagees taking possession. Emma H. Hall is the mother-in-law of Mr. Richardson, and Thomas E. and "William B. Hall his brothers-in-law.
The circuit judge found that, as to the work done by Mr. Lawton when in New York, it was not the work of a laborer, within the meaning of the statute; but as to the other work done by him, and the work done by the other complainants, it was labor, within the meaning of the statute. It is apparent from what -has already appeared that nearly all the labor done was not intellectual or professional in its character, nor was it of an especially skillful kind. It was, in the main, manual labor, and of such a character as the statute was intended to protect. Black’s Appeal, 83 Mich. 520.
The decree is affirmed, with costs.
The other Justices concurred. | [
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] |
Moore, J.
Plaintiffs recovered a judgment for putting a steam-heating plant into the Webb Block, in Jackson, and for doing extra work connected therewith, for the defendant. Those portions of the contract necessary to appear here for a correct understanding of the case read as follows:
“That the parties of the first part hereby agree to construct the steam heating, gas fitting, and plumbing in the Webb Block, now under construction on the west side of Mechanic street, in the city of Jackson, as hereinafter specified, for the sum of $1,846.55, to be paid by the party of the second part in such sums or amounts up to 90 per cent, of the cost of materials and labor that may be placed on the premises, or at the place of business of the parties of the first part, the remainder to be paid at the completion of work contracted to be done; said parties of the first part to furnish a good and sufficient bond, in the sum of §2,000, guaranteeing the fulfillment of the contract, and the successful heating of said block to a temperature of 70 degrees Fahrenheit when tested thermometers register a temperature of 10 degrees below zero on the outside. The conditions of this agreement are as follows: * * * Steam Boilers: Furnish and set up in boiler-room three No. 28 D. H. & L. steam boilers for burning soft coal, connected in battery, so that any one or all can be used at the same time, with complete sets of trimmings and firing tools. * * * Guaranty: We guarantee all material and workmanship used in the construction of this heating plant to be the best of their respective kinds, and the apparatus, as a whole, to be capable of warming all rooms in which radiators are placed to the temperature of 70 degrees Fahrenheit when the temperature is 10 degrees below zero on the outside, provided that coal suitable to the requirements of the heaters is used, and the heaters properly managed.”
During the progress of the work, defendant paid plaintiffs $1,800. After plaintiffs claimed the plant was completed, defendant used it, but claimed it did not meet the requirements of the contract. The parties were unable to arrive at a settlement, and this suit was brought. The declaration set up the making of the contract by the parties, its completion by the plaintiffs, and the failure of defendant to pay. It also contained all the common counts in assumpsit. Defendant pleaded the general issue, and gave notice that the plant would not do the work required to be done by the contract; that it was necessary to use hard coal instead of soft coal, at great additional expense, and that the heating system must be changed at great expense; that the work was improperly done, — and claimed damages by way of recoupment to the amount of $2,000. Upon the trial it was the claim of defendant that the boilers would not heat the building when soft coal was used, and that it was necessary to use hard coal. It was the claim of plaintiffs that if the boilers were properly stoked, and the flues properly cleaned, and proper soft coal used, the boilers would perform the work satisfactorily. Both parties gave testimony tending to show the truth of their respective claims.
The first assignment of error necessary to be discussed relates to the admission of testimony of a witness who testified to the successful working of other No. 28 D. H. & L. boilers when burning soft coal. Appellant claims it was error to admit this testimony, arguing that the fact that other like boilers worked well would not prove or tend to prove that these particular boilers' worked well, or that they were not properly treated; citing Second National Bank v. Wheeler, 75 Mich. 546. It is undoubtedly true, as stated in the case just cited, that it would not follow that, because one machine did good work, another similar to it would also do good work, and the court so stated when he admitted the testimony, and he allowed the testimony only for the purpose of showing the kind and character of the fuel necessary to be used, and the kind and character of management necessary. We think the testimony, with the limitation put upon it by the judge, was competent. It was the claim on one side that the boilers were properly managed, and upon the other side that they were not, and that question was passed upon by the jury in arriving at their verdict.
The judge, after charging the jury about the questions involved in the case, charged them as follows:
“Now, gentlemen, with these preliminary instructions upon that branch of the case, you will be prepared to take up or consider the question as to whether or not this .guaranty has been, in either of its respects, violated by the plaintiffs, — be able to take up and determine whether or not the guaranty of condition, quality, and efficiency was true or false. Upon this branch of the case, the defendant, Mrs. Burrall, has the burden of proof, and is not entitled to prevail unless she has satisfied you by a preponderance of the evidence that the guaranty was not true, — that it was broken. Now, this involves proof of these propositions, which are included in the conditions of the guaranty: First, that the material and workmanship used in the construction of said heating plant was not the best of their respective kinds, as provided in the contract; second, that the apparatus as a whole is not capable of warming all the rooms in the building to a temperature which the guaranty provides, when suitable coal is used and the heaters properly managed. Now, gentlemen, if neither one of these propositions has been established by the defendant by a preponderance of the evidence, you should consider that the defendant has failed to establish her contention upon this branch of the case, and make up your verdict accordingly. On the other hand, if one or both of these propositions has been established by the evidence, and a preponderance of it, you should consider the guaranty as untrue, — broken,—and the defendant would be entitled to be credited in your verdict with the damages which actually and necessarily resulted from that cause. Now, gentlemen, if the defendant prevails upon this branch of the case, you should award her such damages as, under the evidence and the rules of law now given you, she would be entitled to.”
The defendant says this case is not the ordinary case of warranty upon sale of an article, but is one of condition clearly expressed by the contract upon which the suit is brought, and a substantial performance of such contract must be shown before plaintiffs can recover, and that the burden of proof is with plaintiffs to show the plant is properly constructed, and meets the requirements of the contract. If there had been no acceptance of the work by defendant, there would be much force in this contention; but the defendant has taken possession of the plant, and used it, and still uses it. When called upon to pay for it, she assigns as a reason why she should not do so that it does not perform its work as it ought under the contract; that she has been damaged by this failure; and seeks to recoup-in this action the amount of her damages. To establish this defense requires proof. Having taken the property and used it, manifestly she should pay for it, unless there-is some legal reason which she can show which shall relieve her from that duty. The rule is stated in Benjamin on Sales (section 564) as follows:
“Although a man may refuse to perform his promise till the other party has complied with a condition precedent, yet, if he has received and accepted a substantial part of that which was to be performed in his favor, the condition precedent changes its character, and becomes a warranty or independent agreement, affording no defense to an action, but giving right to a [counter] claim for damages. The reason is that it would be unjust, under such circumstances, that a party who has received a part of the consideration for which he bargained should keep it, and pay nothing, because he did not receive the whole. The law, therefore, obliges him to perform his part of the agreement, and leaves him to his action of [or counterclaim for ] damages against the other side for the imperfect performance of the condition.”
We think the court did not err in his statement of the rule. 5 Am. & Eng. Enc. Law (2d Ed.), 26, note, “Recoupment;” The Propeller Burlington, 137 U. S. 386; Day v. Raguet, 14 Minn. 273; 1 Greenl. Ev. § 74; Tousignant v. Shafer Iron Co., 96 Mich. 87; Farrell v. School District, 98 Mich. 43; Dillon v. Pinch, 110 Mich. 149.
Error is assigned upon statements of counsel made during the progress of the trial. It would have been well to-have omitted these statements, but they were not of such character as would tend to prejudice defendant’s case. Error is also assigned upon other portions of the charge of the judge. We have carefully examined them, but we do not deem it necessary to discuss them, as we do not deem them well taken.
Judgment is affirmed.
The other Justices concurred. | [
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Moore, J.
The plaintiff had a claim against Louis J. Ouellette, which he sued, and upon which he afterwards recovered judgment. He also garnished the Goebel Brewing Company, and from a judgment in favor of defendant he has appealed.
In 1895, Ouellette was engaged in the saloon business in Detroit. During a portion of June and July, 1895, he had a bar and restaurant at the Detroit Driving Club during the races. The garnishee defendant paid for him a license fee of $500, and became his surety to the driving club to the amount of $5,000 for the payment of the rent, which was a day. The brewing company also furnished Ouellette with a large amount of beer, and others furnished other supplies. By agreement of the parties, one Flynn, who was paid by Ouellette, received the money resulting from the business, and paid the rent, and handed the balance of the receipts to the attorney of the brewing company. During June plaintiff consigned to Ouellette about $2,400 worth of wines and liquors. July 9th, Mr. Ouellette was indebted to the Goebel Brewing Company, to Harrington & Ouellette, and to Barclay Smith. He gave to them a note for $2,000, due August 1st, and to secure its payment executed a mortgage on all his stock and property at the driving club, except the goods bought of the plaintiff, and, by consent of the mortgagor and mortgagees, Flynn managed the business, and continued to do so until the races ended. The plaintiff found and took possession of about one-half of the goods consigned by him, but could not find $1,100 or $1,200 worth of them. July 25th he sued out a writ of attachment, and levied upon the stock. Before the stock was removed, and on the same day it was levied upon, it was agreed verbally that the attachment should be released upon the payment of $150, which was paid, and that on the following morning some arrangement should be made at the office of the attorney of the brewing company as to the disposition of the balance of the claim. During the night Ouellette made a bill of sale of all the property to the Goebel Brewing Company, and when the parties met at the office of. the attorney, according to the agreement made the day before, the brewing company claimed to be in possession of the property by virtue of the bill of sale. On the same day suit was brought by the plaintiff, and a garnishee process was served upon the brewing company, which made a disclosure denying it had any property, money, or effects, or was indebted to Ouellette. An issue was framed, and tried by a jury, who found in favor of defendant.
It is claimed the trial judge erred in refusing to give plaintiff’s requests. The court endeavored to instruct the jury, in a general charge, as to the law applicable to the case, and refused all of the plaintiff’s requests. His charge was quite full, and properly stated the law in relation to the matters to which his attention was directed by the requests to charge. It will be necessary to consider but two requests.
The judge was asked to charge the jury:
“On the other branch of the case, I charge you that, whether the Goebel Brewing Company received or obtained property under the circumstances which I have stated or not, if you find that, at the time of the service of the writ of garnishment in this case upon it, it was in possession of goods, credits, chattels, moneys, or effects belonging to the defendant Ouellette, upon which it had no superior lien or claim, or at that time was indebted to Ouellette, then the plaintiff is entitled to recover the amount and value thereof.”
In his charge he failed to say anything to the jury about the liability of the brewing company in case it was indebted to Ouellette. Was this error? The affidavit for the writ was based, not only upon the possession of money and property, but also upon the indebtedness of the brewing company to Ouellette. As already stated, the disclosure made by the company denied it had any money or property belonging to Ouellette, or was indebted to him. The record shows that when the chattel mortgage was given, July 9th, Ouellette was indebted to the brewing company in a large amount, and it also shows he was indebted July 25th, when the attachment was released. There was nothing said in the progress of the trial, by counsel or witnesses, from which it would be inferred there was any claim of liability except for goods, chattels, moneys, or effects which came into the hands of the brewing company under the proceedings already stated, and this will doubtless account for the court not having more to say in his charge in relation to any indebtedness of the brewing company.
The court was asked to charge the jury as follows:
“The plaintiff claims in this case to recover upon two grounds: First; he claims that, at the time of the service of the writ of garnishment upon the defendant, the Goebel Brewing Company had in its possession, custody, or control goods and moneys, the property of the principal defendant, Louis J. Ouellette, which he is entitled to have applied upon his claim and judgment against the principal defendant, Louis J. Ouellette; second, that, at the time of the service of the writ of garnishment, the defendant the Goebel Brewing Company had in its possession property of the principal defendant, Louis J. Ouellette, which they held by conveyance or title that was void as to the creditors of the defendant. If the plaintiff shall have satisfied you, by a fair preponderance of evidence, of either of these two propositions, he is entitled to recover in this action.
“ It is the law of this State that if any person garnished (and that applies to a corporation as well as an individual) shall have in his possession any property, goods, chattels, credits, moneys, or effects of the principal defendant which he holds by conveyance or title that is void as to the creditors of the principal defendant, or if any person garnished shall have received and disposed of such property of the principal defendant which is held by conveyance or title that is void as to the creditors of the defendant, he may be adjudged liable as garnishee on account of such property, and for the value thereof, although the principal defendant could not have maintained an action therefor against him.”
Counsel cite 3 How. Stat. § 8059; Heineman v. Schloss, 83 Mich. 156; Gumberg v. Treusch, 103 Mich. 543.
The court did not give these requests in the language of the counsel, but he did charge as follows:
“It is claimed on the part of the plaintiff in this suit that this bill of sale was not a bona fide bill of sale; that is, that it was fraudulent, and therefore void. I charge you that, in order to make this bill of sale fraudulent or void in this case, it is necessary that it should be executed with an intent to hinder, delay, or defraud creditors. If it was executed for the purpose of securing bona fide indebtedness, it would not be fraudulent, no matter if it did in effect hinder or delay, or defraud creditors; but if executed, not to secure a bona fide indebtedness, but for the purpose of hindering, delaying, and defrauding creditors, it would be void in law, and no title would pass under it by virtue of the bill of sale, if you should find it to be fraudulent, — that is, if it was not executed for the purpose of paying a bona fide indebtedness owed by Mr. Ouellette to the Goebel Brewing Company.”
' It was the claim of the brewing company that it acted bona fide; that the bill of sale was made to secure payment of an actual indebtedness; that it was not fraudulent; and the jury found in favor of its claim. We think the court properly stated the rule of law, and fairly submitted the question of the bona fides of the transaction.
The other questions have been considered, but will not be discussed.
Judgment is affirmed.
The other Justices concurred. | [
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Grant, O. J.
Respondent was indicted by a grand jury of Berrien county for keeping his saloon open on Sunday, contrary to section 17 .of the state liquor law (3 How. Stat. § 2283e), tried, and convicted. Two questions are presented: (1) Was the grand jury a legal body? (2) Is the violation of the liquor law of the State an indictable offense ?
The statute is conclusive of the first question. The objections relate to irregularities in the drawing of the jury. The statute specifies what shall be a ground of challenge, viz., that a juror is prosecutor or complainant. It expressly prohibits a challenge on any other ground. 2 How. Stat. §§ 9496, 9497. The question is discussed by Mr. Justice Morse in People v. Lauder, 82 Mich. 133, authorities cited, and statute quoted. An objection prohibited by the statute when the grand jury is impaneled cannot be valid when the party is put upon trial under the indictment found. There was no fraud or willful disregard of the law, or even an indication that competent jurors were not secured, or that respondent was prejudiced.
Upon the second point counsel cite no authority. The following cases sustain the right to proceed by indictment: Peoples v. Stevens, 13 Wend. 341; People v. Brown, 16 Wend. 561; State v. Meyer, 1 Spears, 305; Keller v. State, 11 Md. 525 (69 Am. Dec. 226). The rule is thus stated by Russell: “Where the statute creates a new offense, by prohibiting and making unlawful anything which was lawful before, and appoints a particular remedy against such new offense by a particular sanction and particular method of proceeding, such method of proceeding must be pursued, and no other.” 1 Russ. Crimes (Internat. Ed.), 201; 10 Enc. Pl. & Prac. 351. Act No. 313, Pub. Acts 1887, does not appoint a particular remedy or provide a particular method of procedure. It leaves open either method.
Conviction affirmed.
The other Justices concurred. | [
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Moore, J.
Plaintiff sued defendants, in an action of trover, to recover the value of 20 certificates, representing 800 shares of stock in the Feige-Silsbee Furniture Manufacturing Company, claimed by him to have been unlawfully converted by defendants. The circuit judge directed a verdict in favor of defendants. Plaintiff has appealed the case to this court.
Prior to 1888 the plaintiff was one of the incorporators of the Feige-Silsbee Furniture Manufacturing Company (which name was changed, later, to the Feige Desk Company). He was a borrower of the defendant bank., November 8, 1888, he pledged to the bank the certificates of stock already mentioned, indorsing them in blank, and at the same time a paper was executed reciting the deposit of the certificates, “to be held by said bank as collateral security for any obligation which I may now have or hereafter have” in said bank. May 1, 1895, Mr. Feige gave his note to the bank in the sum of $0,650, due in three months. The defendant Burt became a stockholder in the furniture company some years ago. He was its president when this note was given, and continued to be its president from that time on. Mr. Feige was a director, and for some time had been manager, of the company. Mr. Burt was also president of the bank. It is the claim of the plaintiff that Mr. Burt and the bank conspired together to depreciate the value of the stock, and to deprive him of it without compensation, and to displace him from his position as director and manager of the company. He says on February 10, 1896, the bank, without notice to him, through its president, Mr. Burt, surrendered the 20 certificates of stock, and one certificate in lieu thereof was issued to the bank for the 800 shares, and the 20 certificates were canceled. He claims the certificate so issued was never returned to the furniture company. He says Mr. Burt, as president of the company, refused to recog nize him as a stockholder at the meeting of the stockholders of the company, in February, 1896; that he was then displaced as director and manager; that he was refused access to the books of the company; and that the secretary of the company and Mr. Burt declared he had no interest as a stockholder or otherwise in its affairs. He further claims that, in the annual report made to the secretary of state, it was reported the 800 shares of stock which had been previously represented as held by him were owned by the hank. He claims that what was done was done, not for the purpose of collecting the debt, but for the purpose of depriving him of his stock. It is the claim of Mr. Burt and of the bank that what they did was done in good faith; that, for the purpose of making the bank secure against possible levies by creditors, the bank had a right to surrender the certificates, and have one issued in its name; and that it did not claim to be the absolute owner of the stock as against plaintiff, but always recognized his right to it upon his payment of the debt to secure which it was turned out.
May 18, 1896, the bank obtained judgment upon the note given by Mr. Feige, and caused an execution to be issued and placed in the hands of a deputy sheriff, who served a copy of it upon the secretary of the company, who on June 10, 1896, issued the following certificate:
“C. Dingman,
“Deputy Sheriff for Saginaw County, Mich.
“Dear Sir: You are hereby notified that, as appears by the books of the Feige Desk Company, of Saginaw, Michigan, a corporation, Ernest Feige is the owner of 800 shares of the capital stock of said company, of the par value of $25 each, subject, however, to the interest therein as pledgee of the Home National Bank of East Saginaw, Michigan. Said stock is represented by certificate No. 100, issued February 10, 1896, to said Home National Bank.
“Yours truly,-
“ G. B. Burt,
“Sec. and Treas. of the Feige Desk Co.”
As a matter of fact, the stock at this time stood -upon the books of the company in the name of the bank. The stock was advertised and sold by the sheriff for $400, and this amount was paid over to the bank. Before suit was. brought, no tender was made of the debt and no demand made for the stock. It is the claim of plaintiff .that what occurred in February amounted to a conversion of the stock, and that the court erred in refusing to submit to the jury the question of whether there had been a conversion or not.
Where stock is pledged to secure the payment of a debt, in default of payment the pledgee may not at once convert the stock to his own use, but he may give notice to the pledgor of an intent to sell the stock, and may so sell it, without any judicial proceedings, and apply the proceeds to the payment of the debt. 1 Cook, Stock, Stockh. & Corp. Law, § 476. A sale without a notice is a' conversion of the stock; and, in the absence of any agreement, the sale must be at public auction.
It is the claim of defendants that there was no attempt, to deprive plaintiff of his stock in February, and that the pledgee of shares of stock has a right to have the stock transferred, and new shares issued in his name, and that doing so does not amount to a conversion; citing Coleb. Coll. Sec. § 288; Day v. Holmes, 103 Mass. 306; Heath v. Griswold, 18 Blatchf. 555; Heath v. Smelting Co., 39 Wis. 146; Rich v. Boyce, 39 Md. 314; 1 Cook, Stock, Stockh. & Corp. Law, § 466. These authorities sustain the position of counsel; but it is the claim of plaintiff that defendants went further than this; that they used the stock as though it was the stock of the bank, and denied that plaintiff had any right in it or in the company. Plaintiff gave testimony tending to support his claim. We think there were sufficient facts shown so the question should have been submitted to the jury.
Was there a conversion by the levy upon and sale of the stock ? A share of stock is in the nature of a chose in action, and at common law a chose in action could not be reached by or made subject to a levy of execution. Consequently it has been uniformly held by the courts that at common law a levy of execution could not be made on shares of stock. 1 Cook, Stock, Stockh. & Corp. Law,§ 480; Van Norman v. Jackson Circuit Judge, 45 Mich. 204. As the levy upon execution is authorized only by virtue of the statute, its provisions must be substantially observed. 1 Cook, Stock, Stockh. & Corp. Law, § 482. 2 How. Stat. § 7697, provides that any share or interest of a stockholder in any joint-stock company may be taken in execution. The next section provides that a copy of the execution shall be left with the person having the custody of the books and papers of the company. The next section reads:
“The officer of the company who is appointed to keep a record or account of the shares or interest of the stockholders therein shall * * * be bound to give a certificate of the number of shares or amount of the interest held by such judgment debtor.”
As we have already seen, none of the certificates of stock stood upon the books of the company in the name of Mr. Feige after February 10th. This was known to the secretary of the company, and to the bank; but, knowing this, the bank levied upon the stock as though it stood in his name, sold it, and took the avails of the sale. This sale cannot be justified as an execution sale by a creditor of Mr. Feige. Blair v. Compton, 33 Mich. 441; Van Norman v. Jackson Circuit Judge, 45 Mich. 208; Gypsum & Stucco Co. v. Kent Circuit Judge, 97 Mich. 631.
Can the sale be justified as a sale by the pledgee? We have already seen the sale. cannot be made until notice has been given to the pledgor of the intention to sell. “A sale without a notice is a conversion of the stock.” 1 Cook, Stock, Stockh. & Corp. Law, § 477. In Stearns v. Marsh, 4 Denio, 227 (47 Am. Dec. 248), it is held, if the pledgee sell the property, without calling on the pledgor to redeem, the latter may maintain an action for the value of the thing pledged, without tendering the debt, because by the wrongful sale the pledgee has incapacitated himself to perform his part of the contract, — that is, to return the pledge, — and it would therefore be nugatory to make the tender; citing Story, Bailm. § 349; M’Lean v. Walker, 10 Johns. 471. In such case the pledgee may recoup the amount of his debt.
The sale made was an unlawful sale, and amounted to a conversion. The plaintiff was entitled to recover the value of the shares of stock, less the amount of the debt.
The judgment is reversed, and a new trial granted.
Grant, C. J., Hooker and Long, JJ., concurred. Montgomery, J., did not sit. | [
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Long, J.
The attorney general, on the relation of various merchants in the city of Detroit; filed a petition in the Wayne circuit court for a mandamus to compel the respondent, its officers, agents, and servants, to receive, accept, transmit, and deliver any and all goods, wares, and merchandise duly offered and tendered to it, in- boxes, packages, etc., for transportation, when the fees and charges for such goods shall be paid or tendered, and to issue to the shippers or consignors throughout this State a bill of lading or evidence of receipt for each shipment, with the stamp duly attached thereto and canceled by it, as provided by the act of Congress of June 13,1898, entitled “An act to provide ways and means to meet war expenditures, and for other purposes,” without' requiring of consignors or shippers said stamp, or the value thereof. The court below issued an order to show cause, and, a return having been made to such order by the respondent, the court granted the writ as prayed. The case comes into this court by certiorari'.
The respondent is a joint-stock association organized and existing under the laws of the State of New York, and having its principal business office in the city of New York. It is a common carrier, transacting express business, so called, and engaged in the business of receiving, carrying, forwarding, and delivering goods, wares, and merchandise. It is doing business in this State in pursuance of a license issued by the state treasurer under and by virtue of chapter 103, 1 How. Stat. The petition shows that the respondent, upon delivery of packages to it for transportation as a common carrier, refused to accept goods for transportation unless the shipper or consignor would pay for the stamp provided by said act of Congress; that this refusal was general throughout the State, by all its officers and agents; and that it has 489 agencies within this State. The respondent, in its answer filed in the court below, admits many of the allegations in the petition, but it alleges that in the act Congress has refrained from providing, as between shipper and carrier, which shall bear the burden of the tax, thereby intending to leave it a matter of adjustment between the parties, conditioned, however, that the tax must be paid; that the respondent, being organized and having the right, under the statutes of this State, to carry on an express business, becomes vested with the right to regulate the carrying on of its business by reasonable rules and regulations, and to fix, and insist upon the payment of, such rates of transportation as it deems best, provided the same are not .unreasonable in amount nor in manner of payment; that, the enactment of the stamp act referred to being an important change in the then condition of things, it becomes necessary for respondent to change and regulate its method of transacting business, and to re-establish its rates of transportation, so that it may meet the change in a way to .prevent its resources from being so depleted as to weaken its financial condition; that respondent therefore decided ta raise, and has raised, its rates of transportation to an amount reasonable and just, and only necessary to meet the change of conditions made by the act, and save itself from great loss of revenue and profits as compared with its earnings before the passage of the act, which it has the lawful right to do; that under its right to regulate its manner of doing business, and with view to accommodating the public, so far as paying said increase of rates, respondent has accorded to responsible shippers the right to pay such increase (either using a stamp or money for the purpose) upon delivery of the goods, and the privilege of paying the balance of the rate of transportation at the point of delivery to the consignee. It is admitted that this change in the manner of doing business in effect throws the burden of the tax upon the shipper, but it is claimed that such effect is in accordance with the principie of taxation that the burden shall be distributed equitably among the many, rather than be cast upon the few; and it is claimed that should the respondent be compelled to pay the tax, which would amount to many thousands of dollars, without the right to guard against the effect of such expenditure in the manner adopted by it in raising its rates of transportation, as has been done, its financial condition would be greatly weakened.
In the answer it is also alleged that, in any case of pretended violation of its duties as set forth in the petition, it was not pretended or alleged that the charges were paid or tendered; but it appears from the opinion of the court below that this point was abandoned on the argument there, and the case was left to the court below to decide the same as if the charges had been tendered. That question will not, therefore, be discussed here, but it will be taken as settled that the charges were so tendered.
The act of Congress (30 U. S. Stat. at Large, chap. 448) provided:
“Sec. 6. That on and after the first day of July, 1898, there shall be levied, collected, and paid, for and in respect of the several bonds, debentures, or certificates of stock and of indebtedness, and other documents, instruments, matters, and things mentioned and described in Schedule A of this act, or for or in respect of the vellum, parchment, or paper upon which such instruments, matters, or things, or any of them, shall be written'or printed, by any person or persons or party who shall make, sign, or issue the same, or for whose use or benefit the same shall be made, signed, or issued, the several taxes or sums of money set down in figures against the same, respectively, or otherwise specified or set forth in the said schedule. * * *
“Sec. 7. That if any person or persons shall make, sign, or issue, or cause to be made, signed, or issued, any instrument, document, or paper of any kind or description whatsoever, without the same being duly stamped for denoting the tax hereby imposed thereon, or without having thereupon an adhesive stamp to denote said tax, such person or persons shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall pay a fine of not more than one hundred dollars, at the discretion of the court, and such instrument, document, or paper, as aforesaid, shall not be competent evidence in any court.”
Schedule A of said act, among other things, provides as follows:
“Express and Freight: It shall be the duty of every railroad or steamboat company, carrier, express company, or corporation or person whose occupation is to act as such, to issue to the shipper or consignor, or his agent, or person from whom any goods are accepted for transportation, a bill of lading, manifest, or other evidence of receipt and forwarding, for each shipment received' for carriage and transportation, whether in bulk or in boxes, bales, packages, bundles, or not so inclosed or included; and there shall be duly attached and canceled, as is in this act provided, to each of said bills of lading, manifests, or other memorandum, and to each duplicate thereof, a stamp of the value of one cent: Provided, that but one bill of lading shall be required on bundles or packages of newspapers when inclosed in one general bundle at the time of shipment. Any failure to issue such bill of lading, manifest, or other memorandum, as herein provided, shall subject such railroad or steamboat company, carrier, express company, or corporation or person to a penalty of fifty ■dollars for each offense; and no such bill of lading, manifest, or other memorandum shall be used in evidence unless it shall be duly stamped as aforesaid.”
The relators contend that the duty to pay this tax is cast upon the respondent by the terms of the act, and that, when the proper charges were tendered for the transportation, it became the duty of the respondent to undertake the carriage, and that respondent has no right, under the guise or pretense of raising its rates, to cast 'this burden upon the public.
1. It is contended by counsel for respondent that the question is one over which the federal courts have exclusive jurisdiction. We cannot agree with counsel in this contention. This is not an action for the recovery of the penalty which the statute imposes for failure to issue the bill of lading, but a proceeding for an order to compel the respondent, a common carrier, to accept and carry the goods tendered it for shipment when the regular charges are paid or tendered. The respondent is a common carrier, and as such it is its duty to receive for carriage and to carry the goods of any person tendered to it for transmission, provided they are such as it holds itself out as willing to carry, and the party tendering them offers to pay its proper charges. This duty is imposed by law. 5 Am. & Eng. Enc. Law (2d Ed.), 158, 159. The respondent is permitted to do business in this State, though not incorporated under the laws of the State, but it is subject to all the duties and obligations which the law imposes upon common carriers; and for a refusal to carry goods when tendered, and charges paid, the State courts may be appealed to for redress. This matter is entirely between the shippers and the company. This view is held by the attorney general of the United States in a recent opinion, in which he says:
“In controversies arising between shippers and express companies as to which one shall be required to bear the expense of the stamp, the general government has no direct concern under the war-revenue law.”
The general government, it appears, refuses to proceed against express companies for a violation of the act, unless it be made to appear that the company has accepted goods for shipment, and has refused to attach the stamp to the receipt given therefor; that is, the general government may and will prosecute for the penalty fixed by the act when goods are received and shipped without the company’s affixing the revenue stamp to the receipt or bill of lading, but it will not interfere between the public and. the company for refusal to carry. The commissioner of internal revenue on August 1, 1898, decided that the aggrieved parties, — that is, the parties offering goods for shipment,- — -when the company refuses to carry without payment of the stamp, must depend for redress upon the common or the statute law of the State defining the obligations of common carriers.
2. Unless, therefore, the shipper should pay the tax, the company is bound to carry, upon the payment or tender of the regular charges. The company is vested with the exercise of public functions under the permissive power of the State; and, when it refuses to discharge the duties imposed by law, mandamus is the proper remedy to compel the discharge of that duty. The American courts have taken such occupations under their control, and, regarding them as public agencies, have enforced the common law or the statutory law against them, and have not hesitated to grant the writ of mandamus against any party who, having assumed public duties, refuses to discharge them. Haugen v. Water Co., 21 Or. 411; Olmsted v. Aqueduct Proprietors, 47 N. J. Law, 311.
But counsel contend, further, that the power given to the circuit courts to issue mandamus rests upon Cir. Ct. Rule No. 46, which provides, “Circuit courts shall have jurisdiction within their respective counties in all mandamus proceedings involving the action of any officer or board of any county, township, city, or school district, or of the common council of any city or village, and the action of any private corporation or officer or board thereof,” and that, this rule not having included joint-stock associations, the circuit courts are not vested with power to issue the writ. “Corporations” and “associations” are convertible, and often used as synonymous, terms. There is no reason for. any distinction or discrimination between corporations and joint-stock associations, in applying this rule. It is the intent of the rule to place all mandamus proceedings of this character primarily in the circuit courts. In reference to the assessment and collection of specific taxes, the legislature of this State has recognized the terms as convertible. Section 1255, 1 How. Stat., provides:
“The term ‘corporation,’ as»used in this act, shall be construed to include all associations and joint-stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships.”
In Maltz v. American Express Co., 1 Flip. 611, it was held that, whether a corporation or not, a joint-stock association is a distinct legal entity, and that so long as this fact exists, and it possesses the attributes of perpetual succession, and the capacity of suing and being sued, it is a juridical person, and must be regarded as a citizen of the State which creates it; and it is wholly immaterial whether it be termed an “association,” “joint-stock association,”. ot “guild.”
3. J'he main question in the case relates to the construction to be placed upon the act in question. By the act every express company is compelled to issue to every .shipper or consignor, etc., a bill of lading for each shipment received for carriage, to which bill of lading and duplicate thereof there shall be attached and canceled a stamp of the value of one cent. The law therefore imposes upon the carrier the obligation to issue the receipt. With this the shipper has nothing to do. He delivers the package to the company, and pays or tenders the usual charges. This ends the shipper’s duty, and the law then compels the carrier to issue the receipt or bill of lading. This bill must be stamped, and the stamp canceled. It is evident that it is as much the duty of the company to place the stamp upon the receipt and cancel it as it is to issue the receipt. This duty is made more apparent by 'the fact that the act further provides that failure to issue the receipt makes the carrier so failing amenable to a heavy penalty. But it is contended by counsel, in a brief filed with this court, that the penalty was directed, and intended by Congress to be directed, to the failure to issue the receipt, and nothing more, leaving the question of the stamping of the same to be settled by the parties. It seems to us that what is meant by this clause is that the receipt must be such as is provided, — that is, a receipt bearing the proper stamp, — -and that the penalty is provided for such a failure as this. It is, and always has been, the custom of express companies to issue receipts for goods delivered for shipment. The only interest the government has or can have is the affixing and cancellation of the stamp to aid it in its war revenues. We are therefore led to the conclusion that the duty to issue the receipt, and the penalty prescribed for the failure to do so, imply that it is to be a receipt which would bring the government the revenue provided. Therefore the act makes it the duty of the company to affix the stamp.
4. It is contended, however, that the company hhs. the right to make new regulations and establish new'rates to meet this burden. It is conceded that the effect of this is to throw the burden upon ¿the shipper. It is apparent upon the face of this proceeding that the very purpose of-this change in the regulations and the increase of rates is to avoid the payment of the tax, and thus cast upon the shippers the burden which the act of Congress puts upon the company. This is but an evasion and a subterfuge to avoid the terms of the act. The pretense that raising the charges on each package just one cent, without reference to the distance to be carried, the weight or bulk of the package, and the former fixed charges, is a regulation of charges, can hardly be treated seriously. If the charges established were regarded as too small, it would seem that the action would have been to make the additions in some manner to correspond to the length of carriage, weight, etc.; but to add one cent to every charge for carriage bears upon its face evidence of the attempt to evade the act. Where the charge established was 25 cents it is now 26 cents; where it was 50 cents it is now 51 cents; where $1 it is now $1.01; and so on, adding just one cent to each charge. It cannot be that this was done because the charge was too low for each carriage, however long the distance, or however weighty the article. The statement of this claim is its own refutation. We are aware that Judge Lacombe, of the United States circuit court of New York, has held the other way upon this question, in the case of Crawford v. Hubbell, 89 Fed. 961, as also the United States district courts of North Carolina and California; but we are unable to agree with those cases. Judge Tuley, in the superior court of Cook county, 111., has, however, held in accordance with our views here expressed. It is said by him that “it is not in fact a revision or increase of rates, but an arbitrary attempt of the company to maké the shippers pay a tax which the law requires the company to pay. The court must regard the substance of the contention, and not the pretense.” People, ex rel. Western Wheel Works, v. United States Express Co., 30 Chicago Legal News, 408.
5. It is further contended that the order of the court below is too broad; that the writ should run against the company only so far as to affect the parties to this record. The petition is filed by the attorney general of the State, in which it is stated that these cases constitute but few of the many of like character, and are presented for the purpose of representing the uniform course of practice of the respondent company. This is not denied by the answer, but, on the contrary, the claim is made therein that the regulation of its business affairs, and the change in its rates of transportation, throw the burden of the tax upon the shipper, by force of circumstances. It is thus apparent fhat the attorney general’s petition, taken with the answer of the respondent, is sufficient to show that the respondent is attempting to enforce this rule throughout the State in. its dealings with all its customers; and the case involves-the question whether the order should be broad enough to reach the rights of all classes who are shippers within the State. - We think the order should not be modified as-claimed.
The order of the court below must be affirmed.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). 1. The amendment was allowable. 2 How. Stat. § 7631; Newell v. Blair, 7 Mich. 103; Drake v. Railway Co., 69 Mich. 168 (13 Am. St. Rep. 382); Rock v. Collins, 99 Wis. 630. It is true that the issues had been submitted to the court on February 9th, but it was within the power of the court to open the case and allow an amendment at any time before judgment, upon due notice to the opposite party.
2. The bank was not estopped by its first' disclosure that, at the time of the service of the writ, it had no money in its hands belonging to Swan. It did not have at the time of the actual service. The court held that the exhibition to the cashier of the original writ, and the service of a copy of the affidavit, instead of a copy of the writ, constituted a good service. The court was correct in permitting the garnishee to show the exact condition of things at the time of the alleged defective service.
Judgment affirmed.
The other Justices concurred. | [
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Montgomery, J.
This is an appeal from a decree in complainant’s favor, in a bill filed under section 6626, 3 How. Stat., to quiet title to certain lands in Muskegon county. Complainant showed title in herself under a tax deed which established title in herself as against defendant Snow, who held the original title. The only defense attempted was that complainant was not in a position to maintain the bill, for the reason that she had, through her husband and agent, acquired the only possession which she obtained by unfair means, and with the purpose of filing the present bill.
The facts, as disclosed by the record, are that one Louis Rollenhagen became the purchaser of the lands in question under a decree for the taxes of 1893. On the 20th of April, 1897, Rollenhagen conveyed to complainant. At this date defendant Snow was in possession of the property by a tenant, one Sterenburg. Shortly after complainant’s purchase, the husband of complainant visited the premises, and, after some negotiations, an agreement was made with the tenant that he vacate the premises and yield up possession to complainant upon complainant paying him the sum of $25, and agreeing that he (Sterenburg ) should have the privilege of harvesting a portion of the potatoes then planted. This agreement was effected after Mr. Lillie had stated that he would have the right to apply for a writ to put complainant in possession, and upon his statement that he would prefer to pay the $25 to him (Sterenburg) than to pay a like amount in expenses-Mr. Lillie testified that he had in mind the filing of a bill at this time.
Does the fact that he had this purpose, together with his obtaining possession in the manner stated, bar the complainant from remedy under this statute? This, it seems to me, should depend on whether he committed any wrong in acquiring possession. The* statute provides that any person having the actual possession and legal or equitable title to lands may institute a suit in chancery, etc. Complainant is therefore within the letter of the statute. It has been held, however, that where possession has been obtained by the complainant’s wrongful conduct,' he is not within the spirit of the statute, and cannot maintain a bill. Defendant relies on these cases. The first is Stetson v. Cook, 39 Mich. 750. In that case it appeared that one Ellis was in possession of the land under parties in privity with defendant. Complainant made arrangements with Ellis by which complainant was let into possession, and immediately filed the bill to quiet title. The case was not one in which the title of the landlord had terminated either by lapse of time or operation of law, and hence was not within the exception to the general rule that a tenant cannot dispute the landlord’s title until he has been reinvested with possession. It is apparent, therefore, that Ellis had been induced to yield up possession in violation of the landlord’s rights. It was held that the statute was not intended to reach a case where a party acquires possession by sharp practice.
The ease of Watson v. Lion Brewing Co., 61 Mich. 595, is also cited. In this case the defendant was in actual possession. The title under which defendant claimed had not terminated, and yet complainant unfairly and surreptitiously gained possession for the express purpose of filing the bill. It was held that he was not entitled to maintain the bill. It is apparent that the court in this last case did not intend to go further than to exclude this remedy in cases where the possession was taken wrongfully or surreptitiously, for in Board of Supervisors v. City of Grand Rapids, 61 Mich. 173, the same justice who wrote the opinion in Watson v. Lion Brew ing Co. held that where no other person or municipality had actual or exclusive possession, and the complainant, on the 8th of October, fenced in the locus in quo, and maintained possession until October 24th, the complainant had shown & right to maintain the bill.
In the present case the title of defendant had been terminated by operation of law. It was therefore lawful, and no breach of any duty which he owed to the defendant, for the tenant to surrender possession to the true owner. McGuffie v. Carter, 42 Mich. 497; Lamson v. Clarkson, 113 Mass. 348 (18 Am. Rep. 498); Jenkinson v. Winans, 109 Mich. 524. It is difficult to conceive how it can be said that the complainant is in any way culpable in acquiring possession in the manner in which she did. Her title is not disputed. No force was used. No wrongful collusion with one in privity with defendant is shown. She took possession of what was her own, and, having acquired such possession and maintained it for some weeks, filed this bill, which, under the express language of the statute, she was authorized to maintain.
The decree will be affirmed.
The other Justices concurred. | [
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Hooker, J.
This is an application for a mandamus to compel the vacation of an order appointing a receiver. It has been repeatedly held that orders appointing receivers, whereby the possession of property is divested, are appealable. See Barry v. Briggs, 22 Mich. 201; People v. Jones, 33 Mich. 303; Taylor v. Sweet, 40 Mich. 736; Morey v. Grant, 48 Mich. 330; Perrin v. Lepper, 56 Mich. 351.
It is a well-settled rule that mandamus will not lie when there is another adequate remedy. The following Michigan authorities will be found to sustain this rule: People v. Jackson Circuit Judges, 1 Doug. 302; People v. Wayne County Court Judge, 1 Mich. 359; People v. Wayne Circuit Judge, 19 Mich. 296; People v. Allegan Circuit Judge, 29 Mich. 487; O’Brien v. Tallman, 36 Mich. 13; Stall v. Diamond, 37 Mich. 429; Olson v. Muskegon Circuit Judge, 49 Mich. 85; Delhi School Dist. v. Ingham Circuit Judge, Id. 432; Lloyd v. Wayne Circuit Judge, 56 Mich. 236 (56 Am. Rep. 378); Perrin v. Lepper, 56 Mich. 351; Scott v. Wayne Circuit Judges, 58 Mich. 314; Burt v. Wayne Circuit Judge, 82 Mich. 251; Eyke v. Lange, 90 Mich. 592, 104 Mich. 26; Corby v. Wayne Probate Judge, 96 Mich. 11; Thomas v. Wayne Circuit Judges, 97 Mich. 608 (McGrath, Mand. Cas. No. 853); Hall v. Wayne Circuit Judge, 111 Mich. 395; Aldrich v. Wayne Circuit Judge, Id. 525.
In the case of Hall v. Wayne Circuit Judge we applied the general' rule, and held that an order exactly like the one before us was appealable, and refused to compel its vacation by mandamus, although clearly improvident. In that case we cited the case of Scott v. Wayne Circuit Judges as directly in point. The same disposition of a similar case is found in Thomas v. Wayne Circuit Judges, 97 Mich. 608 (McGrath, Mand. Cas. No. 853).
The writ is denied, with costs.
The other Justices concurred | [
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Moore, J.
This is an application to require the circuit judge to vacate an order quashing a writ of attachment issued in a suit wherein relator is plaintiff and Abraham B. Kaufman is defendant. The debt from defendant was not due at the time the writ was sued out. It is claimed on the part of the respondent that the writ was properly quashed; citing Howell v. Muskegon Circuit Judge, 88 Mich. 361, and McCrea v. Muskegon Circuit Judge, 100 Mich. 375. The writ of attachment was based upon three affidavits. These affidavits, in addition to showing such facts as would have been sufficient, if the debt had been due, to entitle the relator to the writ, showed in detail such facts and circumstances as to establish, by a reasonable and logical inference, fraud upon the part of the defendant, and showed the necessity for the issuance of the writ of attachment before the debt came due. These affidavits supplied the proof of facts and circumstances which were lacking in the case of Howell v. Muskegon Circuit Judge, supra, and McCrea v. Muskegon Circuit Judge, supra. We think the affidavits comply with the requirements of the statute (3 How. Stat. § 8016a), as construed in Mosher v. Bay Circuit Judge, 108 Mich. 503.
The writ will issue as prayed.
The other Justices concurred. | [
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Hooker, J.
The findings of fact filed by the circuit judge state that the. defendants Sheehan contracted with the city of Detroit to furnish materials and repave three streets, one of which was Randolph street. The other defendants were sureties upon the statutory bond given upon the Randolph-street contract according to the provisions of Act No. 94 of the Public Acts of 1883, as amended by Act No. 45 of the Public Acts of 1885. The plaintiffs furnished materials, viz., curbstone, for all of these jobs, amounting in the aggregate to $1,182.18. Payments were made amounting to $674.83, leaving a balance of $507.35. All of the stone was charged upon one account, and the payments were so credited, the last credit being August 7th. On or about August 5th the plaintiffs had an interview with the Sheehans, in which they said that, owing to what they considered an unfair rejection of stone, they would furnish no more, unless the Sheehans would select such material at plaintiffs’ yard, and when thus picked out, and delivered to Sheehan & Co., it should belong to.them, and the plaintiffs would have nothing more to do with it. This was agreed to, and upon a secular day the Sheehans examined at the yard 629 feet 8 inches of curb, which was delivered to them upon Randolph street. / The judge found that this became the property of the Sheehans, whether used or not, and that, of this quantity of stone, 334 feet at 58 cents per foot, worth $193.72, was delivered on Randolph street, at the request of the Sheehans, upon Sunday, August 8, 1897. Of this quantity delivered upon Sunday, the Sheehans sold to other parties an amount worth $34.39; it being curb that was rejected by the inspectors. It is inferred that the remainder was used upon the street. The learned circuit judge found, as conclusions of law, that the defendants Archer and McDonald are not liable for the curb delivered on Sunday, amounting to $193.72, nor for the curb not used on Randolph street, amounting to $30.42; also, that the payments should be applied to the charges in the order of time; and he rendered judgment for the plaintiffs for $283.16, with interest at 6 per cent, from September 1, 1897. Exceptions were taken to the several findings of law. Both parties appealed.
Counsel for the plaintiffs contend that the selection of the stone passed the title from them to the Sheehans. If this is so, their liability is not affected by the fact that the stone was drawn Sunday. The finding shows that the material in question was furnished under the agreement of August 5th, which grew out of a refusal on their part to furnish any more material unless the defendants Sheehan would select it at the yard. It is a general rule that, when one has agreed to sell and the other to buy a specific and designated article, the title passes to the purchaser at once, unless the terms of the contract indicate the intention to have been otherwise, and delivery is not essential to the passing of title as' between the parties and their privies. This rule is supported by innumerable cases, a long list of which will be found in 21 Am. & Eng. Enc. Law, 476, note 1, — among them, three of our own cases, viz.: Davis v. Ransom, 4 Mich. 238; Whitcomb v. Whitney, 24 Mich. 486; Byles v. Colier, 54 Mich. 1. See, also, Bingham v. Eggleston, 27 Mich. 324; Blodgett v. Hovey, 91 Mich. 574; Kuppenheimer v. Wertheimer, 107 Mich. 79 (61 Am. St. Rep. 317).
Where there is no manifestation of intention, the law presumes a sale, and the immediate transfer of title, if the specific thing is agreed on, and it is ready for immediate delivery. See 21 Am. & Eng. Enc. Law, 482, and cases cited in note 1; Lingham v. Eggleston, supra. Kuppenheimer v. Wertheimer, supra. This presumption will be overcome if a different intention can be deduced from the contract, and in this case counsel asserts that the finding shows a different intention. The language is, “Sheehan & Co. should select the material at their yard, and when the curbstone was thus picked out, and delivered to Sheehan & Co., it should belong to Sheehan & Co., and Holmes, Strachan & Co. would have nothing more to do with it.” Were the last clause of the sentence •omitted, it would be plain that the parties understood that the title was to pass upon selection, which is coupled with delivery in a manner indicating such intent. But counsel argues that the word “delivery ” cannot have been used in that sense, because the language implies that after delivery the plaintiffs were not to have anything more to do with the stone, which would be inconsistent with an agree.ment that they should deliver it on Randolph street. Were we disposed to be technical, we might say that there is nothing in this contract, as stated in the .finding, to indicate an obligation upon the part of the plaintiffs to transport the stone; but it appears that they did so, and we therefore assume that it was understood that they should transport it when requested. The question is not free from difficulty. As several of the cases cited hold, the mere agreement to do this would not prevent the title from passing; and we think a fair construction of the sentence quoted to be that after selection the title shpuld pass to the Sheehans, who would take it subject to the vicissitudes of inspection, with which the plaintiffs should have nothing to do. Taking this view of the case, the Sheehans 'became liable for the purchase price when the stone was selected, as the sale was then complete; and this liability was not affected by the subsequent transportation of the stone upon Sunday, to do which was no part of the contract of sale. This conclusion necessitates a reversal of the case, but we will consider the other questions raised.
We are of the opinion that the bondsmen cannot be held liable for material which, though purchased for this .job on Randolph street, was rejected, and sold to other ■parties.
Counsel for defendants also alleges error upon the application of payments, but cites no ■ authority which prevents the application of payments by the parties to the contract under the usual rule, or, if they fail to specify how all payments shall be applied, justifies any other rule than that followed by the learned circuit judge.
A further point is made, viz., that this was a running account between the Sheehans and the plaintiffs, and that it could not be split for the purpose of bringing separate actions. We understand counsel to claim that the bondsmen upon all three contracts should have been joined in one action for the entire balance of the account. Such an action could not have been maintained, as there was no joint liability between the sureties upon different bonds. This is not an action upon the contract for stone, but is based upon the bond, and is authorized by the statute.
The finding shows that the curb furnished for Randolph .street amounted to $853.01, upon which there was unpaid the sum of $507.35. From this amount the rejected curb, •amounting to $64.81, should be deducted, leaving a balance of $442.54, for which sum, with interest at 6 per ¡cent, from the 1st day of September, 1897, judgment will ibe entered in this court, with costs to the plaintiffs.
The other Justices concurred. | [
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Grant, C. J.
This case involves the right of one Charles W. Caley, a justice of the peace, to act as a member of the township board of the township of Superior, Chippewa county. At a meeting of said board there were present the supervisor, the clerk, and one Scribner, a justice of the peace, whose term of office expires in 1899. The office of the justice whose term would have expired July 3, 1898, was vacant. Mr. Caley’sterm expires July 3, 1900. 1 How. Stat. § 744, provides that the board shall consist of four members, — the supervisor, the clerk, and the two justices of the peace whose terms of office soonest expire. Under the relator’s contention, the township board would consist of only three members until the vacancy in the senior term was filled. We are of the opinion that the statute means the two oldest justices at the time holding office. The court below so held, and the judgment is affirmed.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). 1. At the settlement, defendant insisted that he owed the plaintiff $514.19. The dispute between them was over $50. It is unnecessary to state details. The settlement was made with the full knowledge of the claim of each party in regard to it. There was no mistake. It was therefore error for the court to instruct the jury that, if defendant paid the money by mistake, he was entitled to recover it back.
2. Defendant urges that he paid it under duress, and cites Hackley v. Headley, 45 Mich. 569. A complete reply to this claim is that this theory of the case was not submitted to the jury. The charge of the court is given in ■ full, and does not refer to such theory. But, under the. facts, plaintiff made no threat, and, under his claim, stood simply upon his legal rights under the lease and mortgages. Defendant testified he (plaintiff) “insisted that this $50 should be paid. I insisted that, it should not. Mr. Lanab went away to work. I went after him. He came back. I told him to come back, and we would fix it up. I then paid him the amount.” On redirect examination he testified: “I paid it so that I could get my stuff released. I had taken Jubb’s farm, and I couldn’t move.” By the terms of the mortgage, defendant was prohibited from moving the mortgaged goods out of the township. Nothing was said during the settlement about the mortgage, or any statement made by defendant to plaintiff that he paid the disputed amount in order to release his goods. Under this state of facts, there' was no duress.
3. Defendant gave evidence tending to show that during the first year his crops were poor; that he was unable to pay the rent, and that he informed plaintiff that he should leave the farm and give up the lease; that plaintiff promised him that, if he would remain, he would reduce the rent $50 per year; that defendant accepted the proposition; that for four years the $50 was deducted, which plaintiff admitted; that, when the chattel mortgage 'was given during the last year, plaintiff procured the signature of defendant’s wife to the mortgage, thereby obtaining a security which the lease did not provide for; that the mortgage was for the $450; and that, in consideration of his wife’s signature, plaintiff promised to deduct the $50 when the last payment was made. It appears to have been deducted for the other years when the first payment was made. Under these circumstances, we think there was evidence of a consideration for the reduction of the rent. Moore v. Detroit Locomotive Works, 14 Mich. 266; Goebel v. Linn, 47 Mich. 489 (41 Am. Rep. 723); Lawrence v. Davey, 28 Vt. 264; Connelly v. Devoe, 37 Conn. 570; Rollins v. Marsh, 128 Mass. 116; Clark, Cont. 187.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
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Hooker, J.
Between Lake Erie and a road running parallel with the shore, known as the “River Turnpike,” there are four parcels of land upon the south of the projected highway involved in this proceeding, and one to the north of it. Upon the south, Sanger, the plaintiff in certiorari, owns 80 acres of land bordering upon the lake, which is used for summer-resort purposes. West of him are two 80-acre parcels, owned by Wyman, and west of these .a parcel owned by Quick. On the north side Wyman owns the land from the highway to the lake. On January 25, 1897, a petition, signed by 18 freeholders of the township, was presented to the highway commissioner, praying for a highway across the lands of Quick and Wyman, to the line of Sanger’s land. ,A remonstrance, signed by 56 freeholders of 'the township, was presented. The commissioner filed a report that he had heard the proofs of the parties interested, and determined that said highway was a necessary public improvement, and awarded damages to Wyman and Quick, respectively. No plat accompanied the report. Wyman and Quick filed claims of appeal to the township board, with the township clerk, and a meeting of the township board was called for February 27th, to consider the appeals. All members of the township board were present; also Wyman and Quick. Sanger was also there, and was examined on oath. No objection to the proceedings was made on his behalf. The highway commissioner was not present, but the township clerk reported that he had served proper notices of hearing. Upon the hearing, the township board determined that the proposed highway was unnecessary. A writ of certiorari was thereupon taken to the circuit court'by Sanger. The allegations of error were: (1) That no notice of the time and place of meeting to consider the appeals, provided by section 1302, 3 How. Stat., was given to or served upon the commissioner of highways. (2) That at the meeting of the township board no proof of such notice was presented to the board or filed with the township clerk.
The return shows that proper notices in writing of such appeals were served by the township clerk on the appellants and the highway commissioner, by leaving the same at their respective places of residence, except that the notice served on the commissioner, “respondents are informed,” did not show the time and place of hearing the appeals; and, further, that the highway commissioner was not present because, though living and being present in the village at the time the meeting was held, and intending to be present thereat, he was requested by the plaintiff in certiorari to remain away, so that, if the decision of the board should be unfavorable to the opening of the highway, it would be overruled, because there was no proof of service of notices of hearing on file. This statement was based upon affidavits of the supervisor and highway commissioner, which accompanied the return and to which it referred. The cause was heard in the Wayne circuit court on March 31st, and the proceedings of the township board were “set aside for want of jurisdiction, the decision to be without prejudice to prior proceedings.” The cause was then removed to this court by writ of error, by Sanger, whose counsel contends that the decision of the circuit court was erroneous,”,in so far as it declared the reversal of the proceedings of the township board to be without prejudice to the earlier proceedings.
Meantime the township clerk, treating the proceedings as a nullity, called a meeting of the township board for March 31st to consider said appeals, and caused notices thereof to be duly served, and on March 31st the township board met, and heard and determined said appeals, reversing the action of the highway commissioner, as before. On certiorari the Wayne circuit court affirmed this proceeding, and it is now before us upon a second writ of error, issued on the application of Sanger.
The two questions argued are:
1. Whether the first order of the circuit court was erroneous in attempting to declare that the reversal of the decision of the township board was without prejudice to the prior proceedings.
2. Whether the second decision of the township board can stand.
Inasmuch as the only appeal taken from the first order of the circuit court was taken by Sanger, we have no occasion to review the regularity of the first hearing before the township board. Neither party is in a position to claim that it was valid. Sanger has admitted it by claiming that it was not regular. The others are concluded by the judgment, from which they have not appealed. This question, then, resolves itself into the effect of the void action by the township board upon appellants’ rights. They had no further responsibility than to duly make and file their claims of appeal, and appear and prosecute them at such time and place as the board should direct and give them notice of. The failure to give any, or an adequate, notice, was no fault of theirs. But it is contended that the board acquired jurisdiction by the appointment of a time and place, and by meeting at said time and place and hearing the appeals, notwithstanding the fact that the clerk omitted or neglected to give the statutory notice, and that the board might have cured the defect by an adjournment, with direction to the clerk to serve a notice for the adjourned day, and, failing to do this, they would lose jurisdiction. We are cited to cases of loss of jurisdiction by justices of the peace through failure to keep the proceedings alive by proper adjournments, as supporting this contention. This view seems at variance with the decisions in the following cases: In Tefft v. Hamtramck Township Board, 38 Mich. 558, it was said that “notification was a prerequisite to their right to proceed and make the order, and the validity of the order cannot be presupposed for the purpose of proving by its recital that a preliminary step, essential to its validity, was actually taken.” In Brazee v. Raymond, 59 Mich. 548, which was a similar case, it was said: “ The notice was a prerequisite to the right of the board to proceed.”
We are of the opinion that the appeal was properly taken, and that, until the proper notices were served, the township board had no jurisdiction to hear the appeal, notwithstanding the appointment of a day for hearing by the clerk, and that any attempt to do so was futile and a nullity. The action of the board being void, we see no reason why a new day might not be set and notices served. Had the clerk refused to appoint a day or serve notices in the first instance, mandamus would have compelled it, even at the instance of the appellees, who, if the appeal had the effect to vacate the commissioner’s decision, might have no other remedy. Would this right be cut off by an unlawful assumption óf jurisdiction? We think there is no good reason for denying the right to serve a new notice, and that it is supported by the view hitherto expressed in relation to the essentials of jurisdiction. As to the first order, we think it a proper, though unnecessary, expression of the circuit court upon the status of the prior proceedings.
Both judgments are affirmed, with costs.
The other Justices concurred. | [
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Grant, C. J.
(after stating the facts). Breck was not Bacon’s agent. Bacon usually sent to Breck to collect the interest as it fell due, and it was paid and remitted. Klett lived near Paw Paw, and knew Breck, in whom he placed confidence. He testified that Breck told him he was Bacon’s agent. He had no other reason for so believing. He knew that Breck had assigned the note to an Eastern party. Bacon testified that he never authorized Mr. Breck to collect this amount, and had no knowledge of this payment until after Breck’s death. Breck gave receipts to Klett in his individual name. On one occasion Klett informed Breck that he desired to pay $100 of principal. Breck wrote to Bacon, and received a letter authorizing him to receive and remit it. Klett did not ask Breck to see the note and mortgage, or if he had them. He knew that the note was negotiable, and that it was transferred, and he had no right to assume that Breck was Bacon’s agent to collect the principal. The fact that Klett paid the interest to Breck, and that Breck remitted it to Bacon, is not sufficient to establish the authority to receive the principal, or any part of it, or to justify Klett in believing that Breck was Bacon’s agent. The employes in Breck’s office testified that they knew of no authority conferred by Bacon upon Breck. Breck’s authority was confined by Bacon to express instructions on every occasion. All the transactions between Breck and Bacon are consistent with specific authority and instructions for each case, and do not establish general authority. Aside from this there is nothing to show such general authority. Terry v. Durand Land Co., 112 Mich. 665; Trowbridge v. Ross, 105 Mich. 598; Bromley v. Lathrop, Id. 496; Joy v. Vance, 104 Mich. 99; Church Association of Michigan v. Walton, 114 Mich. 677. Klett could easily have ascertained whether Breck had authority. Instead, he chose to rely upon information given him by Breck. It is he, and not Bacon, who must suffer.
