text
stringlengths 12
234k
| embeddings
sequencelengths 1.02k
1.02k
|
|---|---|
Graves, J:
It appears from the case, that Alpheus F., William S. and George Shepard are sons of William Shepard; that Catherine L. is his wife, and that complainant is his nephew; that prior to and until some time after November 20, 1871, William Shepard and his son George Shepard and Jacob L. Button carried on business at Shepardsville, in Clinton county, as partners under the style of “W. & G. Shepard & Co.;” that the firm became indebted to complainant for money borrowed in something like two thousand two hundred dollars, and he insisted on payment or security; ' that the firm thereupon, and on the- day before mentioned, gave him their promissory note for two thousand three hundred dollars, with interest at ten per cent., and William Shepard and his wife Catherine executed a mortgage to him as collateral security, which he put on record on the 27th of the same month.
This mortgage was wholly prepared by William Shepard, and nothing passed between Mrs. Shepard and complainant concerning it.
In March thereafter, and toward the latter part of that month, creditors proceeded against the firm in bankruptcy, and some time after September 12, 1874 (but the true time of which does not appear in the printed record), the complainant filed the present bill to foreclose the mortgage before mentioned.
Assuming to give the effect of the descriptive part of the mortgage, the bill claimed that the property was “all the south half of the southeast quarter of section nine, in township seven north, of range one west, Clinton county, Michigan, excepting lots six, ten, and eleven, in block eight, lots one, two, eight, fourteen, fifteen, sixteen and seventeen,' in block seven, and lots one and two, in block six, in the village of Shepardsville, Clinton county, Michigan; and also mill-lot number one, in block number three, with mills thereon, and lot number three, in block number two, with store thereon, in said village of Shepardsville, and being on the north half of southeast quarter of said section nine.”
The bill set up, among other things, that subsequent to the mortgage, and on March 5, 1872, there had been placed on-record what purported to be a deed dated some twenty days earlier than the mortgage, namely, November 1, 1871, from the mortgagors to the sons, Alpheus and William S. Shepard, for all the south half of the southeast quarter of section nine, township seven north, range one west, excepting the part platted in the village of Shepardsville, the same being a part of the premises apparently mortgaged, and complainant alleged that he had no knowledge of this grant when he took the mortgage, and further, that it had not been delivered at that time.
The assignee in bankruptcy made no defense, but Mrs. Shepard and the sons, Alpheus and William S., answered.
They admitted the mortgage, but claimed that the property was not described in it as in the bill, and proceeded to give a verbatim copy of the description as follows, from the mortgage: “ South half of southeast quarter of section nine, township seven north, of range one west, excepting lots number six, ten and eleven, on block number eight; also lots sixteen and seventeen; also lots number one, two, fourteen, fifteen, and eight, on block number seven, and lots number one and ten, on block number six, including mill-lot number one, on block number three, with mills thereon; also lot number three, on block two, with store thereon, in the village of Shepardsville, being on north half of southeast quarter of said section nine.”
This description corresponds with that in the mortgage, and the apparent discrepancies between it and the claim'in the bill are of no practical importance in the case. The suit is not brought to reform the mortgage or to obtain a clearing up of ambiguities, and there are no materials for either. The plat is not in evidence, or any intelligible or proper description of it, and there is no proof touching its application to the tract. We cannot take judicial notice "of the rel ative situation of lots and blocks on the map or plat, or as to how they apply to the ground. There is no question as to the identity of the mortgage, and if the bill is not accurate in its assumption of the effect of the mortgage description, it can do no harm to the defendants. Any order of sale would have to follow the description in the mortgage, and not one possibly different.
If either party wished a judicial settlement as to what precise parcels of ground the description attached to, in view of the terms used, a proper ease therefor should have been made and followed by proper proof.
The answer further maintained, on the part of the defendants Alpheus and William S. Shepard, that the deed from the mortgagors to them and mentioned in the bill was duly delivered previous to the mortgage, and that complainant took the mortgage with actual knowledge that they had become owners of the laud by virtue of such deed. And on the part of Mrs. Shepard, the answer alleged that 'when the mortgage was given by herself and husband she was absolute separate owner, by virtue of a conveyance to her from her husband on the 15th of February, 1871, of lots one, two, three, four, five, seven, eight, nine, thirteen, fourteen, fifteen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-four, twenty-five and twenty-six, in block number eight in the village of Shepardsville, according to the plat of said village, being a part of the south half of the southeast quarter of section number nine, in township number seven north, of range one west; and she made the deed from her husband part of her answer, and annexed it. On turning to the deed so made a part of the answer, the description, instead of placing the lots on part of the south half of the quarter, as in the body of the answer, places them on a part of the east half. This is perhaps not im portaut, because the effect of the two statements would be to place the lots on the southeast quarter of the southeast quarter.
On the part of Mrs. Shepard the answer further stated, that she understood the complainant claimed that these lots were covered by the mortgage, and that if the mortgage did cover them, it was by the mistake of her husband in drawing up the instrument; that when she executed it she did not know what it contained, and did not intend to encumber her separate property; and that her husband “intended to exempt her said land from the description of land in the said mortgage;” and further, that complainant was at the time advised that she owned said lots.
It is noticeable that the answer on the part of Mrs. Shepard no where alleged that by its terms the mortgage covered the land she claimed. On the contrary, it seems to have been framed on the assumption that whether or not the mortgage by its terms did cover that land, was uncertain and a matter to be specially inquired into and determined.
The decree declared that so far as the same could bo ascertained from the mortgage and bill of complaint, the property authorized to be sold was all of block seven in the village of Shepardsvillej.except lots one, two, eight, fourteen and fifteen, and all of block six in said village, except lots one and ten, and mill-lot one in block three, with the mills thereon, and lot three in block two, all in said village. It dismissed the bill as to the south half of the southeast quarter of section nine, not included in the village of Shepardsville, and also as to all lands iu block eight in said village, with the declaration that the court found the lands last named were not included in the mortgage.
The attaching to the answer of what was said to be a copy of the deed to Mrs. Shepard from her husband only amplified the pleading. The deed was not thereby proved and made evidence in the case, and it is not found any where in the record as an exhibit. In one place such a deed is referred to as offered in evidence and as marked exhibit 0; but exhibit C represents a deed to Alpheus F. and William S. Shepard. And in another place a deed to Alpheus F. and William S. Shepard is indicated in the evidence as exhibit D, whereas there is no exhibit D. These defects are, however, not important in the view taken of the Case.
It is too plain for discussion that the claim of Mrs. Shepard is not maintainable.
It is not pretended that the alleged conveyance from her husband to herself, and on which she grounds her entire right, had been placed on record at the time the mortgage was given; and there is no proof whatever in the case, that complainant had.the least hint that she had any separate interest or any right as grantee.
Her husband deliberately drew the mortgage on the lots' she claims and she joined in the execution. The complainant exercised no influence or control. According to the facts, he supposed, and had every reason to suppose, that the lots in question actually belonged to her husband, and that the mortgage was properly and rightly given upon them. He was not privy to any mistake, if any was made, and did nothing to lead to a mistake. He received the mortgage as Mr. Shepard drew it and as -it was deliberately and freely executed.
As the case stands, the mortgage would have been good against her -on these lots, except as to a possible dower claim in future, if she had not signed at all. Under the registry laws the complainant would have been protected as mortgagee in good faith in a mortgage made by the apparent owner. Waiving, however, this answer to her claim, there is no substance in the charge of mistake.
Untrammeled by any other contract, and without any thing to mislead, Mr. Shepard deliberately framed the mortgage and both freely executed and acknowledged it and passed it to complainant.'
There is no pretense — there could be roue — that Mr. Shepard was not aware of the scope of his description. He knew full well what it included. The instrument was delivered as a mortgage of all unexcepted lots within the general description. - In good faith complainant so received it, and he was entitled to believe the other parties designed it should so operate.
It is now claimed that it may be overthrown and annulled as to certain lots upon the oath of Mrs. Shepard that she did not know what the mortgage covered when she signed it, and that she held a secret purpose not to mortgage ^the lots in question, and upon the oath of her husband, in contradiction of his deliberate act, that he also had a secret design to exclude these lots, and this, too, in face of the fact that he actually excepted other lots about them. The bare ■statement is sufficient. The law requires very strong proof to support a real charge of mistake in a deed, and it has never gone so far as to convict a mortgage of embracing lands which ought not to have been put in, although in a •condition to be so mortgaged and deliberately included ■ by the mortgagor himself, on the naked ground that the mortgagor swears that he entertained a secret design to exclude ■■such lands from the description.—Benj. on Sales (Perkins ed.), § 55 and note I. See also Tripp v. Hasceig, 20 Mich., 254; Boyd v. McLean, 1 J. C. R., 590; Gillespie v. Moon, 2 J. C. R., 585; Garten v. Chandler, 2 Bibb, 246; United States v. Munroe, 5 Mason, 572; Bryce v. Ins. Co., 55 N. Y., 240; Marvin v. Bennett, 26 Wend., 169; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass., 45; S. C., 107 Mass., 290.
The claim made by defendants Alpheus F. and William S. Shepard, and which their father seems to have been 'extremely active in promoting by his oath and in other ways, is a remarkable one.
The theory is, that the father, in order to carry out an •agreement which he had made with his former wife, conveyed the particular land in question to these sons January -19, 1870; that in order to enable him to take care of a mortgage lie had made to Allan Shelden & Co. on these very lands whilst these sons were owners, and to take care of complainant’s debt, the sons reconveyed to him October 26, 1871, by deed recorded two days thereafter; that three days after the record of this deed to him, and whilst its purpose was unaccomplished and during efforts to accomplish it, he gave back a deed to the sons, and which was withheld from record; that twenty days thereafter he designedly mortgaged the lands to complainant and hence devoted it to the purpose for which as claimed the sons had deeded it to him twenty-five days before; and yet that in so mortgaging to complainant he deliberately and expressly united with the latter in an attempt to commit a fraud on the sons by overreaching his unrecorded deed .to them of November first.
The testimony is conflicting. Complainant swears positively that he knew nothing of the deed of November first to the sons, and contradicts the statements of his being privy to an understanding with his uncle that he would take the mortgage notwithstanding the unrecorded deed and give it precedence by recording it first.
His case is inconsistent with the theory of the defense, that William Shepard engaged with him to defraud William’s sons. On the other hand, it is essential to the defense as made on this record, that we should credit William Shepard in his earnest endeavor, in which his sons in the most amicable spirit support him, to prove his complicity in a plot to defraud them in order to benefit complainant.
The whole question turns upon the view to. be taken of the evidence, and it would not be profitable to dilate upon it. We have given the facts a careful examination, and have not failed to attend to the proper inferences and presumptions, and the effect made upon our minds, is, that whether the deed bearing date November 1, 1871, was or was not in existence at the time of the mortgage, or if in existence, whether or not it had been delivered, the complainant had no notice of it, and took his mortgage upon the faith, that his nade still held under the grant just made on October 26th and recorded the 28th. We also think that blind remarks may have been made touching the shifts of title, and that whatever may have been the design in making them, they were not such as to be understood by complainant, and were not understood by him as referring to a deed from the father back to the sons within three days from the putting on record of the deed made by them to him October 26th; and especially in view of the reasons given for that deed. The case shows there was opportunity for ambiguous and misleading hints to complainant, and certainly the complexion of the defense and of much of the testimony and circumstances connected with its development are not assuring against their employment.
We think complainant was entitled to the usual decree of foreclosure, and for a sale of the premises as described in the mortgage.
The decree should be reversed, and the cause remanded with directions accordingly.
Complainant should be allowed his costs in the court below and of this court.
The other Justices concurred. | [
25,
46,
46,
15,
-21,
21,
28,
15,
48,
-32,
-33,
-37,
-18,
59,
7,
27,
36,
-54,
-25,
24,
-10,
-6,
-40,
-43,
-16,
7,
53,
22,
-6,
12,
10,
13,
-22,
48,
-4,
-39,
-8,
-54,
-1,
-72,
-33,
-7,
22,
-35,
42,
18,
33,
-32,
15,
16,
-17,
-29,
-12,
-9,
-26,
-19,
27,
13,
-35,
-34,
30,
-56,
55,
-38,
-31,
0,
-41,
33,
41,
32,
33,
18,
-16,
-19,
11,
-47,
-13,
-53,
-27,
-34,
-27,
-36,
27,
7,
-89,
-13,
-22,
27,
1,
76,
20,
-8,
0,
18,
62,
17,
12,
35,
-38,
21,
-17,
7,
-28,
-31,
-4,
1,
37,
-7,
-5,
13,
13,
-27,
53,
-20,
-17,
0,
-34,
-2,
18,
31,
-61,
26,
-9,
-18,
2,
-4,
-67,
-33,
25,
28,
17,
-10,
-59,
42,
-45,
-23,
45,
-37,
-32,
-16,
-13,
-31,
-27,
-49,
-36,
14,
-6,
-18,
8,
-29,
-72,
38,
1,
21,
19,
-18,
47,
-18,
38,
27,
30,
-26,
29,
-11,
-72,
-19,
-9,
38,
-2,
-21,
-3,
76,
-18,
-17,
38,
35,
-12,
2,
12,
32,
26,
2,
6,
-22,
-3,
-78,
24,
-38,
-20,
21,
43,
-7,
-8,
32,
-5,
42,
5,
-33,
-20,
24,
37,
-31,
20,
-65,
-9,
-13,
69,
-42,
-22,
13,
27,
-28,
-33,
18,
-33,
0,
-32,
-47,
36,
-30,
42,
29,
-7,
16,
-46,
-46,
26,
5,
-69,
-59,
-4,
-30,
4,
-20,
-20,
18,
-10,
-1,
-9,
37,
-50,
-53,
48,
-3,
-20,
2,
-41,
-12,
-26,
20,
-67,
7,
-22,
13,
10,
39,
-67,
-20,
-13,
-6,
-2,
32,
-25,
-41,
3,
-46,
6,
-3,
0,
21,
47,
-39,
8,
33,
4,
17,
3,
24,
-27,
3,
72,
-41,
-43,
6,
48,
16,
-23,
27,
-39,
-34,
-7,
-11,
7,
-49,
29,
26,
-2,
-72,
75,
-14,
-20,
-36,
-24,
-13,
-48,
18,
-17,
-13,
-21,
-13,
36,
13,
-15,
31,
14,
-25,
-34,
23,
3,
12,
37,
-18,
27,
-9,
-42,
11,
-14,
44,
10,
71,
-59,
10,
-24,
40,
-16,
-21,
19,
-12,
16,
5,
3,
41,
-2,
8,
-10,
9,
3,
-15,
-38,
-20,
-16,
1,
5,
57,
-28,
32,
11,
50,
-20,
28,
11,
32,
-40,
1,
-2,
-34,
-64,
-47,
20,
63,
-25,
2,
-24,
-9,
-25,
36,
-49,
-23,
-23,
57,
5,
8,
9,
31,
38,
35,
39,
-10,
-32,
21,
-5,
4,
-15,
-4,
-2,
-64,
-3,
7,
-63,
-35,
-17,
2,
-8,
7,
9,
81,
-18,
-1,
39,
-1,
53,
-40,
19,
-49,
13,
0,
20,
-48,
7,
-6,
-27,
-2,
-26,
-6,
33,
-51,
19,
-7,
19,
17,
4,
37,
35,
15,
69,
-9,
-31,
48,
27,
11,
8,
34,
30,
-7,
58,
-58,
-39,
-13,
21,
-50,
9,
-12,
-42,
16,
21,
25,
0,
-7,
36,
-51,
17,
-23,
27,
-27,
5,
21,
11,
-41,
-40,
22,
-10,
2,
11,
-27,
-36,
-38,
66,
16,
-13,
38,
-1,
-7,
-29,
26,
-9,
-43,
-22,
-19,
-12,
21,
52,
2,
20,
33,
34,
20,
-45,
8,
20,
37,
28,
3,
33,
86,
-3,
-15,
-31,
-4,
2,
41,
32,
-51,
34,
34,
-53,
39,
35,
4,
46,
58,
29,
35,
-54,
25,
13,
-29,
52,
50,
7,
-20,
-49,
24,
-23,
36,
-15,
0,
11,
99,
-57,
-35,
1,
-8,
47,
8,
-16,
-6,
-25,
-1,
-5,
-41,
-40,
-14,
11,
4,
-31,
-2,
17,
-17,
-22,
-16,
1,
-58,
16,
-58,
-32,
-27,
46,
-7,
-16,
-51,
-36,
23,
37,
-18,
24,
-3,
-33,
-17,
27,
-24,
-22,
-38,
-8,
-39,
-6,
21,
-39,
7,
-61,
31,
-15,
-26,
-28,
16,
26,
-15,
17,
25,
41,
23,
-18,
16,
8,
-12,
-7,
-26,
-63,
59,
-8,
45,
10,
-16,
30,
0,
10,
11,
6,
-51,
-4,
21,
73,
26,
0,
38,
1,
24,
44,
-4,
-6,
57,
-65,
-2,
10,
41,
14,
19,
12,
21,
7,
23,
-2,
27,
-37,
31,
-41,
12,
-2,
-17,
8,
-14,
-13,
-22,
-4,
80,
45,
10,
73,
-26,
23,
7,
64,
9,
13,
116,
31,
-14,
49,
16,
21,
58,
42,
-27,
-22,
2,
14,
-6,
0,
57,
58,
31,
12,
27,
5,
55,
-19,
-24,
31,
34,
-75,
-6,
-4,
-24,
-38,
22,
-32,
14,
3,
51,
10,
-10,
56,
45,
-54,
0,
-20,
41,
4,
26,
-6,
-29,
-46,
29,
75,
-27,
-29,
12,
37,
-3,
-15,
-28,
-33,
-8,
-12,
-29,
0,
-45,
15,
-4,
-20,
29,
-45,
-17,
-38,
-36,
-17,
-1,
-25,
-4,
-63,
-53,
-30,
-55,
-43,
-4,
-29,
-22,
-23,
20,
33,
11,
55,
42,
-52,
5,
45,
-4,
-48,
-12,
-9,
31,
-11,
30,
23,
-1,
-11,
19,
-24,
23,
17,
-38,
-48,
98,
-81,
-29,
15,
8,
28,
-67,
10,
-17,
20,
-67,
4,
-11,
42,
-1,
50,
69,
46,
0,
29,
5,
8,
-11,
-38,
31,
44,
-32,
1,
20,
39,
6,
-5,
79,
31,
-9,
-51,
-1,
3,
18,
-10,
2,
13,
-34,
3,
-10,
3,
-6,
5,
19,
-17,
39,
12,
3,
-19,
34,
-10,
3,
-50,
-12,
39,
19,
12,
-8,
-7,
-51,
37,
7,
-7,
-18,
-19,
-37,
13,
5,
32,
-17,
42,
6,
-8,
-20,
-43,
-40,
48,
-22,
-34,
-22,
12,
15,
-25,
11,
35,
-21,
-21,
8,
-10,
28,
-13,
-48,
-39,
29,
-56,
-5,
-18,
24,
24,
0,
29,
-39,
5,
-10,
-48,
-10,
-15,
11,
-7,
58,
47,
-54,
-30,
41,
-66,
-12,
-8,
11,
-55,
-37,
-28,
-36,
24,
16,
15,
-6,
-26,
-2,
-41,
1,
21,
-1,
-30,
16,
34,
18,
-11,
-23,
-51,
-6,
11,
2,
-21,
-30,
-14,
-22,
4,
28,
7,
6,
14,
-25,
35,
39,
14,
27,
-62,
25,
-7,
-64,
48,
-22,
-24,
34,
47,
-20,
-38,
-31,
4,
52,
32,
-70,
-3,
30,
3,
2,
42,
40,
-10,
21,
18,
-49,
16,
27,
-13,
3,
21,
-64,
-40,
-20,
27,
-21,
25,
-56,
-11,
17,
-34,
-29,
-11,
-23,
15,
18,
67,
-8,
-43,
-10,
-26,
66,
-11,
21,
28,
-49,
-8,
-19,
-12,
-10,
13,
36,
52,
-5,
-20,
-10,
-52,
-12,
20,
-41,
38,
-16,
36,
-20,
-35,
-1,
27,
-32,
-59,
7,
32,
12,
-47,
18,
-47,
1,
35,
-17,
26,
-9,
-30,
58
] |
Campbell, J:
The auditor general applies for a mandamus to compel tbe county of Monroe to raise a state tax to refund to the state a balance struck against the county, which includes, among other things, a loss on state tax-lands sold for less than their cost, and also the amount of certain taxes the collection of which was stayed by injunction. These two principal items are contested, together with certain smaller sums of interest. It is claimed that the act of 1869, whereby provision was made for charging back to the county the losses on state tax-bids cannot be allowed to justify the charges in this ease, and that the enjoined taxes -were not lawfully charged back. Both of these questions involve an inquiry into the theory and practice of state taxation; and the relative positions of state and county to each other in their financial dealings. . •
With some trifling exceptions, all county liability to the state must arise from state taxes for state purposes. It is only because these taxes are collected through the same processes with the local charges that any mutual debts and credits can arise. The state laws prescribe the methods of assessment, and the extent and manner of levying all these charges, the practical work being mostly done by neither state nor county, but by township officers, who make the valuations and apportion to each tax-payer his share of the burdens which they are required to lay upon the property on the rolls. As the validity of all the taxes chiefly depends on the regularity of the action of these subordinate officers, it is usually the case that a regular assessment will sustain the state tax, and that an irregular one will defeat it. The counties being the only municipal bodies directly communicating with the state, the responsibility for regularity is chiefly laid upon them, and irregularly laid taxes may in general, if set aside, be charged back to the counties for re-assessment in some form. But where taxes have been regularly assessed and returned, the responsibility of the counties is fulfilled, and they are discharged from further duties. No county has any means of compelling redress against township officers whose action is regular in form,— whether honestly or dishonestly performed; and the reason for imposing any duty on the counties is not based on the ■ idea- that they are able to regulate matters, but upon somewhat arbitrary rules of convenience to the state.
As each tax roll directs specifically what taxes are to be collected of each tax-payer for state, county, and local purposes, if all' the persons charged were residents and possessed of tangible property, no great complications would be likely, - and the moneys would be speedily collected and paid over át once where they belong. But' our laws are framed on the theory that a considerable number of tax-payers will not pay tlieir taxes to the township collecting officer, and that both township and county, as well as state taxes, will have to be enforced by other agencies.
Assuming that all the taxes on every roll are presumptively of equal validity, the rule adopted has been to allow the town treasurer to retain the whole amount due to his ■office out of his collections before requiring him to pay any money to the county treasurer, and in like manner to allow the county treasurer to retain enough to pay all county taxes before paying over any money to the state. So that where town and county taxes are thus satisfied the whole balance belonged to the state and is enforced for the benefit of the state, although nominally including some county and township taxes in lieu of the same amount of state taxes ■collected and retained by township and county.
If the business has been regularly done, the taxes returned uncollected and the moneys paid over to the state at the proper return day, will precisely balance the amount of .state taxes laid against the county. If enough has not been •.collected to pay township and county taxes, then by the return the state becomes a debtor to the county for the ■deficiency, but the unpaid taxes all belong to the state. And in pursuance of this same theory, although returned taxes for state, county, and town purposes are all charged ■with a high and uniform rate of interest, in the nature of <a penalty for delay, only ten per cent, of this is allowed to the county for so much of the aggregate as is necessary to make good the county deficiency which the state is to .assume, and all .the rest belongs to the state. The county is charged with the state tax and credited with all moneys paid by its treasurer and all taxes returned unpaid. It has no further concern with, and no control over any of the unpaid taxes on its own account; and if any of them are ■subsequently paid to the county treasurer, they belong to the ■state and must be so accounted for.
There is but one case in which the county has any subsequent interest in'the returned taxes. It is responsible to the state for their regularity, aud in case any tax is found to be illegal, and set aside by the proper state authority in the manner pointed out by law, so that the state does not receive its amount, then it is charged back to the county as so much previously credited without consideration, and the county is bound to make it good.
Every dollar of taxes returned unpaid in due course of law is a payment to the same extent of the debts due from the county to the state, — and the law has always required annual statements and balances of accounts to be struck on this basis. Every tax legally set aside is charged as a new item of indebtedness. But until 1869 no provision was made for charging back any other items connected with taxes. The balances carried over from year to year in accordance with law, could only be changed to the extent of these specific deductions for void taxes.
The tax sales have in all cases been regarded as interesting no one but the state. While usually made by the county treasurers, yet they made them under state authority, and unless they gave satisfactory bonds to the auditor general, the duties connected with the sales were performed by other persons employed by the auditor general for that purpose. No funds could be received for bids except such as were legally receivable at the state treasury.
No county or county officer ever had authority to bid at the sales or in any way to control them except on behalf of the state. ' No parcel could be sold to a private bidder for less than the whole taxes and charges, and lands not purchased by private parties were required to be bid in for the state.
Lands bid off by the state could be redeemed like other lands, and if not redeemed were open to sale at the annual tax sales; and if not sold after five years they were no. longer assessable until sold or discharged from the taxes.
In all these proceedings the state purchased and held in' the same manner as individuals, and a state tax-bid transferred to a private purchaser was in his hands in all respects. like a title bid off by himself originally. The tax was extinguished by the sale, and the title was good or bad according to its regularity.
In 1869 a statute was passed for revising the tax law, which contained in section 124 a direction that lands remaining unsold for five years after they were bid off to the state should be sold for what they would bring, any excess over the amount charged against any parcel to “be placed to the credit of the county in which such parcel of land may be situated; and if any parcel of the land so offered shall be sold for less than the amount for which it was bid off to the state, then the proper county shall be charged with the difference between the sum for which such parcel was so sold and the amount for which it was originally bid off to the state.”—C. L. 1871, § 1090. This section was repealed without any saving clause in 1875.—L. 1875, p. 270.
■ It is claimed by relator that this section was retrospective, and the charges in controversy rest on that claim, which is disputed by respondents, who also insist on its invalidity if so construed.
The statute of which the section formed a part was an independent and entire law, entitled “An act to provide for a uniform assessment of property, and for the collection'and return of taxes thereon.” Any provision which would be of any use in carrying out taxation to its results in the complete disposal of property may, in a certain sense, be within such a title. But it would be going very far to hold that where taxes have been finally satisfied, and the property bid off on a tax-sale, a provision could be properly included which had no relation whatever to the collection of taxes, and only referred to the sale of a certain class of state tax-lands which had been owned for many years, and were to be disposed of at any price which they would bring. As a matter of future policy, it might fairly be considered as a means of ultimate collection, by making the county a guarantor, not only of the validity of the taxes, but also of the marketable value of the security. But its purpose, if retrospective, is different.
The law assumes that the tax-sales have been valid, and that the county has therefore levied all the taxes it was required to levy, and that these have been satisfied by payment or sale. It assumes further that the accounts have been adjusted on that theory, and that as to those taxes'no debt exists against the county. The legal effect of the section, if retrospective, is, that the state arbitrarily shifts off ■on the county its bad bargains in tax-lands, and compels the county, — not to take them at their cost, — but to make up the deficiency arising on a sale by the state itself, and over which it has no control. And its result is to require those who have already paid their taxes to be taxed over again for the default of others, who may in turn have profited by their own default, in bidding in their lands for less than was levied against them.
It has already been held by this court that provisions in this same statute which made radical changes in the rights of parties should be treated as prospective.—Clark v. Hall, 19 Mich., 356; Smith v. Auditor General, 20 Mich. R., 398. In both of those cases the title of the statute was regarded as evidently prospective. In most of its features the statute does not seriously differ from the laws it displaced, and would create ' no disturbance in pending proceedings. But where any section gave ground'for changes which entirely revolutionized the old system, in regard to the most important rights and liabilities under tax-sales, it could not be made applicable to proceedings which were no longer executory, without making its title very inappropriate, and bringing it within the mischiefs aimed at by the constitutional provision, which confines statutes to the purposes indicated by their titles.
Without considering the power of the legislature to enact such provisions retrospectively, we think this section is not to be given such effect.
In regard to taxes charged back because of injunctions, there is nothing in any tax law which allows any taxes to he so charged back until they have been rejected or held invalid by some competent authority. If the injunctions were issued under circumstances which left authority in the auditor general to reject them for illegalities, and he actually rejected them for adequate causes, the fact that he did not wait for a decree would not be important. But no tax can lawfully be charged back until it bas been set aside legally by some competent authority.
As to tbe interest charges complained of, we are unable on the record to discriminate the charges, so as to know on what basis they are made up. Most of them, we suppose, depend on the matters already disposed of. We cannot discuss them without further light.
As the accounts will all have to he re-cast, the mandamus must be denied.
The other Justices concurred. | [
-36,
6,
9,
-21,
-27,
91,
8,
-36,
-11,
55,
36,
5,
-17,
-4,
-19,
-10,
2,
-4,
-11,
49,
13,
-29,
19,
-2,
-50,
11,
53,
34,
-16,
-43,
-16,
-4,
-51,
17,
17,
4,
-5,
-33,
17,
-24,
-58,
26,
-22,
-2,
-11,
16,
-13,
-42,
38,
-19,
-18,
7,
-8,
-12,
1,
6,
-7,
-2,
44,
-51,
-17,
1,
-12,
-13,
5,
-17,
-18,
13,
27,
-37,
-8,
6,
29,
-22,
71,
51,
0,
-2,
-46,
27,
-42,
-2,
-34,
-11,
-7,
-3,
-6,
25,
-6,
19,
34,
6,
-29,
28,
62,
22,
7,
15,
12,
19,
-2,
1,
8,
53,
33,
-20,
10,
-23,
29,
-48,
28,
-9,
-5,
-80,
-19,
-9,
-15,
-58,
1,
27,
46,
-3,
7,
0,
-2,
12,
2,
-11,
-63,
-12,
32,
15,
-52,
-29,
-42,
-27,
-15,
3,
0,
36,
-21,
-14,
13,
-45,
10,
-17,
12,
-4,
27,
-5,
-9,
0,
34,
-7,
-21,
-45,
36,
-25,
27,
-45,
43,
7,
-26,
-40,
-56,
-9,
4,
5,
-42,
68,
48,
49,
9,
39,
24,
-8,
-8,
-30,
3,
32,
-3,
-19,
0,
2,
6,
-32,
-8,
3,
41,
-56,
33,
-11,
12,
-26,
-4,
28,
34,
33,
-49,
-8,
5,
-35,
-1,
-16,
0,
-21,
25,
-45,
-78,
4,
-17,
4,
-27,
3,
-44,
36,
-12,
5,
23,
-6,
22,
10,
59,
13,
-33,
-5,
-20,
25,
-10,
-1,
46,
-39,
28,
-40,
-31,
-45,
30,
26,
22,
42,
-32,
15,
-2,
-47,
20,
-18,
18,
12,
-28,
8,
-40,
-53,
-28,
-31,
-24,
-26,
32,
-23,
-15,
-24,
-6,
29,
13,
-28,
-48,
-34,
20,
36,
17,
2,
24,
43,
22,
-3,
-10,
27,
25,
-24,
-32,
7,
-2,
-49,
25,
42,
6,
42,
-58,
-9,
-15,
-12,
31,
-27,
47,
74,
-37,
52,
14,
15,
30,
12,
-47,
31,
23,
-15,
28,
4,
-40,
-15,
-46,
-9,
21,
41,
-50,
18,
40,
-12,
11,
0,
3,
42,
5,
4,
22,
21,
-44,
-24,
41,
-29,
-16,
-21,
-15,
-23,
55,
-21,
50,
-1,
28,
-32,
-31,
-3,
26,
38,
44,
10,
12,
-15,
-45,
-21,
37,
42,
-22,
-5,
-31,
86,
15,
10,
5,
33,
-20,
6,
52,
56,
16,
-30,
-19,
-12,
-29,
-14,
31,
27,
46,
5,
-15,
-10,
-33,
24,
-22,
6,
-15,
-44,
-14,
-8,
-83,
27,
1,
-5,
-1,
9,
-86,
6,
57,
0,
-16,
0,
-38,
-37,
29,
-38,
-54,
-23,
-15,
43,
19,
25,
9,
-13,
-6,
54,
21,
49,
1,
-30,
41,
-23,
12,
20,
33,
47,
81,
1,
84,
41,
2,
-77,
36,
-58,
-12,
14,
15,
25,
-40,
-69,
30,
-20,
2,
-21,
-16,
-12,
-1,
1,
-8,
6,
7,
30,
-27,
-46,
-62,
85,
37,
49,
-35,
-37,
0,
-38,
1,
80,
14,
-79,
25,
-65,
-8,
-2,
-36,
-61,
20,
-15,
-40,
25,
70,
-11,
-48,
-4,
0,
-30,
1,
-38,
26,
-32,
32,
5,
21,
-17,
-24,
-15,
-26,
-21,
34,
32,
-13,
-27,
38,
-40,
-47,
36,
29,
32,
6,
-18,
19,
33,
12,
53,
-23,
-22,
8,
39,
8,
-7,
38,
37,
-25,
1,
11,
51,
17,
1,
21,
-15,
47,
-20,
-17,
-11,
-71,
7,
35,
22,
-25,
-7,
26,
-4,
-2,
-21,
-24,
-11,
-28,
7,
-13,
61,
-3,
-21,
21,
24,
44,
-6,
-16,
20,
-2,
-1,
1,
-68,
5,
-2,
16,
12,
-30,
7,
-43,
-47,
-12,
-16,
-32,
-35,
9,
-50,
-7,
-19,
-6,
-37,
-5,
3,
26,
-39,
24,
3,
11,
-7,
-36,
-97,
30,
-15,
9,
-10,
-47,
-37,
38,
6,
-45,
-16,
67,
-4,
-27,
52,
-33,
39,
3,
19,
2,
13,
7,
-14,
-36,
11,
31,
10,
45,
25,
21,
31,
4,
18,
31,
-19,
61,
6,
10,
41,
-44,
1,
-15,
3,
9,
22,
-2,
-19,
37,
-23,
71,
14,
-59,
17,
8,
-24,
-13,
32,
-94,
29,
5,
-22,
-14,
40,
-42,
-39,
-81,
-33,
18,
30,
-34,
33,
-11,
4,
-40,
29,
8,
8,
-32,
14,
-10,
6,
15,
-25,
71,
-15,
53,
61,
9,
27,
5,
20,
48,
-31,
-39,
-48,
-17,
-47,
-16,
-38,
-8,
64,
-19,
-11,
-2,
41,
-33,
38,
11,
10,
-28,
40,
-33,
-19,
-8,
-28,
-7,
-1,
-20,
11,
-32,
51,
7,
5,
18,
29,
6,
35,
-53,
5,
10,
-24,
-32,
-31,
6,
-9,
-6,
-13,
6,
-4,
22,
0,
-29,
14,
-6,
-67,
-2,
-47,
13,
-15,
-3,
-40,
-18,
20,
-44,
-1,
-26,
-35,
-5,
32,
-23,
38,
-2,
5,
13,
3,
-5,
-1,
7,
12,
-14,
33,
-13,
23,
19,
9,
12,
18,
-10,
-2,
-35,
12,
-9,
5,
-9,
24,
-8,
50,
15,
1,
-37,
5,
22,
-27,
8,
62,
-26,
-39,
83,
-25,
-30,
-13,
-30,
-11,
33,
-5,
17,
-8,
-32,
-77,
-2,
-28,
-15,
7,
9,
6,
41,
-14,
-12,
44,
1,
-4,
24,
5,
17,
46,
-17,
44,
64,
35,
-28,
-21,
-56,
33,
12,
-10,
0,
-30,
23,
-36,
11,
69,
-50,
-19,
-19,
46,
-6,
-7,
-5,
-4,
5,
32,
-7,
18,
-3,
12,
-65,
-32,
66,
-48,
-16,
9,
-1,
-4,
-41,
3,
6,
47,
-52,
-9,
-26,
4,
-61,
41,
-53,
9,
-45,
0,
23,
63,
47,
16,
7,
-13,
4,
34,
0,
2,
0,
-9,
36,
-2,
-4,
30,
-24,
39,
-29,
0,
30,
34,
-7,
4,
-71,
-4,
-17,
33,
-8,
-18,
-14,
11,
3,
-36,
12,
40,
44,
22,
-7,
52,
18,
-26,
-20,
-16,
-29,
-14,
0,
-22,
27,
-24,
9,
24,
-2,
-29,
17,
64,
13,
10,
-50,
-2,
-61,
-21,
-46,
-103,
16,
26,
79,
20,
-10,
13,
-66,
-30,
30,
-18,
2,
50,
-21,
0,
-32,
29,
34,
-35,
23,
-47,
27,
-24,
25,
-34,
-9,
-6,
-1,
12,
-12,
24,
-10,
7,
-3,
-29,
28,
25,
-47,
-11,
-31,
-23,
7,
61,
-33,
-16,
31,
-47,
-44,
8,
-2,
-23,
10,
-1,
-44,
8,
-9,
13,
49,
43,
6,
-55,
22,
28,
-7,
-41,
22,
31,
1,
-6,
18,
2,
-13,
-26,
28,
30,
58,
-43,
-11,
-26,
-69,
-19,
34,
-37,
43,
-48,
4,
-23,
37,
-59,
65,
20,
5,
-22,
-9,
24,
-15,
-14,
13,
-29,
39,
47,
11,
-56,
33,
15,
-42,
26
] |
Graves, J:
Complainant, claiming to be owner and in possession of a farm of four hundred and forty acres in Homer, Calhoun county, filed the present bill April 3d, 1875, to quiet his title against certain attachments and executions under which the defendant Fox had sought to subject the premises for liabilities incurred by one Powell Grover. Eiehfield acted as sheriff, and the only ground of his being made a party was his official connection with the proceedings.