Decree reversed, with costs of both courts, and decree entered here for complainant.
Montgomery, Hooker, and Long, JJ., concurred with Grant, C. J." | [
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] |
Hooker, J.
These cases involve the validity of Act No. 76, Pub. Acts 1897, which is as follows:
“An Act to prevent deception in the manufacture and sale of imitation butter.
“Section 1. The People of the State of Michigan enact, that no person, by himself or his agents or servants, shall render or manufacture, sell, offer for sale, expose for sale, or have in his possession with intent to sell, any article, product, or compound made wholly or in part out of any fat, oil, or oleaginous substance or compound thereof' not produced from unadulterated milk or cream from the same, which- shall be in imitation of yellow butter produced from pure unadulterated milk or cream from the- same: Provided, that nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form, and in such manner as will advise the consumer of its real character, free from coloration or ingredient that causes it to look like butter.
“ Sec. 2. "Whoever violates any of the provisions of section one of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty dollars, nor more than five hundred dollars, and the costs of prosecution, or by imprisonment in the county jail, or state house of correction and reformatory at Ionia, for not less than six months nor more than three years, or by both such fine and imprisonment, in the discretion of the court, for each and every offense.
“Approved April 15, 1897.”
The evidence in the first-entitled cause shows that the defendant was convicted of the alleged offense of selling oleomargarine in contravention of this act. In the other, a complaint was made of a similar act to a justice, who refused to issue the warrant; and, on application, the circuit court denied a mandamus to compel it. The cases raise substantially the same questions, and were argued, and will be considered, together.
The validity of the law is questioned. The record shows that this was a senate bill, and passed the senate without the constitutional enacting clause. The records of the house show that the bill was reported by the committee on agriculture and the committee of the whole without amendment, and with the recommendation that it be passed. Under the head of “ Third Reading of Bills upon Passage,” the record of the house shows that:
“Pending the third reading of the bill, Mr. Chamberlain moved that the bill be recommitted to the committee of the whole, which motion did not prevail. The bill having been read a third time, and the question being upon its passage, pending the taking of the vote Mr. Graham demanded the previous question. The demand was seconded. The question being, ‘ Shall the main question be now put?’ the same was ordered. The bill was then passed, a majority of all the members-elect voting therefor by yeas and nays as follows: Yeas, 56; nays, 19.”
As this is the only time the bill was before the house, wé must find that the bill passed the house without an enacting clause, upless the contrary can be shown by other evidence. Counsel undertook to show that it was amended in this particular by the records of the senate and the testimony of the clerk qí the house. The evidence is, in brief, that, previous to the passage of the bill in the house, the clerk noticed the absence of the enacting clause, and brought it to the attention of the house, and said that he would enter one, and accordingly wrote the words in the original bill; i. e., the one which was then before the house. He did not testify that the house took any action upon it, or that any record was ihade of it. The senate record shows that the bill was subsequently returned to the senate, accompanied by a letter from the clerk of the house, reading as follows:
“House op Representatives, “Lansing, April 7, 1897.
“To the President op the Senate.
“Sir: I am instructed by the house to return to the senate the following bill : ■ Senate bill No. 6, file No. 24, entitled ‘A bill to prevent deception in the manufacture and sale of imitation butter,’ — and to inform the senate that the house has amended the same as follows: By inserting in line 1, section 1, after the words ‘Section 1,’ the i words, ‘The People of the State of Michigan enact.’
“Very respectfully,
“Lewis M. Miller,
“Clerk of the House of Representatives.
“In the passage of which, as thus amended, the house has concurred by a majority vote of all the members-elect. ”
It further appears that the senate concurred in such amendment.
.We must determine, therefore, whether the house is shown to have amended the bill by inserting an enacting-clause, and, if not, whether the law is valid without it.. The most that can be claimed is that there is oral testimony that the clerk announced its absence, and stated that-he would supply it. Inferentially, perhaps, we may say- that there was no objection made; but the evidence is silent as to what, if anything, occurred. There is nothing but this inference of silence which imports acquiescence in the amendment. There is nothing to show definite action by the house, which alone had power to amend the bill before it. So that, if the clause is essential to the validity of the act, we need not discuss the propriety of admitting parol evidence to prove an amendment which should be shown by the record if one was authorized. See Attorney General v. Rice, 64 Mich. 391; Hart v. McElroy, 72 Mich. 446 (2 L. R. A. 609); Sackrider v. Board of Supervisors of Saginaw Co., 79 Mich. 66.
Is the constitutional enacting clause a requisite to a valid law ? This must depend upon whether the constitutional provision is to be considered a mandatory provision or directory merely. See Const. Mich. art. 4, § 48. Among the authorities cited by the relator in support of his contention is that of Swann v. Buck, 40 Miss. 268. The constitutional provision is similar to ours, and it was held that a substantial compliance was sufficient. In that case the style of the resolution was, ‘ ‘ Resolved by the legislature of the State of Mississippi.” The court was unable to discover a previous judicial decision of the question, but quoted Mr. Cushing to the effect that the prescribed “ form must be strictly pursued, and that no equivalent language will be sufficient,” and, while declining to accept his rule, said:
“ It is necessary that every law should show on its face the authority by which it is adopted and promulgated, and that it should clearly appear that it is intended by the legislative power that enacts it that it should take effect as a law. These conditions being fulfilled, all that is absolutely necessary is expressed. The word ‘ resolved ’ is as potent to declare the legislative will as the word ‘enacted.’ ”
The case of McPherson v. Leonard, 29 Md. 377, held that the provision of the constitution of Maryland was directory, and that the omission of the words, “by the general assembly of Maryland,” did not render the law invalid. The question appears to have been treated as a new one. The case of City of Cape Girardeau v. Riley, 52 Mo. 427 (14 Am. Rep. 427), follows the Maryland case in holding the provision directory; the court saying that, after diligent search, no case holding to the contrary had been found. In this case, like the one before us, the entire enacting clause was wanting. In this connection we may add that previous decisions of the same court, holding the provision that writs should run in the name of the State was directory, were given weight. In our State a contrary holding will be found. See Forbes v. Darling, 94 Mich. 621. There are, however, cases which take a contrary view of the law, and adhere to the doctrine asserted by Mr. Cushing, and the late Mr. Justice Cooley, in his work on Constitutional Limitations (page 93, 6th Ed.), viz. :
“But the courts tread upon very [dangerous ground when they venture to apply the rules which distinguish directory, and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done, and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all departments of the government must at all times shape their conduct; and, if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not, therefore, to expect to find in a constitution provisions which the people in adopting it have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time, at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given to any other end, — especially when, as has already been said, it is but fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication.”
There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions ; but they are so plainly at variance with the weight of authority upon the precise points considered that we feel warranted in saying that the judicial decisions, as they now stand, do not sanction the application. The question arose in Washington Territory, over a law fixing the seat of government, and the opinion of Cushing was quoted and followed. In re Seat of Government Case, 1 Wash. T. (N. S.) 116. The case of State v. Rogers (decided in 1875), 10 Nev. 250 (21 Am. Rep. 738), did the same. An extended discussion of the subject will be found in that case, in support of the proposition that the language of the constitution should -be literally followed. The opinion concludes with the following pertinent and emphatic language:
“Our constitution expressly provides that the enacting clause of every law shall be, ‘ The people of the State of Nevada, represented in senate and assembly, do enact as follows. ’ This language is susceptible of but one interpretation. There is no doubtful meaning as to the intention. It is, in our judgment, an imperative mandate of the people, in their sovereign capacity, to the legislature, requiring that all laws, to be binding upon them, shall, upon their face, express the authority by which they were enacted ; and, as this apt comes to us without such authority appearing upon its face, it is not a law.”
The case of State v. Patterson, 98 N. C. 662, is strong in its condemnation of the practice of treating constitu tional requirements as directory. The case of Powell v. Jackson Common Council, 51 Mich. 129, is not in point, as the bill was duly and seasonably amended, if we may accept the statement of the briefs of the counsel and the syllabus. ' The trend of the weight ‘of the authority is, in our opinion, against the relator’s contention.
It is urged with some plausibility that the insertion of this provision previous to the signature by the governor is a sufficient compliance with the Constitution, from which we understand the claim to be made that, although the enacting clause was wanting when the bill came to the governor, it might have been supplied by him. But it is thought that this proposition is tenable only upon the assumption that the constitutional provision is directory merely. The governor has no power to make laws. The legislative power is in no part vested in him, being by section 1 of article 4 of the Constitution vested in the senate and house of representatives. It is not the design of the Constitution that he should legislate. His office is a check upon the, legislature, and he may compel a reconsideration of a bill by seasonably returning it to the appropriate house with his objections to it, and, when the legislature has adjourned, his neglect to sign it prevents it from becoming a law; but he has not the slightest power in framing the law. Indeed, it is a fundamental principle in American constitutions that the executive shall not make laws. The following language from the opinion in the case of State v. Rogers, 10 Nev. 250 (21 Am. Rep. 738), is apropos to this subject:
“Without the concurrence of the senate, the people have no power to enact any law. Every person at all familiar with the practice of legislative bodies is aware that one of the most common methods adopted to kill a bill, and prevent its becoming a law, is for a member to move to strike out the enacting clause. If such motion is carried, the bill is lost. Can it be seriously contended that such a bill, with its head cut off, could thereafter, by any legislative action, - become a law? Certainly not. The certificates of the proper officers of the senate and assembly that such an act was passed in their respective houses do not and could not impart vitality to any act which upon its face failed to express the authority by which it was enacted. ”
This being so, the only justification for the insertion of the enacting clause by the governor is to be found in the assumption that it is a clerical omission of an unimportant matter; and it might as well be held that one of the houses, or a clerk, or even the printer of the laws, might make the correction, as that the governor might do it.
Some of the States have sustained laws without enacting clauses, but we do not know of one that has made their validity depend upon the unauthorized action of some officer or person. They have preferred to rest their action upon the well-recognized distinction between mandatory and directory provisions. If the provision is mandatory that the law shall have a prescribed style, and the making of laws is confined to the legislative branch of the government, it cannot be consistently held that omissions of essential parts of a law may be supplied and corrections made by persons without authority; and the public necessities should be much greater than in the present case before such a proposition should be seriously considered. If, on the other hand, there is warrant for treating the provision as directory, a much less dangerous precedent is established. But, as has been shown, the weight of authority forbids it; and, in our opinion, it will be an unfortunate day for constitutional rights when courts begin the insidious process of undermining constitutions by holding unambiguous provisions and limitations to be directory merely, to be disregarded at pleasure. In the present case it will be much better that the legislature shall correct its mistake than that the courts shall sanction the irregular correction.
We are therefore constrained to hold that the law under discussion is void, and in the certiorari case the order is affirmed; in that of Dettenthaler the conviction is reversed, and no new trial ordered.
The other Justices concurred. | [
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Pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, the order of the Attorney Discipline Board is modified to a sixty-day suspension of the respondent. | [
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] |
Long, J.
This case is reported in 115 Mich. 675. Since the case has been published, a rehearing has been granted. Upon a further investigation of the case, it is found that one of the questions raised by counsel for defendant was overlooked. It appears that the whole contract price was $1,500, and added thereto was $23 to complete the building, or a total of $1,523. Mr. Fields had paid the contractor, for the subcontractors and material men, the whole amount of the contract price; that is, $1,523. He made these payments in full, in the belief that the Blitz bill had been paid by the contractor, to whom he had paid the money for that purpose. These payments were made before he had any notice that the Blitz bill had not been paid. If the amount of the Blitz bill of $157.81 be added to the amount already paid out by Fields, it would amount to $1,680.81; so that, under the rule laid down in Fairbairn v. Moody, 116 Mich. 61, 65, Mr. Blitz would be entitled to only 1523-1680.81, or 89 per cent., of his claim, which would amount to $139.45, instead of the amount allowed in the former opinion, of $157.81. This difference of $18.36 will be deducted from the complainant’s former decree, which, so modified, will be affirmed. No costs of this court will be allowed to either party.
The other Justices concurred. | [
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] |
Moore, J.
Plaintiff recovered a judgment against the defendant for the loss of one of his eyes. Defendant brings the case here by writ of error.
It is the claim of the defendant that there was contributory negligence on the part of the plaintiff. That'question was fully submitted to the jury, who found against the contention of defendant.
The important question' is, Does the testimony tend to show any negligence on the part of the defendant? The plaintiff is an intelligent workman, upwards of 30 years old. He had been a machinist 14 or 15 years. He worked for the defendant several years, operating a machine for boring iron. Not far from his machine a gang of men were engaged in riveting together parts of a bridge for an iron crane. The process is for one man to heat the rivets. Another places beneath the rivet a solid support, capped by a piece of steel, in which there is a cup to hold in place and preserve the under head of the rivet. Another man places on the upper end of the rivet a snap-hammer, which is a hammer with a cup on its face, designed to form the upper head of the rivet. While the rivet is hot, this snap-hammer is struck by two men. with sledges, alternately, until the riveting is completed. It is the claim of the plaintiff that he stepped away from his machine to inspect some trolley sides, upon which he would later have to do some work, and that, while so doing, a piece of steel was broken from the face of the snap-hammer, and struck him in the eye, resulting in its loss. He further claims this snap-hammer was out of repair, and should have been known to be so by the defendant, and that it was not a reasonably safe tool with which to do the work. It is the claim of the defendant that the tool was properly made by its blacksmith, from the best material; that it was not out of repair; that what occurred was an accident which could not have been foreseen. It is also' claimed that, when the accident occurred, plaintiff was not engaged in necessary work, but was leaning on a pile of trolley sides, looking at the riveters, and that his negligence caused the accident. It is also claimed that, if the tool was out of repair, it was the fault of the man who was using it, and that he was a fellow-servant, and for that reason plaintiff cannot recover. Defendant asked the court to direct a verdict. This was denied. This is said to be error.
The case is very near the border line which separates those cases where a verdict should be directed from those where the case should be submitted to the jury. The difficulty does not grow out of the law itself, so much as out of the application of the law to a given case. It is now well settled the master owes to the servant the duty of using ordinary care and diligence in pfoviding for his use sound and safe materials, and such appliances as are reasonably calculated to insure his safety. • He is also bound to examine and inspect these things from time to time, and to use ordinary care and skill to discover and repair defects in them. 1 Shear. & R. Neg. § 194; 2 Thomp. Neg. 984; 14 Am. & Eng. Enc. Law, 894; 7 Am. & Eng. Enc. Law, 830; Holden v. Railroad Co., 129 Mass. 268; Cooley, Torts, 556; Johnson v. Spear, 76 Mich. 139 (15 Am. St. Rep. 298); Tangney v. Wilson & Co., 87 Mich. 453; Anderson v. Railroad Co., 107 Mich. 591; McDonald v. Railroad Co., 108 Mich. 7. The record shows defendant furnished an excellent quality of steel from which to make the tool. It was made by a competent blacksmith. There is no claim that when made it was not a proper tool with which to do the work required. The men using it were skillful mechanics, as competent as any one would be to decide from an inspection of the tool whether it was a reasonably safe one to use or not. The men were not required or expected to use a tool after it became unsafe because of use or for any other cause. They were at liberty to take a defective tool at once to the blacksmith, and have it-repaired or get a new one in its place. This tool was a simple one. The men using it were competent to pass upon its fitness for use. All the witnesses who saw the hammer say it was a safe one to use. The only testimony to the contrary is given by the plaintiff, who never saw the tool, but was of the opinion, judging from the appearance of the small piece of steel taken from his eye, the tool was not a proper one to use. The testimony discloses that no steel is so perfect as not to have defects which will not be disclosed by inspection. Sometimes a sliver will break off from the best of hammers. It does not appear that an inspection would have shown any defect in the hammer.
The plaintiff failed to establish a cause of action. The court should have directed a verdict in favor of defendant. Rawley v. Colliau, 90 Mich. 31; Kehoe v. Allen, 92 Mich. 464 (31 Am. St. Rep. 608); Miller v. Railroad Co., 21 App. Div. 45; Marsh v. Chickering, 101 N. Y. 396.
Judgment is reversed, and a new trial ordered.
Montgomery, J., concurred with Moore, J. | [
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Moore, J.
The respondent was convicted of forgery, under section 9213, 2 How. Stat. The information charged, and Mr. Phillips pleaded guilty to, the forgery of an instrument reading as follows:
“Mr. Gleason, would you let me have one bottle of St.
Jacob’s oil, and I will settle with you when I come to town. I have a small bill with you now.
“Mrs. Smith, Gunnisonville.”
It is claimed that to forge such a paper is not a crime, under the statute. It is said this is not an order for property, but a mere request, and that, to constitute such an order as is intended by the statute, the drawer of the order must have a disposing power over the goods, and the person upon whom it is drawn must be under obliga tion to accept the order; citing Bish. Stat. Crimes (2d Ed.), §§ 328, 329; State v. Lamb, 65 N. C. 422; State v. Leak, 80 N. C. 403.
The English rule was originally as stated by. the counsel for respondent, and the North Carolina cases follow the English rule; but the weight of authority is quite the other way. The words “ any order * * * for money or other property ” should be given their usual and accepted meaning. If the construction urged by. counsel is to control, the evils which the statute sought to prevent may be suffered, and the offender go free. The criminally inclined would soon be so cunning as to frame the order in the form of a request, and direct it to one who was under no obligation to accept it, but who, nevertheless, would do so. The drawee of the order would he led to part with his money or property, the mischief would be accomplished, and the person wrongfully accomplishing it escape. We do not think this is consistent with the language of the statute, or the reason of its enactment. State v. Holley, 1 Brev. 35; People v. Shaw, 5 Johns. 236; State v. Cooper, 5 Day, 250; Hoskins v. State, 11 Ga. 92; Com. v. Fisher, 17 Mass. 46.
Judgment is affirmed.
The other Justices concurred. | [
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The certification by the Court of Appeals pursuant to Administrative Order No. 1984-2 that its decision in this case is in conflict with its decision in People v Davis, 126 Mich App 66 (1983), is considered. The Court declines to take further consideration of the question presented. Court of Appeals No. 76575. | [
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Per Curiam.
The plaintiff recovered a judgment in the Monroe circuit court against one Fisher, a saloon keeper, and his bondsmen, in the sum of $5,000. The penalty of the bond was but $3,000. The defendants moved for a new trial, and the court ordered that a new trial be granted unless the plaintiff remit down to the penalty of the bond. The plaintiff, on the hearing of the motion, asked for judgment for $3,000 against the sureties, and for the amount of the verdict, $5,000, against the principal. This application was denied, and mandamus' is now sought to compel the circuit judge to enter such order.
The action is joint. A satisfaction by one defendant would discharge the action. There is no provision of. statute for severing in an action ex delicto, or for entering a judgment in one sum against one defendant, and in a greater sum against another.
The writ is denied. | [
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Hooker, J.
The defendants appeal from an adverse decree of the circuit court, upon a ‘bill filed in aid of execution. .The judgment upon which the execution issued was upon a promissory note given by Henry Sprague, for money borrowed from the plaintiff, the defendant Alexander Sprague being an accommodation maker. The evidence shows that the defendants are husband and wife, and that in the year 1879, while they were living upon the premises in controversy, which then belonged to said Alexander Sprague, his mother was a paralytic, living at the home of Henry Sprague, where she remained four or five weeks after her attack of paralysis. At that time the wife of Henry refused to care for her longer, and at her husband’s request, and upon his promise to deed to her the place by way of compensation, Sarah Sprague, the defendant, consented to permit the mother to be brought to the home of the defendants, and promised to care for her as long as' she should live, which she faithfully did. In 1881, Alexander Sprague, the husband, being in an enfeebled condition, and sick, and, according to the testimony of Mrs. Sprague, worried over the condition in which his wife and mother would be left if he should die, expressed regret that he had not made the deed as promised; and, as soon as he recovered sufficiently, he executed a deed of the premises, and gave it to his wife, who had it in her possession at all times thereafter. At that time he was not in debt. The note was made in November, 1894, and fell due November 30, 1895. The deed was recorded October 11, 1895.
The complainant’s counsel does not contend that the deed was executed with a fraudulent intent, but asserts that the evidence shows that it was in the nature of a testamentary disposition of the property, made at a time when Sprague’s mother was, and might continue for an indefinite period, dependent upon his wife, and when it is said the parties believed his brother, Henry, would be his sole heir, and that it was given and received with the agreement on the part of the wife that it was to be kept off record, and not to take effect if the husband survived the wife. As evidence of this, our attention is called to the failure to record this deed, while in other cases, where land was afterwards purchased by the defendants, the deeds were immediately recorded; to the illness of Sprague, and his fears; to the borrowing of money upon Sprague’s note, secured by a mortgage on the place, to pay an outstanding mortgage; the payment of this last mortgage from the pension received by Sprague; the subsequent insurance of the buildings on the farm in the name of Sprague; the management of the farm and business by Sprague, and in his name; and the erection of buildings thereon, and alleged haste to record the deed, shortly before the note matured. On the other hand, the agreement to deed to the wife, and the subsequent performance of the promise, the immediate delivery of the deed, and the wife’s subsequent and absolute control of it, are shown by their testimony; and a number of relatives testified to their understanding that this deed had been made. The testimony of. the wife is such as to carry conviction to our minds that it was the understanding of the parties that the deed should convey to her an unqualified title, and the conduct and management of the farm afterwards was not so out of the usual order in such cases as to militate strongly against the defendants’ claim.
If it be determined that the .deed was delivered without condition or restriction, it conveyed an absolute title, which could not be affected by the fact that the husband some years later signed and did not pay the note in question. If the land was hers, it could not be made subject to the execution because she did not pay a valuable consideration for it (if she did not); nor did her failure to record her deed in any way increase her liability, as an unrecorded deed is good as against an execution levy, in the absence of fraud. It is unfortunate that the plaintiff should lose his earnings, but, being convinced that the wife has an honest title to the land, we cannot justly require her to pay the husband’s debt. Barkworth v. Palmer, ante, 50, and cases cited.
The decree of the circuit court is reversed, and a decree will be entered in this court dismissing the complainant’s bill, with costs of both courts.
The other Justices concurred. | [
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Hooker, J.
Hughes, the petitioner, is the purchaser of the premises in controversy from Clink, who bought them from the State, said lands having been bid in for the State for the tax of 1893. The auditor’s deed was issued to Clink on July 27, 1897, shortly before he deeded to Hughes. On September 20, 1897, application was made by Hughes to the court which rendered the decree for a writ of assistance, to enable him to obtain possession. The defendant, Jordan, purchased the lands from Kelley, by contract dated April 2, 1897. Kelley had possession from April, 1890, under a contract. The defendant alleged in his answer, and offered to prove, that, after the issue of the deed from the auditor general to Clink, Kelley tendered an amount equal to the taxes of 1893 and 1896 to the auditor general, and demanded a deed; that no demand for payment of the tax of 1893 was made by the township treasurer of Kelley, as provided by section 46 of the tax law of 1893 (Act No. 206), although said treasurer knew that Kelley claimed to own the land, and had paid the tax for 1892 to him; that no attempt was made by the township treasurer to collect the tax from the personal property of said Kelley, which might have been done; and that the deed was void for the further reason that it issued without payment of the tax of 1896, which was at that time a lien upon the premises, and which is still unpaid. The answer concluded with a prayer “ that the decree be reopened and vacated, and a rehearing granted,.and defendant allowed to show what portion of the tax for which the land was sold is illegal and void, and that the sale and deed be declared void, and defendant be allowed to pay such taxes as are legal.” The court did not permit such proof to be made, denied a rehearing, and ordered the writ of assistance to issue as prayed.
Most of the questions raised relate to irregularities anterior to the decree under which the State purchased the land, and these are covered by the recent cases of Cole v. Shelp, 98 Mich. 58; Muirhead v. Sands, 111 Mich. 487; Hilton v. Dumphey, 113 Mich. 241; Auditor General v. Hutchinson, Id. 245.; and Auditor General v. Sparrow, 116 Mich. 574. The following questions are, however, open upon this record, viz.:
1. Whether the circuit court had jurisdiction in the tax proceedings under which the State purchased.
2. Whether the proceedings subsequent to decree were void.
3. Whether the purchase by Clink of the State’s title was accompanied by payment of the tax of 1896, and, if not, whether that fact rendered the deed void.
4. Whether a writ of assistance may be issued in case the petitioner’s title is sustained.
5. Whether it should be denied, and a rehearing in the original tax case granted.
We may dispose of the first of these questions by saying that there is nothing in the testimony offered which tended to show a want of jurisdiction in the original proceedings, the questions presented being within the principles recognized in the cases hereinbefore cited.
Whether Clink should have paid the tax of 1896 when he bought the State title involves a question of fact. It does not appear when the money was paid and title purchased, though from the defendant’s brief we infer that it was some time before the deed was issued, and perhaps before the auditor general was advised that the land was returned to the county treasurer as delinquent, and possibly before such return. ■ Inasmuch, however, as the answer alleges a violation of section 84 in that regard, the proof should have been taken, unless we are to say that the failure to pay such tax would not render the deed void. It may be said that, the title being in the State, others have no interest in the amount received by the State for its title, and that subsequent purchasers for value may rely upon the title conveyed by the State. Here, however, the petitioner relies upon a quitclaim deed, and is therefore on no better footing than his grantor; and, as will be seen by section 85, the owner may be interested in having subsequent taxes paid, and it may also happen that he has himself applied to purchase the lands, offering to pay all taxes and charges required by law to be paid by the purchaser. That is said to have been done in this case.
The auditor general has no authority, under section 84, to sell and.deed State lands, except upon receiving the price required by law, and this the purchaser is bound to know. The taxes become a lien upon the land early in December,— a fact that is known to the auditor general, and of which the purchaser must take notice. Before the auditor general is authorized to part with the title of the State, he must be paid all taxes which remain a lien upon the land. After the time that taxes have become a lien, both purchaser and auditor general are aware that taxes have become due and payable which have not been returned. The purchaser can procure and the auditor general may require evidence that they have been paid, if such is the fact. It may be said that this imposes onerous burdens upon the purchaser; but they are not so serious as to justify the disregard of an unambiguous requirement of the statute (section 81). If this was not done, and such taxes remained a lien on the land when the deed was made5 the title was not conveyed to Clink, and the right of other's who might comply with the law to purchase was not cut off. As we have no means of determining the fact (proof being excluded upon this point), the order must be reversed, and the cause remanded for a rehearing, with costs to the appellant.
The other Justices concurred. | [
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Montgomery, J.
This suit involves the title of 5-81 of lots 21 and 22 of block 5 of the Cass farm, in the city of Detroit. August 26, 1860, Francis L’Etourneau died testate. These lots were part of his estate. In 1891 his will was construed by this court, and it was settled that the estate of Sarah L’Etourneau was entitled to 5-9 of the property. L’Etourneau v. Henquenet, 89 Mich. 428 (28 Am. St. Rep. 310). The daughter of defendant, Margaret L’Etourneau, claimed to be entitled to 3-54 of the estate as heir to her father. The decree of the circuit court recognized this right, but by the terms of the decree in this court she was excluded from so taking. James J. Atkinson appears to have represented the interests of Margaret under an employment by defendant. At first the terms were oral and somewhat indefinite, but after-wards, on July 30, 1891, they were reduced to writing. The agreement reads as follows:
“This agreement, made and entered into between Mrs. Annie L’Etourneau, of the first part, and James J. Atkinson, of the second part, witnesseth: Said party of the second part has for some time past been engaged in securing for said party of the first part, as her attorney, her fights and interests in the estate, both real and personal, of Francis L’Etourneau, Clothilde L’Etourneau, Eleanor L’Etourneau, Timothy L’Etourneau, Sarah L’Etourneau, and Emily Hennaguennet, deceased, all formerly residents of Michigan, and all relatives by marriage of said party of the first part; said property báing all her interest in any and all property coming to her daughter from the estate of Francis L’Etourneau directly or by inheritance from his heirs, a more particular description of which is to be found in deeds to the said party of the first part from her said daughter (Margaret L’Etourneau), acknowledged in Paris, France, on June 9,1889, and September 23, 1890. • He is to continue and secure for said party of the first part all he can. out of each of said estates and property, and with all possible speed, and is to pay all counsel fees and all expenses connected therewith. In consideration of the same, the said party of the first part agrees that of said property, real or personal, so secured, the said party of the second part shall receive, as his compensation, a one-third, the balance, two-thirds, to be the property of the said party of the first part, and to be delivered to her at the close of said proceedings.”
In addition to the appearance in L’Etourneau v. Henquenet, Mr. Atkinson or his associates appeared in probate court, and attended at the time of the appointment of an administrator upon the estate of Sarah L’Etourneau. No other substantial service was rendered. The defendant, as appears recited in the agreement above set out, and as also appears by other testimony, acquired by deed the interest of Margaret. The present complainant claims under a deed from James J. Atkinson of a 5-81 part.
Before the conveyance to complainant, the defendant filed a bill of complaint against Atkinson in the circuit court for the county of Wayne, in chancery, alleging that the instrument above recited was obtained by fraud, and praying, among other things, that it be declared void. The case was heard before Judge Carpenter, and a decree entered dismissing the bill. It also appears from the opinion- of Judge Carpenter that there was no misrepresentation by Atkinson as to the nature of the service required to establish her right to the estate. This decree must be treated as conclusive of the validity of the agreement. Detroit, etc., R. Co. v. McCammon, 108 Mich. 368. The only question open on this record is whether Atkinson rendered the services entitling him to claim the interest in this estate covered by the agreement. It is earnestly insisted that the estate of Margaret vested in her by operation of law, and it was not “secured” for her or the defendant by Atkinson. We think this construction of the word “secure” too technical. The services which Atkinson had already performed were recited, and their nature cannot have been misunderstood. Such services as were necessary to the establishment of the rights of the defendant, Atkinson rendered or stood ready to render.
The complainant is entitled to the relief prayed. The decree will be reversed, and decree entered for complainant, with costs of both courts.
The other Justices concurred. | [
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Per Curiam.
This is a proceeding in contempt by means of which relators seek to have respondents punished for their alleged failure to comply with the terms of an order contained in a peremptory writ of mandamus issued out of this court on the 7th of August, 1914. 182 Mich. 234 (148 N. W. 385). That order commanded respondents:
“That forthwith on service upon you of this peremptory writ of mandamus, you do put into full force, and effect the three several orders of the Michigan Railroad Commission.”
The validity of said orders was questioned by the respondents from and after the date of their promulgation by the railroad commission on October 19 and 22,1909, and November 3,1909. During the five years following, respondents, proceeding under the statute creating the railroad commission, endeavored to show the unreasonable character of the orders and prevent them from being given effect. Instead of complying with the mandate of this court literally, on August 15, 1914, the respondents promulgated the following order in alleged compliance therewith:
“Detroit & Mackinac Railway Company.
“Bay City, Mich., August 15th, 1914.
“On and after August 17th, the following rates will apply on logs to Alpena, Mich., from points on the D. & M. Ry. Co. except from Hillman and Rogers City Branches:
“10 miles or less, $1.50 per 1,000 feet.
“Over 10 miles and not exceeding 20 miles, $1.85 per 1,000 feet.
“Over 20 miles and not exceeding 80 miles, $2.17 per 1,000 feet.
“Over 30 miles and not exceeding 50 miles, $2.50 per 1,000 feet.
“Over 50 miles and not exceeding 80 miles, $2.83 per 1,000 feet.
“Minimum 3,000 feet per car.
“A refund of 50 cents per 1,000 feet to be made if manufactured product is reshipped via D. & M. Ry.
“Above takes the place of existing rates.
“J. K. Hudson, Geni. Freight Agent.”
This was a typewritten communication to the railroad commission, and typewritten copies thereof were placed on file in the various offices of the respondent railway company. It was not in compliance with section 10a, of Act No. 300, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 6534), which provides:
“Such schedules shall be printed plainly in large type, and copies for the use of the public shall be kept on file for public inspection in every depot, station or office of such carrier where passengers or freight respectively are received for transportation or where tickets are sold, in such form that they will be accessible to the public and can conveniently be inspected.”
The relators urge that respondents have violated both the spirit and the letter of the orders of the commission and the mandate of this court, in the following particulars:
“(q) In neglecting and refusing to print, file, and keep open to the public in offices of said company, and with the commission, schedules or tariffs containing the charges for transportation fixed by the three orders of the said commission.
“(b) In neglecting and refusing to put the schedules or tariffs containing the charges for transportation fixed by the said three orders of the said commission into effect upon the Hillman branch, and upon the Rogers City branch, so called, of said railroad company.
“(c) In charging as a minimum per car load on logs shipped from the stations of Onaway and Case on the main line of said railroad, which stations are within 50 miles of Alpena, $7.50 per car, instead of the specific minimum fixed by the order of said commission of $6 per car.”
On behalf of respondents, it is contended that the order of August 15, 1914, supra, is a practical compliance with the order of this court. Touching the second charge, that it excepted the Hillman and Rogers City branches from the operation of said tariff, it is urged that those branches were not in existence in October, 1909, when said orders were made by the commission, and that therefore they were justified in so excepting those branches. An examination of the orders in question, which will be found set out in full in the opinion of this court in Detroit & Mackinac Railway Company v. Railroad Commission, 171 Mich. 335 (137 N. W. 329), shows that the rate is upon a mileage basis. It further appears that, though the branches in question were not in operation at the time the orders were made, the Hillman branch went into operation in December of 1909, and the Rogers City branch in June, 1911. Subsequent to the earlier date, the proceedings to test the validity of the orders reached that point provided for in section 26c of the act, which provides that after the chancery proceedings, under certain contingencies, the matter shall be again submitted to the commission, when, “if the origr inal order shall not be rescinded or changed by the commission, judgment shall be rendered upon such original order.” This action was taken by the commission after the Hillman branch was in operation. We think it could hardly be contended that a rate based upon mileage should not be held operative over trackage added to the respondent’s enterprise pending the contest over the validity of the order fixing such rate, or over trackage added after the entry of the decree in the lower court. It therefore follows that, in excepting the Hillman and Rogers City branches from the operation of the rate, the respondents were in error.
Touching the third cause of complaint assigned by the relators, it is urged on behalf of respondents that the tariff published by the company and above set forth is a practical compliance with the mandate of the court. The commission tariff, after providing for rates 50 cents per thousand less than those stated in the respondent’s tariff of August 15, 1914, provides:
“Above rates to apply when the manufactured product is reshipped ■ via defendant company’s _ line, and when not so to be reshipped, that company is authorized to collect in addition to each rate, 50 cents per 1,000 feet, but if later reshipment is made over defendant company’s line they are to refund to each shipper the 50 cents per 1,000 feet collected; and, it is further ordered that the books of both defendant company and complainants (and all other shippers of logs affected by this order) shall show plainly the total of inbound shipments and the reshipment of the manufactured product.”
Respondents contended that they should be permitted to charge the extra 50 cents a thousand and rebate only upon a showing that the logs shipped in bad been shipped out over their line in the shape of manufactured product. The claim is made that the order as it stands is unreasonable, and in any event extremely difficult in operation. This, we think, is a criticism which should be addressed to the railroad commission in a proper proceeding on the part of respondents. The orders exactly as framed by the commission were the orders which this court directed by its peremptory writ to be put into immediate effect. In affirming the judgment of the court below, giving effect to those orders, this court distinctly stated that the decree should be without prejudice to the right of the respondent company to move the commission for a modification of its rules as experience in the facts coming to its knowledge might appear to warrant. In this proceeding we are not concerned with the validity of, or the workability of, the orders in question; those matters have already been determined.
In their return to the order to show cause, respondents show:
“(1) That they did not put the rates fixed by the railroad commission by the orders of October 22 and November 3, 1909, in force on the Hillman and Rogers City branches, because of an honest and apparently well-founded belief that said orders did not apply to said branches, and that they were at least entitled to take the judgment of the court thereon; but, if the court is of the opinion that said orders do apply to said branches, they are ready and willing to put them in force thereon.
“(2) That they construed said orders to mean that the railroad company had the right to collect the full rates permitted by said orders, subject to the obligation to refund 50 cents per thousand when it was shown to it that the products of the logs had been shipped out on the railroad, and, in case of any dispute, to leave the matter to the determination of the courts, the same as other matters of controversy are, and where on any disputed questions of fact the parties have a right to a jury trial. These respondents respectfully submit that their construction of said orders is correct; but, if the court is of a contrary opinion, they will gracefully comply with the orders and directions of the court in the premises.”
Upon the argument counsel for respondents distinctly disclaimed any intention to avoid or evade compliance with the order of this court.
The contentions of respondents are untenable. It follows therefore that we must find them guilty of contempt. That guilt, however, is technical only, for we are satisfied that the failure of respondents to comply fully with the order of this court was not wanton, but that they acted in good faith upon thfe advice of reputable and competent counsel, and under a construction of the order, which, while not warranted, was colorable. Under these circumstances, a fine or other punishment need not be imposed without giving opportunity to respondents to otherwise purge themselves of contempt.
We think the ends of justice will be accomplished if, within five days from the service of notice of the filing of this opinion, they comply literally with the mandate of this court making the rates fixed by the orders of the railroad commission operative over all the mileage of the road, including that of the Hillman and Rogers City branches. Upon filing proof of such action by respondents, an order will be entered purging them of contempt.
Bird and Kuhn, JJ., did not sit. | [
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OSTEANDEE, J.
(after stating the facts). In the brief for appellant argument is addressed to the alleged positive character of the evidence establishing the negligence of plaintiff’s wife, the uncertainty of the evidence to establish the injuries claimed to have been received by her, the rulings of the court and the charge upon the subject of plaintiff’s loss of consortium, the alleged excessive recovery, and the verdict of the jury which is, it is claimed, opposed to the weight of evidence. These are the subjects of principal discussion and will be considered.
It is not clear whether plaintiff’s wife did or did not exercise a proper degree of care in entering the elevator under the circumstances she says existed there. The question was for the jury.
The nature and extent of the injuries sustained by plaintiff’s wife are uncertain. The opinions of the medical men go no further than' this: that her condition at the time of the operation and before and after it is not in doubt and, with certain exceptions, might have been the result of the injury. These witnesses relate also other causes for such a condition as existed, and it is plaintiff’s claim that by his testimony he has eliminated these other possible causes from consideration, for which reason the proximate cause of her condition is not conjectural. On the other hand, it is the contention of defendant that the testimony is equally convincing that her troubles, relieved by the surgeons, were of long standing. It is very doubtful whether, exercising themselves wholly outside the domain of conjecture and wholly within that of proper and reasonable deduction from such testimony as they believed, the jury could have reached either material conclusion. As was true in Farrell v. Haze, 157 Mich. 374, 391, 392 (122 N. W. 197), a final condition of the patient was made certain by expert testimony. In the Farrell Case it was admitted that the cause of the condition was matter for expert determination. In the case at bar the accident (in the Farrell Case the treatment) might have produced the Known condition. But in this, as in that case, the testimony seems to fall short of showing that it is more probable the conditions, relieved by the surgical operation, were caused by the accident. So much plaintiff was bound to prove. Otherwise recovery depends upon attributing to a particular cause an injury which may as well be attributed to another cause.
Consortium has been defined as the person’s affection, society, or aid; the right to the conjugal fellowship of the wife, to her company, co-operation, and aid in every conjugal relation. 8 Cyc. p. 614. See Jacobsen v. Siddal, 12 Ore. 284 (7 Pac. 108, 53 Am. Rep. 360) ; 21 Cyc. p. 1525; Bouvier’s Law Diet, p. 402.
“The right of consortium is a right growing out of the marital relation, which the husband and wife have, respectively, to enjoy the society and companionship and affection of each other in their life together.” Feneff v. Railroad, 203 Mass. 278 (89 N. E. 436).
“Per quod consortium, amisit” (by which he has lost the companionship) was the phrase used when at the common law plaintiff declared for any bodily injury done to his wife by a third person. 3 Blackstone Commentaries, p. 140. Appellant says:
“We insist that for loss or diminution of his wife’s ‘marriage fellowship,’ of her ‘company and co-operation,’ that even if her society and companionship is less satisfactory than formerly, that in his association and intercourse with her he finds less comfort, pleasure, or happiness, all of which are matters of sentiment affecting the mind and heart and not the pocket, he cannot recover damages therefor. In this case no evil motive or wilful misconduct on the part of the defendant is claimed. * * * This is unlike an action on the case for seduction, or alienation of the wife’s affections, which stand upon peculiar reasons.”
At common law when a married woman was injured in her person she was joined with her husband in an action for the injury, and in such action nothing could be recovered for loss of her services or for the expenses to which the husband had been put in taking care of and curing her. There was no allowance for her loss of ability to earn wages, render services and be helpful to others, because these elements of damage, so far as recoverable at all, belonged to the husband. For such loss of services and such expenses the husband alone could sue. ' 1 Chitty, PL p. 84. The common law gave the husband the right to the labor, services, and earnings of his wife.
It is not now an answer to the wife’s suit to recover damages for injuries to her person that her husband is not joined as plaintiff. The legislature has relieved her of certain disabilities so called and has denied to her husband the right to her earnings and the profits of any business she may carry on. It has not, however, put her domestic duties and labor, performed in and about her home for her family, upon a pecuniary basis, nor meant to classify such duties as services, nor to permit her to recover damages for loss of ability to perform them. Gregory v. Motor Car Co., 181 Mich. 101 (147 N. W. 614). Where there is no intentional wrong, the ordinary rule of damages in every case goes no further than to allow pecuniary compensation for the impairment or injury directly done. If a husband is injured and recovers his damages, his wife cannot usually recover damages. The husband has usually, as a result of his action, been compensated for his pain and suffering, past and future, for loss of time, for diminution of capacity to earn money. The minor children of an injured father and those of an injured mother may suffer on account of the injury, but it has never been considered that they had an action therefor. The negligent defendant is supposed to have made full pecuniary compensation to the injured parent. Their loss is regarded not as direct, but consequential and remote.
If a husband may recover for loss of consortium resulting from physical injury to the wife occasioned by negligent conduct of the defendant, the wife may recover for loss of consortium of the husband under similar conditions. The right affected, if it may be properly called a right, is mutual. No reasoning will now support a recovery by one which will deny it to the other spouse.
“No case has been brought to our attention, and after an extended examination we have found none, in which an action for a loss of consortium alone has been maintained merely because of an injury to the person of the other spouse, for which the other has recovered, or is entitled to .recover, full compensation in his own name, when the only effect upon the plaintiff’s right of consortium is that, through the physical or mental disability of the other, the companionship is less satisfactory and valuable than before the injury.” Feneff v. Railroad, 203 Mass. 278, 280 (89 N. E. 436, 437, 24 L. R. A. [N. S.] 1024, 133 Am. St. Rep. 291).
If plaintiff has in fact, on account of his wife’s injury, lost a service • which she habitually rendered, then, as service, and according to the pecuniary value of it, he ought to be permitted to recover. Recovery should be according to the fact. For loss of consortium, of the undefined and indefinable influence of either spouse in the family relation, and the pleasure of the relationship, neither may recover. The Massachusetts decision in Kelley v. Railroad Co., 168 Mass. 308 (46 N. E. 1063, 38 L. R. A. 631, 60 Am. St. Rep. 397), relied upon in Gregory v. Motor Car Co., supra, and often cited in text-books and opinions of judges has been distinctly overruled as to the point now being considered. Feneff v. Railroad, supra; Bolger v. Railway Co., 205 Mass. 420 (91 N. E. 389). While our own former decisions do not distinctly rule the point, still Bowdle v. Railway Co., 103 Mich. 272 (61 N. W. 529, 50 Am. St. Rep. 366), is plainly not opposed to it. Nor do I think Gregory v. Motor Car Co. wrongly decided; no specific claim having been made that the damages were excessive, and the objection being that the husband could not recover at all for loss of services of his wife. As to the elements which may be considered by a jury in fixing the pecuniary loss of the husband, the charge delivered in that case was in some respects opposed to the conclusion I have reached (although to that portion of the charge no objection appears to have been made), and some of the decisions of other courts quoted with approval permit a jury to consider what I now think they should not be permitted to consider in estimating the value of the wife’s services.
The testimony referred to should not have been received, the court erred in his instructions upon the subject of loss of consortium, and, more doubtful, but nevertheless tangible, plaintiff did not fairly sustain the burden of proving that the probable cause of the wife’s injuries, relieved by a surgical operation at the cost of the husband, was the injury for which defendant was held responsible.
The judgment is reversed and a new trial granted.
Brooke, C. J., and McAlvay, Kuhn, Stone, Moore, and Steere, JJ„, concurred. Bird, J., did not sit. | [
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Kuhn, J.
The Detroit Trust Company, the trustee in a mortgage given by the Fenton Light & Power Company, a- public service lighting company operating a lighting plant in the village of Fenton, Mich., filed its bill for the purpose of protecting its security and restraining the commission of waste, and to foreclose for the amount due on certain mortgage bonds remaining unpaid, and interest thereon, and for the appointment of a receiver.
On August 1, 1912, parties claiming to own all of the capital stock of the company had entered into a contract for the sale of the capital stock and property of the company to the relator, who subsequently assigned his interest therein to the Detroit Construction Company,' Limited. Under this assignment, if the Detroit Construction Company, Limited, should fail to perform the agreements assigned to it, the relator, George C. Webber, would have the right to perform the agreements and take the property. The Detroit Construction Company, Limited, thereafter leased the property to the' Independent Power Company, which maintains power and electric light plants operated by water power at Linden and Holly, and has a transmission wire running from Linden to Holly through the village of Fenton. The plant of the Fenton Light & Power Company at Fenton has always been run by steam power, produced by the consumption of coal.
It is claimed that, when the agreement was entered into, fraudulent and false representations were made by the stockholders of the Fenton Light & Power Company to the relator, and that said stockholders were in part also bondholders, and that their actions were collusive and fraudulent.
Upon a hearing a receiver was appointed, and subsequently a supplemental bill was filed to foreclose the entire mortgage. The receiver thus appointed, finding that the operation of the plant under his management resulted in a considerable loss instead of a profit, petitioned the court in the first instance for permission to sell the personal property without the real estate. Subsequently an amended petition was filed praying for the right to sell all the property of the corporation. An. order was thereupon made by the court that the property of the Fenton Light & Power Company be sold without redemption on the 20th day of July, 1914, and the funds paid to the register of the court, to be held by him until the final order and decree providing for the distribution thereof. Subsequently the relator herein made a motion to set aside this order, which motion being denied, the relator now seeks relief in this court by mandamus to compel respondent to set aside the order providing for the sale of the property. The first question which is thus presented to us for determination is whether the circuit judge has the power to order the sale without redemption of all the property of a quasi public corporation before final decree when such property is in the hands of a receiver appointed by him.
There can be no question that, when property is in the hands of a receiver and it is made to appear to the court that it cannot be conducted except at a loss, it is clearly within the power of the court to stop the loss by ordering the assets of the business to be sold. 34 Cyc. pp. 286, 310. It also seems to be the established rule that in the case of a quasi public corporation, if a proper showing is made, such a sale may be ordered without the right of redemption. The rule is stated in 27 Cyc. p. 1800, as follows:
“Where the right is given to redeem from judicial sales in general or sales on execution, the statute applied as well to sales made in the enforcement of foreclosure decrees as to those made under ordinary judgments. It has been held that a law providing the right of redemption from sales of real estate does not cover the case of a sale of the entire property of a quasi public corporation, such as a railroad or a water company, including its real and personal property and franchises; but such a sale may be made as an entirety and without redemption.”
The reason for this rule is thus stated in the case of Hammock v. Loan & Trust Co., 105 U. S. 77, where in a final decree all the property of a railroad company, an Illinois corporation, was ordered sold without redemption:
“The question is therefore presented, for the first time in this court, whether the statutory provisions giving the right to redeem, as well lands or tenements sold under execution, as mortgaged lands sold under decrees of courts of equity, has. any application to the real estate of a railroad corporation which, with its franchises and personal property, is mortgaged as an entirety, to secure the payment of money borrowed for railroad purposes.
“Undoubtedly in all such cases, the chief value of the real estate comes from the right or franchise to hold and use it, in connection with the personal property of the corporation, for railroad purposes. * * * In other words, for to that result the argument would lead: The court, in decreeing the sale of the mortgaged property and franchises of a railroad corporation, has no discretion, if the corporation or its judgment creditors, so demand, except to order the sale of the real estate separately, in parcels when susceptible of division, and subject to redemption, leaving the franchises and personal property to be sold absolutely and without redemption. Thus one person might become the purchaser of the real estate, another of the franchise, and still others of the personal property. If the railroad company should redeem the real estate, it could not employ it to any valuable end; for its franchise, to be a corporation and to use its real estate for railroad purposes, will have been sold to another, and there is no right under the statute to redeem the franchise, it not being real estate, but, rather, a power or privilege, partaking more or less of sovereignty, and which may not be exercised without a special grant. * * * Consequences equally injurious would flow even from the sale, as an entirety, of the real and personal property and franchises of the corporation, if the right was reserved to the company, or its creditors, to redeem the realty. Individuals or associations desiring railroad property would not purchase when they could not know, until the expiration of 15 months from the confirmation of the sale, whether they were to have all for which they might bid. During that period of uncertainty, the property would necessarily depreciate in value for the want of repairs and betterments essential to its preservation. A. construction of the statute which leads to such results ought not to be adopted, if it can be avoided. And we think it can be, without contravening the spirit of the statute or the public policy which suggested its enactment.”
So in the instant case, the business of this company being to furnish electricity for the village of Fenton and its citizens, the plant itself would have comparatively little value without its franchise, and, for the reasons stated in the opinion cited, it was within the power of the court in a proper case to order all the property sold as an entirety and "without redemption. See, also, Peoria, etc., R. Co. v. Thompson, 103 Ill. 187; Farmers’ Loan & Trust Co. v. Water Co. (C. C.), 78 Fed. 881; Columbia Finance & Trust Co. v. Railway Co., 60 Fed. 794, 9 C. C. A. 264; Pacific N. W. Packing Co. v. Allen, 116 Fed. 312, 54 C. C. A. 648; McKenzie v. Water Co., 6 N. D. 361 (71 N. W. 608, 614).
At the hearing of the motion for leave to sell said property, the following offer of the Independent Power Company to lease the property and operate it without loss to the receiver, pending a hearing and final decree, was called to the attention of the court:
“To F. Alexander Baird,
“Receiver of Fenton Light & Power Company,
“Fenton, Michigan.
“The undersigned hereby offer to lease from you all of the property of the Fenton Light & Power Company, located in the village of Fenton, Genesee county, Michigan, from the date of your acceptance of this offer until the termination of the cause wherein you were appointed a receiver, or until such time as such lease shall be terminated by order of the court, and will pay to you for such lease, on the 15th day of each and every month, a sum which shall be sufficient to pay the interest on all outstanding bonds of the said Fenton Light & Power Company, to wit, the sum of twenty thousand ($20,000) dollars, and that it will pay to you, as such receiver, further sums sufficient to pay all taxes that shall be levied against the said property during the continuance of the said lease and a further sum sufficient to pay all premiums of insurance upon the said property which you may procure during the continuance of said lease, and the undersigned will at the termination of the period of said lease turn over to you or your successors the said plant in as good a condition as the same shall be in when received by the undersigned, natural wear and use, and damage by the elements only, excepted.
“Independent Power Company,
“By Fred H. Aldrich, President.
“By Geo. W. Eyster, Secretary.”
It being within the power of the court to make the order of sale, the only other question which presents itself is whether, considering the facts in this case, the court acted properly in ordering the sale as it did. While we hesitate to interfere with the discretion which the court exercised in the instant case in ordering the sale, nevertheless, in view of the fact that if the sale is made it will be impossible on the final decree to put the parties back in the position which they occupied at the time the proceedings were begun, and having in mind the policy in this State not to divest the mortgagor of his property unless it clearly appears that there is danger of ultimate loss to the bondholders (see Wagar v. Stone, 36 Mich. 364; Hazeltine v. Granger, 44 Mich. 503 [7 N. W. 74]; Michigan Trust Co. v. Lumber Co., 103 Mich. 392 [61 N. W. 668]; Dawson v. Peter, 119 Mich. 274 [77 N. W. 997]; Union Trust Co. v. Electric Co., 152 Mich. 568 [116 N. W. 379]), in our opinion no sale should be ordered if the court is satisfied that the Independent Power Company is in a position to carry out the offer made as above set forth. If this offer should be accepted and a sufficient guaranty given that it will be carried out, no further financial loss would then result from the management of the plant by the receiver, and the rights of the parties could be determined before a sale is ordered.
We are therefore of the opinion that if the Independent Power Company within ten days tenders the receiver a lease incorporating the terms of the offer above set forth, together with a bond conditioned that it will carry out its terms, in such sum and with such surety or sureties as may be approved by the trial judge, then the order providing for the sale should be set aside as prayed for; but, in case no such lease is tendered and no bond given within the time mentioned, then the writ will be denied.
Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Kuhn, J.
The defendant is charged with the violation of certain ordinances with relation to traffic on the streets in the city of Detroit.’ Two complaints were made against him, and alleged the following:
“(1) On the 29th day of December, 1913, within the corporate limits of said city (the city of Detroit), on the east side of Woodward avenue between Can-field and Forest avenues, one Donald McGraw did then and there unlawfully and wilfully, while driving an automobile upon said street, fail to drive the same in a careful manner with due regard for the safety and convenience of pedestrians and other vehicles, to the evil example of all others in a like case offending, and contrary to the ordinances of said city, in such case made and provided. Section 2, chapter 55, page 102, of the Compiled Ordinances of the City of Detroit, for the year 1912.
“ (2) On the 29th day of December, 1913, within the corporate limits of said city (the city of Detroit), on Woodward avenue near Canfield, one Donald McGraw did then and there unlawfully and wilfully, while operating an automobile upon said street, during the time when the city lights on said street are lighted, fail to keep his front and rear lights lighted, to the evil example of all others in a like case offending, and contrary to the ordinances of such city in such case made and provided. Section 10, chapter 55, page 103, of the Compiled Ordinances of the City of Detroit, for the year 1912.”
The respondent, upon being served with a summons, appeared and demurred to each of the complaints. The learned recorder overruled the demurrers, and the case is here by certiorari. The various grounds for demurrer raised, as suggested by .respondent’s counsel, this question for determination:
“Has the city of Detroit, a municipal corporation, the power to enact the ordinance alleged to have been violated, in view of the provisions of section 9 of Act 318 of the Public Acts of 1909?”
Section 9 of Act No. 318 (2 How. Stat. [2d Ed.] § 2495), which is entitled “An act providing for the registration, identification and regulation of motor vehicles operated upon the public highways of this State, and of the operators of such vehicles,” reads as follows:
“Sec. 9. Local Ordinances Prohibited. — Except as herein otherwise provided, local authorities shall have no power to pass, enforce or maintain any ordinance, rule, or regulation requiring from any owner or chauffeur to whom this act is applicable, any license or permit for the use of the public highways, or excluding any such owner or chauffeur from the free use of such public highways, or in any other way respecting motor vehicles or their speed upon or use of the public highways. No ordinance, rule or regulation contrary to the provisions of this act now in force or hereafter enacted shall have any effect: Provided, however, that the powers given to local authorities to regulate vehicles offered to the public for hire, and processions, assemblages or parades in the streets or public places, and all ordinances, rules and regulations which may have been or which may be enacted in pursuance of such powers shall remain in full force and effect: Provided further, that local authorities may set aside for a given time a specified public highway for speed contests or races, to be conducted _ under proper restrictions for the safety of the public, and that said authorities may exclude motor vehicles from any cemetery or grounds used for the burial of the dead.”
It is contended by counsel for the city, and was so held by the recorder, that that part of section 9 which forbids cities from exercising control of their highways with reference to motor vehicles is unconstitutional and void, as being in contravention of section 28 of article 8 of the present Constitution of the State, which reads as follows:
“Section 28. No person, partnership, association or corporation operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any city, village or township for wires, poles, pipes, tracks or conduits, without the consent of the duly constituted authorities of such city, village or township; nor to transact a local business therein without first obtaining a franchise there for from such city, village or township. The right of all cities, villages and townships to the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships.”
Counsel for respondent meets this contention by saying that the reservation to cities, villages, and townships of a reasonable control of their streets, alleys, and public places should be held to refer only to the subject-matter of the section, to wit, public utility corporations, and also that the construction contended for by the city places this section in conflict with section 21 of the same article, which reads as follows:
“Under such general laws, the electors of each city and village shall have power and authority to frame, adopt and amend its charter, and, through its regularly constituted authority, to pass all laws and ordinances relating to its municipal concerns, subject to the Constitution and general laws of this State.”
In the study of section 28, it is interesting to notice what the committee on submission and address to the people said with reference thereto, in submitting the proposed revision to the people (page 1433, vol. 2, Proceedings and Debates of the Constitutional Convention) :
“This is a new section, and its purpose is to prevent the use of streets, alleys, highways, and public places without the consent of the local authorities first had and obtained. The word ‘reasonable’ was inserted to place a limitation upon the authority cities, villages and townships may exercise over the streets, alleys, highways, and public places within their corporate limits. And it was pointed out in the debates that without the word ‘reasonable,’ or a similar qualification, the section would practically deprive the State itself of authority over its highways and public places.”
From this, and also from reading the debates with reference to the insertion of the word “reasonable,” it is clear that it was not the intention of the framers of the Constitution to deprive' absolutely the State itself of control over its highways and bridges in the cities, villages, and townships. The claim that the reservation should be limited to the control of public utility corporations, to our minds, overlooks entirely the express language of the last sentence of said section 28. By giving the language of the whole section its ordinary and natural meaning, public utilities were placed under control of the local authorities, and the local authorities may control within reason the' use of their streets for any purposes whatsoever not inconsistent with the State law.
Taking the sections together, they should be so construed as to give the power to municipalities to pass such ordinances and regulations with reference to their highways and bridges as are not inconsistent with the general State law. In other words, the municipality retains reasonable control of its highways, which is such control as cannot be said to be unreasonable and inconsistent with regulations which have been established, or may be established, by the State itself with reference thereto. This construction allows a municipality to recognize local and peculiar conditions and to pass ordinances regulating traffic on its streets, which do not contravene the State laws. The congested condition of traffic on many of the streets of the city of Detroit is a matter of common knowledge, and these conditions make it absolutely necessary, for the protection of pedestrians and the drivers of vehicles, to enact rules and regulations peculiarly adapted to the conditions there found, and to enact ordinances to diminish the danger, and the words “reasonable control” in section 28 give the power to meet just such conditions.