• The circuit court, after hearing on pleadings and evidence, granted the relief prayed, and Fox appealed. The matters in the record are numerous and somewhat complicated, and no attempt will be made to specify all. A reference to some of the main facts is necessary.
October 19th, .1867, and prior thereto, Powell Grover owned the farm in question, and with his wife, Elizabeth Grover, and his family, resided on it. He became anxious to engage in lumbering with one Wright in Osceola county, and to effectuate his wish, proposed to raise by mortgage on the farm the sum of six thousand dollars. The family opposed the project, and Mrs. Grover refused to join in the suggested mortgage. The loan was to be for five years, with interest semi-annually at the rate of ten per cent.
Some agreement became necessary to enable Mr. Grover to raise the loan upon the farm, and the following understanding was reached. - He was to convey the farm to Mrs. Grover, and thereupon both were to execute the mortgage, and Mrs. Grover was to execute a papier to him, binding herself to reconvey on his paying the mortgage in five years, and also allowing him to hold possession, during the five years. This bargain was completed by the execution of the proper writings on said 19th of October. The mortgage was made to- one Parker, who provided the money.
Grover and Wright then went into partnership under the name of “Grover & Wright,” and a few days later proceeded to the pine woods to carry out the contemplated lumbering operations. In the course of about a year, how.ever, the necessities of the firm required more money, and in raising it Grover made himself liable to Pox on account of two notes of about three thousand dollars each, and also liable to Houck & Ostrom for some two thousand dollars more.
The parties in whose favor these liabilities were incurred knew of the arrangements which had been made between Grover and his wife, and did not give credit to Grover upon the faith of his having any legal title to the farm. These demands being unpaid, three attachment suits were instituted for their collection, two.by Fox, and one by Houck & Ostrom. This occurred in May, 1869. The attachments were levied on the farm as real estate of Grover, and on some other property. Some time in the fore part of 1870, Fox, Houck and Ostrom bought the Parker mortgage.
October 19, 1869, bankruptcy proceedings were commenced against Grover & Wright, by a creditor, in the district court of the eastern district of Michigan, and they were adjudged bankrupts November 9th thereafter. O. J. Keilley was appointed assignee, and in the succeeding December the assets were vested in him.
After the levy of the attachments, and within four months next prior to the bankruptcy proceedings, Grover assigned to his wife the agreement for reconveyance, and quit-claimed the farm to her. ■ He also made an assignment to Fox of the agreement for«¡reconveyanee.
Subsequently, and on December 6, 1870, judgments were given against Grover in all the attachment suits.
September 5, 1871, after full bearing of the attaching •creditors and all concerned, the district court, sitting in bankruptcy, adjudicated upon and definitely settled the rights of the respective parties in interest in and concerning the farm.
The attachment levies having been made more than four months before the bankruptcy proceedings, were not disturbed; but the assignments of the agreement for reconveyance, and the quit-claim of 1869 to Mrs. Grover, were held void as against Grover’s creditors, and it was decided that the only right Powell Grover held under the arrangement with his wife of 1867 was to have reconveyance of the farm in case of his payment of the Parker mortgage in five years, and to have possession of the farm diming that period. The decree in bankruptcy also assumed that the attachment levies were not upon this right of possession at all, and that it accordingly vested in the assignee in bankruptcy and was subject to sale absolutely, whilst the interest in the farm under the stipulation for reconveyance could only be disposed of subject to the levies.
August 27, 1872,'the district court, on petition of the assignee, ordered him to sell his interest in the farm and products, and on the next day, and pursuant to the order, he sold and conveyed his interest in the farm for three hundred dollars to Nancy A. and Martha A. Grover, daughters of Powell and Elizabeth Grover. This was of course subject to whatever right the attachments covered.
Executions in the attachment cases had been issued in January, 1871, and levied on the farm as real estate, and on June 10, 1873, the district court granted leave to proceed to enforce the attachment levies in the state court.
January 9, 1874, defendant Bichfield, as sheriff, sold the farm on the three executions, the defendant Eox being the purchaser on each.
December, 1874, Nancy A. and Martha A. Grover, the purchasers from the assignee in bankruptcy, conveyed to their mother, Elizabeth Grover, and she conveyed to complainant, who is a son of Powell and Elizabeth Grover.
The Parker mortgage has not been paid. Proceedings on the part of Fox to foreclose it have given rise to another suit, which was heard at the same time with this, and the force of these proceedings will be noticed in the opinion in that case.
The evidence is satisfactory as to complainant’s possession, and in regard to his ownership of an interest to entitle him to bring this bill.—§ 5072, C. L. Upon that aspect of the case there appears no room for real controversy.
The question on which the case hinges is, whether the claim asserted by Eox, on the strength of the proceedings in the attachment cases, in opposition to the title of complainant, is one which ought to be suppressed.
If those proceedings have force to bind any interest in the farm, they ought not to be hindered from operating in Fox’s favor to hold that interest. But if they are not sufficient in law to bind any interest, and only give a color of right, and finally prejudice complainant’s title only as they becloud it, then their power to so operate ought to be taken away.
It is sufficiently plain that Fox’s claim must be confined to such rights or interests in or upon the farm as were held by Powell Grover at the time of the proceedings.
No other rights or interests in or upon the farm have been touched by the levies. And we are not left to speculate upon the nature or extent of his rights or interests in that regard. The question was distinctly presented and passed, upon in the district court, where all parties were represented. The decree there made in bankruptcy, and to which both parties now appeal as conclusive, defined the rights of Powell Grover, as, first, a right to have conveyance of the farm provided he paid the Parker mortgage in five years; and, second, the right-of possession during that term. All further right on his part was denied.—Wiswall v. Campbell, 3 Otto, 347.
There is no occasion to discuss the question as to whether the possessory right so held by Powell Grover was subject to seizure on attachment or execution, because if it was, the record shows that in fact it was not levied on at all. The district court evidently so considered, and acted on that opinion. The levies concerning the realty were upon the farm as real estate, and they made no reference whatever to such a right as that in question. If .subject to seizure, it was as a chattel interest, and not as real estate.—Buhl v. Kenyon, 11 Mich., 249; Gorham v. Arnold, 22 Mich., 247.
. That Powell Grover was owner of the right, could therefore afford no support to the claim of Fox under the proceedings in the attachment cases.
We then come to the other interest, the contingent right to a conveyance. This was not a legal interest. It was a. mere equity, and incapable of being held by levy at common law. If liable to be subjected upon attachment and execution, it could only be so through compliance with the statute for supplementing the levies by proceedings to ascertain and determine the interest seized. — § 4628, C. L. The right was not proceeded against, however, as an equity. As before stated, the levies were upon the farm, as real estate held by the debtor under legal title, and the sales and other steps were conducted on that theory.
But passing all objections based upon the circumstance-that the levies were made and sales conducted as in case of legal interests in real estate, and assuming that they were properly shaped to subject the right of Powell Grover, and still, as before stated, it was indispensable to the continuance of force in the levies, to take proceedings, either before sale, or within a year thereafter, to ascertain and determine the interest. — § 4628.
At the time the bill was filed, however, this period had long passed and yet no such proceeding had been taken anywhere, unless the action in bankruptcy should be deemed to answer the purpose. Fox, virtually admitting the neces ■■sifcy of such a proceeding, contends, nevertheless, that the action in' bankruptcy was in character proper to satisfy the sense of the statute, and that no other proceeding was ¿requisito to define the landed interest attached. Whether this is correct or not, it is useless to consider; because, ■■admitting it to be so, and still it appears that the definition actually given by the district court fails utterly to give efficacy to the attachment proceedings against any right in or to the farm.
The court proceeded to ascertain and settle the right of Powell Grover, and decided that it was conditional, and -would wholly-cease at the end of five years, computed from jfche 19th of October, 1867, unless in the meantime he paid the Parker mortgage.
The mortgage has never been paid, and hence the right to call for conveyance expired long prior to the sales on «execution. The equity, therefore, ceased long ago, and no interest or right has remained for the proceedings to -apply to.
No importance can be attached to the alleged offer of Fox, Houck and Ostrom to Mrs. Grover, in August, 1872, to ■•■surrender to her the Parker mortgage and the agreement, ■■she" gave her husband for conveyance, upon the condition that she would convey as provided in the agreement. They had no title to the agreement for conveyance. Nearly a year before, the court in bankruptcy had declared the assignment under, which they claimed to hold it, to be void. And at the time of the offer, it was not yet ascertained who, if -any one, would become entitled by force of proceedings in •-the attachment suits.
The conclusion reached is, that when this bill was filed, whatever may have been the state of things in construction -of law before, there was no living interest in or to the farm, <or any part of it, subject to the attachment proceedings, ■ and that such proceedings, in so far as they purport to ■affect the farm, have no other operation than to becloud •■complainant’s title, and in that way prejudice his right.
No notice has been taken of the great mass of objections'in the record to the attachment proceedings. A great many, certainly, have no force in such a case as this.
The decree should be affirmed, with costs.
The other Justices concurred. | [
9,
38,
11,
-6,
-18,
27,
-2,
8,
6,
15,
-16,
-17,
17,
27,
-11,
39,
-25,
-50,
25,
47,
7,
-13,
-38,
8,
-26,
-37,
-14,
18,
-26,
23,
22,
50,
-14,
19,
21,
-27,
-9,
26,
-15,
-35,
-32,
-25,
15,
-17,
7,
10,
-6,
-7,
7,
-27,
-13,
-35,
-22,
-11,
-42,
8,
0,
11,
-43,
7,
0,
-32,
-10,
-1,
-36,
19,
-9,
37,
31,
-41,
31,
15,
21,
-12,
41,
-13,
-37,
-58,
-48,
15,
0,
0,
8,
-12,
-37,
-39,
23,
-18,
-17,
93,
-2,
14,
11,
31,
30,
1,
5,
77,
26,
47,
-28,
-30,
5,
10,
34,
6,
14,
-12,
-13,
27,
43,
-24,
49,
-12,
4,
-17,
8,
18,
11,
15,
-40,
21,
15,
-19,
-13,
-23,
-51,
3,
9,
7,
30,
0,
-70,
-20,
-25,
-50,
29,
-40,
-37,
-18,
17,
22,
-51,
-8,
-8,
25,
-2,
-7,
-13,
-8,
-76,
58,
5,
13,
42,
-11,
49,
3,
9,
0,
61,
-11,
-10,
-27,
-27,
-8,
-15,
-6,
-9,
16,
28,
46,
-20,
5,
22,
-29,
-29,
-29,
31,
48,
17,
-5,
-29,
1,
14,
-50,
35,
-9,
-35,
0,
-1,
-10,
15,
-45,
22,
2,
4,
-72,
0,
11,
51,
-53,
-13,
19,
43,
-23,
84,
28,
-20,
44,
-37,
-22,
-19,
3,
-28,
27,
1,
7,
0,
-9,
35,
18,
40,
6,
-30,
-52,
30,
-4,
42,
-30,
-48,
-24,
5,
37,
-59,
-16,
-8,
-43,
14,
28,
-23,
-12,
-25,
-60,
-1,
-3,
-58,
25,
-32,
21,
-21,
15,
11,
11,
31,
20,
-5,
20,
-3,
-26,
39,
10,
-14,
-3,
40,
12,
-38,
20,
40,
15,
-14,
-45,
32,
26,
-15,
-28,
-35,
37,
-26,
-26,
35,
9,
-3,
-1,
39,
23,
22,
35,
-46,
-17,
28,
-46,
-19,
-25,
9,
67,
4,
8,
61,
40,
-15,
34,
-42,
-75,
-7,
-6,
7,
-29,
-32,
-2,
-9,
13,
-9,
-43,
6,
13,
9,
33,
12,
-52,
25,
21,
-3,
-18,
23,
14,
-13,
-30,
-4,
44,
-20,
-31,
-9,
-19,
26,
-4,
24,
-4,
42,
18,
37,
56,
12,
15,
5,
5,
-9,
-22,
-12,
4,
-41,
-38,
8,
26,
-34,
12,
-45,
22,
-30,
0,
-1,
23,
-11,
-6,
-21,
-23,
2,
-26,
6,
-15,
29,
11,
10,
13,
20,
27,
-22,
-38,
9,
7,
42,
24,
26,
39,
22,
25,
1,
-10,
-37,
26,
-13,
19,
-1,
16,
-28,
-35,
44,
-61,
-57,
-40,
0,
10,
0,
18,
-10,
28,
-51,
49,
-9,
0,
16,
-38,
2,
12,
5,
8,
-9,
-9,
32,
45,
31,
18,
-1,
-30,
9,
-38,
29,
-30,
-8,
-22,
0,
24,
15,
36,
34,
-13,
-40,
11,
-8,
39,
24,
0,
33,
-8,
-22,
2,
-24,
15,
69,
-31,
13,
-34,
-42,
13,
16,
1,
22,
-48,
45,
-28,
9,
-21,
0,
-15,
-10,
-7,
-3,
9,
-26,
24,
-20,
14,
83,
-51,
-28,
-20,
81,
-8,
2,
10,
30,
-19,
-2,
12,
-58,
-51,
6,
-18,
-24,
38,
45,
-48,
-9,
-23,
18,
-2,
10,
-22,
13,
52,
25,
36,
17,
-30,
27,
22,
-42,
19,
43,
50,
27,
-68,
-32,
32,
-46,
4,
39,
4,
17,
-40,
13,
-2,
-41,
-9,
0,
14,
17,
-19,
18,
21,
7,
5,
-25,
-11,
-6,
-29,
-45,
64,
2,
-52,
2,
-14,
23,
2,
-52,
10,
9,
-66,
17,
-69,
-30,
-35,
-31,
-2,
-53,
38,
-36,
-11,
2,
-22,
-5,
-47,
0,
-54,
9,
-55,
38,
4,
12,
14,
-3,
-56,
56,
-14,
13,
-2,
-45,
-37,
20,
29,
-40,
-66,
0,
-15,
-12,
-1,
-1,
50,
-26,
25,
7,
18,
-22,
5,
-5,
-29,
34,
6,
-1,
20,
-56,
-4,
-4,
-43,
37,
15,
-11,
49,
3,
46,
1,
5,
1,
0,
34,
31,
21,
-34,
-14,
10,
13,
-31,
-7,
-18,
1,
-9,
27,
29,
-32,
-1,
-35,
-56,
1,
63,
-38,
19,
19,
55,
-32,
14,
-25,
-37,
-68,
-4,
30,
32,
-28,
7,
7,
17,
-27,
6,
17,
5,
2,
31,
14,
-16,
-52,
12,
78,
-26,
-19,
56,
0,
-29,
25,
41,
8,
31,
31,
-41,
19,
19,
18,
-47,
-14,
94,
19,
-19,
42,
-10,
29,
14,
21,
-19,
6,
5,
-26,
11,
21,
-4,
20,
-8,
-42,
-5,
-3,
19,
6,
-17,
30,
33,
23,
7,
1,
6,
-38,
-44,
7,
-50,
23,
15,
11,
-16,
-21,
34,
3,
-33,
10,
-3,
24,
-46,
-10,
-12,
3,
-4,
-1,
15,
20,
34,
9,
40,
-27,
3,
-43,
30,
-57,
36,
-36,
-18,
8,
-37,
-59,
19,
-32,
-15,
-17,
9,
7,
19,
61,
-13,
-19,
6,
-15,
-9,
-3,
-19,
-53,
-26,
20,
27,
3,
-5,
-2,
54,
0,
-28,
36,
-34,
-25,
30,
-28,
-27,
36,
10,
3,
-32,
-39,
-16,
65,
-28,
-9,
-42,
-4,
-22,
45,
1,
46,
-18,
-34,
-11,
41,
-49,
-59,
2,
45,
37,
4,
-3,
29,
18,
-6,
52,
19,
20,
6,
-7,
-29,
22,
-3,
-14,
-12,
-15,
-42,
-11,
6,
8,
-47,
21,
-58,
34,
15,
-5,
-12,
29,
-6,
24,
-27,
0,
0,
-21,
-6,
16,
24,
-52,
15,
31,
-25,
22,
-17,
7,
-7,
-9,
32,
47,
55,
7,
-65,
-54,
0,
-81,
14,
-47,
-67,
-23,
9,
10,
-25,
3,
54,
-23,
-10,
-10,
16,
-10,
22,
-12,
-6,
-5,
0,
-37,
-14,
39,
-19,
-7,
10,
5,
0,
-16,
-29,
5,
-4,
11,
-11,
25,
-9,
-38,
29,
-12,
-28,
-12,
5,
31,
8,
18,
31,
-37,
14,
17,
-27,
29,
-35,
0,
-40,
-58,
25,
-31,
10,
14,
-1,
-14,
-35,
-37,
-119,
21,
-7,
-13,
-33,
-1,
19,
-8,
6,
19,
-24,
23,
44,
-19,
-31,
35,
-6,
-7,
-63,
-12,
-41,
-6,
16,
-18,
-8,
-22,
47,
-5,
19,
-6,
-7,
-6,
23,
-9,
35,
29,
-18,
-12,
91,
35,
-40,
-24,
-64,
-10,
89,
49,
-22,
4,
1,
-27,
-19,
24,
28,
30,
-19,
9,
16,
-19,
-1,
7,
23,
48,
33,
13,
32,
-57,
-47,
-12,
-18,
88,
-15,
-11,
20,
-29,
-30,
16,
9,
49,
12,
17,
21,
18,
-48,
49,
-25,
12,
-7,
-22,
22,
45,
53,
-7,
15,
46,
-9,
-26,
-61,
-2,
12,
-33,
-2,
22,
2,
20,
32,
-4,
1,
-3,
-15,
61
] |
Marston, J:
At the time this case was argued and submitted, my impressions were that Moote might, under his oral arrangement with Scriven, made previous to the foreclosure sale in April, 1874, have some claim to the wheat in question, sowed under such arrangement and previous to such sale. An examination of the record, and of the decision of this court, in Moote v. Scriven, 33 Mich., 500, upon the validity and effect of such oral agreements and of the sale of April, 1874, convinces me that defendant can have no such claim.
In the case referred to, it was held that there was not only no evidence of a bargain conforming to the statute of frauds, whereby Moote was to have any interest, but that there was not convincing proof of any bargain at all, and that whatever may have been the state of things before, the chancery sale cut off all previous equities; that whatever the previous arrangement may have been, Scriven was not obliged to buy in the property at the chancery sale to save what he had previously paid out, and even if he had been a mortgagee, he was not thereby precluded from buying up such title and holding it like any other purchaser, inasmuch as it was a legal sale of the mortgagor’s equity, which any one could buy, unless estopped.—Comp. L., § 5154.
The purchaser at this sale, there being no redemption, became the owner of the crops then growing upon the land, and it is not claimed that he at any time afterwards became divested of the title thus acquired, or did any act which would preclude him from maintaining this ■ action. It is claimed, however, that the bond of July 7, 1874, has such effect. We do not think so. The only authority requiring such bond to be executed to Scriven and filed with the register was an order of the circuit court in chancery-in the case of Moote v. Scriven, already referred to. Scriven never accepted this hond or made any claim under it, and the utmost effect that can be given to it, would be to give Scriven an additional remedy. The order under which it was given did not pretend to and could not well deprive Scriven of any of his substantial rights in the premises. True, the injunction in connection therewith might postpone them, but upon its removal, all Scriven’s rights were restored.
As the rulings below were not in accordance with what is here said, the judgment must be reversed, with costs, and a new trial ordered.
The other Justices concurred. | [
17,
0,
3,
19,
-16,
-2,
30,
-13,
42,
27,
28,
-7,
27,
-2,
-16,
8,
6,
0,
-38,
36,
10,
-37,
-12,
0,
13,
-60,
12,
-49,
-30,
13,
27,
11,
-15,
37,
-31,
-12,
-8,
19,
35,
-60,
23,
-17,
38,
-16,
-8,
-7,
13,
-79,
27,
3,
18,
-1,
13,
-16,
1,
5,
-32,
4,
-41,
28,
43,
-16,
-9,
14,
-6,
15,
16,
-3,
-24,
-34,
6,
-11,
4,
-6,
27,
-61,
0,
25,
17,
-29,
9,
-47,
32,
-58,
-21,
23,
-13,
10,
28,
12,
-30,
-9,
2,
-41,
2,
62,
-10,
29,
11,
18,
4,
-38,
-62,
-12,
31,
8,
-29,
-48,
-36,
49,
14,
16,
6,
-36,
-25,
16,
-44,
-18,
-33,
-13,
-5,
1,
-10,
24,
-6,
20,
-55,
-25,
-2,
-17,
-6,
-21,
-47,
47,
-20,
-32,
8,
-15,
-6,
-21,
-21,
-2,
-19,
-62,
-21,
5,
25,
-15,
11,
-5,
-23,
9,
1,
8,
11,
-23,
33,
-26,
-18,
-71,
52,
2,
3,
9,
-12,
20,
20,
-37,
-18,
-17,
10,
28,
-16,
-2,
-19,
-25,
18,
-3,
6,
-46,
-50,
-6,
-6,
-8,
-1,
-5,
-30,
26,
41,
2,
-4,
8,
4,
0,
7,
26,
-40,
26,
19,
20,
-19,
18,
10,
37,
0,
-34,
58,
-33,
-43,
48,
-83,
-13,
-10,
-71,
-23,
12,
-64,
9,
-6,
-21,
69,
30,
2,
46,
-42,
-18,
4,
20,
27,
-5,
-8,
28,
0,
-6,
-26,
0,
19,
0,
21,
23,
-44,
-1,
-2,
-14,
-18,
-13,
-7,
17,
31,
12,
-33,
-19,
-6,
48,
-12,
-25,
-53,
34,
-25,
-49,
15,
34,
-31,
-25,
-16,
-31,
-1,
-1,
-5,
21,
16,
0,
54,
6,
-44,
-19,
-51,
-24,
-32,
-33,
39,
11,
4,
43,
-6,
29,
49,
41,
-17,
-12,
63,
-53,
10,
-29,
1,
1,
-48,
2,
60,
18,
2,
-2,
10,
12,
0,
-8,
-29,
-25,
-15,
-23,
9,
-20,
6,
10,
36,
-14,
23,
22,
4,
-50,
5,
25,
-1,
-42,
116,
8,
28,
-41,
5,
12,
-40,
-31,
1,
-3,
-8,
17,
17,
-11,
-42,
7,
15,
36,
31,
-21,
38,
-5,
8,
3,
-7,
26,
-40,
39,
1,
35,
6,
-11,
23,
33,
0,
6,
35,
0,
17,
40,
-11,
6,
-24,
-13,
42,
9,
28,
32,
-18,
-40,
-21,
-37,
-37,
-34,
4,
23,
25,
4,
26,
-4,
40,
9,
-30,
-10,
-13,
-5,
-42,
-40,
-14,
23,
-4,
11,
-7,
-62,
-46,
-25,
14,
33,
3,
-17,
-38,
48,
-21,
-43,
-12,
11,
35,
18,
-7,
-26,
-10,
-32,
32,
-9,
43,
12,
14,
19,
28,
5,
9,
-20,
15,
22,
-59,
-18,
-20,
31,
-7,
2,
15,
-17,
-24,
9,
-48,
42,
-44,
0,
9,
20,
-5,
-4,
-65,
0,
49,
-6,
-21,
2,
0,
5,
-53,
32,
28,
-30,
19,
-75,
72,
-16,
-11,
-38,
17,
-12,
-18,
-60,
-3,
-15,
7,
20,
66,
11,
4,
1,
7,
6,
-3,
18,
6,
41,
5,
-10,
-44,
-37,
-72,
-7,
26,
27,
19,
-2,
17,
-20,
-39,
-3,
14,
-21,
-2,
34,
20,
1,
-32,
-16,
21,
35,
45,
-36,
33,
45,
9,
-16,
18,
51,
29,
33,
-1,
18,
13,
11,
34,
-51,
-42,
-6,
-36,
28,
32,
5,
12,
-35,
-32,
34,
-32,
-31,
-1,
-22,
25,
13,
33,
-72,
-64,
33,
11,
26,
-90,
7,
47,
-55,
-4,
17,
0,
-24,
33,
21,
0,
23,
-5,
-29,
-1,
-12,
-42,
18,
5,
-19,
5,
-18,
16,
-50,
-23,
40,
-16,
-26,
9,
19,
12,
-64,
-15,
-39,
22,
29,
-28,
-17,
-42,
-55,
-14,
43,
2,
20,
13,
-15,
-27,
12,
-17,
-15,
-42,
5,
1,
34,
-11,
44,
2,
37,
-52,
-2,
39,
-6,
10,
27,
17,
19,
10,
3,
12,
8,
-2,
4,
34,
2,
-21,
14,
16,
11,
-34,
-59,
2,
-9,
-13,
-22,
-2,
45,
12,
-25,
36,
30,
-63,
23,
23,
27,
-26,
-14,
15,
-22,
-9,
-26,
11,
46,
-44,
-14,
36,
-5,
-28,
9,
31,
-4,
39,
26,
-10,
-12,
8,
-46,
76,
-56,
-20,
-2,
33,
22,
6,
16,
-16,
6,
65,
-43,
21,
8,
51,
1,
37,
19,
21,
-21,
11,
-33,
17,
2,
2,
53,
-19,
-19,
-16,
10,
48,
9,
-23,
-15,
6,
-10,
0,
25,
20,
-7,
53,
-16,
4,
0,
-18,
-1,
-41,
-13,
-6,
-11,
55,
44,
17,
14,
0,
-42,
35,
8,
11,
-43,
-4,
-58,
33,
-62,
-11,
-27,
34,
19,
-9,
26,
-14,
6,
-14,
30,
-59,
42,
60,
36,
-5,
-12,
-66,
38,
26,
16,
-9,
28,
23,
5,
12,
36,
67,
-12,
-2,
14,
-14,
-36,
-37,
9,
-14,
-29,
20,
41,
-47,
12,
5,
-23,
-19,
-44,
5,
-29,
-25,
-21,
-7,
20,
14,
5,
41,
34,
17,
-7,
-2,
-43,
-23,
18,
-25,
-25,
15,
-14,
58,
43,
22,
-13,
-25,
12,
-44,
29,
18,
6,
3,
25,
9,
-13,
-14,
21,
15,
2,
19,
41,
0,
-6,
-4,
-44,
4,
-20,
8,
14,
-23,
18,
2,
-7,
-17,
8,
-6,
-10,
-35,
59,
25,
19,
-10,
38,
4,
-34,
-25,
60,
40,
-8,
-11,
-2,
-11,
-15,
-27,
-1,
2,
-5,
38,
-1,
16,
12,
-25,
-47,
-1,
0,
2,
18,
-6,
-37,
-12,
4,
50,
38,
30,
27,
-34,
32,
48,
-35,
-1,
26,
-25,
-6,
-1,
-23,
-10,
26,
17,
30,
19,
-32,
24,
-2,
14,
9,
-29,
32,
-1,
24,
22,
-48,
34,
40,
-40,
-39,
-37,
16,
1,
-9,
0,
-55,
28,
-30,
-64,
-43,
-24,
0,
-5,
3,
29,
25,
11,
5,
30,
-37,
0,
-69,
-72,
73,
-10,
3,
8,
-20,
35,
26,
-53,
-39,
-17,
8,
0,
-1,
-8,
12,
-25,
2,
2,
23,
12,
-20,
-8,
-26,
-26,
34,
44,
24,
-6,
-2,
-46,
11,
-26,
-4,
17,
-20,
-15,
5,
23,
52,
-18,
-5,
-40,
-59,
-25,
23,
-40,
47,
0,
-70,
19,
60,
-17,
33,
-12,
-29,
35,
-12,
5,
-2,
32,
-6,
19,
13,
-38,
-10,
11,
-16,
-67,
49,
-5,
19,
36,
25,
-40,
-23,
45,
5,
5,
6,
5,
4,
-18,
24,
-4,
-22,
-8,
0,
-5,
35,
5,
-14,
31,
52,
21,
-63,
-44,
-17,
3,
41,
-18,
7,
-22,
11,
46,
-25,
-7,
24,
-17,
49
] |
Graves, J:
This action was brought against defendants in error as^ special administrators of Charles Busch deceased, and the-declaration was on the common counts in assumpsit, for goods sold and delivered, work and materials, money lent,, money paid, money had and received, and money found due on an accounting. There was no count for use and occupation..
Defendants pleaded the general issue. At the trial the plaintiff claimed the right to prove and recover for use and occupation by defendants of plaintiff's store under an agreement therefor at the yearly rent of one thousand six hundred dollars. On defendants’ objection that the evidence-was not admissible under the pleadings, the court excluded it and the case is brought here to have this ruling revised. The ruling was clearly correct. I am not aware of any decision directly in point, but the doctrine which governs is quite elementary. There was no issue on the pleadings to which the offered evidence could have any relevancy whatever. The essential requirements of a declaration or count upon the cause of action attempted to be proved here are stated in many books, and none of them are contained in this declaration.—Lawes on Plead., 492 (mar.); 2 Saunders P. & Ev., 888; 2 Wheaton’s Selw., ch. XLI.; Jpp* to Burrill’s Frac., 251, 252.
The judgment should be affirmed, with costs.