It follows, therefore, that the provisions of the ordinance which contravene the State law must be held to be invalid and void. But as section 9, Act No. 318, Pub. Acts 1909, clearly attempts to take away from the cities all control of their highways with reference to the use thereof by motor vehicles, such parts of said section which forbid the cities from exercising reasonable control of their highways as herein defined must be held to be unconstitutional and void. It is not claimed that the sections of the ordinance under which these complaints are made are in contravention of the general law of the State, except said section 9, and the order of the recorder in overruling the demurrer must therefore be affirmed.
Brooke, C. J., and McAlvay, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.
The sections referred, to are as follows:
See. 2. Vehicles shall be driven in a careful manner and with due regard for the safety and convenience of pedestrians and of other vehicles. When one vehicle overtakes another, it shall pass to the left side of the overtaken vehicle and not pull over to the right until clear thereof.
Sec. 10. Lights on automobiles being operated or standing upon said streets, must be kept burning in front and rear during the time the city lights on the streets are lighted, and each of such automobiles shall carry the Michigan State license exposed in front and rear. | [
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] |
Bird, J.
The defendant executed and delivered to plaintiff on the 20th day of February, 1913, a written lease of her premises situate at 497 Hastings street, for a term of three years, at a monthly rental of $60. Plaintiff took possession of the premises on March 1st, the date stipulated in the lease, and began improving the interior for his use as a confectionery and tobacco store. After he had completed the alterations and repairs, and purchased fixtures, he was evicted by one Smith, who had purchased the premises from defendant upon a contract, prior to the making of the lease. Plaintiff then brought this suit to recover his damages, counting upon the covenant contained in the lease for the quiet enjoyment thereof.
It is not denied that the lease was made, but it is asserted by the defendant that, at the time the lease was executed, she advised plaintiff of the action to enforce the contract; that she had won in the lower court and hoped she would in this court, and that, after being so advised, he replied that he would take his chances; that this court afterwards held the contract valid and enforceable, and consequently the lease was of no force. Parol proof of this claimed understanding was offered and received against the objection of plaintiff, and he assigns error thereon in this court.
The theory upon which the court admitted the testimony was that it came within the holding of Cleveland Refining Co. v. Dunning, 115 Mich. 238 (73 N. W. 239), wherein it was announced that, when a written instrument was accompanied by a condition pre cedent to its taking effect, such condition might be shown by parol proof. This rule is not applicable to the case under consideration, for the reasons stated by Mr. Justice Stone in Smith v. Mathis, 174 Mich. 262 (140 N. W. 548), namely, that the rule is not applicable to a written instrument which has once taken effect, neither is it applicable to the contract which the statute of frauds requires to be in writing. The situation here presented appears to be a duplicate of the one presented in Smith v. Mathis, supra, and is ruled by it. The testimony should have been rejected, as its tendency was to vary the terms of a written instrument.
The trial court instructed the jury that, if they •found for the plaintiff, he was entitled to recover:
“First. The difference between the rent fixed in the lease, which is $60 a month, and the rental value of the premises during the time from the 15th day of November, 1913, to the 1st day of March, 1916.
“Second. Whatever expenditures were reasonably necessary to prepare the- premises leased for the use which the parties contemplated they should be put to.
“Third. Any depreciation in value to fixtures which were put upon the premises by plaintiff, and which were reasonably necessary in connection with the use which the parties contemplated the premises should be put to.”
No criticism is offered to this statement of the elements of damage recoverable, but exception is taken to some statements of the court which followed, in which it is claimed the jury were given to understand that damages were recoverable only for those expenditures which were the result of an express agreement between the parties. The statement of the rule as laid down in Hopkins v. Sanford, 38 Mich. 611, is contended for by the plaintiff, and is the proper one. It follows:
“In cases of breach of contract, the damages ‘should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course' of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.’ ”
This rule, as applied to a like state of facts, is well stated in Friedland v. Myers, 139 N. Y. 432 (34 N. E. 1055):
“But other damages may also be recovered, provided they are proximate in effect, and are not speculative or uncertain in character, and were fairly within the contemplation of the parties when the lease was made, or might have been foreseen as a consequence of a breach of its covenants. If the property is leased for a special purpose, which is known to the lessor, and possession is refused because of a prior lease to another party, or of other fault of the lessor, the lessee may recover as damages his actual and necessary expenses incurred in preparing for the occupation of the property in the manner contemplated by the parties.”
Inasmuch as the defendant understood, at the time the lease was made, the use which the plaintiff intended to make of the premises, and was aware that the alterations and repairs were progressing in pursuance of that understanding, we think this rule is applicable.
The judgment of the trial court is reversed, and a new trial ordered.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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] |
Moore, J.
The question involved is admirably stated in the brief of the attorney general as follows:
“The relator is the county agent of the State board of corrections and charities for the county of Kent. He seeks by this proceeding to compel the auditor general to pay him the salary fixed by Act 115 of the Public Acts of 1913, being ‘An act to fix the salaries of the county agents of the State board of corrections and charities appointed in and for counties having a population of one hundred fifty thousand or more, and to repeal all acts or parts of acts contravening the provisions' of this act.’
“The respondent, upon the advice of the legal department of the State, declined to make such payment upon the ground that Act 115 of 1913 is in conflict with the provisions of section 30 of article 5 of the Constitution, which reads as follows:
“ ‘The legislature shall pass no local or special act in any case where a general act can be made applicable, and. whether a general act can be made applicable shall be a judicial question. No local or special act shall tahe effect until approved by a majority of the electors voting thereon in the district to be affected.’
“It is insisted upon the part of the State that the act in question is a special act and that a general act can be made applicable.
“It is conceded that there are but two persons holding the office of county agent in the State of Michigan to whom this act applies. The 81 other county agents of the State are not within its provisions. It is therefore the claim of the respondent that the act is a special one, within the provisions of the section of the Constitution above quoted, and is therefore void. There are but two counties in the State having a population of 150,000, and we take it as settled by the case of Attorney General, ex rel. Dingeman, v. Lacy, 180 Mich. 329 (146 N. W. 871), that the language of the act cannot give it a general character by the use of words general in their nature, but which limit its operation to special persons or special territory.”
The attorney general cites many cases; among them is Henderson v. Koenig, 168 Mo. 356 (68 S. W. 72, 57 L. R. A. 659), and insists that the last-named case and the case of Attorney General, ex rel. Dingeman, v. Lacy, supra, are controlling and justify the refusal of the auditor general.
There is langfiage used in the opinions cited which afford a basis for this contention. The cases, however, are distinguishable. In Henderson v. Koenig, supra, it is said at page 369 of 168 Mo., at page 75 of 68 S. W. (57 L. R. A. 659) :
“The Constitution has pointed out -the precise and specific method by which county officers are to be paid, which is by fees; and if the legislature desires to classify counties by population, and thus proportion the amounts of fees the various judges of probate may retain according to such ratio, then this must be done by appropriate legislative enactments. It cannot be done by making one or more judges of probate salaried officers, and compelling them to account for the fees they may receive, and leaving the' other judges of probate throughout the whole State unhampered by any such conditions, for this would not be ‘a law uniform in its operation,’ and therefore not a compliance with section 12 of article 9.”
And it was held that, as the Constitution provided that the officer should be paid by fees, the legislature could not provide he should be paid a salary.
In Attorney General, ex rel. Dingeman, v. Lacy, supra, it appears the legislature undertook to call into existence in Wayne county a judicial officer unknown to all the rest of the State. It was held invalid for several reasons, which appear in the opinion. In the instant case mo new office is created different from those existing in all the other counties of the State. These officers are appointed by the governor, paid by the State, and are performing State functions as the agents of a State board. Why should it not be said that the entire State is ‘the district affected’ by the act? County agents, under the provisions of Act No. 6 of the Public Acts of 1907 (Extra Session) (2 How. Stat. [2d Ed.] §3458), are charged with numerous duties relating to the care, investigation, and supervision of dependent, neglected, and delinquent children. It is a well-known fact that the problem of dependency, neglect, and delinquency of children is practically limited to communities with congested population. Counties having 150,000 inhabitants or more must have congestion of population, and must, by virtue of that fact, have numerous cases of children requiring the services of a county agent. Clearly the county agent in a county containing a large urban population will have much more to do, and should therefore be paid more, than in a small rural community, where the problem of delinquency is almost unknown. But it is said that the previous act, being based upon a per diem of service, gave ample recognition to the difference in the amount of work done, and that, if a county agent devoted his entire time to the work, he received $939 per annum under the old act, but that the agent in Kent or Wayne, who can devote no more than his entire time, will receive $1,800 under the act in question. Is not that a matter of legislative discretion rather than of judicial determination? The legislature undoubtedly had in mind the fact that, on account of the number of cases, their complexity, and the added responsibility entailed thereby, the. counties with congested population demanded the services and therefore the pay of an efficient, high-grade officer with more or less expert knowledge and training, and that the amount of time devoted to the work was not necessarily the only criterion to measure the compensation.
We all know it costs much more to live in a large town than in the smaller counties, and it is very likely the legislature also took this fact into consideration in passing the law. It is not a new thing in this State to base the salary of an officer upon the population of the county where the service is to be rendered. The amount of the salaries paid the judges of probate depends upon the» population of the counties. The more populous the county the larger the salary. 2 Comp. Laws, § 2552. Section 14454, 5 How. Stat. (2d Ed.), and notes thereto. A case not on all fours, but involving the same principle, is the case of the People v. Brazee, 183 Mich. 259 (149 N. W. 1053). Justice Brooke, speaking for the court, said:
“The contention of the respondent that the act in question violates article 5, § 30, of the State Constitution, in that, under the guise of a general act, it is really local legislation, is, in our opinion, untenable. It is true that it provides for a license fee of $100 in cities containing over 200,000 population, and but $25 in other cities, and it is likewise true that at the present time there is but one city in the State of Michigan which haSi a population of more than 200,000. This fact, however, is not necessarily controlling. The act operates upon all citizens alike, except that a larger sum is charged for the license in larger cities than in smaller ones. Wherever the fee for the license is charged primarily for the purpose of regulation and not for the purpose of revenue, a variable sum may be fixed to meet the varying conditions under which the licensee operates. 25 Cyc. p. 608, and cases cited in note 74. It may well be that the legislature appreciated the fact that inspection for the purpose of proper regulation in large cities would be much more expensive than such inspection in smaller cities, and that the larger sum was fixed for the purpose of meeting such added expense of administration.”
See, also, State v. Sullivan, 72 Minn. 126 (75 N. W. 8). The legislation was within the legislative discretion.
The writ will issue as prayed, but without costs.
Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred with Moore, J.
McAlvay, J.
I cannot agree with the foregoing opinion. The act in question does not make a constitutional classification.
Brooke, C. J., concurred with McAlvay, J. | [
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Ostrander, J.
(after stating the facts). Something is claimed by the people on account of the fact that Shirley Ross came to Michigan by the consent of respondent, was here visited by him, and was here when, upon the development to her of the real situation, he refused to further provide for her. In essence, however, the contention of the people is, and must be, that respondent must be considered to be the husband of Shirley Ross because the ceremony of marriage was performed in Michigan with due formality.
Excepted from the general rule that a marriage, valid according to the law of the State or country where it is celebrated, is valid everywhere, are marriages prohibited from motives of public policy by the public law of the State or country in which they are questioned. The supreme court of Illinois, in the decision already referred to, after a citation of authorities, said:
“These cases sustain the principle that, where a State has enacted a statute lawfully imposing upon its citizens an incapacity to contract marriage by reason of a positive policy of the State for the protection of the morals and good order of society against serious social evils, a marriage contracted in disregard of the prohibition of the statute, wherever celebrated, will be void.”
This is in keeping with numerous decisions in other jurisdictions, in which a similar policy is evidenced by statute. See Lanham v. Lanham, 136 Wis. 360 (117 N. W. 787, 17 L. R. A. (N. S.) 804, 128 Am. St. Rep. 1085), and cases collected in the opinion. In the application of the general rule, and the exception, a distinction may be made, and it has been made, between the marriage of persons celebrated in a State or country in which they have acquired a domicile and the marriage, outside the country of the prohibition, of persons domiciled within it; persons who are married elsewhere to escape the effect of the prohibition. Such a case is State v. Fenn, 47 Wash. 561 (92 Pac. 417, 17 L. R. A. [N. S.] 800).
Assuming the indicated position of the courts to be correct in principle, what is the status of persons thus violating the law of their domicile in other States in which the validity of the marriage is brought in question, and, to be more precise, what is their status under such circumstances in States in which a public policy similar to that of the State of the domicile of the parties has not been declared by statute? In the State of Michigan the court granting a decree of divorce may provide in the decree that the party against whom any divorce is granted shall not marry again, etc., and, if a marriage is celebrated contrary to the decree, the guilty person “shall be deemed to have committed the crime of bigamy and shall be subject to the pains and penalties therefor.”
The rule that statutes of a State have, generally, no extraterritorial effect is familiar. If respondent and Shirley Ross had intended to acquire, and had acquired, a domicile in Michigan before or at the time the Michigan marriage was celebrated, the validity of the marriage could not be here successfully questioned; upon the authority of State v. Fenn, supra, it could not be successfully questioned in Illinois if, later on, they returned to that State to live. This being true, it must also be true that no personal disability to contract marriage in another State attended respondent. No impediment to such a marriage, save that interposed by the Illinois law, existed. Whatever public policy is evidenced by the Michigan law, it is directed rather to the controlling of the party guilty of marital wrongs than, generally, at parties to a divorce proceeding. +There appears to be no rule of State comity which requires the courts of this State to recognize and to enforce here the prohibition of the Illinois law, and no such rule is suggested. Nevertheless I must hold that respondent has not abandoned his wife in Michigan. He never acquired a domicile in this State. This State is not the matrimonial domicile of respondent and Shirley Ross, nor was it ever intended to be. Shirley Ross acquired no domicile here through respondent or her relation to him. The case is one of first impression, but I think it impossiblé to defend the proposition that because the marriage ceremony was performed in this State she can claim here to be wife of respondent ; that by mere removing of herself from her matrimonial domicile, in which she is no wife, she becomes, the State line being crossed, an abandoned wife in Michigan.
An argument may be made, reaching the same conclusion, based upon the proper construction and application of the statute under which respondent is charged. It is true, as was said by the learned trial judge, that it applies in terms to any person who deserts and abandons his wife. It is entitled:
“An act to prevent the desertion and abandonment of wife; * * * to make such abandonment and desertion a felony and to prescribe the punishment therefor; to provide for the care of the dependent wife and children. * * * ”
It would not be contended that, if a wife from another State, where was the matrimonial domicile, removed herself to Michigan and claimed here to have been thereafter abandoned by a husband who had not changed his domicile, the husband would be amenable to the statute, although a husband, domiciled here, who flees the State, abandoning and intending to abandon his wife remaining here, may undoubtedly be brought to book.
Decision that the conviction should be set aside and respondent discharged is based solely upon the ground that Shirley Ross does not occupy in this State the position of an abandoned wife; the people of the State being therefore not concerned.
Brooke, C. J., and McAlvay, Kuhn, Stone, Bird, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Moore, J.
Suit was brought February 3, 1913, on a policy of insurance, which provides for the payment of $3,000 in case the assured comes to his death as the result of an accident. The policy was issued September 15, 1911, and the assured died November 21, 1911. The plaintiff is the mother and beneficiary named in the policy. It is the claim of the plaintiff that the proximate cause of the death was ptomaine poisoning, and that this is an accidental death within the meaning of the policy. The defenses urged will appear later. The case was tried before a jury, which returned a verdict for the plaintiff. A motion was made for a new trial, which motion was overruled, the trial judge stating at length his reasons for doing so. From a judgment for $3,346.25 in favor of the plaintiff, the case is brought here by writ of error.
The first group of assignments of error relates to the claim that the suit was not brought within the time limited by the policy, as article 3 of the policy provides that legal proceedings shall not be brought at all unless begun within 6 months from the date specified therein for final proofs, and it is said the suit should have been brought within 8 months from the time of death, while in fact more than 14 months elapsed. It is contended by plaintiff that this limitation is controlled by another provision of the policy and a statute of Illinois, in which State the policy was written and delivered. The policy provision is in article 3, and is as follows:
“If any limitation set forth in this and' the preceding article is prohibited by the statutes of the State in which this policy is issued, the said limitation shall be considered to be amended to agree with the minimum period of limitation permitted by such statutes.”
The Illinois statute relied upon by the plaintiff is Senate Bill No. 388, approved May 20, 1907 (Laws of Illinois 1907, page 367). Section 2 of the act provides :
“No policy of life insurance shall be issued or delivered in this State * * * if it contain any of the following provisions: (1) A provision limiting the time within which any action at law or in equity may be commenced to less than three years after the cause of action shall accrue.”
It is claimed by defendant these provisions do not apply to the policy involved here because this is an accident and death policy and not a life insurance policy within the meaning of the statute, and cases are cited sustaining this contention. It must be conceded that the authorities are in conflict upon this question. No Michigan case is cited upon this point, though we have a statute with substantially the same provisions as the Illinois statute. See section 2, Act No. 187, Pub. Acts 1907 (3 How. Stat. [2d Ed.] § 8313), and section 6 of Act No. 236, Pub. Acts 1909 (3 How. Stat. [2d Ed.] § 8317). The case of Logan v. Fidelity & Casualty Co. of New York, 146 Mo. 114 (47 S. W. 948), is an instructive one. The defendant in that case is the same defendant as is now before us, and it there urged a similar defense. The opinion is too long to quote here. We content ourselves with excerpts from it:
“Section 5855, Revised Statutes 1889, reads as follows: ‘In all suits upon policies of insurance on life hereafter issued by any company doing business in this State, it shall be nq defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause, that the insured contemplated suicide' at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void.’
“Appellant’s contention is that when section 5855 was enacted, it related to life insurance in its usual and ordinary significance, and referred to those life policies issued by life insurance companies furnishing the indemnity to the insured from death from any and every cause, and not otherwise. * * * When a policy covers loss of life from external, violent, and accidental means alone, why is it not insurance on life? Such a provision incorporated in a general life insurance policy admittedly would be insurance on life, then why less insurance on life because not coupled with provisions covering loss of life from usual or natural causes as well? If one holds a general life policy and an accident policy, and is killed by lightning or commits suicide, so that he may be said to have died by accidental means, both the companies should pay, and the stipulation against liability in the event of suicide in the policies should be no more a defense against the suit upon the accident policy, providing against death from accidental cause, than against the policy which goes further and covers death from other causes as well. * * *
“The mere addition of one or more features or elements in a contract of insurance on life that may serye to give the contract or policy a particular designation in the business or insurance world will not, in the least, divest the contract or policy of its chief character, of insurance on life, or make the contract other than life insurance. The promise to pay a weekly indemnity, by an insurance company, in the event the insured receives an injury from an accident not resulting in death, does not change the character of the agreement of the policy to pay a certain other sum when the accident results fatally, which is life insurance from accidental causes. * * *
“The calling of a contract of insurance an accident, tontine, or regular life policy, or, for that matter, by any other appellation that may be adopted for business or conventional uses or classification, cannot make a policy containing an agreement to pay to another a sum of money designated upon the happening of an unknown or contingent event depending upon the existence of life less a policy of insurance on life.
“Insurance on life includes all policies of insurance in which the payment of the insurance money is contingent upon the loss of life.”
See, also, Vance on Insurance, p. 564, and note; Richards on Insurance, § 884, and notes. We think the suit was commenced in time.
Two groups of assignments may be treated together. It is said the court erred: (a) In allowing
the deposition of Dr. Hertel to be read; and (b) in permitting the testimony of the mother as to statements made by the assured as to ptomaine poisoning.
(a) It was the claim that the assured was poisoned by eating tainted food. Within a day or two after he was taken sick he consulted Dr. Hertel in Chicago. This was on October 21st. His testimony in part was:
“A. I made an examination of the heart, thorax, and lungs, and found them to be in a perfectly healthy condition. In fact the patient was in a perfectly healthy condition, so far as I could see outside of his symptoms. From the examination I made I was able to form a professional opinion of the trouble he was suffering from at that time.
“Q. What is your professional opinion as to what the trouble was from which Mr. Johnson was suffering on the date he visited you? * * *
“A. I diagnosed the case as ptomaine poisoning.
“Q. Doctor, tell the symptoms of ptomaine poisoning as briefly as you can?
“A. Severe pains in the abdomen, temperature, nausea, vomiting, possibly chills, headache; the pains are of a severe lancinating character. Diarrhea is not necessarily one of the symptoms.”
This was objected to for the reason that the physician is not permitted to disclose any knowledge he obtained by reason of the examination of Mr. Johnson, and that it is in violation of our statute governing the rules of evidence. Such information would be privileged, and under the statute he could not disclose it.
“The Court: The question is whether the beneficiary can waive the privilege.
“The court overruled the objection and defendant excepted.”
We think the ruling of the court was correct. Grand Rapids, etc., R. Co. v. Martin, 41 Mich. 667 (3 N. W. 173); Scripps v. Foster, 41 Mich. 742 (3 N. W. 216); Fraser v. Jennison, 42 Mich. 206 (3 N. W. 882); Briesenmeister v. Knights, 81 Mich. 525 (45 N. W. 977); Slater v. Sorge, 166 Mich. 173 (131 N. W. 565), and In re Oldenberg’s Estate, 177 Mich. 150 (142 N. W. 1076).
(6) This testimony relates to what was said and done in an interview in the presence of the mother, the sister, and another between Dr. Hanson, who was produced as a witness by defendant, and the deceased. It was offered as rebuttal testimony, Dr. Hanson having testified that at the request of the company he made an examination of the deceased and made a report to the company, which report was allowed in evidence, as was a letter written by the company following the report, to the plaintiff, in which it was stated: “Your physician and our physician have both advised me that Mr. Johnson’s disability was occasioned by tuberculosis.” This testimony was competent as rebuttal testimony.
It is insisted there is no liability because there was no payment of premiums. The policy commences as follows: “Railroad Employees’ Installment, Accident and Health Policy.” In the general provisions of the policy appears the following:
“Article 11. Section A. If the first payment under the order on the paymaster of the assured’s employer bearing even date and number with this policy is made at the time specified in said order for said payment this policy shall continue in force for 60 days; if the said payment is not made at the said time this policy shall immediately thereupon terminate without any action on the part of the company and the assured shall immediately pay to the company the earned premium for the time the policy shall have been in force.”
“Section C. If any one of the payments specified in said order subsequent to the first payment is not made at the time specified in said order for any such payment, this policy shall terminate at the end of the period for which the last payment under said order was actually made, without any action on the part of the company.”
“Article 14. This policy is issued in consideration of the premium and of the statements which are set forth hereon in the Schedule of Warranties and which the assured makes and warrants to be true by the acceptance of this policy.”
In the schedule of warranties appears the following:
“I am employed by the Pullman Company, whose business is Pullman Company, located at Central district, city of Chicago, State of Illinois. My occupation is conductor. The duties of my occupation are fully described as follows: Conductor. My monthly wages are $70. The order on the paymaster referred to in this policy provides for the following payments to be made from my wages as follows: First payment of $6.50, from month of October, 1911. Second payment of $6.50 from month of November, 1911. Third payment of $6.50 from month of December, 1911. Fourth payment of $6.50, from month of January, 1911.”
The following stipulation was made at the trial: That Lawrence Johnson left the employ of the Pullman Car Company on or about October 23, 1911, and came to Port Huron, where he remained until his death, November 21, 1911. That under the terms of the policy in issue the first installment of premium to be paid thereon, to wit, the sum of $6.50, would have been payable out of his pay for the month of October, which according to the Pullman system would not be payable until the 15th of November. That on or before November 15th, the defendant received notice from the Pullman Company that Johnson had left its employ. At the time of leaving the employment of the Pullman Company there were moneys belonging to Johnson for his wages as Pullman conductor during October $29.35. This money remained in the hands of the Pullman Company until January 4, 1912, when a check for the sum was sent to Mrs. Catherine Johnson, the plaintiff.
The case is within Lyon v. Insurance Co., 55 Mich. 141 (20 N. W. 829, 54 Am. Rep. 354), and is not in conflict with the majority opinion in Geddes v. Relief Association, 178 Mich. 486 (144 N. W. 828). See, also, 1 Am. & Eng. Enc. of Law, p. 289.
It is said death as the result of ptomaine poisoning does not create liability under this policy, counsel citing American Accident Co. v. Reigart, 92 Ky. 142 (17 S. W. 280), and Bacon v. Accident Ass’n, 123 N. Y. 304 (25 N. E. 399, 20 Am. St. Rep. 748). The first of these citations relates to the improper taking of an appeal and is not in point. The second case is distinguishable and is not controlling. The instant case is more like Paul, Adm’r, v. Insurance Co., 112 N. Y. 472 (20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758), where the liability of the company was sustain ed. No question would be raised here, I take it, if the assured by mistake had taken carbolic acid, when he intended to take a helpful medicine. Travelers’ Insurance Co. v. Dunlap, 160 Ill. 642 (43 N. E. 765, 52 Am. St. Rep. 355). Why, then, should it be said there is no liability when the assured, intending to take nourishing food, in fact took tainted food, which resulted in ptomaine poisoning and death? See Vance on Insurance, pp. 570, 576, and notes; Richards on Insurance Law, § 386, and notes; 1 Am. & Eng. Enc. of Law, p. 272, and p. 294; Freeman v. Accident Ass’n, 156 Mass. 351 (30 N. E. 1013, 17 L. R. A. 753); Jiroch v. Insurance Co., 145 Mich. 375 (108 N. W. 728).
The other assignments of error have had our attention; we think it unnecessary to discuss them.
In the instant case there is a great conflict in the testimony. Young Johnson had lived in Port Huron for a long time prior to his going to Chicago on August 14, 1911. He took out the policy of insurance September 15, 1911. His sister testified in part as follows:
“Before my brother went to Chicago he was in perfect health, was tall, an athlete; played ball as a catcher on the Independent baseball team. * * * He was in perfect health all the time. * * * I never heard of his having consulted a physician nor was the subject of his having any ailment discussed in the family; never knew of his taking any medicine.”
His mother, his brother, the city clerk of Port Huron, and the county clerk of St. Clair county, and others testified to substantially the same condition. We have already called attention to what Dr. Hertel observed October 21, 1911. Physicians were called on the part of the plaintiff as experts, who described ptomaine poisoning and its symptoms. These physicians, in answer to hypothetical questions which the trial judge thought covered the history of the case, expressed the belief that young Johnson was suffering from ptomaine poisoning, and that the cause of his death was ptomaine poisoning.
“Q. From the history of the case which I read to you state whether in your opinion the cause of Lawrence Johnson’s death could be attributable to pulmonary tuberculosis.
“A. Absolutely impossible. In pulmonary tuberculosis you never have vomiting; you very rarely have dysentery or diarrhea; you never have any abdominal pain. I have seen muscular contractions due to tuberculosis, but very, very seldom, and that would be in the very later stages.
“Q. Now as to the time from the beginning of the trouble until the death, what do you say about that?
“A. It is too absurd to even answer, almost. You never get pulmonary tuberculosis to kill in a month.”
On the part of the defendant there was testimony tending to show that the assured died of tuberculosis. This raised a' question of fact which was submitted to the jury in a charge which, when read as an entirety, presented the questions involved fairly and fully.
Judgment is affirmed.
Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
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T. G. Kavanagpi, J.
Defendant was convicted of carrying a concealed pistol -without a license. CL 1948, §750.227 (Stat Ann 1962 Rev § 28.424). At the trial the court admitted into evidence, over defendant’s objection, a certified statement from the state police commissioner that no record existed showing defendant licensed to carry a concealed weapon. The statement was admitted under the authority of CL 1948, § 28.201 (Stat Ann 1961 Rev § 4.470), which provides:
“Copies, including photostatic copies, of all records and papers in the files of the Michigan state police, certified as true copies by the commissioner of the Michigan state police, shall be evidence in all cases equally and with like effect as the originals. A statement similarly certified as true by the commissioner of the Michigan state police that no records and papers are in the files of the Michigan state police with respect to a particular matter shall be evidence in all cases equally and with like effect as testimony to that effect by any member or employe of the Michigan state police.”
It is the duty of the state police commissioner to maintain a public record of all licenses issued to carry a concealed weapon. CL 1948, § 28.426 (Stat Ann 1968 Cum Supp §28.93).
Defendant argues that this certified statement is hearsay and, therefore, its admission as evidence denied her the right to be confronted by the witnesses against her and the opportunity to cross-examine as to the making and keeping of the records.
Where necessary to substantiate a fact with records, purely documentary in nature, certified copies authenticated by the official responsible for the maintenance of such records may be admitted as evidence. People v. Jones (1871), 24 Mich 214. See 5 Wigmore on Evidence (3d ed), § 1630 et seq.
Courts have been reluctant, however, to permit this valid exception to the hearsay rule to operate for official statements that no record exists. The position was taken that:
“ When a party desires to prove the negative fact that there is no record, he must do so in the usual way, by the deposition of the proper officer, or by producing him in court, so that he may be sworn and cross-examined as to the thoroughness of the search made. If the summoning of such officer to testify in relation to the public records at the call of a suitor shall be found impracticable, by reason of interfering with his public duties, the remedy must be found in further legislation.’ ” Burton v. Perry (Tex Civ App, 1932), 53 SW2d 795, 797.
The Michigan statute cited, supra, allows for such negative statements by officials, as does the Federal rule of civil procedure § 44(b), which is incorporated by reference in the Federal rules of criminal procedure § 27, and which states:
“A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, áccompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record on entry.”
In Matthews v. United States (CA 5, 1954), 217 F2d 409, the court in discussing this Federal rule .stated that:
“While the Sixth Amendment does not prevent creation of new exceptions to the hearsay rule based upon real necessity and adequate guarantees of trustworthiness, it does embody those requirements as essential to all exceptions to the rule, present or future.” p 418.
In Kay v. United States (CA 4, 1958), 255 F2d 476, the court said:
“The power of Congress and of a state legislature to provide for the admission of evidence is not subject to any such arbitrary limitation as the defendant supposes. They may carve out a new exception to the hearsay rule, without violating.-constitutional rights, where there is reasonable necessity for it and where it is supported by an adequate basis for assurance that the evidence • has those qualities of reliability and trustworthiness attributed to other evidence admissible under long established exceptions to the hearsay rule.” (pp 480-81.)
The admissibility of a negative certification, that no license to carry a concealed weapon existed, was upheld in Smith v. United States (CA DC, 1965), 122 DC App 300 (353 F2d 838).
The Michigan statute allows as evidence a certification by the commissioner concerning the records maintained by the state police. The police commissioner is obligated by statute to maintain a copy of all licenses issued to carry a concealed weapon.
“Since the assumption of the fulfillment of duty is the foundation of the exception, it would seem to follow that if a duty exists to record certain matters when they occur, and if no record of such matters is found, then the absence of any entry about them is evidence that they did not occur; or, to put it another way, the record, taken as a whole, is evidence that the matters recorded, and those only, occurred.” 5 Wigmore on Evidence, (3d ed), § 1633, p 519.
"We hold therefore that where it is the statutory duty of a public official to keep certain records, as was the case here, a certified statement by him concerning those records is both trustworthy and reliable. In view of the impracticability of requiring the commissioner’s testimony concerning the search, we hold that the admission of his certified statement in such eases is a necessity. This statute establishes a valid exception to the hearsay rule without violating defendant’s constitutional rights to confront and cross-examine all witnesses against her.
Defendant next argues that the instructions to the jury failed to inform that, in order to be convicted, the jury must find she had no license to carry a concealed weapon. The instructions stated in part:
“That Augusta Braswell did unlawfully then and there carry a Star Beretta, 7.65 caliber automatic pistol * * * in a handbag or purse she carried, without a license to carry said pistol as required by law. * * *
“It is essential that each element of the offense charged must be proved by that measure of proof, beyond a reasonable doubt.”
Defense counsel, in response to the court’s invitation for additions to the charge, responded, “we have nothing, your honor.”
The instructions adequately informed the jury of those elements of the crime with which defendant was charged and, in the absence of any request for additional instructions we find no error to have occurred in this regard.
Affirmed.
Lesinski, C. J., and Foley, J., concurred. | [
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Fitzgerald, J.
Defendant-appellant was driving a truck south on Greenfield avenue. He attempted to turn left into a driveway on Greenfield but collided with a car driven by Abraham Mukalla. A passenger in the car was killed. Defendant was tried with Mr. Mukalla on a charge of negligent homicide, was convicted by a jury in the recorder’s court of the city of Detroit, and now appeals that verdict to this Court.
Two issues are derived from the trial proceedings. Defendant called Mr. Billings, as an expert mechan ical and traffic accident reconstruction engineer, to testify as to Ms opinion of the speed of defendant Mukalla’s vehicle at the time of the accident. Mr. Billings did not see the accident, hut he had measured skid marks, noted the weights .and load weights, of the vehicles, their relative positions, and the condition of the pavement, intending to use this information as the basis for his opinion.
We must consider whether this expert witness may give his opinion as to speed of a vehicle where he has conducted several tests which form the basis of that opinion, and also inquire as to whether speed was material to the issue being tried in this case, i.e., defendant’s negligence.
Defendant was charged with negligence in making a left turn in front of Mr. Mukalla’s automobile. Mr. Billings was called as an expert by defendant to show that Mr. Mukalla was driving at a high rate of speed when he collided with defendant who was then in the process of turning.
Expert opinion is generally admissible, when a proper foundation has been prepared, to assist the jury in understanding and interpreting those relevant facts or circumstances peculiar to the particular ease which could not be readily evaluated by the inexperienced layman. See Dudek v. Popp (1964), 373 Mich 300. The facts for consideration in the present case, as known to the jury and evaluated by Mr. Billings, include the length of the skid marks (69 feet), the condition of the pavement (dry), the weight of both vehicles (defendant’s truck, 10,510 lbs., empty; Mr. Mukalla’s automobile, 3,801 lbs.), the additional weight of the defendant’s oil tank (approximately 4,500 lbs.) and the fact that the oil tank was dislodged and fell into the street as a result of the accident.
There are no Michigan decisions directly considering the allowance or denial of non-eyewitness expert opinion on the issue of speed in criminal prosecutions, hut we are not constrained to state that, thus, such testimony is never admissible in criminal cases. Rather, we believe that it should be admissible whenever speed is a material factor to the case being tried even as to the ultimate issue (G-CR 1963, 605) where the jury, because of its inexperience, would require it to effectively interpret complicated facts in issue, and where the expert is competent, has conducted scientifically recognized tests based on the facts presented, and does not invade the province of the jury by testifying as to the cause of the accident or liability therefor.
Our willingness to accept such expert opinion evidence as to speed when it is properly presented is reinforced by reference to a number of sources: See 2 "Wharton’s Criminal Evidence (12th ed), § 553, p 416; 9C Blashfield, Cyclopedia of Automobile Law & Practice, § 6231, p 382; and by reference to the Michigan law applicable to civil cases. See Dudek v. Popp, supra; but see Washburn v. Lucas (1964), 373 Mich 610, and cases cited therein for suggested restrictions on expert opinion evidence as to causation made by an investigating officer.
There is no question as to the competence of Mr. Billings to testify as an expert witness on the issue of speed. However, we cannot reach the problem of whether this is necessary testimony, given the facts as presented to the jury for their interpretation, and noting that the relevant issue was the negligence of the defendant, for the trial court never ruled on the issue. We turn to the record for the following discussion, conducted out of the presence of the jury, after the trial court had first denied defendant’s counsel permission to ask Mr. Billings Ms opinion as to speed:
“The Court: Now let me ask you a question * * * you claim that you have a case from some other state which would justify the court in admitting that sort of testimony, is that right? But you have nothing in Michigan, is that right?
“Defendant’s counsel: The law in the State of Michigan, as I was able to find was this. Now I found absolutely nothing with respect to speed in a criminal action. But I refer to Grillespie, the 2nd Edition, at Section 510 [discussion of general admissibility of expert opinion, not necessarily as to speed].
“The Court: Have you been able to find in any case in Michigan, any case in Michigan, civil or criminal, where any party was allowed to testify as to his opinion as to the speed of a vehicle when he did not see it in motion?
“Defendant’s counsel: I will bring it in.
“The Court: You have one?
“Defendant’s counsel: Yes, sir.
“The Court: Let’s see it.
“Defendant’s counsel: I was looking for criminal. I’ve got criminal from other jurisdictions.”
The discussion continues:
“The Court: I would like to see either one of them.
“Defendant’s counsel: I will bring them in, sir.” And:
“The Court: I was always of the opinion, and I know there are some cases where the Supreme Court said that you have got to see the car in motion a reasonable distance, in order to qualify yourself to give any opinion as to the speed, I know there is such a case, see.
“Defendant’s counsel: Absolutely. That is with respect to lay witnesses to give opinion evidence, and I can give yon the case on that.
“The Court: I don’t want to see it, because I know it is there.
“Defendant’s counsel: Of course this is not a lay witness.
, “The Court: All right. You show me a case where they permitted anybody, expert or lay, to testify as to the speed of a car where they didn’t see the car ■in motion.
“Defendant’s counsel: All right.
“The Court: How can we get it? That’s what I am waiting to see.
“Defendant’s counsel: Just a moment, I will call •my office. I need help.”
The court reporter notes that a recess was taken, and that after the recess there was considerable discussion off the record. The trial resumed with an entirely different witness. The record does not show whether counsel for defendant did meet his burden to advise the court and we are bound to that record on this appeal. People v. Fred W. Thomas (1967), 7: Mich App 519. We cannot say that the trial coui’t erred in . his initial, and apparently only, exclusion of the opinion. The court gave counsel a broad opportunity to bring- in cases, civil or criminal, and even from other jurisdictions, to assist the court in deciding this issue. Such cases do exist. If further discussion was had on this point, which does not appear in the record, and the court did rule unfavorably on counsel’s argument and cases presented, then counsel should have noted this on the record before calling his next witness. We cannot do it for him.
There was a defense counsel for each of the 2 defendants as they were tried jointly. The second issue on.appeal arises when defendant called Mr. Bloom, an eyewitness, concerning the speed of Mr. Mukalla’s car. Counsel for Mr. Mukalla cross-examined Mr. Bloom and the following exchange occurred:
“Mr. Mukalla’s counsel: When was the next time anybody approached you about this accident?
“Mr. Bloom: Then the investigators—
“Mr. Mukalla’s counsel: (interposing) ‘Investigators’. I want that out.
“Defendant’s counsel: I beg your pardon?
“Mr. Mukalla’s counsel: I want that out.
“Defendant’s counsel: You want that ‘out’?
“Mr. Mukalla’s counsel: Yes. What investigators?
“Mr. Bloom: I don’t know what investigators.
“Defendant’s counsel: I would like a ruling.
“The Court: Did somebody come and ask you about it?
“Mr. Bloom: Yes, they knocked on my door. They knocked on all the doors in the apartment, all the tenants.
“Mr. Mukalla’s counsel: It was an insurance company investigator wasn’t it?
“Mr. Bloom: I don’t know. They didn’t identify themselves.
“Defendant’s counsel: Your Honor, this was an abortive attempt to create a mistrial, what you just heard come out of that man’s mouth.
“Mr. Mukalla’s counsel: No. I am trying to show something a lot worse than a mistrial.”
The questioning continued concerning Mr. Bloom’s contact with this unnamed person, to wit:
“Mr. Mukalla’s counsel: You don’t know the company he represents, but you do recall speaking to someone, is that correct?
“Mr. Bloom: Definitely, definitely,”
In addition:
“Mr. Muhalla’s counsel: And you don’t recall the name of this particular company, is that true?
“Defendant’s counsel: (interposing) Oh, your Honor!
“Mr. Bloom: I don’t know what he represented.
“Defendant’s counsel: Tour Honor, I have a motion to make and I think the jury should be excused.”
The court discussed this for a moment, not excusing the jury, then proceeded:
“The Court: I don’t want any further reference made to an insurance company, Counsel.
“Defendant’s counsel: It is repeated over and over again.
“The Court: There is no testimony here that there was any insurance company involved or investigating. The witness said that a man who he didn’t know came and asked him about the accident.
“Mr. Bloom: That is correct, your Honor.”
The questioning then shifted in emphasis as follows:
“Mr. Muhalla’s counsel: You did see [defendant’s counsel], you state, a couple of weeks * * *
“Mr. Bloom: (interposing) No, a couple of days ago.
“Mr. Muhalla’s counsel: ‘A couple of days ago’, and did you see any other attorneys?
“Mr. Bloom: Yes, I saw * * *
“Mr. Muhalla’s counsel: (interposing) Let me point to the attorney # * *
“Defendant’s counsel: (interposing) No, wait a minute.
“Mr. Muhalla’s counéel: (continuing) Did you ever see this gentleman before? Do you want to stand up, Mr. Sullivan?
“Defendant’s counsel: (interposing) Your Honor!
“Mr. Bloom: Yes.
“Mr. Muhalla’s counsel: Your answer is cyes’? that’s all, That’s what I thought.
“The Court: Gentlemen, just a minute. I will exclude the answer and the question. It is not proper and it is not material to the trial of this case. Up to now, at least.”
Following discussion wherein the court reaffirmed this exclusion, questioning continued:
“Mr. Mukalla’s counsel: Were you told of any civil eases pending?
“Defendant’s counsel: I object to this as being immaterial.
“The Court: I will sustain the objection.”
Counsel retired with the court for a moment, and returned to proceed with the trial.
We have included this testimony in order to clarify the second issue made by defendant on this appeal; that the trial court erred when defendant’s motion for a mistrial was not ruled upon when the parties returned to chambers as noted above.
A mistrial is alleged wherein:
(1) The counsel for Mr. Mukalla referred to pending civil litigation;
(2) Testimony was given as to the investigation by an insurance company; and
(3) An inference was made as to wrongdoing by the insurance company and its attorneys in dealing with Mr. Bloom.
These 3 issues as derived from the portion of the transcript concern alleged prejudicial behavior by Mr. Mukalla’s counsel, but they do not strike this Court as being of harm to defendant’s right to a fair trial. The trial court recognized the ability of Mr. Bloom to wander about in hearsay fields and he effectively reprimanded both the witness and Mr. Mukalla’s counsel whenever necessary. That heinous word “insurance” is not so prejudicial in criminal cases that its mere mention will compel this Court to order new trials where damages are not in issue. These colloquies by the counsel for Mr. Mukalla were not pleasant or conducive to exemplary trial advocacy, but we cannot say that they were injurious or prejudicial to defendant, considering their limited occurrence in a prolonged trial. Lake Oakland Heights Park Association v. Township of Waterford (1967), 6 Mich App 29.
Affirmed.
McGregor, J. concurred with Fitzgerald, J.
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] |
J. H. Gillis, J.
This action arises on a petition to vacate a platted road, part of Blandford and Gilleland’s Plat in Spring Late township, Ottawa county, Michigan.
The road, Lake Beach drive, is an unimproved public right-of-way which, so far as is relevant here, runs in an east-west direction along the south shore of Spring Lake. Physically the road is partially covered by grass and shrubbery although it is passable and in fact so used. Lake Beach drive is separated from the lake on the north side of the road only by a number of small (10-foot-wide) boat lots. On the- other side of the platted road are larger residential lots, the owners of which are the petitioners herein. Although some of these residential lots are only accessible over Lake Beach drive, all the owners of land so situated were joined in the vacation petition.
The present petition deals with that section of Lake Beach drive located between the easterly line of Franklin avenue and the easterly line of Bland-ford avenue. Franklin, Ottawa and Blandford avenues form the only access to Lake Beach drive and the lake lots at this section of the plat. An attempt by the public authorities to improve and grade the northern ends of Blandford and Ottawa avenues at their intersection with Lake Beach drive is the subject of a companion lawsuit and appeal. See Ackerman v. Spring Lake Township (1968), 12 Mich App 498, post.
Owners of the boat lots objected to the proposed vacation on the ground that the only access to their lots was by means of Lake Beach drive. The trial judge found such objections to be reasonable and denied the petition. This appeal challenges that ruling.
Findings of the trial court indicate that no public acceptance of Lake Beach drive had occurred either by formal resolution or public user. See West Michigan Park Association v. Department of Conservation (1966), 2 Mich App 254. The objections therefore are by private owners protecting their own private rights under the recorded plat, including Spring Lake Township which has acquired owner ship of a number of the boat lots and has filed a brief in this matter as appellee.
We agree with the findings of the trial judge that reasonable objections to vacation were presented. The record established that boat lot owners made regular, albeit seasonal, use of the platted road. Travel over the road is by car and foot and at the beginning and end of the season boats, trailers, and often docks are transported by these owners over the road in question.
The test of whether an objection to vacation of a portion of a recorded plat is reasonable is not capable of precise answer. In Westveer v. Ainsworth (1937), 279 Mich 580, 585, the Supreme Court stated:
“It is reasonable objection to vacation of the plat that it is proposed to take from the lot owners the conditions they prize as advantages and for which they have paid.”
We are constrained to agree that access to one’s property as it existed under a recorded plat at the time of purchase forms the basis of a reasonable objection to impairment of that access by vacation. The offer of easement by petitioners hardly persuades us otherwise, for if the rights under the easement would be as great as those under the plat, we sincerely doubt whether we would have had a lawsuit here.
We find no error in the action taken by the trial court in denying the petition.
Affirmed. Costs to appellees.
Holbrook, P. J., and Burns, J., concurred.
[101] et seq.).
CL 1948, § 560.62 as amended by PA 1958, No 101 (Stat Ann 1965 Cum Supp § 26.492) as existing at tlie time of tliis lawsuit. This section has more recently been repealed by the subdivision control act of 1967, supra, footnote 1. | [
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T. G. Kavanagh, P. J.
Defendant companies contracted witb tbe Wayne county board of road commissioners to construct a drain water intake in tbe city of Lincoln Park. . Plaintiffs, property owners, originally began an action in the Macomb circuit court on August 17, 1964 against the construction firms only, alleging that “the soil in their backyard and around their home has shifted almost continuously since 1959 and 1960 on account of blasting by defendant,” and claiming damages which resulted from such subsidence. A motion was made by defendants for accelerated judgment (GCR 1963, 116) claiming that plaintiffs’ action was barred by the 3-year statute of limitations on personal injury or property damage claims. CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805). An order granting the motion was entered on October 18, 1965.
On December 1,1965, the property owners brought a second, separate action against defendants in Wayne circuit court, (including in this action the Wayne county road commission) claiming that they were third-party beneficiaries of an express contract between the road commission and the construction firms and that defendant construction firms had breached that contract. Actions on a contract of the type relied on here are governed by CLS 1961, § 600.5807[8] (Stat Ann 1962 Rev § 27A.5807[8]), prescribing a 6-year limitation period.
It is from an order of the lower court allowing an accelerated judgment in favor of defendants on this second suit that plaintiffs appeal.
Plaintiffs assert that, contrary to the lower court’s holding, the accelerated judgment of October 18, 1965 which disposed of the tort action was not res judicata as to the second suit of December 1, 1965 which was brought for breach of an express contract.
GrCR 1963,116.1 states:
“In a party’s first responsive pleading, or by motion filed not later than his first responsive pleading, a party may demand that service of process be quashed or that judgment be entered dismissing 1 or more claims asserted against him upon any of the following grounds: * * *
“(5) the claim is barred because of . . . statute of limitations, ... or assignment or other disposition of the claim before commencement of the action.”
This court rule allows certain defenses to be presented which, upon a preliminary hearing, will determine whether a trial on the merits is necessary. If the defense is good, disposition of the claim may be made without a trial on the merits.
A judgment, to constitute a bar to any subsequent claim, however, must be rendered on the merits. Tucker v. Rohrback (1864), 13 Mich 73. “ ‘No judgment in any legal proceeding can be a bar unless the rights of the party whose claim has been presented for adjudication have been passed upon, or he had the right in such proceeding to have merits on such claim adjudicated.’ ” Nordman v. Earle Equipment Company (1958), 352 Mich 342, 346, The accelerated judgment granted on the first action in tort properly applied the 3 year statute of limitation and dismissed the plaintiffs’ claim without deciding the merits.
Plaintiffs’ separate claim for breach of contract could have properly been brought in conjunction with the first suit (GCR 1963, 111.9), but defendant made no objection at that time for failure to join all actions, consequently nothing bars the bringing of this separate action now. (GCR 1963, 203.1).
As the accelerated judgment of the tort claim was not a decision on the merits, it was not res judicata to bar a second suit for breach of contract. It is incumbent on plaintiffs now to prove, as alleged, that tbe rights upon which they rely in this suit do in fact arise from those terms of a contract between the construction firms and the county road commission, reflecting an agreement to protect plaintiffs’ interest. That plaintiff may rely on such contract, bringing direct suit against the construction firm for its breach is evidenced in Bator v. Ford Motor Co. (1934), 269 Mich 648. There the court quoted with approval the Restatement of the Law, Contracts § 145:
“A promisor bound to the United States or to a State or municipality by contract to do an act or render a service to some or all the members of the public, is subject to no duty under the contract to such member to give compensation for the injurious consequences of performing or attempting to perform it, or of failing to do so, unless,
a.) An intention is manifested in the contract, as interpreted in the light of the circumstances surrounding its formation, that the promisor shall compensate members of the public for such injurious consequences, or
b.) The promisor’s contract is with a municipality to render services the non-performance of which would subject the municipality to a duty to pay damages to those injured thereby.”
It was said further in Bator, supra:
“The question of indemnification was not involved. In the drafting of the contract there seems to have been a realization of a duty on the part of the city towards ‘those along the line of the work,’ and the language exacted of the Ford Motor Company a promise to pay, running to the owners of property that might be damaged.
“Any damage to private property shall be taken care of to the satisfaction of the owners of said property.” 269 Mich 648, 667.
"We are unaware of the terms of the contract on which plaintiffs rely, though a comparison is made by them to those relied on in Hardware Dealers Mutual Ins. Company v. R. H. Hidey, Inc. (1957), 349 Mich 490, 496, where the contractor agreed to “protect all city property and private abutting property from injury or loss arising in connection with this contract.” There, suit by the property owners as third-party beneficiaries was allowed. Actions for breach of an express contract, entered into, in part, to protect the interests of a third party, are governed by the 6-year limitation period. See State Mutual Cyclone Insurance Company v. O. & A. Electrical Cooperative (1965), 5 Mich App 452.
This case is remanded so that plaintiffs may have the opportunity to prove the contract, establish a third-party beneficiary position to that contract, show a breach of those provisions relied upon, and overcome whatever defense may be available to defendant on contract principles.
Appellant may tax costs.
J. H. Gillis and Beer, JJ., concurred.
Plaintiffs’ complaint of August, 1964.
An interesting discussion on the ramifications of this court rule are found in the author’s comments of Honigman and Hawlciris, 1 Michigan Court Rules Annotated (2d ed), p 476 et seq. | [
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Burns, J.
A jury found the defendant guilty of refusing to exhibit his motor vehicle operator’s li cense to a uniformed officer upon demand. CLS 1961, § 257.311 (Stat Ann 1960 Rev § 9.2011).
Two Detroit police officers observed a vehicle parked in a no-parking area. When they reached the vehicle the defendant was in the driver’s seat. According to the testimony of the police, the defendant refused to move the vehicle and refused to display his operator’s license. The defendant testified that he was not driving the automobile and that he did not refuse to produce his operator’s license. It is undisputed that the license was locked in the glove compartment of the vehicle and that the defendant, having lost or misplaced the key, forced the compartment open and removed the license for the police before being taken to a local precinct where he was formally charged with the offense at bar.
The defendant contends that the trial court erred by instructing the jury that the license locked in the glove compartment was, as a matter of law, not in defendant’s “immediate possession.”
The instructions to which defendant objects are as follows:
“Now, [the statute] doesn’t say in his possession, it says in his immediate possession. And I charge you that as a matter of law that means you have to have it at such a place that you can show it to the officer upon request. Now, when you have your license locked in a glove compartment of the automobile and you don’t have a key it certainly is not in immediate possession of the defendant so as to be in position to display it to the uniformed police officer.
“The purpose of the statute is obvious, that you should have it so that you can display it upon re quest. And that means to he in possession so you can do it, and if it’s locked in the glove compartment where you’re going to have to force the glove compartment to get it out, as a matter of law, it is not in immediate possession.”
It was error for the trial court to so instruct the jury. As pointed out by the defendant, these instructions were equivalent to a directed verdict of guilty if the jury found that the defendant was the operator of the vehicle in question. What constitutes “immediate'possession” in a given case is a question of fact for the jury.
Carrying an operator’s license in a locked glove compartment is certainly not abnormal in Michigan. Since the license is now an invaluable means of identification, not only for motor vehicle code purposes, but also for cashing checks, etc., it is of little surprise to find licenses within the security of a locked glove compartment. Whether the delay in gaining access to the locked glove compartment constitutes a failure to display a license is a question for the jury to resolve.
The issue of the defendant’s possession of a license was not stated in the complaint and warrant and should not be advanced as an issue in the case unless the complaint and warrant are amended.
Reversed and remanded for a new trial.
Levin, P. J., and Dalton, J., concurred.
Tlie statute allegedly violated provides: “The licensee shall have such license in his immediate possession at all times when driving a motor vehicle, and shall display the same upon demand of any uniformed police officer.” | [
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] |
Peterson, J.
Three vehicles, proceeding in the same direction, were involved in collisions as the first slowed to stop for a traffic light. Mrs. Winekoff, driving the first car, her husband’s, was hit from the rear by Mrs. Utykanski, who was struck from the rear by a truck owned by Neisner’s Automotive Supply, driven by its employee, Elliot. Mrs. Winekoff, who is conceded to be blameless, and her husband, brought actions for their damages against the owners and operators of both of the other vehicles. Neisner’s, in turn, filed a cross-complaint against the Utykanslds. The cases were • jointly tried, and the jury returned verdicts against Neisner’s and Elliot, with no cause of action being found against the Utykanslds as to plaintiffs’ actions and the same verdict as to the cross-complaint.
The proofs framed a liability determination dependent on the sequence of the collisions, i.e., either that Neisner’s driver, Elliot, hit Mrs. Utykanski first and drove her into the Winekoff car, or that Elliot was free of fault causally related to Winekoffs and was only secondarily involved in a collision with Mrs. Utykanski after she had already hit the Winekoff car. Mrs. Winekoff testified that she knew nothing about what happened behind her other than that she was struck from the rear. Mrs. Utykanski testified that she was struck from behind by the Neisner’s truck and pushed into plaintiff’s car. Elliot, called for cross-examination by plaintiff, denied this and claimed that he struck Mrs. Utykanski only after she had first hit the plaintiff. It appears that after the accident, Mrs. Utykanski was taken to a hospital where she told a police officer that she did not know the sequence of collisions.
Appellants contend that the statutory presumption of negligence arising from rear-end collisions was inapplicable and that the trial judge should have directed a verdict of no cause of action in their favor. "We find no merit in the claim that the statute only applies to the overtaking and overtaken vehicles and that Mrs. Winekoff could thus have no benefit from the presumption against appellants since she was hit by a vehicle other than that of appellants. The statute neither so limits the presumption of negligence nor attempts to limit the usual rule as to proximate cause of damage suffered therefrom. Neither can it be said that the presumption disappeared when testimony inconsistent with the presumption was given by Elliot, or because plaintiffs were “bound by” Elliot’s testimony when they called him for cross-examination. Both theories were laid to rest in Petrosky v. Dziurman (1962), 367 Mich 539. Appellant’s principal argument is that the statutory presumption does not arise because Elliot’s testimony that Mrs. Utykanski hit plaintiff first is the only competent evidence as to the sequence of collisions. In this proposition, Mrs. Utykanski’s testimony that Elliot struck her first could not be considered because of her out-of-court statement to the police officer that she did not know the sequence of collisions. The argument misunderstands the meaning of impeachment, which is not a matter of law for the court, but an evidentiary question of what may properly be laid before a jury to assist it in judging the credibility of witnesses. The trial judge properly left this to the jury.
Counsel is something less than candid in claiming error in rejection of “counsel’s proffered written request to charge”. The record discloses that no written requests were ever filed or tendered to the court, and nothing was heard from counsel regarding instructions until after the jury had begun deliberations.
Neither are we impressed that appellants suffered prejudicial treatment at the hands of the trial judge. Counsel ought to be reminded that the responsibility for keeping the trial within the bounds of relevancy and evidentiary rules is not that of the court alone. It is a rather substantial aid to the trial judge when counsel, unhappy with a question-or response, can express an objection which raises a legally pertinent question. Defensive response of counsel to the examination of witnesses is limited to the framing of such objections, which are properly addressed only to the court. Arguments with counsel or the witness, statements of fact, counter questions or complaints addressed to no one in particular are a breach of decorum which a trial judge ought not to be expected to endure. The record herein discloses more departure from acceptable practice than should be tolerated, and if the trial judge was occasionally sharp with appellants’ counsel, the comments were warranted and were not exclusively .directed to one side. We find nothing .that could have suggested to the jury any partiality or prejudice on the part of the court.
Other claims of error are without merit. Affirmed, with costs to appellee.
Burns, P. J., and Holbrook, J., concurred.
Act 300, PA 1949, § 402. (CLS 1961, § 257.402; Stat Ami 1960 Kev § 9.2102). | [
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Quinn, J.
Defendants appeal from the denial of their motion to set aside the report of the commissioners and to grant a new trial in plaintiff’s condemnation proceedings relative to certain property taken for US-127. On appeal, as on said motion, defendants contend that the trial court erred in ruling that the State had acquired the access rights defendants claimed they were entitled to be compensated for, that the award was against the great weight and unsupported by the evidence, and that the argument of plaintiff’s attorney was improper and prejudicial to the extent of depriving them of a fair trial.
By warranty deed dated May 9, 1952, the then owners conveyed to Charles M. Ziegler as State highway commissioner a 200-foot right-of-way over the northwest quarter of the northeast quarter of section 17, T2N, R1W, Vevay township, Ingham county. This deed bore a stamp reading, “first party acknowledges notice that said lands may be used for limited access highway purposes”. To correct an error in description, the grantee in this deed reconveyed to the then owner by quitclaim deed dated May 14, 1953, and the same day the owner reconveyed by warranty deed to Charles M. Ziegler as State highway commissioner. The land involved in this appeal is that part of the northwest quarter of the northeast quarter of section 17, T2N, R1W, lying east of this right-of-way; it is vacant land and it is zoned commercial.
At the time of the deed of May 9, 1952, CL 1948, § 252.51 (Stat Ann 1958 Rev § 9.1094[1]) provided in part:
“For the purposes of this act, limited access highways are defined as highways specially designed for through traffic, and over, from or to which owners or occupants of abutting land have no easement or right of light, air or access by reason of such abuttal.”
and CL 1948, § 252.53 (Stat Ann 1958 Rev § 9.1094 [3]) provided:
“For the purposes of this act, the aforesaid agencies may acquire private property and property rights by purchase, gift, devise, or condemnation, and the provisions of any existing laws of this state shall apply. All property rights acquired under the provisions of this act shall he in fee simple estate.”
The trial court ruled with respect to access rights:
“With respect to the question of acquisition of access rights to the highway, the court would rule that it clearly appears from the deed of May 9, 1952, that the minds of the parties met on the proposition that this was to he a limited access situation and that the highway department did acquire the access rights to this property.”
This factual determination that the parties to the deed of May 9, 1952, understood the land conveyed thereby was for a limited access highway is not clearly erroneous (GrCR 1963, 517.1), and the statute controls. No access rights were involved with the land taken.
The award was within the range of the competent evidence and will not be disturbed. Department of Conservation v. Connor (1947), 316 Mich 565.
There was no objection to the alleged improper argument of plaintiff’s counsel. No error is presented for review. Riste v. Grand Trunk Western Railroad Company (1962), 368 Mich 32.
Affirmed but without costs.
Lesinski, C. J., concurred with' Quinn, J.
Filed -under PA 1925, No 352, as amended (CL 1948, § 213.171 et seq., as amended [Stat Ann 1958 Rev and 1968 Cum Supp § 8.171 et seq.]). | [
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Quinn, J.
Defendant appeals from the trial court’s grant of writ of mandamus requiring defendant to comply with an ex parte order of the probate court issued on plaintiff’s appeal from the order and review of apportionments made by defendant in a drain proceeding. The latter appeal was pursuant to CLS 1961, § 280.155 (Stat Ann 1960 Rev § 11-.1155). Defendant moved to dismiss the appeal as untimely, and the probate court has never ruled on that motion. On this record, plaintiff has no clear legal right to the enforcement of the ex parte order of the probate court, nor does defendant have a legal duty to perform it. Janigian v. City of Dearborn (1953), 336 Mich 261. The writ of mandamus should not have been granted.
■ Reversed and plaintiff’s complaint for mandamus is dismissed, with costs to defendant.
McIntyre, J., concurred with Quinn, J. | [
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Lesinski, C. J.
The defendant appeals a sentence of 4-1/2 to 15 years imposed by the recorder’s court of the city of Detroit, December 16, 1966, at a rehearing for violation of a probationary order to which he pled guilty. The same judge had sentenced defendant to a term of 4-1/2 to 5 years at a prior hearing for the same violation of probation, August 2, 1965, at which time defendant pled guilty without the assistance of counsel.
The Supreme Court set aside the 1965 conviction and sentence for violation of probation and remanded the matter to the lower court for a rehearing granting defendant ■ the right to assistance of counsel. See In re Mulier, 378 Mich 740.
The issue on this appeal is whether the longer maximum sentence imposed upon defendant at the rehearing, after a successful appeal from the prior conviction and sentence, is constitutionally permissible'under the circumstances disclosed by the record.
It is not disputed that either maximum sentence pronounced by the lower court could lawfully be imposed upon defendant for violation of the probationary order. The defendant contends that imposition of a longer sentence after a rehearing which virtually duplicates the former hearing vitiated on appeal deprives him of due process of law and equal protection of the laws when the reason for the increased, punishment cannot be discerned from the .record. He also argues that the double jeopardy provisions of the Federal and State' ¡Constitutions immunize him.from a harsher subsequent sentence.
This precise issue has not been, previously raised in this-State, so far as our research discloses, except in the case of People v. Poole (1967), 7 Mich App 237.
.In Poole, the defendant pleaded guilty ,to the crime ,of breaking and entering in the nighttime and received a sentence of 6 to 15 years in prison. Poole moved for a new trial claiming.he had not been advised at the preliminary examination of his right to coqrt appointed counsel. A second judge granted the Motion for a new trial, accepted a plea of guilty to the same offense, and sentenced defendant to a term of 8 to 15 years with credit allowed for time already served. The sentencing judge' felt that defendant had taken advantage of the court in moving: for a new1 trial when, in fact, he had been represented by counsel at the preliminary examination. On appeal, this Court held, inter alia, that defendant knowingly took a risk in seeking a new trial and should not be heard to complain because the new minimum sentence may increase the time he might serve. The Court relied on a settled rule in this jurisdiction, namely, that a trial court has the . discretionary power to impose sentence within the ■maximum provided by statute,;. and an appellate .court does not have supervisory'control over 'the punishment. See Cummins v. People (1879), 42 Mich 142; People v. Weeks (1894), 99 Mich 86; People v. Guillett (1955), 342 Mich 1; and People v. Connor (1957), 348 Mich 456.
Poole, supra, involved a motion for a new trial addressed to the sound discretion of the trial court. See People v. Andrews (1960), 360 Mich 572. The record in Poole is sufficient for us to discern the additional factors which led to imposition of a longer minimum sentence at the retrial. Defendant in the case at bar exercised his right of appeal under Const 1963, art 1, § 20.
Courts in other jurisdictions, particularly the Federal bench, have recently had occasion to consider the constitutional validity of harsher sentences upon reconviction after a successful attack upon the prior judgment and sentence.
The Federal and State authorities examined demonstrate the increasing concern about the basic fairness of imposing a more severe sentence on reconviction after a successful appeal, particularly in view of our ever-expanding concepts of the protection afforded defendants by the due process, equal protection, and double jeopardy provisions of the Federal Constitution. An enlightened concept of the protections which the law affords the accused at each step of the judicial process has caused the courts to re-examine the inherent fairness of the distinctions previously drawn to justify the imposition of harsher sentences under almost any set of circumstances. We note that one troublesome aspect of the general subject of harsher sentences, namely, whether credit shall be given for time served under a prior void sentence, no longer exists in Michigan. Although the examined authorities usually have had an admixture of the denial of credit for time served and longer sentence questions in the same case, they are but two prongs of a single problem, giving these cases great relevance to our inquiry.
It is not necessary, however, to premise our decision in the instant case upon the due process, equal protection or double jeopardy provisions of the Federal or State Constitutions, since we perceive a more cogent ground for decision. The Michigan Constitution guarantees that in every criminal prosecution the accused shall have at least one appeal as a matter of right. Constitutional guarantees apply to all alike, and should not be withheld even in the slightest degree. In the Matter of Bommarito (1935), 270 Mich 455.
To allow the imposition of a harsher sentence after a rehearing, where the offense, the plea, and the sentencing judge are the same as in the prior proceeding and the record is barren of any grounds tending to support the harsher sentence, unduly infringes upon the constitutional right of appeal. Circumstances such as found in this case permit the conclusion that impermissible factors were con sidered by the trial judge in imposing a harsher sentence at the rehearing.
Individual rights embodied in the State Constitution are no less zealously guarded than Federal constitutional rights. And it cannot be presumed that art 1, §'20 of the State'Constitution bestowed an 'in terrorem legacy upon the criminally accused. Since the State has granted the universal right .of appeal, standards of procedural fairness forbid cutting down the right.
This was the approach in State v. Wolf (1966), 46 NJ 301 (216 A2d 586), and in State v. Turner (1967), 247 Or 301 (429 P2d 565), to protect the right of appeal, and we approve. The Wolf court said (pp 308, 309):
“Our decision finds its base in procedural policies which are of the essence of the administration of criminal justice. * * *
“Consequently, we hold that since the State has granted the universal right of appeal, standards of procedural fairness forbid limiting the right by requiring the defendant to barter with his life for the opportunity of exercising it.”
Remanded for resentencing.
Fitzgerald and McGregor, JJ., concurred.
The. sentencing judge in the two violation-of-probation hearings •also presided at the criminal trial in 1962 wherein defendant was •placed on three years probation after conviction, upon a plea of guilty, of the crime of assault with intent to rob being armed, CL 1948, § 750.89 (Stat Ann 1962 Rev § 28.284).
Mempa v. Rhay (1967), 389 US 128 (88 S Ct 254, 19 L Ed 2d 336), makes it a matter of Federal constitutional law that a lawyer be afforded to defendant at a combined probation-revocation and sentencing proceeding.
CL 1948, § 771.4 (Stat Ann 1954 Rev § 28.1134), provides: “In case such probation order is terminated or revoked the court may proceed to sentence such probationer in the same manner and to the same penalty as it might have done if such probation order had never been made.” The statutory punishment for the crime of assault with intent to rob being armed is imprisonment for life or for any term of years. See CL 1948, § 750.89, supra,
US Const, Am 5, 14; Mich Const 1963, art 1, § 15. This Court 'held in People v. Power (1966), 3 Mich App 585, that the double jeopardy provisions of the Fifth Amendment to the U. S. Constitution are 'applicable to .the states through the due process clause of the Fourteenth Amendment, citing United States, ex rel. Hetenyi v. Wilkins (CA 2, 1965), 348 F2d-844, certiorari denied sub nom Mancusi v. Hetenyi (1966), 383 US 913 (86 S Ct 896, 15 L Ed 2d 667).
See, also, People v. Pate (1965), 2 Mich App 66; People v. Daniels (1966), 2 Mich App 395; People v. Will (1966), 3 Mich App 330; People v. Doran (1967), 6 Mich App 86; and People v. Tetts (1967), 6 Mieh App 254.
“That the trial judge may consider additional factors in determining sentence is well settled in Michigan. People v. Williams (1923), 225 Mich 133; People v. Losinger (1951), 331 Mich 490 (44 ALR 2d 1449); People v. Guillett (1955), 342 Mich 1.” People v. Camak (1967), 5 Mich App 655, 663.
See, for example, Patton v. North Carolina (CA 4, 1967), 381 F2d 636; Marano v. United States (CA 1, 1967), 374 F2d 583; United States, ex rel. Starner v. Russell (CA 3, 1967), 378 F2d 808; United States v. White (CA 7, 1967), 382 F2d 445; People v. Henderson (1963), 60 Cal 2d 482 (35 Cal Rptr 77, 386 F2d 677); People v. Ali (1967), 66 Cal 2d 277 (57 Cal Rptr 348, 424 P2d 932); State v. Wolf (1966), 46 NJ 301 (216 A2d 586); and State v. Turner (1967), 247 Or 301 (429 F2d 565), and other authorities cited in these cases.
CLS 1961, § 769.11a, as amended by PA 1965, No 67 (Stat Ann 1968 Cum Supp § 28.1083 [1]), requires the sentencing judge to credit a reconvicted defendant for time served under a prior erroneous conviction by reduction of the sentence to be imposed.
Const 1963, art 1, § 20. | [
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Fitzgerald, J.
Defendant was convicted by a jury in the Saginaw county circuit court of the manslaughter of her husband in the Wonder Bar in the city of Saginaw on the night of July 13, 1963. She appeals. The facts relevant to the case will be outlined within the framework of our discussion of the several issues of error alleged by defendant to have occurred during the course of her trial.
A preliminary hearing was held pursuant to CL 1948, § 766.4 (Stat Ann 1954 Eev § 28.922). Defendant alleges that error occurred at this time when the people did not produce testimony of a medical expert as to an unnatural cause of the husband’s death, resulting in a failure to establish the corpus delicti of the offense of murder in the second degree. A medical pathologist had performed an autopsy but he was not called to testify. The death certificate was introduced pursuant to CL 1948, § 326.6, as amended by PA 1962, No 202 (Stat Ann 1965 Cum Supp § 14.226), to show the identity, occurrence, time and death, but not the cause of death, although an opinion as to the cause is included. More testimony was adduced. The nonmedical coroner was called and he described a small wound found • in the husband’s chest. Several witnesses were called and they gave testimony concerning profuse bleeding of deceased, statements made by deceased following his wounding, and actions taken by one of them to stop the bleeding. In the ease of People v. Jackson (1965), 1 Mich App 207, 211, it is stated:
“In homicide cases the corpus delicti is sufficiently-shown by testimony of the finding of the dead body and evidence of an unnatural cause of death.”
A preliminary hearing is held to establish to the satisfaction of the examining magistrate that a crime has been committed and that there is probable cause to believe that the accused committed the crime. People v. Jackson, supra.
The testimony of a medical expert is indeed preferable in a situation where the crime charged involved physical injury, but we do not find that error existed in this preliminary hearing when there is other competent and substantial evidence of an unnatural cause of death or injury. Laymen are not necessarily incapable of testifying competently as to observable surrounding circumstances of an incident so that the examining magistrate would err in believing that a crime had been committed based on their testimony. All facts and incidents which plainly relate to the offense are admissible. See 1 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 303, p 361.
Defendant’s counsel requested the names of the people’s expert witnesses who would testify to rebut the defense of temporary insanity, but his motion was denied by the trial court. Two police officers did testify that defendant appeared sane to them at the time she was being interrogated shortly after her husband was stabbed, and their names appeared on the information. They were not expert witnesses and the trial court did not abuse its discretion nor prejudice defendant by denying the motion.
Rosia Flores, the sister of defendant, was at the Wonder Bar when deceased was injured. She was indorsed on the information by the prosecutor and she testified on direct examination, but the trial court refused to permit defendant’s counsel to cross-examine her on the issue of the alleged insanity of defendant. This refusal constitutes error as the right to cross-examine as to facts in issue or relevant facts is broadly granted in Michigan subject generally to the discretion of the trial court as to the credibility of the witness. Schwartz v. Triff (1966), 2 Mich App 379. However, the people allege that this error is not prejudicial to defendant as she later called Rosia Flores as her own witness and substantial testimony was given on the issue of insanity at that time. "We agree with the observation made at 3 Am Jur, Appeal and Error, § 1132, p 651:
“And where a party has been denied by the trial court the right to cross-examine a witness relative to facts and circumstances connected with the matters brought out on the direct examination, the error may be rendered harmless if such party examines the witness during the subsequent progress of the cause relative to the matters concerning which he was erroneously denied the right to cross-examine.”
Defendant was fully given the opportunity to develop the testimony of Mrs. Flores concerning the issue of insanity and we hold this error of the trial court to be nonprejudicial to defendant. See Harrington v. Los Angeles R. Company (1903), 140 Cal 514 (74 p 15, 63 LRA 238).
Defendant attempted to offer into evidence 2 exhibits of emergency room records of St. Mary’s Hospital to show her alleged insanity; these records described her admission to the hospital on 2 occasions, 4 months prior to the death of her husband, because of her consumption of an unknown amount of phenobarbital, with a contemporaneous diagnosis of her condition. The court refused to admit these exhibits at any time for any purpose during the course of the trial, being of the opinion that such records are not admissible to prove diagnosis or history of the case.
The people cite the case of People v. Lewis (1940), 294 Mich 684, for the proposition that hospital records are never admissible under the business entry statute, CLS 1961, § 600.2146 (Stat Ann 1962 Rev § 27A.2146), in a criminal case, because the accused •will he denied his constitutional right to he confronted by the witnesses against him, i.e., the maker of the hospital record who is not present in the courtroom. However, we believe that the desire to obtain the best evidence possible concerning the accused’s plea of insanity would require that she be able to introduce a portion of such hospital records following the preparation of a proper foundation. We agree with the statement in Weihofen, Mental Disorder as a Criminal Defense, ch 6, § 3, p327:
“Data obtained in the regular course of medical practice and entered on such (hospital) records are regularly relied upon by the medical profession in matters no less important than those involved in lawsuits, and their exclusion in court leads to error rather than to truth.”
We believe that the limitations of the Lewis Case were intended to apply to the particular facts of that case wherein the defendant was accused of practicing medicine without a license in an abortion case, where the hospital records showed that the complaining witness was previously treated in connection with a pregnancy. In cases such as the present, concerning physical condition, hospital records are generally held to he admissible to show facts relating to the medical treatment and history of- patients in criminal as well as in civil cases. See 23 CJS, Criminal Law, § 851, p 332.
The objection of the people is that they” “can’t cross-examine the record”, but this is not the reason given by the Court in the Lewis Case for excluding such evidence. • Rather, the objection is that the accused is unable to confront the witnesses against him when such records are admitted, so this objection must be qualified where the accused himself seeks to admit the records as an essential part of a defense of insanity. A number of safeguards have evolved to remove the hearsay objection by insuring the regularity of the entries made in the ordinary course of business by persons whose duty it is to make them, the records being duly authenticated and having been made by a person having knowledge of the facts set forth therein. The Michigan business entries statute, supra, is interpreted as follows:
“Under the statute authorizing the admission of records made in regular course of business, a hospital record made in writing and in the regular course of business is admissible in evidence, as regards acts,. events, occurrences or transactions incident to the hospital care or treatment, when it was the regular course of business to make such record.” 5 Callaghan, Michigan Pleading and Practice (2d ed), § 36.572, p 216.
Defendant would have this Court extend the’ statute to include a diagnosis contained in the hospital record as admissible in evidence. See Shinabarger v. Phillips (1963), 370 Mich 135. We do not support this contention in a criminal case such as the present one. The diagnostician is unavailable for cross-examination and we believe that the admission of his unsupported diagnosis would not be in keeping with sound criminal trial procedures. Two exhibits were refused admission by the trial judge.' We' find error in Ms refusal to admit exhibit #11 concerning her admission to the hospital on March 10, 1963, her apparent physical condition, and her consumption of an unknown amount of phenobarbital, but not as to the diagnosis made at that time. The doctor who treated defendant on her re-admission 2 days' later testified at the trial, referring to the hospital record (exhibit #12) made at that time. We find that defendant suffered no prejudice by the initial exclusion of exhibit #12 as the diagnostician fully testified as to her condition later in the trial.
Defendant called a psychiatrist to testify' on the issue of her insanity. She alleges error in that the trial court did not permit the psychiatrist to testify as to the history given him by defendant when he examined her; that he was not allowed to give his opinion as to defendant’s mental state at the time of the alleged offense unless counsel framed his inquiries in the form of hypothetical questions; and that the psychiatrist was not allowed to present his diagnosis of defendant which was based upon her medical history and his examination of her.
The parties agree that a psychiatrist may testify as to his opinion partially based upon a personal history of the patient given to him if he is the “treating” psychiatrist. However, the people allege that this psychiatrist was consulted for the purpose of trial preparation oh behalf of defendant and that the history would be self-serving and hearsay, and, thus, that it should be excluded. Defendant denies that the psychiatrist was consulted only for trial preparation, and alleges that he did treat defendant, but if it is found that the contention of the people-is true, asks this Court find the history essential to any evaluation of a patient by a psychiatrist.
Four general situations may occur when medical testimony is sought to be introduced into evidence on the issue of an opinion formed by the doctor based on a history obtained from the patient.
1. The “treating” physician or psychiatrist: may testify as to personal history given by the patient.
2. The “nontreating” physician: may not testify in Michigan (Layton v. Gregan & Mallory Company, Inc., (1934), 269 Mich 574). The fear persists that the patient who is sent to a doctor following an incident will readily make self-serving statements. The modern trend in the United States is to allow the nontreating doctor to consider these statements in order that he may have the opportunity to form an intelligent opinion on the basis of as much information as is available. Reliance is placed on his ability to detect malingering. See 6 Am Jur, Trials, § 17, p 137.
3. The “referral and treating” physician and psychiatrist: may testify as to the personal history given by the patient to him as a treating doctor if this is one purpose of the visit. This trend is exemplified by the case of Ritter v. Coca Cola Company (1964), 24 Wis 2d 157 (128 NW2d 439).
4. The “nontreating psychiatrist”: may testify as to history in those states which make an exception to the exclusionary rule because of the unique problems faced by the psychiatrist in making subjective observations predicated on a full understanding of a patient’s life. 6 Am Jur Trials, § 19, p 140.
Defendant first urges us to find that the psychiatrist would fall under (3) above because, following the birth of another child in August, 1964, the psychiatrist recommended that she be sterilized to prevent further pregnancy, based on his opinion of her mental condition prior to that time. However, the issue of permitting him to testify as to the history given to him by defendant was objected to and ruled on by the trial court long before testimony was in troduced concerning possible “treatment” by the psychiatrist.
Dne to the subjective nature of a psychiatrist’s diagnosis, we agree that it is essential for him to employ the tool of the patient’s verbal description of her life and mental history, as in (4) above. The “self-serving” objection to the history can be overcome by reliance upon the psychiatrist’s expertise, experience, and ability in detecting liars. The trial court repeatedly refused to permit the psychiatrist to testify as to his diagnosis of defendant’s condition on July 13 because of the probability, as alleged by the people in reliance on an 1888 New York case, that the statements were self-serving when they were made to a physician months after the incident by a person claiming insanity at the time of the incident. People v. Hawkins (1888), 109 NY 408 (17 NE 371).
It is highly unlikely that a defendant will always consult a psychiatrist before committing an act under an irresistible impulse and it is not reasonable to restrict subsequent psychiatric diagnosis by barring an essential history because of a lack of foresight by a person who would be required to see a psychiatrist before being seized by such an impulse. The Hawkins concept is not acceptable in the light of modern psychiatric techniques. The psychiatrist did testify that in November, 1963, when he first examined defendant, he found her to be schizophrenic with paranoid features. The frustration faced by the psychiatrist in attempting to arrive at a diagnosis without being permitted to consider the history of the patient is apparent throughout the record of this trial. He has been denied a vital psychiatric tool essential to a proper diagnosis of his patient’s mental condition. We believe that to deny counsel the opportunity to prepare a founda tion for a diagnosis by a psychiatrist by omitting any statement made to the psychiatrist by the patient is error. However, in the present case, we do not believe this particular error to be prejudicial to defendant’s right to a fair trial as the doctor was permitted in the presence of the jury to form an opinion based upon a hypothetical question composed of facts already elicited from other witnesses:
“Q. Now, assuming those facts only, do you have an opinion — do you have an opinion as to her mental condition on July 13, 1963? * * *
“A. Yes, I’d have an opinion.
“Q. What is that opinion, doctor?
“A. That she was mentally ill. I would not have a specific opinion regarding the absolute diagnosis, but that would be adequate evidence in my opinion that she would be mentally ill and severely so.
“Q. And would that condition bring about the acts that she’s accused of having performed? * * *
“A. I would like to say that the severity of the illness would make the alleged act a compatible product of it.”
We do not find that prejudice resulted to defendant on the issue, considering the present state of Michigan law.
We have seen that the trial court did not permit the psychiatrist to give his opinion as to defendant’s sanity as of July 13, 1963, unless counsel used a hypothetical question, including only the facts which had been presented to the court and facts which were before the jury at that particular time. G-CR 1963, 605, substantially limits the former rule that the nontreating physician is permitted only to answer a “hypothetical question”. Such questions are asked in order to limit the testimony of an expert who is testifying, and giving his opinion based on facts related to him by others. GCR 1963, 605 is expressly intended to make better nse of tbe testimony of an expert and not to bind him to an opinion of a single question composed of the facts already introduced into evidence by others. It remains within the discretion of the trial judge to use the hypothetical question to assist the court or jury in understanding the expert opinions.
Careful perusal and examination of the record does not show an abuse of discretion by the trial judge in requiring counsel to employ the hypothetical question. Again, we find error in the trial court’s refusal to permit the psychiatrist to discuss the history given to him by the patient, but we do not find it prejudicial for the psychiatrist did answer the hypothetical question as to defendant’s mental condition on July 13, 1963, by stating that in his opinion she was mentally ill, without consideration of the interview that he had with her.
The people called 2 police officers as their only witnesses on rebuttal. One police officer arrested the defendant and brought her to the police station and the other joined with the first in questioning the defendant.. The officers were called for the purpose of rebutting defendant’s testimony as to her insanity and to give their observations of defendant. The trial court permitted these policemen to testify over the repeated objections of defendant’s counsel who alleged that they only had a conversation with her for one hour and 10 minutes at a time when she was under arrest, handcuffed, disheveled, wet, and informed that her husband was dead. We are concerned with the admissibility of nonexpert opinion testimony.
The fundamental rule in the State of Michigan was first stated in the civil case of Beaubien v. Cicotte (1864), 12 Mich 459, 503, as follows:
“But, from the nature of things, no rule can he laid down declaring what amount of acquaintance, or what opportunities are necessary to enable an observer to be a witness. There are cases of insanity open to the slightest scrutiny while others defy the keenest search. But no testimony can be of any real value, unless it appears the witness had adequate means and opportunities for forming some conclusion.”
This principle was restated in the criminal case of People v. Zabijak (1938), 285 Mich 164, 185, wherein the Court states:
“A nonexpert witness who has had ample means to observe and form conclusions as to the mental condition of a person and who testifies to pertinent facts on which his conclusions are based may state his conclusions as to the insanity of a person.”
The Zabijak decision has been interpreted once by an equally divided Michigan Supreme Court in the case of People v. Hannum (1961), 362 Mich 660. The Court held that lay testimony which constituted opinion evidence as to the sanity of the defendant presented a question for the jury but reversal was not had on this ground. Pour justices concurred in the reversal, but they found that prejudicial error was also committed by the trial court in admitting the opinion testimony of the 3 nonexpert witnesses. In the Hannum Case, the trial court admitted the opinion testimony of the policemen over defendant’s objection because, in its view, the question of limited opportunities for observation of defendant by the witnesses went only to the weight to be given by the jury to the opinion testimony, and not to its admissibility. The trial court did the same in the present case in permitting the officers to testify, when in particular one officer could not answer counsel’s question, “Would you say that a normal person who had been told her husband was dead wonld be cool, calm and collected?” Defendant’s counsel immediately objected, but the court overruled him, saying, “The weight of his [the witness’] opinion would be taken into consideration by the jury.” The 4 justices who did not reverse on this ground in the Hannum Case agreed with the statement in the case of People v. Borgetto (1894), 99 Mich 336, 341, to wit:
“But there is a difference in the nature of the testimony requisite as bases for opinions in the two cases of sanity and insanity. The former is the normal condition; the latter, the abnormal. The latter is based upon unnatural conduct; the former may safely rest upon the absence of unnatural action or language. Once it is shown that the witness has a sufficient acquaintance under circumstances that give a reasonable opportunity for judging, and the testimony that he saw nothing unusual or abnormal is competent. What is required to show a sufficient opportunity depends upon circumstances which may properly move the judicial discretion, the testimony being more or less valuable as the circumstances are convincing.”
In order to determine whether the trial court abused its discretion in permitting the police officers to testify, we must determine whether there was sufficient basis for the court to determine that ample opportunity existed for the witnesses to form an opinion.
The time necessary to obtain enough facts for a reasonable opinion will vary according to the circumstances. A proper foundation was prepared when the police officers testified as to their experience with insane persons, the initial contact with defendant at the Wonder Bar, subsequent conversations with defendant, her appearance, her comments, and her emotional reaction to the news of her husband’s death. The trial court then deter mined that there was ample opportunity to form an opinion and permitted the officer to testify, noting that the jury could determine and weigh the validity of his opinion that the defendant appeared sane. We find no abuse of discretion by the court in finding ample opportunity for observation.
Defendant requested the trial court to instruct the jury that if they were to find her not guilty by reason of insanity, she would be confined in the State hospital for the insane, the request being denied. The Michigan statute required mandatory commitment upon a finding of insanity, at the time of this trial, and was found at CL 1948, § 766.15c (Stat Ann 1954 Rev § 28.933[3]), subsequently repealed by PA 1966, No 266.
Defendant argues that the “Lyles instruction” should have been given, this instruction being derived from the case of Lyles v. United States (1957), 103 App DC 22 (254 F2d 725), wherein an instruction was approved and required, unless the defendant does not want it, in the courts of the District of Columbia to the effect that if a defendant is found not guilty by reason of insanity, he will be committed to a mental hospital. The reasoning given is that a jury, although aware of what the results of a guilty or not guilty decision will be, does not know what will happen to a defendant if the verdict is not guilty by reason of insanity. We agree with the opinion of the Supreme Court of the State of Vermont in the ease of State v. Hood (1963), 123 Vt 273 (187 A2d 499, 11 ALR3d 732), that jurors are not this ill-informed and that the Lyles decision is certainly not binding on this Court. We do not require that such an instruction be given, and we do not find that the trial court has erred in refusing this request. See People v. Cole (1967), 8 Mich App 250.
Defendant also requested the trial court to make a charge based only upon second degree murder as that was the same charge as was set forth in the warrant and in the information, said request being refused, and the lesser offense of manslaughter also being included in the charge along with second degree murder. Defendant argues that if an accused is faced with the open charge of common law murder, the trial court may include all offenses thereunder, but where a specific charge of first- or second-degree murder is made, the court need not instruct the jury on the lesser offenses and, when the defendant objects to such lesser charge instructions, the court should respect his request.
We refer to CL 1948, § 768.32 (Stat Ann 1954 Rev § 28.1055):
“Upon an indictment for any offense, consisting of different degrees, as prescribed in this chapter, the jury may find the accused not guilty of the offense in the degree charged in the indictment and may find such accused person guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense.”
We do not find error in the trial court’s refusal to omit a charge as to manslaughter. As is stated in 2 Gillespie, Michigan Criminal Law and Procedure (2d ed), § 674, p 865:
“Where there is testimony under which the defendant may be convicted of an offense of a lesser degree than the principal offense, it is not error for the court to refuse to charge that the jurors must confine their deliberations to the principal charge and cannot convict the respondent of a lesser offense, but, where there is some evidence upon which a respondent may be convicted of a lesser offense, it is error for the court to limit the verdict to the greater offense.”
Were the trial court to have accepted defendant’s request and omitted the charge as to manslaughter, we may well have been forced to disagree with him and find that he had erred. See People v. Hamilton (1889), 76 Mich 212; People v. Milhem (1957), 350 Mich 497. The court must charge in relation to lesser degrees of an offense where there is evidence which would tend to support conviction of a lesser degree. We find evidence of manslaughter and do not hold that the trial court erred in requiring the jury to consider manslaughter.
We affirm the propriety of the conviction of Lupe Ruth Herrera. Although several errors have been noted, we do not find any of them to be of sufficient prejudice to Mrs. Herrera’s right to a fair trial to require a reversal. Her rights to a fair trial were carefully protected by the trial judge, her defense of temporary insanity was presented for the jury’s consideration by several witnesses, and the evidence supported the verdict of the jury. The trial court was required to make numerous rulings, and did so, based on existing Michigan law, and we do not find that defendant suffered prejudice where error existed. This trial was fair. It need not be perfect.
Affirmed.
McGregor, J., concurred with Fitzgerald, J.
CL 1948, 8 750.321 (Stat Ann 1954 Rev 8 28.5531.
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] |
Campbell, C. J.
William Smith made a will in 1871, and died in June, 1883, leaving a widow, without children, and several children by a former wife. His last marriage was in 1864. Just before, and without, so far as appears, the knowledge of his intended wife, he conveyed his farm to his children, but the deed, if previously delivered, was kept off from the record until about five weeks before his death, and he and his wife occupied it during the nearly twenty years of their married life, as a homestead.
By his will he left his wife $1,000, in lion of dower, and the residue to his children. It does not appear that he had any other land. After the estate was ready for distribution, there remained, beyond this -legacy and statutory allowances, $1,788. Of this the widow claimed and was allowed one-half, as in case of intestacy. John L. Smith appealed to the Wayne circuit, where her claim was disallowed, and she now comes into this Court to be restored to the probate allowance.
Iler claim is under sections 5824 and 5825 of Howell’s Statutes, being the amendatory act of 1S81, entitled “An act to restrict the disposition of personal property by last will.” That statute enacts in substance, that all testamentary disposals of personalty shall be subject to the limitations :
1. That if a testator leaves a wife surviving, the testamentary disposition shall be subject to her election to take the interest given by will, or to take, as in case of intestacy, up to $5,000, and half of an intestate share beyond that. In case there is no provision for her in the will, she is to have the same election.
2. If any special devise or bequest is made to her in lieu of any particular thing or particular interest to which she would be entitled in case of intestacy, her election to take either this special testamentary provision, or the thing in lieu of wlTich it is given, “shall not deprive the party electing, or any other person, of the right to leave the testamentary disposition of property in all other respects unaffected and unimpaired; and to have the benefit of any other provisions therein, the same as he or she would have had if this act had not been passed.”
This will disposed of personal property, and, so far as appears, of nothing else except by the residuary bequests to the children. The widow’s bequest was. very clearly a bequest of personalty. By the old law, if a widow elected to claim her dower, she lost, usually, all claim to personalty as well as realty devised or bequeathed. She was not entitled to -waive any provision of the will without waiving all, unless the will itself so provided. This statute came in to enlarge her rights by enabling her to elect as to personalty as well as realty. But there is nothing in this statute which gives her the right to claim a bequest of personalty, and, at the same time, claim an interest as by intestacy. If she claims a bequest of personalty, the will stands as to the other bequests. By the second clause of the statute it is provided that where she has an election between taking a specific thing and a bequest in lieu of it, such election shall not affect any other testamentary provision in favor of such party, or of any other person. But in the present case the only bequest made to her is the one in lieu of dower, and while she could take or not take that at her pleasure, she cannot take that bequest and claim anything else which is not bequeathed. The other testamentary clauses, which the statute says shall be left unaffected, are the residuary bequests to the children.
As the land conveyed in 1864, if that conveyance is valid, formed no part of her husband’s estate, the question whether the legacy in lieu of dower would affect her rights, if she had any, to complain of the secret conveyance, is not before us. The only question for us to decide is whether she can claim the legacy and, at the same time, share in personalty as by intestacy. In our opinion she cannot. As the question is a new one, and seems to have been dealt with on both sides on what we deem to be a misapprehension of the statute, we shall, in affirming the judgment of the circuit court, leave the parties to pay their own costs.
The other Justices concurred. | [
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Morse, J.
The bill of complaint in this case was filed to •establish complainant’s right to an alley in the property ■known as the “ Buchoz Block,” in Ann Arbor.
The Buchoz block consists of four stores fronting nearly west on Detroit street. The alley in question is about twelve feet wide, and is immediately north and adjoining the block, and extends east to the rear end of the lot upon which the-block is built.
The Buchoz block is located on the Kenneth-Davidson plat of subdivision of lot 3, in block No. 3, north of Huron, street, in range 6 east, in Ann Arbor. The lots in this block are eight by twelve rods. The Bent house property is located immediately south and adjoining the block. The Meuth lot-is located immediately north and adjoining the block.
Between the Bent property and the Buchoz block is a strip-of land ten feet wide, reaching the whole distance from Detroit sti-eet to the east end of the original lot. North of this strip, and adjoining it, is an alley platted three feet wide. This alley was platted for the use and benefit of the-lots composing the Buchoz block, and for no other purpose.
From April, 1860, until his death, in October, 1874, Louis-It. Buchoz owned, in fee simple, the Buchoz block, the Bent property, and the land now owned and occupied by the-defendant, Meuth.
In March, 1865, Louis R. Buchoz executed a mortgage upon the Bent property to his divorced wife, Caroline Buchoz,. “ with the privilege of a right of way, and of passing and repassing from Detroit street to the east end of said land,, over and along such alley or passage-way as may be provided for that purpose, by closing immediately after passing, and-keeping closed, sueli gates as may be placed in it, and not obstructing the alley.”
On the second day of January, 1868, Buchoz gave the complainant a mortgage covering the land described in the-mortgage to his wife, except the north eight feet of lot 2, and in addition thereto, embracing the Buchoz block, and the strip between said block and the Bent property, and two rods not contained in the mortgage to Caroline, being the east two rods in width from off the Bent property. No-right of way was granted, in terms, by this mortgage.
Complainant, at the time of filing her bill, owned the-property covered by these two mortgages, having acquired the same by foreclosure.
The defendant owns the land lying north and adjoining
the Buchoz block, by Buclioz’s administrator’s deed to A. J. Sawyer, April 19, 1882, and by conveyance from Sawyer to Alfred Buchoz, and from Alfred Buchoz to Anna L. Meuth, both of same date as deed to Sawyer. The description of the premises conveyed by these deeds is bounded upon the south by the north line of Davidson’s plat, and thereby including the land claimed as an alley by complainant.
The complainant does not claim a way of necessity. She puts her right to the use of this alleged alley upon the provision above quoted in the mortgage executed by Louis ft. Buchoz to his wife, Caroline.
The defendants claim that the alley or passage-way referred to in said mortgage is the ten-foot strip between the Bent property and the Buchoz block.
A careful study of the record, and scrutiny of the maps, deeds, and mortgages accompanying it, satisfy us that the defendants’ claim is the correct one.
It is necessary to examine into the origin, location, and use of the alley in which the complainant asserts rights under the mortgage to Caroline Buchoz, to determine whether the reference therein is to this alley or to another way. In the first place, the alley in question was never platted, as appears from the records in the office of the register of deeds of Washtenaw county. The first plat we know of embracing the land forming this alley was one dividing block 3 into lots, the lots concerned in this litigation being numbered from the south to the north as 2, 3, 4; the Bent property being on the south third of lot 3, with eight feet from off the north end of lot 2; the Buchoz block and the Meuth property being on lot ,3. Then Kenneth Davidson subdivided the portion of lot 3 known in this controversy as the “ Buchoz Block,” into lots; — 1, 2, 3, 4, and 9 fronting on Detroit street, running, from the north, southwesterly, in the order named. Back of lot 1, and running the whole southeasterly and easterly length of lot 3 of 'the block, was lot 5; and back of lot 2 of the subdivision was lot 6; and back of lot 3 was lot 7; and back of lot 4 was lot 8. Along the southerly line of lots 9, 4, 8, 7 and 6, he platted an alley about three feet wide. The north line of lots 1 and 5 was the south line of what is now claimed to be the alley in question here.
March 1, 1850, Davidson deeded to Charles T. Wilmot lots 1 and 5 of his subdivision, in which deed no mention is made of any alley or passage-way on the north side of said lots; but Wilmot is granted therein “the right or privilege of passing and repassing with wagons, teams, or otherwise, from Detroit street along the alley on the south side of subdivisions Nos. 6, 7, 8, and 9, to said subdivision No. 5, and back, until said Wilmot, his heirs or assigns, can or shall obtain a right of way to said subdivision No. 5, north of said subdivision No. 1; but this right of using said alley is to cease and determine whenever such other right of way shall have been obtained.”
In order to use the privilege thus granted, Wilmot must, of necessity, have used the strip of land between the Buchoz block and the Bent property, which is claimed by defendants to be the passage-way granted in the Caroline Buchoz mortgage.
Wilmot never acquired any right of way north of subdivisions 1 and 5; and June 18,1851, deeded said subdivisions, with other lands, to Louis R. Buchoz, who at that time owned the Meutli property and other lands north of said subdivisions.
The alley in controversy here was first created by Louis R. Buchoz in a deed to Enoch Terhune, dated October 22,1851, conveying lands north of and adjoining Davidson’s subdivision, in which he reserved and excepted from said deed the “ equal undivided half of the most southerly twelve feet in width of the land above conveyed, which strip of land twelve feet wide is to extend from Detroit street to the east line of said lot 3, along, and adjoining on the north, the north line of said subdivisions 1 and 5; and to be leapt open and free from, obstructions, and used by the parties to these presents, thevr heirs and assigns, in common, for am, alley P It will be noticed that this reservation of this twelve feet for an alley was not a public one, and there is no claim anywhere of any dedication to the public of this alley. It simply was to remain an alley as between the parties to this deed and their heirs and assigns.
Terhune gave a mortgage back, upon the premises so deeded to him, to Buchoz; and by the foreclosure of the same, April 28, 1860, Buchoz became again the owner thereof ; thus placing the title to the ground covered by this alley in Buchoz alone, no other person having any rights therein.
Buchoz acquired the Bent property June 2, 1851, and the balance of Davidson’s subdivision not deeded to "Wilmot, December 14, 1850;'and from 1860 to his death, in 1874, he was the owner of the Bent property, the Buchoz block, the strip between the Bent property and the Buchoz block, this alley in dispute in this case, and the Meuth lands.
During this ownership, and the occupancy and use of these premises by Buchoz and his tenants, the testimony shows that this alley was used by Buchoz and his tenants, and sometimes by the public with the consent and permission of Buchoz; but no adverse user is shown by any one.
The question now arises, what passage-way did he refer to in his mortgage to his divorced wife of date March 31,1865 ? The use for which this passage-way was designed unquestionably was for the benefit of the buildings then standing upon the Bent property, which were a house and brick barn. The house was near the northern line of said property, and a little to the west of the center of the premises. The barn was nearly to the eastern end of the property, and in the southeast corner of the same. The right of way was granted from Detroit street to the east end of said land, along “such alley or passage-way as may he provided for that purpose.”
The natural reading of the grant would indicate that this passage-way would run directly, the shortest way, from Detroit street east to the east end of the lot, which would be the ten-foot strip claimed by defendants. This would be, with the alley platted on the subdivision, about thirteen feet wide, until the line of lot 5 was reached, upon which there were no buildings or anything else to prevent passage of wagons. It seems absurd to claim that the alley meant was to commence on the north line of subdivision 1, and run along the north line of that and subdivision 5, and then go south across the latter subdivision to this barn, when a much shorter cut would go from Detroit street directly east to it.
The language of the grant also supports defendants’ claim. The alley in controversy was in use then by Buchoz and his tenants, and had been since its creation, fourteen years before. Why was not this alley, the width and length of which had already been determined by the Terhune deed, and the use under it, particularly mentioned and described, or reference made to it, in this mortgage ?
The mortgage does not call for an alley or passage-way already in existence and in use, but one “ as may be provided for that purpose.”
It appears clear ,to me that no right of way in this alley was granted, or intended to be granted, in the mortgage to Caroline Buchoz.
But it is claimed that by a reformation of the decree in the suit to foreclose this mortgage in the Supreme Court, the grant was extended and enlarged so as to cover this alley by the addition óf the words “is or,” so that the'clause now reads: “ Such alley or passage-way as \is or] may be provided,” etc.
In my opinion, this action of the Supreme Court cannot alter the rights of the parties to this controversy, nor add to the scope of the grant in the original mortgage. In the first place, no reformation of the description of this alley or of the premises was asked in the bill of complaint of Caroline Buchoz. She filed a simple foreclosure bill, making the complainant here, Mrs. Morgan, a defendant, as a subsequent purchaser or incumbrancer; and it was taken as confessed by the heirs of Louis K. Buchoz, who had no notice of any intended change in the words of the grant óf a passage-way.
The decree in the circuit followed the mortgage in its description. No amendment was made to the bill. Therefore the defendants, who claim under the heirs of Buchoz, or his administrator, could not be concluded by a change of this kind made under these circumstances. • No court had any power to do it.
Secondly, the decree, as modified, reformed, and enlarged in the Supreme Court, was altered, as it appears from the record, by stipulation entered into by Mrs. Morgan and Mrs. Buchoz, through their respective attorneys. These parties had no power to stipulate away the rights of Buchoz’s heirs or legal representatives, or to enlarge or alter the grant contained in the mortgage, so as to confer upon either Mrs. Buchoz or Mrs. Morgan any greater rights, as against Buchoz. and his heirs, than he conveyed in the instrument originally.
Not satisfied with trying to gain a use of this alley by this-stipulation in the Supreme Court, to make the right doubly sure, the commissioner’s deed upon a sale under this decree goes further than the decree, and grants to Mrs. Morgan this right of passage-way specifically to this barn, which building* was not referred to in connection with this right of way in. the mortgage, or either the decree of the circuit or supreme courts. This deed, however, cannot alter the grant in the mortgage, although it would seem to have been drawn with such intention. The complainant’s rights must rest, as far as this grant in the mortgage is concerned, upon its terms, as executed by Louis B. Buchoz, and under it she took no interest or right in this alley.
The complainant’s counsel insists further, however, that such was the condition of this whole property at the time of Buchoz’s mortgage to -her, by which she has acquired the Buchoz block, that the remaining estate of Buchoz became servient to her estate, which was. the dominant tenement • that she is entitled to the use of the alley, which was a benefit to the Buchoz block, and apparent at the time her mortgage was given. In other words, the alley was in existence and in use when her mortgage was executed, and was of benefit or advantage to the buildings, or some of them, composing the block; and therefore, having acquired the title to said block, under said mortgage, she is entitled to such benefit and advantage permanently, as a privilege and appurtenance to her property thus acquired. The complainant’s counsel lias ably and forcibly presented. her case in tliis respect; but we are unable to agree with him in his reasoning, or in his application of the law to the undisputed facts in tliis case.
There is no doubt but by the deed from Buchoz to Terhime the land now known as the “Meuth property,” and owned by the defendants, was made servient to the Buchoz block, and burdened with an easement, created by the exception and reservation in said deed, for the benefit and advantage of the block, then owned by Buchoz, in the alley, the use of which was reserved in the deed. But it is equally certain, from the authorities, that when the title of both premises was united, in 1860, in Buchoz, the easement was merged and extinguished. Buchoz then owned the whole property, and he could not have an easement in his own land, or appurtenant to his own land. After such merger, it was a way of his own, for his own convenience, which he might alter or close up at his own pleasure. The dominant and servient tenements were unified; and the question, arises whether, by the conveyance to complainant and consequent severance of the ownership of the dominant tenement, this alley, or right of way, passed by the general words, “ together witli the hereditaments and appurtenances thereunto belonging, or in anywise appertaining.” This depends upon the nature of the easement. This alley was created for a passageway, and nothing else. The only benefit or advantage claimed for it is that of a right of way. It is therefore a discontinuous easement; — one the use of which can only be liad by the interference of man. It is not like a drain or sewer, which are used continually without the intervention of man. Continuous easements pass, on the severance of the two tenements, as appurtenances, but a right of way does not, unless the grantor in the conveyance uses language sufficient to create the easement de novo, or because its use is absolutely necessary to the enjoyment of the premises conveyed. All the authorities cited by the counsel for complainant are cases of continuous easements, or discontinuous easements without which the premises could not he used for the purposes granted. They do not apply here.
It is admitted that complainant cannot claim the use of this alley as a way by necessity. She can reach the rear of her buildings in the Buehoz block, and all her property, from Detroit street, by a passage-way over her own lands. This alley would be convenient for her, but it is not necessary. From the testimony, it plainly appears that its continuance, for the last few years before the defendants closed it, was a nuisance, not alone to the defendants, but to all decent people in the neighborhood, because of the character and habits of the people who resorted to and used it at night. There is no good purpose to be served by re-opening it, nor is it necessary to the free or full enjoyment of complainant’s property. And plainly, under the authorities, she cannot claim it as a matter of right. The use of it to her did not pass by the general words above quoted in her mortgage: Simmons v. Cloonan, 81 N. Y. 566; Lampman v. Milks, 21 N. Y. 516; Parsons v. Johnson, 68 N. Y. 62; Grant v. Chase, 17 Mass. 443; Whalley v. Tompson, 1 Bos. & P. 371-376; Scott v. Palms, 48 Mich. 505; Fetters v. Humphreys, 19 N. J. Eq. 471; Washb. Easem. (3d Ed.) 650, 652.
The complainant also avers in her bill that the inclination or surface of her premises is such that the surface water therefrom necessarily runs into said alley, and must and should be allowed to pass freely around the easterly corner of the Buehoz block into said alley; and claims a natural passage-way or easement for such surface water to flow from her lands into and through said alley, as through a drain.
"We find no warrant in the evidence for this claim. The testimony shows that before the building of the Buehoz block the-surface water naturally ran from the east to the west, crossing Detroit street about midway of the block; and at the time of the building of the block an arrangement was made between the owners of these lands that the water was to be taken to the south end of the Buehoz»block, and run off through the alley platted by Davidson. The water did not naturally run into this alley. The complainant has no right to the use of it as a drain by express'grant. Nor has she any right by prescription. It is true that since the block has been built, by the changing of the surface of the ground, the water has run off more or less through this alley. But the complainant has not owned the property long enough to gain a prescriptive right. There could be no easement for the flow of this water into this alley from 1860 to the date of her foreclosure of this mortgage, while Buchoz or his heirs owned both the block and the alley. Buchoz, while such owner, had the right to run the water off from his premises wherever he saw fit, as long as he did not injure his neighbors thereby. He could have, however, no easement against himself, as heretofore shown: Washb. Easem. (3d Ed.) 640; Ang. Water Courses, § 191.
Note. — A plat of the premises, furnished with the defendants’ hrief, < will he found opposite page 247. — Reporter.
No drain or ditch, or any other way, has ever been laid or built into or through this alley for the benefit of the Buchoz block, and the fact that during Buchoz’s ownership the water was permitted to flow over the surface of the ground without any artificial channel, into the alley, and through it, cannot be made the basis of any prescriptive right in one who was then a stranger to the premises. The complainant’s rights by user could not commence until she acquired title to the block, and enjoyed this way for the water adversely. At the time her mortgage was executed, the title of both parcels being in Buchoz, no easement existed ; and she therefore did not acquire it as an appurtenance. Nor is it shown that she is entitled to this flowage of water by necessity.
The decree of the court below must be affirmed, with costs of both courts.
The other Justices concurred. | [
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] |
Moore, J.
Prior to July 28, 1898, the defendant had caused plans to be prepared, and entered upon the construction of a theater building on Monroe avenue, Detroit. Six different contracts were made between defendant and others for the construction of different portions of the work, which contracts were similar in form and conditions to a contract entered into between him and the' plaintiffs on the 28th of July, 1898. Contracts for the masonwork, the ironwork, and some other portions of the work were made before the contract with the plaintiffs was made. The material portions of the contract are as follows:
“John Scott & Co.,
“Architects,
“ Detroit, Mich.
“This agreement, made the twenty-eighth day of July, in the year one thousand eight hundred and ninety-eight, by and between Teakle & Golden, of the city of Detroit, county of Wayne, and State of Michigan, parties of the first part (hereinafter designated the ‘contractors’), and James H. Moore, of the city of Detroit, county of Wayne, and State of Michigan, party of the second part (hereinafter designated the‘owner’), * * *.
“The contractors shall and will well and sufficiently perform and finish, under the direction and to the satisfaction of John Scott & Co.> architects (acting as agents of said owner), all the work included in the carpenter and joiner work and hardware of a theater building to be erected on the north side of Monroe avenue, between Campus Martius and Farmer St., in the city of Detroit, county of Wayne, and State of Michigan, agreeably to the drawings and specifications made by said architects (copies of which have been delivered to the contractors), and to the dimensions and explanations thereon, therein, and herein contained, according to the true intent and meaning of said drawings and specifications and of these presents, including all labor and materials incident thereto, and shall provide all scaffolding, implements, and cartage necessary for the due performance of the said work.
“Should it appear that the work hereby agreed upon and intended to be done, or any of the matters relative thereto, are not sufficiently detailed or explained on the said drawings or in the said specifications, the contractors shall apply to the architects for such further drawings or explanations as may be necessary, and shall conform to the same as part of this contract, so far as they may be consistent with the original drawings; and, in event of any doubt or question arising respecting the true meaning of the drawings or specifications, reference shall be made to the architects, whose decision thereon shall be final and conclusive. It is mutually understood and agreed that all drawings, plans, and specifications are and shall remain the property of the architects.
“ Should any alterations be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architects, and the sum herein agreed to be paid for the work according to the original specifications shall be increased or diminished, as the case may be. * * *
“The contractors shall and will proceed with the said work, and every part and detail thereof, in a prompt and diligent manner, and shall and will wholly finish the said work according to the said drawings and specifications, and this contract, on or before the first day of October, in the year one thousand eight hundred and ninety-eight, and, in default thereof, the contractors shall pay to the owner —■—■ dollars for every day thereafter that the said work shall remain unfinished, as and for liquidated damages.
“Should the contractors be obstructed or delayed in the prosecution or completion of the work by the neglect, delay, or default of any other contractor, or by any alteration that may be required in the said work, or by any damage which may happen thereto by fire, or by the unusual action of the elements, or by the abandonment of the work by the employés through no default of the contractors, then there shall be an allowance of additional time beyond the date set for the completion of said work. * * *
“The contractors shall make no claim for additional work unless the same shall be done in pursuance of an order from the architects, and notice of all claims shall be made to the architects in writing within ten days of the beginning of such work. * * *
“And it is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractors for said work and materials shall be two thousand and sixty-two ($2,062) dollars, subject to additions or deductions on account of alterations as hereinbefore provided, and that such sum shall be paid in current funds by the owner to the contractors in installments as follows: From time to time as the work progresses, reserving 10 per cent.; it being understood that the final payment shall be made within ten (10) days after this contract is completely finished: Provided, that in each of the said cases the architects shall certify in writing that all the work upon the performance of which the payment is to become due has been done to their satisfaction. * * *
“And the said owner hereby promises and agrees with the said contractors to employ, and does hereby employ, them to provide the materials and to do the said work according to the terms and conditions herein contained and referred to, for the price aforesaid, and hereby contracts to pay the same at the time, in the manner, and upon the conditions above set forth.”
Attached to this contract were specifications dated July 9, 1898, entitled “Carpenter Specifications,” etc. Before the contract had been made, “general specifications” had been furnished to all the contractors, to enable them to make their bids. One of the conditions attached to the general specifications reads:
“The owner and architects shall have full power to make any alterations during the progress of the work which they may deem necessary or advisable, and such alterations shall not affect or make void the contract.
“No claim for extra work shall be considered unless the price for the same shall have been agreed upon in writing between the owner and architects prior to the commencement of the same. In the case of work being omitted, a deduction shall be made from the amount of the contract at the same rate as provided in the contract for similar work.”
No such condition was attached to the “carpenter specifications.”
The plaintiffs had done a small amount of work before the contract was entered into. After the contract was made, they entered upon its performance. The various contractors were to erect such scaffolding as their work made necessary. It is the claim of plaintiffs that the work which should have been done prior to their work was delayed; that, for the purpose of hastening this work, they were requested by the architect to build a large scaffold, which could be used by the other contractors, but which was not necessary to enable plaintiffs to perform their contract; and, in reply to their inquiry as to who would pay for it, they were assured that Mr. Moore would pay for it. The testimony of the architect does not differ materially from the testimony of the plaintiffs. Among other things, he testified:
“ Q. Did you have any authority from Mr. Wiggins or Mr. Moore to order a scaffold there ? (Objected to as incompetent, and exception noted.)
“A. I had no special — no authority from them.
“ Q. Was the scaffold a part of the plans and specifications ?
“A. The scaffold was necessary for the carrying out of the work.
“ Q. Was it a part of the plans and specifications ?
“A. The scaffold was necessary to carry out portions of the work, and in that way would be part of the plans and specifications.
“ Q. Mr. Scott, the contract entered into by the different parties provided that the scaffold should be furnished and provided by the contractors, did it not ?
“A. Yes, sir.
“ Q. And no expense whatever was to be fixed upon the owner ?
“Mr. Lucking: Objected to. As far as that is concerned, part of the contracts had never been let at this time that they undertake to charge part of this to.
“ The Court: You heard the testimony of Mr. Golden on that subject as to the general order. Did you give a general order to build the scaffold for the expedition of the building ?
“A. Yes, sir. Well, I gave the order to build the scaffold; yes, sir.
“ Q. Did you have any order from Mr. Wiggins or Mr. Moore to do that ?
“A. No, sir; not at that time.
“ Q. Did you state to Mr. Teakle or Mr. Golden, at the time they were building this scaffold, that it was to be paid for by the other contractors ?
“A. I stated to Mr. Golden that I wanted the scaffold built, and that the cost would be charged up against the different contractors. That is the sum and substance of what I said to him, as far as I remember. I may have told him that I would see that it was deducted from them out of their contract price. I presume I may have done so, but I do not remember exactly our exact words. I did not have any consent in writing from the owner to order that work. * * *
“ Q. Did you, in your judgment, consider it a good move to build that scaffold to hurry the construction ? (Objected to on the ground that he built the scaffold, according to his own statement, for the contractors. Objection overruled. Exception for defendant.)
“A. Yes, sir. In this certificate it is stated that the accounts were to be charged to certain contractors, and to be deducted from their contracts. That was my understanding with the contractors, that they were to pay their share of it, and I was to deduct it from their contracts, and pay it to Teakle & Golden.
“ Q. And you, of course, were acting for Mr. Moore ?
“A. I was architect of the building.
“ Q. Well, you were acting for Mr. Moore in that respect? Nobody else could have deducted it out of their contracts, could they ?
“A. No. I never told Teakle & Golden that they would have to look to those contractors for their pay. I do not remember telling Mr. Golden whom he was to get his pay from. I know I ordered the work. I do not remember that there was any question raised about the pay part of it in the beginning. I intended to deduct it from the contracts ; that Mr. Moore should deduct it from the contracts.
‘ ‘ Q. And Mr. Moore pay it to Teakle & Golden; isn’t that so ?
“A. Well, yes; that would be the way that I should do it. Mr. Thompson agreed with me to allow me to deduct his share out of his account. He had charge of the ironwork. Mr. Stapleton agreed to pay, as plasterer, a pro rata portion. They all agreed to that. The pro rata would be fixed by general agreement among all the contractors. * * * In making the arrangement for this scaffold as general superintendent of the building, I felt that the owner would not lose anything in that way if I took the total amount of it out of certain contracts, and paid it to the other people; and, if the building had gone along without the disaster, there probably never would have been any trouble about it.
“ Q. And, as general superintendent over all those contractors, you felt it was fully within your powers to do that, didn’t you ?
“A. Yes, I felt I had authority to do it.”
The plaintiffs entered upon the construction of this scaffold. On the 5th of November, 1898, the roof of the building fell. The record does not disclose the extent of the injury, or whether all the work performed by the plaintiffs was destroyed or not. After the roof fell, the original architects did no more work upon the building, only to help take care of the property for three or four weeks thereafter. A new architect was put in charge. The effect of the falling of the building was to make it impossible for the plaintiffs to complete their contract in the fall. Instead of the defendant going on with the completion of the building, a company was formed, known as the “Wonderland Company, Limited.” What the relations of Mr. Moore were to this company does not appear. After the building fell, an itemized statement of account was made, and presented to the original architects, who indorsed it:
“The above work, amounting to $1,237.82, was performed in accordance with the plans and specifications on Wonderland Building up to November 4th, 1898. The amount for scaffold, $684.90, is to be charged to the Peninsular Engineering Co., Alphonse De Mann, W. S. Staple-ton, Electric Wire & Repair Co., and Wm. Wright Co., and deducted from their contracts.”
Demand was made upon the defendant, who refused to pay the account, except $280. In the meantime building material had increased in price. The following notice was sent:
“New Wonderland Theatre,
“Detroit, Mich.
“The Wonderland Co. (Limited),
‘ ‘ Proprietors.
“Detroit, Mich, July 18, 1899.
“Messrs. Teakle & Golden,
“ Contractors.
“ Gentlemen: Referring to the statement of your Mr. Teakle, made to me some days ago, that unless you were paid for or guaranteed the payment for the scaffolding originally built by you in the Wonderland Theatre Building, you would not go on with your contract for the carpenter work on said building, I am instructed by the Wonderland Co., Ltd., to notify you that they will not •pay for or guarantee the payment for said scaffold, and, assuming that your decision in the matter was final, to notify you that, unless you signify your intention in writing to go on with said work within 24 hours from receipt of this, they will make arrangements with some other party to complete your contract.
‘ ‘ Sincerely yours,
“ J. M. Wood,
“Architect.”
This suit was brought. After considerable testimony was put in by the plaintiffs, the following admission was made in open court:
“We admit that the scaffold, as charged for in accordance with the bill, is $684.91; that the amount of work performed under the contract, according to the plaintiffs’ charges, amounts to $316.16; and that the balance, $284.26 worth of work, was done outside of the contract, and outside of the scaffold, of course, for which last amount we are liable. The other two amounts we contest.”