The other Justices concurred. | [
-25,
-39,
36,
20,
12,
16,
44,
11,
-12,
36,
49,
2,
59,
39,
13,
-19,
27,
18,
-17,
4,
31,
-40,
-39,
30,
16,
-16,
44,
5,
-18,
41,
2,
-18,
1,
-15,
-16,
31,
20,
-27,
20,
15,
29,
-13,
84,
-46,
-15,
0,
4,
-33,
37,
-21,
78,
0,
5,
-11,
29,
-24,
-13,
12,
6,
-35,
35,
-24,
5,
24,
-1,
1,
-23,
-30,
-20,
-5,
-16,
-7,
-29,
-47,
17,
-75,
-18,
4,
1,
2,
22,
-32,
60,
-8,
-28,
61,
-6,
-48,
16,
-49,
25,
14,
7,
-16,
-22,
36,
5,
36,
9,
-29,
2,
-6,
-42,
38,
-2,
47,
-53,
-7,
12,
-28,
23,
40,
22,
-24,
-15,
3,
-13,
-1,
-50,
-33,
31,
21,
55,
0,
-36,
-17,
0,
-4,
-17,
27,
-11,
48,
-31,
-46,
1,
13,
15,
-17,
-35,
-29,
24,
-1,
-26,
-13,
15,
36,
22,
48,
-44,
-33,
-27,
41,
-4,
30,
-2,
34,
35,
-55,
25,
-45,
66,
17,
-16,
-31,
25,
15,
19,
10,
-40,
-23,
55,
8,
-35,
12,
38,
31,
13,
-44,
-2,
-36,
4,
-30,
21,
31,
19,
-27,
-39,
30,
-9,
-48,
38,
-3,
-15,
12,
23,
25,
4,
64,
39,
-22,
-14,
-33,
-10,
-30,
3,
18,
20,
-46,
-26,
-22,
-24,
-34,
-6,
-68,
9,
-39,
19,
-13,
-22,
9,
-43,
23,
-12,
-24,
-8,
-25,
10,
33,
14,
11,
-68,
-19,
26,
62,
-23,
9,
25,
-13,
3,
22,
-30,
-1,
-46,
-61,
20,
-7,
12,
13,
0,
-5,
3,
-3,
3,
33,
-39,
-59,
-4,
15,
-27,
8,
-13,
94,
-19,
23,
-75,
-20,
-16,
6,
-6,
63,
-30,
-8,
12,
20,
-8,
-4,
-38,
26,
-7,
-7,
1,
14,
29,
-36,
-36,
14,
-4,
-2,
9,
24,
7,
-12,
-14,
-2,
41,
42,
-13,
14,
23,
-2,
6,
-16,
17,
-5,
24,
-1,
-14,
7,
-64,
-25,
-19,
5,
16,
-3,
45,
28,
-10,
-2,
4,
-11,
-22,
-4,
0,
12,
30,
-34,
35,
-45,
55,
-11,
6,
-18,
12,
12,
-9,
-23,
-4,
-25,
-30,
24,
29,
-4,
-35,
-54,
-2,
17,
-35,
-25,
-14,
-9,
23,
-10,
-4,
62,
27,
-12,
-6,
-18,
-26,
26,
49,
4,
-4,
-11,
-10,
3,
-23,
-45,
20,
17,
25,
-26,
-8,
-49,
-14,
-22,
17,
4,
-14,
36,
12,
-10,
-4,
-9,
32,
34,
-30,
-24,
-11,
15,
-25,
6,
42,
-23,
5,
-25,
8,
-25,
15,
17,
-56,
6,
34,
-21,
-17,
-36,
-11,
-4,
-14,
29,
-38,
3,
-15,
-10,
-18,
14,
25,
3,
11,
5,
51,
-33,
21,
9,
20,
-103,
5,
14,
-37,
-26,
-26,
-17,
-46,
-44,
-11,
-10,
-4,
-3,
2,
11,
-51,
-14,
-29,
1,
18,
15,
-20,
22,
35,
-40,
5,
4,
-18,
-5,
0,
43,
34,
-17,
30,
-27,
22,
8,
3,
3,
52,
-16,
-23,
-66,
20,
-14,
-7,
7,
66,
29,
-55,
20,
4,
22,
-5,
-11,
22,
79,
44,
-13,
15,
-3,
-29,
-29,
-17,
7,
36,
-5,
0,
11,
-37,
4,
-38,
-8,
-22,
22,
-10,
10,
8,
-10,
22,
8,
-59,
-3,
61,
53,
1,
0,
17,
3,
-36,
6,
-7,
18,
-13,
68,
54,
-6,
-28,
7,
-23,
-15,
7,
35,
1,
-11,
47,
24,
-13,
15,
-26,
-13,
41,
-7,
25,
11,
-32,
31,
-2,
10,
-16,
10,
-19,
-27,
-8,
20,
-44,
-1,
7,
39,
6,
5,
9,
4,
0,
-35,
-38,
30,
7,
0,
40,
-36,
-10,
2,
57,
-3,
-9,
9,
-19,
-28,
-49,
10,
-9,
-10,
36,
-54,
1,
6,
26,
-36,
-58,
20,
-11,
33,
30,
-55,
-5,
-14,
-30,
-25,
-21,
-34,
-12,
-37,
13,
65,
24,
0,
-19,
-20,
-14,
-14,
0,
26,
-49,
-30,
50,
-22,
-8,
-18,
17,
6,
31,
-23,
30,
24,
0,
31,
-44,
-2,
4,
17,
-61,
4,
21,
18,
-16,
-40,
0,
9,
-4,
24,
1,
44,
-28,
-25,
34,
11,
-7,
15,
-23,
1,
12,
20,
8,
9,
13,
24,
2,
38,
-15,
11,
-29,
-52,
3,
-44,
-23,
-39,
-23,
16,
17,
25,
30,
-29,
11,
-39,
59,
-27,
-1,
42,
11,
18,
-25,
-22,
-16,
7,
-14,
-39,
58,
-18,
-9,
-14,
15,
37,
6,
-27,
-7,
39,
-16,
-25,
-2,
26,
13,
18,
8,
-6,
-16,
-17,
29,
38,
-4,
-6,
-32,
19,
18,
-15,
-13,
-20,
-5,
-19,
-6,
4,
-86,
-10,
0,
18,
11,
-28,
24,
-34,
-15,
-1,
76,
-1,
21,
-11,
8,
-4,
3,
-12,
-24,
39,
-9,
-18,
-7,
7,
-1,
27,
29,
14,
-6,
-1,
-9,
-11,
-19,
33,
19,
10,
25,
19,
20,
40,
-18,
3,
-32,
-33,
-12,
9,
-49,
24,
-23,
25,
-32,
-25,
-10,
7,
-22,
-34,
-26,
-41,
-40,
59,
10,
-27,
38,
18,
5,
-24,
-10,
36,
-29,
-12,
4,
0,
-24,
68,
21,
-5,
2,
-50,
29,
27,
-7,
29,
-21,
-3,
-5,
36,
31,
77,
-3,
25,
-12,
17,
0,
-44,
-14,
-37,
24,
-64,
24,
12,
2,
-15,
-24,
6,
-25,
27,
-14,
-27,
21,
18,
5,
-9,
-42,
-2,
20,
-62,
-39,
61,
17,
10,
-8,
3,
-21,
-47,
-21,
9,
9,
35,
8,
37,
-43,
7,
-19,
10,
42,
7,
15,
-14,
-1,
-34,
-19,
-33,
8,
50,
26,
35,
-40,
22,
21,
0,
-33,
39,
25,
21,
46,
48,
7,
-32,
-25,
1,
-39,
-1,
-6,
-4,
-30,
24,
1,
19,
11,
5,
20,
-30,
-21,
19,
30,
-9,
32,
37,
0,
-41,
-21,
0,
19,
-18,
-7,
4,
19,
23,
-16,
45,
33,
-1,
-34,
21,
24,
-19,
7,
-20,
38,
37,
-7,
16,
26,
37,
33,
25,
13,
-19,
-9,
-19,
-6,
-6,
-3,
22,
-31,
28,
32,
7,
14,
-20,
-17,
-29,
-23,
-48,
10,
-80,
11,
55,
-37,
19,
-12,
-1,
13,
-32,
-73,
30,
3,
7,
-35,
-9,
0,
-10,
-80,
24,
-46,
11,
-17,
21,
25,
1,
7,
-7,
-19,
8,
-23,
1,
0,
5,
-9,
-25,
14,
-20,
-65,
45,
42,
-70,
-65,
20,
-29,
12,
-13,
5,
-7,
-28,
38,
49,
46,
-8,
-34,
-12,
18,
18,
-23,
-45,
-50,
9,
-5,
-11,
-5,
0,
24,
33,
-13,
-31,
-31,
21,
28,
76,
-53,
5,
-32,
57,
-36,
-21,
-22,
34,
-29,
21
] |
Marston, J:
Within the principles of previous decisions of this court, we are of opinion that a party should not be deprived of his personal liberty upon an affidavit which merely states ’conclusions upon information and belief. The facts and circumstances should be set forth in detail, so that when presented to an officer to fix hail, he can exercise some judgment based upcm the facts, and not the conclusions of the affiant merely. A creditor may think he has good reason to believe that he has a cause of action against another, when if the facts were fully set forth, it might appear otherwise.—Const., Art. VI, § 26; Josselyn v. McAllister, 25 Mich., 45; Matter of Stephenson, 32 Mich., 60.
The writ must be denied, with costs.
The other Justices concurred. | [
27,
-34,
40,
1,
51,
-8,
65,
-25,
4,
38,
65,
-47,
25,
-12,
-10,
31,
41,
-11,
56,
-46,
-34,
-40,
-4,
3,
4,
-1,
63,
34,
-23,
30,
-13,
-7,
13,
24,
-36,
-8,
1,
-40,
13,
2,
15,
-21,
-4,
-22,
-27,
-24,
-39,
-7,
-46,
-36,
14,
-12,
-28,
0,
3,
0,
3,
18,
15,
5,
-19,
-30,
63,
1,
-64,
-3,
-1,
16,
-44,
-15,
-12,
23,
19,
-29,
34,
-25,
-16,
-6,
-34,
-17,
6,
-15,
1,
0,
16,
1,
0,
18,
34,
-6,
41,
-26,
-35,
-43,
-11,
28,
16,
9,
4,
47,
-25,
38,
-22,
10,
-5,
79,
-37,
-24,
8,
-15,
-1,
-30,
6,
-61,
-18,
-16,
-7,
35,
-13,
-47,
13,
21,
34,
-10,
-13,
49,
37,
-35,
-42,
24,
40,
-21,
11,
41,
5,
-14,
23,
10,
16,
-17,
-22,
5,
18,
-3,
27,
-1,
58,
-2,
-31,
-6,
-1,
32,
16,
10,
-43,
13,
9,
-44,
-9,
-55,
35,
42,
-24,
19,
10,
9,
10,
20,
28,
-36,
5,
31,
-22,
-23,
-17,
13,
-24,
0,
13,
-10,
-13,
39,
5,
-4,
3,
-14,
-27,
-5,
56,
-53,
-41,
28,
15,
38,
55,
23,
-17,
30,
22,
-97,
5,
-2,
-9,
26,
6,
-27,
-10,
-35,
-25,
63,
-21,
17,
-8,
-74,
-22,
-3,
-6,
-19,
1,
5,
24,
15,
-37,
7,
-37,
-11,
-16,
26,
6,
-34,
-21,
22,
14,
3,
20,
11,
46,
-15,
32,
11,
-26,
16,
-8,
2,
-23,
-15,
1,
-1,
30,
-26,
-8,
-24,
10,
-23,
-82,
-21,
35,
28,
-30,
-8,
-40,
74,
-36,
32,
-14,
6,
28,
49,
6,
-21,
-15,
30,
-13,
3,
14,
17,
-22,
-17,
-39,
28,
-41,
25,
-30,
48,
-63,
-3,
47,
18,
-10,
10,
69,
-68,
-42,
-5,
15,
-26,
-13,
-40,
-37,
-2,
26,
-30,
10,
34,
-73,
-81,
-10,
-16,
-23,
-31,
11,
68,
-13,
-9,
21,
6,
-6,
-7,
42,
-2,
-8,
33,
16,
-31,
22,
41,
49,
-63,
-21,
46,
-6,
0,
-19,
26,
24,
11,
11,
-45,
-9,
-6,
-27,
-35,
-19,
-20,
-26,
24,
-41,
-24,
-69,
-16,
-1,
31,
-4,
30,
16,
22,
-6,
-9,
-29,
-47,
1,
1,
-14,
9,
28,
50,
-27,
-80,
4,
51,
17,
-13,
-35,
-2,
-34,
-15,
39,
-13,
-17,
14,
-32,
-34,
0,
-1,
14,
27,
-21,
1,
-37,
-43,
-19,
-1,
15,
27,
-83,
8,
11,
-1,
-7,
-8,
-3,
19,
-9,
9,
-38,
23,
4,
-41,
12,
2,
-17,
31,
-17,
53,
-38,
2,
42,
-6,
11,
-47,
-22,
-35,
26,
17,
22,
-17,
-14,
45,
24,
-26,
0,
-27,
11,
-14,
0,
-28,
-14,
-30,
26,
-16,
-27,
-6,
8,
11,
1,
-30,
-61,
6,
-14,
-61,
-11,
-14,
6,
-26,
-10,
47,
23,
1,
-20,
-8,
0,
-27,
-17,
-25,
19,
-11,
-22,
-64,
40,
-37,
22,
-14,
10,
25,
-21,
-28,
-47,
-15,
-43,
-25,
27,
39,
37,
-35,
-69,
51,
-64,
-47,
37,
-29,
-13,
4,
-41,
-8,
-6,
-24,
9,
-17,
-38,
18,
42,
51,
-3,
-28,
21,
12,
11,
9,
47,
25,
-2,
18,
7,
-3,
-38,
28,
0,
0,
7,
13,
14,
-6,
0,
16,
-2,
-21,
9,
-25,
-20,
-30,
43,
80,
41,
-31,
11,
39,
39,
14,
11,
-32,
-19,
37,
3,
-2,
-14,
19,
-7,
-44,
-14,
80,
-23,
-43,
45,
38,
-3,
-11,
15,
19,
2,
-21,
0,
-5,
28,
7,
38,
-16,
6,
11,
45,
-57,
16,
-55,
-25,
11,
-32,
0,
60,
-24,
19,
2,
0,
-21,
-26,
-32,
-19,
11,
-22,
-54,
-1,
-73,
-22,
2,
8,
-48,
-30,
-23,
-55,
-12,
-13,
65,
27,
11,
-44,
5,
44,
18,
39,
15,
-35,
-50,
19,
14,
4,
35,
-14,
17,
3,
-8,
19,
21,
42,
12,
0,
-10,
1,
2,
-31,
-27,
-10,
-1,
-28,
-9,
-13,
-9,
-19,
59,
0,
8,
-30,
-9,
21,
14,
27,
30,
72,
-22,
-2,
1,
32,
-26,
18,
11,
23,
13,
36,
47,
19,
23,
53,
1,
25,
-42,
19,
45,
-2,
74,
25,
8,
86,
-2,
27,
-22,
12,
31,
44,
-45,
16,
-8,
41,
6,
-3,
-27,
-16,
28,
-7,
-11,
-24,
19,
19,
10,
32,
-6,
12,
-9,
-78,
-31,
-7,
5,
6,
15,
31,
-62,
-25,
-7,
-23,
1,
-18,
26,
17,
63,
11,
51,
-17,
37,
21,
-19,
0,
7,
-12,
-16,
0,
-22,
34,
-22,
23,
-21,
24,
5,
-17,
27,
-4,
-16,
-25,
-15,
13,
13,
39,
-60,
3,
35,
-7,
35,
11,
-13,
20,
-28,
8,
-22,
7,
40,
63,
-35,
36,
29,
-18,
45,
-24,
-6,
4,
-16,
-9,
-7,
-27,
-20,
-12,
3,
-79,
-11,
-12,
1,
-24,
-49,
42,
5,
-27,
72,
-16,
-18,
47,
24,
34,
-25,
-84,
63,
6,
-43,
-26,
-18,
-2,
57,
32,
-19,
-16,
9,
16,
23,
-14,
-4,
19,
30,
15,
9,
13,
-52,
12,
22,
-29,
42,
25,
-35,
39,
-12,
-41,
-9,
-60,
10,
-1,
6,
-13,
-8,
-13,
25,
13,
27,
-9,
15,
-15,
34,
8,
1,
-7,
-61,
-10,
28,
-6,
14,
-15,
-38,
6,
-32,
2,
-48,
-5,
37,
1,
12,
-20,
60,
-13,
-1,
3,
39,
-13,
38,
11,
-27,
-3,
-1,
-4,
-7,
10,
19,
-3,
-29,
25,
-16,
-9,
25,
13,
12,
32,
47,
-5,
18,
-15,
-3,
2,
-36,
9,
8,
33,
5,
-20,
-2,
1,
24,
48,
-43,
-48,
-6,
67,
-23,
0,
14,
-25,
27,
-1,
-46,
13,
-6,
20,
-23,
-59,
38,
53,
19,
10,
8,
-20,
39,
14,
17,
7,
-46,
-8,
62,
2,
8,
-13,
25,
55,
35,
25,
-4,
-23,
-2,
-1,
5,
-58,
-24,
-10,
-6,
10,
26,
51,
-14,
1,
-36,
-8,
8,
12,
-45,
-15,
5,
-48,
-12,
-44,
-12,
13,
-25,
-5,
-6,
26,
4,
19,
47,
-15,
-34,
-32,
18,
-62,
27,
-19,
-20,
-5,
16,
-55,
20,
-4,
21,
45,
4,
-32,
-53,
-21,
-7,
38,
-8,
-72,
-25,
4,
-13,
-42,
18,
-29,
-23,
1,
21,
-31,
-14,
-3,
41,
-44,
-38,
-16,
10,
18,
-18,
25,
17,
-11,
24,
38,
31,
0,
-55,
10,
47,
12,
-35,
-34,
0,
18,
16,
0,
-11,
-20,
-10,
31,
37,
35,
27,
0,
4
] |
Marston, J:
Theodore B. Wilcox, Albert B. Wilcox, L. C. Paine Freer and Sextus N. Wilcox, filed a bill to foreclose a mortgage executed by Asa M. Allen and dated November 22, 1872, which was- given to secure, amongst other things, the payment of certain promissory notes executed by the latter to T. B. Wilcox & Co., in accordance with the terms of an agreement of even date therewith, by which Wilcox & Co. sold certain mill and other property in Muskegon to Allen. T. B. Wilcox & Co., being indebted to Sextus N. Wilcox, upon the same day, November 22d, assigned certain of these notes and the mortgage to Freer in trust to secure the payment of their indebtedness to Sextus N. Wilcox.
Although the bill of complaint sets forth and alleges that complainants sustained and are entitled to damages because of non-performance and violation of the covenants and' agreements contained in the contract for sawing, yet, as we understood counsel on the argument, and as .set forth in their brief, this portion of the case is not insisted upon, complainants resting their case upon defendant’s default in not paying interest upon the notes according to the terms thereof, the effect of which was, under a clause in the mortgage, to render the entire debt due at the option of the mortgagees.
The contract of sale of the lands, the notes and the mortgage are of even date, November 22, 1872, and all constituted but one transaction.
Theodore B. Wilcox and Albert B. Wilcox, composing the firm of T. B. Wilcox & Co., of the first part, and Asa M. Allen, of the second part, upon the 22d day of November executed a written agreement, by which the first parties sold and agreed to deliver to the second party their certain mill property at Muskegon with other property. After the formal parts and description of tlie property sold, the contract proceeds as follows:
“And whereas, the sale price of said entire property was the sum of sixty-five thousand dollars, the payment of fifty-five thousand dollars of which sum is to be paid in five installments of eleven thousand dollars each, evidenced by five promissory notes for said respective sums, dated of even date herewith, and payable to the order of T. B. Wilcox & Co. on the first day of January of each of the years A. D. 1874, A. D. 1875, A.. D. 1876, A. D. 1877, and A. D. 1878, at the banking office of Lunt, Preston & Kean, in said Chicago, with interest at and after the rate of seven per cent, per annum, payable semi-annually, the interest beginning to run on the first day of January, A. D. 1873: Now, said parties of the first part, in consideration of the covenants and considerations hereinafter specified to be kept and performed by said party of the second part, agree and covenant to and with said party of the second part, his executors and administrators, to deliver at the boom of the above specified mill fifty-five millions of feet of merchantable pine saw-logs in quantities of eleven millions of feet per annum, and beginning to deliver the same as soon as the Muskegon Booming Company shall begin operations in the spring of the year, A. D. 1873, and annually thereafter, and to continue to deliver the same through the seasons of each year, beginning with A. D. 1873, as aforesaid, as fast as the said booming company shall or may assort, raft and tow the same.
“ And said parties of the first part, in consideration of the premises recited, agree to and with said second party to pay him for sawing said lumber as follows: For the first year’s operations at and after the rate of three dollars and fifty cents for each thousand feet, board measure; two dollars and fifty cents, board measure, on each thousand feet, to be paid at Muskegon, on the first day of each month during the sawing season, beginning on May 1st, A. D. 1873, such payments to be made on the amount of lumber shipped as shown by the certificate of inspection, or in case said lumber shall be piled along said switch track there upon the certificate of measurement by the measurer agreed upon by the parties as above provided.
“And as to the remaining one dollar per thousand feet of lumber sawed, the same shall be retained by said first parties and be applied by them on the first of the notes so as aforesaid to be given by said second party, then next maturing.
“And for each of the remaining years’ business under this contract, and for sawing and piling, as aforesaid, said parties of the first part agree to pay to said second party from year to year, in equal monthly installments, as above provided, and at the place aforesaid, the average market price for manufacturing on Muskegon lake, reserving, however, in each year, at the rate of one dollar per thousand feet, the same to be applied in the payment of the principal sum of any of said notes due or -then next maturing.
“And it is further agreed that at the end of each sawing season, under this contract, if the sum of one dollar per thousand feeet, so to be reserved, shall have been more than sufficient to pay the principal of the note falling due for the current year, the excess shall be^ paid to said second party on demand.”
The notes are in the usual negotiable form, “with interest at seven per cent., payable semi-annually.”
The mortgage is given to secure the payment of sixty-five thousand dollars, the -balance of the purchase price of the lands, evidenced by five promissory notes, each in the sum of eleven thousand dollars, and falling due respectively on the first days of January in each of the years 1874, 1875, 1876, ■ 1871, and 1878, “and drawing interest from .and after the first day of January, A. D. 1873, at and after the rate of seven per cent, per grnnum, payable semi-annually.” There was another note secured by this mortgage, given for the sum of ten thousand dollars, payable January 1, 1813, without interest.
On the 20th day of January, 1813, there was a written modification or addition to the contract of November 22d, that portion thereof bearing upon this question being as follows:
“Now this is to certify that in case said first party shall elect on or before May 1, 1873, to deliver to said second party fifteen million (15,000,000) feet of logs instead of eleven million (11,000,000) feet as provided in the contract above mentioned, then and in that case the said second party hereby agrees to saw such additional four million (4,000,000) feet in all respects on the same terms, conditions, price, etc., as provided in said contract for the. sawing of the eleven million (11,000,000) feet before mentioned, with the exception that said second party shall have the option of applying any portion of the saw-bill of the said additional four million (4,000,000) feet of logs on the payment of the mill notes due by said second party to said first party on the first day of January of each of the years 1874, 1875, 1876, 1877 and 1878.”
Other modifications and changes were made, but they need not here be noticed.
We do not deem it necessary at present to make a careful examination of the accounts existing between these parties, for the purpose of ascertaining the exact indebtedness at the time the bill was filed. An examinatipn and settlement of the legal questions in dispute between them will, we think, be all that will be required in the present controversy.
I. According to the express terms of the contract, also of the notes and mortgage, interest was to be paid .upon the notes semi-annually, and we find nothing in any of these papers inconsistent with the clearly expressed agreements, except as next noticed.
II. The contract specifically points out the time and manner in which these notes were to be paid. The mortgagees were to deliver at the mill-boom fifty-five million feet of merchantable pine saw-logs in quantities of eleven million feet per annum, the first to be delivered in the spring of 1873, and to be delivered annually thereafter. These logs were to be received by the mortgagor and manufactured into lumber at this, his mill, and he was to receive for manufacturing, piling, etc., for the first year at the rate of three dollars and fifty cents per thousand, and for each of the remaining years ' the average market price for manufacturing on Muskegon lake. The mortgagees were to pay a certain portion of the price so agreed upon for manufacturing in equal monthly installments, and the contract provided how the quantity should for this purpose be ascertained. In each year one dollar per thousand was to be reserved by the mortgagees and to be by them applied upon the notes then due or next maturing, and if the amount so reserved should be more than sufficient to pay the note falling due for the current year, the excess was to be paid to the mortgagor on demand. We think the evident intent of the parties, as expressed in this agreement, was, that the one dollar per thousand reserved upon eleven million feet, would be in full satisfaction of the note then next maturing; that the note during that year should not, if paid in sawing, draw interest. The parties in thus providing that eleven thousand dollars should be reserved and be applied in the payment of the principal sum, meant thereby to exclude all idea of the payment of interest. The parties in contracting, the one to deliyer and the other to saw, fifty-five millions of feet of merchantable pine saw-logs in quantities of eleven million feet per annum, undoiibtedly intended that the one dollar reserved upon this quantity each year would satisfy and pay in full the note then next due, and as these logs were to be delivered in the boom, and scaled in the mill by a competent person, which would be the first opportunity afforded for ascertaining the exact quantity delivered in any one season, it is a reasonable presumption that the parties supposed the quantity delivered might over-run eleven million feet, and be sawed during that. year. They therefore, to meet this state of things, provided that if the sum so reserved should be more than sufficient “to pay the principal of the note falling due for the current year, the excess should be paid to said second party on demand.” If interest was to be paid, we can see no object in requiring the excess to be thus paid on demand to the mortgagor by the mortgagees, if the latter was at the same time entitled to demand and receive back interest for the current year upon the note, the principal of which had been paid.
There is still another reason for coming to the same conclusion. Eleven million feet of logs were to be sawed each year, the saw-bill was to be paid by the mortgagees at Muskegon on the first day of each month during the sawing season, beginning on May 1st, loss one dollar per thousand feet, which was to be retained by the mortgagees “and be applied by them on the first of the notes so as aforesaid to be given by said second party, then next maturing.” In accordance with this provision of the contract, payments would be made upon the notes nine months before the principal became due, and two months before the semiannual interest would be payable, if interest was to be paid, and as the sawing season would close in October or early in November, the entire note would be paid before it became due. This the parties must have taken into consideration, and as the average time of payment would be nearly six months before the principal would become due, they agreed that payment of the principal should be in full satisfaction of the note, and such, we think, is the fair legal construction of their agreement.
III. As to the interest upon notes not thus maturing and being paid, whatever the rule might have been under the contract of November 22d, we think the agreement of January 20, 1873, clearly gave the mortgagor the option of applying any portion of the saw-bill of any additional logs delivered under that agreement, in payment of any of the notes given. This agreement is certainly broad enough to authorize the payment of either principal or interest upon any or all of said notes.
IY. Ifc appears that the scale of the manufactured lumber exceeded the log scale. Defendant Allen claims that he is entitled to retain as his own property any such excess of lumber, and that where a portion of such excess has been delivered'to or received by the mortgagees, the value thereof should be credited him upon any balance found due upon these notes. The mortgagees deny Allen’s right to any such excess. We held in Wilcox et al. v. Allen, January Term, 1876, that under this contract Allen was entitled to all such excess lumber, and we have as yet seen no reason for changing the conclusion then arrived at. The logs were to be scaled in the mill by a competent person, and the parties were very particular in providing how such party should be chosen in case they could not themselves agree upon a scaler. And Allen agreed to deliver to said first parties, T. B. Wilcox & Co., in the manner specified, “the same number of feet of merchantable lumber as above specified, equivalent in the number of feet, board measure, to the total scalage of the logs to be delivered.” When Allen had complied with this clause, he had delivered all he was bound to under this contract. Allen was entitled to the unmerchantable lumber and slabs, and did not, however, agree to deliver to them all the merchantable lumber manufactured from the logs, and that it should at least be equivalent in the number of feet to the total scalage of the logs to be delivered. It is not at all clear that this excess conies from the logs delivered. The evidence tends to show logs received into the boom from other sources and sawed in the mill, which would account in part or wholly for this excess.
Y. The mill- purchased by Allen from the mortgagees was destroyed by fire in June, 1874. There was an insurance at that time upon it of thirty-five thousand dollars. This insurance was, under an agreement made between Allen and T. B. Wilcox & Co. July 18, 1874, to be assigned to T. B.. Wilcox & Co., who were diligently to prosecute and collect as far as practicable the amount thereof, and as fast as collected apply it in payment of this mortgage indebted ness. The policies were assigned and T. B. Wilcox & Co. collected upwards of twenty-five thousand dollars thereon previous to January, 1875. This money so collected should have been applied in payment of the mortgage indebtedness as the parties agreed, unless, as claimed, the rights of S. N. Wilcox would be affected thereby, which we shall notice hereafter. The liability of T. B. Wilcox & Co. for insurance assigned but not collected we do not decide, as the facts bearing thereon are not sufficiently before us.
VI. It is also claimed that the interest upon these notes having been unpaid, notice was given by the mortgagees in March, 1874, of their option to consider the whole amount of the notes, both principal and interest, due, under a clause in the mortgage providing that if any interest was due and remained unpaid for a period of sixty days thereafter, ■ the whole of the principal sum evidenced by said notes should thereupon, at the option of the mortgagees, become immediately due; and the bill of complaint was filed in this case claiming the whole amount due upon this theory.
Whether any interest will be found to have been due at the time such notice was given, under the views we have expressed, we do not at present determine. We are all clearly of opinion that advantage can only be taken of a clause of this kind in a case where there can or ought to be no reasonable dispute between the parties as to the amount due and unpaid. Where the mortgagor in good faith and upon reasonable grounds denies his liability to pay interest, or.if he is so liable, claims it to have been paid, he cannot thus be- made liable, even although it should turn out that he was in error. This clause is in the nature of a forfeiture or penalty. Its object is to punish for a willful neglect of a clear duty, and to hold it applicable to and apply it in a case where there was an honest dispute, would be harsh and unjust, and contrary to all well settled equitable principles.
VII. Is Sextus N. Wilcox bound by the agreement and dealings between Allen and T. B. Wilcox & Co. and by the assignment of the insurance policies to the latter? The assignment made by T. B. Wilcox & Co. of these notes and mortgage was to secure the payment of a certain indebtedness owing by them to Sextus N. Wilcox. In case of default on their part the trustee was authorized to sell the Asa M. Allen note and mortgage at public auction to the highest bidder, and from the proceeds of such sale to retain the amount owing him, with interest and costs, the balance, if any, to pay over to the assignors, T. B. Wilcox & Co. It is not claimed that Sextus N. Wilcox did not at the time of this assignment have full knowledge of the contents of the mortgage and contract of November 22d. lie knew that these notes were to be paid by sawing to be done for the mortgagees, and that a clause was contained in the mortgage requiring the mill property to be insured, and in case of loss, that the mortgagees should be permitted to collect such insurance in their own name or in the name of the insured to their use, and that the amount so collected should apply upon the notes then matured, or then first maturing and remaining unpaid.
Sextus N. Wilcox was examined and testified that he knew of the destruction of the mill and of the amount of insurance thereon; that he had informed T. B. Wilcox & Co. he should look for his pay out of this insurance, and was by them informed that they did not control the insurance at that time, Mr. Allen not having assigned the policies. He also testified that he notified them “ that as soon as the policies were assigned properly so that they could control them, that they should give me enough of the policies to pay the amount my due.” He says he had no knowledge of the assignment at the time it was made, but testified: “ I supposed the policies were in their hands (T. B. Wilcox & Co.) ready to transfer to me on demand up to the last hour. When I demanded the policies they turned over to me what policies they had then uncollected, which proved to be eleven thousand five hundred dollars, and the bulk of it is uncollected to-day. I was very much disappointed at the result and blamed them very much.” When asked if he had called them to account for wlrat they had collected, his answer was: “1 never have called on them; I have claimed that they did me an injustice in the matter and violated good faith, as I thought, to collect them without my knowledge.” There is other evidence in the case bearing upon his knowledge of the assignment from Allen to T. B. Wilcox & Co., and of his want of such knowledge. We think the above is sufficient to show pretty clearly that he expected the policies would be assigned to them, and that he looked to them, in the first instance, and not to Allen, for the policies or their proceeds.
There is another somewhat important fact in this connection. The notice of default in the payment of interest, and election to consider the whole amount due, served upon Allen, is dated, or was served rather, on the 14th of March, 1874. It purports to have been signed for the mortgagees, trustees and Sextus N. Wilcox, by T. B. Wilcox, and requires payment of the entire mortgage debt to be made to Theodore B. Wilcox or Albert Wilcox. This was the only notice served. The bill was filed relying thereon, and the notice does not seem to have been at any time repudiated by any of the parties by whom it purports to have been signed. If this notice was given with authority, then payments or assignments made to T. B. Wilcox & Co. would bind all the parties thereto. From the evidence in this case, we are of opinion that the insurance should be applied as the parties agreed, and that Sextus N. Wilcox is bound by the acts of T. B. Wilcox & Co. in the premises.