Several witnesses were sworn in defense. It is not made to appear very clearly what caused the roof to fall. It was stated on the cross-examination by Col. Wood:
“I looked over the ruins with a view to ascertaining the cause of the fall of the roof. I studied it as an expert.
“ Q. Will you state to the jury the cause of the fall of the roof ? (Objected to as incompetent and immaterial. Exception noted.)
“A. I stated at the inquest that it was my belief that the fall of the roof was due to improper design in the construction of the trusses, and the carelessness in the supervision of the details. That was very apparent.”
The record does not show that any requests to charge were presented to the trial judge. He was of the opinion that, under the facts disclosed by the record, the plaintiffs were entitled to recover the full amount of their claim. The case is brought here by writ of error.
It is claimed that, as each contractor had agi’eed to furnish his own scaffolding, Mr. Scott was not authorized to make the contract he did. We cannot agree with counsel. Scott & Co. were the supervising architects. They were described in all the contracts as “acting as agents of ■said owner.” The plaintiffs’ contract provided that their work should be completed by October 1st. It is evident from the situation when the roof fell that the work necessary to be done before the carpenter work could be completed was delayed. The architects were acting for the ■owner in all the contracts. It is perfectly apparent that if, instead of each contractor putting up and taking down such scaffolding as he might need, a scaffold should be built that would answer the needs of all the contractors, it would save expense and expedite the work. We think the architects, for the purpose of accomplishing this, might arrange that the carpenters should put up this scaffold, that Mr. Moore should pay them, and, by agreement with the other contractors, the cost should be prorated among them, and deducted from the amount to be paid upon their several contracts. Had the roof not fallen, just this would have been done, and no question raised.
Defendant claims, where a building in process of erection is destroyed without the fault of either the owner or contractor, neither party can recover from the other on a nonapportionable contract, and that this is a nonapportionable contract; citing Fildew v. Besley, 42 Mich. 100 (3 N. W. 278, 36 Am. Rep. 433), and a great many other cases. The authorities are not in harmony with the contention of counsel. See Cleary v. Sohier, 120 Mass. 210; Lord v. Wheeler, 1 Gray, 282; Butterfield v. Byron, 153 Mass. 522 (27 N. E. 667, 12 L. R. A. 571, 25 Am. St. Rep. 654); Clark v. Busse, 82 Ill. 515; Rawson v. Clark, 70 Ill. 656; Schwartz v. Saunders, 46 Ill. 18; Cook v. McCabe, 53 Wis. 250 (10 N. W. 507, 40 Am. Rep. 765); Clark v. Franklin, 7 Leigh, 1; Hollis v. Chapman, 36 Tex. 1. We do not think it necessary upon this record to try to harmonize them or to decide between them. It is believed the cases cited may be distinguished from the case at bar. In all of them it was admitted or proven that the building was totally destroyed without the fault of the owner. In Brumby v. Smith, 3 Ala. 123, great stress is laid upon the fact that payment was not to be made until the work was completed, and, as the work was never completed, payment did not become due under the contract. In the case of Siegel, Cooper & Co. v. Eaton & Prince Co., 165 Ill 550 (46 N. E. 449), it appeared that the premises were totally destroyed by fire without the fault of the owner. In that case, as to the work upon which a payment was due at the time of the fire, plaintiff was allowed to recover. As to the balance the court held that, as payment.was not to be made until the elevator was put in running order, and as it was never put in running order, that payment did not become due by the terms of the contract.
In the case of Fildew v. Besley, 42 Mich. 100 (3 N. W. 278, 36 Am. Rep. 433), the agreement was for a completed building, for which was to be paid $250. In disposing of the case the court said:
“ It certainly does not clearly appear but that the contractors might yet go on and substantially perform the agreement on their part. This addition formed a complete building of and by itself. True, it was to be attached in part to the old, but not in so essential a manner as to prevent the erection thereof without the support which it would otherwise have derived therefrom. This work could have been carried on and fully performed without any reference to the main building in any important particular. A removal of the main building by the owner thereof would have excused the contractors from connecting this addition therewith, but would not have prevented their recovering the full contract price had they in all other respects complied with their agreement.”
In the case at bar plaintiffs were not to make a completed building; they were to construct simply a portion of it. It is not made to appear that the building was wholly destroyed, and, as to the damage which was done, that it was without the fault of defendant. While very little proof was offered upon that subject, what appears is to the effect that the casualty was caused by improper designs and careless supervision by the persons designated in the contract as “acting as agents of said owner.” The contract also provides that payment for the work shall be made from time to time as the work progresses, reserving 10 per cent., the final payment to be made within 10 days after the contract is completely finished. Take it altogether, it is a very different case from those cited by counsel.
It is said, as them was no agreement made in writing between the owner and the architects for the price of the extra work prior to its commencement, as provided in the condition attached to the general specifications, there can be no recovery. That condition was not attached to the “carpenter specifications,” which were attached to the contract for the guidance of the plaintiffs, and we do not think it was any part of the contract.
It is also urged that, as there was no notice of plaintiffs' claim given to the architects within 10 days of the beginning of the extra work, there can be no recovery. We do not so construe the contract. It provides that the contractors shall make no claim for additional work unless the same shall be done in pursuance of an order from the architects, but it does not make it a prerequisite to the validity of such a claim that notice in writing of the claim shall be given to the architects within 10 days of the-beginning of such work. In this case it clearly appears, that the order for the work was given by the architect; that he knew of its commencement and progress; that he afterwards certified that it was performed in accordance with the plans and specifications. It is not made to appear that any error was committed for which the case ought to be reversed.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Moore, J.
This case has. been here before. It is reported in 126 Mich. 476 (85 N. W. 1103). A reference to that case will make a long statement of facts unnecessary here. Upon the second trial, after Mr. Bellows had been sworn as a witness, the trial judge, upon motion, directed a verdict for defendant because of the nonjoinder of Mr. Butler as a plaintiff. The case is brought here by writ of error.
The action of the circuit judge seems to have been based upon the fact that the testimony of Mr. Bellows indicated that Mr. Butler was interested in the proceeds of any judgment which may be obtained in favor of the plaintiffs in this case. The record discloses that the plaintiffs had a quantity of logs in the river; that Butler also had a quantity of logs in the stream; that an arrangement was made by which the plaintiffs were to drive Butler’s logs as well as their own, and that in compensation therefor Butler was to pay them such a share of the costs and expenses of driving all the logs as would make a pro rata share, taking into account the quantity of logs owned by each and the distance they were driven. The plaintiffs were to make no profit nor to suffer any loss as the result of driving the logs. It was their claim that the expenses of driving the logs were increased by reason of the work they had to do on defendant’s logs, and it would follow that, if they recovered from the defendant compensation for that increased expense, it would diminish the total expense of driving the logs belonging to Butler and the plaintiffs, and that the cost to Butler of having his logs driven would also be less than it would be if plaintiffs did not recover from defendant for the expenses occasioned by its logs.
Butler had nothing to do with the actual driving of the logs, and nothing to do with the result of this litigation, except as stated above. The enterprise of driving the logs was not undertaken for the purpose of earning a profit, and was to be conducted by the plaintiffs at its actual cost. We think the circuit judge was wrong in holding as a matter of law that plaintiffs and Mr. Butler were partners. See 17 Am. & Eng. Enc. Law (1st Ed.), pp. 828-830; 1 Lindl. Partn. (2d Ed.) pp. 1-5; Morrison v. Cole, 30 Mich. 102; Beecher v. Bush, 45 Mich. 188 (7 N. W. 785, 40 Am. Rep. 465); Canton Bridge Co. v. City of Eaton Rapids, 107 Mich. 614 (65 N. W. 761); Williams v. Rogers, 110 Mich. 418 (68 N. W. 240); Fair v. Martin, 125 Mich. 612 (85 N. W. 2).
The other questions relate to the exclusion of evidence. In order to account for the large amount of work required to run the logs of defendant, it was sought to show that hard-wood logs put in the river early in the spring will not float readily, and that because of-this a custom has grown up of not putting them into the river early in the spring, but to wait until the soft-wood logs have passed down. We think this was proper testimony, and should have been admitted.
The court also excluded evidence as to what part of the logs of defendant the plaintiffs had to run and drive in order to bring their logs down. We think it was competent to show fully to the jury what the situation was, and what was done, so that the jury should have all the facts before them in deciding the question of damages, if they got to that question. See Bellows v. Crane Lumber Co., 126 Mich. 476 (85 N. W. 1103).
Judgment is reversed, and new trial ordered.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Montgomery, J.
The relator brought an action in trespass against Strathearn Hendrie on the 19th of April, 1902. A declaration was filed, alleging the trespass to have been committed in the county of Oakland, and issue joined. The defendant made an application to the circuit court for the county of Wayne for a change of venue to the county of Oakland. This motion was heard before respondent, and granted, on the ground that the statute (section 10217, 3 Comp. Laws) required sucb action upon showing that the trespass was committed in the county of Oakland; and the question presented by this application is whether the provisions of this section authorizing a change of venue are mandatory or permissive.
Prior to the enactment of this, section, in its original form in 1861, actions for trespass on land were local, and were brought only in the county where the trespass was alleged to have been committed. 3 Comp. Laws, § 10216; Haywood v. Johnson, 41 Mich. 604 (2 N. W. 926). In 1861, however, an act was passed providing, in effect, that “all cases of trespass on lands, and all cases of trespass upon the case for direct or consequential damages on account of injury to personal property, when the defendant is not an actual resident of the county in which such lands are situate, * * * may be prosecuted and maintained at law in any county where such defendant may be found.” This continued to be the state of the law until 1883, when by an amendment a proviso was annexed to this provision of the statute, which is now the proviso embodied in section 10217, which reads as follows:
“Provided, that, whenever any such cause shall be pending in any circuit court other than in the county where such trespass or such injury was committed, said court may, on the application of either the plaintiff or defendant therein, accompanied by an affidavit stating specifically where such lands are situate, or where such personal property was situated at the time of committing such injury, change the venue of and certify and remove said cause to the circuit court of the county where such lands are situate, or where such personal property was situated at the time of committing of such injury, and direct the issue to be there tried, and shall make all necessary x’ules and orders for the removal of said cause, and all matters relating thereto; and the circuit court to which said cause shall be so removed shall proceed to hear and determine the same, and execution may thereupon be had, in the same manner as if the same had been originally prosecuted in said court.”
It will be noted that the language of the statute is that, upon an application of either the plaintiff or defendant, the court may change the venue, and certify and remove the cause to the circuit court for the county where the lands are situate, and direct the issue to be there tried, and shall make all necessary rules and orders for the removal of the cause, and all matters relating thereto. It is the contention of the relator that the word “may” implies that the authority is permissive. While conceding that the word “may” is often held to be mandatory, it is argued that, as used in this statute, it should be held permissive.
We think otherwise. It will be noted that the word “shall” is employed when dealing with the requirement that orders and rules for the removal of the cause shall be made. But, more than this, the section provides in terms by what application and upon what showing the court may act. There is no implication that a counter showing is intended or to be permitted, and we think the legislative intent that, upon this showing being made, a transfer of the cause shall follow, is clear.
It has been held that, under section 10105 et seq., the applicant, upon showing the facts stated in the statute, is entitled of right to have the cause transferred. That statute provides by the first section that upon showing the relationship of the circuit judge, or his interest as a party, the cause may be transferred to some other circuit. It provides in the second section that the party desiring to have the cause transferred may apply to the circuit court commissioner; and by section 4 that, being satisfied of the disqualification of the circuit judge, the commissioner shall grant an order of transfer to some other county. The statute is amplified somewhat more than is that under discussion, but this proviso is that the court may, on the application of either plaintiff or defendant, transfer the cause; and, after stating what such application shall contain, it is provided that the court shall make the necessary rules and orders for the removal of the cause. The former statute has been twice before this court, and has been held to be mandatory. Pack v. Alcona Circuit Judge, 74 Mich. 28 (41 N. W. 850); Grostick v. Railroad Co., 96 Mich. 495 (56 N. W. 24). We think the proviso of section 10217 is equally so.
A question of practice is raised in the brief of counsel for respondent, which would be sufficient to dispose of the case were the point insisted upon. No application was made to the circuit judge to vacate the order in question. Proper practice requires that, before an application is made to this court, such application shall be made. However, as the case is fully briefed, and presents a question of some importance, we have thought better to dispose of it on its merits. '
The application will be denied.
Hooker, C. J., Moore and Grant, JJ., concurred. | [
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Grant, J.
(after stating the facts). 1. The circuit judge saw the witnesses, whose testimony in regard to the alleged incompetency of Mrs. Snyder is in direct conflict. Neither of the defendants testified. Perhaps their testimony would have been of little avail on the question of her mental condition, on account of the bitter feeling existing between complainants and defendants. We are not able to say that the preponderance of evidence is with the complainants upon this question, as well as upon the question of undue influence, and are constrained, -therefore, to sustain the finding of the circuit judge.
2. We cannot, however, concur with him that the assignment of the mortgage and the note by Mrs. Snyder to defendant Thomas was a gift inter vivos. It is not claimed that Thomas paid a valuable consideration. The record is barren of any evidence explaining the circumstances of the assignment, or tending to show any gift to him. A disinterested witness, whose testimony is unimpeached by anything in the record, testified that Mrs. Snyder once said to him, “They say I have signed away that mortgage, but I never knew I didand that defendant Benjamin also ‘ ‘ told him that his mother told me the same thing. ” Benjamin does not deny this. The notary who took the acknowledgment is the sole witness called to prove the assignment. He has no recollection whatever of its execution, and the sole knowledge he has is the fact that his name appeal's to the acknowledgment, as well as a witness. The other witness to the assignment was not called. The silence of Benjamin and Thomas is significant, and is very conclusive that they are .acting in concert. Mrs. Snyder was then 76 years old, and ignorant. She had already given a power of attorney to Thomas to manage her business. He was evidently her adviser and manager, and stood in very confidential relations with her. The duty, therefore, devolved upon him to explain the circumstances of that transaction, and to show its bonafides. He kept silent when he should have spoken. The law does not permit him, under such circumstances, to retain this property.
It was not a gift inter vivos under the allegation in the defendants’ answer, which is the sole reference upon the record to a gift. The allegation reads thus:
“That, soon after the sale of said lands to the said Benjamin F. Snyder by their mother, she caused to be prepared and executed said assignment, and then said to the said Thomas C. Snyder that she desired him to accept the same upon the following terms and conditions: That all moneys paid on such note and mortgage during the life ■of said mother should be paid over to her for her own use, and that whatever sum should remain unpaid at her death, if any, should be the property of said Thomas C. Snyder. That she further said that she did this because of the fact that the said Thomas C. Snyder had paid off two mortgages on said land from money earned by him in the army, and that in consideration of that fact she desired him to have what property she had, if any, at her death.”'
This allegation was specifically denied in the replication. No testimony was offered to support it. It appears to be the sole basis for the finding of the court below that this was a gift inter vivos. To constitute a valid gift inter vivos, it must take effect at once, and pass entirely beyond the control of the donor. The retaining of any control in the hands of the donor over the subject of the gift renders it invalid. Thornt. Gifts, § 76; Holmes v. McDonald, 119 Mich. 563 (78 N. W. 647, 75 Am. St. Rep. 430),— where we held that the jus disponendi must be placed beyond the power of the donor to recall. See, also, 14 Am. & Eng. Enc. Law (2d Ed.), 1014 et seq. Under defendant Thomas’ own statement in his answer, his mother retained the entire control over this gift, and had the right to retain as her own all sums that Benjamin paid to her or to Thomas during her lifetime. She could collect and use the entire amount. It follows that this assignment must be held void.
3. No administrator has been appointed over the estate of Mrs. Snyder, and it is insisted that the administrator is the only person who can test the validity of the assignment. We cannot concur in this view. The equity court is the proper forum in which to test the validity of the deed, mortgage, and assignment. Having obtained jurisdiction, it will retain it for the purpose of deciding all questions in controversy.
The decree is affirmed as to defendant Benjamin, reversed as to Thomas, the assignment set aside and held for naught, and the cause remanded, with permission to the complainants to procure the appointment of an administrator, make him a party to the suit, and the mort gage turned over to him for foreclosure. The complainants will recover costs of both courts as to defendant Thomas.
Hooker, C. J., Moore and Montgomery, JJ., concurred. | [
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Montgomery, J.
This is an action in which the plaintiff recovered for personal injuries received while riding in a caboose attached to a freight train of the defendant. The plaintiff shipped over defendant’s road a car load of stock, and, as is customary, accompanied the freight train to look after the stock. The injury which the plaintiff suffered occurred at the city of Hillsdale, while the trainmen were coupling cars in the yard. There is no evidence, aside from the plaintiff’s, which tends in any way to show that what occurred in the way of coupling cars was in any way unusual, or that any unusual jar or jolt was occasioned by coupling. The plaintiff’s testimony upon this subject we quote at considerable length:
“ I got on board the train- — took the caboose — between 4 and 5 o’clock in the afternoon. Reached Hillsdale about midnight. There were no passengers in the caboose at that time besides myself. Hillsdale is a great business point, with different branches running in'there,- — -junction point. There are a great many side tracks. When we reached Hillsdale, I laid down on what we call the ‘ bunk ’ in the caboose. Those bunks are lengthwise in the caboose. It is a bench on each side of the car, about 18 or 20 inches wide. I was on the north side in the east part of the car. When I reached Hillsdale, I was lying down on this bunk, and I was partly asleep when I came into Hillsdale. ' The first thing’ I knew there carne a crash that threw me endways of the car, and I bounded back, and I fell with the left knee on the floor, and also the left edge of my hip on a bunkboard. I don’t know whether I got up right away, but I got up, and I was there alone on the seat again. Shortly after I was on the seat, I heard another rattle of the train taking up the slack, and when I heard the clatter I braced myself to protect myself, and didn’t fall the second time.”
On cross-examination:
“I laid down when we left Coldwater, and I was asleep when we reached Hillsdale. I wasn’t awake just before that, and had any conversation with the men in the car. At Coldwater I got a cigar, came back, and smoked it, and took a little lunch, and then laid down. After leaving Coldwater, I waked up in Hillsdale yard, when this accident occurred.
“ Q. You mean when this bumping of the cars, as you suppose, took place ?
“A. Yes, sir.
“ Q. You didn’t wake up-before that ?
“A. I don’t remember that I was awake. I wasn’t sound asleep at all. I laid on the north side of the car, towards the east end. At Hillsdale the train faces east. I should think I was about five or. six feet from the end of the car. I laid far enough towards the end of the car so that the door swung clear. The bunk extended all the way to the end of the car. The stove wasn’t in that end, but about the middle of the car. I didn’t see any table in that end of the car. My feet rested towards the west as I lay there, and my head towards the east of the car, — the way the train was moving. Don’t know how long we were at Hillsdale. I didn’t get out while there. It was quite a while after I heard this bumping against the car while I was there before the train started on. They had to do some more switching and work, and I heard some more clattering and coupling of cars.
“ Q. As the car was pushed back, as you supposed it was, against the caboose, you say that you were thrown on the floor ?
“ A. I was thrown endways, and came back when the shock came to me.
“ Q. You were thrown endways ?
“A. Yes, sir.
‘ ‘ Q. Then you mean you were thrown under the seat ?
“A. I was thrown endwise, and bounded back and came on the floor.
“ Q. If you were lying on the east side, you would be pushed towards the end of the car ?
“A. Yes, sir.
“ Q. Is that the way it was ?
“A. I couldn’t tell exactly; I was partly asleep.- I fell with great force on the floor. I was not awake nor sound asleep; I was in between.
“ Q. The first you knew about it, you were on the floor ?
“A. Yes, sir.
“ Q. So that what occurred before that you don’t know?
“A. No, sir.
‘ ‘ Q. And whether you were shoved along on the seat or not, or anything of that character, you cannot tell ?.
“A.. I couldn’t say exactly.
“ Q. The first you knew, then, you were on the floor?
“A. Yes, sir.
“ Q- Of course, that being so, the car had already struck before you knew of it ?
“A. It did. _
_ “ Q. You didn’t hear it strike, did you ?
“A. When I fell I heard the clatter and the rumpus.
“ Q. You didn’t hear the car strike against the caboose until after you were on the floor ?
“A. Why, no.
“ Q. So far as the car that struck your caboose was concerned, you didn’t hear it ?
“A. Yes, sir. I wasn’t sound asleep when I was on the floor. It took quite a little time before the sound of the racket got away.
“ Q- Let me get this clear. The first, or, as I understand you to say, the first you knew anything about the accident, you found yourself on the floor ?
“A. Yes, sir.
“ Q. Then you hadn’t heard anything before that, had you ?
“A. No, sir. ,
‘ ‘ Q. And you couldn’t hear the car strike the caboose after the time that you were on the floor ?
“A. No, sir; I don’t claim I did.
“ Q. And just how the accident occurred, or how the bunting occurred, you don’t know anything about it, of your own knowledge ?
“A. I know the crash came in making up the train.
“ Q. I am asking you about the shock of the car against the caboose. You don’t know anything about that, because you were asleep ?
“A. I was partly asleep; yes, sir.
‘ ‘ Q. And you didn’t hear the oar when it struck the caboose ?
“A. No, sir. * * * The seat I was on was on the north side of the car, and I was five or six feet from the end of the car. I don’t know whether the seat ran clear to the end of the car or not. Don’t know whether I was right at the end of the seat or not. When I found myself on the floor, I was right opposite where I had been lying down on the side, and right close to the seat. The seat was about 10 inches from the floor, I should judge. When I first woke, I was lying on my left side. I was lying on my left side when I was on the seat.
“ Q. And when you were shoved or slipped off of the seat you lay on your left side ?
“A. I came down on my left side. I should think the fall was about 18 inches, but I couldn’t state how far I had been lifted off of the seat; that I couldn’t state.
“ Q. You can’t swear that you were thrown at all ?
“A. I couldn’t swear; I couldn’t state one way or the other.
“ Q. All you can say is, whatever the bumping was, you rolled off the seat on the floor ?
“A. I don’t know whether I rolled off. I came with force down on thd floor.
“ Q. And you don’t know what caused you to roll off or slip off ?
“A. It was because of the crash of the car that threw me.
“ Q. I understand you to say that when the car bumped against the caboose you rolled off or slipped off of that seat ?
“A. I did not slip off of my own accord.
“ Q. You don’t know whether you rolled off or slipped off of that seat on the floor ?
“A. I know I went on the floor somehow.
“ Q. You don’t know how it came about that you slipped off or rolled off of that seat onto the floor ?
“A. I went off when the crash came, and I heard the clatter of the cars. The car wasn’t standing still when I laid on the floor.
“ Q. You didn’t hear anything until you found yourself on the floor, or until after you struck the floor ?
“A. I didn’t hear the first strike of it, because it takes a little time; but the car was in motion when I picked myself up. * * *
‘ ‘ Q. Do you mean to swear that you heard the first shock ?
‘ ‘A. I don’t want to say that I heard the first car that was moved.
“ Q. That is what I am asking you, — the first car that struck the caboose you didn’t hear ?
“A. I don’t claim that I did.
“ Q. Did you?
“A. I heard the clatter from the collision from this crash.
“ Q. Will you confine yourself to this one question? I understood you- to testify that you did not hear the car that first struck the caboose which you were in. Am I right about that ?
“A. You are trying to make me say that I didn’t hear the clattering at all.
“ Q. No, I am not.
“A. I told you I did not hear the first clatter; I heard the clatter when I laid on the floor.
‘ ‘ Q. What clatter did you hear when you laid on the floor ?
“A. I heard the clatter from the drawbars.
“ Q. You have often heard freight cars bumping together ?
“A. Yes, sir; sure.
“Q. What you heard was this: You didn’t hear the first car when it struck your caboose, but after it struck your car, as is very often the case, as they were bumping against the others ?
“A. Yes, sir; I heard such a motion. .
“Q. The clatter you heard on the floor was the bumping of the other cars in the train, and not the bumping of the car against your particular car ?
“A. I said I didn’t hear the first bumping.”
The question presented is whether it is open to any just inference to be drawn by the jury, that there was any mismanagement of defendant’s train. We think not. It is very manifest from this testimony that the plaintiff was lying on this bunk, consisting of a narrow seat at the side of the caboose, with nothing whatever to prevent his falling off or being jolted off by any slight jar, and that the first warning he had was when he found himself-on the floor of the caboose, having been jolted or shaken from his precarious position. To say that this is evidence of any fault on the part of the defendant railway in the management of its train would be to permit the verdict to rest upon mere surmise. In saying this we consider the rule that those who take passage on freight trains are held in law to assume the risk of ordinary jarring, jolting, and jerking incident to the making up and distributing of such trains. This we held in Moore v. Railroad Co., 115 Mich. 103 (72 N. W. 1112). See, also, 3 Thomp. Comm. Law Negl. § 2903. We should add that the medical testimony introduced by the plaintiff himself shows that the injuries which he suffered might have been occasioned by his rolling off this narrow seat onto the floor of the car. The request that a verdict be directed for defendant should have been granted.
The judgment will be reversed, and a new trial ordered.
Hooker, C. J., and Moore, J., concurred with Montgomery, J. | [
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Moore, J.
Surveyed township No. 19 N., of range 2 E., now part of the township of Bourrett, was formerly part of the township of Gladwin. It is the claim of complainant that said surveyed township should bear its share of the liabilities of said township of Gladwin, less the assets of the township, as they existed at the time the division was made; and that, as this claim was disputed, it was justified in commencing this proceeding in chancery to enforce its claim. From a decree made in favor of complainant, the defendant has brought the case here by appeal.
The circuit judge filed a written opinion in the case, excerpts from which will aid in understanding the questions involved. Among other things, he said:
“This suit is brought for an accounting between the townships, complainant and defendant. By act of the legislature of 1897 (Local Act No. 422), township 19 N., of range 2 E., was detached from the township of Glad-win, of which it had theretofore formed a part, and, with township 20 N., of range-2 E. (by said act detached from the township of Clement), organized into a new township, to be known as the ‘ Township of Bourrett. ’ This act took effect on the 5th day of May, 1897. * * *
“The items which compose complainant’s claim consist of a judgment rendered in favor of the county of Gladwin against the complainant township in June, 1897, for $20,-717.41, but afterwards compromised, by the county at $7,000, and certain outstanding contingent and highway orders. It is claimed by defendant’s counsel that this judgment, having been rendered after the act organizing said defendant township took effect, is not binding upon it. Even if we concede this, the evidence in this case satisfies me that the amount of such indebtedness from the township of Gladwin to the county of Gladwin was at that time more than, $7,000, so the defendant township is benefited by the compromise, and has no cause for complaint. It is admitted that this item of $7,000 has been reduced by payment of $465.32, and I find that the defendant township is liable to pay its proportion of the balance of $6,534.68.”
A decree was made in the case, the important provisions of which are as follows:
“That a joint meeting of the township boards of the townships of Gladwin and Bourrett was called to meet on the 6th day of December, 1897, for the purpose of apportioning the rights, moneys, credits, and personal estate and the debts owing by the said township of Gladwin; that such meeting was held, and an attempt to make such an apportionment was made, but the township board of the township of Bourrett neglected and refused to arrive at a settlement of the matters and things in difference between said townships as provided by law.
“ That, at the time said act took effect, said township of Gladwin was indebted to the county of Gladwin in the sum of $6,534.68, and upon outstanding contingent orders bearing date less than six years before May 5, 1897, in the sum of $756.18; and that on said date the total value of the personal property of complainant township was the sum of $410, leaving a balance of indebtedness over personal property of $6,880.74, of which the defendant township should bear its proportion.
“That the assessed valuation of said township 19 N., range 2 E., for the year 1896, was the sum of $74,740, and the assessed valuation of the whole township of Gladwin for the said year was the sum of $190,780, and that taking a proportion of the aforesaid balance according to the said assessed valuation gives the sum of $2,695.12.
“ That the above-mentioned local act provides that any indebtedness incurred by the township of Bourrett by reason of the passage of said act, to the township of Gladwin, shall be paid from taxes assessed from the taxable property in said township 19‘ N., range 2 E.
“That on the 5th day of May, 1897, there were large amounts of uncollected taxes for 1896 and prior years upon the territory theretofore comprised in the said township of Gladwin, which said taxes, if thereafter collected, would in part belong to said township of Gladwin, and such part should, when collected, be apportioned with the defendant township in a proportion of the foregoing assessed valuation.
“It is therefore ordered, adjudged, and decreed that said defendant pay to said complainant the sum of two thousand six hundred and ninety-five dollars and twelve -cents, together with complainant’s costs of suit to be taxed; that the said amount, with interest thereon at six per cent, per annum from the date of the decree, be paid from taxes assessed and levied upon the taxable property in surveyed township 19 N., of range 2 E., that being a part of defend ant township. And it is further ordered, adjudged, and decreed that this decree shall be final as to all matters and things in difference between the parties arising from the detachment of surveyed township 19 N., of range 2 E., from the township of Gladwin, and making the same a part of the township of Bourrett, except as to township taxes of 1896 and prior years levied upon the tax rolls of Gladwin township, and collected after the 5th day of May, 1897, which said taxes, when collected, shall be paid to defendant township in the proportion fixed by the aforesaid valuations, — that is, in the proportion of 74,740 to 190,780, — . and, if not so paid to defendant township, or not so apportioned to the said parties by the treasurer of Gladwin county, then either party may petition the court in this cause for a further accounting in relation to said township taxes collected.”
The solicitors are not agreed under what statute this proceeding is commenced. The defendant’s counsel claims it is brought under the provisions of section 8, chap. 20, 1 How. Stat., and devotes a good many pages of his brief to show said section is unconstitutional and void. The solicitors for complainant claim the provisions of sections 3462-3471, 1 Comp. Laws, apply to the case as stated in the bill and made by the testimony. We agree these provisions do apply, and that it is not necessary to decide whether section 8, chap. 20, 1 How. Stat., is unconstitutional or not.
Counsel for defendant insists that there were included in the judgment of the county against the township of Gladwin a great many illegal items, and that said township was not indebted to the county. These items are considered in detail in the brief of counsel, and an argument is made to show the illegality of the various items. We have examined the record with sufficient care to be convinced that the court did not err in concluding that there was in any event more than $7,000 due from the township to the county, but we do not think that is now ah open question. While township 19 N., range 2 E., was a part of the township of Gladwin, the'county of Gladwin sued the township. The township caused its appearance to be entered. By proper pleadings an issue was framed, and a trial had. All this occurred before a division of the township. It is true the formal judgment was not entered until a few days after the division of the township occurred, but township 19 N, range 2 E., was just as much represented in that proceeding as was any other portion of the township, and was just as much bound by the judgment which was reached. See 2 Black, Judgm. §§ 534, 584, and the cases there cited.
It is insisted by counsel that the provisions of the statute apply only when land is detached from a city or township and attached to a city or township, or organized into a new township; that, as the township of Bourrett is now made up of a surveyed township taken from the township of Clement and one from the township of Gladwin, it makes a case outside of the statute, and within the provisions of the common law. It is further urged that when the legislature creates a new township out of a portion of the territory of an old one, without making other provision, such old township is liable for all debts contracted before the separation, and retains all its property, rights, and credits; citing cases.
We cannot agree with counsel in this construction of the statute. It is a matter of common knowledge that, when the State was new, the townships, when organized, frequently embraced more than one surveyed township; that as the country became improved, and more thickly settled, the large townships were divided, and new townships were created, until in the older and more thickly-settled portions of the State the townships, as a rule, now consist of one surveyed township. It was evident that, when these changes were made, some rule ought to be provided for the fair and equitable division of the assets and liabilities of the larger townships between the smaller ones formed by making the divisions of larger townships; and it was to meet these emergencies that the statute was passed. The provisions of this statute were doubtless in the minds of the legislature when Act No. 422, Local Acts 1897, creating the new township of Bourrett, was enacted. It was also doubtless advised of the fact that the county of Gladwin then had a suit pending against the township of Gladwin for a claimed indebtedness. This is indicated by that portion of the local act reading as follows:
“Sec. 6. Any liability which attaches to the township of Bourrett by reason of the detaching of either of the surveyed townships composing it from the towns to which they severally belonged shall be paid from a fund raised by taxes assessed solely upon that surveyed township by reason of whose detachment such liability was incurred.”
Had township 19 N. grange 2 E., remained a part of the township of Gladwin until the county obtained its judgment, the property therein would have had to pay its proportion of the judgment^; and the legislature very properly provided, as we think, that it should not escape liability by becoming detached and made a part of another township.
We now come to the more difficult question of whether the court made a right disposition of the uncollected taxes. These taxes may or may not be collected. It is a matter of common knowledge that, after the timber has been removed, the land is not in some localities regarded as worth the taxes levied against it, the taxes are never paid, and the title comes back to the State. In some instances, after sufficient time has elapsed, the lands are made subject to homestead entry. No court can tell in advance what portion of these delinquent taxes will be paid. The decree would seem to provide the only possible way of working out substantial justice.
The decree is affirmed, with costs.
Hooker, O. J., Grant and Montgomery, JJ., concurred. | [
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Montgomery, J.
In January, 1894,' Lonsby & Wolf were owners of a one-eighth' interest in the steam barge Thomas D. Stimson, the entire vessel being at the time subjectto a mortgage of $8,666.66. An arrangement was made between the plaintiff and defendant by which the latter was to lend his credit to the plaintiff to enable him to purchase from Lonsby & Wolf this interest in the vessel.' In pursuance of this arrangement, a contract of sale was made by Lonsby & Wolf to defendant of the one-eighth interest, entitling him to one-eighth of the receipts, and making him responsible for one-eighth of the current expenses; and defendant gave to Lonsby & Wolf two notes, — one for $1,000, due in one year, and one for $1,250, due in two years,' — each signed by plaintiff and indorsed by defendant; and defendant thereupon made a like contract to the plaintiff. In the years 1894 and 1895 plaintiff made payments upon the $1,000 note, and also upon the $1,250 note, and gave testimony tending to show that it was agreed between defendant and himself that defendant should retain the profits of the boat, and apply them to a reduction of the mortgage, and pay them to the holder of the mortgage. On the 17th of January, 1896, the plaintiff and defendant had a settlement of the amount paid the defendant to that date, except that the question of profits was not considered, it is claimed; and, as a result, plaintiff gave defendant a note for $132.65. The $1,250 note had not been paid, and was then renewed. About this time the holders of the mortgage upon the vessel were pressing for payment. Foreclosure proceedings were taken, the mortgage was foreclosed, and defendant became one of the purchasers. Four thousand dollars in cash was paid at the time, besides the expenses of sale, $540, and a new mortgage-given for the balance.
Plaintiff claims that prior to the foreclosure proceeding, as well as subsequent thereto, it was understood and agreed between himself and defendant that defendant should become a purchaser of an interest in the boat on behalf of plaintiff, and that the arrangement previously existing between them as to the purchase by the plaintiff from defendant should continue; and that, after the foreclosure was made, the plaintiff in fact did make various payments to the defendant, until the entire amount covered by the contract had been paid for the one-eighth interest. Defendant disputes this, and claims that the plaintiff agreed, it is true, to continue the payments upon these notes, and did pay them, but that plaintiff at the time abandoned all claim to the one-eighth interest; that the parties then understood and agreed that the debts of the steamer, including the mortgage, were in excess of its real value, and it was arranged that defendant should purchase the steamer, and place plaintiff in command of her at a salary of $1,000 per year, retaining $600 per year out of the salary, until the remaining note of $1,250, made by plaintiff, was paid; and that the arrangement was made for the sole purpose of enabling plaintiff to pay obligations he was legally bound to pay. . Upon the plaintiff’s claim that the entire purchase price of this .interest in the boat had been fully paid, he demanded of the defendant a bill of sale of the one-eighth interest. The defendant repudiated the alleged agreement, and refused to convey; and in this action the plaintiff, having treated the contract as rescinded, sues to recover for the money paid and interest, and the profits of the vessel.
There are numerous assignments of error, but the only ones meriting discussion are those which relate to the instructions of the circuit judge as to the measure of damages. The circuit judge charged the jury as follows:
“ If you shall find that the sum of the profits received by the defendant, and the payments made directly to him by plaintiff, or by his sons for him, were sufficient to pay the purchase price, and interest thereon to the date of such payment, together with one-eighth of the mortgage existing at the time of making the contract, with the interest thereon to the date of payment, with all the necessary costs and expenses of that mortgage foreclosure and sale; and if you find that defendant, after this payment, refused to convey said one-eighth, — the plaintiff is entitled to recover the sum so paid to defendant directly, and one-eighth of the profits of the vessel, if you shall find there were any, less such sums as defendant has proven,by way of set-off.”
Error is assigned upon this instruction. If, as plaintiff claims, he had fully performed his contract, and defendant repudiated all- obligations under it, this gave to plaintiff a choice of remedies. He might treat the contract as in force and fixing the rights of the parties, and recover the actual value of the property when converted by the defendant; or he might treat the contract as at'an end, and no longer defining the rights of the parties. If he elected to take the latter course, he was not entitled to what the contract gave him, but was entitled to be made whole; that is to say, he was entitled to recover the sums paid by him as having been paid without consideration. Nor would it be material whether the payments were made to defendant or to another, if they were induced by defendant’s promises. See Hosmer v. Wilson, 7 Mich. 294 (74 Am. Dec. 716).
Plainly, the plaintiff would be made whole, in the present case, by the recovery of the amount paid by him, with interest. ‘ Were profits or earnings of the property also to be awarded to him, it would be permitting him to treat the contract as still measuring the rights of the parties for such purpose, while repudiating it for another purpose, and refusing to accept the compensation for the breach of the contract which the law fixes. This, we think, the plaintiff could not do. The case is unlike the case of Hamilton v. Park & McKay Co., 112 Mich. 138 (70 N. W. 436), which was likened to the case of a landlord and tenant. It was a case where the licensee stipulated to pay a certain sum by way of royalties for every machine manufactured and sold. The plaintiff, the licensor,, had fully performed, but the licensee was in default, giving the plaintiff the right to rescind. There was no other way, apparently, to measure the compensation which the plaintiff was entitled to for performance as far as he had gone, except to award him the royalties which had been earned under the contract. It was a divisible contract.
It must not be understood that the testimony as to the profits earned was inadmissible for any purpose. On the contrary, it was quite competent to show that plaintiff had performed his contract at the time defendant repudiated it, and that the payments made, plus the profits, equaled the full'sum which the plaintiff undertook to pay.
The other objections urged are without merit. For the error in instruction, the judgment will be reversed, and a new trial ordered.
Hooker, C. J., Moore and Grant, JJ., concurred. Long J., did not sit. | [
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Hooker, C. J.
The defendant in an action before a justice of the peace attempted to review an adverse judgment on certiorari in the circuit court, but on motion of the plaintiff the circuit judge dismissed the writ, and the defendant has appealed. The ground upon which the cii’cuit judge acted is not disclosed. There are, however, reasons mentioned in the appellee’s brief, which are said to justify his action:
1. The affidavit and bond were presented to a circuit court commissioner of another county than that of the justice, and the writ was allowed and the bond was approved by him.
2. The writ of certiorari was made in duplicate by the circuit court clerk, one copy being served on the justice, and one being filed in the clerk’s office.
3. In making return, the justice failed to send to the county clerk the writ and bond served upon him. He subsequently sent them upon receipt of a letter from counsel.
Upon the hearing of the motion to dismiss, the court permitted a further return to be made, which was done. This return states that he returned the bond, and no question seems to be made over the genuineness of any of the papers.
We think that the allowance was valid. It was within the express terms of the statute (1 Comp. Laws, § 937), and within the ruling in the case of Loder v. Littlefield, 39 Mich. 374, though in that case the writ issued from this court.
The mere fact that the writ first prepared was filed with the clerk, and the copy issued, should not invalidate these proceedings. They were prepared simultaneously, both signed and sealed. The writ issued became the original writ when it was issued.
Before the motion to dismiss was decided, there seems to have been a full return, and the court had jurisdiction to hear the case.
The order is reversed, with costs.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Montgomery, J.
This is an action of ejectment to recover possession of a strip of land about six inches wide. The question involved is the location of the lot line between lots 5 and 6 of block 1 of the city of Cadillac. Harris street is a thoroughfare running east and west. It is crossed at right angles by three thoroughfares, in the order named, beginning with Lake street on the west, the Grand Rapids & Indiana Railroad right of way, 319 feet to the east, and Mitchell street, still 150 feet farther to the east, excluding from these measurements the ground occupied by the right of way. The space between Lake street and the.railroad right of way, north of Harris street, was platted as block 1. The space between the right of way and Mitchell street was platted as block C.
The questions arising upon this record relate to rulings in receiving and excluding testimony. It is enough to say of the theories in the case that the plaintiff sought to establish the boundaries of block 3, and, if he was correct in doing so, and no error was committed in the receipt of testimony, the plaintiff was apparently entitled to recover the premises in dispute. The defendant contends that, not only did the plaintiff fail to establish the lot lines, but that it seems impossible to do so, and that the only fixed monuments now to be found would require that, in fixing the lot lines, a survey of both blocks 1 and C should be taken into account, and that, if there is a shortage, — as there is, — this should be deducted from the lots in both blocks. It is manifest that this result should follow only as a last resort, and in case there has been no occupancy which precludes it. If it is possible to do so, block 1 should be treated as distinct; and the shortage or surplus-age of actual land in the platted portion distributed among the lot owners in this block, except so far as possession has fixed the limits. It is not necessary to refer further to the law of the case, except to revert to the rulings as to the admission of testimony.
The plaintiff sought to show the location of this lot boundary by Mr. Alderman, the county surveyor. He appears to have proceeded upon the theory that the center of the railroad track was precisely 50 feet from the western boundary of the railroad right of way as platted. His theory upon this point, we think, is made clear by his testimony, which we quote:
“ Q. You don’t know, do you, whether or not the main track remains in the same place where it was laid when the track was first put down ?
“ A. No, I don’t know anything about it.
“ Q. Your 1899 survey was made upon the theory that it remains in the same place ?
“A. Yes, sir; I supposed it was. Yes, sir; I didn’t contradict it any. * * *
“ Q. Now, let’s begin with yesterday’s survey. What did you do yesterday ?
“A. I went down to Lake street, and took the point on Lake street and Harris street.
“ Q. You found the same corner you found before?
“A. Yes, sir.
“Q. What did you do then ?
“A. I measured across block 1.
“ Q. How far did you measure?
“A. I measured as far as the railroad limit.
“ Q. How could you tell where the railroad limits were ?
“ A. I measured to the same place, — to the boundary,— supposed to be the boundary.
“ Q. You measured to the same place that you had found before ?
“ A. Yes, sir.
“ Q. Then, if you were right before, this last survey was right, and, if you were wrong before, this last survey was wrong, wasn’t it ?
“A. It was just the same as before. * * *
“ Q. Now, Mr. Alderman, I wish to ask you this question (I think it was answered at the last trial): If the main track of the Grand Rapids & Indiana Railroad has been moved since it was laid down, did you work upon the correct theory in ascertaining the true lot line ?
“A. Why, if it had been moved an awful sight, it would make some difference, probably.
“ Q. Wouldn’t it make a difference if it had been moved at all ?
“A. It certainly would, that much.
“ Q. It would make the difference of the removal, wouldn’t it ?
“A. Yes.
“ Q. You don’t know whether it had been moved at all or not, do you ?
“A. No, sir.
“ Q. In surveying, you always proceed from fixed monuments, don’t you, by way of measurements ?
“A. Yes, sir.
“ Q. Did you consider the railroad track a fixed monu- ' ment in making this survey ?
“A. Why, it seemed to be fixed; yes, sir.
“ Q. You considered it a fixed monument?
“A. Yes, sir.
“ Q. Now, if that fixed monument was not in the position in which it was placed by the plat, then it wouldn’t be — the result arrived at by you wouldn’t be correct, would it?
‘ ‘A. Why, it seemed to leave more on the east side than it did on the west. The east line didn’t seem to make the difference.”
Notwithstanding this testimony, the circuit judge excluded testimony offered by defendant to show that the railroad track was not where it was originally, laid, unless accompanied by a proposition to show that it was originally laid in the center of the right of way. This ruling was manifest error, for the theory of the surveyor in making the survey was that the railroad track was located in the center of the right of way as platted. He took this as a monument, and, while it may not have been the only monument from which a jury could have found the lot lines, it was open to them, under this testimony, to find that this correctly fixed the lot line. We think this ruling was damaging error, and that the judgment should be reversed, and a new trial ordered.
Hooker, C. J., Moore a,nd Grant, JJ., concurred. Long, J., did not sit. | [
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Moore, J.
The respondent was convicted of having on hand with intent to sell, and offering for sale, oleomargarine, colored in imitation of yellow butter, contrary to the provisions of Act No. 22 of the legislature, passed at the session of 1901. It is claimed by respondent that this law is unconstitutional, and is an invalid law. That question was decided in the very recent case of People v. Rotter, ante, 250 (91 N. W. 167), against the contention of respondent, and need not be discussed here.
It is urged as a matter of defense (and we quote from the brief of counsel) :
“That the statute is only aimed against the imitation of a substance which the legislature recognize as yellow butter, and—
“1. The court should take judicial notice that all butter with a trace of yellow in it is not the yellow butter of commerce.
“2. That if this is not true as a proposition of judicial notice, and the court cannot know it, then the respondent should have been allowed to prove, if he could, that there was such a usage of commerce.
“3. That the statute is vague and indefinite in not defining the elements of the statutory crime it attempts to carve out of an act innocent per se, in that it gives no standard for determining what the color of yellow butter is that is not to be imitated.”
The trial judge charged the jury upon that branch of the case as follows
“It is not necessary in this case for the people to have proved that the respondent himself colored the oleomargarine, if you find beyond a reasonable doubt that it was colored. The offense is just as complete, so far as this is concerned, if the respondent purchased oleomargarine colored as above indicated. The offense, as above stated, consists of having the oleomargarine colored, as before indicated, in his possession, with intent to' sell the same, or in exposing it for sale; and if the respondent sold- it in the same condition as he bought it, that would be no defense in this case. The respondent, gentlemen of the jury, is not charged in this information with selling this article; and if you find, beyond a reasonable doubt, he sold it, as claimed by the people in the testimony offered, you may consider this fact on the question of whether respondent had, or did not have, the article in his possession for the purpose of selling it, and you must not consider it for any other purpose. If you find, beyond a reasonable doubt, that respondent did sell the article mentioned in the information to the parties claimed by the people, that would satisfy the statute upon the question of intent to sell.
“ It is not necessary in this case, to entitle the people to a conviction, that the oleomargarine should have been colored to represent any particular kind of yellow butter; that is, such yellow butter as the statute mentions, and as I have indicated to you the statute mentions. If the coloring was put into it, and by using such coloring the oleomargarine was in imitation of light yellow butter, such as the statute mentions, — that is, yellow butter produced from pure, unadulterated milk, or cream from the same,— the offense is committed just the same as if it had been colored to represent darker yellow butter. If you find beyond all reasonable doubt in the testimony in this case, and under the instructions given, that the oleomargarine —if you find it to have been oleomargarine — was colored in such a manner as to be in imitation of any kind of yellow butter, that would satisfy the statute upon the requirement of the question of color. ‘Yellow butter’ I define to be any butter produced from pure, unadulterated milk, or cream of the same, having a yellow color. It is necessary, in order for the jury to convict the respondent, for you to find, beyond all reasonable doubt, that the article in the package sold was colored in imitation of yellow butter produced from pure, unadulterated milk, or cream of the same. If you find beyond a reasonable doubt, under the testimony in this case, that there was some coloring matter in this article, still if you find there was not enough coloring matter in this article to cause it to look like yellow butter having a perceptible shade of yellow, said butter having been produced from unadulterated milk or cream from the samé, then you must acquit. But if you find, beyond a reasonable doubt, there was coloring matter in said article, and sufficient coloring matter therein to make it look like yellow butter, having any» perceptible shade of yellow, said butter having been made from unadulterated milk or cream from the same, that would be sufficient, so far as the requirement of the statute upon the question of coloration is concerned.”
We think this was a proper construction of the language used in the statute.
The conviction is affirmed, and the case remanded for further proceedings.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Hooker, C. J.
At the triennial convention of the Protestant Episcopal Church of the United States held at Minneapolis in October, 1895, provision was made for the diocese of Marquette, at which time proof of the necessary endowment fund was furnished to the “house of bishops.” This included the first subscription of Mr. Parke, hereinafterment-ioned. This first subscription was for $2,500, and was upon the conditions named at the head of the-paper. It was followed by this writing, viz.: “H. C. Parke, on same conditions as named by Peter White, above mentioned, twenty-five hundred dollars ($2,500).” The subscription referred to was:
“Peter White, Marquette, Mich., upon following condi tions, viz.; Additional to $2,500, payable at my death, provided for in my will, and agreement to pay interest on same at six per cent, semi-annually from the date that fifty thousand dollars is subscribed, $2,500.”
The defendant asserts that this should be construed as a promise to pay $2,500 at the death of the subscriber, provided that the sum of $50,000 should be subscribed within a reasonable time, and before death. We are of the opinion that it was not conditioned upon the subscription of $50,000, but was an unconditional subscription of $2,500, payable at death. We think it is not affected by the statement that it shall be' mentioned in the subscriber’s will.
The order of the circuit court is reversed, with costs, and the cause remanded for further proceedings.
Moore, Grant, and Montgomery, JJ., concurred. Long, J., did not sit. | [
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Per Curiam.
The complainant’s injunction having been dissolved on motion, his default for not serving a copy of the bill upon defendants’ counsel was duly entered; and subsequently defendants’ solicitor caused an order to be entered that the bill be dismissed, with costs, to be taxed. They were afterwards taxed at $20. A motion to vacate this order was denied, but upon a later application the circuit judge amended the order by disallowing costs. An application was then made in this court for a mandamus to compel the vacation of the later order.
The return of the learned circuit judge is an ample justification for the denial of costs, and there is nothing left of the relator’s case, except the technical claim that the practice prescribed by rule has not been followed. We feel warranted in declining to consider this question, under the well-settled rule that mandamus is a discretionary-writ, and will not be granted where'abstract justice does not require it.
The writ is denied. | [
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Hooker, C. J.
The controlling question in this case rests upon a construction of the statute providing for supplying water to the city of Detroit for the public and private uses of its inhabitants. See Act No. 90, Laws 1853, §§ 5, 7. It is whether, under the law, the board must furnish water, from the hydrants or jets established by it, for street sprinkling gratuitously, or is entitled to compensation from tbe city funds therefor.
We have had occasion to consider this law in connection with somewhat similar claims of the city on two occasions, — first in the case of City of Detroit v. Board of Water Com’rs, 108 Mich. 496 (66 N. W. 377, 31 L. R. A. 463), where it was sought by the city to save to itself the expense of supplying its house of correction with water, by compelling the water board to furnish it free; second, in the case of Board of Water Com’rs of Detroit v. Commissioners of Parks and Boulevards, 126 Mich. 459 (85 N. W. 1132), which grew out of an attempt by the latter board to shift upon the water board the cost of maintaining (i. e., supplying with water) all of the fountains that the park board might see fit to establish in the parks of the city. In each case the liability of the water board to such inroads upon its funds was denied. In the first of the cases cited, the court was unanimous in holding that there was no obligation upon the water board tp furnish water for the institution mentioned, although it cannot be denied that it was a public purpose. That case established the rule that the law does not require the water board to furnish water free for all public purposes, and it went no further; expressly saving the question as it relates to general public purposes. In the second case mentioned, the court was not unanimous, three opinions being written. Two of the members thought the obligation to furnish free water for park fountains rested upon the board; three were of the opinion that it did not; and while two of these rested their decision on the broad ground that the general public must pay for all water furnished for all public purposes, and that the legislature alone possesses the power to exempt the city from the obligation, and that it has not exercised such power, three did not concur in so broad a doctrine, and the decision went no further than to decide that the water board need not furnish water for park fountains free. In this case we must determine whether the purpose of sprinkling streets is one for which the board must provide the water without compensation. While this sprinkling was done by a private corporation, it was required by the common council, and the case should be treated as though the sprinkling was done by the city employés.
It has been shown that the object of the act was to furnish water for the public and private uses of the inhabitants of the city; and there is no express provision for payment for watGr used for the general and ordinary public purposes, such as fire and street uses. On the other hand, there is an evident intention to keep the reasonable control of the use of water for these purposes in the board, so far as it is practicable, and not to give to the council or any other board unlimited control and power to make requisitions upon the water board, although the use of the hydrants, etc., is confided to the proper departments. Section 7 makes it the duty of the water board to equip itself with the necessary or desirable machinery and fixtures to furnish a full water supply for public and private use in the city. To that end it is given power to erect such fixtures as “reservoirs, jets, and fire hydrants,” lay pipes, etc., in and upon the public grounds. The section is as follows:
“Said commissioners shall have power, and it is hereby made their duty, as soon as may be after the necessary funds have been procured as herein provided, to purchase such land and materials, and to construct such reservoirs, buildings, machinery, and fixtures, as shall be deemed necessary or desirable to furnish a full supply of water for public and private use in said city.
“Sec. 8. Said commissioners shall have power to construct reservoirs, jets, and fire hydrants at such localities in said city as they may deem expedient and necessary, and to lay pipes in and through all the alleys and streets of said city; and also to construct in such localities as they may deem expedient, not exceeding one to each block, hydrants for public use, and to keep the same in repair; and also, with the consent of the common council of said city, to construct fountains in the public squares, or such other public grounds of said city as they shall deem expedient.”
From the reading of section 8, we may reasonably under stand that the water board, and not the council, is charged with the duty of locating fire hydrants and jets for public purposes. The council cannot control this. The same may be said of the hydrants for public use. These are evidently intended for the use of the individual, as contra-distinguished from the jets or fire hydrants, which are for the corporate use for general public purposes, such as fire, flushing sewers, street washing, and sprinkling. A limitation is put upon the power of the water board as to hydrants for public use, and the board is not given power to erect fountains, except with the consent of the council. It would seem that the responsibility for the erection and maintenance of all of these things is wholly upon the board, except as limited by the requirement as to fountains. It is discretionary with them when and where these things shall be, and when they shall be discontinued or removed; but, while continued, the expense falls upon the boardr The discretion alluded to is not an arbitrary one, but one which is to be exercised reasonably in the furtherance of the general design of the law. This construction recognizes the propriety of a return to the public for the aid furnished by it in erecting the plant, provided for by section 4 of the original act, and by the act of 1873 (Act No. 302, Laws 1873), which provided for a loan of $1,000,000, and an annual tax of $75,000, without jeopardizing the scheme by turning it over to the control of the council, or subjecting it to the insatiate demands of the various other boards, departments, and public institutions of the city. We are of the opinion that the defendant is not liable to the plaintiff for the water used.
The judgment is reversed, and judgment will be entered here for the defendant, with costs of both courts.
Moore, Grant, and Montgomery, JJ., concurred.
Long, J., did not sit. | [
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Moore, J.
This suit was brought to recover a commission of 25 cents an acre, to which plaintiff claims he was entitled because of the purchase by defendant of a quantity of lands and timber. The case was tried before a jury. The plaintiff obtained judgment. The defendant has brought the case here by writ of error.
It is claimed the contract, as stated in the declaration, is so uncei’tain and indefinite the plaintiff is not entitled to recover upon it. The material portion of the declaration is as follows:
“For that whereas, heretofore, to wit, on the first day of September, 1899, the said defendant was desirous of becoming acquainted with timber lands of the Upper Peninsula of Michigan, with a view of making purchases thereof, or of the timber thereon, for himself and others, and, being so desirous, did request the said plaintiff to show him, the said defendant, timber lands of the Upper Peninsula of Michigan, generally, including certain timber lands, or the timber thereoxx, that he, said plaintiff, was empowered to sell, and to give him, said defendant, information relative to such timber lands of the Upper Peninsula, the character of the timber, and the situation and desirability of the same. And in considex’ation of the promise of him, said plaintiff, then and there made, to comply with the request of him, said defendaxxt, as aforesaid, said defendant did promise and agree to and with said plaintiff that all timber lands, or the timber thereon, of the Upper Peninsula of Michigan, which might thereafter be purchased by him, said defendant, or for others through the exertions of him, said defendant, should be purchased by and through him, said plaintiff, upon which purchase or purchases he, the said plaintiff, should be entitled to a fair commission upon the purchase of such lands or timber as he, said plaintiff, was not then empowered to sell, the said lands or timber which the said plaintiff was empowered to sell being named at a price which included the commission of said plaintiff; and that, in the event of any of said lands, or the timber thereon, being purchased by and in the name of him, said defendant, or by other persons through the exertions of him, said defendant, direct from the owners thereof, and not through him, said plaintiff, that he, said defendant, would pay to him, said plaintiff, the sum of 25 cents per acre for each and every acre so purchased. And that said plaintiff says that he, said plaintiff, did, to wit, upon the day and year aforesaid, fully perform and carry out his agreement, as aforesaid, in all respects as agreed, as aforesaid, and that the said defendant did afterwards purchase for himself, and by others, through his exertions, a large quantity, to wit,” etc.
No demurrer was interposed to the declaration. A bill of particulars was filed, in which a statement was made that plaintiff’s claim was founded upon a certain contract, which was set out in detail, by which plaintiff was entitled to a commission of 25 cents an acre on lands which were described in detail. The plea of the general issue was filed, with notice of set-off attached. The testimony related to the lands described in the bill of particulars. While the declaration, if demurred to, might be regarded as indefinite and uncertain, when taken in connection with the bill of particulars it could not be so regarded. No one was misled by the pleadings. They fully advised the defendant of the claim made against him by the plaintiff.
Complaint is made because testimony' was permitted showing plaintiff hired a livery team, and employed men to aid in looking the lands in controversy. It is said this was not admissible under the bill of particulars. It was not claimed that defendant was liable in this action for the pay of the men or the use of the team. The testimony was received to show what was done after the plaintiff claims a contract was made. We think it was proper to show the history of the transaction, and that was the only purpose of the testimony.
It is said the court erred in excluding a letter written by Mr. Russell to Mr. Hull, which it is claimed was inconsistent with the testimony of plaintiff and with the contract sworn to by him. The testimony does not disclose that the letter was written by the direction or authority or knowledge of plaintiff. Nor does it show that Mr. Russell had any interest in the contract plaintiff claims was made, but which defendant says was not made. We think the letter was properly excluded.
The testimony discloses that, when the conversation occurred between the parties to this litigation which plaintiff claims constituted the contract, one Mr. C. was present. He was called as a witness by defendant. He was asked if certain things sworn to by the plaintiff were stated in that conversation'. He replied that he heard nothing of the kind. On the cross-examination he was asked if he had not stated at a certain time and place, and in the presence of certain persons who were named, that Mr. Culver was entitled to a commission of 25 cents an acre from defendant. He denied he had so stated. Witnesses were then called in rebuttal, who contradicted Mr. O. in that regard. This is said to be error. The court allowed the testimony as bearing simply upon the credibility of the witness, and so instructed the jury. We think the testimony was admissible for that purpose.
Error is assigned upon the refusal of the court to give certain requests to charge. It would not profit any one to take these- assignments of error up seriatim. The court gave a very careful exposition of the law applicable to the case. The serious question in the case was one of fact. The parties were in direct conflict as to what the agreement was. That question was fully and properly submitted to the jury.
What we have said in relation to the charge of the court will dispose of the error assigned because the judge refused to grant a new trial.
Judgment is affirmed.
Hooker, C. J., Grant and Montgomery, JJ., concurred. | [
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Montgomery, J.
The complainants are respectively the widow and children of John Hamilton, deceased. The defendants are executors of the will of Norman Hamilton. John and Norman Hamilton were brothers. In 1847 a patent was issued to Norman Hamilton for 80 acres of land in Montcalm county, and in 1856 the title to an adjoining 40 was vested in Norman by deed of conveyance from Daniel Swift. The 80 was, of course, wholly unimproved when title was acquired from the government, and the 40 purchased from Swift was but partially improved when purchased. John Hamilton, with his wife and family, went upon the land soon after its purchase, and continued to occupy it up to the time of his death, in 1891. The terms under which he occupied are the subject of this controversy. In May, 1870, Norman visited the home of John at the premises in question, and at that time a life lease was executed to John and his wife, Adah, which continued the estate to the survivor for life. The rent reserved was nominal ($1 per year). The lease contained a forfeiture clause as follows:
“And it is expressly understood, declared, and agreed by and between the parties hereto, and these presents are made upon the express condition, that the term hereby created shall not in any case be assignable by the said parties of the second part, or either of them, or by the survivor of them, nor shall the same be taken in execution, or be mortgaged, pledged, or in any way aliened; and that in the event of the said term hereby granted and created, or the said demised premises, being assigned, mortgaged, pledged, or in any way aliened, sold, or taken in execution, or the said parties of the second part, or either of them, or the survivor of them, becoming bankrupt or insolvent, or in case of the nonperformance of the covenants aforesaid, that then, in either or any of such case or cases, the said term or estate hereby created or intended so to be shall immediately cease and determine, and these presents become void, and the said demised premises at once revert to the said party of the first part, his heirs, executors, administrators, or assigns, and he or they be thereupon at liberty to enter upon said demised premises, either with or without formal demand for possession thereof, and the same to have again as of his or their forever estate, notwithstanding the said parties of the second part, or the survivor of them, may still be alive, anything herein contained to the contrary notwithstanding.”
Norman Hamilton died in 1874, leaving a will, which contained the following provisions:
“The farm and lands of which my brother John and his wife, Adah, hold a life lease from me, after the decease of the survivor of them, I give and devise to the then living sons of my said brother John equally, share and share alike. * * * But I hereby declare and direct that the said above-mentioned devises of my said lands in the said State of Michigan shall not take effect until after the decease of my said daughter without lawful issue; nor shall such devises prevent or be a bar to my said executors and trustees, or the survivor or survivors, successor or successors, of them, from selling, disposing of, and conveying all of my said lands in the State of Michigan of which my said brothers, John, Ezra, and William, and their respective wives, do not hold life leases from me.”
The daughter referred to is still living, and has issue. In 1888, John Hamilton and wife gave a deed of a 50-foot strip of the land to the Toledo, Saginaw & Muskegon Railway Company for a railroad. The executors, claiming that the covenant to keep in repair and the condition against alienation had been broken, .gave notice of the termination of the tenancy, and instituted an action in ejectment. Complainants thereupon filed this bill to stay proceedings in ejectment. The bill recites the facts above set up, and avers that the consideration for the purchase of the land originally was furnished by John, and that Norman held the land solely in trust for John and his family, and never had any equitable interest therein. As to the life lease, the bill avers:
“Your oratrix and orators further show unto the court that on the 25th day of May, in the year 1870, the said Norman Hamilton visited the said John Hamilton at his said home in Fairplains, as he had frequently done before, and then proposed, during the course of their visit, that he would secure to your oratrix, Adah Hamilton, a life estate in said lands if she should survive the said John Hamilton, but would hold the title of such lands in such shape that the said John Hamilton could not, under any circumstances, incumber or convey the same, so as to make your oratrix absolutely certain that she would have a home on said lands, and a right to the use of the same, during the years that she might survive the said John Hamilton; that your oratrix was anxious to be made as safe in such event as possible, for the reason that she had then, and has had ever since, the personal charge and burden of maintaining the said John Milton Hamilton, her son, as aforesaid; and having full faith and confidence in the said Norman Hamilton, and believing that whatever measure he suggested would be wise and prudent, and would be carried out by him in perfect good faith, she accepted the proposition then made by the said Norman Hamilton, to the effect that the said Norman Hamilton should execute to the said John Hamilton and your oratrix, Adah Hamilton, jointly, a. life lease of said lands, reserving to the said Norman Hamilton one dollar per year as the rent therefor; and that such life lease was then and there executed, at the request of the said Norman Hamilton, and by him signed, and signed also by tbe said John Hamilton and your oratrix, but was never acknowledged as a conveyance, and has ever since then been in the possession of your oratrix.
“Tour oratrix and orators further show that neither said John Hamilton nor your oratrix understood or supposed or believed that the papers so executed could or would be used at any time in the future as evidence of the ownership of said Norman Hamilton in the lands first above described, or that it would have that effect, or hinder or embarrass them in any way; and were assured over and over again by the said Norman Hamilton, at the time it was made, that said life lease would not change their relationship or affect the rights of any one in any way whatever, except to secure to your oratrix the entire right to use and keep said lands for the years that she might survive the said John Hamilton, and that, if she was thus secured, then the said John Hamilton could not, in any way, by will or otherwise, deprive your oratrix of such exclusive use of said lands during such period; and were repeatedly assured by said Norman Hamilton that said lands were theirs and their sons’ after them, but he wanted only to protect your oratrix and her sons from any profligacy or mischance on the part of said John Hamilton.”
The bill also sets up adverse possession. The defendants answered, denying adverse possession, alleging title in the executors, asserting the breach of the conditions of the lease, and praying a decree quieting title. The circuit judge gave a decree for complainants, and defendants appeal.
It is clear that the claim that a trust was created by the original conveyance to Norman cannot be maintained. The statute (3 Comp. Laws, § 8835) expressly declares that when a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the alienee in such conveyance, subject only to the provisions of the next section, which relates to creditors. No case could be imagined in which the rule of this section could have more direct application. And the case also illustrates the wisdom of the enactment. After the lapse of all these years, a feeble attempt is made to impress a trust upon these lands by testimony tending to show that the consideration was furnished by John Hamilton. It is possible that on this record, and in the absence of the evidence afforded by the life lease, the force of which will be hereinafter referred to, there may be a slight preponderance in favor of this claim. But the lips of Norman Hamilton are sealed in death. The statute was enacted to meet such a case. It should be added that Norman Hamilton is shown to have expended some money to assist in making improvements on the land, which is some testimony, in addition to the fact that the title stood in him, to show him the beneficial owner. The most important fact in the case, however, is the execution of the life lease in 1870. This is, in terms, a plain, unequivocal recognition of Norman Hamilton as the true owner. Nor are we impressed with the effort to render this valueless by parol testimony. Its terms are unambiguous, it appears to have been made upon full consideration, and the declarations of Norman that the farm was to belong to John’s children after his death, if made, import no more than that he intended to convey the remainder to them, by will or otherwise. Certainly all parties must have understood that he had not done so by the lease. There is no evidence to sustain a charge of fraud in securing the execution of the lease.
There was no adverse possession. The relations of the parties preclude this claim. 1 Am. & Eng. Enc. Law (2d Ed.), p. 807.
It seems not to be contested that, if the lease is a subsisting, binding agreement, its covenants have been brokén in such manner as to entitle the remainder-men to reenter.
It follows that the decree must be reversed, and a decree entered here for defendants, with costs of both courts.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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] |
Grant, J.
Plaintiffs brought replevin to recover a stock of goods for a violation of the following contract, dated July 21, 1898:
“ The said George Hildebrand agrees to buy the tailoring stock and fixtures belonging to Goodspeed & Son, as per invoice, and on the following conditions: To pay down, as security for faithful performance of.contract, three hundred dollars. To report each night amount of sales, and upon what terms were made, together with stock number of goods sold; and to turn over amount of cash received. Settlements to be made every week, and, after store expense is paid, the said Goodspeed & Son to place balance, if any, to credit of said George Hildebrand, to apply on purchase price of goods. No outside debts to be made on credit of store, and no credits given, without sanction of said Goodspeed & Son. Any failure in performance of this contract or agreement on the part of said George Hildebrand forfeits all rights and all payments made; and, furthermore, if said George Hildebrand fails to comply with all the conditions of this contract or agreement, the said Goodspeed & Son have the right to enter said store and repossess said property without process of law, and said George Hildebrand hereby waives any right of demand for said goods. The said stock of woolens, trimmings, fixtures, etc., to remain absolutely the property of Goodspeed & Son until paid for. Inventory of said stock and fixtures to be made every six months, and same reported to Goodspeed & Son; and the said Goodspeed & Son hereby have the privilege of checking and proving said inventory at their option. The said George Hildebrand is not to sell this contract or agreement without the written consent of said Goodspeed & Son.”
We think the attack made by the defendant’s counsel upon Delbert C. Goodspeed in his cross-examination, and the remarks made to him by one of the attorneys, were unjustifiable, and constitute reversible error, within Gould v. Gregory, 126 Mich. 594 (85 N. W. 1077); Coan v. Township of Brownstown, 126 Mich. 626 (86 N. W. 130); People v. Gotshall, 123 Mich. 474 (82 N. W. 274); and many other decisions of this court. It is unnecessary to quote these questions. They are of the same character as those in the cases cited, and equally as prejudicial.
The court instructed the jury that, inasmuch as the contract did not provide any specific time for the full payment of the stock, a reasonable time was intended, and if they should find that the defendant was paying for such stock of goods within a reasonable time, and that that time had not arrived when the suit was brought, and defendant was not otherwise in default, they must find for the defendant. ■ There was no question of reasonable time involved. No claim was made by the plaintiffs that defendant did not act within a reasonable time. They based their suit upon the violation of the provisions of the contract, upon which there was a sharp conflict of testimony. Were this the sole error in the case, we might hold that it was not prejudicial, but-we decide the point in view of another trial.
Judgment reversed, and new trial ordered.
Hooker, C. J., Moore and Montgomery, JJ., concurred. | [
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Montgomery, J.
Bill to enforce a mechanic’s lien. The decree entered in the circuit court is, in part, as follows:
'' The demurrer of the defendant to the bill of complaint having been duly brought for argument, and it appearing to the court that a former demurrer having been sustained, and the said complainants having had leave of the court to amend their said bill of .complaint, and that an amended bill of complaint has been filed therein, and that said amended bill of complaint does not contain any allegations that proof of service of statement of lien has been filed with the register of deeds, and it appearing by admission of counsel for complainants that no such proof was actually filed, and that therefore complainants are unable to further amend by adding such a statement, * * * it is ordered that the demurrer be, and the same is hereby, sustained, and that the said bill of complaint be dismissed,” etc.
The sole point raised on appeal is that the same defect having existed in the original bill, and the original demurrer having assigned but a single ground, — the omission to verify under oath, — the point cannot now be raised by a demurrer to the amended bill. Upon this point counsel cite Munch v. Shabel, 37 Mich., at page 168.
If we assume that correct practice required defendant to answer over the complainants’ amended bill, and that the second demurrer was irregular, the complainants should have met it by a motion to strike. Instead of doing this, the case is brought to a hearing on demurrer, without apparent objection. Not only this, but, as appears by the decree, complainants admit that the defect which the circuit judge found in the bill could not be remedied. The record does not disclose that at any stage the circuit judge was apprised of any objection to a determination of the questions- raised on demurrer. We think the com plainants must, under these circumstances, be held to have waived any objection to the practice.
No argument is presented on the merits, and the decree will therefore be affirmed.
Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. | [
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Marston, J:
The complainant, March 31, 1875, filed his bill to foreclose a mortgage given by defendants Henry and Mary Ann Wagar December 16, 1872. Stone, having bid in a portion of the mortgaged premises at a sale thereof April 6, 1874, on an execution issued in his favor, was made a party defendant. After the cause was at issue, complainant filed his petition, praying that a receiver might be appointed to take charge of, harvest, thresh aird market a crop of wheat then growing .upon the mortgaged premises, and to have the proceeds thereof applied upon the mortgage debt. Notice was given and a hearing had upon the petition, and a receiver was appointed to harvest and sell the wheat and to bring the proceeds thereof into court. On the 26th day of April, 1876, the receiver filed his report showing one hundred and six dollars and ninety-one cents in his hands, the net proceeds of the wheat. This amount was by order of the court paid over to the register. The premises were on the 8 th day of April, 1876, sold under the foreclosure proceedings, and after applying the proceeds of said sale, there was still due the complainant a large balance. ' TJpon the 26th day of April, 1876, complainant filed his petition asking for an order directing the register to pay to him the amount theretofore paid into court by the receiver, to be applied on the balance due upon his mortgage debt. A hearing was had, the prayer of the petitioner denied, and the amount ordered to be paid to Stone, the execution purchaser of the premises upon which the wheat was grown. From this order complainant appealed.
It has become the well settled doctrine in this state that a mortgage conveys no title to the mortgagee. It is but a security for the debt, and until the title passes upon a foreclosure and sale of the property, the mortgagee has no legal interest in the land, and is not entitled to the possession. —Hogsett v. Ellis, 17 Mich., 363; Ladue v. Detroit & M. R. R. Co., 13 Mich., 380; Van Husan v. Kanouse, 13 Mich., 303; Caruthers v. Humphrey, 12 Mich., 270.
The mortgagor is entitled to the possession during the proceedings taken to foreclose the mortgage and until a sale has been made and the title of the purchaser has become absolute, and until the title has become absolute upon a foreclosure of the mortgage, an action of ejectment cannot be maintained by the mortgagee, his í assigns or representatives, to recover possession of the mortgaged premises. —2 Comp. L., § 6263. Since the passage of this act, which prevents the mortgagee from obtaining possession until he has acquired an absolute title to the mortgaged premises, the mortgage binds only' the lands. The rents and profits of the laud do not enter into or form any part, of the security. At the time of giving the security both parties understand that the mortgagor will, and that the mortgagee will not, he entitled to the rents, issues or profits of the mortgaged premises, until the title shall have become absolute upon - a foreclosure of the mortgage. Until the happening of this event, the mortgagor has a clear right to the possession and to the income which he may derive therefrom, and the legislature by the passage of this statute contemplated that he should have such possession and income to aid him in paying the debt. It would be a novel doctrine to hold that the mortgagee had a right to the profits incident to ownership, and yet that he had neither a legal title or right to possession.' The legislature, in depriving him of the means of enforcing possession, intended thereby also to cut off and deprive him of all right's which he could have acquired, in case he obtained possession before acquiring an absolute title. To deprive him of this particular remedy, and yet allow him in some other proceedings to, in effect, arrive at the same result, would be but a meaningless proceeding, and would not be securing to the mortgagor those substantial rights which it was the evident intent he should have.
We do not overlook the fact that a contrary doctrine has been held elsewhere under a similar statute. We cannot avoid thinking, however, that for us to so hold would be but a mere evasion of our statute. Wé are of opinion, therefore, that complainant ivas not entitled to the moneys paid into court by the receiver, as under our statutes such an officer could not be appointed.
The order of the court below must be affirmed, with .costs.
The other Justices concurred. | [
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The Court held that where on motion of the defendant, an order to hold to bail is. vacated, it is within the discretion of the circuit judge, as a part of the order vacating the same, to require the defendant to enter. his appearance in the cause.
Order to show cause denied. | [
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Cooley, Ch. J:
This is a suit by garnishee process to recover of defendants a sum owing by them to one Tucker, of whom the plaintiffs are judgment creditors. The garnishee process was served December 9, 1875. On the 16th of October, 1874, Tucker was employed by the defendants doing piecework in the manufacture of organs, but without any definite contract for the continuance of the -employment. Being then indebted to his mother for money loaned, he executed to her an assignment of all the wages that might thereafter become due to him from the defendants. Between that date and December 9th following, sixtv-fire dollars and fifty cents had become due to him, which was less than he was then owing to his mother. It is this sum which is now in dispute; the plaintiffs claiming that the assignment could not reach it, because the moneys were not earned when the assignment was made, and there was no subsisting contract under which they were to be earned.
It has often been decided that a mere possibility is not the subject of assignment. A contingent claim against a foreign country to damages to be recovered by treaty is an illustration.—Vasse v. Comegys, 4 Wash. C. C., 570. A sale of fish thereafter to be caught passes no title when they are caught.—Low v. Pew, 108 Mass., 347. The-same is held of a sale of sums to be earned by. a physician in' specified future years.—Skipper v. Stokes, 42 Ala., 255; and see Purcell v. Mather, 35 Ala., 570. In Massachusetts an assignment of future services, there being no existing contract of service, has been held invalid; but cases are cited in the same state which hold that if the assignor is at the time under a contract of service, it is maintainable.—Mulhall v. Quinn, 1 Gray, 105; see also Hartley v. Tapley, 2 Gray, 565. An officer may assign his salary, though removable at any time.—Brackett v. Blake, 7 Met., 335. In Pennsylvania an assignment which professes to transfer a debt to ■ arise for wages not yet earned, against, any one by whom the assignor may thereafter be employed, is held to be ineffectual even after the wages are earned.—Jermyn v. Moffitt, 75 Penn. St., 399. In New Hampshire it is decided that wages to become due may be effectually assigned, provided there is at the time an existing contract under which they are to be earned.—Garland v. Harrington, 51. N. H., 409. The like conclusion is reached in Connecticut.—Hawley v. Bristol, 39 Conn., 26; Augur v. N. Y., etc., Co., 39 Conn., 536. The distinction between the-cases in which the wages are not earned under a contract existing at the time of the assignment and those in which they are, is said to be that “in the former the future earnings are a mere possibility, coupled with no interest, while in • the latter the possibility of future earnings is coupled with an interest, and the right to thorn, though contingent and liable to be defeated, is a vested right.”—Low v. Pew, 108 Mass., 347, 350.
But an assignment of demands having no actual existence, though invalid at law, may be valid in equity as an agreement, and take effect as an assignment when the demands intended are subsequently brought into existence.—Field v. New York, 6 N. Y., 179; Mitchell v. Winslow, 2 Story C. C., 630, 638. And in this case the assignee would have had a plain right, we think, to protect her interest under the assignment to the extent to which the wages were earned, if the sum had been sufficient to give the court of chancery jurisdiction. And it is worthy of consideration whether, under the garnishee laws, it was the intention to permit the creditor to reach demands to which the debtor had no equitable right, even though his legal title had not been parted with, or to force the equitable owner into a suit in equity for the protection of his rights.
But we are inclined to think this case ought not to be distinguished from those in which the wages were earned under a continuous contract. The defendant was employed at the time the assignment was made.' It is true he might never have received more work, but the expectation of continuous work existed on the part of employer and employed. The proposed transfer had reference to wages to be earned in an existing employment, and in this it differed from that in Mulhall v. Quinn, supra, where the defendant only performed jobs occasionally. It differs stilly more decidedly from those cases in which no particular employment was in view in making the assignment. We do not see why a continuous employment at piecework should differ from any other continuous employment, if in the latter the right to discharge at will exists. The substantial difference in the two cases is not in the continuance of employment or in the expectation thereof, but in the manner of determining the compensation. Future wages no more exist potentially in the one case than in the other.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
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Graves, J:
The plaintiff sued on the common counts to recover for services of his minor son. The jury found for defendant, and plaintiff asks a review of certain questions on a case made.
The young man’s service was peddling beer.
There was evidence.tending to show he had been emancipated by plaintiff, and that on engaging with defendant he agreed to answer for any beer he should carry out and for which he should fail to bring back beer tickets or cash, and that he proved untrustworthy and knavish, and embezzled an amount exceeding all unpaid wages.
Some objections of plaintiff’s counsel appear which proceed upon the idea that the investigation into the dishonest and criminal conduct of young Schoenberg was for the purpose, of setting off the damages caused by his wrong, against the claim made for his wages. The record is not so understood.- The purpose of the proof was not, it is supposed,, to make out set-off, but to prove the circumstances of the service, and show that it was not merely worthless, but positively injurious to a large amount. And this was lawful. The action was for what the identical service of ilie young man .was fairly and reasonably worth, and- the investigation of that subject necessarily included an inquiry into- his behavior and fidelity.
The plaintiff, testifying in his own behalf, stated that his son was born November 9th, 1854, and from the fall of 1874 to the month of May following carried on the wood business with him, but in February afterwards engaged with defendant.
He then, in answer to his counsel, stated further that the young man worked for Captain Ralph a little over a year. His counsel then inquired who gave the son permission to work for Captain Ralph, and the court, on objection, overruled the question. It is argued that the question was a proper one to elicit an answer bearing on the claim that the son was emancipated when he entered defendant’s service. There would be force in this if it appeared in any way that the service or going into service for Captain Ralph was not so early as to' be too remote in point of time. If on the occasion of the hiring to Captain Ralph the plaintiff’s consent was sought, it went to show that emancipation had not then occurred, but it could not weigh in regard to the situation at a considerably later date.
The fact of emancipation may take place suddenly and by express arrangement, or it may occur gradually and by conduct implying that the parent and child have mutually assented to the child’s release\from parental authority. And in either case the change may be wrought in a short time. Now the record fails to show at what time the young man went into Ralph’s service, and therefore the excluded question does not 'appear to have been material. It does-not appear that what was called for by it could have borne on the young man’s status when he went into defendant’s service.
Numerous instructions were prayed. All- requested by defendant, except the sixth and ninth, were given. ’ Of the plaintiff’s requests, the second, third, and fourth wero given in terms, the first, fifth, and sixth with remarks, and the seventh, eighth, ninth and tenth were denied.
Plaintiffs first request called for an imperative and unqualified charge that the father is entitled to the earnings and wages of his miuor son. This was plainly improper. Instructions upon the point were given under requests made by defendant. The fifth request of plaintiff implied a claim on the part of defendant which had not been made. The remarles of the court on refusing the request were not objectionable. The sixth request was very obscure and the jury could hardly have understood it if it had been given. The observations of the court were not improper. The seventh request simply embodied certain propositions of fact and conveyed no instruction in point of law. And the other requests which were refused, were not applicable. The charge given is exposed to some criticism, but in the main it is substantially correct, and a careful inspection of the whole case leads to the opinion that the jury were not misled, but on the contrary, were brought to a right conclusion.
As no error is discovered of which the plaintiff is entitled to complain, the judgment should be affirmed, with costs.
The other Justices concurred. | [
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Graves, J:
The printed record in this case is replete with inconsistencies and inaccuracies, and especially in regard to dates, and much embarrassment has been consequently experienced in threading the details. The material facts are, however, believed to be sufficiently ascertained and understood to authorize conclusions upon the merits.
The bill was filed April 26, 1875, to foreclose a mortgage made July 29, 1867, by the defendants Theodore and Joseph Rogers to one Sarah L. Ashley, and by her assigned to complainant June 11, 1868. It would seem that Mrs. Ashley conveyed the premises to the mortgagors by deed dated July 24, 1867. The mortgage embraced a little less than fifty acres, and comprised three irregular shaped, but contiguous parcels, and one of these parcels included premises called the grist-mill lot or property, of a little more than three acres with a mill and its appurtenances, a saw-mill lot lying very near, of a little over an acre and a half, and also a piece of a few rods in extent, called the piece between. Before hearing, the cause was discontinued as against the defendant Wright. As to the rest of the defendants, except Dye and Breese, the bill was taken as confessed. Dye answered, and it appeared he had no interest except as to a parcel of about five and a half acres on one end of one of the three great parcels in the mortgage. He had bought this, with other lands, of defendant McOmber, and his posi tion was, that Mrs. Ashley released it from the mortgage before she assigned io complainant. The court sustained this defense and finally dismissed the bill as to Dye. Breese answered, and claimed, among other things, that March 7, 1870, the defendant Emma Sweet mortgaged to the defendant Joseph Bogers all the premises in the Ashley mortgage except the two mill lots .and appurtenances, the piece between, and the Dye parcel of five and a half acres; that this mortgage was assigned to. him by Bogers; that he foreclosed under the statute in 1872 and became the ■ purchaser and went into possession, and has since hold possession and used and improved the property.
• July 24, 1876, foreclosure was granted and Breese appealed. The controversy is confined to complainant and Breese, and Breese’s right to contend is based finally upon his interest under the subsequent mortgage. He is a subsequent incumbrancer of a portion of the premises claimed to be embraced by the mortgage sought to be foreclosed. There is no equity between co-defendants to be settled. The questions made relate to the description in the bill and mortgage, the relative equities of complainant and Breese in the matter of working out a satisfaction of complainant’s mortgage through sale of the property in that mortgage, and the propriety of certain proceedings in the cause. It is perhaps best to dispose of the points concerning the description at the outset. It is objected, in the first place, that there is a fatal variance between the description in the bill and in the mortgage, and in the second place, that there is an entire lack of description of the land in the mortgage. This last objection may be first considered.
The grounds of the objection are, that no town, county or state is mentioned, or any circumstance or thing referred to, to fix the location, and that in regard to the first and second descriptions, no commencement is given.
It is not essential to the validity of a grant that the property should be so described as to avoid the necessity of an appeal to extrinsic proofs to apply the grant to the property. The subject matter must undoubtedly be so earmarked in the grant as to be capable of being distinguished from other things of the same kind. But it is always competent to fix and identify by extrinsic proof the natural' monuments and other badges of identity and connect the description in the deed with the material subject matter dealt with by it.—Blake v. Doherty, 5 Wheat., 359; see also Wilson v. Boyce, 2 Otto, 320.
The property to be granted may have a particular name by reputation, and.if so it may be described by such, name, without giving monuments, boundaries or the like.—Goodenow v. Curtis, 18 Mich., 298; Sargent v. Adams, 3 Gray, 72; Woods v. Sawin, 4 Gray, 322; Gerrish v. Towne, 3 Gray, 82; and outside evidence may be resorted to, to apply the name to that which it signifies. Indeed, the instances are rare in which no help whatever is required. If the means are given in the grant, either by a name 'of notoriety or by specified monuments and other definite particulars, to identify the thing meant to be granted, with the aid of outside examination and proof to fix and determine the monuments and other particulars or connect the name with the thing, the description is prima facie sufficient.
And omitting to name the state, county and township will not prejudice, where other adequate elements of identification exist.—Russell v. Sweezey, 22 Mich., 235; Atwater v. Schenck, 9 Wis., 160; Mecklem v. Blake, 19 Wis., 397; Pursley v. Hayes, 22 Iowa, 11; Ives v. Kimball, 1 Mich., 313;
It is also well settled that if there are descriptive signs-satisfactorily ascertained which designate the thing meant to be granted, the addition of circumstances- or accompaniments which are untrue will not defeat the grant. They' may be rejected.—Worthington v. Hylyer, 4 Mass., 196. This principle is confirmed and its application illustrated in numerous cases. Among others, see the following: Ives v. Kimball, 1 Mich., 308: Anderson v. Baughman, 7 Mich., 69; Loomis v. Jackson, 19 J. R., 449; Jackson v. Marsh, 6 Cow., 281; Jackson v. Clark, 7 J. R., 217; Doe v. Roe, 1 Wend., 541; Hathaway v. Power, 6 Hill, 453; Gouverneur v. Titus, 1 Edw. Chy. R., 477; Peck v. Mallams, 6 Seld., 509, per Johnson, J.; Hannum v. Kingsley, 107 Mass., 355; Lyman v. Loomis, 5 N. H., 408; Barnard v. Martin, Id., 536; Johnson v. Simpson, 36 N. H., 91; Smith v. Strong, 14 Pick., 128; Doane v. Willcutt, 16 Gray, 368; Thatcher v. Howland, 2 Met., 41; Hull v. Fuller, 7 Ft., 100; Law v. Hempstead, 10 Conn., 23; McChesney v. Wainwright, 5 Ohio, 453; Eggleston v. Bradford, 10 Ohio, 312; Stringer v. Young’s Lessee, 3 Pet., 320; Barclay v. Howell’s Lessee, 6 Pet., 498; Lodge’s Lessee v. Lee, 6 Cranch, 237; Parker v. Kane, 22 How., 1.
Now it is quite plain that the descriptive part of complainant’s mortgage has some inaccuracies, but it is equally plain that the terms of the description .when taken together are abundantly sufficient, with such aids as are admissible, to identify the land.
There are several monuments and particulars given, and they are arranged in definite space relations to distinguish-the exact location and define the premises, and no other place in the world could be found marked out by such a combination of features. We have two highways, the- river Tiffin, a bridge, a ravine, the south line of Power’s land, certain lines of sections, and these are spaced off, one from another, by course and -distance.
Then the description represents the land as being on sections one and twelve in township eight south of range one east. . ,j
When we come to traverse these sections to find the land, we discover the river, the two highways, the ravine, the bridge, and Power’s .south line, all arranged in the relative positions indicated.
We turn to the mortgage and find the first and second descriptions have the same starting point, and that both-parcels are capable of being run out as one. At the same fimo we notice that such starting point is the quarter stake. on the southwest corner of the southeast quarter of a secr tion, but that the conveyancer either omitted the number of the section, or by mistake called it number “eight.” An examination of the phraseology and of the government lines and the land marks given in'the mortgage and found, on the ground at once explain the matter and show that the number of the section was left out and that the word “eight” was intended as the number of the township. Bearing in mind that the first and second parcels have the same starting point, to-wit: the quarter stake on the southwest corner of the southeast quarter of a section, we observe that according to the description of the second parcel, there is a call for a highway at the end of the first course, and. also for one at the end of the second course, and for the centre of the Tiffin river at the end of the fourth, whilst the fifth is required to run near the centre of that river, and the sixth to terminate at Power’s south line. These, marks are found, and it becomes clear that the starting point for the two parcels was meant to be at the quarter post on the southwest corner of the southeast quarter of. section one.
The ascertained particulars imperatively require section one as the section containing the quarter at the corner of which the quarter post mentioned is situated.
It is still objected that where the mortgage gives the sections, township and range, it places the first parcel on the west half of the northeast quarter of twelve, whereas the other terms place it on the east, half of the northwest quarter, and that it also places the second parcel on the west half of the southeast quarter of section one, instead of the east half of the southwest quarter, where it is claimed to be.
The landmarks given in the mortgage, and the facts found on the ground, conclusively identify the property without resort to these superadded circumstances, and it is demonstrated that the conveyancer, in.attempting to give the exact eighty, acre lot, blundered. And it is only necessary to reject the expression “the west half of northeast quarter of” in regard to the'first parcel, and the expression, “on the west half of southeast quarter of,” in connection with the description of the second parcel, to render the description consistent and sufficient. That it is proper to reject these unnecessary and discordant circumstances, is sanctioned by overwhelming authority. See eases cited.
There are still other considerations which ought not to-be overlooked in view of the position held by the defendantBreese. In the first place this mortgage and several grants of parts of the property, and which grants the defense liasall along assumed to be of parts of the property, were all recorded as grants of lands situated in Lenawee county, and some of them identified the location with entire correctness. Moreover, the whole drift of the answer points to the very-same property; and defendant’s mortgage, the mortgage under which he raises this defense, not only follows the same courses: and gives the same monuments and particulars, but actually brings to notice the existence of the grist mill and saw mill within the general lines, by an exception, and the answer at last asserts that defendant has been in actual possession of the unexcepted portion for many years under his mortgage, whilst the witness facts of the two descriptions so tally as to forbid argument that the two mortgages do not identify the same land.
The objection of defendant against the description in complainant’s mortgage is hence totally untenable.
The bill describes the same land, but with accuracy, and, the objection of variance is of course without merit.
The answer suggested the existence of some equities by defendant against complainant, in consequence of certain grants and releases given before defendant’s mortgage and before the inception of the title on which it is based. But. this claim is very properly not insisted on.
Before proceeding further it is necessary to explain somewhat, and more or less repetition can hardly be avoided.
We have already seen that the mortgage sought to be- foreclosed was made in 1867, and was assigned to complainant in June, 1868; that the premises were described as three principal parcels, upon one of which was a grist-mill property, a saw-mill lot and a small piece between, and that another embraced a piece of about five acres and a half released to McOmber by Mrs. Ashley before she assigned the mortgage to complainant.
We may now notice' the later incumbrances acquired by complainant and defendant.
January 25, 1868, Joseph Rogers granted an undivided half of the grist-mill property to Parker, and this interest through mesne conveyances was vested in Sarah Smith, January 17, 1870, at which time she, with Myron Smith, mortgaged it to complainant, the mortgage purporting to be for twelve hundred and fifty dollars, on interest at ten per cent.
October 11, 1869, Theodore Rogers granted the other undivided half of the grist-mill property to Joseph Rogers, and he, in November of that year, granted it to Joseph and Sarah Bemenderfer, and they at that tinie mortgaged it back to Joseph Rogers, this mortgage purporting to be for fifteen hundred dollars, with interest at ten per cent. January 18, 1870, Joseph Rogers assigned it to complainant. March 7, 1870, Joseph Rogers quit-claimed to Emma Sweet, hnd she thereupon gave her mortgage to him on all the property described in the mortgage in suit, except the gristmill property, the saw-mill property, the piece between, and the five acres and a half which had been released to Mc-Omber. June 18, 1872, Joseph Rogers assigned this mortgage to defendant Breese.
From what has been said it appears that complainant owned the mortgage in suit, covering all the three great parcels except the piece his assignor had released to Mc-Omber, and that in January, 1870, by means of the two mortgages given by the Smiths and Bemenderfers, he acquired a second incumbrance on that part or portion of the premises in his first incumbrance designated as the grist-mill property, aud that afterwards and in June, 1872, the de fendant acquired the later mortgage made by Mrs. Sweet in March, 1870, on all the premises in complainant’s first mortgage except this property covered by complainant’s second incumbrance, and except also the saw-mill property, the piece between, and the released five and a half acres.
In this state of things, Breese proceeded in 1872 to foreclose this Sweet mortgage by advertisement, and he became purchaser on the sale, and in due time, as would seem, received his deed and went into possession and thereafter kept it.
When complainant came to file his bill in April, 1875, he took no notice of his second incumbrance under the Smith and Betnonderfer mortgages on the grist-mill property, but proceeded as though the only incumbrance he held on any part of the three great parcels was the mortgage assigned to him by Mrs. Ashley. The bill was in the' usual form to 'foreclose that mortgage and for no other relief.
In answering, Breese set up his mortgage made by Mrs. Sweet, his "foreclosure and possession, and stated that there were “sundry other mortgages upon some parts of the lands in said bill described, to a considerable amount;” that the other parcels of land covered by complainant’s mortgage had been sold' and conveyed before the premises he held under the Sweet mortgage; that in case of sale on complainant’s mortgage the parcels ought to be sold in the inverse order of their alienation; and at last asked that the securities might be marshaled according to the respective rights of the parties, and that sales might be made in such manner as to accord with the rules established in such cases, and that his premises might be last sold.
A general replication was filed, and the cause was carried on upon these pleadings to the time for hearing, in July, 1876.
In the meantime, however, complainant proceeded to foreclose his mortgages on the grist-mill property, by advertisement. He commenced a few days after the bill was filed, and the premises were struck off to him August 2, 1875, and deeds were made and filed, as seems to be conceded, in pursuance of the statute. • The undivided half covered by the Bemenderfer mortgage was bid off at nineteen hundred and eighteen dollars and eighty-three cents, and the other' at nineteen hundred and sixty-nine dollars ' and fifty-eight cents.
In the progress of the cause Breese seems to have adduced documentary evidence of his incumbrance under the Sweet mortgage and his foreclosure, and complainant seems • to 'have been allowed, but against Breese’s objection, to give similar proof of his junior incumbrance on the grist-mill property under the Smith and Bemenderfer mortgages, and of his proceedings to foreclose those ■ mortgages during the pendency of the suit. At length, when the cause stood for hearing, or at least when defendant so understood, and on the 17th of July, 1876, the court, in view of the circumstances and of defendant’s claim that the incumbrances on the property should be marshaled agreeable to equity and that the parcels might be exposed for sale in the inverse order of their alienation, or in such manner as to require a sale of the grist-mill property before resorting to that covered by defendant’s incumbrance, granted complainant leave, against Breese’s objection, to set forth by amendment -of the bill the fact of his being second incumbrancer of • the grist-mill property under the Smith and Bemenderfer mortgages, and further, that he claimed that the property should be sold in such manner as not to impair his rights as such incumbrancer of that portion of the property in his first mortgage. ' ■ 1 -
The order allowing this amendment of the bill also gave Breese leave to answer the new matter within five days, and directed that the cause should stand over for further hearing until July 24th, and that he might take further proof within that time, or take the same in open court-on ■' such further hearing. The bill having been amended pursuant to the order, Breese acted upon the leave to answer further, and on the 22d of July filed his amendments-. He sot np on information and belief that the Smith and Bemenderfer mortgages were made “for a much larger sum than Is or. was ever due or payable thereon; and that as nearly as he could learn about eight hundred dollars thereof ■was for usury, and was to cover a bonus to said complainant ; that large sums of money had been paid by the mortgagor and others to complainant thereon, which had not been allowed or credited, and that much had been paid for delay.” He further set up the purchase of complainant on the statutory foreclosures; that the amount claimed to be due and bid by complainant was one thousand dollars too much; that it was insisted that he, defendant, could not redeem, and that the. sale would become absolute August 2, 1876,.and after which no right would exist.to require the grist-mill property to be sold on the mortgage in suit;.that the undivided half deeded to,Mrs. Smith, and on which she gave the mortgage to complainant, was charged in the deed slip received with the mortgage in suit, and. that the other undivided half came to the .Bemenderfers charged in like manner, and of .which facts complainant had notice, and hence, that those mortgages ought not t,o be held a prior lien to that of defendant, except to the amount actually unpaid upon them, exclusive of costs. The amendments further claimed that before complainant could be entitled to avail himself of the Smith and Bemenderfer mortgages in this case, he must first relinquish all claim ,to any rights growing put of his statutory .foreclosures, and bring the mortgages into court ■apd submit all the equities in relation thereto, and ip relation to his first mortgage, and in relation to the rights of defendant, to the court.,
When the cause came up for further hearing on the 2áth of July, pursuant to the order, Breese moved on his affidavit, that the hearing might be postponed for sixty days to enable him to procure additional, proof. He stated in,his affidavit that under .the amendments to the bill, Joseph Bogers was a material and important witness for him, and that he could not safely proceed to the hearing without his testimony, ¿is lie was advised by liis counsel, after stating to them wliat lie expected and believed lie would-be able to prove by said Rogers, and that he believed such advice to be true: that .as he was informe 1, said Rogers resided in California, and that his personal attendance or testimony cpuld not be pro•curod in less than from forty to sixty days. The court refused to grant the postponement. Breese was then placed upon the stand by his counsel, who offered to prove by him ■that the amount claimed to be due on the Smith and Bemehderfor mortgages, and that for which the premises were bid in, was much larger than the real consideration; that the amount called for by the mortgages, when given, was much more than the amount of money which tl;e mortgagors received; that four hundred dollars had been paid on each, which had never been endorsed, and the offer concluded with a proposal to prove the facts in the amendments to the answer. Under objection of complainant’s counsel, the offer was refused.
These various proceedings are made grounds of complaint. In disposing of the points it will not be ne.edful tp .advert ■to all the answers which are open.
It is objected that the amendments pf the bill w.ere not ¡such in their nature as it was competent for the .court to permit at the hearing.
We think differently. Counsel appear to-have been misled by referring to rulings touching amendments. at the-hearing in the appellate court. The right to grant amendments at '.the hearing in the court where the .cause is .first heard, is for obvious reasons much broader than in the appellate court.
In the court .of first resort it is generally .more ,a ,ques■>tion of terms than of power, if the amendment is germane •to the controversy, and it is supposed it will help to a better or more complete result.—1 Danl. Chy. P., 418; Lord Darnley v. London, Chatham & Dover Rwy. Co., 1 De G., J. & S., 204; Walker v. Armstrong, 8 De G., M. & G., 531; 39 E. L. & E., 450; Hume v. Pocock, L. R., 1 Eq. Cases, 662. In that court the record is made-up for the .appellate tribunal, and the latter, not having original juris- ■ diction, will he cautious about allowing changes in the 'record.
Questions of consequence may arise- touching the terms ’ allowed or refused below, but these are quite distinct from ‘questions concerning the power to permit the amendmeiit at all.
Here the amendments were plainly of such nature as ‘ to be within the competency of the court.
Before they were made, the defense assumed the relevancy of the matter they introduced. It must be taken to have drawn into question the Smith and Bemenderfer mortgages. The original answer stated that mortgages other than the Ashley and Sweet mortgages existed on the property to a “considerable amount,” and it based claims upon ' that fact, and it must be assumed that the Smith and Bemenderfer mortgages were intended; since there is no hint of any others.
There is no basis for the objection urged.
It is not necessary to inquire what effect upon the right to make this objection might be regularly and justly ascribed to the fact of Breese’s making answer to the amendments ' under the order which allowed them.
It is next urged that Breese’s affidavit entitled-him to sixty days’ further time to make proofs. "
It is a sufficient answer to this to say that the affidavit made no case for further timé. It conveyed no information to the coúrt as to what facts were expected to be proved by Bogers. This should have been done to enable the court ' 'to determine upon the relevancy and importance of the expected proofs.—Thayer v. Swift, Walk. Ch., 384; Meach v. Chappell, 8 Paige, 135; Sea Ins. Co. v. Stebbins, Id., 565.
The permission to defendant' to take further proof in open court at' the hearing could authorize no complaint on ■ his part. It was a provision in the special ■ order for his • benefit." He made no showing for time to take proofs out of court.
I will now advert to the equities- between these parties-in respect to the mode of subjecting the premises pledged for payment of the mortgage in suit.
By his answer, Breese first insists'that his portion should be sold first. Further on,- however, he contends that the-grist-mill property ought to be sold before his portion. He-'acquired his interest with notice of the preexisting incumbrances complainant holds. He has no lien on the grist-mill’ property. His right is subsequent in time to complainant’s right under the mortgage in suit, and also to complainant’s 'right under the mortgages of Smith and Bemenderfer on 'the grist-mill property. Complainant is entitled, in any 'event, if necessary, to have recourse to the whole property •it encumbers, for the purpose of making the amount of the-mortgage in suit. The original answer, and the amendments to'it, and the offer of proof by defendant, admit in effect, ' and almost in terms, that the Smith and Bemenderfer mortgages are actual existing incumbrances for some amount, more or less, on the grist-mill property, and: the case contains nothing to the contrary. •
The claim that an undivided half of the grist-mill property and the piece between became expressly ’charged ’with’ the Ashley mortgage under subsequent conveyances, 'in such manner as to warrant defendant in insisting that complainant should be required to sell and exhaust that interest first, is not sustained." It appesirs that the deed of Spaulding to ' Sarah • Smith’ of January, 1870, stated 'that the grant was subject to that mortgage^ and -that, 'the .deed from Sarah Smith and'Myron Smith to’Joseph Rogers and Joseph Bemenderfer of October, 1870, stated ’ that the grant was subject, not only to the'same mortgage, but also to complainant’s second mortgage’. The language neither expressed nor implied any assumption by the grantees of the payment of the mortgage in suit, or any intention that the particular interest granted should be considered as ’ charged thereafter with the whole amount of the old - mortgage, in preference to the other property, and there was nothing in the situation of Spaulding or Mrs. Smith to influence them to desire any thing of that kind. They were not original mortgagors, but intermediate holders of a portion of the mortgaged premises, and were never liable except in respect to the land. The only reasonable supposition is, that the real purpose of the statement in the deeds was to except the named incumbrances from the covenants.
The defendant now repudiates the first position in his answer, that the property ought to be sold in the inverse order of the incumbering, and insists upon his second position. That rests entirely on the maxim of equity that where one has a lien on two funds and another a later lien on one of them, the former is bound to exhaust the singly charged fund before resorting to that which is doubly charged. The maxim is grounded in natural justice, and contemplates that so long as the prior right is in no manner prejudiced, it should be exercised in the way most advantageous for later rights, and if the conditions supposed by it exist, it works beneficially for junior interests and without detriment to others. But before attempting to apply it, it is necessary to see whether the required conditions are found. If they are not, a resort to the principle will lead to results absurd and inequitable. How is it here? The argument for Breese assumes that the premises.in which he is interested are bound first by the mortgage in suit and secondly by the Sweet mortgage, under which he claims, and hence are doubly charged, and that the grist-mill property is only burdened by the mortgage in suit, and therefore ought to be first sold. This assumption is plainly contrary to the fact. The grist-mill property, as well as that claimed by Breese, is burdened by a second charge, and not only so, but the second charge on this property is earlier than Breese’s. lYe have nothing in the situation of the grist-mill property to correspond with the singly charged fund. The state of facts is not appropriate to the doctrine. There is no ground to call forth the equity. The argument on the part of Breese is, in effect, that his interest being the latest should be preferred and saved to him by compelling complainant to procure satisfaction of his first and dominant security by the sacrifice of his second and intervening security. The bare statement of the proposition exposes its unsoundness. The grist-mill property is subject equally with that claimed by Breese to a double charge; and as the second charge upon it is prior to Breese’s, it has an equitable preference to which his holding is subject. And the fact that such second charge belongs to complainant cannot stifle the equity or repel the principle. It is as much entitled to attention and regard when Breese insists upon its sacrifice to exempt his later interest in the other property, as though it belonged to a third party.
Breese’s claim was therefore not warranted, and considering the priorities and the other facts, he was not entitled to> object against the sale of his property before that of the grist-mill property.
The ruling of this court touching the “Woodward avenue lot” in Cooper v. Bigly, 13 Mich., 463, is a distinct authority to that effect. See also Hastings Case, 10 Watts, 303; Averall v. Wade, Lloyd & G., 252; Wise v. Shepherd, 13 Ill, 41.
But the decree did not require his property to be first sold. It was shaped more advantageously for him. It pro7 vided that the grist-mill property, the saw-mill property, and the lot between, should be sold before his, and merely qualified this concession by directing that the sale should be subject to complainant’s rights under the Smith and Bemenderfer mortgages and under his purchase on the statutory foreclosures.
As the position which Breese occupied did not allow him to claim the preference thus given to him in the order of sale, and it was a concession beyond his equities, and as he was not entitled to insist upon any order or mode of sale for his own benefit which would prejudice complainant’s rights; under the Smith and Bemenderfer mortgages, he has no just ground for complaining against the order allowing the grist-mill property to be sold before his, that it provided, that such sale should not impair complainant’s rights.
The refusal of Breese’s offer of proof was not error._ He was not entitled to insist upon giving evidence that complainant’s incumbrance under the Smith and Bemenderfer. mortgages was less or more than had been claimed. That it was something, was, as before stated, substantially admitted ; and being something, Breese, as holder of the later. incumbrance on property equitably subject to be first con-, sumed, and without interest in or lien upon the grist-mill-property, was in no situation to insist on making proof to show how much of the grist-mill property would be required to satisfy the Smith and Bemenderfer mortgages. And at the same time, as before stated, complainant was equitably entitled to claim that his rights and interests under those mortgages, whether his interest was much or little, should be protected and not be sacrificed or prejudiced for' the relief or ease of the later interest of Breese. The question of priority of sale, as between the grist-mill property and that of Breese, to satisfy the mortgage in suit, hinged entirely on the existence and not on the amount of the incumbrance on the grist-mill property under the Smith and Bemenderfer mortgages, and the fact that the court ordered that this last named property should be sold before that of Breese, and that complainant acquiesced, cannot be regarded as giving any ground to Breese to insist on further concessions.
A point is made in defendant’s brief against allowing, more than seven per cent, interest as against his premises. It appears to be without basis or aim. The amount due was found by a commissioner, to whom the case was referred therefor, and in decreeing the amount the court acted on the report, which the defendant seems to have acquiesced in.. No exception or objection was taken to it on which to raise any question.—Thorne v. Hilliker, 12 Mich., 215; Butter- field v. Beardsley, 28 Mich., 412, and cases. But this is. not all. On comparing the decree with the report, it appears that no more than seven per cent, was allowed.
The decree below should be affirmed, with costs.
The other Justices concurred. | [
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Hooker, J.
The plaintiff, a brakeman of many years’ experience, was injured by being struck and thrown from a freight car by a pile of lumber which stood near the siding, on premises occupied, if not owned, by the defendant, for the purpose. The defendant owned a manufacturing plant, and had been for many years, and was at the time, engaged in manufacturing doors, sash, blinds, and molding. It had entered into a contract with one Falardeau, by which he was to take the lumber from the cars, pile it, put it in the kiln and dry it, take it thence to the mill and manufacture it into doors, and load them upon cars, at an agreed price per door. To do this, he hired and paid the help, but used the premises of the defendant. The doors were manufactured upon the first floor of defendant’s factory, which appears to have been under Falardeau’s control. The other floors were operated by the defendant, whose foreman had charge of them. The -lumber used upon those floors was taken from the piles made by Falardeau’s men. The circuit judge directed a verdict for the defendant upon the ground that the lumber was piled by an independent contractor, for whose misconduct the defendant was not responsible. The plaintiff alleges that this is the only error relied upon. Counsel for the defendant contend that the ruling of the court was correct, upon the ground stated, and for the further reason that the proofs conclusively show that the plaintiff was guilty of contributory negligence; citing Ramsay v. C. K. Eddy & Sons, 123 Mich. 158 (82 N. W. 127), and other cases. The plaintiff claims that the proofs show that Falardeau was not an independent contractor, and that, whether he was or not, the defendant is liable, because it retained the control, or right to control, of the entire premises.
An examination of the record shows that the defendant had control of, and itself carried on business at, the premises in controversy. Its factory was in charge of its foreman. It employed men to do work. It employed Falardeau to make doors “by the piece” in its factory; furnishing him a portion of the factory, and machinery, for the use of himself and his men. It purchased and owned all lumber that was brought upon the premises, and it contracted with Falardeau to put certain work upon it, viz., unloading, piling, transporting to the kiln, and drying it. He used what he needed for making doors, and the rest was used by the defendant for other purposes. The uncontradicted testimony shows that the lumber passed into his possession and control when the car arrived, and it was under his control until it was wanted for use. There is nothing to indicate that the defendant exercised, or had under his contract, the right to dictate how near the track it should be piled. The piling of the lumber was not under its control or supervision, so far as appears from the record. This being so, the defendant was no more chargeable for the negligence of Falardeau’s men in piling the lumber than an owner of goods is for the negligence of a drayman in transporting them. It has been held in such cases that the relation of master and seryant, as ordinarily understood, does not apply. De Forrest v. Wright, 2 Mich. 371; Riedel v. Moran-Fitzsimons Co., 103 Mich. 262 (61 N. W. 509). Had one of Falardeau’s men injured a passer-by, through carelessness, while engaged in unloading or piling the lumber, or in transporting or loading doors upon the car, the defendant would not be liable. As a rule, the law requires the negligent person to recom pense one who is injured as the result of his negligence, and masters are held liable for injuries resulting from acts of servants while performing acts for the masters while engaged in their service. But one who can be said to be an independent contractor, over whom the other contracting party has not the right of supervision, direction, and control in the performance of his contract, is himself liable for his negligence and that of his employés, and the other contracting party is not.
Counsel for the plaintiff cite a number of cases which are said to limit this rule, but we think they will be found to rest upon another principle, viz., that the defendants owed duties which they could not avoid by contracting that another should perform the act in which the negligence occurred. Many of these are cases where cities contracted for public improvements in the public highways, it being their duty to keep the streets in a reasonably safe condition. Thus, in City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78), it was held as to sewers:
“The city takes this power with the understanding that it shall be so executed as not unnecessarily to interfere with the rights of the public, and that all needful and proper measures shall be taken, in the' execution of it, to guard against accidents to persons lawfully using the highways at the time. The city is bound for the performance of these obligations, and cannot rid itself of their performance by executing the power through an agent. ”
Even this doctrine does not meet the approval of Mr Justice Campbell. 9 Mich. 188.
Again, in Darmstaetter v. Moynahan, 27 Mich. 188, it was held that one who was acting under authority from the municipal authorities to incumber a street for the purpose of filling his ice-house could not shield himself from liability for injuries caused by unlawfully obstructing the street with fragments of ice, under an objection that his employe was a contractor, and alone liable. The Corey Case was said to rule that case, and the liability was distinctly put upon the ground that, under the facts, the relation of principal and agent existed.
In McWilliams v. Mills Co., 31 Mich. 274, the defendant had a franchise under which it operated a railway upon a public street. The court held that it was charged, under its franchise, with seeing that the public was protected against, and that it was liable for, negligence in operating the road, though done under a contract by another person. The court said:
“Under these circumstances, all persons using the track for such purposes used it as the agents of defendant, and defendant was liable for their conduct. The relation of principal and agent or master and servant may exist between a corporation and an employer as well as between individuals; and the use of a special franchise, under the direction and for the purposes of its owner, can never be maintained, except as his act. This we have held repeatedly in regard to railroad tracks. It was so held in Gardner v. Smith, 7 Mich. 410 (74 Am. Dec. 722), and in Bay City, etc., R. Co. v. Austin, 21 Mich. 390; and the same principle was recognized in Continental Improvement Co. v. Ives, 30 Mich. 448, and Grand Rapids, etc., R. Co. v. Southwick, Id. 444.”
In Southwell v. City of Detroit, 74 Mich. 438 (42 N. W. 118), the city was held liable for negligence of a paving company, upon the theoi-y that it could not avoid its responsibility to protect the public. Another case substantially on all fours with the Southwell Case is Monje v. City of Grand Rapids, 122 Mich. 645 (81 N. W. 574), where several authorities not cited will be found. These cases turn upon a radically different rule, and do not support the proposition that one having a service to be done cannot avoid liability for the acts of an independent contractor to whom he lets the work.
The same principle is involved in Hawver v. Whalen, 14 L. R. A. 828 (49 Ohio St. 69, 29 N. E. 1049). In the copious notes to this case will be found many cases to the same effect. See, also, Bailey v. Mayor, etc., of New York, 3 Hill, 543 (38 Am. Dec. 669), where it was said:
“If we are not mistaken in that conclusion, and they are to be regarded as a private company, like any other body of men upon whom special franchises have been con ferred for their own private advantage,' — -such as banking' and railroad corporations,' — then the appointment of the agents by the State did not make them less the agents of the defendants. The appointment in this way is but one of the conditions upon which the charter was granted, and stands on the footing of any other condition to be found in the grant subject to which it has been accepted. By accepting the charter, the defendants thereby adopted the commissioners as their own agents to carry on the work. The acceptance was entirely voluntary, for the State could not enforce the grant upon the defendants against their will. This would be so upon general principles (Ang. & A. Corp. 46-50, and cases there cited), but here the charter itself left it optional with the common council of the city to accept or not (Laws 1834, chap. 256, § 7). The undertaking of the work was made to depend upon the approval of the plan of the commissioners, which necessarily involved the right to adopt or reject the work itself altogether, if they disliked the system prescribed by the legislature. The approval having taken place, this, together with the subsequent measures of the common council instructing the commissioners to proceed in the execution of the work, constituted them the agents of the defendants, — as effectually so as if the latter had originally appointed them. The act of adoption in the one case was as free and voluntary as the appointment in the other.”
Counsel make the further point that:
“ Where the superior is in possession of fixed property, as real estate, upon which some service is to be performed, he is liable for the negligence of independent contractors; for in such cases the use of the-property is confined by law to himself, and he should take care that that use and management works no injury to others, and, of consequence, that he brings no persons there who do any mischief to others.”
This language is taken from a dictum of Mr. Justice Martin in Moore v. Sanborne, 2 Mich. 529 (59 Am. Dec. 209). In this connection we refer to De Forrest v. Wright, 2 Mich. 371, where the proposition is repudiated in the following language:
“A distinction was adverted to at the bar, in the argument of this case, as existing between fixed real property and personal chattels; and such a distinction seems for awhile to have been recognized by the English judges. Bush v. Steinman, 1 Bos. & P. 404; Laugher v. Pointer, 5 Barn. & C. 547; Quarman v. Burnett, 6 Mees. & W. 499. That distinction, however, has ceased to exist. It is no longer the doctrine of the English courts, unless the act complained of amounts to a continuing nuisance. Earle v. Hall, 2 Metc. (Mass.) 353; Reedie v. Railway Co. and Hobbit v. Same, 4 Exch. 244, 254.”
Some Massachusetts cases are cited in support of this doctrine. In Earle v. Hall, 2 Metc. (Mass.) 353, it was held:
“The general owner of real estate is not answerable for acts of carelessness, negligence, and mismanagement committed upon or near his premises, to the injury of others, if the conduct of the business which causes the injury is not on his account, nor at his expense, nor under his orders or efficient control. Where A. agreed to convey land to B., and B. agreed to build a house thereon and pay for the land, and, while the agreement was in force, B., in preparing to build the house on his own sole account, by workmen employed by himself alone, undermined the wall of the adjoining house of C., whereby it was injured, it was held that A. was not answerable for this injury, although the title to the said land remained in him at the time when the injury was committed.”
It is not, therefore, an authority supporting the rule contended for.
The case of Stone v. Codman, 15 Pick. 297, was where an adjoining proprietor brought an action for an injury resulting from the negligent making of a drain upon defendant’s land, thereby .letting water into his cellar. This case is not in point, and more closely resembles the first class cited. The landowner always owes a duty to so use his land as not to injure an adjoining proprietor, as by setting fires, draining land, etc., and he cannot avoid it by hiring another to set fires or lay drains. Robbins v. Chicago City, 4 Wall. 657.