VIII. It remains but to consider the questions raised upon the claim under the cross-bill. Complainants in the original bill insist that a cross-bill was not necessary; that the bank could have obtained full and complete relief in the original cause. This, perhaps, would be true if complainants in the original cause should succeed in obtaining a decree. If, however, they at any time had dismissed their bill, or the court upon the hearing had dismissed it, we do not well see how the bank (defendant in the original, and complainant in the cross-hill) could have obtained a decree for the .amount of its claim, no matter how clearly it may have been entitled to it. We think the bank wa's not obliged to run any such risks, and that the cross-bill was properly filed under the circumstances. The cross-bill was taken as confessed, and a decree rendered in favor of the bank for the amount of its claim, and giving it priority over the other notes secured by this mortgage. We are of opinion that such a decree should not have been granted — so far as it gives priority. There is nothing in this case to take it out of the general rule, as laid down in English v. Carney, 26 Mich., 178, and McCurdy v. Clark, 27 Mich., 445. A majority of the court are of opinion that the proceedings by the bank were for the purpose of collecting its indebtedness against Theodore B. and Albert Wilcox, and that although these parties may not be personally liable upon the note delivered by them to the bank, as endorsers or otherwise, yet they are liable upon the original indebtedness sought to be recovered. ‘
We think, therefore, the case comes within the provisions of our statute, holding the Wilcoxes personally liable, and will tend to prevent multiplicity of suits.
As under the view we have taken of the legal questions in this case, there was not any thing due complainants in the original suit at the time their bill was filed, the decree dismissing it must be affirmed. The decree in the cross-■bill will be modified as to priority, and as modified, be .affirmed.
• Defendant Allen to recover costs in original suit, and to ¡be without costs to the other parties in either original or ^cross-bill.
The other Justices concurred. | [
11,
35,
32,
21,
-40,
7,
34,
17,
52,
-13,
-4,
-36,
-44,
-11,
11,
6,
30,
0,
-33,
5,
8,
-61,
15,
-8,
23,
-34,
23,
-53,
1,
30,
20,
-19,
-45,
75,
-8,
-8,
7,
1,
26,
-21,
-42,
12,
17,
26,
47,
-3,
30,
-12,
9,
-24,
-3,
-37,
-6,
1,
-24,
-32,
-13,
25,
-17,
3,
18,
-57,
-6,
15,
-8,
-27,
18,
-7,
79,
-18,
-38,
-32,
56,
10,
50,
10,
-13,
-9,
-21,
-34,
-22,
-42,
19,
-19,
-6,
-23,
7,
19,
-1,
25,
-38,
37,
-15,
24,
23,
20,
20,
15,
-20,
40,
22,
-26,
-21,
31,
17,
-9,
4,
-7,
-41,
35,
5,
-7,
75,
30,
-66,
2,
-40,
-19,
42,
17,
-1,
15,
-5,
-48,
-40,
18,
-81,
-24,
-25,
25,
8,
-15,
-65,
10,
6,
41,
-20,
-35,
-26,
-29,
-9,
14,
-54,
-43,
-5,
7,
17,
-24,
71,
-13,
-30,
40,
28,
22,
17,
-23,
7,
-11,
-17,
-40,
75,
-49,
4,
-70,
-29,
-14,
0,
-23,
-2,
47,
56,
-28,
-13,
-12,
20,
7,
22,
9,
1,
-4,
5,
-6,
0,
-33,
44,
34,
26,
11,
-24,
-13,
9,
0,
-33,
-37,
-14,
-19,
-28,
-23,
0,
-7,
-24,
-39,
-4,
-59,
-20,
-47,
14,
16,
16,
28,
-22,
19,
-32,
13,
-52,
66,
-31,
-30,
68,
-2,
20,
-7,
0,
27,
-16,
-52,
5,
-7,
6,
-26,
-17,
-14,
-18,
8,
2,
25,
16,
-7,
-4,
18,
-7,
6,
-22,
18,
-31,
20,
-20,
-16,
6,
3,
-56,
8,
-54,
49,
-13,
76,
-33,
2,
-44,
-2,
5,
-1,
1,
33,
22,
-29,
5,
-41,
-10,
68,
-4,
-38,
50,
12,
-7,
3,
-8,
-39,
-43,
-12,
22,
-32,
21,
43,
15,
6,
-5,
30,
-29,
-30,
-8,
-67,
38,
-20,
6,
44,
-55,
-54,
41,
-46,
-8,
-21,
2,
-1,
14,
16,
-7,
-8,
7,
5,
2,
-8,
3,
-16,
36,
11,
9,
49,
-41,
-65,
33,
12,
-3,
-7,
32,
0,
19,
-7,
-41,
42,
42,
-20,
27,
-6,
-40,
8,
45,
-10,
27,
-38,
32,
11,
-8,
39,
12,
-24,
-15,
-18,
-32,
1,
-42,
14,
-64,
47,
-16,
26,
-11,
37,
-32,
2,
9,
-12,
-38,
0,
-3,
-2,
-70,
-30,
-9,
17,
-25,
97,
-45,
23,
-29,
13,
-24,
-4,
-44,
-19,
16,
42,
93,
62,
19,
21,
18,
-14,
23,
29,
-62,
5,
16,
17,
-5,
-27,
-9,
-17,
-94,
-34,
-22,
-7,
-54,
48,
-53,
26,
24,
3,
13,
1,
53,
-35,
0,
11,
10,
-14,
17,
11,
5,
17,
22,
55,
-37,
-14,
-27,
17,
26,
12,
-3,
-31,
4,
36,
-5,
-7,
31,
4,
-34,
12,
15,
-5,
3,
38,
31,
10,
-19,
0,
-11,
-24,
69,
-17,
31,
-30,
-16,
41,
-4,
-7,
61,
-16,
12,
-19,
55,
-44,
3,
-31,
-15,
20,
2,
-28,
-7,
30,
-36,
2,
23,
-31,
-32,
-56,
13,
21,
22,
0,
-44,
32,
-33,
65,
-38,
-46,
-64,
-20,
-2,
8,
31,
-26,
6,
8,
14,
0,
-53,
-46,
12,
21,
22,
-26,
4,
20,
-2,
9,
16,
2,
35,
17,
-48,
-28,
3,
34,
9,
69,
-17,
-3,
-22,
-18,
-13,
-2,
-24,
-29,
31,
6,
38,
41,
-3,
-7,
-51,
15,
-1,
-49,
-19,
25,
3,
36,
22,
-15,
-21,
21,
24,
50,
-33,
4,
-15,
30,
14,
-13,
-7,
-10,
43,
-18,
35,
46,
-19,
-21,
42,
19,
-2,
-29,
3,
-63,
21,
-2,
5,
-50,
-37,
24,
-3,
-26,
33,
26,
-23,
-74,
-61,
-20,
-9,
25,
-41,
-44,
25,
-63,
-21,
6,
8,
13,
-48,
0,
14,
19,
-10,
-5,
-43,
-22,
-2,
37,
11,
17,
6,
-11,
0,
-51,
-19,
-14,
-76,
23,
45,
22,
-21,
3,
1,
4,
-47,
-20,
27,
-25,
-17,
-12,
49,
26,
-33,
-12,
9,
28,
47,
-12,
-50,
83,
-19,
-14,
-18,
14,
4,
-7,
70,
40,
36,
-3,
-36,
17,
-18,
-18,
-52,
28,
-48,
2,
18,
3,
-101,
3,
-22,
-37,
36,
-4,
70,
6,
1,
-22,
39,
-33,
11,
50,
70,
-29,
49,
-10,
50,
-6,
-11,
-13,
-11,
23,
3,
-4,
-18,
43,
35,
-6,
48,
16,
0,
15,
4,
-26,
52,
-34,
-26,
16,
25,
0,
-72,
26,
29,
-4,
70,
35,
0,
-6,
98,
-22,
-42,
29,
18,
28,
-24,
-1,
-6,
-1,
40,
-7,
-33,
0,
27,
26,
7,
17,
-10,
-38,
-54,
-32,
-11,
-48,
5,
6,
1,
-32,
-35,
49,
-29,
36,
-21,
23,
11,
13,
-26,
12,
-22,
20,
-28,
-8,
-65,
25,
17,
4,
-9,
39,
48,
-4,
41,
-2,
-22,
34,
10,
-29,
-63,
39,
-31,
22,
0,
60,
7,
14,
-7,
22,
-1,
-40,
13,
-67,
17,
51,
-18,
26,
28,
-30,
0,
-29,
10,
-24,
13,
-48,
-4,
-31,
14,
-49,
28,
24,
23,
-8,
23,
-27,
15,
38,
-52,
4,
16,
0,
-30,
-25,
12,
-2,
-25,
64,
22,
-16,
25,
-19,
26,
-3,
-45,
11,
-40,
-36,
8,
14,
-3,
24,
-1,
17,
-50,
18,
11,
-21,
-48,
7,
-29,
21,
-63,
11,
78,
-9,
-11,
3,
72,
-24,
25,
-7,
19,
1,
7,
-35,
-7,
-29,
-34,
-27,
15,
25,
-13,
-61,
18,
0,
51,
8,
-71,
-18,
2,
67,
6,
-4,
21,
21,
-13,
10,
-17,
-23,
-35,
36,
-29,
62,
-18,
-16,
32,
-11,
3,
28,
64,
-63,
-40,
1,
-86,
5,
-17,
-13,
31,
-21,
55,
-10,
7,
41,
-44,
-18,
-39,
38,
17,
-32,
-24,
-62,
10,
15,
39,
15,
18,
-2,
-54,
2,
13,
43,
32,
58,
30,
2,
-21,
-68,
-61,
12,
2,
4,
17,
-26,
-10,
-45,
-1,
-13,
-6,
-48,
37,
45,
-32,
25,
-2,
16,
-9,
-18,
15,
-37,
24,
-47,
23,
32,
3,
49,
6,
3,
-26,
8,
36,
-39,
28,
24,
5,
18,
62,
50,
-15,
33,
-3,
31,
-15,
5,
-5,
-38,
55,
-38,
28,
48,
28,
32,
-6,
-31,
-2,
-8,
8,
0,
-50,
26,
6,
12,
23,
-19,
-7,
-10,
8,
59,
-35,
-2,
20,
-19,
-12,
3,
5,
23,
41,
13,
4,
-71,
14,
13,
-13,
-14,
47,
-4,
-40,
26,
-2,
-4,
60,
14,
4,
-21,
-57,
-6,
67,
27,
-3,
17,
14,
-15,
33,
-43,
2,
-4,
-60,
26
] |
Cooley, Ch. J:
The defendant seeks to reduce the amount of a purchase money mortgage by showing that he was defrauded in the purchase by false representations regarding the lands and crops thereon. The purchase was made in 1867, and the mortgage was not given until 1872. As defendant had possession of the premises immediately after the purchase, he discovered at once any deception that had been practiced upon him, and his duty was to make prompt complaint. So far from doing so, he made no complaint until after the giving of the mortgage. That was too late.—DeArmand v. Phillips, Walk. Ch., 186; Whiting v. Hill, 23 Mich., 399.
Some question is made regarding an item of expenses included in the computation of amount due, but this seems to have been agreed upon by stipulation.
Decree affirmed.
The other Justices concurred. | [
4,
-17,
0,
-27,
-18,
15,
39,
22,
-20,
0,
49,
-39,
28,
-1,
9,
14,
-9,
-33,
0,
22,
-5,
-44,
-32,
-18,
24,
14,
51,
-57,
0,
-14,
18,
4,
-23,
12,
-25,
-78,
-7,
-15,
34,
-10,
39,
0,
25,
8,
-8,
-3,
-15,
-58,
17,
-6,
35,
7,
-32,
-33,
0,
2,
-22,
12,
-2,
-30,
14,
-14,
9,
-37,
-34,
-2,
-60,
-42,
-11,
-6,
15,
2,
20,
-49,
63,
19,
30,
-5,
-59,
-24,
23,
-10,
31,
-27,
25,
-41,
29,
-21,
-5,
9,
0,
31,
8,
8,
14,
-34,
25,
60,
27,
35,
-13,
-3,
6,
17,
2,
-1,
-12,
-55,
-64,
-31,
-18,
-21,
34,
-34,
-21,
-23,
-31,
14,
-9,
-38,
5,
-19,
20,
-25,
-22,
47,
-8,
-40,
-6,
33,
10,
-19,
-16,
22,
-6,
-62,
-28,
-10,
-25,
-37,
17,
-16,
-25,
-32,
7,
15,
22,
1,
31,
-12,
-59,
8,
-23,
44,
15,
-16,
-15,
-10,
31,
-86,
59,
-14,
-46,
-35,
-35,
7,
-76,
41,
7,
-31,
23,
-6,
-54,
-39,
4,
-34,
25,
-10,
47,
-22,
6,
15,
24,
8,
12,
7,
-17,
-7,
-3,
-23,
0,
-38,
-9,
13,
13,
-6,
-40,
-32,
24,
-44,
-10,
-24,
-12,
-18,
20,
-2,
25,
-64,
-55,
23,
-51,
14,
-35,
-33,
-86,
0,
3,
12,
2,
-12,
39,
26,
0,
43,
-47,
-32,
23,
17,
36,
49,
-57,
-29,
34,
-23,
-8,
-10,
0,
24,
-12,
28,
-26,
4,
-20,
-21,
-32,
47,
10,
-2,
-30,
-15,
-42,
9,
34,
6,
-27,
6,
-5,
24,
14,
-13,
15,
58,
-19,
31,
0,
14,
-7,
26,
8,
11,
-14,
-16,
4,
54,
-25,
-16,
-68,
-14,
-54,
39,
4,
-13,
40,
33,
30,
19,
29,
62,
-1,
34,
29,
-68,
-12,
-18,
36,
-1,
-33,
-48,
-5,
-43,
-22,
-8,
13,
1,
-39,
-16,
7,
30,
-4,
-14,
10,
25,
-19,
-15,
-19,
-12,
-17,
-23,
13,
-7,
2,
-47,
7,
22,
-17,
0,
70,
-68,
-25,
27,
-11,
-32,
-32,
5,
31,
-8,
16,
-36,
-37,
1,
37,
52,
-6,
-14,
19,
61,
-37,
-15,
-33,
11,
-20,
2,
20,
62,
0,
-21,
-58,
-19,
8,
-5,
33,
-17,
-8,
-25,
-7,
44,
-11,
-60,
3,
43,
25,
29,
-22,
-17,
-40,
-34,
-45,
15,
-62,
61,
2,
-17,
-22,
15,
13,
-21,
-89,
-8,
-22,
-29,
-28,
36,
17,
-15,
-9,
-64,
15,
-23,
-42,
-17,
4,
0,
-7,
0,
-9,
30,
-23,
5,
-2,
14,
36,
-49,
-17,
5,
0,
3,
38,
3,
15,
-14,
19,
17,
23,
-26,
18,
-36,
20,
-1,
-32,
33,
-10,
-32,
16,
-17,
25,
46,
-16,
-44,
10,
-2,
51,
54,
12,
1,
32,
5,
-65,
-35,
69,
-14,
-43,
-7,
13,
-6,
32,
10,
57,
-59,
-15,
-53,
61,
-9,
-1,
-34,
-7,
1,
14,
-31,
16,
50,
-9,
16,
50,
-12,
-36,
1,
-8,
-13,
-12,
30,
-29,
-4,
18,
-23,
-30,
-34,
-76,
-10,
-17,
40,
-2,
-23,
7,
20,
0,
-16,
-27,
-22,
-19,
43,
-14,
34,
15,
-4,
4,
-34,
-5,
16,
11,
28,
0,
-3,
8,
6,
19,
59,
64,
-5,
16,
32,
-2,
0,
-37,
-18,
-37,
-6,
21,
11,
-10,
9,
39,
-1,
-7,
5,
-11,
20,
23,
-26,
29,
18,
-10,
51,
24,
42,
2,
19,
-3,
-51,
3,
-18,
-52,
36,
43,
44,
-27,
14,
17,
-26,
16,
6,
-31,
2,
-8,
-16,
31,
-28,
52,
-45,
-20,
-1,
-7,
11,
-14,
34,
-25,
-12,
-32,
-35,
0,
15,
-10,
16,
-13,
-53,
-24,
60,
11,
25,
0,
-16,
-5,
4,
31,
-15,
14,
-28,
-1,
8,
0,
24,
-39,
10,
-60,
-20,
0,
15,
-59,
31,
-29,
7,
2,
-45,
63,
18,
57,
13,
-67,
-31,
5,
5,
-3,
6,
42,
-14,
3,
7,
-2,
5,
-69,
27,
-13,
-35,
13,
-17,
-32,
1,
11,
6,
-29,
-33,
-45,
13,
-44,
-3,
-12,
6,
-6,
16,
32,
-33,
-15,
13,
-18,
19,
27,
-24,
9,
-20,
-2,
-3,
38,
-25,
-4,
-1,
22,
-4,
47,
2,
16,
-12,
4,
-51,
33,
34,
-12,
15,
-9,
39,
6,
-24,
-23,
-13,
28,
10,
-63,
14,
50,
-16,
9,
1,
30,
-51,
7,
-27,
-16,
-16,
30,
9,
3,
0,
58,
-49,
4,
12,
-16,
7,
-7,
-5,
-24,
4,
-27,
23,
-1,
-4,
22,
-9,
3,
26,
15,
12,
14,
-27,
5,
-11,
2,
-21,
20,
-10,
25,
20,
-20,
12,
17,
6,
0,
50,
20,
1,
-8,
-14,
2,
5,
-32,
-27,
34,
-25,
16,
19,
36,
8,
54,
0,
24,
38,
-19,
-20,
-34,
-7,
9,
-6,
-28,
30,
-21,
0,
3,
32,
-22,
0,
16,
-24,
-19,
-43,
-9,
8,
47,
28,
5,
1,
44,
-23,
23,
-16,
-37,
-3,
1,
-13,
57,
18,
59,
50,
7,
5,
-25,
-20,
-42,
9,
-10,
6,
43,
-48,
6,
59,
-5,
28,
-11,
41,
-16,
16,
4,
-27,
-3,
-24,
7,
-45,
-33,
-17,
15,
36,
-37,
24,
28,
56,
13,
-4,
9,
50,
0,
-5,
-30,
26,
0,
-62,
31,
39,
8,
-22,
-8,
17,
-12,
-30,
-19,
-32,
-12,
40,
16,
28,
-19,
2,
-15,
5,
-15,
0,
-6,
34,
-14,
-21,
-8,
46,
11,
-28,
3,
26,
-9,
4,
57,
-26,
20,
33,
18,
5,
57,
32,
-11,
-18,
12,
32,
3,
-19,
35,
-16,
15,
18,
-27,
21,
-27,
56,
12,
-20,
-34,
36,
54,
7,
-19,
21,
3,
-16,
-6,
-37,
0,
24,
20,
-5,
-31,
-7,
-7,
22,
8,
58,
-38,
31,
57,
-31,
-37,
-38,
-26,
13,
47,
-22,
61,
51,
34,
-20,
-37,
-41,
1,
-33,
60,
-5,
2,
0,
-5,
10,
10,
48,
48,
-41,
0,
-56,
-4,
37,
-9,
23,
46,
47,
-32,
70,
-15,
-27,
79,
43,
-35,
33,
22,
25,
-7,
5,
-10,
-53,
12,
7,
-9,
16,
48,
-92,
37,
64,
18,
31,
0,
-20,
35,
15,
-11,
-50,
16,
-3,
57,
3,
-19,
0,
-1,
-37,
-43,
26,
-44,
-41,
20,
1,
25,
-1,
26,
13,
-2,
-28,
3,
-12,
17,
0,
-1,
-10,
-13,
-24,
27,
7,
-16,
-34,
29,
45,
4,
-38,
-26,
4,
28,
57,
-49,
-32,
12,
25,
21,
15,
32,
45,
-45,
93
] |
Campbell, J:
.Gillam recovered judgment in the court below against Mrs. Boynton, a married woman, upon her promissory note. She brings the case up for review on case made, and claims the judgment to be erroneous, on the ground that it does not properly appear that the note was given in any transaction relating to her own property.
The objections to the conclusions of the superior court seem to rest on some misapprehension. We have no power to consider the correctness or incorrectness of the judge’s conclusions of fact, which we must assume to have been warranted by the proofs. And if those findings justify the judgment, it is not important whether any specific legal conclusions are rightly drawn.
The findings show that Mrs. Boynton was engaged in business for herself, and that her husband, who had bought a safe on credit and had not paid for it, offered to return it to the vendors, with a proposition that his’ wife would, if they chose to sell it to her, give her note for ah amount and at a time specified, which was the same note sued on.
It is further found that they accepted the proposition and the note was sent accordingly, and that in this matter Boynton acted only as agent for his wife and with her authority. It is further found, nominally as findings of law, but really in legal effect as findings of fact, that the. vendors owned the safe and sold it to Mrs. Boynton in her own right and on her sole credit, and accepted this note in payment. Every finding is the responsible act of the judge, and it is not very important by what name it is called. There is nothing in the record by which we are justified in revising his conclusions from the testimony. If his mind has reached conclusions which involve questions of fact, even though mixed with legal inquiries, they must prevail unless illegally reached. We have nothing before us to enable us to enter upon this inquiry, if we should imagine, as' we do not, that the results are wrong, There is no bill of exceptions in the case, and there are no points of law raised which must not be determined by the right of the court below to render judgment on the findings set forth.
Upon such of them as have been above enumerated, the judgment was properly rendered for the plaintiff, who was holder of the note. It is well settled in this state that a ■debt for property purchased is a valid liability against a ■married woman.—Tillman v. Shackleton, 15 Mich. R., 457; Campbell v. White, 22 Mich. R., 185; West v. Laraway, 28 Mich. R., 465.
If this note was given for property actually sold to Mrs. Boynton on her own credit, all the other questions referred to in the findings become immaterial. No other judgment could be given than that which was given.
We have had some doubt whether this case is really in any condition to be examined at all. It is difficult to learn from the record what points are fairly before us. But as we can see no defect in the findings or judgment, we need not discuss the practice.
The judgment must be affirmed, with costs.
The other Justices concurred. | [
8,
-31,
-16,
-13,
-15,
7,
21,
31,
1,
64,
49,
33,
31,
40,
-40,
-11,
36,
11,
25,
-14,
-33,
-16,
-41,
39,
-8,
-13,
18,
5,
32,
34,
-6,
34,
-2,
26,
-23,
54,
31,
-1,
51,
-26,
-8,
30,
20,
6,
-22,
-9,
-14,
-52,
11,
-53,
25,
-55,
-7,
-42,
26,
-5,
9,
33,
-37,
-7,
22,
-20,
25,
-23,
10,
-22,
14,
-41,
0,
-14,
-11,
23,
38,
-49,
-37,
-29,
23,
14,
-41,
-12,
10,
-23,
30,
3,
46,
-2,
21,
24,
-28,
6,
22,
25,
5,
-8,
15,
29,
21,
-17,
53,
37,
-53,
-44,
-25,
23,
-23,
25,
-38,
-45,
0,
-25,
24,
28,
18,
-50,
-3,
2,
-8,
-22,
-20,
-40,
3,
27,
9,
-26,
43,
-41,
9,
-36,
-35,
1,
-8,
-8,
-54,
15,
-4,
-34,
-27,
28,
-15,
-52,
22,
-12,
24,
-20,
-25,
18,
34,
-16,
-70,
-37,
-55,
28,
-7,
6,
28,
-71,
-19,
-77,
30,
-64,
19,
35,
2,
42,
-9,
-6,
18,
14,
17,
-20,
5,
1,
-23,
23,
63,
58,
-6,
-34,
-25,
-55,
6,
15,
11,
34,
2,
12,
-9,
-5,
0,
-27,
-16,
3,
-4,
65,
-14,
22,
-6,
5,
18,
-55,
-19,
-46,
-26,
4,
19,
7,
4,
-32,
-28,
35,
-12,
16,
15,
-45,
-23,
-14,
-21,
-31,
-27,
14,
-9,
-22,
-16,
-23,
-21,
-51,
22,
15,
-19,
0,
-52,
13,
-8,
-39,
22,
30,
47,
-2,
11,
-13,
6,
7,
-35,
-14,
-4,
2,
14,
13,
14,
44,
-55,
18,
1,
38,
-2,
-26,
-11,
16,
-46,
-10,
37,
68,
-35,
25,
-24,
-23,
18,
12,
-22,
16,
-7,
-33,
-38,
22,
8,
-16,
-9,
0,
2,
-21,
24,
6,
1,
14,
-15,
5,
9,
15,
26,
-15,
35,
11,
-3,
8,
34,
20,
17,
16,
-51,
3,
16,
-40,
30,
38,
4,
14,
14,
44,
-65,
-24,
25,
-20,
1,
33,
-7,
15,
-50,
-28,
15,
16,
17,
30,
51,
9,
-22,
-31,
38,
-90,
-21,
-14,
30,
30,
4,
7,
62,
17,
43,
7,
-33,
-24,
5,
-6,
-12,
-15,
10,
19,
-25,
34,
-74,
-4,
2,
61,
-22,
25,
8,
14,
28,
-23,
-29,
32,
3,
29,
18,
-2,
15,
17,
-7,
-37,
-7,
36,
12,
11,
-21,
0,
-22,
10,
-3,
-34,
-3,
22,
-16,
8,
28,
0,
-18,
-2,
-26,
-31,
-22,
2,
-63,
-9,
2,
34,
-66,
-80,
-23,
0,
-46,
-41,
-55,
47,
-6,
-36,
-43,
7,
-31,
-20,
-2,
32,
-11,
-17,
7,
-5,
-26,
-20,
51,
-6,
-4,
-5,
10,
-15,
-14,
-28,
24,
-48,
-4,
-29,
0,
20,
-9,
-10,
-12,
-57,
1,
-35,
-17,
-9,
14,
4,
10,
4,
-38,
1,
2,
-3,
54,
-12,
26,
-4,
56,
-35,
39,
14,
0,
30,
59,
-34,
-4,
-47,
26,
-26,
24,
22,
44,
-20,
23,
-45,
14,
-8,
31,
27,
3,
-3,
19,
40,
-4,
55,
0,
3,
27,
34,
19,
5,
-2,
-2,
-57,
-46,
-18,
-36,
27,
19,
-7,
-28,
-11,
2,
24,
-10,
-3,
-16,
11,
15,
22,
-8,
37,
-13,
-33,
-23,
16,
52,
32,
-45,
37,
1,
-59,
-13,
41,
-5,
-11,
94,
44,
-35,
-20,
1,
-21,
1,
-9,
-8,
22,
-20,
-7,
57,
-5,
-13,
34,
25,
5,
-16,
0,
-55,
-52,
8,
-8,
13,
-48,
32,
0,
-34,
-9,
7,
-13,
-14,
36,
17,
-8,
13,
-16,
36,
21,
-17,
-36,
19,
-5,
60,
84,
-19,
-5,
-9,
20,
-18,
7,
-20,
14,
-20,
-42,
-47,
7,
-2,
1,
18,
-61,
13,
7,
-24,
-7,
-16,
29,
27,
43,
-40,
37,
-15,
3,
-8,
-49,
-42,
-14,
-59,
-24,
33,
-11,
11,
-20,
-12,
0,
-23,
-26,
-14,
-45,
-22,
36,
0,
-13,
-6,
-2,
7,
3,
-28,
7,
39,
31,
-17,
-2,
-15,
12,
-6,
-4,
20,
21,
-34,
-12,
-38,
23,
35,
-53,
43,
-43,
-13,
-39,
-4,
43,
23,
-25,
-18,
36,
17,
-26,
48,
17,
-27,
21,
48,
14,
-1,
-25,
18,
-20,
-10,
-32,
5,
20,
-29,
-18,
38,
-6,
32,
8,
21,
-14,
-23,
-9,
-9,
41,
1,
32,
31,
-7,
17,
10,
-30,
-27,
-18,
46,
-40,
-29,
-11,
-3,
-22,
30,
2,
-7,
2,
13,
22,
19,
-26,
19,
8,
22,
-8,
14,
-54,
-37,
27,
-36,
-1,
1,
-4,
-7,
13,
11,
23,
-5,
-19,
-38,
-19,
10,
42,
-32,
-31,
-13,
-18,
45,
-60,
-39,
10,
40,
36,
8,
32,
21,
-15,
11,
19,
-25,
44,
-2,
-21,
22,
-18,
-19,
38,
0,
-33,
-14,
-2,
21,
-27,
20,
31,
42,
1,
53,
-24,
-35,
28,
6,
3,
-20,
-61,
-4,
-15,
-25,
-25,
15,
0,
-19,
-52,
32,
-13,
-5,
-53,
-14,
19,
-29,
52,
-3,
21,
62,
-2,
12,
-21,
-38,
64,
10,
-21,
-12,
13,
0,
19,
24,
69,
-23,
4,
16,
50,
17,
-19,
-70,
-30,
46,
-1,
15,
-9,
-17,
45,
-29,
-6,
25,
8,
-3,
-35,
7,
-19,
-20,
24,
12,
23,
14,
-30,
-11,
16,
-16,
-7,
2,
3,
-35,
-31,
-16,
-1,
2,
-27,
-37,
25,
26,
8,
-14,
-6,
47,
-26,
-35,
-21,
-14,
41,
40,
8,
-21,
16,
-14,
-48,
11,
8,
32,
5,
5,
10,
-43,
4,
31,
-31,
-16,
1,
-3,
20,
55,
-20,
-11,
56,
50,
-27,
16,
40,
35,
21,
-12,
31,
33,
-8,
-19,
3,
10,
28,
-2,
32,
-45,
16,
27,
-24,
-34,
-15,
-13,
-3,
39,
22,
-36,
4,
2,
-58,
23,
4,
10,
23,
-30,
-4,
29,
10,
3,
22,
-11,
45,
16,
-10,
21,
-21,
36,
33,
-9,
-35,
29,
-21,
35,
-28,
22,
35,
10,
-1,
-36,
-15,
-38,
20,
-2,
37,
1,
39,
23,
-28,
-20,
21,
6,
-23,
-6,
-54,
-5,
17,
-8,
-14,
-28,
41,
2,
12,
-2,
42,
-8,
34,
-35,
2,
-36,
-23,
-39,
-43,
-45,
17,
19,
-35,
24,
30,
6,
18,
-23,
1,
-3,
-12,
-9,
-35,
-2,
-32,
35,
-25,
-35,
18,
-21,
-5,
-60,
25,
-21,
-30,
-8,
0,
-12,
-50,
-29,
2,
49,
18,
-32,
-37,
24,
20,
9,
-8,
-3,
-18,
-10,
-26,
51,
-40,
10,
2,
-10,
-30,
-18,
22,
76,
69,
-27,
-26,
-4,
-16,
28,
36,
-11,
47,
0,
45
] |
Marston, J:
David R. Cooley, at a private sale October '24, 1853, purchased certain primary school lands from the state, made the first payment thereon and received the usual certificate of purchase. Iu 1855 Cooley assigned his interest in a portion of this land to Henry Miller, who, in the autumn of the same year, assigned his interest therein to complainant. The latter, upon the 28th day of March, 1856, by an instrument in writing, sold his interest therein to defendant in consideration of the sum of four hundred dollars, payable fifty dollars cash, fifty dollars October 1, 1856, and fifty dollars upon the first of October each year thereafter until the whole sum should be paid, with annual interest thereon. Each party successively at the time of making his purchase entered into possession of the premises. Complainant files his bill claiming an equitable lien upon these lands under an agreement hereafter referred to, dated March 2, 1858, for the unpaid purchase money. In his bill of complaint he alleges that defendant, with intent to cheat and defraud him, procured from David R. Cooley, the original purchaser, in February, 1857, an assignment of his (Cooley’s) interest in these lands; that he obtained from the supervisor a certificate that the lands could be divided without prejudice to the primary school fund, and that the original certificate to Cooley, with his assignment to Sackett endorsed thereon, and the certificate of the supervisor, were surrendered up and delivered to the commissioner of the state land office, and new certificates issued by said commissioner, one to defendant for the north half, being the lands assigned by complainant to defendant, and one to Cooley for the south half, and that defendant claims under his assignment from Cooley and under this new certificate issued as stated, June 5, 1857.
Defendant in his answer admits that Cooley purchased these lands from the state, but denies that he assigned to Miller or that Miller assigned to complainant, and denies that he (defendant) purchased from Miller or ever entered into possession under complainant. He admits that he purchased from Cooley, as already stated, arid procured a new certificate from the state, and claims that the purchase from Cooley was a bona fide one, for a consideration of three hundred dollars actually paid by hiru to Cooley.
Complainant in his bill alleges that a settlement was made by him with defendant March 2, 18S8, at which time defendant, to secure him the amount then due, assigned all his interest in these lands to complainant as security. Defendant admits making this assignment, but alleges that it was executed on Sunday and under threats of a criminal prosecution. Other matters are set up by way of defense, but we do not consider it necessary to refer to them. We are satisfied from the proofs in the case that complainant’s claim is correct, and that the purchase by defendant from Cooley and obtaining a new certificate thereunder was done for the purpose of cheating and defrauding complainant. Defendant does not himself testify in any very satisfactory manner how he paid Cooley the three hundred dollars he says he did, while Cooley denies ever having received anything for such assignment. We do not consider it necessary to state all the reasons which lead us to this conclusion. There are various facts and circumstances all pointing to the same result.
Although we have carefully examined and considered the various objections urged by defendant why complainant should not have the relief sought, we have been unable to discover any sufficient legal or equitable ground to sustain all or any of the defenses raised.