Hilliard v. Richardson, 3 Gray, 349 (63 Am. Dec. 743), is another case cited. There a carpenter, who had contracted to build a house upon defendant’s land, ob structed the highway, causing an injury. The landowner was held not liable. The authorities were reviewed in that case, and Bush v. Steinman, 1 Bos. & P. 404, cited by counsel in this case, was repudiated. The trial court had instructed the jury that ‘ ‘ the act of laying and leaving the boards in the highway by Shaw must, for the purposes of this action, be deemed the act of the defendant,” and that, “as the boards at which it was alleged the horse took fright were procured by Shaw, to be used, in whole or in part, in performance and execution of the written contract between him and the defendant, and were materials necessary therefor, the defendant was responsible for the acts of Shaw in placing the boards in the highway and suffering them to remain there, and that his liability in relation thereto was in all respects the same as the liability of Shaw.” The appellate court said:
“We have thus, at the risk of tediousness, examined the case at bar as one of authority and precedent. The clear weight and preponderance of the authorities at common law is against the rule given to the jury. The rule of the civil law seems to have limited the liability to him who stood in the relation of 'paterfamilias to the person doing the injury. Inst. lib. 4, tit. 5, §§ 1, 2; 1 Dom. Civ. Law, pt. 1, lib. 2, tit. 8, § 1; Dig. lib. 9, tit. 2, § 1. Viewing this as a question, not of authority, but to be determined by the ápplication to these facts of settled principles of law, upon what principle can the defendant be held responsible for this injury ? He did not himself do the act which caused the injury to the plaintiff. It was not done by one acting by his command or request. It was not done by one whom he had the right to command, over whose conduct he had the efficient control, whose operations he might direct, whose negligence he might restrain. It was not an act done for the benefit of the defendant, and from the doing of which an implied obligation for compensation would arise. It was not an act done in the occupation of land by the defendant, or upon land to which, upon the facts, he had any title. To say that a man sháll be liable for injuries resulting from acts done near to his land is to establish a rule as uncertain and indefinite as it is manifestly unjust. It is to make him liable for that which he cannot forbid, prevent, or remove. The case cannot stand on the relation of master and servant. It cannot stand upon the ground of nuisance erected by the owner of land, or by his license, to the injury of another. It cannot stand upon the ground of an act done in the execution of a work under the public authority, as the construction of a railroad or canal, and from the responsibility for the careful and just execution of which public policy will not permit the corporation to escape by delegating their power to others. It can only stand where Bush v. Steinman, when carefully examined, stands,— upon the general proposition that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, to adopt which would be to ignore all limitations of legal responsibility.”
See, also, Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec. 209).
The important consideration in such cases is whether the act is one directed by the superior. If it is done by one whose work is supervised or controlled by the superior, there may be a liability; but where the person whose negligence has caused the injury has contracted only for results, and is independent and free from direction or restraint in the performance of his obligation, the superior is not liable, in a case like the present.
The court was not in error, and the judgment is. affirmed.
The other Justices concurred. | [
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Long, J.
This action was brought by the plaintiff to recover from the defendant city a balance due for rent of certain public fire hydrants, and for the supplying of water therefrom, from May 1, 1897, to November 1, 1897, in the sum of $1,920.84, and from November 1, 1897, to May 1, 1898, in the sum of $1,925, and interest. The action is based upon a contract between the city and plaintiff, arising out of certain ordinances of the city and the acceptance thereof by the plaintiff. The declaration contains a single special count upon the contract. The plea is the general issue, with notice under it, which, after stating that the assessed valuation of all the taxable real and personal property in the city for the year 1897 was $2,616,706, and for the year 1898 $2,419,629, proceeds to state—
“That, under the limitations of defendant’s charter, it is, and for several years last past has been, impossible for said city to levy and raise an annual tax sufficient, with all other revenues of said city, to pay more than $10,000 annually for a water fund or for the supply of water for said city, and at the same time levy and raise taxes sufficient to pay the other current and general expenses of said city, required to be levied and raised to meet its expenses and liabilities.”
The notice further states that the sum of $10,000 had been appropriated for water supply for each of said years, — ■
“And that there is now no money in the treasury of said city, or in any fund thereof, from which it can pay the claim of said plaintiff, or any part of it, or any claim for water or the supply thereof for the years 1897 and 1898; that the defendant city has prescribed by resolution and ordinance the sum of $10,000 as a reasonable and proper water rent or compensation for the supply of water to be furnished to defendant city, and as the most it can raise by taxation or pay under the limitations and duties imposed by its charter.”
The facts found by the court, and the admissions of counsel, so far as necessary to the questions here involved, are as follows: The city of Menominee was incorporated by the legislature in 1883. On the 5th day of May, 1884, the council of the city, by its resolution adopted on that day, declared that it was expedient to have constructed works for the purpose of supplying such city and the inhabitants thereof with water, but that it was inexpedient-for such city, under the power granted in its charter, to build such works. Thereupon and thereafter, on or about said day, the persons named in the declaration duly organized the plaintiff corporation for the construction of such works, under and pursuant to an act of the legislature entitled “An act to authorize the formation of companies for the introduction of water into towns, cities, and villages in the State of Michigan,” approved April 3, 1869 (Act No. 113, Laws 1869), and the acts amendatory thereof and supplementary thereto. By the ordinances of the defendant city'j approved May 7 and September 9, 1884, set forth in the declaration, and the acceptance thereof by the plaintiff as therein stated, a contract was entered into between the plaintiff and the defendant city for the supplying of said city and the inhabitants thereof with water. Subsequently, by ordinances of the defendant city approved November 26, 1890, and December 15, 1891, set forth in the declaration, and the acceptance thereof by the plaintiff as therein stated, the original contract between the parties was modified, and additional public fire hydrants provided for. Plaintiff constructed its said works in said city in the year 1885, and.at all times since the construction thereof has furnished water to said city and its inhabitants as prescribed and required by the terms of said ordinances, and has duly performed each and every term and condition of each of said ordinances by it thereby to be performed. _ /Ai the date of said ordinance approved November 26^/1890, it had 135 public fire hydrants in place and ijY'use by said city upon its water-pipe system, as recitedf in section 6 of said ordinance, and thereafter, and PYior to the 1st day of May, 1897, pursuant to said orcjJnance, it had, by direction of said defendant, erected Ml additional public fire hydrants, which were located by said defendant, and it then had, and has ever since maintained ready and in good order and condition, 276 public fire hydrants; and on the 1st day of June, 1897, the plaintiff, at the request and under the direction of said defendant city, erected 1 additional fire hydrant, and has ever since maintained the same ready and in good order and condition for immediate use. The defendant city has used, occupied, possessed, and enjoyed said 276 public fire hydrants ever since the 1st day of May, 1897, and the 1 public fire hydrant thereafter located, to wit, June 1, 1897, ever since said last-mentioned day, and still continues to use, occupy, possess, and enjoy the same. If the defendant city is bound by said ordinances and any contract or contracts formed by their acceptance, it became indebted to plaintiff November 1, 1897, in the sum of $6,920.84, and May 1, 1898, in the sum of $6,925, as alleged in the declaration. On February 17, 1898, defendant paid plaintiff $5,000 on account of water supplied by it to defendant between the 1st day of May and the 1st day of November in the year 1897, and on June 20, 1898, the further sum of $5,000 for water supplied by it to defendant from the 1st daj^ of November, 1897, to the 1st day of May, 1898, .and has not paid, and refuses to pay, any further sum or sums for water so supplied by plaintiff to defendant' during the periods aforesaid. The city enjoyed the use of the fire hydrants and the water supplied therefrom, and paid therefor according to the contract, without objection, down to June, 1897. On the 7th of June, 1897, the council adopted the following resolution : •
“Resolved, that the city clerk be,\avnd he is hereby, instructed to notify the Menominee WateivCompany that the city does not consider itself bound by the\terms of the ordinance constituting the alleged contract forXjSupply of water to the city and its inhabitants, and that ft can no longer comply therewith, as the rates fixed therein ^or hydrant rental have become excessive, and the am&jpt required to be raised therefor, with the other necessai^T running expenses of the city, is in excess of what the city can raise on its taxable property under the charter, and request the water company to meet in conference with the council or its representative, and arrange for such rates as will be just and reasonable, and within the power of the city to pay. Now, therefore, resolved, that the city pay the water company no further hydrant rental under its contract, but that it, offer to pay the water company for hydrant rental such compensation for the supply of water furnished by the company to the city as it shall deem just and reasonable, and as has been or may be appropriated therefor.”
The plaintiff was immediately notified of the passage of the foregoing resolution, and the same resolution appears to have been re-adopted March 7, 1898; and at a meeting of the council September 19, 1898, the report of the committee appointed under this resolution was adopted, of which report the following is a copy:
“Your committee, to whom was referred the water supply, respectfully report that they have had the same under consideration. This committee, together with a special committee, have held" several meetings with the Menominee Water Company, and have agreed with Mr: Lynch, president of the water company, that this council would appropriate $10,000 for payment of hydrant rental; $5,000 to be paid to the Menominee Water Company at the first meeting of the council in May and November, to be received by the Menominee Water Company without prejudice to either party; the Menominee Water Company to bring a friendly suit to test the validity of its contract; each party to pay its own costs. ”
The value of all the taxable real and personal property in the defendant city in the years 1897 and 1898, as shown by the assessment thereof for said years, was as follows: 1897, $2,616,706; 1898, $2,419,629. This was only 40 per cent, of its true cash value, as found by the court in the ninth finding of fact. For nine years, commencing with the year 1890, the taxable property in the city of Menominee was assessed at 40 per cent, of its true cash value. On these valuations the council ordered a tax of 1 per cent, to be levied, as follows: 1897, $26,167.06'; 1898, $24,196.29. This tax was ordered pursuant to section 5 of chapter 26 of the charter, and reached the limit of 1 per cent, provided for in that section. The third and eighth findings of fact are as follows:
“ (3) That prior to said ordinance passed May 7, 1884, there had been no appropriation made or tax levied by the council of said city, or otherwise, for a water fund, or for providing or paying for any supply of water, of for any expense or liability for the supply of water, pursuant to said ordinance, or otherwise; that prior to said ordinance approved November 26, 1890, there was an appropriation of $12,000, and no more or other, for the fiscal year in which said ordinance was passed, for a water fund, and for the expense and liability for the supply of water, pursuant to said ordinance.”
“(8) That no proposition to make any appropriation or to use or raise any sum or sums to pay the hydrant rental or price for water payable by either of the ordinances and water contracts mentioned in the. declaration, or any part thereof, or to approve or sanction said ordinances and contracts, or either or any of them, was ever submitted to or voted upon by the electors of said city; nor was any amount ever authorized to be raised by tax or loan or otherwise for such payment, or for the payment of any water supply, by any vote of the electors of said city, pursuant to sections 14, 20, or 21 of chapter 26 of the charter of said city, enacted in 1883, or otherwise.”
The population of the city of Menominee in the years named was as follows: 1889, 5,557; 1890, 10,630; 1894, 12,532.
The court found certain conclusions of law, which were severally excepted to, and error was assigned thereon. The tenth, eleventh, and twelfth assignments of error are as follows:
“10. The court erred in rendering judgment in favor of the defendant and against the plaintiff in this cause, for the reason that the facts found by said court do not support said judgment, and, further, because, upon the facts found by said court, the plaintiff was, as a matter of law, entitled to judgment in its favor.
“11. The court erred in not rendering judgment for the plaintiff, because, upon the facts found by the court, the plaintiff was, as a matter of law, entitled to judgment in its favor.
‘ ‘ 12. The finding of the facts by the court does not support said judgment.”
The court made no finding of law upon the affirmative defense set up in the notice under the plea hereinbefore mentioned.
It is the claim of the plaintiff (1) that by the ordinances of the defendant city, and their acceptance by the plaintiff company, a contract resulted; (2) that, if this is not true, then the ordinances constitute a continuing offer of compensation for the prescribed service under section 15, chap. 84, 1 How. Stat., known as the “ Waterworks Act,” so long as the ordinances remain in force.
The waterworks act makes alternative provisions for the supply of water. Section 12 provides:
“It shall and may be lawful for the municipal authorities of any city, village, or town in which any company is or shall be formed for the purpose of supplying such city, village, or town, and the inhabitants thereof, with water, to contract and agree with such company for the supply of water for public, municipal, or other purposes, and for the time and mode of payment, and may issue their obligations therefor.”
Section 15 provides:
“Whenever any such company shall have been duly organized, it shall be the duty of the common council of any such city or village, or the proper authorities of any such town, by ordinance,- to grant to such company such right to the use of t-he'streets, alleys, wharves (if any), and public grounds of said city, village, or town as shall be necessary to enable such company to construct the proper works for the supply of water for the use of such city, village, or town, and its inhabitants; and the said common council may, in such ordinance, prescribe such just and reasonable terms, restrictions, and limitations upon such company in reference to the manner of using streets, alleys, wharves, and public grounds, to the charging and collecting of tolls, water rents, or other compensation for the supply of water to be furnished by such company to such city, town, or village, and its inhabitants, as it may deem proper to guard against the improper use of such streets, alleys, wharves, and public grounds, and to protect said city, town, or village, and its inhabitants, from the imposition of undue or excessive rates or charges for the supply of water; but no such restriction shall be imposed which will prevent such company realizing upon its capital stock an annual income or dividend of ten per cent., after paying the cost of all necessary repairs and expenses, interest on all moneys borrowed, and five per cent, per annum into sinking funds for the extinguishment of funded debts.”
It is contended by counsel for the city: (1) That the city had no power to make the contract sued upon, for the reasons (a) that the city charter prohibits it; (b) that the contract is not saved from the prohibition by chapter 84, 1 How. Stat. (2) That there can be no recovery without the contract. It is also contended by the city that there is a conflict between the waterworks act and the charter, and that, the charter being the later expression of the legislative will, it must prevail. On the other hand, it is claimed by counsel for plaintiff that the act, ex proprio vigore, does not affect any city in the State; that it is permissive, and not obligatory; that it becomes effective in such cities, and in such cities only, as shall choose to avail themselves of its provisions; and that, therefore, within the contemplation of the legislature, the act was to have the same application to cities thereafter organized as to cities existing at the date of its passage.
It is admitted by plaintiff’s counsel that, under the provisions of section 15 of chapter 26 of the original charter (Act No. 228, Local Acts 1883), a contract could be made only for a period not exceeding one year, and only in pursuance of a prior appropriation. It is said, however, that the city was embarrassed by that restriction, and in this emergency the legislature, speaking to it in the waterworks act, said:
“If you deem it expedient to have waterworks constructed, but inexpedient to build such works under the power granted you by the charter, then you may avail yourself of the provisions of this act. You are not bound to do it. The act does not touch you or affect you unless you so elect. But, if you would enlarge your power so that you may contract for a supply of water from the one year prescribed by your charter to any number of years less than thirty, you are privileged to do so.”
But the court below was of the opinion, and so stated:
“That chapter 84, 1 How. Stat., enacted in 1869, and the provisions of the charter of Menominee, enacted in 1883, are in pari materia, and cover the same subject-matter ; that a subsequent legislative act repeals all prior acts repugnant to it; that the last expression of the legislative will must be carried into effect as the law of the land. * * * Here the later law is the local, special act, and the prior law a general one. * * * Chapter 84 relates to all the cities of the State, as they existed at the time of its enactment. Defendant’s charter relates to the defendant city, and was enacted 14 years later than said chapter 84.”
The court therefore held that chapter 84 did not save the contract from the charter prohibition.
Counsel for plaintiff contend, however, that the court below was in error in its conclusion. It is their contention that it is inaccurate to say that the prior law is a general one, in the sense in which that phrase is commonly applied to ordinary legislation, operating by force of its own terms throughout the State or a limited district of the State; that the act comes into being, and thereupon becomes local and special, as to every city which avails itself of its provisions; that it speaks from the date of its adoption; that the charter deals with the ordinary conduct of the affairs of the city; that the waterworks act deals solely with the subject of waterworks and a water supply, and that therefore these special provisions in regard to this particular subject should prevail over "the general provisions of the charter; that this view of the subject is consistent with, and leaves untouched, section 5, chap. 26, of the charter, which reads as follows:
“The aggregate amount which the council may raise by general tax upon the taxable real and personal property in the city for the purpose of defraying the general expenses and liabilities of the corporation, and for all purposes for which the several general funds mentioned in section three of this chapter are constituted, exclusive of taxes for school and school-house purposes, shall not, except as herein otherwise provided, exceed in any one year one per cent.”
We think the court below was in error in its conclusions. The Constitution of this State, by section 13, art. 15, provides for the organization of cities and villages, and provides that the legislature shall restrict their • powers of taxation, borrowing money, contracting debts, and loaning credit. Subject to such general restrictions, the powers to be granted cities aró left to the discretion of the legislature. The discretion of the legislature may as well be exercised in an independent statute as in the charter itself, and'it was properly exercised in relation to the subject of this contract under the waterworks act. The waterworks act is a substantive and independent enactment. The city having availed itself of its provisions, the act stands a part of its charter, as a separate chapter dealing with the specific subject of a water supply.. When so read, the case comes directly within the principles laid down in Monroe Water Co. v. Heath, 115 Mich. 277 (73 N. W. 234). The court below, however, was of the opinion that the contract was invalid under the rules laid down in Putnam v. City of Grand Rapids, 58 Mich. 416 (25 N. W. 330); Niles Waterworks v. City of Niles, 59 Mich. 311 (26 N. W. 525); Ludington Water-Supply Co. v. City of Ludington, 119 Mich. 480 (78 N. W. 558). The case of Putnam v. City of Grand Rapids, however, turned upon the construction of the charter of that city. In Niles Waterworks v. City of Niles it appeared clearly that the contract was under. the charter. It was treated so, and there was no claim in the case that any reliance was placed upon the waterworks act as giving the contract validity. In Ludington Water-Supply Co. v. City of Ludington this court found authority in the charter to sustain the contract, and the question here raised was not presented.
The judgment below must be reversed, and a judgment entered here in favor of the plaintiff for the amount of its demand, with interest.
The other Justices concurred. | [
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Moore, J.
Maude C. Mills is the widow of Fred D. Mills, deceased. Helen Clay Mills is their daughter. She is now about 9 years old. Mr. Mills died in February, 1894. He left a will, which was duly probated, He bequeathed to his wife their residence and certain personal property. The other provisions of the will which are important in this proceeding read as follows:
“I give, devise, and bequeath to the Michigan Trust Company, of Grand Rapids, Michigan, and its successors, forever, all my title and interest in and to that certain piece of land in said city of Grand Rapids which is bounded on the north by "Wealthy avenue, on the east by College avenue, on the south by Logan street, and on the west by Madison avenue, in trust, nevertheless, for the following purposes, viz.: To manage and control the same in such manner as it shall deem best, and pay the net income therefrom, after payment of taxes and all other expenses, or so much of said income as shall be necessary, to my dear daughter, or her legal guardian, for the support of my said daughter, Helen, so long as she shall live. At the death of my said daughter, I give, devise, and bequeath all of my interest in the said property described in this clause of my will to my legal heirs. I hereby give my said trustee full power and authority to sell, dispose of, and convey any part or all of my interest in said property on such terms and conditions as to said trustee shall seem expedient; and I do hereby give my said trustee power and authority to invest and reinvest the proceeds from said property in such other property or securities as said trustee may deem for the best interest of the trust.
“All the residue of my estate, of every name and nature, I give, devise, and bequeath to said the Michigan Trust Company, in trust, nevertheless, for the following purposes, viz.: To take possession of, manage, and control the same in such manner as said trustee shall deem best, and to pay one-third (i) of the net income thereof to my said wife, Maude C. Mills, so long as she shall live. At her death, I give, devise, and bequeath an equal undivided one-third (£) of the property conveyed under this clausemf my will to my then heirs at law. M_y said trustee shall pay the remaining two-thirds (f) of said net income to my dear daughter, Helen, or her legal guardian, for the support of my said daughter so long as she shall live. At the death of my said daughter, Helen, should she leave issue her surviving, I give, devise, and bequeath to said issue, by right of representation, and their heirs, forever, the equal undivided two-thirds (f) of the property conveyed under this clause of my will. Should my said daughter die without issue, I give, devise, and bequeath said equal undivided two-thirds (f) of said property to my then heirs at law. I hereby give my said trustee full power and authority to sell, dispose of, and convey any and all property which shall pass to it under this clause of my will, on such terms and conditions as it shall deem expedient ; and I do hereby give my said trustee power and authority to invest and reinvest the proceeds from said property in such other property or securities as said trustee shall deem for the best interests of the trust.
“The provisions made by me in this will for my said wife are in lieu of and in the place of all rights in my estate, of every name and nature, to which she would be entitled under the statutes of the State of Michigan, including all dower rights in my real estate, had this will not been made.
“I hereby appoint Charles M. Wilson, of said city of Grand Rapids, executor of this, my last will and testament ; and I hereby give my said executor full power and authority to sell and convey any and all property of which I shall die seised, including real estate.”
Mr. Wilson declined to act as executor, and the Michigan Trust Company was appointed in his place. During the settlement of the estate the probate court made an order that $35 a week should be paid to Mrs. Mills for the support of herself and daughter. Other proceedings were had, to which we deem it unnecessary to refer, except in the most general terms, as the questions involved are few, and their solution does not depend upon these proceedings. In September, 1898, the, estate was closed, and passed from the defendant as administrator to the defendant as trustee. At this time there was due and unpaid $360 of the weekly allowance which had been made to Mrs. Mills by the probate court. The estate on hand in September, 1898, consisted largely of unproductive vacant lots, for which there was no market. There was $4,500 worth of stock, estimating it at its par value, though it was doubtless worth more than that sum.
A few months after the estate passed to the trustee, this bill was filed, in which it was alleged that it was the duty of the trustee to so manage the property as to produce an income, that it has not made a reasonable effort to do so, and that the' complainant and child by reason thereof are unprovided for, and asking for the removal of the trust company and the appointment of another trustee, and for the payment of an allowance to the complainant pendente lite. Afterwards the bill was amended, asking the court to construe the will so as to authorize the trustee, if necessary to furnish a suitable support to the complainant and her daughter, to use the corpus of the estate for that purpose. The amended bill contains this language:
‘ ‘ That, if any power be lacking in the said trustee to furnish said maintenance and support under the restrictive clauses of said last will and testament, then and in that event that this honorable court may supply such power, and grant, authorize, empower, and order-said trustee to so manage, manipulate, sell, or mortgage the whole or such part of said estate as may be necessary to furnish an adequate, suitable, and reasonable support at all times hereafter to your oratrix and the said Helen Clay Mills.”
The defendant answered fully the allegations of the bill. The following statements taken from the answer contain its position in this proceeding: “This defendant shows that it is the plain intent and purpose of said will that the trust fund itself should be kept intact, and not used for the support and maintenance of said Helen Clay Mills and Maude Clay Mills; and this defendant shows that it would be recreant to the trust imposed upon it under said will, and would be liable to the parties in interest, if it should, as trustee under said will, expend anything for the maintenance of said Helen Clay Mills and Maude Clay Mills except the net income from said estate, in the precise manner and proportions as are provided in said will; that the trust company has used every possible effort to sell the real estate for the purpose of creating a fund from which an income can be derived for complainant and child, and that it will continue to use every possible effort in that direction; that it has in good faith carried out the terms of said will to the best of its ability, and that the bill of complaint in this cause is filed, not because this defendant has not done its duty as trustee under said will, but because the property of said estate consists almost entirely of unproductive real estate, which, owing to the depression in the times, it has been impossible to sell; that there is now a better feeling in the Grand Rapids real-estate market, and defendant hopes soon to make progress in converting the property of said estate into income-producing securities,” — and indicates its entire willingness and desire to make the estate productive as soon as it can be done without sacrificing it.
The court made a decree containing, among other provisions, the following:
• “1. That it is the true intent of the will that the estate should be so managed as to provide a comfortable support for complainant and her child (a) from the income, if possible; (6) from the corpus of the estate, if necessary.
“3. That the trustee sell at once the 30 acres in Paris township, and the Mills & Lacey stock, and apply the proceeds to the payments provided for by the decree, until the income from the estate shall be sufficient to support complainant and her child, whereupon the residue of the funds realized from said property, ‘if any, may be invested by the said trustee under the provisions of said will.’
“ 3. That the trustee pay complainant $360 for arrearage in her allowance during administration of the estate.
“4. That the trustee pay complainant, as guardian of her child, $100 per month from September 3,1898, to date of first payment, and monthly thereafter until the funds are exhausted, for the education and support of saic^child.”
It is insisted by defendant that this decree, instead of construing the will of Mr. Mills, has made a new and entirely different one for him than the one he made for himself. In that we think the defendant is right. The language used in the will is clear, definite, and certain. It is not in any sense ambiguous. It is very likely, if Mr. Mills could have looked into the future, he might have framed his will differently, but that is a question with which we. have nothing to do. In Fraser v. Chene, 2 Mich. 81, the court used the following language:
“ It is admitted to be a cardinal rule in the construction of wills that the intention of the testator is first to be ascertained from the words of the will, and when' ascertained it will govern; but to this admission there is an important qualification, namely, so far as that intention is consistent with the laws of the land, and no further. To stop short of this would be an infringement of that liberty of disposing of a man’s own property which is the most powerful incentive to honest industry, and is therefore essential to a free and commercial country; while, on the other hand, did indulgence to the testator’s intention go beyond this, every man would make a law for himself, and the metes and boundaries of property would be vague and indeterminable, which would end in total insecurity.”
In Johnson v. Warren, 74 Mich. 491 (42 N. W. 74), the court said: •
“Courts have no power to make new wills for testators, and disregard such lawful conditions as they may impose. * * * Courts have not ventured to substitute their own speculations for the clearly-expressed will of the testator, nor have they felt authorized to inquire curiously into the reasons of what is not ambiguous.”
In Wales v. Templeton, 83 Mich. 177 (47 N. W. 238), the court said that among the rules of construction applicable to wills are these:
“The plain intent of the testator, as evinced by the language of the will, must prevail. The intent of the testator must be gathered from the four corners of the instrument. ”
See, also, Byrne v. Hume, 84 Mich. 185 (47 N. W. 679); Stebbins v. Stebbins, 86 Mich. 474 (49 N. W. 294).
The probate court had the authority to make the order for the payment of the weekly allowance. It should have been paid. As it has not been, the trustee is directed to pay the balance due Mrs. Mills, found by the court below to be $360. The decree in all other respects is reversed. Defendant will recover costs of this court, to be paid out of the estate.
The other Justices concurred. | [
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] |
Montgomery, C. J.
Plaintiff, as receiver of the Hills-borough Manufacturing Company, an Ohio corporation, sues to recover $500 claimed to be due from defendant as unpaid subscription to the capital stock of the corporation. The case lies within a narrow compass. Defendant subscribed for $4,000 of the stock of the corporation, and has paid in cash and expenses incurred on behalf of the corporation $3,500. Whether he has paid the remaining $500 depends upon whether a certain “bonus” contributed by citizens of Hillsborough is to be treated as a contribution to the corporation as such or as a donation to the promoters. It appears that, in the spring of 1890, Edward P. Chamberlain owned certain machinery then at Grand Rapids, Mich., valued at $7,000, and he, in company with defendant, visited Hillsborough, Ohio, with a view to starting a factory at that place, and decided to do so if the citizens there would give certain financial aid to the enterprise. Soon after, information came to the defendant that the proposed aid ($1,500) had been subscribed. Up to this time no corporation had been formed or agreed upon. Defendant and Mr. Chamberlain were the only persons concerned in the enterprise. At this stage it was decided to form a corporation. It was at first the purpose to divide the stock equally between defendant and Chamberlain, defendant putting in $7,000, and Chamberlain contributing his machinery at the same figures. It became necessary to have more than two stockholders, and it was proposed to have subscriptions for single shares of stock by citizens of Hillsborough, who should become directors. On approaching persons to take stock, it transpired that those who were sought for preferred to take a larger interest, and it was finally agreed that defendan should subscribe for 160 shares, amounting to $4,000, Chamberlain for 280 shares, S. P. Scott for 70 shares, O. S. Price for 45 shares, and L. S. Smith for 45 shares, each, of which the par value was $25. The whole case turns upon the agreement made at this time. Defendant’s testimony tended to show that, before the organization was perfected, it was agreed between Chamberlain and the other stockholders that the “bonus” which had been promised to Chamberlain and defendant should be divided as follows: $500 should be applied on defendant’s stock subscription, $500 on the stock subscriptions of Scott, Price, and Smith, and the remainder should be used by Chamberlain to transport the machinery which he was to furnish from Grand Rapids to Hillsborough. When the bonus money was turned over to the company, $1,000 of it was credited to capital stock, and this, with the other payments made by the other stockholders, made up the entire subscribed stock. The circuit judge charged:
“Was this amount of money subscribed by the citizens of Hillsborough, at the time it was divided by these men, a fund to be used for the purpose of making the enterprise talked of a success, or was it subscribed and used for the purpose of organizing this corporation, as an asset of the corporation? If it was an asset of the corporation, as I have stated, it cannot be so divided, and Mr. Squier would be liable for $500. If, at the time this agreement was made, — this meeting was had, — it was talked over that this money which had been raised by the citizens for the purpose of carrying on this enterprise should be divided by these people who had united their energies and funds for the purpose of carrying on and promoting this enterprise ; that the money actually went into the corporation; that they had the benefit of it; and that at that time it was not the property of the corporation; that no corporation was then organized and in existence, — if this be true, then your verdict should be, ‘ No cause for action.’ ”
■ It is contended that the agreement that the individual stockholders should have the benefit of» the bonus subscribed by citizens of Hillsborough was not binding upon the corporation; that it was, in effect, an agreement by the promoters that defendant and the other stockholders should not be called upon to pay the full subscription price. We think the contention of plaintiff is based upon a misapprehension of the relation of the parties to this fund. When the agreement was made, it is quite true that it was not competent to bind the corporation, for the reason that no corporation existed, and might never exist; but it is equally true, for similar reasons, that the corporation had no interest in this bonus money, and might never have. The proposition was made to Chamberlain and defendant. They saw fit to organize a corporation as an instrumentality in establishing the industry for which the bonus was to be given. All the parties concerned in that organization consented to the application of this money towards payment of stock subscriptions. Who had any right to complain of the arrangement ? Certainly not the stockholders, who assented to it. The public and subsequent creditors are without just ground for complaint for applying the bonus cash payments on stock subscriptions. The full price of stock has been actually paid in.
The charge correctly stated the law of the case, and no error was committed in admitting the defense.
Judgment affirmed, with costs.
The other Justices concurred. | [
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] |
Montgomery, C. J.
The return shows the petitioner is held by the warden of the State house of correction and reformatory at Ionia by virtue of a judgment of the circuit court for the county of Kalamazoo. The judgment entry recites that the prisoner has been “duly convicted of the crime of larceny from a store, as appears by the* record thereof,” and concludes .with a sentence to the State house of correction and reformatory at Ionia for a term of four years.
It is contended that the prisoner should be discharged for the reason that the commitment does not, on its face, show that the offense of which the prisoner was convicted was one punishable by imprisonment in the institution to which he was committed. The defects pointed out are that the recitation is that larceny “from” a store was committed, whereas the offense defined by the statute is larceny “in” a store, and that the judgment does not recite that the larceny was committed in the daytime, which is also an ingredient of the offense. The return of the officer is accompanied by a copy of the information upon which the petitioner was tried. The record, as thus supplemented, shows that he was tried and convicted of the statutory offense.
The return also shows what the testimony tended to show, and petitioner’s counsel contend that this testimony does not show that the offense was committed in the store building, within the meaning of the statute. It is not the office of habeas corpus to review the proceedings of the trial court, where jurisdiction is shown. Such review should be taken on a writ of error.
Is the commitment so defective as to require the enlargement of the petitioner? In determining this, it is to be kept in mind that the proceeding under review was had in a superior court. In habeas corpus proceedings, as in others where the attack is collateral, the judgments of a superior court receive different consideration than that accorded to those of inferior tribunals. Hurd, Hab. Corp. 367 et seq. The general rule is that nothing shall be intended to be out of the jurisdiction of a superior court, except that which especially appears to be. Id. 367. We find it unnecessary to determine whether this judgment entry, standing alone, would be sufficient evfi dence. It is common practice to accompany a writ of habeas corpus by a writ of certiorari. This course was not taken in this case, but the return sets up the facts, and petitioner’s counsel offer no objection to their consideration. By this return it appears that the prisoner was convicted by a court of competent jurisdiction of an offense properly charged, and which subjected him to the punishment meted out to him. Under such circumstances, the petitioner should not be discharged. Hurd, Hab. Corp. 419 et seq.
The prisoner will be remanded to serve out his sentence, unless sooner discharged.
The other Justices concurred. | [
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Long, J.
Plaintiff brought suit to recover salary for the months of August, September, October, November, and December, 1897, claimed to be due under a.written contract of employment by the defendant for the year 1897. By the terms of the contract, plaintiff was employed to superintend the manufacture of brake beams; his compensation being $5,000, payable in monthly installments of $416.66. Among other things, he agreed “to cause the work to be doné efficiently, promptly, and to the satisfaction of the Brake-Beam Company, and at the least possible cost to it;” and, further, “to provide the necessary material on the best terms possible for the Brake-Beam Company.” His services as superintendent were not satisfactory to the defendant, and he was discharged September 4, 1897. He had been paid to August 1st. The declaration contains a special count, to which is appended the common counts. A bill of particulars was demanded and furnished, in which plaintiff states his claim as follows:
1897.
Sept. 1. Salary for month of Aug., 1897..... 8416 66
Oot. 1. “ “ “ “ Sept., 1897.......... 416 66
Nov. 1. “ “ “ Oet., 1897.......... 416 66
Deo. 1. “ “ “ “ Nov., 1897_____ 416 66
1898.
Jan. 1. Salary for month of Dec., 1897__________ 416 66
Interest at six per cent, per annum.
All under written agreement for employment made between plaintiff and defendant, dated January 1, 1897.
Upon the trial, plaintiff testified that he had performed the general services laid out to be performed under the contract up to the time of his discharge, and that he was ready and willing to perform after that time. On cross-examination he admitted that while acting under the contract, and prior to August 1st, he had, without the knowledge or consent of the defendant, and in violation of the requirements of the contract to provide material at the least possible cost, received rebates, or “commissions, ” as he termed them, upon purchases of steel, amounting in the aggregate to $1,000. His excuse for this conduct is that the defendant’s credit was not good, and that the money was paid to, him because he guaranteed the payment of the account; admitting, however, that he did not inform the defendant of these facts, because he thought it was none of the defendant’s business. At the close of plaintiff’s case, defendant requested the court to direct a verdict in its favor upon the ground that plaintiff’s own testimony showed that he had been guilty of a gross violation of the contract sued upon; and, upon the court’s intimating its intention to grant the request, plaintiff’s counsel, conceding the violation of the contract, claimed a right “to recover, according to the terms of the contract, for his services during the month of August, 1897, and during the first four days of the month of September, 1897.” A verdict was rendered for defendant, and no exception taken by plaintiff to the action of the court in holding that the defendant was justified in discharging the plaintiff September 4, 1897.
The only error assigned is as follows:
“The court erred in charging the jury as follows: ‘I do not think the plaintiff is entitled to recover anything for his services under the agreement, either during the month of August or the first four days in September, 1897, because, as I have stated, the discharge of the plaintiff from the employment was justifiable.’”
It is claimed by counsel that plaintiff performed the contract to the date of his discharge, and as there was no notice, under the plea of the general issue, of recoupment or set-off, defendant was not entitled to any reduction from the contract price for the month of August and the four days in September; that therefore plaintiff was entitled, under the common counts in assumpsit, to recover for that time at the rate fixed by the contract. The plaintiff offered no evidence of the value of the services rendered, but relied upon the contract as fixing the value.
We think the court below was in error in directing the verdict for defendant. It was conceded that he worked one month and four days for which he was not paid. His retention in service for that time was some evidence of his right to wages. Bolt v. Friederick, 56 Mich. 20 (22 N. W. 187). And the fact that he had violated his contract could not be taken by the court as proof positive that such wages so earned had been offset by this breach of contract. It is true that the breach .of the contract estopped him from recovering wages after his discharge, for it gave the master the right to discharge him. But it was a question for the jury to determine the value of the services actually rendered, and the contract, with proof that services were actually rendered, was some evidence of his right to wages. Had the defendant given notice of recoupment, it could undoubtedly have set off its damage by reason of the breach against the value of the services.
The judgment must be reversed, and a new trial ordered.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). We think the question of contributory negligence belonged to the jury. The boy was so injured that he remembered but little of what occurred. There was evidence that he was seen doing his best to hold the team back, that it was very difficult to stop a team going down the hill, and that it could only be done by running into the bank. The boy had stopped at the top of the hill. It is a very unusual occurrence, and contrary to the rules of the company, for one train to follow another so closely as plaintiff’s testimony shows was done in this case. The rules of the company require that trains going in the same direction shall keep 10 minutes apart. The noise of the passenger train might interfere with the ability to hear the freight train.
The testimony on the part of the plaintiff as to the statutory signals was not of a mere negative character. It was not the testimony of those who said that they were paying no attention and did not hear. On the contrary, their testimony is positive that the whistle was not blown. The testimony on the part of the trainmen was positive that it was blown. The question was therefore properly left to the jury.
Counsel insist that the accident occurred at 2:53 p. m., and that the passenger train was then at Daily, 12 miles from the place of the accident. It was conceded upon the trial that the passenger train reached Cassopolis at 2:44. The train-sheet shows, and the train dispatcher testified, that it was at Daily, 4.3 miles west of Cassopolis, at 2:54. Some of the freight trainmen testify positively that the time of the accident was 2:53. If these witnesses were uncontradicted, the plaintiff’s case would fail, because the passenger train would then have been out of sight and hearing before plaintiff approached the crossing, or had reached the top of the hill. While the witnesses for plaintiff do not testify as to the exact time, they do positively testify that they saw the passenger train pass, and the freight train approach within 3 or 4 minutes after-wards. To hold with the defendant upon this point, we should be compelled to ignore the testimony of plaintiff’s witnesses as to the immediate proximity of the two trains, and as to seeing three trains. tJnder this conflict of evidence, this question was properly submitted to the jury.
One of the witnesses for the plaintiff, who had testified that the freight train did not whistle for the crossing, was permitted to state that he and his brother conversed about it at the time. The conversation was not given. The purpose of it was to show that the witness’ attention Was called to the fact at the time. We think this was competent, within Cole v. Railway Co., 105 Mich. 549 (63 N. W. 647), and authorities there cited.
Error is assigned upon the refusal of the court to instruct the jury, “The plaintiff is, on his own showing, to be charged by, with, and under the same rule of contributory negligence as an adult would be.” This was part of a request; the other part being, in substance, that the declaration is based upon the theory that he is chargeable with the same degree of care as an adult would have been, and that his proofs proceed upon the same theory. Plaintiff was not required, in his declaration, to assert that he was not bound to exercise the same degree of caution as an adult. The declaration sets forth his age, and that he was in the exercise of due care and caution. The proofs as to his age, experience, and manner of driving, and his conduct, were all placed before the jury. The proofs would not have been different, no matter what his age. The declaration and proofs were. sufficient to justify the court in instructing the jury that the degree of care and caution he was required to observe was such as an ordinary boy of similar age, intelligence, and experience would exercise under the same circumstances. Practically, counsel demurred to the declaration and the proofs as insufficient to justify an instruction that plaintiff was only bound to exercise the care and prudence of the average person of his age. The question whether a railroad company is entitled to the exercise, on the part of all travelers upon the highway, of the care and prudence of the average adult, is net before us.
Error is assigned upon the refusal of the court to charge, ‘ ‘ In this case the railroad company was not negligent in the speed of its train; for trains are not limited in the rate of speed they may run in the country and across the public highways, where the travel is limited.” The request states a correct proposition of law, as we have repeatedly held, but it was not applicable to the facts of this case. The court instructed the jury that, if extra danger existed, the defendant, as well as the plaintiff, was bound to use extra precaution. There are single sentences in the instruction given which, taken alone, may be erroneous, but, read in connection with the entire charge, they mean that, the greater the speed, the greater should be the care in giving warning when approaching a crossing ; that its speed should not be so great as to render unavailing the warning of its whistle when given. The «.court then added:
“Ordinarily the giving of the statutory signals is sufficient to protect travelers upon the highway who desire to ■cross the railroad track; but if obstructions intervene between the train and the public highway where it crosses the track, which obstruct the view, and which would be liable to cut off the sound of the whistle or bell from those ■about to cross the track, such circumstances would impose an increased duty upon the railroad company to exercise ■additional caution in approaching the crossing. And if the company runs its trains so close together, as they cross the highway, that the noise of the first train will ■drown the sound of the whistle and bell on the second train, and thus render unavailing the statutory warning, this would likewise make it the duty of the company to approach the crossing with its rear train with a greater degree of care than though there was nothing to prevent the signals from being heard. ”
We see no error in these instructions, applied to the facts of this case.
Judgment affirmed.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). The case comes squarely within Gregory v. Wendell, 40 Mich. 432, where contracts of this character were ably discussed by the late Justice Cooley, unless the act of 1887 (3 Comp. Laws 1897, § 11373) makes such contracts as were approved in that decision void. The statute is printed in the margin. Under the plaintiff’s testimony, he did not know whether defendant had 5,000 bushels of wheat to sell, and did not ask him. A party may make a binding agreement to sell that which he does not have. He may go into the market and purchase it, and he cannot defend, when called upon to perform his contract for future delivery, by saying, “ I did not have the property when I made the contract.” Commission merchants and others make such contracts, expecting to go into the market and buy. The same rule applies to his purchases. Both parties, under the testimony of plaintiff., understood that actual delivery of the property bought or sold upon these orders could be enforced. This agreement brings it without the statute. If, however, it was understood that this was a mere evasion of the statute, and neither party contemplated an actual sale or delivery, then the transaction was void, and plaintiff could not recover. Upon these points there was a conflict of testimony, which was submitted to the jury upon the theory of both sides. The jury sustained the plaintiff’s version, and there was testimony to sustain it. It is quite likely, and in fact very probable, that this was an evasion of the statute, and was so intended by the parties. But, where there is a conflict of testimony, the question becomes one for the jury, and appellate courts cannot interpose their judgment for that of a jury. Carland v. Telegraph Co., 118 Mich. 369 (76 N. W. 762, 43 L. R. A. 280). We cannot say that this was a mere wager, based upon the rise and fall of prices. Under the defendant’s contract to sell, as stated by plaintiff, plaintiff, or his correspondent in Chicago, could have recovered damages for failure to perform the contract. So, if the seller in Chicago had declined delivery to defendant on his purchase, defendant could also have recovered damages for failure to do so. Under defendant’s testimony, the contract was contra bonos mores, and within the prohibition of the statute. It ip not enough^that defendant intended merely a speculation upon margins, — a mere wager upon the rise or fall of prices, — and no delivery. Plaintiff must also have par ticipated in that intention. Wagner v. Hildebrand, 187 Pa. St. 136 (41 Atl. 34); In re Taylor & Co.’s Estate, 192 Pa. St. 304 (43 Atl. 973, 18 L. R. A. 855); Anthony v. Unangst, 174 Pa. St. 10 (34 Atl. 284); Peters v. Grim, 149 Pa. St. 163 (24 Atl. 192, 34 Am. St. Rep. 599); Counselman v. Reichart, 103 Iowa, 430 (72 N. W. 490); Pratt v. Boody, 55 N. J. Eq. 175 (35 Atl. 1113); Waldron v. Johnston, 86 Fed. 757; Embrey v. Jemison, 131 U. S. 336 (9 Sup. Ct. 776); Whitesides v. Hunt, 97 Ind. 191.
Judgment affirmed.
The other Justices concurred.
Comp. Laws 1897, § 11373: “That it shall be unlawful for any corporation, association, firm, copartnership, or person to keep, or cause to be kept by any agent or employé, within this State, any office, store, or other place wherein is conducted or permitted the pretended buying or selling of the shares of stocks or bonds of any corporation, or petroleum, cotton, grain, provisions, or other produce, either on margins or otherwise, without any intention of receiving and paying for the property so bought or of delivering the property so sold; or wherein is conducted or permitted the pretended buying or selling of such property on margins, when the party selling the same, or offering to sell the same, does not have the property on hand to deliver upon such sale, or when the party buying any of such property, or offering to buy the same, does not intend actually to receive the same if purchased or to deliver the same if sold; all such acts, and all purchases and sales, or contracts and agreements for the purchase and sale, of any of the property aforesaid in manner aforesaid, and all offers to sell the same or to purchase the same in manner aforesaid, as well as all transactions in stocks, bonds, petroleum, cotton, grains, and provisions in the manner as aforesaid, on margins, for future or optional delivery, are hereby declared gambling and criminal acts, whether the person buying or selling, or offering to buy or sell, acts for himself or as an agent, employé, ®r broker for any firm, copartnership, company, corporation, association, or broker’s office.” | [
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] |
Moore, J.
This is an application for a writ of mandamus to compel the respondent to cancel a certain tax deed for the taxes of 1893. The relator claims to be the. owner of an undivided one-half of lot 1, being a part of the northwest fractional quarter, of section 29, township 8 north, of range 16 west, by virtue of the provisions of a will made by Luman Jenison, who, she claims, was the owner of the original title. The return of the respondent denies that the relator is the owner of said interest, and claims that it is owned by Stephen L. Munroe. He denies that Mr. Jenison was ever the owner of the original title to said land. There being a question, then, about the title of the relator to the land, irrespective of the questions growing out of the tax deed, it is exceedingly doubtful whether the question of title can he tried in this proceeding.
There is another reason, however, why the writ ought not to issue. The pleadings show that Stephen L. Mun-roe obtained tax deeds to the lands for the taxes .of 1893 and other years. It is one of these deeds that relator desires to have canceled. After he pbtained these tax deeds, Mr. Munroe, claiming to be the owner of the land in controversy, filed a bill in the circuit court of Ottawa county, in chancery, against certain defendants (among others, the Luman Jenison who willed the property to the relator), for the purpose of removing the cloud to his title, and settling the title to the land. Mr. Jenison, as well as other defendants, answered to the bill of complaint, disputing the title of .complainant, and claiming to be owners of the land themselves. The cause was heard upon pleadings and proofs taken in open court. To make his case, the-complainant introduced in evidence all the proceedings leading up to the sale for the taxes of 1893, and the deed issued by the auditor general. The regularity of these proceedings -and the validity of the deed were directly involved in that proceeding. A decree was afterwards rendered by the circuit judge in favor of said complainant. The court had jurisdiction of the parties and of the subject-matter, and the questions involved in that proceeding were the same as those sought to be raised here. If Mr. Jenison, or the relator after his death, was not satisfied with that decree, they should have appealed therefrom. As was said in Sayers v. Auditor General, ante, 259, (82 N. W. 1045), there should be an end to litigation; and, when the disputed questions and the parties in interest are all properly before the court, the decree of the court must be regarded as conclusive, unless an appeal is taken therefrom.
The application for the writ will be denied.
The other Justices concurred. | [
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Martin Cii. J.:
This bill is filed for partition of real estate held by the complainants and defendants as tenants in common. As to Webster, who is described as being the owner of an undivided one-fourth, the bill is taken as confessed. Crane is represented as the owner of another undivided one-fourth, and the bill further alleg'es that he has a pretended title which he claims to hold as adverse to that of his co-tenants, but which is averred to be fraudulent and void; and they ask to have it so declared in order that partition of the several interests of the owners may be made. The facts respecting this title are set out in the bill substantially as follows: The whole of the lands owned in common was sold at tax sales, for non-payment of taxes assessed thereon during the continuance of the tenancy in common; and upon such sales, the defendant Crane, being such co-tenant, bid off the same for the taxes of certain years, and for those of other years caused the land to be bid off by his brother, but for his own use, and, as the bill alleges, he took a transfer of the bids, and procured deeds from the Auditor General to be executed therefor to himself. Reed, in his life time, offered to pay Crane his proportion of such bids, and the interest, &c., and the complainants, who are his executor and devisees, are still ready and now offer to do so; but they also insist that such sales were invalid for irregularities, and that Crane’s title is a cloud upon, theirs which ought to be removed.
This, Crane contends, is an assertion and admission of an adverse title and claim in himself, which can not be litigated in this suit; but that the validity of his title this acquired should be first determined at law, and if found to be invalid, then this suit can be maintained.
It is unnecessary to determine whether, on a bill for partition between tenants in common, adverse titles or claims can be litigated and settled; because, if the allegations of this bill are true — and the demurrer admits their truth — Crane has no adverse title or claim. He occupies neither the position of one purchasing in an outstanding adverse title, nor of one purchasing from a bona fide purchaser at a tax sale, whose title had become absolute, Whereby the co-tenancy had been dissolved. He stands simply as one avIio has paid upon compulsion taxes assessed against the property held by him in common with others.
The burden was cast upon him and his co-tenants to pay the taxes assessed against the land. This each might have discharged, so far as his own interest was concerned, by paying his' aliquot proportion of the tax; and thus relieved such interest from the lien for the tax which the law imposed upon it. Had Crane done this, and after-wards bid in his co - tenants’ interest sold for their default, perhajjs a different rule might obtain, and he have acquired a good title as against them: but such is not this case, and no opinion is called for upon such a state of facts. But as they all neglected to discharge this burden, and as the coercive measure of a sale of the land was resorted to by the state to compel it, when Crane bid in, or procured another to bid in the land for him, and took the deeds to himself, he acquired thereby no title as against his co-tenants, as this was but another way of discharging such burden. He was in default himself; and his default, as well as that of the other co-tenants, occasioned the sale; and he can not be permitted to take advantage of his own neglect of duty, to acquire the title of others. So far as this suit is concerned, therefore, he stands in the precise situation in which he would, had he voluntarily paid the whole amount of taxes before sale. He has no title, but simply a right to compel contribution from his co-tenants; and the bill is not multifarious for averring the facts, the character of the purchase, and his adverse claims founded upon it; nor for praying relief against them in aid of the partition. — See Lewis v. Robinson, 10 Watts, 354; Williams v. Gray, 3 Greenl. 207; Van Horne v. Fonday, 5 Johns. Ch. 407.
Such being the rule, both of law and equity, complainants are entitled to the discovery sought; for if Crane’s title be of the character charged in the bill, the court may and ought to declare it void, and no impediment in the way of making partition between these parties: — See Overton v. Woolfolk, 6 Dana, 374.
The interests of the several complainants are set forth with sufficient particularity. The statute [Comp. L. §4619) requires that the bill shall set forth the rights and titles of all persons interested in the land, so far as the same are known to the complainant. These complainants proceed jointly as the executor and devisees of Hezekiah H, Reed, for a partition between the estate and these defendants. They ask no partition as between themselves. So far as the executor is concerned, he represents the whole title, and the devisees unite with him as interested in the subject matter, and submitting to be bound by the decree. This they may do, as indeed may all representatives of a single interest: — See Hill. on Real Property, 606.
The objection of the defendant Crane appears to be, that the interest of each ■ complainant is not set out with sufficient particularity, and that the bill does not show in-what proportions the complainants take under the will of Reed, nor in what manner Page has an interest in the land, nor how much that interest is. The bill avers that Hezekiah H. Reed, in his life time, was seized of the undivided one-half of the lands in question, and while so seized, died, leaving his last will and testament, whereby, among other things, Page was nominated his executor, and the land was devised in common to the other complainants, with the power nevertheless hi such executor to sell and dispose of the same. There is no ambiguity in this state-, ment of the interests of the several complainants, which, with the exception of that of Page, would necessarily be share and share alike; and Page’s interest is stated with sufficient clearness as that of an executor with power to sell and dispose of the whole interest which the testator had in the land. I can perceive no necessity in any case for greater particularity; nor are we referred to any au-. thorities or any principle of pleading requiring it. Sufficient is stated to enable the court to take the necessary proofs of the interests of the several parties, upon which to decree a partition; and especially in this case, where the complainants seek no partition as between themselves.
Let it be certified to the Circuit Court for the county of Montcalm, as the opinion of this court, that, upon the points reserved, the demurrer should be overruled.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). Was this instruction correct? This is the sole question presented. The court, we think, clearly confounded an election of remedies with a mistake in remedies. The court instructed the jury that, as between Joyce and plaintiff, it was a cash transaction, and that no title to the wheat passed to Joyce. It follows that Carson, Craig & Co. had no right of action against the sheriff, who had a complete defense to that action. Upon ascertaining this fact, they were justified in discontinuing that suit, and bringing an action to recover the money paid. McLaughlin v. Austin, 104 Mich. 489 (62 N. W. 719); Chaddock v. Tabor, 115 Mich. 27 (72 N. W. 1093); Smith v. Bricker, 86 Iowa, 285 (53 N. W. 250); McNutt v. Hilkins, 80 Hun, 235 (29 N. Y. Supp. 1047). .. It is not a case of election of remedies, but of mistake of remedies.
Judgment reversed, and new trial ordered.
The other Justices concurred. | [
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] |
Hooker, J.
The relator is a street-railway company •organized, and its road is in operation upon the streets of the city of Jackson, under Act No. 35 of the Laws of 1867. The consent of the city to the construction and operation of the road provides that the company shall construct its railway from its present terminus, on Francis street, to the south corporation line, within one year from the taking effect of the same, “or at such earlier date as a crossing of said railway with the Michigan Central and Lake Shore railways can be arranged with the State commissioner of railroads.” The relator made application to the respondent for the approval of the place and manner in which relator should cross those tracks, as required by Act No. 171 of the Public Acts of 1893, and after a hearing he determined that such crossing should be made by means of an overhead bridge, to be constructed in accordance with plans to-be submitted to, and approved by, him, said bridge to be at least 22 feet above the surface rails of the tracks crossed, after those tracks had been lowered at least 3 feet from the present grade line. Thereupon this applic ation for a mandamus was made to compel respondent to vacate so-much of his order as requires an overhead crossing, and to proceed to prescribe such reasonable safeguards to avoid accident at said crossing as the law requires.
The order of the respondent is attacked upon several grounds. It is said:
First. He has not power to make such an order, because (a) the railway has a vested right, under the law and its arrangement with the city, to the use of the highway, and that this is taken away; (b) the city has a similar right to have the highway so used, and to control such use, and it is deprived of these rights; (c) the relator cannot elevate its track in the manner prescribed without first acquiring a right from abutting landowners, and, as it has not the right of eminent domain, it is powerless to do so, and therefore is deprived of the right to build and operate its road; (d) that all of these are vested rights, of which relator and the city cannot be deprived without due process of law, and that involves action by the judicial branch of the government.
Second. The law is unconstitutional, as class legislation.
Third. That the order of the commissioner, if otherwise valid, should be vacated because it is not reasonably practicable for the relator to comply with it; and, at all events, it should be modified by compelling the steam roads to share the expense of the overhead crossing.
The petition does not state the date of the adoption of the ordinance giving authority to build in the street, but as the track on Francis street was required to be constructed within one year from the time that the ordinance took effect, which time had apparently not expired when the briefs were made, and as it clearly contemplates application to the commissioner, we conclude that the relator’s rights were acquired after the laws cited were in force, and subject to the provisions of such laws, so far as they are valid. We do not mean to imply that such laws apply only to rights acquired since their passage, but, as we have that kind of a case before us, we need not consider the effect upon pre-existing rights.
The act under which this company was organized was passed in 1867. See 2 Comp. Laws, § 6131 et seq. In 1897 three sections were added to this act, one of which (2 Comp. Laws, § 6166) reads as follows:
“ All street-railway corporations organized or doing business under this act shall be subject to the supervisory control of the commissioner of railroads, as provided by act number one hundred and seventy-one of the Public Acts of Eighteen Hundred and Ninety-Three; and the commissioner of railroads shall also'have power to make from time to time reasonable rules and regulations for the operation of the street railways of such corporations in the conduct of the suburban express business they are authorized to carry on by this act as amended.”
The effect of this amendment is to make Act No. 171, Pub. Acts 1893 (2 Comp. Laws, § 6319 et seq.), a part of it, to the extent indicated.
It is urged by counsel that Act No. 171 is unconstitutional, and it may be said that an unconstitutional act cannot be made a part of another act by reference. Without passing upon that question, it is enough to say that, whether the act can be applied to rights which vested previous to its passage or not, it can stand as to those granted afterwards, unless it is void because of a defective title. The title is as follows:
“An act to regulate the construction of the tracks of railroads and street railroads across each other, and the stringing of wires, electric or other, over railroad tracks, and relative to the maintenance of such tracks heretofore so constructed and wires heretofore so strung.”
The plain object of the act, as expressed by the title, is the protection of life and property at crossings of railroads and street railroads. The claim that two objects are expressed, because wires are referred to and regulated, does not impress us. We are not certain that the title might not have been made broad enough to cover any appliance or structure erected over railways or street railways; but it is unnecessary to decide this, for, if it were necessary to sustain the act, we would be justified in limiting the act to those wires which are used in connection with one or the other of the roads.
The city of Jackson has no authority, other than that conferred by law, to enter into any arrangement to permit the use of its streets by railway companies, and no railway corporation has a right to build such railways, or even to exist, except by legislative permission. This railway, then, acquired a vested property right, not to build a railroad upon the surface of the ground, in the street, at all events, but only where the law permits, and in compliance with the law. It has no right to build any other kind of a road, or to build a road in any other than a lawful way or place. These are conditions of the grant of its vested property rights, and, if it cannot comply with them, it cannot build the road. The State is not obliged to authorize the building of railways in the streets; hence, if it chooses to do so, it may impose conditions. One of these conditions is that at crossings of steam roads it shall comply with the requirements of the State, to be determined by the railroad commissioner, as to the method of crossing, and the expense of the same. It was competent for the State to forbid any crossing at grade, and the law indicates an intention to do so in all cases where it is reasonably practicable to avoid grade crossings. A railroad company is not in a position to say to the State: “It is true you have imposed conditions that we cannot or will not comply with; therefore we propose to build a road in a place and in a way that you have not authorized.” If there is authority for the claim that the exercise of the right of eminent domain is necessary before relator can construct the road which it is authorized to construct, manifestly it will have to wait until provision-can be made for it. It cannot do an unauthorized thing merely because the authorized one is not feasible. So, if it is true that relator cannot build an overhead crossing until it has secured rights from abutting proprietors, which it has no power to condemn, it will have to acquire them in some other way, or not build the road where contemplated. Again, the character of the crossing required, or its cost, may not meet relator’s approval; but the determination by the railroad commissioner is one of the conditions imposed. It becomes unnecessary, therefore, to determine whether he is performing a judicial function, which only the courts are competent to perform, for the purpose of this case, or whether it is class legislation. Relator appears to have recognized this when it applied to the respondent. He had authority enough to be applied to, but not enough to enforce his order, yet enough so that relator still prays that he make another order according to law. We are of the opinion that this disposes of most of the contentions of the relator’s counsel.
The act gives relator the right to except to the ruling of the commissioner. If by that is meant (and we do not say so) that this court will review his discretion upon the facts, it can, at the most, be in cases where there is a clear -abuse of discretion, and it would be necessary for us to have the facts clearly before us to do that. Detroit, etc., Ry. v. Commissioner of Railroads, 127 Mich. 219 (86 N. W. 842). No evidence is returned, and there may not have been any taken, for the commissioner returns that lie. viewed the premises, and satisfied himself, in ways not formally judicial (as he may lawfully do), of the circumstances and conditions upon which his action was predicated. No issue is made in this court, and we must take his return as true. We do not understand it to be his duty to order overhead crossings in all cases, or to impose all burdens arising from the separation of grades upon the applicant in all cases. We understand that he has not done so in this case. He has, so far as the bridge is concerned, but not as to the lowering of the steam roads. He has determined the height to which relator must construct its bridge, but it does not devolve upon it to lower the steam-road tracks. They will omit obedience at their peril, and relator need not be concerned about it. Whether or not it is reasonably practicable to separate grades is a question of judgment. The law does not mean that it shall be done in all cases where it is physically possible. Any reason that shows the unfitness of a separation of grades is sufficient to warrant a grade crossing. We are not prepared to say that the expense might not be taken into consideration, as well as the effect upon abutting property. At the same time it is evident that the dangers of grade crossings are great, and the legislature has indicated a design to forbid them wherever it can be consistently done. We see no occasion to interfere with the order made, and the writ is denied.