The decree must be affirmed, with costs. The defendant will, however, be allowed ninety days’ additional time to satisfy the decree before sale.
The other Justices concurred. | [
28,
16,
22,
19,
2,
1,
27,
-1,
-5,
7,
5,
30,
63,
-3,
-21,
-36,
-1,
-15,
36,
-33,
-13,
-27,
-15,
-32,
51,
43,
-1,
9,
-58,
28,
28,
8,
-58,
8,
-25,
45,
29,
36,
-11,
-14,
-1,
-8,
29,
15,
30,
11,
-48,
-23,
40,
-27,
34,
-7,
37,
-2,
22,
-35,
-17,
-7,
8,
-9,
-13,
-25,
13,
-34,
14,
31,
25,
-48,
18,
-40,
7,
32,
8,
-4,
60,
21,
3,
-4,
22,
-15,
14,
9,
47,
-28,
-4,
-25,
39,
7,
20,
24,
6,
-14,
17,
19,
30,
31,
28,
11,
-4,
24,
36,
-34,
-17,
27,
-4,
-20,
-31,
-6,
-13,
46,
-14,
14,
33,
-42,
-24,
-9,
20,
-53,
-2,
-7,
30,
-22,
27,
-4,
-34,
-9,
-73,
28,
-18,
28,
0,
-31,
-51,
-23,
16,
-26,
-20,
-17,
-12,
-78,
-43,
8,
-34,
-55,
4,
25,
-47,
-3,
10,
-52,
-39,
-10,
4,
2,
-28,
-13,
54,
2,
12,
-97,
32,
-20,
26,
-25,
-8,
19,
-46,
-25,
-3,
16,
30,
-3,
-4,
-14,
-9,
-39,
30,
28,
0,
12,
-12,
1,
57,
-7,
23,
18,
2,
-25,
10,
5,
1,
-31,
14,
21,
-2,
12,
-46,
-11,
-12,
-28,
-10,
-17,
3,
-11,
44,
-17,
28,
-8,
-54,
44,
-21,
13,
5,
-58,
-43,
36,
-39,
0,
1,
-3,
76,
2,
-9,
43,
-14,
-56,
33,
27,
29,
-20,
4,
-7,
3,
-14,
-29,
-2,
6,
31,
-22,
-19,
-38,
-5,
-15,
-55,
-5,
41,
-1,
25,
-37,
63,
-30,
-34,
-41,
24,
-15,
0,
-11,
14,
-23,
-16,
-7,
38,
8,
32,
-6,
-42,
-9,
7,
-4,
74,
-2,
3,
3,
1,
-24,
-27,
-11,
-59,
-18,
0,
46,
-10,
46,
46,
37,
27,
-5,
43,
-48,
-16,
12,
8,
19,
-17,
14,
30,
22,
24,
22,
-5,
-63,
-19,
12,
-33,
-14,
17,
-12,
-57,
4,
14,
0,
24,
-32,
18,
27,
-28,
-40,
-40,
9,
-2,
20,
-17,
2,
-25,
45,
-4,
52,
-52,
19,
-18,
-4,
-28,
-3,
13,
-9,
10,
25,
-64,
-37,
-30,
37,
54,
37,
20,
23,
52,
-40,
25,
0,
-17,
-26,
-40,
-9,
15,
-20,
13,
-23,
5,
44,
7,
0,
87,
27,
-77,
20,
-11,
-43,
-8,
24,
-21,
23,
10,
-16,
-28,
-1,
18,
-38,
-21,
-17,
6,
2,
15,
-11,
0,
32,
-10,
-26,
-15,
-3,
-62,
-4,
19,
-32,
14,
20,
-94,
32,
-21,
-35,
-13,
55,
7,
31,
2,
-11,
9,
-26,
10,
3,
-14,
26,
-77,
5,
-26,
0,
-9,
21,
-31,
15,
8,
19,
-18,
-13,
-10,
10,
-9,
29,
45,
-49,
25,
-60,
-5,
6,
-27,
4,
-41,
-30,
-20,
-5,
12,
5,
36,
-18,
34,
-16,
7,
-30,
16,
29,
-3,
-38,
35,
-35,
14,
-14,
56,
47,
-75,
40,
-41,
24,
20,
53,
-5,
-35,
-23,
1,
1,
2,
32,
10,
21,
8,
-36,
-1,
-59,
-6,
-9,
10,
14,
16,
-4,
-9,
-44,
-26,
-37,
-41,
26,
-13,
34,
-16,
-12,
9,
-1,
-5,
-3,
-19,
-30,
28,
37,
-10,
17,
24,
1,
-7,
-4,
-2,
17,
-14,
30,
-4,
-23,
-21,
-2,
12,
73,
7,
-16,
-5,
67,
39,
-10,
-19,
-19,
28,
26,
49,
-21,
14,
-21,
5,
-27,
-23,
-6,
5,
20,
-1,
-14,
6,
-20,
-22,
24,
29,
38,
-72,
1,
5,
-39,
-12,
-4,
-4,
27,
67,
-17,
-69,
36,
19,
-68,
-31,
22,
-58,
-34,
-11,
-46,
50,
-12,
5,
-11,
-2,
12,
20,
-25,
42,
-8,
-6,
-42,
-63,
21,
-2,
39,
-78,
-35,
11,
-22,
-57,
49,
19,
25,
-4,
-13,
-18,
4,
-10,
-18,
5,
-42,
18,
41,
49,
-13,
-36,
-20,
-29,
-58,
26,
1,
-62,
55,
-4,
-38,
-8,
-2,
48,
20,
29,
0,
6,
10,
22,
-5,
12,
-40,
31,
-51,
38,
24,
-44,
17,
-59,
55,
-30,
-63,
-34,
29,
-43,
-8,
-40,
18,
-34,
10,
-17,
10,
-44,
-5,
10,
31,
-15,
25,
-3,
-68,
-15,
-8,
4,
33,
-32,
-18,
-7,
18,
14,
-6,
54,
-43,
8,
31,
21,
4,
60,
-24,
11,
-5,
-14,
-30,
23,
-25,
-20,
9,
19,
21,
4,
39,
27,
6,
-17,
-22,
-38,
46,
33,
6,
-10,
-8,
44,
-20,
-13,
0,
-11,
-10,
30,
-25,
48,
49,
16,
1,
-38,
38,
-33,
-27,
-4,
5,
-35,
4,
23,
16,
-2,
6,
-7,
11,
37,
18,
-34,
-4,
-5,
-34,
3,
-73,
42,
21,
17,
-1,
25,
9,
-40,
18,
2,
-6,
7,
49,
26,
-1,
18,
-43,
-2,
-25,
-39,
0,
10,
3,
18,
26,
9,
-6,
49,
-26,
22,
62,
11,
-10,
-47,
-8,
-18,
-1,
-11,
9,
-51,
-7,
-5,
13,
-41,
-24,
69,
-15,
23,
17,
-37,
23,
23,
29,
53,
4,
23,
-34,
15,
-9,
-49,
3,
-24,
-22,
-8,
-37,
25,
73,
-63,
34,
-1,
12,
-68,
-3,
5,
11,
-15,
-58,
-24,
-23,
-19,
23,
-33,
-17,
-6,
15,
-4,
12,
-18,
28,
-7,
-37,
0,
-2,
-1,
38,
-13,
40,
-8,
0,
25,
2,
-5,
54,
18,
1,
-72,
16,
16,
-28,
-11,
11,
60,
-10,
5,
-30,
-3,
6,
22,
2,
-17,
0,
19,
4,
2,
2,
5,
-24,
-52,
6,
0,
32,
-33,
-2,
37,
0,
54,
11,
23,
-19,
-27,
0,
37,
-26,
61,
26,
26,
49,
30,
60,
2,
6,
6,
53,
-1,
-29,
-4,
-6,
-5,
33,
-63,
22,
-14,
36,
25,
-15,
-7,
19,
-16,
5,
-35,
-25,
-30,
-18,
-9,
-17,
1,
15,
0,
11,
4,
-27,
-26,
19,
48,
-13,
25,
16,
37,
-20,
-42,
-43,
-63,
9,
15,
-50,
37,
20,
33,
-15,
-50,
-5,
-30,
-4,
29,
5,
1,
16,
-24,
-2,
-35,
20,
51,
15,
78,
-79,
-3,
22,
16,
6,
35,
36,
-52,
26,
14,
-44,
26,
45,
-61,
51,
-6,
11,
-92,
-50,
-22,
-17,
-19,
-15,
3,
17,
0,
-46,
11,
26,
36,
36,
3,
-86,
26,
5,
-26,
12,
11,
-13,
20,
0,
-15,
-22,
18,
-2,
-12,
44,
-6,
43,
66,
-19,
11,
11,
0,
57,
-6,
-21,
53,
-27,
-19,
15,
-16,
-71,
39,
-30,
-18,
-4,
-3,
-8,
57,
42,
82,
-22,
-44,
-18,
90,
48,
-22,
20,
39,
-9,
33,
-9,
32,
0,
-5,
53
] |
Campbell, J:
Plaintiff having commenced a suit in replevin in the circuit court for Kent county, defendant pleaded in abatement that he took the goods as deputy marshal under an execution issued out of the circuit court of the. United States for the western district of Michigan, in favor of James McLean and Henry H. Statesbury against Adolph Heyman.
To this plea a demurrer was put in, but overruled, and judgment entered that defendant was not guilty and that the property be returned to defendant. The form of this judgment is the same used when the merits have been tried, but this need not be considered.
It is not averred that this execution was issued on any judgment, or that any judgment against either Adolph or Sarah Heyman had been rendered. Neither is it averred that the property was levied on as belonging to Adolph Heyman. ' 6
Without discussing at length how far under the practice governing the procedure of the courts of the United States sitting within this state, any inquiry could be made in aid of the plaintiff which would come within the constitutional right of persons whose property has been taken by a plain trespass not to be deprived of due process of law for its recovery, we do not think any case is made by this plea.
While most of the decisions of the United States supreme court bearing upon the immunity of property held under one jurisdiction from seizure by another, have arisen under very different circumstances from the present, and while, though there are some dicta, there is no decision, so far as we know, which holds that the property of strangers to a final execution is brought by seizure under it within the exclusive control of the courts of the United States, we find no decision or dictum which would maintain any such doctrine in the absence of a judgment.
The whole question has been made to turn on the fact that a court had possession of the property because its juris diction had attached in a cause in which the process was issued. Although there may be no liability for trespass against an officer who honestly takes property under a process apparently valid in form, no one has ever imagined that such a seizure could affect the condition of the property for any purpose, if supported by no record or proceedings in court. And where property is taken which is not that of the execution debtor, the taking is necessarily tortious and is always a trespass.—Buck v. Colbath, 3 Wal., 334. It was held in that case that a seizure under a good writ .against the wrong person did not draw into the federal court the determination of title to the property against a stranger to the writ, and that the court could grant the officer no protection against the consequences of his own wrongful act. And it would be absurd to hold that where a writ never issued under any judgment or order of the court at all, the court could take any more notice of the right of property than if it had been seized without a writ.
A plea in abatement to the jurisdiction must always show another forum where the rights have already become subject to judicial authority.—Watson v. Jones, 13 Wal., 679.
It must also be certain according to the most rigid rules of precision.—Wales v. Jones, 1 Mich., 254; Belden v. Laing, 8 Mich. R., 500. The omission ¡here is neither formal nor technical, but substantial, and the plea fails to show any ground of abatement.
If the defendant should show a valid judgment upon a "trial on the merits, the other questions argued will come up for-decision, and may then be disposed of.
The judgment must be reversed, with costs, and the demurrer sustained, the defendant to answer over according to the usual practice.
The other Justices concurred. | [
1,
28,
-6,
-4,
-25,
12,
18,
-27,
-18,
42,
11,
-15,
-27,
33,
16,
-33,
-19,
2,
8,
37,
-39,
-41,
-48,
0,
19,
-38,
4,
-31,
0,
53,
0,
0,
-10,
47,
21,
38,
15,
-47,
53,
21,
-22,
15,
25,
-11,
-29,
9,
2,
-15,
1,
-67,
30,
-56,
13,
18,
16,
-11,
-17,
12,
-21,
12,
-2,
-18,
-36,
-26,
-11,
25,
-12,
-47,
-23,
-61,
14,
13,
16,
12,
32,
-12,
-1,
-36,
7,
-6,
-4,
-7,
-9,
-16,
28,
-7,
-4,
-1,
19,
-34,
2,
49,
-59,
-4,
13,
19,
10,
12,
10,
4,
-24,
-36,
-58,
57,
-10,
-23,
-8,
-25,
-4,
-1,
39,
11,
46,
-34,
-45,
-42,
-31,
-66,
-34,
-8,
35,
-47,
12,
4,
32,
7,
2,
-2,
40,
27,
29,
9,
-16,
-17,
-33,
11,
-36,
-4,
-10,
-12,
36,
-41,
21,
-44,
12,
-5,
72,
14,
-29,
-12,
-16,
50,
-42,
32,
16,
22,
48,
-24,
-35,
8,
1,
17,
-23,
-14,
15,
-30,
-6,
0,
-31,
-9,
-3,
15,
-12,
8,
74,
9,
-16,
-6,
-4,
-8,
-17,
12,
12,
-24,
-14,
-8,
-11,
2,
-24,
-15,
13,
8,
-18,
16,
-1,
48,
7,
-36,
-36,
15,
3,
-20,
18,
41,
-39,
-10,
111,
-35,
14,
5,
-50,
-2,
15,
-21,
-60,
3,
15,
10,
3,
19,
-41,
-12,
-1,
38,
34,
-43,
15,
40,
51,
-14,
2,
-22,
4,
-43,
1,
-32,
8,
-19,
-36,
-27,
-23,
-14,
-23,
-22,
54,
12,
3,
-17,
20,
4,
-2,
-12,
-31,
49,
-4,
-40,
20,
14,
-21,
-31,
-26,
45,
-14,
20,
-30,
-2,
28,
21,
-28,
6,
-24,
33,
7,
82,
18,
-32,
-20,
57,
11,
-55,
2,
-9,
30,
27,
-25,
-31,
1,
14,
24,
9,
-18,
-35,
-22,
23,
-19,
19,
22,
-18,
25,
18,
31,
12,
-1,
0,
25,
7,
32,
15,
-3,
-25,
12,
19,
-19,
-1,
9,
68,
2,
-30,
15,
27,
-28,
16,
-23,
-40,
-6,
37,
20,
-11,
-21,
-9,
36,
-13,
-1,
-33,
-38,
24,
22,
16,
8,
-25,
25,
-48,
2,
-35,
41,
9,
-17,
-2,
-39,
16,
8,
67,
-57,
1,
-6,
-31,
2,
-7,
-2,
9,
44,
-10,
26,
6,
9,
-47,
-46,
-55,
30,
-9,
39,
-18,
4,
-29,
-54,
58,
-16,
-22,
-39,
13,
-23,
-25,
10,
26,
15,
14,
-27,
-18,
-24,
14,
-35,
-2,
11,
16,
-65,
0,
-7,
-27,
14,
-27,
-30,
43,
-23,
30,
-23,
-47,
-47,
29,
-3,
13,
12,
6,
36,
-8,
0,
30,
-36,
7,
8,
7,
43,
-3,
30,
-53,
-4,
-18,
-15,
23,
-35,
25,
16,
-18,
13,
-13,
-38,
14,
-12,
-28,
-16,
6,
-39,
-4,
-25,
33,
-17,
-12,
-12,
-8,
41,
21,
17,
2,
-42,
-40,
-38,
52,
43,
-36,
-6,
-15,
38,
-38,
-5,
23,
2,
13,
-2,
-36,
26,
13,
-9,
39,
-11,
19,
-19,
13,
-3,
20,
-19,
15,
-25,
11,
42,
13,
-25,
13,
-66,
-12,
6,
8,
-45,
39,
0,
-20,
-1,
14,
-31,
27,
-2,
9,
-8,
-2,
21,
-20,
46,
34,
41,
-42,
-9,
43,
2,
6,
0,
14,
-3,
-16,
38,
-15,
-7,
-12,
29,
-72,
-32,
27,
-31,
12,
11,
-58,
29,
-29,
-2,
-9,
-22,
10,
14,
21,
29,
-10,
32,
-44,
-12,
-13,
35,
3,
-45,
27,
-12,
-42,
-9,
-50,
-7,
32,
-3,
21,
9,
-24,
-31,
-31,
-5,
11,
1,
-21,
47,
19,
48,
-10,
29,
20,
-6,
10,
-2,
11,
36,
-18,
-44,
-11,
7,
20,
-2,
-34,
-8,
-8,
-12,
-45,
37,
0,
-14,
44,
39,
5,
-12,
23,
12,
-32,
-35,
4,
-29,
9,
52,
27,
-31,
-2,
-11,
29,
27,
2,
39,
-3,
0,
-16,
21,
-18,
-41,
-20,
-25,
51,
-24,
-10,
22,
20,
-11,
-52,
-33,
31,
-9,
-65,
6,
-4,
-4,
-39,
19,
-12,
-15,
45,
-54,
28,
-4,
0,
-20,
-8,
-15,
31,
3,
18,
-15,
-19,
-27,
-8,
12,
-8,
-13,
37,
-22,
2,
21,
1,
35,
9,
19,
-23,
6,
-11,
-49,
23,
-10,
31,
2,
-17,
10,
19,
19,
-6,
26,
-18,
-9,
-34,
-26,
30,
48,
10,
-37,
-5,
6,
19,
6,
-17,
-17,
19,
33,
27,
-26,
2,
9,
20,
2,
8,
35,
19,
8,
27,
12,
-40,
-1,
55,
-10,
20,
-6,
-6,
11,
-28,
-43,
-7,
-1,
6,
-11,
16,
1,
-22,
9,
6,
0,
-49,
45,
-11,
44,
0,
11,
14,
-35,
-11,
75,
-5,
3,
21,
-8,
33,
2,
-36,
-7,
21,
-20,
11,
11,
9,
-17,
-10,
44,
28,
7,
41,
8,
5,
37,
34,
-36,
-18,
0,
-37,
-37,
-28,
27,
8,
-27,
7,
-13,
-1,
-30,
-68,
18,
11,
-42,
-20,
-18,
-20,
12,
21,
-29,
0,
18,
-30,
3,
-48,
-38,
24,
16,
-15,
-21,
13,
2,
-2,
8,
11,
-32,
25,
-21,
-15,
37,
-28,
-26,
17,
-30,
1,
14,
45,
14,
17,
8,
56,
-19,
40,
47,
4,
-11,
-46,
-35,
28,
-13,
16,
-5,
-5,
-7,
-6,
2,
4,
-21,
37,
-2,
-35,
-25,
45,
2,
-41,
-38,
33,
26,
8,
4,
-1,
46,
-7,
3,
-57,
34,
10,
6,
18,
-43,
2,
-18,
3,
-3,
6,
-44,
23,
-31,
-45,
26,
-5,
1,
7,
7,
0,
-11,
-40,
37,
16,
-26,
24,
24,
0,
15,
45,
-26,
29,
-23,
35,
22,
10,
14,
22,
5,
-32,
-21,
70,
-39,
18,
23,
-55,
3,
0,
10,
16,
-33,
58,
-10,
43,
4,
-30,
60,
-1,
-37,
15,
18,
21,
28,
9,
14,
47,
-2,
3,
-19,
-38,
-40,
-39,
19,
38,
-27,
-22,
37,
-13,
-5,
18,
16,
22,
-30,
11,
37,
34,
-9,
32,
-71,
6,
9,
-20,
6,
-52,
27,
-48,
-2,
-5,
14,
-54,
-11,
5,
20,
25,
-1,
-30,
-4,
16,
-38,
-2,
46,
18,
-41,
19,
-2,
-7,
-9,
-10,
-1,
-19,
1,
-26,
-2,
52,
8,
-2,
-14,
-1,
-35,
-25,
-25,
-50,
36,
-13,
16,
-5,
6,
45,
21,
5,
-69,
23,
44,
-23,
35,
7,
-62,
-18,
22,
23,
-2,
44,
-10,
39,
-42,
4,
-11,
-7,
25,
-25,
39,
0,
30,
-38,
30,
61,
-49,
-17,
-55,
-38,
32,
67,
-18,
13,
-25,
25,
19,
5,
4,
11,
28,
23
] |
Campbell, J:
The bill in this case was filed to restrain defendant from obstructing a ditch through his lands adjoining the city of Coldwater, which he is alleged to have attempted in violation 'of an agreement whereby a right was assured to the city to use it for an outlet of drainage.
It appears that in 1862, or thereabouts, a county ditch ivas laid out through defendant’s. lands and lands north of them to a branch of Coldwater river. The city of Cold-water, lying immediately south of Tucker, had by drainage, partly natural and partly artificial, turned the surface water of a considerable tract into the. county ditch. A lawsuit having grown out of this action, a compromise was effected; and on the 9th of March, 1867, an agreement in writing was made, which, among other things, provided that Tucker would allow the ditch across his premises to be enlarged so as to carry off the water from the city ditch, upon condition that the city should enlarge and straighten bis ditch and the continuation of it northerly, so as to provide for carrying off all water without overflowing or saturating, his land. 'The city was to keep the ditch in repair and keep up a good bridge across it on his premises, and the cross-ditches were not to be injured or obstructed. All damages were to be arbitrated.
The active work to be done was all to be done by the -city, as well in maintaining and repairing as in enlarging the ditch. The city could at any time terminate its obli..gations by shutting off the flow from its own territory.
It is not denied that Tucker has obstructed the flow of the water. His defense is: First, That the city is in default ; and second, that it had no authority to make the 'contract and cannot, therefore, enforce it or be compelled to 'Carry it out.
The charter of the city, — which was granted in 1861,— contains no express authority to execute drainage works beyond the city limits. It does contain general authority over drainage. It is not insisted that any right would have existed to turn the drainage in question upon Tucker’s land-, if there had been no ditch across it, or in such case to dig such a ditch without his consent. . The case shows that the ditch existing there was dug as a county ditch after the city was incorporated, and was not designed, and was not adequate, in its original shape, to serve the purpose provided for in the contract.
At the time when-the county ditch was dug, there was no statute in force providing for any combined action between the drain commissioners and the city authorities, or .authorizing county ditches to extend into cities. In February, 1867, an amendatory statute was passed, giving commissioners authority, with the consent of the corporate council or trustees, to extend ditches into cities and villages and assess the expense as in other cases. — L. 1867, ¶¶. 3, 4. How far this statute operated in leading the parties; to a settlement immediately after its passage, we are not informed. But they seem to have preferred arrangements of their own to leaving the matter to be managed by the commissioners.
By this contract the city undertook to do certain work outside of its own limits, where its power to secure the result bargained for depended on its power to make a private contract with outside landowners, and not upon any statutory or chartered authority. The ditch itself was laid out under the supervision of the drain commissioners, and the right to enlarge it without the consent of the landowners, could only be obtained by statutory proceedings under their authority. And whether enlarged or not, the w'orlc was not under city jurisdiction. If the contract was valid, the city acted, so far as this work was concerned, in the same right as a private person, contracting to do work on the land of another.
The general doctrine is clear that a municipal corpora- ' 'tion cannot usually exercise its powers beyond its own limits. If it has in any case authority to do so, the authority must be derived from some statute which expressly or impliedly permits it. There are cases where considerations of public policy have induced the legislature to grant such power. The commonest instances are, where a supply of water can only be obtained from a distance. Where the city erects its own works or lays its own pipes for such a purpose, it has usually been found necessary, in order to furnish adequate safeguards for the preservation of the property, to pass special statutes to cover the case. There would be serious difficulties attending the management of expensive public works situated in one town or city, and owned by another, unless expressly provided for. If a city cannot regulate ■ and protect its public works against injuries and interference, they are liable to serious dangers. The noted case of Bailey v. Mayor, etc., of New York, 3 Hill, 531, and 2 Denio, 433, illustrates some of the complications arising from the necessity of going beyond the limits of a city for water. In the absence of any sufficient legislation to overcome the ■ difficulty, the power to make provision for outside work, if existing at all, can only be exercised by resorting to contracts to obtain rights and privileges which, within the city, ■can generally be secured, if necessary, by. proceedings in invitum'. It would still be an important question, whether, ■ even by contract, a city can build or possess public works beyond its limits, without plain permission.
In the present case, for example, if there can be any implication that sewerage may be provided beyond the city, it must arise from the existence of a state of facts which renders it either actually necessary, or at least manifestly desirable. It is easy to see that the practical necessity of removing sewerage beyond city limits must very often arise. Drainage, whether of surface water or of impurities, can ..seldom be effectual unless connected with running water which will remove it beyond the inhabited limits. Public health and convenience require this resort. A power to “ construct, repair, and preserve sewers, drains,” etc., would, be useless unless they could be connected with some safe outlet. In the present case, it appears that a branch of the Coldwater river is a city boundary. But it also appears from the charter, that the pollution of that stream was designed to be prevented. One of the special powers of the city is “to provide for the clearing the Coldwater river, and races connected therewith, of all drift-wood, filth, or other nuisances, and to prohibit and prevent the depositing therein of all filthy and other matter tending to render the water thereof impure, unwholesome, or offensive.” — § 10. This makes it the duty of the city to find drainage, if possible, where it will not produce these evils, and there seems to be no reason why an outlet should not be sought elsewhere, provided the charter furnishes the means of obtaining one, expressly or by fair implication.
If it can only be obtained by building a sewer or ditch beyond the city, the charter seems to be defective, in making no express provision for such works. But if by leading a sewer or ditch to the city limits it can be connected with an outlet beyond, there would seem to be no reason for preventing such connection. Drainage is a public necessity.
In the present case, such an outlet was supposed to exist, but it was not large enough, and it could not be used without permission. The contract in dispute was made to secure the enlargement of the ditch, and the right to connect it with the city ditch, already existing up to the city boundary, which was practically useless without this outlet.
While there are very serious difficulties in the way of controlling and protecting such works outside of the city, yet if the drainage is to find an outlet beyond the city limits, it must be somewhat discretionary with the city to make such arrangements as might he made by natural persons for similar purposes. We can see no legal objection to an undertaking by the city to do this work by its own servants or contractors, instead of employing Tucker to do it. It is not only usual, but it is frequently obligatory to let city jobs to contractors on bids, and it was not unreasonable to retain control, so far as Tucker was willing to permit it, so as to give the city a choice of means as occasion should arise for doing work or making repairs.
TVe think, therefore, that the work in question cannot be regarded as repugnant or foreign to the purposes of the charter, and that the contract was not beyond the corporate powers.
The question next arises, whether complainants have lost their rights under the contract.
The defense on this point rests on the claim that the ditch was not properly constructed, and was not large enough to carry off all the water. It is claimed that the lands of Tucker have been overflowed and damaged, and that the ditch has produced saturation of the soil to an amount which has led to mischief. There is also a claim that the bridge over the ditch has not been kept in order.
The evidence shows that the ditch in question passes through a part of Tucker’s land somewhat higher than a portion lying east of it, and that this land has been at times submerged, and has continued so long enough to interfere with its profitable culture. The testimony, however, is conflicting upon both cause and effect, and does not lead to entirely satisfactory results on either side. The damage from the condition of the bridge is of very small account in any event.
Of course it cannot be supposed that the object of the contract with Tucker was to put him in any better condition than he would have been had the old ditch remained as it was, and the extra city fiowage been excluded. Neither can it be held requisite, for the same reason, that the new or enlarged ditch should be made adequate for extraordinary and unexpected floods.
There is nothing to show that the enlargement when made was not entirely satisfactory to Tucker, nor that it was not really adequate so far as any judgment or experi ence could then determine. It seems to have been made amicably and in good faith. "We think that the proof does not sustain the claim that the water does not flow freely beyond Tucker’s land to the north. The impression made on our minds by the whole evidence is, that the deficiency1 in drainage of Tucker’s surface soil arises chiefly from his failure to dig a sufficient number of lateral drains to relievethe land. It is claimed, but we do not think it is very well established, that these drains were obstructed by the fault of the city. On the contrary, we think they appear to have worked as well as their construction was likely to make them. No human foresight can prevent the effects of a cold and snowy winter on an open ditch, or provide immediate way for the waters gathering after an unusual and violent storm. Sluices large enough for every such emergency would be extravagant in cost and wasteful in the appropriation of land.
We cannot avoid the conclusion that the city in digging out and maintaining this ditch has substantially complied with its obligation. For any mischief caused by neglect in repairing deficiencies, the contract provides that there shall be a settlement by arbitration. This, we think, indicates a design that such neglect shall not terminate the contract, unless the failure is so great as to amount to a practical abandonment of the contract obligation. This agreement was made to subserve purposes of public health and convenience, and not on private grounds. Any obstruction of the city ditch must work irreparable mischief, reaching far beyond the inconvenience of private landholders. Such mischief as Tucker is likely to feel from the neglect of the city can, for the most part, if not entirely, be obviated at . small expense. The city could probably, had it seen fit, have secured the same end, with no more expense to its citizens, and with no greater convenience to Tucker, by calling in the aid of the drain commissioners. He has no right to take the law into his own hands, and abrogate a contract designed to be permanent, merely because mischiefs may have arisen which the agreement expressly recognizes ■as possible, and against losses from which it provides a special form of redress.
We think the court below was right in rendering a decree enjoining the defendant from, interfering with the ditch. The decree must be affirmed, with costs.
The other Justices concurred. | [
23,
20,
25,
-16,
-24,
20,
0,
20,
8,
95,
28,
6,
50,
28,
30,
-7,
-54,
-41,
1,
45,
-63,
-18,
-6,
-26,
22,
58,
24,
-75,
-45,
11,
35,
0,
-72,
51,
-17,
18,
19,
39,
46,
-41,
-26,
-9,
-27,
-33,
54,
21,
16,
25,
-16,
-21,
-23,
-13,
-11,
-8,
-40,
-20,
9,
0,
-41,
14,
-44,
-4,
10,
34,
40,
11,
-45,
41,
52,
-17,
-25,
23,
-11,
-74,
93,
1,
29,
-47,
-23,
-15,
-84,
94,
16,
-6,
14,
18,
-77,
-11,
48,
8,
15,
1,
-26,
0,
-24,
19,
0,
0,
-39,
-3,
2,
-9,
10,
42,
-3,
-26,
-72,
-2,
26,
-6,
-28,
4,
22,
1,
-56,
-80,
39,
-29,
-7,
-18,
12,
41,
38,
-31,
-58,
-17,
-55,
-48,
-11,
37,
-4,
-62,
14,
-9,
56,
43,
-22,
-12,
-11,
34,
17,
-12,
-23,
-24,
-4,
40,
27,
17,
28,
-20,
-6,
41,
30,
-57,
-3,
3,
32,
-4,
-13,
24,
48,
16,
33,
-81,
-54,
16,
11,
-8,
-16,
62,
20,
-1,
-22,
2,
53,
-52,
-32,
-23,
-58,
-32,
27,
-24,
-10,
8,
25,
-9,
8,
2,
-32,
25,
19,
-38,
-12,
-27,
-14,
18,
8,
-35,
-17,
-5,
-2,
7,
-42,
-15,
-7,
12,
7,
42,
-4,
21,
15,
-24,
-7,
1,
-26,
12,
28,
-53,
3,
-25,
21,
1,
54,
25,
-53,
-15,
3,
17,
16,
-24,
11,
-43,
-23,
4,
-25,
49,
-8,
21,
-6,
-10,
-18,
54,
-74,
-16,
1,
-30,
-36,
-1,
-29,
27,
-60,
-82,
-34,
61,
-21,
3,
-17,
-14,
-46,
11,
56,
45,
-2,
-28,
18,
-29,
-47,
11,
-2,
-9,
-16,
13,
20,
6,
-24,
-4,
-8,
-3,
-74,
22,
0,
-2,
-20,
-23,
7,
5,
-53,
34,
20,
30,
18,
19,
-61,
1,
7,
43,
25,
-19,
7,
-16,
29,
-60,
37,
26,
1,
-13,
-36,
-4,
-27,
16,
21,
52,
-81,
26,
4,
10,
47,
4,
19,
-22,
14,
5,
19,
-9,
-78,
-19,
46,
27,
-13,
28,
30,
-21,
-38,
6,
13,
-40,
-17,
8,
-21,
8,
7,
23,
7,
-11,
36,
15,
8,
-30,
-8,
5,
-12,
39,
-18,
20,
-9,
-21,
-46,
-6,
-11,
-30,
1,
-19,
-19,
-37,
44,
-57,
24,
3,
36,
25,
-25,
21,
-31,
-4,
23,
14,
16,
41,
11,
-50,
0,
-26,
31,
-6,
55,
-21,
-10,
-55,
-14,
21,
15,
-18,
-60,
25,
25,
18,
18,
12,
-18,
-36,
34,
3,
-11,
19,
-14,
-19,
-27,
26,
5,
12,
29,
-28,
72,
-42,
-60,
40,
-17,
0,
44,
23,
-19,
16,
-19,
-46,
5,
-25,
70,
8,
-11,
-39,
-16,
21,
23,
-32,
-22,
-5,
-37,
-16,
-40,
7,
-33,
29,
36,
-59,
-79,
2,
19,
40,
-14,
-25,
24,
67,
-26,
32,
-14,
45,
37,
-10,
61,
-9,
-42,
16,
-21,
-38,
-30,
-16,
-53,
6,
-39,
50,
21,
18,
61,
-30,
16,
-15,
27,
21,
-9,
-45,
36,
28,
19,
22,
-9,
-58,
19,
38,
26,
14,
37,
57,
-33,
-68,
25,
38,
6,
4,
-2,
43,
5,
33,
-39,
-33,
-24,
17,
11,
58,
40,
109,
13,
-50,
18,
-17,
-61,
4,
0,
29,
-8,
-40,
-6,
-25,
-63,
-30,
-4,
-18,
-24,
-52,
18,
21,
29,
-1,
-55,
-74,
-18,
-26,
-91,
17,
26,
-11,
0,
15,
43,
3,
-69,
-5,
-28,
-40,
-14,
-27,
-72,
-3,
-2,
-12,
-15,
44,
-107,
-65,
23,
34,
-23,
-1,
-10,
-48,
3,
35,
51,
12,
27,
7,
41,
54,
35,
-19,
8,
-22,
-49,
14,
9,
57,
-37,
-21,
-11,
-41,
18,
7,
-30,
-16,
-32,
-14,
-31,
34,
-51,
-14,
10,
49,
56,
36,
-10,
44,
18,
-18,
10,
25,
16,
31,
-52,
-43,
-16,
34,
-8,
-43,
9,
22,
5,
5,
29,
0,
26,
-43,
-19,
-5,
12,
34,
-13,
-51,
-15,
50,
-15,
17,
-41,
-42,
-20,
17,
8,
7,
-14,
46,
6,
50,
0,
-21,
-35,
-51,
-11,
21,
-1,
9,
-17,
28,
-29,
24,
32,
33,
17,
-18,
-26,
-12,
27,
-39,
41,
-31,
5,
9,
-22,
10,
70,
15,
-24,
-27,
28,
-7,
24,
12,
14,
-61,
15,
28,
10,
21,
36,
8,
23,
-33,
33,
-14,
68,
4,
3,
2,
58,
0,
28,
-4,
-2,
6,
-18,
38,
8,
9,
19,
-26,
7,
20,
-8,
-13,
-2,
-5,
10,
23,
22,
5,
42,
45,
-23,
22,
4,
12,
-28,
8,
38,
8,
-61,
-3,
3,
-1,
-34,
-23,
-19,
15,
-35,
39,
8,
18,
40,
45,
-40,
0,
25,
-78,
31,
9,
-28,
21,
-13,
-18,
20,
13,
-34,
0,
19,
-21,
-9,
15,
19,
-3,
-2,
15,
-54,
-16,
27,
-28,
0,
33,
7,
-12,
-9,
-7,
12,
0,
1,
20,
-8,
-52,
6,
5,
-23,
-2,
25,
-6,
-19,
-17,
-19,
-28,
-15,
-32,
23,
-29,
21,
-17,
-23,
-4,
-5,
31,
-67,
27,
-36,
-8,
-9,
7,
-10,
13,
19,
41,
11,
-29,
2,
-7,
-18,
15,
-33,
2,
-16,
1,
-4,
-8,
-26,
29,
-45,
3,
17,
33,
-6,
2,
20,
39,
23,
-31,
-25,
-15,
44,
-38,
-23,
38,
53,
-15,
17,
19,
13,
-16,
-71,
7,
44,
-5,
-19,
-8,
-45,
3,
-30,
17,
-23,
14,
12,
-2,
27,
-5,
-17,
24,
0,
35,
38,
7,
16,
-9,
-15,
9,
5,
-7,
-8,
44,
-12,
4,
-21,
-28,
-5,
52,
-24,
6,
3,
-19,
13,
35,
-9,
19,
-22,
53,
-26,
-1,
42,
43,
26,
21,
-6,
12,
-6,
25,
2,
23,
8,
-34,
-38,
5,
0,
33,
-61,
-61,
21,
-24,
57,
34,
4,
-26,
-6,
-12,
-9,
-33,
-82,
7,
4,
76,
39,
3,
18,
16,
-97,
30,
17,
54,
-14,
43,
-64,
-26,
7,
7,
-38,
-19,
41,
-27,
6,
-17,
-3,
-40,
5,
18,
-23,
-31,
-2,
-74,
16,
20,
-7,
38,
23,
10,
-4,
9,
-60,
58,
2,
-11,
15,
0,
9,
-18,
-3,
48,
65,
29,
-26,
-15,
-19,
-7,
-24,
15,
12,
-4,
-22,
18,
30,
-52,
19,
-15,
-6,
33,
15,
36,
8,
-16,
-39,
23,
14,
1,
25,
8,
0,
-30,
-37,
8,
-41,
-2,
54,
-1,
-60,
62,
26,
17,
45,
0,
27,
-36,
-40,
-46,
8,
11,
-12,
61,
-17,
56,
8,
27,
46,
-40,
-54,
48
] |
Memorandum Opinion. Defendant seeks leave to appeal from the Court of Appeals judgment affirming his bench trial convictions of carjacking, MCL 750.529a, and felonious assault, MCL 750.82, as well as the scoring of variables under the sentencing guidelines as a second-offense habitual offender, MCL 769.10. We affirm.
However, we take this opportunity to note that the practice that appears to have been utilized by the trial court in this case, commonly referred to as a “waiver break,” is unethical and a ground for referral to the Judicial Tenure Commission in the future.
We have previously noted the impropriety of this practice. In a statement denying leave to appeal on November 2, 1999, this Court wrote:
In this case, the trial court dismissed the felony-firearm charge while convicting the defendant of malicious destruction, of property, which destruction was the product of a firearm discharge. Thus, the verdict rendered was patently inconsistent. Moreover, the trial court gave no explanation for its dismissal of the felony-firearm charge. The Supreme Court previously held that a trial judge sitting as the trier of fact may not enter an inconsistent verdict. While juries are not held to rules of logic, or required to explain their decisions, a judge sitting without a jury is not afforded the same lenience. People v Vaughn, 409 Mich 463 (1980). Moreover, because of double jeopardy principles, the error of the trial court in dismissing a claim and rendering an inconsistent verdict cannot be corrected on appeal. [People v Walker, 461 Mich 908 (1999).]
The present case suggests that, despite our statement in Walker, the “waiver break” practice continues to be employed by at least some criminal trial courts in Michigan.
Defendant was charged with six counts arising from a single occurrence: carjacking, assault with intent to murder, armed robbery, intentionally filing a gun from a vehicle, possession of a firearm during the commission of a felony, and being a felon in possession of a firearm. The trial court found defendant guilty of carjacking and felonious assault as a lesser included offense of the charged assault with intent to murder. Defendant was acquitted of the remaining charges. Regarding the felonious assault conviction, the trial court stated:
The Court notes that as a lesser [included offense] of assault with intent to murder, it has been proven beyond a reasonable doubt that defendant Ellis had this gun, and he fired this gun either to injure or to make the complainants fearful of an injury; that is, a battery. And that he had the ability to do this. And that he did this with a gun.
This clear statement of the factual findings is plainly inconsistent with acquittals on the charges of felony-firearm and felon in possession of a firearm and cannot be rationally reconciled.
Accordingly, we are left with the impression that the trial court afforded defendant a “waiver break” for waiving his right to a jury. That is, in exchange for waiving his right to a jury trial, defendant was rewarded with acquittals of the firearm charges, although those acquittals are clearly inconsistent with the factual findings of the trial court.
As we noted in our unanimous statement in Walker, this judicial practice is an improper one. A decision to drop or plea bargain charges is one that lies with one or both of the parties, not the court. Regardless of any benefit that may be realized by the trial court because of a party’s strategic decision, such as the expedited docket management resulting from a defendant waiving his right to a jury, it is not within the power of the judicial branch to dismiss charges or acquit a defendant on charges that are supported by the case presented by the prosecutor. See Const 1963, art 3, § 2 (establishing the separation of powers).
Further, a trial court’s decision of not guilty, whether proper or not, is constitutionally protected by double jeopardy principles. US Const, Am V; Const 1963, art 1, § 15. As a result, a trial judge that rewards a defendant for waiving a jury trial by “finding” him not guilty of a charge for which an acquittal is inconsistent with the court’s factual findings cannot be corrected on appeal.
Despite the inability of the appellate process to correct the effects of an improper “waiver break” in the form of inconsistent verdicts, we reiterate that this judicial practice violates the law and a trial judge’s ethical obligations.
Corrigan, C.J., and Cavanagh, Weaver, Kelly, Taylor, Young, and Markman, JJ., concurred.
See, e.g., Michigan Code of Judicial Conduct, Canon 1 (“A judge should always be aware that the judicial system is for the benefit of the litigant and the public, not the judiciary.”), Canon 2B (“A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary.”), and Canon 3A(1) (“A judge should be faithful to the law and maintain professional competence in it.”). | [
33,
64,
21,
40,
-39,
-30,
-10,
-8,
-34,
48,
15,
7,
-20,
-65,
2,
-18,
53,
12,
7,
3,
9,
4,
35,
10,
-1,
-68,
19,
25,
6,
-23,
17,
-19,
16,
-39,
-12,
2,
53,
12,
6,
48,
-5,
5,
-34,
18,
-13,
-29,
20,
41,
33,
6,
21,
10,
-43,
-12,
-42,
-2,
26,
14,
48,
31,
13,
10,
-28,
21,
5,
-1,
-25,
19,
-27,
-52,
-14,
-9,
-29,
45,
-49,
0,
-2,
45,
30,
16,
25,
-1,
8,
-31,
5,
-18,
36,
-20,
15,
-19,
-73,
19,
-58,
-48,
15,
2,
36,
-73,
63,
-43,
-51,
28,
28,
-22,
-33,
8,
16,
-16,
27,
28,
15,
30,
-3,
39,
-19,
-20,
-24,
31,
-18,
15,
8,
0,
1,
51,
67,
-28,
14,
4,
21,
14,
-6,
5,
19,
-1,
-20,
12,
50,
25,
-21,
13,
0,
51,
48,
17,
16,
5,
40,
18,
3,
15,
31,
9,
-25,
44,
34,
-35,
-13,
9,
-14,
34,
-7,
6,
1,
36,
7,
-37,
-20,
25,
21,
-29,
31,
12,
55,
0,
4,
1,
-51,
12,
17,
-12,
-56,
58,
12,
-12,
-30,
-31,
-11,
-13,
-35,
-80,
-10,
1,
-19,
-9,
34,
16,
11,
1,
-6,
7,
-45,
-29,
30,
-8,
-33,
-53,
19,
-6,
-12,
31,
-27,
54,
-15,
-76,
-5,
16,
26,
3,
-19,
35,
13,
-11,
20,
-19,
-20,
-46,
-17,
6,
6,
-4,
26,
0,
2,
40,
5,
-29,
4,
-24,
45,
-6,
9,
16,
2,
-19,
28,
-12,
-56,
-10,
16,
-29,
44,
19,
-1,
-37,
-55,
-29,
37,
-56,
-15,
39,
-76,
36,
-18,
-19,
-35,
64,
-18,
10,
-22,
9,
-3,
-20,
-4,
-39,
40,
-22,
-5,
48,
33,
-12,
-5,
9,
41,
-21,
-65,
26,
-25,
-14,
50,
-5,
5,
-40,
18,
57,
23,
-41,
15,
33,
-26,
31,
51,
1,
9,
1,
-1,
-27,
7,
-32,
-49,
0,
7,
-17,
14,
1,
24,
9,
-18,
-37,
43,
-58,
-30,
13,
-17,
-16,
22,
-17,
9,
-63,
-29,
-21,
13,
20,
-9,
55,
-1,
30,
-24,
-34,
-5,
39,
11,
-8,
-13,
3,
11,
-3,
-43,
-19,
-42,
-20,
-20,
-17,
-11,
-11,
-4,
-44,
12,
-57,
8,
-17,
51,
3,
-40,
21,
70,
49,
-14,
0,
-25,
3,
-36,
-49,
-4,
8,
7,
-63,
15,
-18,
-36,
24,
-38,
-4,
0,
-47,
7,
0,
-14,
-24,
4,
15,
-64,
-39,
-15,
-19,
-21,
-21,
0,
4,
15,
-14,
-15,
9,
14,
16,
-10,
2,
9,
20,
-64,
-33,
-26,
11,
76,
84,
32,
7,
0,
0,
-9,
-62,
28,
-50,
0,
-54,
10,
15,
8,
-27,
-2,
-15,
28,
24,
0,
-65,
-8,
36,
-13,
-67,
5,
19,
-19,
-43,
-32,
-35,
17,
-10,
0,
34,
-5,
-26,
46,
-23,
-7,
-19,
-45,
2,
7,
9,
-27,
-32,
2,
-33,
-59,
46,
21,
-40,
-79,
24,
43,
-33,
15,
-1,
-7,
28,
-12,
-28,
-6,
52,
-12,
14,
-15,
-22,
-14,
-14,
-57,
-4,
-39,
-1,
26,
-20,
3,
13,
13,
29,
-58,
-1,
-25,
-4,
-16,
46,
-30,
-7,
21,
-17,
45,
-13,
2,
-58,
48,
8,
-7,
63,
-49,
43,
-32,
4,
-21,
-12,
36,
13,
-24,
6,
28,
-18,
-22,
-12,
-33,
-22,
-54,
15,
21,
20,
37,
3,
19,
-1,
19,
-46,
17,
2,
33,
22,
-7,
1,
6,
16,
23,
-42,
69,
18,
15,
14,
-32,
-42,
14,
1,
-6,
24,
36,
-32,
-2,
-29,
54,
32,
-4,
6,
-10,
-24,
51,
-1,
36,
25,
-12,
-33,
-16,
50,
56,
10,
-47,
-14,
13,
40,
-27,
-26,
-10,
-34,
26,
-15,
6,
-47,
-19,
-41,
12,
-19,
28,
14,
-7,
-16,
-12,
48,
14,
55,
-50,
48,
44,
-34,
-10,
16,
9,
28,
20,
-28,
-20,
-6,
-43,
-26,
10,
0,
-28,
22,
0,
-23,
-18,
-22,
11,
-32,
23,
27,
19,
-61,
-40,
59,
-9,
-52,
2,
8,
34,
33,
-64,
24,
-42,
72,
25,
-23,
5,
-34,
-34,
25,
-16,
-60,
-20,
51,
14,
-30,
64,
3,
-4,
13,
17,
-25,
0,
46,
-59,
24,
-1,
9,
-33,
-22,
4,
27,
24,
10,
45,
24,
0,
40,
17,
-3,
-10,
13,
-19,
-45,
-25,
5,
-2,
31,
-29,
25,
-6,
24,
-18,
40,
34,
-18,
13,
-9,
9,
55,
-45,
-34,
11,
35,
-9,
6,
-25,
12,
0,
3,
54,
38,
-63,
73,
-16,
11,
7,
-1,
-33,
-28,
-81,
-16,
14,
13,
11,
17,
21,
44,
29,
-3,
45,
-33,
7,
5,
-10,
-11,
13,
15,
-2,
-23,
-19,
28,
5,
29,
19,
-7,
-34,
-6,
-7,
-13,
20,
-59,
26,
-20,
25,
50,
-48,
20,
29,
-21,
-52,
15,
-24,
35,
17,
-2,
-32,
1,
-5,
-1,
81,
22,
-31,
-26,
-5,
7,
-3,
11,
-37,
20,
-26,
-42,
-4,
-5,
-54,
-10,
-8,
-8,
-65,
-22,
-44,
7,
6,
-6,
-7,
67,
46,
-23,
30,
2,
-10,
15,
-7,
31,
28,
6,
-4,
-30,
52,
-12,
45,
-45,
12,
1,
-17,
18,
22,
0,
10,
-14,
1,
4,
83,
42,
-28,
-65,
1,
-9,
7,
-7,
1,
28,
3,
-22,
38,
23,
-20,
-11,
47,
8,
24,
-9,
49,
-37,
6,
-15,
24,
19,
27,
-3,
5,
27,
-3,
-34,
-12,
-11,
13,
-43,
-43,
27,
-7,
-14,
-23,
20,
-25,
-12,
-49,
12,
35,
11,
13,
28,
-10,
-9,
13,
31,
-43,
17,
3,
-33,
-42,
0,
-11,
-48,
46,
6,
46,
-30,
-46,
-31,
-64,
-8,
0,
28,
-11,
6,
-20,
-14,
-32,
6,
25,
-16,
91,
2,
8,
-18,
30,
4,
11,
10,
0,
10,
-54,
12,
20,
32,
39,
0,
-77,
-18,
36,
-10,
-20,
23,
20,
-20,
18,
-3,
-26,
-34,
5,
37,
-10,
-28,
-5,
-45,
-7,
-17,
3,
-67,
13,
-24,
-64,
21,
-19,
13,
-21,
11,
14,
11,
-59,
27,
-3,
-2,
11,
30,
38,
-9,
-9,
56,
8,
17,
-31,
-8,
22,
-2,
48,
-6,
-32,
-41,
-24,
41,
37,
-55,
-9,
-13,
39,
31,
14,
37,
10,
-24,
-10,
-17,
-44,
-43,
20,
-19,
15,
23,
-64,
21,
-37,
-26,
45,
-14,
-13,
21,
0,
-17,
-10,
15,
17,
8,
19,
-25,
-17,
15,
-2,
3,
-27,
29,
10,
19,
-2,
-22,
-6,
26,
9,
-41,
-30,
42,
-20,
64,
-8,
17
] |
Montgomery, C. J.
This is an application for a mandamus to require the respondent board to deliver the assessment rolls to relator, to enable the board to add to the rolls assessments which have been omitted therefrom, and to amend certain assessments made by the local assessors, pursuant to the provisions of Act No. 154, Pub. Acts 1899. The answer of respondent states three grounds for its refusal to comply with the request made by relator that the books be delivered to it for the purpose stated:
I. That the act is unconstitutional.
2. That the act, if valid, does not apply to Grand B-apids.
3. That the relator was too late in attempting to make an alteration of the rolls.
It is insisted that the act is unconstitutional, for the reason that it interferes with local self-government in cities and townships. The particular provisions which are said to invade the right of local self-government are those empowering the State board to revise the assessment of property of an individual in any township or city in the State. It is- conceded that, under the Constitution of 1835, the State legislature possessed all the legislative powers of the British parliament, and was not limited, either expressly or impliedly, in any such degree as is the legislature under the Constitution of 1850. We think it must be conceded that, in the absence of constitutional limitation, the State may, by its legislature, prescribe the limits of taxation and agencies to be employed. The rule is stated in 2 Dill. Mun. Corp. (4th Ed.) § 737, note 2:
“Subject to constitutional restrictions, it is within the power of the legislature of a State to ascertain the public burdens to be borne, and the persons or classes of persons who ought to bear them; and its determination, within the limits of the constitution, is not judicially reviewable.”
The question recurs, Is there an express or plainly-implied inhibition against the employment of á State agency to supervise assessment rolls? It is manifest that the question is quite different from the one presented when an attempt may be made by the State to impose upon a municipality a burden, or to compel such local body to enter into a contract. No burden is imposed upon the local municipalities by this legislation. No right of local self-government is infringed, unless it be a right to determine, in practice, what property may be assessed on a particular roll. It is clear that the municipality has no right to determine this question in theory; for the State may, within constitutional limits, prescribe what persons and property may be assessable. It gets down, then, to the question whether the exclusive agency for making such assessments is, under our Constitution, some officer of the municipality, whose acts are final and conclusive as well to the State as to the municipality; for it is to be kept in view that, both at the time of the adoption of the Constitution and at the present, the taxes levied for State purposes are based on the same assessment as are those collected for local use. It is urged that as supervisors of townships were, under the law in force at the time of the adoption of the Constitution, authorized to make assessments, and as supervisors were provided for by the Constitution, it must be considered that the intention was to vest in such officers the functions which they were then exercising, and this to the exclusion of a State board. Much of the force of this contention is taken away by the fact that under the tax law in force in 1850 the supervisor was not made the sole assessor, but the electors might elect two assessors, who had co-ordinate power. Section 8, chap. 16, tit. 4, Rev. Stat. 1846. Section 1, art. 11, of the Constitution, provides that:
‘ ‘ There shall be elected annually, bn the first Monday of April, in each organized township, one supervisor, one township clerk, * * * one commissioner of highways, one township treasurer, one school inspector, not exceeding four constables, and one overseer of highways for each highway district, whose powers and duties shall be prescribed by law.”
It is contended that, inasmuch as the duty of making assessments was at this time reposed in tho supervisor, this function cannot now be withholden from him and reposed in the State board. It may be said that the act does not withdraw wholly from the supervisor this duty; it only provides for supervision of his work and correction of errors; and, as already pointed out, the supervisor was not the only person who, under the law as it existed at the time, was authorized to make assessments in townships. Reliance is placed on the two cases of Hubbard v. Township Board of Springwells, 25 Mich. 153, and Davies v. Board of Supr’s of Saginaw Co., 89 Mich. 295 (50 N. W. 862). In the latter case very broad language is used in speaking of the sacredness of the functions exercised by officers when the Constitution was adopted. This language must be understood as applying to the case in hand, which was one in which an attempt had been made to withdraw from the control of the highway commissioner and overseer of highways all control of certain highways in their respective j urisdictions. This was not a modification of their functions; it was an abrogation of them; and not only this, but there was an attempt to impose-a burden upon the locality, — an interference with local self-government. That it was not intended by the decision in the Davies Case to hold that the legislature can in no case modify the functions of township officers as they existed when the Constitution was adopted is evidenced by the fact that Hubbard v. Township Board of Springwells, 25 Mich. 153, was quoted with approval, in which case it was said:
“The Constitution requires an election every year of a township commissioner of highways and of an overseer of highways for every highway district. Their powers were subject to legislative modification, but no legislation could abolish the offices or take away all their functions.”
The real gist of these two decisions is that the provision for the election of these officers indicates that the control of highways was, by clear implication, treated as a matter of local concern, and by as clear implication vested in the officers named. The very title of the offices indicated this. Can it be said that by providing for the election of a supervisor, “whose duties shall be prescribed by law,” there is evidence of a purpose of treating assessments upon which both- local and State taxes are to be assessed as a matter of purely local concern, and that the duties of the supervisor to make such assessment are so far implied by this provision as to be beyond legislative control? There is nothing in the title of the office, as used in the Constitution, to indicate that he is to be given any authority to make assessments; and not only might this right in large part be taken from him by the electors, but he had many additional functions. He was an inspector of elections; he presided at meetings of the township board; he classified justices of the peace; he was a member of the board of supervisors; it was his duty to prosecute for penalties and to. suppress riots. In the exercise of some of these duties he was doubtless distinctively a representative of his township, and there may be duties of that character which cannot constitutionally be withdrawn from him; but we do not deem the making of an assessment roll one of them. It was not distinctively a matter of local concern. The State is concerned in the proper assessment of property, not only as to its own interests as they are affected by the collection or failure to collect the funds necessary to carry on government, but, as the supreme authority in the State, the legislature is required by section 12, art. 14, of the Constitution, to see to it that assessments be made on property at its real value. We think that the authority of the legislature is not so restricted as to preclude the use of a State board in carrying into effect this important constitutional provision. As was said in People, ex rel. Drake, v. Mahaney, 13 Mich. 481:
“ There is nothing in the maxim that taxation and representation go together which requires that the body paying the tax shall alone be consulted in its assessment, and, if there were, we should find it violated at every turn in our system.”
See, also, Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654).
It is suggested that inasmuch as section 13, art. 14, provides for a State board of equalization, this excludes the right to authorize such a board as the board of State tax commissioners. This is based upon the claim that the board of equalization is in one sense an assessing board; but an examination of this act discloses that none of the duties of the State board of equalization are interfered with in any way.
Another objection to the act is ba'sed on its title. The act is an amendment to the general tax law, and is entitled ‘ ‘ An act to amend ” certain named sections of that law, and to add thereto certain sections providing for “a board of State tax commissioners, charged with the duty of enforcing this act, and exercising supervisory control over officers administering the general tax laws of this State, and reporting to the legislature thereon, and empowered in certain cases to review assessment rolls, and correct the same or add thereto, and to provide for the assessment and taxation of property omitted from the assessment rolls.” There are various provisions of the amendatory act authorizing a single member of the board to act in reviewing assessments, and to make additions to the rolls. It is urged that the portion of the title to the act which provides “for the creation of a board of State tax commissioners, charged with the duty of enforcing this act, and exercising supervisory control over officers administering the general tax laws of this State,” indicates that a State board shall be created, and that the board, as such, shall be charged with the duty mentioned in the title, and that the act is therefore wholly invalid, for the reason that the object is not expressed in the title. We think this objection without force. Had the words of the title quoted been wholly omitted, the title would have been sufficient. On the other hand, had the words quoted constituted the whole of the title, a distribution of certain of the powers of the board among its members would not have been so foreign to the subject mentioned 'in its title as to render the act invalid for this reason.
It is contended that the act does not apply to the city of Grand Rapids. Section 107 of the original act (Act No. 206, Pub. Acts 1893) provides that the act shall be applicable to all cities and villages where not inconsistent with their respective charters. The provisions of the amendatory act are therefore applicable to cities, except so far as it may be inconsistent with charter provisions. It is contended that the provisions of the charter are so inconsistent with the provisions of the amendatory act conferring upon the State board the power of revision of the tax rolls that the latter act should not be held to apply to that city. Under the city charter, the assessments are made by a board of assessors. The common council is made a board of review. The rolls are required to be returned to the council on or before the fourth Monday in April. The council is given 15 days to consider appeals. The council is required to consider the city budget on or before the second Monday in May. The city clerk is required to certify this budget to the city comptroller within 5 days, and it is made his duty to apportion the amount to be raised among the several wards of the city according to the property valuations of the assessment rolls as confirmed by the common council, and certify the apportionment to the city assessors within 5 days thereafter. It is made the duty of the assessors to make copies of the assessment rolls and to spread the taxes. This work is to be completed on or before the 28th day of June in each year. The rolls are then delivered to the comptroller, who affixes his warrant and delivers the rolls to the city treasurer on or before the 1st day of July. It is also made the duty of the city assessors to make copies of the assessment rolls, and deliver them to the city treasurer within the time prescribed by the general laws of the State for the completion of the December tax roll. We think the provisions of the amendatory act are not so far inconsistent with the city charter as to render them wholly inapplicable. It is true that there- comes a time when the apportionment of taxes among the wards of the city cannot be affected by a change in the assessment, and there may be a slight inequality, as between residents of different wards in the city, resulting therefrom; but the rolls may be still corrected as to individual taxpayers, and no injustice be done to them thereby. The equalization between counties presents similar difficulties. In this case the apportionment has in fact been made. It is insisted that the proposed action of the relator is therefore tardy; but, while we are of the opinion that the apportionment among the wards may not be disturbed, we think the State board still has power to add to the rolls assessments against persons omitted therefrom, or property omitted.
For cases upholding similar legislation, attacked on different grounds, see State v. Weyerhauser, 68 Minn. 353 (71 N. W. 265), 72 Minn. 519 (75 N. W. 718), 176 U. S. 550 (20 Sup. Ct. 485).
The writ must issue as prayed.
Hooker, Moore, and Long, JJ., concurred with Montgomery, C. J. | [
24,
-33,
11,
-7,
-39,
62,
34,
-11,
-12,
34,
-18,
-31,
0,
-2,
49,
15,
-22,
-3,
-3,
38,
-2,
-8,
-34,
36,
-10,
-24,
89,
55,
-29,
29,
4,
13,
-17,
0,
47,
-3,
-3,
5,
21,
16,
-9,
47,
-52,
-17,
5,
-1,
-14,
-9,
-16,
-21,
-28,
60,
-40,
40,
41,
28,
-36,
-41,
-20,
-18,
-42,
38,
-16,
19,
-7,
0,
-19,
-15,
55,
-62,
-16,
-13,
0,
-81,
43,
22,
11,
-16,
-2,
45,
10,
-31,
-53,
-24,
-24,
19,
-26,
17,
19,
11,
20,
-33,
-41,
12,
14,
18,
1,
-10,
31,
-12,
46,
22,
35,
-7,
2,
-36,
-27,
-38,
63,
-27,
15,
25,
-15,
-22,
-4,
18,
-37,
24,
-6,
14,
11,
29,
-14,
-17,
-1,
-11,
-6,
-33,
-24,
21,
-17,
47,
36,
6,
-29,
-44,
-40,
-9,
44,
24,
-13,
15,
9,
-23,
-14,
-27,
8,
-5,
-36,
16,
31,
17,
51,
0,
-42,
-26,
18,
-7,
58,
9,
41,
49,
-12,
-30,
-28,
36,
-38,
4,
-7,
16,
-19,
16,
-21,
49,
51,
-64,
1,
0,
33,
0,
0,
3,
0,
12,
17,
-12,
-4,
-16,
49,
-82,
30,
-13,
12,
-38,
37,
29,
-22,
20,
-34,
-29,
-10,
16,
-14,
-3,
29,
21,
-20,
-21,
-83,
37,
-32,
22,
-59,
15,
-14,
-15,
3,
-34,
17,
47,
-13,
44,
16,
-32,
1,
45,
-54,
53,
-29,
20,
50,
0,
14,
4,
-36,
18,
-23,
-33,
67,
5,
-52,
70,
17,
-15,
26,
4,
3,
-8,
23,
-4,
11,
10,
35,
-22,
-3,
-24,
38,
7,
5,
-86,
19,
50,
46,
-44,
-21,
-6,
26,
15,
-17,
20,
-46,
69,
3,
-14,
-46,
9,
18,
-61,
-26,
-15,
9,
-25,
4,
4,
-21,
4,
-48,
23,
-1,
-24,
1,
-27,
5,
54,
-42,
21,
22,
26,
42,
-37,
5,
19,
43,
55,
34,
-28,
-22,
29,
-18,
-45,
27,
-23,
-75,
-16,
13,
-69,
9,
4,
-19,
5,
-48,
-9,
26,
-27,
14,
-17,
19,
-11,
2,
-21,
17,
-23,
-19,
17,
57,
21,
23,
-23,
-24,
-38,
18,
14,
32,
-12,
-9,
36,
-72,
-31,
38,
11,
-5,
-9,
-33,
55,
0,
21,
-9,
1,
-22,
-12,
14,
47,
-10,
-17,
11,
-29,
-29,
-12,
23,
-2,
32,
-12,
52,
-7,
27,
-7,
-20,
35,
-10,
-14,
-28,
-43,
-33,
-22,
19,
-35,
37,
-5,
22,
-26,
4,
6,
-58,
-5,
-32,
-27,
9,
-20,
8,
-22,
-27,
5,
-25,
54,
-21,
-25,
1,
55,
-6,
19,
-3,
5,
22,
-21,
-8,
28,
12,
-25,
28,
-41,
30,
-11,
18,
-35,
7,
-47,
-19,
21,
0,
33,
-31,
-65,
5,
-18,
-14,
-37,
20,
-18,
27,
-48,
-34,
2,
-1,
26,
-44,
-68,
-27,
3,
-20,
-1,
-1,
-12,
-38,
-41,
-38,
-2,
18,
-3,
54,
-37,
-18,
-14,
-29,
33,
45,
27,
-66,
17,
40,
-41,
-59,
5,
-22,
2,
-19,
-1,
17,
26,
2,
-12,
32,
-1,
-43,
-15,
-1,
3,
5,
25,
-46,
15,
29,
8,
-32,
4,
23,
8,
44,
-24,
3,
37,
69,
65,
24,
-15,
-3,
30,
-63,
17,
31,
19,
11,
13,
53,
73,
-21,
14,
-8,
-50,
13,
-29,
24,
-9,
-69,
-43,
-15,
4,
-25,
21,
40,
16,
2,
17,
25,
-2,
-51,
1,
3,
39,
0,
-8,
43,
-4,
21,
66,
-24,
-7,
-19,
-26,
-3,
-18,
-7,
-29,
15,
-30,
-18,
-45,
6,
-25,
-20,
57,
-53,
20,
24,
-9,
-22,
-21,
-32,
-21,
-25,
51,
55,
-5,
-60,
35,
-4,
4,
26,
-43,
34,
-11,
-3,
19,
-17,
-43,
38,
-22,
-20,
-10,
26,
-25,
-10,
-10,
-89,
1,
-26,
4,
-23,
43,
21,
5,
-32,
12,
-4,
13,
-34,
50,
-2,
-55,
-44,
-29,
4,
-44,
-3,
26,
-41,
45,
-4,
-33,
23,
-30,
-4,
79,
11,
-3,
2,
-63,
29,
19,
1,
15,
-30,
4,
-12,
12,
-58,
-21,
17,
-3,
47,
27,
-10,
-50,
-55,
-38,
16,
37,
-9,
71,
5,
33,
-78,
68,
7,
-43,
-43,
-21,
-1,
-8,
2,
4,
44,
-40,
23,
68,
30,
39,
20,
8,
43,
16,
31,
-25,
-5,
-16,
13,
-24,
-8,
-14,
43,
26,
-68,
13,
-63,
33,
26,
-17,
-28,
28,
3,
-18,
33,
3,
60,
-25,
-8,
-7,
-3,
46,
-6,
13,
-13,
7,
6,
16,
-39,
-13,
-33,
0,
38,
-20,
0,
-42,
12,
-7,
-13,
-42,
39,
20,
39,
26,
14,
-58,
-6,
-19,
23,
37,
22,
-29,
11,
2,
-29,
-4,
-9,
-38,
21,
-5,
-5,
35,
44,
-43,
41,
15,
0,
4,
-44,
-7,
-12,
0,
-29,
22,
26,
42,
21,
-6,
-32,
27,
-45,
11,
16,
-45,
-22,
11,
-49,
32,
-3,
-48,
-47,
-4,
48,
32,
61,
2,
-1,
-89,
25,
4,
-16,
-13,
-1,
-32,
28,
2,
-10,
8,
-2,
-22,
-22,
-61,
-41,
-1,
2,
-12,
-13,
0,
-30,
43,
9,
-26,
-18,
2,
15,
28,
-8,
-45,
50,
37,
-58,
-3,
-39,
36,
25,
-21,
-63,
-3,
36,
-62,
27,
52,
-20,
-63,
11,
45,
0,
0,
-18,
15,
55,
55,
9,
45,
25,
36,
-62,
6,
24,
-68,
-20,
-42,
30,
9,
17,
-20,
-43,
0,
-17,
18,
-77,
0,
1,
1,
-16,
21,
-3,
38,
40,
11,
53,
6,
3,
38,
37,
52,
21,
36,
-20,
0,
-22,
-31,
11,
40,
-26,
-10,
17,
-7,
41,
4,
-7,
-6,
-37,
8,
-36,
8,
30,
-42,
-6,
17,
-13,
-20,
38,
36,
32,
16,
-7,
71,
7,
-7,
-32,
2,
-56,
-38,
15,
-14,
5,
14,
-9,
22,
22,
-28,
14,
72,
-4,
-8,
-7,
-35,
7,
-25,
-93,
-107,
13,
24,
59,
2,
13,
-12,
-49,
-7,
36,
36,
-13,
-5,
-4,
-34,
1,
16,
45,
-5,
23,
28,
4,
-21,
7,
-8,
-11,
-4,
-22,
-20,
6,
38,
0,
-45,
-37,
-5,
31,
39,
-12,
61,
-35,
16,
-35,
25,
-6,
2,
30,
17,
-48,
21,
-24,
-54,
0,
-4,
-61,
14,
11,
14,
-13,
39,
13,
-7,
16,
-7,
3,
-9,
23,
60,
11,
-11,
45,
-17,
-40,
-24,
9,
18,
9,
-42,
-7,
13,
-54,
23,
47,
29,
105,
-36,
-8,
-15,
37,
-42,
28,
-38,
25,
0,
-17,
59,
71,
39,
14,
-29,
-16,
35,
-32,
-21,
16,
-6,
-69,
-31
] |
Grant, J.