The other Justices concurred. | [
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Grant, J.
(after stating the facts). The relator sought to accomplish two objects by the resolution of February 4th, viz., the increase of the capital stock, and the division of the stock into “ common” and “ preferred.” Subdivision 4 of section 2 of the act (2 Comp. Laws, § 7038) provides that, when the capital stock of the corporation is increased or diminished, the president and a majority of the directors shall make a certificate thereof. The certificate in this case was signed by the president and secretary, and not by any of the directors. Section 17 (2 Comp. Laws, § 7053) provides that the articles of association may be amended, by a vote of two-thirds of the capital stock, in a-manner not inconsistent with the provisions of this act, but such amendment shall not become operative until a copy of the resolution, signed by the president and secretary, shall have been recorded. Section 38 (2 Comp. Laws, § 7073) provides for the issue of “common” and “preferred” stock. The closing paragraph of that section provides that, by a vote of three-fourths of its stock, such corporation may amend its articles so as to issue preferred and common stock, “ in the same manner and with the same effect as is now provided by section 17 of this act, relating to amending articles of association.” There is nothing in section 38 authorizing an increase of the capital stock. If the corporation desires to increase its capital stock, and at the same time to provide for the two kinds, it must proceed under subdivision 4 of section 2, and present a certificate to be filed as required by that section. Sections 17 and 38 do not nullify the provisions of section 2 as to increasing the capital stock. They refer to other amendments than those increasing or diminishing the stock. The certificate, therefore, was not- in compliance with the statute.
The statute (section 38; 2 Comp. Laws, § 7073) provides that the preferred stock shall at no time exceed two-thirds of the actual capital paid in. It is conceded that the entire stock has not been paid in, and that the issue of, $50,000 of preferred stock would be in violation of the statute. The relator, however, contends that it is entitled to have the amendment recorded and filed, and that the restriction then limits the directors in issuing the preferred stock to an amount not exceeding two-thirds of the capital stock as it may from time to time be paid in. We do not think this the proper construction. The resolution increasing the capital stock to $150,000, and providing for preference shares, does not state how much of the capital has been paid in. The original articles, as filed, are required to show the amount of capital actually paid in. The annual report of the corporation requires a similar statement. But after one report is filed there is no public record of the payment of any more capital stock until the next annual report. Dishonest directors, if the contention of the relator be sustained, might during this time issue the whole of the preferred stock upon their assurance to its purchasers that the whole capital stock was paid. The entire preferred capital stock might be sold at the same time to different parties. In such case it would be impossible to tell what stock was issued first, and what, therefore, was in violation of law. We think it was the purpose of the law to render impossible such a condition of affairs, and that the law means that no preferred stock can be authorized beyond two-thirds of the amount of capital actually paid in at the time of authorizing the issue. This construction prevents any opportunity on the part of dishonest directors to commit fraud, and imposes no hardship or inconvenience. The stockholders are presumed to know the condition of the company, and how much money they want to borrow by the issue of preferred stock in order to continue business. Should they desire to raise more money in the same manner, another meeting can be called.
The other remaining question is, Must the. entire capital stock of a corporation, under this act, be subscribed, or can three or more corporators subscribe for one-tenth of the capital stock, pay that in, and then say that they are a duly-organized corporation? It does not need much argument to demonstrate the fallacy of this position. The capital stock in many cases is the chief asset of the corporation. The theory is that those dealing with it have the right to assume that this stock is all in the hands of bona fide subscribers, liable to assessment to pay the debts of the corporation. There is no statute in this State prohibiting a corporation from incurring debts or borrowing money until all its stock is fully paid. All the law now requires is that the stock be subscribed, and that a certain percentage thereof be paid in, and then the corporation can proceed to business and incur debts without calling upon the stockholders for further assessments. It is, in my judgment, a very pernicious policy, but that is a matter for the legislature, and not for the courts. There is no such thing as capital stock until it is issued and owned by the subscribers or purchasers: Relator’s counsel insist that a corporation with $100,000 capital requires only $10,000 of it to be actually subscribed, and the other $90,000 may remain in the treasury, as “treasury stock.” This $90,000 of treasury stock is obviously of no value as an asset. The directors cannot be compelled to issue it, and nobody can be compelled to buy it. Such a corporation would virtually have a $10,000 capital, and that all paid in, with no further liability on the part of those who have taken the $10,000, because their stock is fully paid up.
While the statute contains no express requirement that all the stock must be subscribed, we think it clearly con templates this, in order to constitute it a corporation de jure. We are not dealing with those cases where the courts have held corporations to be corporations de facto, though not de jure, where they have not complied with the law. In such cases stockholders are properly held estopped from setting up such defenses. We are dealing with a case where the secretary of state declines to recognize such a corporation as a de jure one until it has complied with all the requirements of the law. We think this conclusion is fully sustained by the reasoning in the case of International Fair & Exposition Ass'n v. Walker, 88 Mich. 62 (49 N. W. 1086),' in which it was said, “ The capital stock authorized is the lifeblood of the corporation.” See, also, page 79 of that opinion. Undoubtedly, if the relator had filed its articles of association, the corporation would have been a de facto one. But the respondent very properly replied to relator’s application to file these amendments, “ I insist that you become a de jure corporation, as well as a defacto one.”
Counsel quote a sentence from American Mirror & Glass-Beveling Co. v. Bulkley, 107 Mich. 447 (65 N. W. 291), in support of their contention. That case was written by the writer of this opinion. The sentence quoted is as follows:
“The act [the same one as that now under consideration] does not provide that the entire capital stock shall be subscribed as a condition precedent to its organization and the right to carry on business.”
The defendant in that case had paid in full for her stock. The attempt was made to hold her for the stock which had not been subscribed. The logical conclusion from that case is that, had she been a party to the fraud in organizing the corporation and in carrying it on, without the issuance of the entire capital stock, she would have been liable. Standing alone, the sentence quoted might naturally bear the construction placed upon it by counsel; but, read in connection with the facts of the case, it cannot be so construed. It was a case of a de facto, not a de jure, corporation.
For these reasons, the respondent was right in refusing to file the certificate of the amendment, and the writ is denied.
The other Justices concurred. | [
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] |
Christiancy, Ch. J.
The plaintiff in error (defendant below) was tried and convicted in the recorder’s court of the city of Detroit upon an information charging him with feloniously uttering and publishing as true, a false, forged, and counterfeited letter of attorney, knowing the same to be false, forged, and counterfeited, with the intent to injure and defraud, etc.
The forged letter of attorney is described in the information in the following words: “A certain false, forged, and counterfeited letter of attorney, which said false, forged, and counterfeited letter of attorney purported to be executed by Eelix Mette, Charles Mette, Adeline Clark, and Anna McLelland to one Joseph Trombley, for the purpose of authorizing said Trombley to sell certain lands in tbe township of Springwells, county of Wayne and state of Michigan, and which false, forged, and counterfeited letter of attorney also purported to be acknowledged before one Aaron Castello, a notary public, of Almeda county, Califor ilia, and purported further to have the signature of said Aaron Oastello attested by certificate of Louis B. Smith, clerk of the district court of said county, which said signatures of said Aaron Oastello and Louis B. Smith were false, forged, and counterfeited.”
Evidence was given tending to show that the names of Eelix Mette, Charles Mette, Adeline Clark, and Anna McLelland were forged, but none tending to show that those of Oastello and Smith, or either of them, were forged.
According to the precedents and authorities it was not absolutely necessary in this information, to set out particulary in what the forgery consisted, though it is usual to set this out in at least one count of the indictment; and as an instrument may be forged in a great variety of ways, and any mere alteration which would (if true) change its legal effect will constitute a forgery of the instrument as a whole, fairness to the accused would seem to require such statement, that he may have notice of what is intended to be proved against him, so that he may prepare to meet the charge; the practice of omitting such statement, is not therefore to be commended.
But if it was not necessary to set out in what the forgery was claimed to consist, it was at least necessary, when the prosecutor did undertake to set it out, that he should state it truly, so as not to mislead the defendant. And so far as the prosecutor took upon himself to describe the instrument claimed to be forged, he was bound to prove it as described: otherwise he might charge the defendant with uttering one forged instrument, and convict him for the uttering of another of a different description, which he had no reason to expect would be introduced against him, and no fair opportunity to defend against it.
As every man is presumed to be innocent until proved to be guilty, he must be presumed also to be ignorant of what is intended to be proved against him, except as he is informed by the indictment or information.
Now, if the charge in this information had been pre sented against me, I confess I should have 'believed in entire good faith, that the prosecutor intended to try me for having uttered and published as true, a paper purporting to be a letter of attorney, the forgery of which was claimed to consist only in signing thereto the names of Aaron Castello as notary, and Louis B. Smith as clerk, etc. What other inference could I draw, when, though he might have omitted to state at all in what particulars he claimed the instrument to be forged, he has, nevertheless, pointed out these two particulars in which he asserts it to be forged, and has not claimed it to be false or forged in any other particular? Under this information, therefore, I am inclined to the opinion, that no proof of the forgery in any other particular, would have been admissible, if objected to. But no objection upon this precise ground seems to have been taken, and I therefore give no definite opinion upon it.
But it is admitted that no evidence was given or attempted to be given tending to show the forgery of the names of Castello or Smith, the only ones alleged to be forged. And when the letter or power of attorney was offered, it was objected to on the express ground, that the paper was not the paper set forth in the information. And the court was requested, but refused, to charge that there was no such evidence, and that the jury could not find the defendant guilty without proving that the names of Castello and Smith were forged. This objection was, I think, well taken. The defendant was charged with uttering an instrument having upon it the forged name of Castello as notary to an ostensible certificate of acknowledgment, and the forged name of Smith to Avhat purported to be a certificate of the clerk; and the paper was not alleged to be forged in any other particular. Under such circumstances I think these allegations must be considered as so far descriptive of the instrument, that the prosecutor was bound to prove the forgery of at least one, if not both of the names alleged to be forged.
It is true the instrument might be read without first proving these facts, and evidence of these facts might have been afterwards introduced; but here there was no such evidence at any stage of the trial.
It is unnecessary to notice the other questions raised.
It must therefore be certified to the recorder’s court, that in the opinion of this court the verdict should be set aside and a new trial awarded.
The other Justices concurred. | [
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] |
Campbell, J.
The plaintiff is a railway corporation formed by the Consolidation of two corporations, named the Peninsular Railway company, and the Peninsular Railway Extension company. Defendant Tharp is sued upon a subscription made by him to the stock of the Peninsular Railway Extension company before the consolidation. The consolidation papers were made and dated February 13, 1868, and filed in the secretary of state’s office February 16, 1868. The assessments sued on were made in the interval, on February 14th, 1868.
The statutes do not permit assessments to be made by an original corporation until after the articles are filed.— Comp. L., § 2298. Where such a corporation becomes consolidated with another, the statute declares that the merger shall take place “upon making the agreement mentioned in the preceding section, in the manner required therein, and filing a duplicate or counterpart thereof in the office of the secretary of state.” — Comp. L., § 2347. Any corporate action until this step is taken is premature. The new corporation, deriving its franchises from the state law,, cannot act until the state has the requisite evidence of its claim to corporate existence. The statute is the only source of such existence, and its conditions are imperative.
The assessments were therefore void, and no action can he maintained upon them. This being so, there is no occasion to discuss the other questions raised upon the record. The finding supports the judgment, as it shows, no cause of action, and the only error assigned is that it does not support the judgment.
The judgment must be affirmed, with costs.
Graves, Ch. J., and Cooley, J., concurred.
Christiancy, J., did not sit in this case. | [
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Weaver, J.
We granted leave to determine whether the trial court abused its discretion in admitting testimony by defendant’s younger half-sister that he had abused her before abusing the victim in this case, his minor adopted daughter. The Court of Appeals found that the trial court abused its discretion in admitting such testimony. We disagree and find that there was no abuse of discretion. People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993). Accordingly, we reverse the decision of the Court of Appeals.
i
In March, 1994, the victim in this case, the nine-year-old adopted daughter of defendant, told her mother, in response to questions, that defendant had engaged in numerous sexual acts with her in 1992, when she was six. During that time, she lived with defendant at her grandparents’ home. When she told her mother that this abuse had occurred, her parents had been divorced approximately two years, since November, 1992, and were engaged in a dispute regarding visitation.
On the basis of the victim’s admissions to her mother, defendant was charged with two counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct.
Before trial, the prosecution moved to admit testimony by defendant’s half-sister that he had subjected her to similar sexual conduct and rape. These alleged acts were uncharged and occurred over a fourteen-year period that began in 1977 when the she was four years old, and ended in 1991 when the she was approximately eighteen, three years before the instant case. His half-sister testified that the abuse ended only when she became pregnant and told the defendant she would no longer have intercoruse with him.
The trial judge ruled that the evidence was admissible because, in light of this Court’s decision in People v VanderVliet, supra, under MRE 404(b) the probative value of the testimony was not substantially outweighed by its prejudicial effect.
The prosecution offered the victim’s testimony that defendant engaged in sexual conduct with her when she was in the first grade and living with him at her grandparents’ home. Specifically, she testified that “a lot of times” defendant rubbed his privates on her privates, licked her privates, and made her lick his privates. She indicated that defendant’s privates were located “[b]elow his waist” and that “kiss[ing]” his private meant that she put his private “on” or “in [her] mouth” and “[m]ov[ed her] head up and down.” She further testified that before and after these acts would occur, defendant would show her “dirty magazines and tapes.”
Defendant’s half-sister was twenty-one at the time of trial and testified that defendant is her half-brother and is approximately eight and one-half years older than she. According to her, defendant began abusing her when she was four years old. The abuse began with defendant touching her vagina, and, over the course of the next thirteen years, escalated to cunnilingus and culminated in intercourse.
At trial, defendant entered a general denial with respect to the charges and flatly denied any sexual involvement with his half-sister at any time. The defendant was the main witness for the defense. He claimed that the charges were fabricated in order to prevent him from being able to visit his children. To rebut this allegation, the victim’s mother testified that she never threatened to prevent defendant from seeing his children and victim.
The jury convicted defendant on all charges on July 12, 1994, and the trial judge sentenced him to consecutive sentences of fifteen to thirty-five years imprisonment for each CSC I conviction, and ten to fifteen years imprisonment for the CSC n conviction.
Defendant appealed, and the Court of Appeals reversed on the basis that the prejudicial nature of the evidence substantially outweighed its probative value.
We granted leave to consider whether the trial court abused its discretion in admitting the sister’s testimony.
n
Resolution of the issue before us turns on our application of Michigan Rule of Evidence 404(b), regarding the admissibility of “other crimes, wrongs, or acts,” to the facts of this case. The decision whether evidence is admissible is within the trial court’s discretion and should only be reversed where there is a clear abuse of discretion. People v Bahoda, 448 Mich 261; 531 NW2d 659 (1995).
A
Generally, Michigan’s Rules of Evidence proscribe the use of character evidence to prove action in conformity therewith. MRE 404. Character evidence includes evidence of other crimes, acts, or wrongs, such as, in this case, the half-sister’s testimony that defendant sexually abused her over a period of years and several years before trial. This Court has previously explained the policy reason for the rule as
the desire to avoid the danger of conviction based upon a defendant’s history of other misconduct rather than upon the evidence of his conduct in the case in issue. [People v Golochowicz, 413 Mich 298, 308; 319 NW2d 518 (1982).]
MRE 404(b)(1) is a means by which “other acts” evidence is properly admissible. This rule provides, in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake ....
While MRE 404(b)(1) is one of a few rules with which “other acts” evidence may properly be admitted, it is a rule of inclusion that contains a nonexclusive list of “noncharacter” grounds on which evidence may be admitted. This rule permits the admission of evidence on any ground that does not risk impermissible inferences of character to conduct. People v Engelman, 434 Mich 204, 213; 453 NW2d 656 (1990).
To protect against such impermissible inferences, this Court has established a procedural safeguard in the form of a four-pronged standard that a trial court must insure is satisfied before admission of other acts evidence. 413 Mich 309. This Court recently redefined the four-part standard for admissibility of other acts evidence under Rule 404(b) in People v VanderVliet and rejected a mechanical application of a bright-line test for admissibility under MRE 404(b). The VanderVliet standard requires that the trial court determine:
First, that the evidence be offered for a proper purpose under Rule 404(b); second, that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the trial court may, upon request, provide a limiting instruction to the jury. [Id. at 55.]
Under the first prong, Rule 404(b) prohibits admission of evidence “[i]f the proponent’s only theory of relevance is that the other act shows defendant’s inclination to wrongdoing in general to prove that the defendant committed the conduct in question . . . .” People v VanderVliet at 63. Rule 404(b), however, permits admissibility of evidence whenever it is relevant to a noncharacter theory such as, but not limited to, those reasons specifically listed in the rule.
Regarding relevance, the “touchstone” of admissibility and the second prong of the standard, Michigan’s evidentiary rules specifically instruct us that
[a]U relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is not admissible. [MRE 402.]
According to MRE 104(b), “[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” Relevant evidence has two characteristics: it is “material” and has “probative force.” MRE 401. To be “material,” the evidence must be logically relevant to an issue or fact of consequence at trial. Any tendency to prove such a fact in issue constitutes sufficient probative value for purposes of relevancy.
This Court recently clarified that the third prong of this standard requires nothing more than the balancing process described in MRE 403. People v VanderVliet at 72. Rule 403 allows for the exclusion of relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Finally, we would note that the fourth and final part of this standard needs no clarification because it merely authorizes “a Umiting instruction” upon request. VanderVliet at 75.
B
In this case, the Court of Appeals held that the trial court abused its discretion with respect to this third prong of the VanderVliet standard. According to the Court of Appeals,
these allegations of similar acts were so horrendously prejudicial as to require their suppression as being more prejudicial than probative. This was not a skunk in the jury box. It was a pig farm. No trier of fact could have been unswayed by the depiction of this depravity in assessing discrete claims of the “bad man’s” guilt. We decry permitting the effect of this testimony under any rubric, including an instruction by the court that the prior acts were introduced in accordance with MRE 404(b)(1) for purposes of establishing a scheme or plan, or absence of accident or mistake.
* * *
The effect here was to try the defendant for uncharged criminal acts of monstrous repugnance without the bother of due process. [217 Mich App 646, 647-648; 553 NW2d 25 (1996).][ ]
We do not share the above tone of outrage or analysis. First of all, we would note that, when the Court of Appeals decried the uncharged nature of the acts, it must have overlooked the fact that MRE 404(b) specifically addresses the admissibility of uncharged conduct. It also failed to state the proper inquiry, which is not whether the testimony was more prejudicial than probative, but whether the probative value is substantially outweighed by the risk of unfair prejudice. Second, while we would agree that the acts described in the proffered testimony are certainly “depraved” and of “monstrous repugnance,” such characteristics were inherent in the underlying crime of which defendant stood accused. The danger the rule seeks to avoid is that of unfair prejudice, not prejudice that stems only from the abhorrent nature of the crime itself. See Golochowicz, supra at 326. Third, nowhere in its analysis does the Court of Appeals identify the probative nature of the half-sister’s testimony, which is the necessary prerequisite to evaluation of the evidence’s probative value against the danger of unfair prejudice. For these reasons, we find the Court of Appeals analysis lacking and incorrect. As discussed below, we find the balance tips in favor of admission and requires that this Court uphold the trial court’s finding that the evidence is admissible under MRE 404(b), and that the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice.
c
Having rejected the Court of Appeals analysis as unpersuasive, we must now determine whether the proffered testimony was properly admitted. We find that the evidence was properly admitted, with a limiting instruction, under the VanderVliet standard.
The first step in reaching this conclusion involves an identification and evaluation of the purposes for which the evidence was offered. In this case, the prosecution offered the testimony for a myriad of reasons, including the following theories: to show defendant’s intent to be sexually gratified through his actions toward the victim; to show the existence of a scheme, plan, or method by which defendant accomplished the sexual abuse; or to show the absence of either a mistake in the victim’s allegations or percep tion or of innocent intent or touching by defendant. These were legitimate, material, and contested grounds on which to offer the evidence because, in this case, defendant entered a general denial. Defendant’s general denial placed all elements of his CSC charges at issue. See People v VanderVliet, supra at 78.
Of these theories, only one needs to be a proper, noncharacter reason that compels admission for the testimony to be admissible. We find the half-sister’s testimony to be admissible evidence to rebut defendant’s claim of fabrication of the charges. Indeed, the half-sister’s testimony was the only evidence to explain why the mother specifically questioned the victim about her relationship with her father, and why the victim waited two years before telling her mother about the abuse she suffered at the hands of defendant.
One of the theories presented by the defense was that the victim’s mother fabricated these allegations of sexual abuse to prevent defendant from having any future contact with his adopted daughter. To refute this claim that the allegations were fabricated by the victim’s mother, the prosecutor introduced defendant’s half-sister who testified, on cross-examination, that the victim did not reveal the abuse until the victim was directly asked about it by her mother, two years after the abuse occurred. The mother began asking questions about defendant’s behavior with the victim in response to a conversation she had with defendant’s half-sister. During this conversation, defendant’s half-sister confided that she had been abused by her brother since age four and over the course of several years. This information prompted the mother to ask the victim pointed questions about her relationship with defendant, at which time the victim admitted that two years prior, the victim was forced to engage in sexual conduct with him on several occasions. Absent the half-sister’s testimony, the prosecutor could not effectively rebut defendant’s claim that the charges were groundless and fabricated by her mother. As in People v VanderVliet, we find that “[without such evidence, the factfinder would be left with a chronological and conceptual void regarding the events . . . .” Id. at 81, citing United States v Ostrowsky, 501 F2d 318, 322 (CA 7, 1974). Thus, we find the proffered evidence to be probative to refute the defendant’s allegations of fabrication of charges.
Further, we find this evidence survives the third prong of VanderVliet as being substantially more probative than prejudicial. Because the charges were filed two years after the abuse occurred, there was no medical evidence to substantiate the victim’s claims. Indeed, in this case the half-sister’s testimony is the only evidence that effectively refutes the claim of fabrication and explains the delay in reporting the crime. Moreover, the half-sister’s testimony revealed a striking similarity between the half-sister’s age, living arrangement, and relationship with defendant at the time the abuse of the half-sister began, to that of the victim. This similarity explains why the mother became so concerned with her daughter’s relationship with defendant, and makes more plausible the proposition that the mother’s questions were prompted by concern for her daughter’s safety rather than spite and a desire to prevent defendant from getting custody of the victim. We, therefore, find that the probative force of the evidence, coupled with the trial court’s limiting instruction to the jury, did not stir the jurors to “such passion ... as to [be swept] beyond rational consideration of [the defendant’s] guilt or innocence of the crime on trial.”
Accordingly, we hold that the trial court did not abuse its discretion in admitting the half-sister’s testimony of other acts under Rule 404(b) and our decision in People v VanderVliet, supra. We, therefore, reverse the decision of the Court of Appeals and reinstate the trial court’s decision.
Mallett, C.J., and Boyle and Taylor, JJ., concurred with Weaver, J.
217 Mich App 646; 553 NW2d 25 (1996).
MCL 750.520b; MSA 28.788(2).
MCL 750.520c; MSA 28.788(3).
There was some unresolved dispute regarding the half-sister’s age when defendant stopped abusing her.
Judge Markey dissented and would have affirmed defendant’s convictions.
MRE 404 provides, in relevant part:
(a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim of a crime other than a sexual conduct crime. Evidence of a pertinent trait of character of the victim of the crime, other than in a prosecution for criminal sexual conduct, offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of victim of sexual conduct crime. In a prosecution for criminal sexual conduct, evidence of the victim’s past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease;
(4) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, 609.
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
As this Court explained in VanderVliet, supra at 64:
The question is not whether the evidence falls within an exception to a supposed rule of exclusion, but rather whether the “evidence [is] in any way relevant to a fact in issue” other than by showing mere propensity, Stone, The rule of exclusion of similar fact evidence: America, 51 Harv L R 988, 1004 (1938). “Put simply the rule is inclusionary rather than exclusionary.” Engelman, supra at 213.
MRE 401 provides:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
One court explained the similar provisions in the Federal Rules of Evidence as follows:
The first sentence of rule 404(b) prohibits the introduction of evidence of a defendant’s crimes, wrongs, or acts only for one particular purpose. The second sentence of the rule offers some examples of permissible purposes for which that evidence might be relevant within the meaning of rule 401. Evidence that fits within rule 404(b)’s second sentence, however, and that is not barred under rule 404(b)’s first sentence, is not by virtue of those reasons automatically admissible: instead, “the determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions under Rule 403.” Fed R Evid 404 advisory committee’s note; see, e.g., United States v Manner [281 US App DC 89, 92] 887 F2d 317, 321 (1989), cert denied 493 US 1062; 110 S Ct 879; 107 L Ed 2d 962 (1990). [United States v Rogers, 287 US App DC 1, 3-4; 918 F2d 207 (1990).]
The reference to the proffered evidence as “not a skunk in the jury box. It was a pig farm” derives from Dunn v United States, 307 F2d 883, 886 (CA 5, 1962).
In his opening statement, defense counsel claimed that the victim’s mother “planted” the allegations in the victim’s mind solely to retaliate against defendant. In his closing argument, defense counsel argued that “[t]he fact that Jennifer Starr went to [her nine-year-old daughter] and broached the subject with her shows that the mother is the person who did plant this in her head.”
The dissent’s argument against our finding that the testimony was properly admitted because it disputes the claim of fabrication fails to give effect to this Court’s holding in People v Kreiner, 415 Mich 372; 329 NW2d 716 (1982). In Kreiner, this Court essentially held that the Michigan Rules of Evidence constituted a codification of the rules of evidence that superseded the common-law rules. Specifically, this Court held that the tender-years exception to the hearsay rule “did not survive adoption of the Michigan Rules of Evidence.” Id. at 377. Given our holding in Kreiner, the dissent’s discussion of People v Dean, 253 Mich 434; 235 NW 211 (1931), is inapposite. Post at 510, n 7. The rule discussed in Dean was considered exclusionary in nature. Dean, therefore, cannot be used to limit MRE 404(b), which is truly a rule of inclusion. Indeed if we were to adopt the dissent’s reasoning, this rule would be inclusionary in name only.
The dissent asserts that the testimony was not necessary to the case. Post at 507, n 5. This claim begs the question and would, ultimately, seek to replace the jury of peers in this case with the opinion of the dissent, which was formed with the benefit of hindsight. A careful review of the evidence, however, confirms that the testimony was of critical import to the case because it was the only independent evidence that addressed the defense of fabrication other than the testimony of the mother and the victim, both of whose credibility was at issue and under attack.
Furthermore, the testimony regarding the type of abuse suffered by the half-sister was also properly admissible because it explained why the mother immediately became concerned for her daughter, the victim, given the similarity of age, living arrangement, and relationship to the defendant. The sister’s testimony regarding the termination of the abuse also showed that the end was involuntary for the defendant and occurred only one year or so before the victim lived with her father. The sincerity, reasonableness, and degree of concern on the part of the mother could not be shown except by the sister’s more specific testimony of abuse.
McCormick, Evidence (2d ed), § 190, p 454. | [
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] |
The Court
held that a writ of error would not lie to review such proceedings, citing Holbrook v. Cook, 5 Mich., 225, and Conrad v. Button, supra, p. 365.
Writ dismissed. | [
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Brickley, J.
This case arises out of an action for medical malpractice involving the death of twenty-year-old Janet Vargo after she gave birth to her son at St. Lawrence Hospital in Lansing. Plaintiff, as personal representative of the estate of Janet Vargo, asserted that defendant-appellee Dr. Harold Sauer, a Michigan State University medical professor who instructs medical residents and treats patients at St. Lawrence, negligently caused Ms. Vargo’s death. Dr. Sauer moved for summary disposition, arguing that he was entitled to immunity pursuant to subsection 7(2) of the governmental tort immunity statute. Plain tiff responded that Dr. Sauer did not satisfy the requirements of subsection 7(2) and that, in any event, subsection 7(4) does not grant immunity to agents of government hospitals. The trial court dismissed plaintiffs claim on the basis of governmental immunity and a divided Court of Appeals affirmed the dismissal. We accepted review to consider 1) whether the hospital exception is constitutional and, if it is, whether it governs this case, and 2) whether a question exists to submit to the jury in regard to whether Dr. Sauer is entitled to immunity under subsection 7(2).
On the first question, we find that although the hospital exception is not constitutionally infirm, it does not control our disposition of this case. On the second question, we hold that the trial court’s dismissal of this action was premature because a factual issue was presented with respect to whether Dr. Sauer was acting “in the course of [his] employment” solely on behalf of MSU or whether he was simultaneously operating as an agent of St. Lawrence Hospital. We therefore reverse the trial court’s grant of summary disposition, and remand this case to the circuit court for further proceedings limited to plaintiff’s claim of medical malpractice arising from Dr. Sauer’s relationship with St. Lawrence Hospital.
I
The material facts appearing in the record establish that on the morning of July 3, 1990, twenty-year-old Janet Vargo visited St. Lawrence Hospital complaining of difficulties associated with her pregnancy. After an electrocardiogram examination indicated an irregular heart rate, the hospital staff instructed Ms. Vargo to visit the office of her personal physician, Dr. James Rawlinson. Dr. Rawlinson examined her and, after her complaints of chest tightness and shortness of breath persisted, instructed her to return to St. Lawrence. Ms. Vargo was subsequently admitted to St. Lawrence, where she was examined by, among others, medical residents from the Michigan State University Medical School. Later that evening, Dr. Rawlinson consulted with defendant-appellee Dr. Harold Sauer, who was “on call” at St. Lawrence, in regard to Ms. Vargo’s condition. Dr. Sauer examined Ms. Vargo, arranged for an immediate Cesarean section, and at 12:29 A.M., a healthy boy was delivered. Shortly after the delivery, however, Ms. Vargo developed severe bradycardia and cardiac arrest, and lapsed into a comatose state where she remained until the removal of life support approximately six weeks later.
Defendant-appellee Dr. Harold Sauer has been an associate professor in obstetrics, gynecology and reproductive biology with the Michigan State University College of Human Medicine since 1985, and in this capacity instructs medical students and residents. Msu’s status is unique among the universities providing medical schools in Michigan. Unlike Wayne State University and the University of Michigan, both of which operate hospitals as an adjunct to their medical school, MSU lacks its own hospital facility and con sequently operates its residency program through privately owned hospitals such as St. Lawrence. Apparently in exchange for the use of these facilities, MSU physicians provide services on a rotation or “on call” basis. Msu medical faculty receive a fixed annual salary from msu and the affiliated hospitals pay msu the patient fees generated by msu faculty and residents.
The present case concerns the “Michigan State University/St. Lawrence Hospital Family Practice Residency Program” at the privately owned St. Lawrence Hospital. Although the specifics surrounding the affiliation between msu and St. Lawrence are unclear, the record establishes that Dr. Sauer had staff privileges at St. Lawrence and provided in-patient medical care and treatment to private patients there.
Plaintiff commenced this suit for medical malpractice in Ingham Circuit Court in January 1992 against St. Lawrence Hospital, Dr. Rawlinson, and Dr. Sauer. St. Lawrence settled the claim for $700,000, and Dr. Rawlinson was dismissed with prejudice by stipulation of the parties. Plaintiffs complaint alleged that Dr. Sauer negligently failed to diagnose Ms. Vargo’s congestive heart failure, thereby resulting in massive cardiorespiratory arrest during childbirth.
During the course of litigation, Dr. Sauer filed a motion for summary disposition on the basis that, as an employee of msu, he was entitled to immunity under subsection 7(2). Plaintiff responded that subsection 7(4), rather than subsection 7(2), controls the present case. Plaintiff contended that the arrange ment between msu and St. Lawrence makes msu an “operator” of a government hospital, thereby triggering the hospital exception to immunity. Plaintiff also argued that notwithstanding subsection 7(4), the activity that gave rise to the claim of medical malpractice did not take place during “the course of employment” nor “on behalf of a governmental agency,” pursuant to subsection 7(2)’s mandate.
In May 1993, the trial court granted Dr. Sauer’s motion for summary disposition pursuant to MCR 2.116(C)(7) (immunity granted by law), and MCR 2.116(C)(10) (no genuine issue of material fact), finding:
Dr. Sauer is a governmental employee. He was acting within the scope of his employment. His sole remuneration comes from the university. He responded to a call to the Michigan State University ob/gyn clinic.
There were residents involved in this case. It is a necessary portion or part of his employment that, in addition to the teaching function, the direct and what I will term as a classroom or pedagogical type of function, he also maintained his skill level. So, I have no trouble in finding that this is within the scope of his employment.
Judge Houk expressed some reluctance with his ruling, observing that the hospital exception treated patients of msu physicians differently than those treated by other university-employed physicians.
Before the entry of final order, plaintiff moved that Dr. Sauer produce contractual and other documentary evidence relating to the relationship between St. Lawrence Hospital and msu. Judge Houk summarily denied the request and entered the order granting summary disposition.
On appeal, plaintiff asserted that a grant of immunity under subsection 7(2) was improper because Dr. Sauer’s treatment of Ms. Vargo was not undertaken on behalf of MSU nor did it involve the performance of a governmental function. Plaintiff also argued that MSU “operated” a hospital pursuant to subsection 7(4) and that, in the alternative, the hospital exception violates the Equal Protection Clause of the Michigan Constitution because it “fails to treat all university-employed physicians [in Michigan] in a like manner with regard to governmental immunity.”
A divided Court of Appeals rejected plaintiff’s arguments and affirmed the trial court’s dismissal, ruling that Dr. Sauer was entitled to the defense of governmental immunity. 215 Mich App 389; 547 NW2d 40 (1996). We granted leave to appeal, and now reverse the decision of the Court of Appeals.
n
We begin with the fundamental principle that governmental agencies are statutorily immune from tort liability “[e]xcept as otherwise provided.” In Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641 (1984), we characterized § 7 as a “broad grant of immunity” subject to “narrowly drawn statutory exceptions.” Although the general effect of the 1986 amendments to the governmental tort liability act was to preserve, and in some instances to expand, the immunity available to governmental agencies and their employees, the amendments also created a fifth exception to immunity. As spelled out above, subsection 7(4) specifically allows tort liability to be imposed on a governmental agency other than the Department of Mental Health or Department of Corrections for injuries arising out of the ownership or operation of a public hospital or county medical facility. Since Ross, this Court has repeatedly affirmed the proposition that statutory exceptions to governmental immunity are to be narrowly construed.
A
We first consider plaintiffs argument that the hospital exception to immunity controls the present case. Plaintiff contends that the legislative purpose in enacting subsection 7(4) was to exempt the entire practice of medicine from the otherwise broad grant of governmental immunity under subsection 7(2). In furtherance of this argument, plaintiff insists that the Legislature did not intend to extend governmental immunity to a physician employed by MSU.
Subsection 7(4) exempts from immunity governmental agencies that own or operate a “hospital” or “county medical care facility.” Plaintiff does not allege that a county medical care facility is involved, and therefore her argument depends on whether a residency program qualifies as a “hospital.”
The rules of statutory construction are well established. First and foremost, we must give effect to the Legislature’s intent. Reardon v Dep’t of Mental Health, 430 Mich 398, 412; 424 NW2d 248 (1988). If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and no further construction is required or permitted. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). However, when a statute specifically defines a given term, that definition alone controls. Tryc v Michigan Veterans’ Facility, 451 Mich 129, 135; 545 NW2d 642 (1996). Applying these principles, the definition of “hospital” supplied in the statute, being clear and unambiguous, controls.
A “hospital,” as defined in subsection 7(4)(b), means:
[A] facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician.
A review of the record indicates that msu’s residency program does not “offer[] inpatient, overnight care” or related services and therefore does not fall within the meaning of “hospital” as defined by the statute. Thus, while MSU may operate a residency program, we do not find that msu is an operator of a hospital. Accordingly, we uphold the Court of Appeals determination that the hospital exception does not apply in this case.
B
Plaintiff also challenges the constitutionality of subsection 7(4), arguing that the hospital exception violates equal protection guarantees because it treats patients treated by msu physicians working at private hospitals differently from those treated by all other university-employed physicians. More specifically, plaintiff maintains that the hospital exception, when viewed in the context of MSU’s unique arrangement with local private hospitals, creates a situation in which similarly situated patients are subjected to disparate rights of recovery.
Our state constitution declares that “[n]o person shall be denied the equal protection of the laws . . . .” We have interpreted our Equal Protection Clause to offer similar protection as the wording of the parallel clause in the United States Constitution. Doe v Dep’t of Social Services, 439 Mich 650, 660; 487 NW2d 166 (1992). The United States Supreme Court’s constitutional jurisprudence teaches that an “equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.” Because, there is no fundamental right or suspect classification involved, the rational-basis standard of review governs in the present case. We uphold a statute under that standard if it furthers a legitimate governmental interest and if the challenged classification is rationally related to achieving that interest. Michigan State AFL-CIO v MERC, 453 Mich 362, 381; 551 NW2d 165 (1996). Legislation challenged on equal protection grounds is accorded a presumption of constitutionality, and our inquiry is therefore “ ‘restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it.’ ” Shavers v Attorney General, 402 Mich 554, 613-614; 267 NW2d 72 (1978).
Although there is some resonance to plaintiffs perceptions regarding the “unfairness” of the hospital exception, we find that subsection 7(4) passes constitutional muster, albeit for a different rationale than the one advanced by the Court of Appeals. In response to plaintiffs contention that subsection 7(4) was violative of equal protection, the Court of Appeals stated:
[T]he statutory scheme is nonetheless rationally related to a legitimate governmental purpose: i.e., the state will permit governmental employees to be sued in tort where they presumably have input regarding control over operations at the government-run hospital where the alleged malpractice occurs. Thus, governmental employees working at private hospitals as part of their governmental function who have no input or control regarding hospital operations cannot be sued for malpractice occurring at the private hospital. Also, extending immunity to physicians under these circumstances encourages medical schools to become involved in providing medical care in their communities when the school does not own or operate its own hospital or medical facility. 215 Mich App 397 (citations omitted).]
According to the Court of Appeals, the Legislature had a rational basis for providing disparate rights of recovery from physicians of differing public schools because physicians “presumably” have “input or control” at a government-run hospital. We are unable to agree with this analysis because subsection 7(4) states:
This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital ... or to the agents or employees of such hospital [ ]
A facial examination of the foregoing language reveals that a physician employed by a government hospital who treats a patient at a private hospital is also not immune under the act, despite the fact that the governmental agency presumably has no “input or control” over the operations of the private hospital. The same is not true for msu physicians under the rationale advanced by the Court of Appeals, because such individuals may be entitled to immunity at both a public hospital and a private hospital, with immunity in each instance premised on the fact that MSU does not own or operate its own hospital. That is, even under an “input and control” rationale, the act still abrogates immunity for a government-employed physician treating patients at a private hospital, even though that physician presumably has no input or control over the private hospital solely on the basis that the physician’s “primary employer,” such as the University of Michigan, happens to own its own hospital. In light of those considerations, we cannot support the rationale proffered by the Court of Appeals.
Notwithstanding our disagreement with the Court of Appeals rationale, we find more plausible the assertion advanced at oral argument by counsel for Dr. Sauer that the Legislature may have decided that state-supported medical schools that choose to own or operate their own hospital, thereby presumably receiving a large source of revenue from operation of that hospital, would not receive, along with state funding, the additional benefit of governmental immunity that is normally available under subsection 7(2). We agree that the Legislature may have decided not to extend immunity to those agencies who choose to own and operate their own hospitals because they presumably are in a better position to offer their employees, among other benefits, liability insurance. Mindful of the presumption of constitutionality and the accompanying limited inquiry we give statutes such as the one that is being challenged here, Shavers, supra at 613-614, we find that there is a rational basis for the disparate rights of recovery under the governmental tort immunity statute. Accordingly, we hold that subsection 7(4) does not deprive plaintiff of equal protection of the law.
m
We now consider Dr. Sauer’s argument that he is entitled to immunity under subsection 7(2) of the governmental tort immunity act. As set out above, subsection 7(2) provides immunity from tort liability to an individual who is an “employee of a governmental agency” and who causes injury “while in the course of employment.” The governmental agency by whom the individual is employed must also be “engaged in the exercise or discharge of a governmental function” before immunity may be invoked. In the present case, the parties do not dispute that the cloak of governmental immunity is “alive and well” in Michigan, but rather dispute whether that cloak is large enough to encompass Dr. Sauer. A divided Court of Appeals upheld the trial court’s dismissal of plaintiff’s claim. The majority concluded that Dr. Sauer is entitled to immunity because he was performing a governmental function on behalf of a governmental agency at the time of the alleged negligence, while the dissent opined that dismissal of the claim was premature because a factual question existed with respect to whether Dr. Sauer was simultaneously “an agent of St. Lawrence Hospital” at the time of the alleged negligence.
As prologue to our inquiry into whether Dr. Sauer is entitled to immunity, we note that for purposes of the present action, subsection 7(2) contemplates the satisfaction of two elements before Dr. Sauer may be cloaked with governmental immunity: first, whether Dr. Sauer was engaged in a “governmental function” at the time of the alleged negligence and, if so, whether his performance of that function was “on behalf of a governmental agency.”
a
Plaintiff argues that Dr. Sauer was not performing a governmental function when he treated Janet Vargo. We disagree. In Ross, supra at 620, we held that a “governmental function” is an activity that is expressly or impliedly mandated or authorized by constitution, statute, or other law. At that time, we expressly recognized that the definition we formulated was so broad that it would encompass most activities that a government might undertake. Id. at 620-621. In 1986, the Legislature codified the definition we set forth in Ross:
“Governmental function” is an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law. [MCL 691.1401(f); MSA 3.996(101)®.]
Significantly, the Legislature did not limit the Ross-definition in any respect, and in fact broadened the definition by adding “local charter or ordinance” to the list of definitional sources of legal authority from which immunity may spring.
It is undisputed that msu, as an extension of the state, generally is entitled to invoke sovereign immunity. Under MCL 390.101; MSA 15.1121, Michigan State University is directed to
provide the inhabitants of this state with the means of acquiring a thorough knowledge of . . . science . . . and to this end it shall afford such instruction in science, art and literature as, in the judgment of its governing body, will promote the object of the institution.
Pursuant to this authority, the Msu Board of Trustees established the Msu College of Human Medicine in 1964.
Affidavits submitted by MSU establish that it is the judgment of msu that a vital part of providing a medical education is hands-on experience and that it is necessary for its faculty and medical residents to be exposed to the patient population at hospitals such as St. Lawrence. The broad language of MCL 390.101; MSA 15.1121 confers on MSU the power to teach medicine and therefore qualifies as a “governmental function,” and we believe that common sense dictates that teaching and rendering medical care are necessarily intertwined in a medical school setting. Because the parameters of governmental immunity pursuant to the governing statute clearly contemplate a broad reading of “governmental function,” we accordingly find that Dr. Sauer was performing a governmental function during the relevant period of the alleged negligence.
B
Although we have determined that Dr. Sauer was performing a “governmental function” for purposes of the immunity statute, our inquiry is not complete, as subsection 7(2) also mandates an examination of the employment status of the individual seeking immunity. By its very terms, subsection 7(2) grants immunity only to an individual who is an “employee of a governmental agency . . . while in the course of employment.”
The governmental tort liability act defines “governmental agency” as
the state, political subdivisions, and municipal corporations. [MCL 691.1401(d); MSA 3.996(101)(d).]
We agree with the Court of Appeals dissenting opinion that the definition of “governmental agency” does not include, or remotely contemplate, joint ventures, partnerships, arrangements between governmental agencies and private entities, or any other combined state-private endeavors.
Consistent with that consideration, we note that it is axiomatic that an individual may serve two masters simultaneously. This principle found its genesis in our jurisprudence well over a century ago and has achieved contemporary expression in the Restatement (Second) of Agency and a number of other authorities. The Restatement’s hornbook rule states:
A person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other. [1 Restatement Agency, 2d, § 226, p 498 (emphasis added).]
According to the comments to § 226, dual agency occurs when two persons or entities agree to share the services of an individual for a single act. It is also well established that a physician may have a dual employment status and therefore be subject to the general laws of agency. Barnes v Mitchell, 341 Mich 7, 19; 67 NW2d 208 (1954).
We believe that the general rules of agency as set forth in our jurisprudence and the Restatement remain sound and, as a basic principle, should be applied to the hospital setting in the same manner as any other employment setting. By logical extension, we see no reason why their application to individuals such as faculty members providing instruction and treatment in a hospital should not be applied with the same rigor as they are to other hospital employees who may also be performing for two principals. We find that the principles related to dual agency are analogous to the realities of hospital employment in general and, in particular, to the factual situation in the present case.
c
In the present case, it is uncontested that Dr. Sauer had staff privileges at St. Lawrence and regularly treated patients there. The record also indicates that Janet Vargo was admitted to St. Lawrence Hospital and treated by Dr. Sauer during the period of the alleged negligence. Finally, Dr. Sauer’s motion for summary disposition asserted that he provided consultative services through the “Michigan State University/St. Lawrence Hospital Family Practice Residency Program.”
The circuit court granted Dr. Sauer’s motion for summary disposition pursuant to MCR 2.116(C)(7) (governmental immunity), and MCR 2.116(C)(10) (no genuine issue of material fact). In deciding a motion for summary disposition on the basis of governmental immunity, a court must consider all documentary evidence filed or submitted by the parties. Patterson v Kleiman, 447 Mich 429; 526 NW2d 879 (1994). Dr. Sauer’s motion for summary disposition on the basis of governmental immunity stated that he “provide [d] consultative services through the Michigan State University/St. Lawrence Hospital Family Practice Residency Program.” Under MCR 2.116(C)(10), summary disposition is appropriate only where there is no genuine issue of material fact. However, where there is a disputed question of agency, any evidence, either direct or inferential, which tends to establish an agency relationship creates a question of fact for the jury to determine. The facts of this case, with respect to the purported agency relationship between Dr. Sauer and St. Lawrence, have yet to be developed. As the case now stands, it cannot be said as a matter of law that an agency relationship did not exist and therefore a question exists to submit to the jury regarding whether Dr. Sauer retained such a relationship with St. Lawrence, a nongovernmental entity.
D
We emphasize that our consideration of subsection 7(2) as it pertains to the instant case does not alter the important policy directive mandated by the Legislature when it enacted the governmental tort immunity statute. Rather, our examination of the governmental tort immunity statute reveals that although the Legislature extended immunity to a large number of individuals for broad categories of conduct, there is no indication that the statute, when read in conjunction with its definitional sources, even remotely contemplates a grant of immunity for agents who are simultaneously serving a private entity.
IV
Consistent with the foregoing considerations, and accepting plaintiffs well-pleaded allegations, we hold that a material question of fact remains for trial. The record establishes that Dr. Sauer had staff privileges at St. Lawrence Hospital, treated a number of private patients there on an “on call” basis, and at the time of the alleged negligence was treating Janet Vargo as a private patient at the “Michigan State University/St. Lawrence Family Practice Residency Program.” We believe that irrespective of Dr. Sauer’s performance of a governmental function, a question of fact exists with regard to whether Dr. Sauer was simultaneously operating as an agent of St. Lawrence Hospital. Therefore, and in accordance with the Court of Appeals dissenting opinion, we reverse the judgment of the Court of Appeals and remand this case to the circuit court for further proceedings limited to plaintiff’s claim of medical malpractice arising from Dr. Sauer’s activities as an agent of St. Lawrence Hospital or the Michigan State University/St. Lawrence Family Practice Residency Program.
Mallett, C.J., and Boyle, Weaver, and Taylor, JJ., concurred with Brickley, J.
MCL 691.1407(2); MSA 3.996(107)(2) provides that employees of governmental agencies:
shall be immune from tort liability for injuries to persons or damages to properly caused by the [employee] while in the course of employment . . . while acting on behalf of a governmental agency if all of the following are met:
(a) The [employee] is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The [employee’s] conduct does not amount to gross negligence ....
Plaintiff has abandoned her initial claim that Dr. Sauer’s conduct amounted to gross negligence.
MCL 691.1407(4); MSA 3.996(107)(4), otherwise known as the “hospital exception” provides:
This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility.
Although Dr. Sauer now asserts that he was on call for the “mso ob/gyn Department,” his motion for summary disposition stated that Ms. Vargo was treated at the “Michigan State University/St. Lawrence Hospital Family Practice Residency Program.”
Judge Houk remarked: “I am . . . substantially concerned. I think this is an area that the Legislature has, frankly, created the opportunity for unfair treatment. My concern ... is not that governmental immunity is unfair. It is that if there’s going to be governmental immunity, it should be for persons who are similarly situated, and I’m having a substantial problem in distinguishing between persons who check themselves in at the University of Michigan Hospital and at St. Lawrence. And I think what troubles me even more is that a person who checks themselves [sic] into St. Lawrence Hospital is unsuspecting.”
Subsection 7(1) of the governmental tort liability act provides:
Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. [MCL 691.1407(1); MSA 3.996(107)(1).]
In Ross, we intentionally “redefined the entire governmental-immunity landscape.” Hadfield v Oakland Co Drain Comm’r, 430 Mich 139, 153; 422 NW2d 205 (1988). As one commentator observes, the law of governmental immunity before Ross was “a conflicting morass” characterized by constantly changing definitions of governmental function, with different immunities for different levels of government and government officials. After Ross and the 1986 tort reform legislation, “the meaning of governmental function is now relatively fixed . . ., and the law of governmental immunity has been clarified.” Baylor, Governmental Immunity in Michigan, § 6.59, p 6-66.
The four other categorical statutory exceptions impose tort liability for: the performance of a proprietary, as opposed to a governmental, function, MCL 691.1413; MSA 3.996(113); the failure to maintain highways in reasonable repair, MCL 691.1402; MSA 3.996(102); the negligent operation of a government-owned vehicle by a government officer, agent, or employee, MCL 691.1405; MSA 3.996(105); and the failure to repair and maintain public buildings under government control, MCL 691.1406; MSA 3.996(106).
MCL 691.1407(4); MSA 3.996(107)(4).
See, e.g., Wade v Dep’t of Corrections, 439 Mich 158, 166; 483 NW2d 26 (1992), citing Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 245; 393 NW2d 847 (1986); Scheurman v Dep’t of Transportation, 434 Mich 619, 627; 456 NW2d 66 (1990).
Plaintiff calls our attention to recent legislative activity directed toward amending subsection 7(4) in a manner that would remove the cloak of immunity for all governmental agencies providing medical care, including presumably, msu medical faculty and residents. Plaintiff maintains that this recent activity reflects the Legislature’s original intent that the hospital exception was to include msu physicians working in private hospitals. Notwithstanding the clear and unambiguous language of subsection 7(4), we do not share plaintiff’s notion that this present legislative activity conclusively represents legislative intent at the time the hospital exception was enacted.
Plaintiff particularly takes issue with the effect of the legislation, arguing that it unfairly precludes a patient from suing an msd physician while peimitting a patient to sue, for instance, a University of Michigan physician providing treatment at a University of Michigan hospital or, for that matter, any other hospital.
Const 1963, art 1, § 2.
Massachusetts Bd of Retirement v Murgia, 427 US 307, 312; 96 S Ct 2562; 49 L Ed 2d 520 (1976), citing San Antonio Independent School Dist v Rodriguez, 411 US 1, 16; 93 S Ct 1278; 36 L Ed 2d 16 (1973).
Quoting United States v Carotene Products Co, 304 US 144, 154; 58 S Ct 778; 82 L Ed 1234 (1938).
We note that even if a law treats groups of individuals in a disparate manner, the statutory scheme does not necessarily violate the guarantee of equal protection. Doe, supra at 661. We are equally mindful that whenever the defense of governmental immunity is invoked, there will usually be the appearance of unfairness. However, as we observed in Ross, supra at 618-619, the Legislature’s disparate treatment of public and private tortfeasors is not unjustifiable per se.
MCL 691.1407(4); MSA 3.996(107)(4) (emphasis added).
As long as the agent satisfies the requisite elements set forth in subsection 7(2).
We note that subsection 7(4) does not state the following:
This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital ... or to the agents or employees of such hospital [only while working at such hospital].
Plaintiff admits that if we were to invalidate subsection 7(4) on constitutional grounds, Dr. Sauer would still be entitled to immunity (dependent, of course, on his satisfaction of the requisite elements set forth in subsection 7[2]). Consequently, she asks that we “rewrite” the provision in a manner that would extend the hospital exception to all state-employed physicians engaged in the practice of medicine. Because we find that the hospital exception does not violate equal protection guarantees, we decline this invitation to judicially amend the statute. Moreover, if our interpretation of subsection 7(4) does not comport with the Legislature’s intent, the Legislature may amend the statute, an option which, the parties inform us, that body is now considering.
MCL 691.1407(2); MSA 3.996(107)(2).
MCL 691.1407(1); MSA 3.996(107)(1).
215 Mich App 403.
In Reardon v Dep’t of Mental Health, supra at 412, we discussed the Legislature’s approval and adoption of the expansive immunity articulated in Ross and observed:
We invited statutory modification of this definition [of governmental function] in the event that it did not reflect the Legislature’s intent regarding the scope of immunity. . . . The Legislature declined this invitation . . . [and] [i]n so doing, the Legislature puts its imprimatur on the broad scope of immunity as defined in Ross and, by implication, the narrow scope of the exception.
The Legislature has included “public universities]” in its definition of the “State” for purposes of immunity. MCL 691.1401(c); MSA 3.996(101)(c).
Plaintiff urges that we examine the specific activity performed by Dr. Sauer in determining whether that conduct is a “governmental function.” We reject this proffered analytical inquiry because it is materially different from our pronouncement in Ross, later reaffirmed in Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987), aff’d sub nom Will v Michigan Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989), that the proper focus is on the general activity that is being performed at the time of the alleged tort.
Plaintiff contends that the enactment of subsection 7(4) means that the provision of medical treatment is not a governmental function, therefore restoring our ruling in Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), which held that public hospitals were not entitled to governmental immunity. We are unpersuaded by this argument because we determined in Hyde v Univ of Michigan Bd of Regents, n 9 supra, that Ross “impliedly overruled” Parker. Although none of the cases decided in Ross involved tort liability for medical malpractice, Ross rejected each definition of governmental function used in Parker. Thus, to the extent that Parker held that public hospital activities that are “expressly or impliedly mandated or authorized by constitution, statute, or other law ... do not constitute a governmental function, Parker was impliedly overruled by Ross.” Hyde at 243.
MCL 691.1407(2); MSA 3.996(107)(2).
The act provides exhaustive definitions of “political subdivision,” “Municipal corporation” and “State,” none of which mention or contemplate a private hospital or arrangements between governmental agencies and private entities. See MCL 691.1401(a), (b), (c); MSA 3.996(101)(a), (b), (c).
See, e.g., Adams Mining Co v Senter, 26 Mich 73 (1872).
See, e.g., NLRB v Town & Country Electric, Inc, 516 US 85; 116 S Ct 450; 133 L Ed 2d 371 (1995); Kelley v Southern Pacific Co, 419 US 318, 324; 95 S Ct 472; 42 L Ed 2d 498 (1974) (stating that an employee “could be deemed to be acting for two masters simultaneously”); Seavey, Law of Agency, § 85, p 146; 30 CJS, Employer-Employee, § 200, pp 282-283, 290.
1 Restatement Agency, 2d, § 226, comment b, p 500. We recognized the viability of 1 Restatement Agency, 2d, § 226 in Nash v Sears, Roebuck & Co, 383 Mich 136, 139-140; 174 NW2d 818 (1970).
In a number of other contexts, our intermediate appellate courts have found instances where physicians have acted as an agent of more than one principal. See, e.g., Whitmore v Fabi, 155 Mich App 333; 399 NW2d 520 (1986); Rambus v Wayne Co General Hosp, 193 Mich App 268, 273; 483 NW2d 455 (1992), reaff’d (On Rehearing), 197 Mich App 480; 495 NW2d 835 (1992).
Notwithstanding the broad grant of immunity to governmental agents, the Legislature has authorized a governmental agency, in its discretion, to purchase liability insurance, offer settlements, and indemnify its officers, employees, and agents for their alleged torts. MCL 691.1408; MSA 3.996(108), MCL 691.1409; MSA 3.996(109).
The application of dual agency principles in the context of a hospital setting is not a novel concept and has engendered ample exposition elsewhere. See, e.g., Abraham v United States, 932 F2d 900, 903 (CA 11, 1991) (“[a]s the Restatement makes clear, a single act may be done with the purpose of benefiting two masters and both may then be hable for the servant’s negligence”); Aldridge v Hartford Hosp, 969 F Supp 816 (D Conn, 1996); City of Somerset v Hart, 549 SW2d 814 (Ky, 1977); Tonsic v Wagner, 458 Pa 246; 329 A2d 497 (1974); Dickerson v American Sugar Refining Co, 211 F2d 200 (CA 3, 1954); Restatement Agency, 2d, § 226, p 498.
Meretta v Peach, 195 Mich App 695, 697; 491 NW2d 278 (1992); Jackson v Goodman, 69 Mich App 225, 230; 244 NW2d 423 (1976), citing Miskiewicz v Smolenski, 249 Mich 63, 70; 227 NW 789 (1929). | [
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Campbell, J.
Plaintiff in error was convicted under the statute, of keeping a house of ill-fame, resorted to for the purpose of prostitution and lewdness.
Evidence was given both of ill reputation, and of specific acts coming within the statute. In charging the jury the court instructed them that they must be satisfied from the evidence, both that the house was a house of ill-fame, and that it was resorted for the purpose of prostitution and lewdness, and that “the former may be proven by showing the reputation of the house, the latter by the testimony of persons having knowledge of the fact that prostitutes and lewd persons resorted there, and committed acts of prostitution.” To this was added the further charge, that “in determining the purpose for which such persons resorted to said house, you may take into account also the character or reputation of said house.” This is excepted to.
It is claimed that the charge practically allowed the jury to infer both elements of the offense from proof of one. This would not be allowable. It certainly is possible for persons to have occasion to go to such places, on honest errands, and it is also possible, though not common, for houses to be affected by evil repute without deserving it. But in the present case there was distinct evidence of everything necessary to make out the entire charge, and the jury were not allowed to find a verdict unless they believed that testimony. It is not easy to discover how the additional charge became material under these circumstances. But, guarded as it was, there was no error in it. It did not allow the jury to draw any inferences of criminality from the visits of persons generally, but from those of “prostitutes and lewd persons,” who “resorted there.” This language refers to persons of bad character, and the word “ resorted ” implies that the house was visited frequently by that class of persons. To hold that when such persons resort to such places no criminal purpose can be inferred, would be absurd. It would be impossible to get in most cases as full and direct testimony as seems to have been given here. And to prohibit a jury from drawing natural inferences from such significant facts as those which show that a house in bad credit is a resort of that kind of Tisitors, wouid not be consistent with good sense. The judgment is affirmed.
The other Justices concurred. | [
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