(after stating the facts). The object of the two suits is the same, namely, the cancellation of the deed. It is the general rule that a party cannot split his cause of action, and bring suits in detail. This case is a splitting of reasons, rather than of a cause of action. The parties are the same; the cause of action, viz., an invalid deed, is the same; the object sought for, viz., the cancellation of the deed, is the same. It cannot be denied that relator might have included in his chancery suit the same reason that he now urges in this proceeding. There should bp an end of litigation, and when a party proceeds in chancery to procure the annulment of' a deed he must allege and show his reasons. He must set forth all the reasons he has against the validity of the deed. He cannot allege one reason, have tha.t determined against him, and then bring suit for another reason. See Cornett v. Cornett, 122 Mich. 685 (81 N. W. 920).
The cases cited by counsel for relator do not apply. In Conley v. Auditor General, 123 Mich. 83 (81 N. W. 963), it was insisted that the case of Conley v. McMillan, 120 Mich. 694 (79 N. W. 909), was a bar to the proceeding. That case did not involve proceedings subsequent to the decree. Neither does this. The deed in Conley v. Auditor General was held void because of illegality in the sale itself after decree. It is not sought in this proceeding to annul the deed because of proceedings subse quent to the sale, but of a defect before the decree was made. The situation, then, is this: The decree in. the proceedings taken by the auditor general is held valid in the case handed down herewith, and, if we sustain the relator’s position in this case, we declare it invalid. Is it consistent to enter a decree in chancery holding the deed valid, and at the same time enter a judgment in a proceeding at law declaring it void? People v. State Treasurer, 24 Mich. 468, is not in point. The parties were not the same. The case pending in another court was not claimed to operate as a bar. Speaking of the bill that had been filed in the United States circuit court, this court said that its “purpose was so clearly in violation of legal principles that we cannot hesitate to regard it as one over which the court where it is pending will not assume jurisdiction to grant relief.” In Joslin v. Millspaugh, 27 Mich. 517, the question arose under the foreclosure statute. It was held that, while the statute prohibited proceedings at law for the recovery of the debt while the foreclosure suit was pending, the question permitting such proceedings was to be determined by the chanoery court, and not in the suit at law. In People v. Wayne Circuit Judge, 27 Mich. 406 (15 Am. Rep. 195), many cases are cited, and the question fully discussed as to the practice where more than one suit is pending. The question there was whether an adverse decision in an action in rem against a vessel in an admiralty court was a bar to a suit in personam in a State court to recover for the same services sought to be enforced by the proceeding in rem. Goodrich v. White, 39 Mich. 489, is another case arising under the foreclosure statute. The above are the cases cited to sustain relator’s contention.
In State v. Patterson, 11 Neb. 266 (9 N. W. 82), the application was for the writ of mandamus to compel a county treasurer to execute certain tax deeds. To this application answers were filed setting up the pendency of actions in other courts to have the action in the tax proceedings declared void. The court say:
“ It appears that tax deeds have already been issued to the relator for the lands in controversy, and that the actions referred to in the answers were instituted for the purpose of setting aside said deeds and the proceedings upon which they are based. This being the case, this court will not entertain jurisdiction. To do so would be oppressive. The cases are pending in a- court having jurisdiction of the subject-matter and the parties.”
Where one has instituted quo warranto proceedings to test his title to an office, mandamus will not lie to induct him into office during the pendency of an appeal in the quo warranto proceeding. Hannon v. Commissioners of Halifax, 89 N. C. 123.
In Hardcastle v. Railroad Co., 32 Md. 32, a suit in equity was pending for an injunction, discovery, and general relief for the identical causes of complaint contained in the petition for a mandamus. The court say:
‘ ‘ That it [the writ of mandamus] will not be granted if the party has another adequate and specific remedy is fully supported by authority. It is not, however, a sufficient answer to an application for a mandamus that the party might have redress in a court of_ equity; for, when the writ is refused because there is another specific remedy, that remedy must be at law. Tapp. Mand. (m) 22, and note it; Mos. Mand. 18; People v. Mayor, etc., of New York, 10 Wend. 393; Proprietors of St. Luke’s Church v. Slack, 7 Cush. 226. But the rule is otherwise if the party asking for the writ has, before that time, gone into a court of equity, and there instituted proceedings under which all the relief may be obtained that is asked for in an application for a mandamus.”
The same rule was held in People v. Wiant, 48 Ill. 263; People v. Common Council of Chicago, 53 Ill. 424; People v. Warfield, 20 Ill. 159; Swartz v. Large, 47 Kan. 304 (27 Pac. 993). There may be an exception to this rule in extraordinary cases. People v. Salomon, 51 Ill. 37, 55.
The writ is denied.
The other Justices concurred. | [
-11,
-6,
-13,
12,
-19,
-15,
35,
17,
-22,
60,
-4,
-8,
37,
-27,
7,
-6,
7,
34,
-26,
-10,
-19,
12,
-46,
6,
27,
-14,
13,
-6,
11,
-31,
-3,
-90,
-25,
9,
6,
26,
-1,
5,
26,
-32,
-21,
-6,
-22,
-19,
-40,
-19,
-16,
-65,
-14,
-16,
10,
-46,
14,
-26,
32,
-25,
-16,
-5,
0,
-61,
-10,
-14,
13,
-16,
-10,
-18,
5,
-27,
10,
-49,
-15,
35,
11,
4,
49,
-19,
35,
-47,
-26,
8,
50,
-10,
19,
21,
29,
-15,
24,
16,
24,
4,
-32,
-21,
-25,
-33,
7,
2,
11,
10,
14,
64,
18,
-19,
-3,
35,
-5,
-51,
-9,
-51,
3,
-70,
14,
-12,
33,
-35,
-6,
-17,
5,
-2,
0,
-47,
0,
7,
12,
11,
16,
17,
8,
-11,
-55,
-17,
45,
5,
-41,
43,
-2,
-37,
-30,
-3,
-50,
-10,
-30,
10,
21,
-38,
-8,
54,
32,
-8,
-9,
-16,
-34,
53,
-11,
8,
-21,
10,
37,
-59,
61,
-21,
32,
41,
-69,
-19,
-10,
27,
-7,
3,
49,
61,
21,
6,
-40,
47,
10,
-31,
-6,
9,
12,
-7,
-6,
-8,
22,
-29,
44,
-58,
11,
30,
9,
-20,
-7,
-43,
-3,
89,
47,
35,
-43,
33,
27,
-60,
-49,
-37,
-34,
19,
-41,
-25,
36,
-54,
-1,
96,
-20,
38,
-19,
-47,
-1,
-25,
54,
-15,
-22,
1,
34,
40,
-3,
-3,
-16,
-36,
25,
-13,
6,
29,
-27,
13,
-12,
-35,
16,
-15,
20,
34,
15,
20,
2,
64,
-41,
-31,
1,
-35,
13,
-4,
57,
-3,
-2,
0,
-18,
67,
19,
-35,
1,
34,
-23,
-8,
10,
40,
-60,
-51,
-25,
6,
4,
-3,
25,
34,
14,
24,
45,
24,
6,
-6,
-12,
-13,
-4,
32,
-25,
-12,
36,
21,
-45,
48,
18,
23,
33,
-23,
55,
-78,
14,
18,
0,
39,
-21,
25,
4,
-22,
-5,
18,
31,
27,
0,
13,
-17,
4,
14,
-32,
-19,
-20,
-22,
22,
5,
-9,
-32,
-27,
28,
-20,
62,
15,
7,
-25,
-50,
-15,
73,
-10,
-18,
38,
-12,
-39,
9,
-39,
14,
24,
18,
17,
-18,
-29,
-15,
-26,
24,
-31,
35,
6,
-15,
-55,
36,
59,
-36,
8,
-19,
16,
12,
5,
-3,
-8,
-22,
14,
14,
49,
-14,
-29,
40,
20,
2,
-3,
-3,
32,
-30,
-1,
-9,
5,
-19,
-39,
-38,
17,
-66,
22,
-9,
-40,
21,
0,
49,
21,
-50,
8,
-23,
17,
-36,
-60,
35,
5,
-20,
33,
1,
38,
-24,
49,
-12,
28,
-46,
-2,
-78,
44,
13,
13,
-24,
28,
50,
-4,
-17,
-17,
-22,
0,
-2,
-20,
-3,
10,
63,
-25,
-52,
-39,
-20,
-37,
-26,
34,
9,
-26,
-34,
14,
55,
-29,
-3,
43,
9,
12,
-30,
4,
-1,
-5,
-26,
8,
-1,
54,
0,
-24,
-24,
40,
1,
-9,
10,
-10,
0,
38,
11,
-3,
33,
-21,
52,
-21,
1,
-45,
-3,
-16,
-11,
-33,
-7,
5,
11,
-20,
0,
-5,
-8,
-10,
-20,
-14,
5,
-11,
-24,
3,
-34,
-4,
-49,
-22,
-13,
-33,
11,
-30,
-3,
5,
43,
26,
-23,
-64,
18,
-43,
-35,
-43,
26,
46,
-29,
-11,
58,
-15,
44,
-19,
14,
52,
-36,
-29,
26,
23,
-27,
69,
25,
-46,
-50,
39,
0,
-73,
-18,
-56,
-6,
-9,
-2,
39,
8,
-1,
53,
0,
-1,
-9,
-21,
73,
19,
35,
52,
16,
-53,
51,
48,
37,
-16,
75,
18,
-7,
50,
17,
-19,
-19,
54,
50,
-46,
31,
17,
-16,
16,
-13,
-4,
-5,
23,
-29,
-1,
13,
-19,
-87,
7,
46,
-25,
-19,
51,
-12,
-18,
-55,
-11,
-27,
2,
13,
-30,
-45,
-40,
-16,
20,
-9,
3,
7,
33,
4,
-50,
-10,
1,
-34,
-30,
-17,
15,
-4,
42,
50,
-50,
-14,
-29,
2,
18,
3,
21,
32,
-11,
15,
0,
-14,
5,
0,
-10,
10,
-3,
-27,
27,
40,
-50,
9,
37,
-27,
47,
-34,
38,
16,
-12,
-23,
-22,
-45,
-11,
1,
-39,
21,
10,
-8,
26,
-26,
-50,
-13,
-27,
-42,
-38,
18,
-25,
14,
30,
8,
-35,
19,
-25,
5,
31,
-22,
-16,
-2,
43,
-37,
48,
-29,
17,
4,
16,
3,
37,
31,
-14,
-20,
39,
10,
10,
4,
32,
-23,
20,
16,
-14,
0,
-21,
-23,
7,
-15,
3,
15,
27,
-18,
-27,
41,
0,
-67,
-27,
-14,
5,
44,
21,
6,
37,
11,
-14,
-39,
0,
34,
-4,
-26,
-25,
17,
9,
-4,
23,
-19,
14,
-2,
-19,
-27,
39,
-27,
-21,
-54,
15,
-17,
51,
-4,
0,
-5,
42,
-8,
24,
-34,
11,
-27,
0,
-6,
-14,
61,
33,
-38,
19,
18,
-30,
41,
24,
10,
-1,
28,
-12,
79,
-30,
-13,
22,
-14,
17,
0,
-44,
19,
-54,
4,
10,
-14,
47,
9,
-39,
16,
-11,
14,
-12,
-61,
0,
6,
2,
-15,
28,
-31,
-44,
15,
39,
-21,
47,
9,
-26,
-59,
-34,
88,
13,
-71,
-4,
-39,
-8,
7,
61,
50,
17,
5,
-36,
3,
33,
-30,
34,
13,
11,
11,
-39,
37,
9,
21,
-52,
59,
33,
-45,
24,
-58,
14,
-28,
1,
-7,
-17,
40,
-18,
-61,
2,
26,
-7,
-4,
-18,
48,
17,
-16,
4,
-2,
44,
-48,
-46,
24,
53,
-17,
-2,
-19,
-14,
-8,
-7,
-2,
2,
-19,
0,
17,
-35,
16,
-4,
-48,
-20,
-12,
-22,
24,
0,
17,
-26,
20,
25,
-4,
6,
17,
22,
-36,
3,
0,
31,
21,
20,
7,
27,
-48,
-20,
30,
6,
-7,
4,
-32,
8,
-18,
67,
13,
-106,
66,
-39,
16,
35,
-55,
-8,
48,
4,
16,
-27,
52,
-12,
11,
-21,
-21,
33,
-8,
-42,
-34,
23,
-4,
44,
-50,
-17,
68,
8,
51,
71,
0,
21,
-24,
-1,
2,
3,
-12,
15,
23,
60,
16,
-30,
18,
-17,
-66,
12,
28,
-21,
5,
14,
11,
-3,
72,
42,
-78,
-22,
8,
-51,
-1,
28,
-64,
-12,
49,
-29,
-38,
16,
0,
-25,
-19,
10,
8,
52,
32,
14,
-32,
18,
-19,
-29,
-56,
34,
-11,
-23,
4,
-14,
20,
-18,
18,
-4,
26,
-29,
-36,
0,
26,
-40,
52,
25,
-31,
-24,
23,
15,
-18,
18,
-20,
-51,
14,
17,
28,
-8,
-7,
35,
63,
-31,
-42,
-38,
-1,
-53,
-9,
-22,
23,
24,
32,
47,
-29,
32,
-41,
44,
41,
41,
-31,
-36,
-63,
65,
59,
-37,
-7,
-7,
30,
-12,
-24,
11,
2,
-11,
-12
] |
Grant, J.
The facts’of this case are substantially the same as when the case was in this court before. 115 Mich. 506 (73 N. W. 806, 69 Am. St. Rep. 589). The learned circuit judge carefully submitted the case to the jury in accordance with that opinion. It is now, however, claimed that the court erred in instructing the jury: ‘ ‘ The execution of the note is admitted. That establishes a prima facie case, and the plaintiff is entitled to your, verdict for the amount of that note, unless the defendants satisfy you that the note was given without consideration.” Also: “So, I charge you that the burden of proof rests upon the defendants in this case to satisfy you respecting their defense, both as to consideration and as.to fraud.” Counsel insist that this is contrary to the rules approved by this court in Manistee Nat. Bank v. Seymour, 64 Mich. 59, 74 (31 N. W. 140); Township of Grant v. Township of Reno, 114 Mich. 41 (72 N. W. 18), and cases there cited. The above are isolated excerpts from the general charge. It does not appear that' the attention of the court was called to the points now raised.
Upon the question of consideration, the court further instructed the jury:
“Was the note given without consideration? Now, I charge you that if the defendant Chapoton was behind in his accounts with the plaintiff, and if upon a talk with the plaintiff on the 1st of January, 1894, it was agreed between them that the amount of that arrearage was $2,700, and upon this basis a settlement was made between them, that made a sufficient consideration.”
The language complained of as to consideration was an erroneous statement of the law applied to a proper case. The language above quoted fairly and correctly stated the question for the jury to decide. Chapoton denied that he had embezzled any of plaintiff’s money, but admitted that he “had given away goods as little presents from time to time.” How much this amounted to he does not state. He admitted the settlement made with the plaintiff, in which it was agreed that $2,700 was the amount of his defalcation or misappropriation. He gave no evidence to show that it was less. The onus was upon defendants to show that this was not the correct amount. Where a settlement has been made, he who attacks it has the burden of proof. The statement of Chapoton that he agreed to this amount, and gave these notes to avoid a charge of embezzlement, when in fact he had done no wrong, is not credible, especially in view of the fact that he confessed that he had been guilty, not long after his settlement with plaintiff, of the crime of forgery as well as other crimes, and that he had deliberately lied to Watson in regard to the consideration for these notes. Under these circumstances, I do not think that the charge complained of was prejudicial error.
The court correctly instructed the jury that the onus was upon the defendants to show fraud. The fraud practiced upon Watson is clearly proved; for both Watson and Chapoton testified to it, and there was no testimony to the contrary. The court.instructed the jury:
“Did Mr. Beath direct Mr. Chapoton to practice fraud in procuring this signature ? Did he know that fraud was practiced in procuring it? If he did, then he is not a bona fide holder of this paper, and he cannot recover upon it as against Mr. Watson. If, on the other hand, he was ignorant that any fraud had been practiced, he is a bona fide holder of it, and can recover against Mr. Watson, provided there was a consideration, as I have already indicated. In this connection, more to emphasize the different phases of this question of fraud than anything else, I read to you the requests of counsel that have apparently been approved by the Supreme Court. First, defendants’ request: ‘ It is claimed that Mr. Watson was induced to sign the note by fraudulent misrepresentations. If you find that plaintiff knew of such misrepresentations, or liad sufficient knowledge to put him on inquiry as to whether Mr. Watson had been induced to sign by some fraud, then' plaintiff cannot recover.’ ‘It is not necessary that Mr. Beath should have known exactly the fraudulent representations' made by Mr. Chapoton in order to get Mr. Watson to indorse the note, if he (Beath) had sufficient knowledge to put him on inquiry, so that he could have found out that Mr. Watson had been so induced by fraudulent representations; and plaintiff cannot recover if Mr. Beath knew, or had reason to believe, that Chapoton was practicing some deceit on Mr. Watson in order to get him to indorse.’ ”
The question was thus fairly left to the jury to determine whether plaintiff was a bona fide holder. If defendants desired any instructions as to the onus probandi, they should have requested it. This question of the burden of proof is often unduly magnified, and, unless the attention of the court is called to it, judgment should not be reversed because the judge failed to instruct the jury where the burden rests.
Judgment affirmed.
The other Justices concurred. | [
23,
26,
3,
-4,
-75,
-14,
59,
2,
-14,
33,
31,
-25,
34,
2,
-10,
-30,
5,
-18,
20,
-46,
-57,
-52,
6,
0,
-6,
1,
28,
56,
1,
14,
-4,
37,
-24,
82,
-40,
-16,
21,
0,
-2,
-5,
-17,
-42,
23,
31,
-13,
20,
-50,
-58,
18,
-42,
59,
-7,
17,
-16,
5,
14,
2,
-21,
-16,
-31,
6,
-60,
7,
-10,
-2,
-65,
-19,
-1,
-10,
-22,
-28,
41,
-8,
-34,
7,
-52,
-3,
-1,
-42,
11,
21,
-17,
19,
41,
-29,
-47,
43,
-37,
9,
-17,
11,
5,
13,
-7,
18,
0,
92,
57,
36,
4,
10,
-35,
-25,
-2,
33,
1,
-15,
0,
-2,
2,
-9,
16,
16,
-31,
-73,
-48,
-47,
-14,
-36,
-54,
22,
-35,
19,
15,
-1,
10,
-19,
-5,
6,
0,
15,
-4,
-57,
40,
0,
-41,
-19,
-33,
2,
9,
0,
-31,
37,
-19,
-8,
2,
-25,
2,
23,
3,
-35,
14,
-37,
17,
-27,
8,
5,
-80,
53,
-52,
45,
28,
-20,
-7,
-16,
-1,
-12,
9,
24,
-24,
0,
0,
-12,
-15,
19,
29,
17,
-35,
15,
-31,
6,
48,
-24,
15,
40,
-17,
3,
34,
40,
-2,
4,
-6,
-30,
10,
19,
13,
8,
-17,
37,
-34,
-34,
-14,
3,
43,
-6,
-4,
2,
-81,
-18,
27,
-6,
26,
-11,
-16,
-35,
2,
24,
-36,
20,
-31,
-3,
29,
-31,
51,
0,
-27,
16,
-4,
-21,
1,
-43,
31,
-23,
-13,
49,
13,
34,
-27,
-3,
-26,
-27,
-8,
14,
-56,
-8,
28,
-27,
-37,
-51,
45,
-17,
14,
-51,
50,
-26,
-15,
19,
23,
-19,
-37,
-3,
30,
-11,
-10,
8,
-24,
0,
46,
-17,
12,
54,
-40,
-20,
6,
-3,
-20,
8,
-10,
-2,
2,
-36,
-17,
-43,
53,
0,
7,
-51,
-5,
17,
35,
66,
-26,
28,
-10,
56,
60,
3,
36,
25,
6,
6,
33,
11,
-1,
37,
-43,
-9,
-2,
-56,
-35,
17,
28,
-21,
40,
26,
-4,
-27,
-35,
22,
0,
31,
9,
1,
-36,
-23,
29,
46,
-36,
-23,
20,
-26,
20,
-4,
-25,
-5,
-8,
11,
-11,
17,
-26,
23,
-52,
-20,
-32,
24,
8,
-34,
-38,
-78,
-6,
0,
8,
-19,
55,
42,
-1,
32,
-11,
12,
36,
25,
24,
29,
-36,
19,
12,
-46,
-26,
2,
47,
-13,
1,
-25,
-45,
-57,
8,
29,
-10,
-61,
26,
-61,
4,
-24,
15,
14,
-10,
-48,
-1,
-39,
17,
-50,
24,
26,
15,
5,
5,
0,
-6,
-33,
-14,
-29,
21,
32,
-11,
-30,
-2,
-18,
14,
25,
17,
0,
-36,
11,
-53,
2,
-7,
58,
13,
0,
-2,
38,
-8,
-11,
-38,
17,
-22,
18,
26,
-27,
-20,
12,
10,
53,
-52,
41,
25,
-53,
-25,
-22,
-10,
41,
43,
-2,
50,
24,
14,
-29,
34,
3,
25,
5,
-17,
-33,
49,
-8,
59,
37,
-28,
2,
-13,
32,
-18,
-22,
12,
10,
-22,
-5,
6,
18,
21,
-11,
6,
7,
-1,
-21,
52,
15,
-15,
39,
75,
-16,
6,
19,
-3,
-68,
-13,
-48,
-17,
-19,
40,
-10,
-12,
-14,
19,
0,
5,
-22,
11,
17,
18,
-5,
27,
19,
-9,
22,
-13,
14,
-63,
-11,
36,
-11,
34,
13,
-2,
14,
22,
41,
-2,
1,
56,
-25,
-27,
-39,
8,
-20,
8,
2,
20,
-30,
21,
27,
28,
0,
-41,
28,
9,
36,
-9,
16,
5,
-19,
23,
7,
6,
-1,
3,
-49,
-40,
23,
23,
-11,
-36,
59,
42,
-36,
13,
26,
-24,
6,
-50,
-14,
21,
18,
-7,
12,
-16,
28,
-25,
8,
-38,
-12,
-9,
5,
22,
-41,
-7,
-22,
-11,
-5,
14,
17,
0,
6,
-9,
3,
21,
5,
19,
0,
43,
33,
5,
10,
-6,
-26,
-36,
-8,
-23,
61,
33,
27,
-11,
-49,
-7,
28,
1,
-38,
-17,
11,
-22,
40,
5,
47,
5,
9,
-4,
-12,
-44,
7,
23,
33,
-23,
74,
-62,
11,
-14,
2,
-39,
-14,
-32,
23,
-35,
37,
19,
-48,
37,
-2,
0,
1,
-24,
-13,
29,
4,
-9,
24,
-28,
-29,
28,
15,
-47,
25,
25,
16,
-49,
39,
-11,
-11,
-7,
27,
-22,
35,
3,
-47,
11,
-44,
26,
22,
12,
51,
1,
11,
-28,
2,
0,
11,
-17,
10,
-19,
11,
-12,
-20,
10,
18,
12,
-35,
-32,
-40,
-26,
2,
15,
-3,
16,
-59,
-23,
4,
-24,
52,
38,
-22,
-17,
6,
-54,
-17,
-27,
-34,
-5,
6,
10,
-26,
-20,
-4,
44,
-56,
11,
-38,
-10,
-5,
7,
-8,
17,
-10,
-71,
63,
17,
2,
11,
45,
3,
-45,
46,
37,
-1,
-15,
31,
24,
36,
27,
-23,
-8,
-22,
-15,
22,
-29,
32,
11,
-9,
58,
32,
-8,
68,
30,
7,
19,
31,
-45,
33,
-36,
54,
6,
-43,
0,
53,
-50,
-28,
-16,
-9,
5,
-27,
-12,
-1,
-50,
-41,
20,
1,
-18,
22,
-6,
-36,
27,
-16,
54,
9,
-9,
32,
19,
-8,
30,
-12,
-13,
40,
-3,
-26,
-60,
31,
13,
-13,
-24,
-46,
22,
-8,
-13,
5,
11,
23,
16,
74,
-19,
2,
6,
-6,
0,
11,
-21,
-13,
-38,
-23,
-32,
13,
30,
-33,
18,
48,
33,
-26,
2,
37,
-14,
-15,
-22,
39,
11,
-60,
-17,
-2,
-14,
48,
-21,
-8,
-18,
37,
37,
-100,
-11,
0,
9,
-20,
-61,
11,
-23,
-7,
0,
26,
-15,
-16,
-22,
-11,
15,
14,
75,
32,
26,
33,
-5,
-7,
54,
-38,
16,
6,
-4,
-6,
14,
29,
-25,
0,
-37,
31,
30,
10,
26,
-63,
-43,
4,
-14,
7,
16,
-13,
-12,
-30,
-28,
48,
41,
48,
-11,
-13,
10,
-65,
-24,
-49,
5,
-4,
57,
6,
-21,
-33,
46,
-7,
-6,
20,
-4,
75,
17,
-24,
11,
-27,
-12,
33,
1,
11,
31,
5,
-9,
41,
-1,
-23,
0,
-46,
22,
-1,
-30,
-2,
-32,
15,
-8,
4,
11,
-1,
-33,
-46,
11,
19,
7,
-37,
-11,
21,
-21,
1,
0,
-6,
19,
12,
-13,
-4,
23,
42,
20,
-61,
-43,
-26,
-1,
-12,
19,
22,
31,
-8,
18,
31,
-12,
-22,
-16,
0,
10,
13,
-45,
-19,
18,
-14,
68,
-33,
13,
-7,
7,
-34,
-29,
16,
32,
58,
0,
-14,
-17,
-28,
12,
35,
-23,
-11,
-25,
-31,
38,
-35,
-1,
-42,
-1,
-11,
9,
36,
9,
-50,
18,
59,
-36,
-3,
-15,
8,
-5,
37,
-24,
34,
32,
-23,
-34,
-1,
30,
41,
2,
53
] |
Moore, J.
The plaintiff sued the defendant in an action of assumpsit to recover for money paid on a certificate for five shares of stock issued by defendant to him, and interest thereon. The case was tried by a jury, who rendered a verdict in favor of the plaintiff. From the judgment entered upon the verdict, the defendant has brought the case here by writ of error.
The defendant’ is a New York corporation. Its principal office was at Geneva, N. Y. The plaintiff offered testimony showing that in 1890 a man representing himself to be the agent of the defendant visited Grayling, sold certificates of shares, and organized a local branch of the defendant company. The plaintiff testified that the agent had with him a small book issued by the defendant, a copy of which he gave to plaintiff to read, and for the purpose of inducing plaintiff to purchase stock in the defendant company. The plaintiff understood from the agent that what was contained in the book left with him was all the by-laws of the company, and testified that he was not furnished with and never saw any other by-laws until they were introduced in evidence by the defendant upon the trial of this case. Contained in the book furnished the plaintiff were the following statements:
“Our plan, limited monthly payments in all classes. Absolutely unforfeitable under our suspension plan. Read this little book carefully. It will interest you. * * * We offer to the public three classes of installment stock. Class Á: Shares in Class A are payable in monthly installments of $1.00 each, due on the last Saturday in each month. There is also a quarterly installment or expense payment of twenty-five cents required on each share, which is due on the last Saturdays of March, June, September, and December in each year. All shares issued in this class have the same quarter dates. Sixty-six monthly installments and twenty-two quarterly installments are all that will be required in this class. The owner may be required to make a lesser number of payments in case the stock matures in less than five and one-half years, or, if it takes more than five and one-half years, no further payments will be required. The installments paid into the loan fund in this class are withdrawable at any time after three years from the date of the certificate, and, if the installments are withdrawn during the first year, an interest of six per cent, will be paid, and, if they remain for more than four years, seven per cent, will he paid.
“Withdrawals: Class A is withdrawable at anytime after date of issue, and the owner will receive the entire amount paid into the loan fund, together with an interest of six per cent, per annum if withdrawn during the four years. If withdrawn after the four years, and before maturity, an interest of seven per cent, per annum will be paid.
‘ ‘ Agent’s authority: No representative, agent, or officer of the People’s Building, Loan & Saving Association has power to waive or alter any of the conditions or terms expressed in the certificate of shares, or to give any receipt for money that shall bind this association, except as herein provided. Further, this association will not be responsible for any bills contracted by any person claiming to be a representative of this association, unless explicit authority is given him by the manager, which he will have in writing. No agent has authority to promise loans to borrowing members, and the association will assume no liability for any representations made, other than contained in the printed literature.”
Plaintiff, relying upon these statements, subscribed for . five shares of stock, for which there was issued to him a certificate, the essential portions of which read as follows:
“This is to certify that Swan Peterson, of Grayling, State of Michigan, is constituted a shareholder in the People’s Building, Loan & Saving Association, incorporated under the laws of the State of New York, and holds five shares therein, of one hundred dollars each; and in consideration of the entrance fee, together with agreements and full compliance with the terms and conditions printed on the back of this certificate, and the articles of association and by-laws adopted by the said association, all of which are hereby referred to and made a part of this contract, the said People’s Building, Loan & Saving Association agrees to pay said shareholder, or his heirs, executors, administrators, or assigns, the sum of one hundred dollars for each of said shares at the end of five years from the date hereof, or at maturity, * * *. all of which are payable in the manner and upon the conditions set forth in the articles of association and by-laws of the association, and terms and conditions printed on the back of this certificate.”
On the back of the certificate, among others, were the following statements:
“First. The shareholder or person who is to pay all installments under this certificate agrees to pay or cause to be paid to the association a monthly installment of one dollar for each share mentioned in the certificate on or before .the last Saturday of each month during the continuance of the certificate.
“Second. The shareholder or person who is to pay all installments under this certificate agrees to pay or cause to be paid to the association a quarterly installment of twenty-five cents for each share mentioned in the certificate on or before the last Saturday of the third, sixth, ninth, and twelfth months of each current year. * * *
“Fourth. If the shareholder or person who is to pay or cause to be paid all installments under this certificate shall fail to pay or cause to be paid any installment required to be paid under this certificate, for three successive months, this certificate, together with all installments paid thereon, shall, without notice, be forfeited to the association, as prescribed by the articles of association and bylaws. * * *
“Sixth. No agent is authorized to change or alter this certificate, or to waive forfeiture, or to extend credit, or grant permits, or alter notices, proofs of any other matter; and the association assumes no obligation other than contained in its printed literature. * * *
“Eighth: The articles of association, by-laws, terms, and conditions, together with the application, are to be construed together as the contract between the shareholder and the association.”
The plaintiff made sixty-nine monthly payments, and also paid his quarterly dues. In September, 1898, plaintiff notified defendant in writing that he desired to withdraw from membership, and applied for a return of the monthly installments paid by him, with interest. He was then notified his stock had been forfeited for nonpayment of dues. No notice was given him of an intention to forfeit his stock because of his failure to make any payment he ought to have made.
The defendant offered in evidence its articles of association and by-laws. It was admitted that defendant claimed to have forfeited the stock some time prior to the letter of September, 1898. No other evidence in the case was offered by the defendant. When the articles of association were adopted, in 1887, section 2 of article 14 read as follows:
“Sec. 2. Any shareholder may at any time withdraw any one or more of his or her shares, and cease payment thereon, provided said shareholder has been a member of the association for six months or more, by giving two weeks’ notice of such desire to the secretary, and paying a fee of one dollar.”
In November, 1888, this section was stricken out. In 1893 section 2 of this article, reading as follows, was adopted:
“Sec. 2. Members holding certificates in class A shall be entitled to withdraw the amount paid into the loan fund on the same, provided such certificates have been in force for three years or more, and that they are in good standing on the books of the association at the time the application for withdrawal is made. Members holding certificates in classes B and C shall be entitled to withdraw the amount paid into the loan fund on the same, provided they have been in force for six months or more, and that they are in good standing on the books of the association at the time application for withdrawal is made. Notice of thirty days may he required by the association from members wishing to withdraw the payments on such stock, and the time and manner of paying shall be the same as on stock at maturity: Provided, that only one-half of the receipts of the- association in any one month shall be applicable to the payment of such withdrawals.”
This section was repealed in January, 1895.
The defendant asked the circuit judge to direct a verdict in its favor. He declined to do so, but charged, in substance, that if the agent furnished the plaintiff with the printed statements offered in evidence, and the plaintiff, relying upon the statements contained therein, subscribed for the stock, the company would be bound by those statements; that if, on the other hand, as claimed by counsel for defendant, this printed matter was not at that time circulated by the company, their verdict must be for defendant. It is now claimed, and was claimed upon the trial of the case, that as the printed book furnished to the plaintiff by the agent was no part of the articles of association or by-laws, and was no part of the certificate which was issued to the plaintiff, what was contained in it forms no part of the contract. Counsel cites 1 Cook, Stock, Stockh. & Corp. Law (3d Ed.), §§ 492, 493, and many cases. There is no doubt about the general rule that the contract between the stockholder and the corporation is evidenced by the terms on the face of the certificate, the articles of association, by-laws, and the printed conditions on the back of the certificate, together with the application for membership. But what are the facts here? The defendant company appointed its agents, and furnished them with printed literature, and sent them out to solicit stock and to organize local branches. Relying upon the printed statements of the company itself, the plaintiff was induced to subscribe for five shares of stock. As an evidence of his right to these shares, a certificate is issued to him, and upon the face thereof he is told that the conditions printed upon the back of the certificate are part of the agreement; and in the sixth condition, after speaking of the authority óf the agent, the statement is there made, “The association assumes no obligation other than contained in its printed literature. ” If this is not equivalent to saying that the holder of the certificate may rely upon the printed literature which had been furnished him to induce him to become a member, then, indeed, words have become meaningless, and may be used to trap" the unwary. See Sawyer v. Building Ass’n, 103 Mich. 233 (61 N. W. 521).
The counsel for defendant now says that the alleged contract was one which the defendant had no power to make under the laws of the State of New York, and that it is ultra vires. No defense of that kind was claimed in the court below. The laws of the State of New York were not put in evidence. There is nothing in the record to indicate that, in making the contract which plaintiff says was made, the defendant exceeded its powers; but, if there was, we think such a defense ought not to prevail unless the law is very clear. It is shocking to one’s sense of justice, when a contract has been completed by one of the parties to it, and after he has parted with a large sum of money, and asks the other party to the contract to perform his part of the agreement, to have it said by the other party to the contract: “In entering upon the agreement I made with you, I exceeded my powers. I will neither perform my contract, nor return to you your money.” A like defense to this was urged by this defendant in the case of O’Malley v. Saving Ass’n, 35 N. Y. Supp. 14. In disposing of the case, the following language was used:
“The first reason urged upon the attention of the court is that, in entering into such a contract as the one under consideration, the defendant has exceeded the powers conferred upon it by the statute. It is possible that in the management of its affairs the defendant may have gone beyond the scope of the statute, but certainly the powers exercised by it were incidental to those conferred; and, inasmuch as it has reaped the benefit of the contract entered into, and there is nothing therein which contravenes public policy, the plainest rules of good faith require that it'should be upheld. Whitney Arms Co. v. Barlow, 63 N. Y. 62 (20 Am. Rep. 504); Rider Life Raft Co. v. Roach, 97 N. Y. 378; 1 Wat. Corp. pp. 600, 601, 605; Thomp. Bldg. Ass’ns, p. 257.”
See, also, Seeber v. Saving Ass’n, 55 N. Y. Supp. 364; 27 Am. & Eng. Enc. Law, p. 359; Carson City Sav. Bank v. Carson City Elevator Co., 90 Mich. 554 (51 N. W. 641, 30 Am. St. Rep. 454).
Judgment is affirmed.
The other Justices concurred. | [
35,
9,
25,
11,
15,
28,
50,
-52,
55,
48,
19,
41,
13,
45,
33,
-26,
-20,
-52,
19,
-31,
-7,
-39,
-22,
-33,
-8,
10,
-6,
19,
-22,
-5,
-2,
-4,
-45,
-58,
-38,
11,
-37,
5,
0,
-13,
5,
49,
49,
28,
-23,
-1,
3,
-16,
33,
-21,
91,
-29,
67,
-39,
-11,
-6,
1,
12,
-24,
-15,
-13,
-27,
57,
-47,
13,
0,
-32,
3,
-9,
1,
-42,
-18,
1,
4,
-42,
-52,
-5,
22,
-47,
-54,
-9,
-45,
15,
-52,
-52,
70,
-12,
0,
14,
9,
-1,
50,
-63,
1,
7,
25,
18,
20,
0,
39,
18,
-37,
-41,
19,
-22,
37,
-15,
-50,
-50,
-2,
-29,
0,
38,
-3,
-3,
-10,
-19,
6,
25,
-44,
18,
39,
-4,
23,
4,
39,
-24,
-7,
-21,
64,
-9,
-6,
-49,
19,
-26,
-38,
-21,
-27,
18,
-15,
19,
-16,
-14,
-35,
-25,
1,
9,
18,
-22,
15,
-28,
8,
20,
10,
0,
-42,
-5,
15,
33,
-41,
34,
-30,
14,
-22,
-14,
-1,
13,
-8,
-32,
-3,
-14,
8,
-3,
-33,
-20,
9,
6,
-47,
-30,
-35,
-1,
37,
7,
5,
4,
-24,
24,
-4,
18,
25,
43,
-7,
-22,
8,
-11,
-7,
17,
-26,
32,
12,
-7,
-55,
-17,
-27,
1,
-1,
55,
1,
14,
12,
-21,
20,
-4,
-32,
-11,
37,
-62,
-47,
23,
-25,
-30,
-21,
-37,
33,
-16,
-50,
17,
10,
-23,
6,
-49,
25,
16,
36,
6,
-10,
8,
13,
23,
40,
-57,
-19,
-2,
-31,
10,
-30,
-49,
-25,
-35,
38,
-25,
42,
-67,
35,
-26,
-26,
-35,
-14,
-1,
-11,
-28,
43,
-41,
26,
9,
-84,
29,
29,
-29,
37,
-15,
-21,
21,
19,
-21,
-29,
-23,
-8,
3,
-21,
58,
-17,
-13,
19,
-13,
-12,
19,
-14,
-35,
-3,
34,
46,
56,
-21,
46,
22,
8,
-27,
27,
-20,
-50,
-24,
8,
21,
41,
29,
-51,
-59,
-19,
-56,
-45,
-8,
-4,
-45,
62,
-7,
-4,
4,
14,
-24,
29,
7,
-45,
-21,
40,
11,
43,
-69,
-34,
-1,
-13,
28,
19,
5,
-44,
15,
9,
-21,
-4,
28,
38,
23,
-7,
0,
28,
0,
19,
-56,
-4,
-15,
-37,
-26,
-1,
8,
59,
3,
25,
1,
-8,
22,
49,
-13,
39,
-25,
35,
-7,
-15,
7,
2,
24,
7,
15,
-8,
-42,
18,
-33,
-17,
28,
-16,
50,
-12,
-14,
-4,
20,
12,
13,
28,
-56,
-40,
-7,
-68,
45,
-2,
64,
-27,
-38,
-21,
-45,
-14,
-11,
19,
-2,
36,
-39,
-22,
-43,
15,
22,
-3,
35,
-1,
-15,
24,
-42,
-20,
-47,
17,
-25,
46,
9,
54,
-35,
-23,
-35,
63,
-3,
25,
7,
-24,
1,
-39,
59,
27,
-10,
30,
-43,
-38,
-4,
-5,
-18,
24,
62,
6,
17,
56,
-28,
-22,
9,
30,
18,
-2,
-15,
17,
-5,
-6,
16,
5,
5,
26,
3,
47,
-19,
4,
23,
6,
39,
19,
-26,
17,
18,
-11,
11,
0,
-8,
-30,
22,
-21,
-5,
-18,
0,
-32,
41,
-14,
-65,
-75,
-21,
7,
12,
-38,
-9,
31,
3,
-2,
-5,
-24,
39,
0,
-3,
-22,
8,
1,
-27,
21,
-1,
-33,
22,
19,
-73,
10,
10,
-26,
-17,
-34,
16,
34,
8,
-51,
30,
14,
46,
42,
25,
-17,
34,
-38,
17,
15,
32,
40,
-34,
2,
21,
-19,
0,
27,
-11,
27,
-32,
-19,
10,
-40,
39,
22,
27,
-8,
-1,
17,
13,
41,
10,
44,
0,
3,
25,
-11,
29,
36,
-25,
11,
-23,
-19,
-7,
-17,
-34,
67,
-32,
8,
11,
-15,
-17,
-27,
-19,
0,
20,
-12,
-14,
18,
45,
-27,
7,
-40,
8,
-34,
-59,
2,
21,
1,
33,
-30,
17,
-7,
0,
-9,
-18,
49,
15,
13,
41,
11,
17,
-14,
26,
-59,
-38,
-25,
-30,
-30,
62,
-12,
1,
7,
-37,
31,
11,
46,
-29,
7,
25,
9,
-5,
8,
18,
-17,
-10,
9,
34,
-15,
-13,
-9,
48,
29,
-20,
-52,
6,
-37,
42,
-8,
45,
-35,
-8,
-18,
0,
36,
-37,
42,
-17,
-9,
30,
-6,
-26,
8,
9,
59,
-4,
21,
-8,
33,
6,
14,
-49,
15,
-36,
-3,
41,
40,
-1,
27,
-32,
-26,
-36,
11,
-35,
25,
-12,
15,
-4,
-6,
49,
0,
54,
16,
8,
-27,
9,
-10,
-30,
16,
42,
5,
1,
-17,
-25,
-40,
14,
-27,
20,
10,
-29,
23,
-42,
-25,
-31,
-21,
30,
14,
-14,
-24,
85,
16,
-7,
1,
-34,
37,
-2,
-11,
-6,
3,
4,
-12,
-12,
20,
-12,
85,
25,
20,
53,
30,
47,
-39,
-55,
1,
9,
-35,
48,
-22,
49,
-2,
-65,
-12,
-35,
30,
-8,
-45,
-19,
-21,
30,
17,
22,
-3,
11,
-36,
16,
13,
35,
53,
-2,
-7,
-17,
-8,
14,
-15,
31,
14,
-23,
-10,
12,
15,
-58,
15,
7,
-29,
-2,
-4,
-1,
18,
20,
52,
-1,
22,
27,
-13,
-17,
4,
4,
-21,
-54,
43,
25,
39,
33,
15,
-10,
-15,
6,
-37,
-3,
32,
-6,
21,
-46,
-58,
-37,
2,
-3,
-11,
-9,
38,
24,
-11,
8,
-61,
-13,
-34,
-42,
-5,
-29,
-54,
-43,
-30,
26,
-12,
34,
-16,
17,
-12,
-11,
-29,
25,
-25,
19,
37,
-13,
-26,
-11,
1,
13,
44,
-15,
-23,
-19,
-32,
8,
-33,
29,
61,
-13,
-58,
7,
-28,
-4,
1,
6,
-13,
-46,
-41,
-40,
17,
4,
13,
31,
-10,
-28,
-33,
29,
57,
-7,
-41,
-10,
-12,
-6,
12,
56,
-70,
4,
-2,
34,
17,
3,
25,
26,
-5,
3,
-3,
28,
-21,
40,
48,
-4,
-34,
37,
8,
-28,
38,
-14,
2,
-15,
-37,
5,
2,
-7,
39,
10,
16,
32,
10,
5,
-4,
-20,
17,
30,
28,
-1,
18,
-15,
-32,
63,
30,
-33,
14,
11,
1,
-8,
-23,
10,
1,
30,
25,
23,
13,
27,
-22,
10,
35,
7,
-11,
10,
-18,
-84,
-3,
43,
4,
-14,
11,
10,
-48,
-61,
-13,
9,
10,
-1,
-9,
3,
0,
36,
-38,
-5,
-48,
-5,
-8,
-26,
11,
44,
26,
-2,
31,
12,
11,
-24,
-24,
-76,
55,
-13,
-3,
-8,
-13,
24,
16,
-24,
-7,
17,
41,
-7,
-35,
44,
25,
4,
6,
34,
-6,
0,
4,
34,
9,
12,
-4,
-41,
18,
6,
-25,
-46,
-3,
-36,
33,
30,
5,
-45,
7,
62,
-3,
-17,
-23,
-23,
46,
24,
9,
38,
-27,
-15,
-32,
-5,
20,
40,
9,
50
] |
Moore, J.
This is an application for mandamus requiring the respondent to vacate an order setting aside a default. The petition of the relator and the return of the respondent show the following state of facts: In April, 1899, the relator commenced suit in the circuit court against one Cowan, then a resident of Detroit, upon whom process was served. Upon the same day a writ of garnishment was issued, and personally served upon one Chiera, also a resident of Detroit. The principal defendant appeared, and pleaded to the declaration filed against him. Chiera did not appear. The case was tried, and a judgment obtained against the principal defendant. Afterwards the default of the garnishee defendant was entered, and in January, 1900, a judgment by default was taken against him for the amount due from the principal defendant and costs. An execution was issued against Chiera. More than 21 days later it was returned by the sheriff nulla bona. After this, Mr. Petley filed a judgment creditor’s bill on the chancery side of the court, in which proceeding Chiera was made defendant, and process was served upon him. March 19, 1900, Mr. Chiera moved the court to vacate the judgment against him, and to set aside his default. This motion was based upon an affidavit in which Mr. Chiera claimed he was not familiar with the English language, and, though the process was served upon him, he supposed, from what was said by the deputy sheriff, that he did not have to give the matter any further attention, as he told the deputy sheriff he had nothing belonging to the principal defendant, and his claim now is that he did not have anything belonging to the principal defendant, and did not owe him. A counter-showing was made, but we do not think it necessary to discuss the showing made upon the motion. The circuit judge vacated the judgment against Chiera, and set aside his default.
In doing this we think the judge exceeded his authority. The case falls within subdivision b of Circuit Court Pule No. 12, which provides that where personal service has been had upon a defendant, and proceedings taken after default on the strength thereof, default shall not be set aside unless application is made within six months after service. The case is unlike Turner v. Ottawa Circuit Judge, 123 Mich. 617 (82 N. W. 247), in which case default was improperly entered. In- this case the default was duly entered. The purpose of the rule was to establish a time when the litigation should be finally ended. The case comes within the rule. The order made practically did away with the rule. If such a construction is to prevail, the rule had better be repealed.
The writ will issue as prayed.
The other Justices concurred. | [
-30,
7,
30,
62,
-20,
-11,
29,
-62,
-4,
29,
-28,
-33,
-26,
17,
-47,
-35,
-9,
-24,
-46,
-4,
9,
-20,
-23,
-31,
-24,
49,
-10,
-30,
11,
-53,
-19,
-42,
-9,
33,
11,
-49,
-45,
-30,
11,
10,
-14,
24,
-8,
29,
-25,
8,
-30,
10,
-4,
-42,
-14,
21,
-44,
50,
-39,
-27,
-32,
4,
22,
6,
-19,
4,
-17,
-15,
-35,
36,
-13,
-23,
5,
36,
-1,
-9,
55,
-5,
0,
4,
0,
-35,
-12,
-8,
7,
11,
-23,
25,
-26,
22,
-33,
32,
-5,
12,
-5,
51,
-34,
24,
2,
4,
-39,
-3,
16,
32,
44,
0,
-62,
-1,
9,
-25,
-9,
-44,
-25,
29,
13,
2,
37,
-4,
-51,
-12,
-50,
4,
87,
-44,
6,
-19,
2,
-19,
41,
-21,
-23,
-23,
16,
79,
-21,
20,
20,
11,
-46,
-3,
37,
17,
3,
-8,
34,
-41,
36,
5,
20,
-5,
26,
28,
29,
-10,
11,
18,
27,
33,
7,
9,
16,
-11,
0,
-6,
38,
22,
-8,
-8,
-29,
-11,
-21,
-4,
24,
-10,
-4,
8,
-34,
-4,
2,
-30,
11,
-30,
-31,
-33,
-10,
4,
0,
-60,
47,
-36,
43,
11,
16,
-29,
-15,
-47,
10,
35,
-15,
17,
-6,
-26,
-6,
-1,
16,
-36,
-24,
13,
2,
-26,
-9,
-20,
-37,
12,
-18,
-25,
-76,
4,
1,
5,
50,
-14,
-24,
56,
-13,
23,
-3,
25,
12,
29,
-59,
0,
-7,
23,
-18,
-25,
-1,
28,
3,
-6,
45,
46,
46,
2,
-37,
63,
37,
-37,
34,
-16,
3,
-38,
-33,
-41,
-30,
14,
-23,
-22,
2,
-39,
-38,
-32,
11,
-9,
32,
29,
1,
-2,
-25,
-13,
46,
-20,
21,
-29,
-14,
24,
39,
-55,
2,
-18,
6,
12,
-36,
6,
4,
-32,
-28,
-14,
-28,
29,
29,
-9,
-16,
31,
7,
-13,
-1,
22,
-25,
21,
8,
-30,
5,
15,
-14,
-21,
9,
-14,
14,
-26,
-45,
-12,
-22,
-15,
15,
-7,
-20,
15,
48,
-37,
18,
19,
-6,
28,
-18,
29,
-13,
-32,
-9,
16,
-4,
-36,
-45,
-16,
-27,
-11,
3,
-20,
4,
24,
10,
59,
-5,
-13,
-6,
-9,
-68,
6,
3,
25,
53,
-71,
10,
9,
-9,
26,
-18,
-4,
26,
16,
-22,
-60,
-17,
23,
19,
-8,
-85,
-22,
67,
-5,
-61,
5,
-38,
-2,
-23,
-7,
4,
-8,
-17,
19,
8,
-10,
5,
21,
-16,
-48,
-16,
30,
-6,
-31,
-4,
17,
-2,
16,
-20,
24,
18,
-12,
12,
-16,
14,
18,
-48,
22,
28,
12,
-7,
41,
-37,
-5,
-8,
11,
17,
6,
59,
10,
41,
35,
-7,
-2,
-26,
-13,
15,
-40,
-8,
11,
-14,
-34,
30,
31,
52,
-8,
49,
54,
36,
31,
32,
-4,
26,
31,
-35,
-50,
2,
-10,
27,
30,
-20,
-15,
13,
12,
-18,
-9,
-12,
34,
34,
11,
8,
-1,
17,
15,
23,
-19,
0,
-7,
66,
-34,
-14,
24,
-25,
-10,
10,
28,
-16,
-3,
-42,
35,
-18,
10,
-15,
26,
18,
-1,
-4,
-17,
-16,
-21,
34,
6,
-13,
30,
-22,
-20,
-28,
46,
15,
-32,
-22,
39,
-25,
18,
-4,
-46,
-17,
3,
10,
43,
3,
21,
24,
-13,
-7,
-15,
-1,
-5,
-22,
1,
-4,
49,
42,
35,
-16,
0,
10,
12,
-34,
30,
-16,
20,
5,
67,
-31,
-3,
16,
4,
8,
-34,
23,
-37,
-8,
22,
-30,
12,
-31,
-13,
21,
67,
31,
74,
-32,
43,
-15,
0,
14,
2,
22,
-15,
-11,
-10,
-10,
30,
-34,
-4,
-12,
0,
0,
-10,
36,
-27,
25,
-26,
-20,
-30,
-19,
-4,
10,
22,
3,
-17,
-12,
1,
-9,
-51,
-18,
-18,
-57,
19,
-49,
-54,
23,
-34,
-46,
-11,
25,
-6,
-23,
11,
18,
-23,
-7,
34,
-68,
29,
8,
31,
-22,
13,
-16,
-9,
-16,
-39,
-16,
15,
-9,
-4,
12,
12,
-62,
24,
-4,
-19,
23,
-4,
3,
21,
5,
37,
-11,
8,
12,
-69,
48,
-52,
0,
-4,
13,
-11,
-14,
11,
-44,
2,
-5,
30,
-20,
-1,
-69,
17,
20,
-39,
35,
0,
13,
17,
1,
-16,
-15,
39,
17,
22,
15,
-41,
29,
43,
35,
-10,
10,
-25,
-10,
44,
36,
19,
3,
48,
5,
-40,
34,
-33,
15,
-42,
27,
-22,
-48,
-13,
10,
23,
-61,
43,
-28,
-19,
-29,
-25,
-46,
25,
2,
10,
-22,
50,
-24,
-32,
51,
3,
30,
17,
16,
8,
7,
-18,
23,
33,
-17,
-27,
-18,
31,
37,
-43,
-19,
21,
17,
39,
3,
41,
36,
-8,
-54,
-15,
0,
-22,
8,
17,
23,
40,
-7,
18,
-19,
-10,
12,
-15,
21,
12,
-40,
-13,
3,
-27,
-48,
57,
42,
-12,
-18,
14,
-8,
0,
-29,
5,
-48,
23,
17,
-16,
-27,
77,
31,
9,
-20,
10,
-12,
9,
2,
-28,
2,
35,
2,
-8,
38,
12,
52,
-11,
-33,
-44,
35,
-31,
-6,
38,
49,
59,
53,
-38,
-21,
32,
-55,
23,
-1,
-77,
21,
0,
-27,
4,
19,
-22,
-35,
-22,
0,
6,
21,
-50,
-22,
16,
45,
46,
41,
-80,
-7,
17,
-20,
9,
-18,
9,
21,
13,
-9,
-4,
-32,
-7,
-33,
14,
-9,
8,
13,
51,
19,
-7,
-53,
1,
7,
16,
29,
57,
-10,
-47,
9,
43,
-1,
4,
32,
8,
20,
-2,
-36,
-59,
14,
-14,
-4,
20,
-35,
32,
18,
72,
0,
-34,
-43,
19,
0,
-49,
-24,
-16,
25,
-41,
24,
4,
-24,
-21,
-5,
37,
-35,
18,
44,
-37,
21,
14,
11,
46,
-24,
6,
38,
-40,
7,
-28,
55,
-17,
0,
47,
-10,
28,
-2,
-31,
-42,
22,
10,
54,
0,
-4,
46,
8,
-14,
-48,
-45,
-18,
0,
-20,
6,
-24,
1,
-2,
-7,
25,
-2,
41,
2,
-1,
-75,
4,
-14,
17,
-5,
-26,
26,
9,
-15,
-20,
-7,
1,
28,
10,
35,
48,
-2,
40,
24,
-26,
-24,
5,
25,
-56,
-24,
-26,
28,
21,
-18,
-37,
5,
-19,
-39,
-2,
31,
-9,
-30,
46,
14,
0,
-11,
42,
-8,
40,
-37,
-25,
-23,
-11,
-11,
11,
23,
7,
28,
65,
-42,
-45,
8,
-23,
-8,
-13,
36,
8,
-46,
-3,
56,
20,
26,
-8,
-4,
-28,
4,
1,
11,
25,
41,
-6,
-45,
-32,
22,
0,
-17,
9,
38,
-2,
-22,
12,
-14,
16,
23,
24,
25,
2,
32,
-87,
-5,
21,
-25,
-5,
14,
26,
41,
18,
-15,
9,
13,
20,
-26,
18,
30,
-14,
-41,
7
] |
Grant, J.
Respondent was convicted of bastardy. Complaint was made March 9, 1899, in which the complaining witness alleged that she was begotten with child by the respondent on or about the 2d day of September, 1898. Respondent waived examination, and was bound over to the circuit court for trial. The case rested until the child was delivered, July 13, 1899.
Upon the trial respondent’s counsel objected to the introduction of testimony showing acts of sexual intercourse about the 1st of October following. Respondent absolutely denied any sexual intercourse with the complainant. Acts of intercourse and undue familiarity both before and after the alleged act resulting in conception are admissible, as bearing upon the probability of the intercourse at the time stated in the complaint. People v. Schilling, 110 Mich. 412 (68 N. W. 233), and authorities cited; Mathews v. Detroit Journal Co., 123 Mich. 608 (82 N. W. 243). It was not error, therefore, to admit this testimony. Inasmuch as the sole objection raised and argued by counsel for the respondent is upon its admissibility, it follows that no error was committed. Counsel made no request of the court to instruct the jury that the respondent could not be convicted if the child were conceived in October; neither has he made any complaint in his brief of the instruction of the court. Therefore the question decided in Hull v. People, 41 Mich. 167 (2 N. W. 175), and in People v. Schilling, 110 Mich. 412 (68 N. W. 233), is not before us. If the attention of the court had been challenged to this point, probably an amendment would have been allowed. People v. Cole, 113 Mich. 83 (71 N. W. 455).
The order of the court is that respondent pay a certain amount per month until the further order of the court. This order is void, under People v. Wing, 115 Mich. 698 (74 N. W. 179). The case, therefore, will be remanded for correction in accordance with this opinion.
Application was made to this court to dispense with the printing of the record, and to hear it upon the typewritten record, on account of the poverty of the respondent. As a result of this order, the entire proceedings upon the trial, covering over 100 pages, are submitted to this court for an examination. Even if it were to be submitted upon the unprinted record, that record need not have been to exceed 10 pages in length, to raise all the questions presented. This practice is unjustifiable, and involves unnecessary labor for us.
Respondent’s counsel cites decisions of this court from the Detroit Legal News, which have been published in our Reports, but does not cite them. In our decisions we refer to the Michigan Reports, and insist that counsel cite them in their briefs.
The other Justices concurred. | [
-23,
-1,
0,
-32,
-15,
-1,
5,
-26,
6,
-38,
-27,
-67,
53,
-4,
20,
-29,
27,
-7,
17,
-51,
7,
29,
-26,
22,
-40,
15,
27,
6,
12,
-28,
-3,
13,
-26,
21,
66,
-5,
38,
41,
23,
-5,
7,
28,
-34,
47,
5,
-8,
4,
-16,
-25,
11,
52,
-27,
-30,
5,
31,
-29,
41,
-37,
-8,
3,
-21,
35,
3,
-12,
-15,
-58,
-36,
12,
-20,
7,
40,
7,
-25,
-25,
-6,
-15,
2,
7,
8,
30,
22,
-28,
28,
27,
9,
1,
24,
-3,
-19,
38,
29,
-27,
-30,
-57,
0,
-40,
-5,
-21,
-39,
-9,
1,
-4,
-32,
-5,
0,
34,
-20,
38,
-2,
31,
35,
-20,
8,
44,
9,
-6,
0,
19,
-28,
-102,
46,
2,
28,
33,
-27,
-4,
-37,
-65,
5,
-21,
28,
6,
2,
6,
28,
-30,
7,
-44,
42,
8,
6,
-1,
-34,
19,
1,
24,
-32,
7,
-1,
-30,
-31,
-1,
37,
8,
-2,
-20,
-7,
-46,
51,
-10,
10,
22,
-56,
-40,
-4,
-28,
-9,
10,
17,
-26,
6,
16,
14,
26,
-6,
-3,
-40,
-20,
9,
16,
-3,
31,
0,
-6,
24,
9,
47,
12,
-42,
-54,
-56,
8,
-31,
-4,
33,
58,
-17,
0,
12,
-57,
-20,
-1,
-8,
79,
22,
-9,
-66,
-35,
1,
25,
29,
35,
-21,
-16,
23,
-19,
5,
-17,
-71,
34,
4,
-13,
36,
20,
-22,
-8,
4,
50,
-34,
34,
-2,
39,
-10,
23,
-2,
-17,
-7,
-48,
8,
4,
-33,
8,
8,
-32,
-15,
48,
-12,
-14,
22,
2,
40,
37,
-38,
33,
-66,
-37,
33,
17,
-6,
-24,
-19,
15,
7,
-23,
-11,
0,
33,
37,
-11,
-16,
42,
2,
9,
-42,
-29,
-19,
-4,
17,
2,
14,
-42,
-30,
19,
53,
-3,
-21,
-56,
14,
-3,
15,
48,
-6,
16,
-68,
66,
53,
18,
44,
-3,
-23,
67,
12,
1,
-15,
-17,
-29,
0,
41,
-47,
-41,
-24,
8,
19,
24,
66,
23,
0,
-45,
43,
51,
-32,
-16,
-25,
-43,
-35,
42,
-4,
-59,
-46,
0,
-63,
41,
-7,
15,
5,
21,
-18,
-33,
0,
-3,
18,
20,
-8,
-8,
-11,
-16,
-13,
-66,
33,
-11,
16,
-44,
34,
-23,
-64,
41,
-10,
-87,
12,
-27,
10,
24,
-15,
-8,
10,
-16,
-27,
-36,
56,
12,
6,
-21,
11,
9,
29,
-20,
-12,
5,
-8,
48,
-9,
-16,
-34,
-23,
20,
4,
1,
35,
8,
-22,
2,
1,
11,
29,
7,
-35,
55,
5,
15,
-20,
20,
-34,
0,
-1,
-35,
37,
4,
39,
15,
-10,
19,
56,
-16,
7,
60,
-47,
-1,
-49,
19,
13,
28,
28,
25,
-11,
0,
22,
41,
5,
29,
-24,
-5,
-34,
27,
32,
16,
-23,
-31,
3,
-38,
-26,
-28,
64,
0,
96,
-2,
21,
-14,
20,
2,
-9,
-4,
24,
4,
-26,
45,
32,
12,
8,
0,
3,
23,
-15,
-9,
-8,
31,
8,
8,
-6,
-14,
11,
-17,
-2,
-4,
-5,
35,
43,
23,
-21,
13,
-5,
0,
3,
-33,
-10,
6,
37,
-39,
-21,
0,
25,
-31,
-15,
-51,
18,
4,
-28,
-33,
-1,
-24,
-11,
-2,
-2,
-9,
-9,
36,
-28,
57,
-24,
-11,
-21,
-41,
16,
-23,
-12,
-19,
50,
45,
37,
-6,
-34,
2,
60,
25,
-21,
40,
15,
9,
-23,
6,
41,
28,
39,
23,
-31,
32,
-30,
-10,
-47,
0,
22,
0,
1,
16,
39,
3,
24,
32,
20,
-24,
22,
-13,
-29,
-25,
5,
-35,
18,
27,
-9,
-66,
-4,
-42,
20,
28,
-66,
14,
-25,
10,
-65,
-27,
5,
55,
22,
-34,
-10,
-17,
-3,
-3,
-1,
48,
-10,
31,
-10,
11,
-29,
-30,
-4,
-28,
12,
-19,
14,
-46,
8,
0,
-25,
10,
8,
-40,
26,
11,
13,
16,
11,
-30,
44,
-26,
33,
-30,
-12,
-4,
-65,
24,
3,
26,
1,
15,
40,
-37,
-25,
0,
45,
-15,
33,
2,
-56,
-8,
-20,
-28,
-61,
7,
-30,
-49,
2,
-51,
10,
-2,
64,
28,
15,
18,
-8,
33,
23,
-13,
7,
28,
38,
8,
20,
-13,
-39,
-3,
-14,
15,
-35,
0,
-12,
-17,
-29,
20,
28,
22,
-11,
-24,
9,
46,
-13,
5,
53,
33,
-4,
-24,
-28,
-18,
3,
5,
-19,
4,
38,
34,
-9,
-32,
20,
-13,
20,
7,
8,
-32,
27,
-9,
28,
9,
-9,
11,
55,
-34,
-4,
1,
-12,
-30,
10,
-23,
-15,
-39,
-9,
26,
-12,
20,
-10,
22,
-42,
11,
48,
-25,
20,
-6,
1,
17,
-30,
1,
10,
-27,
30,
57,
68,
19,
27,
-2,
-15,
12,
-32,
3,
-1,
47,
85,
57,
3,
5,
5,
5,
-25,
19,
13,
-66,
-33,
-16,
-1,
48,
-11,
-23,
5,
27,
35,
-33,
-8,
-37,
10,
4,
-24,
-25,
-12,
6,
18,
-9,
-31,
-55,
19,
-57,
11,
50,
-13,
-25,
-54,
43,
0,
-41,
20,
22,
-1,
-7,
-32,
23,
-8,
-53,
39,
-12,
-10,
62,
-56,
31,
-8,
23,
-23,
-15,
37,
5,
8,
-19,
-37,
18,
-20,
-22,
-3,
-12,
-60,
1,
28,
-20,
-5,
3,
10,
21,
21,
-45,
-24,
-21,
-24,
3,
-22,
64,
-45,
26,
29,
22,
-23,
-26,
-2,
33,
20,
29,
-27,
9,
17,
52,
41,
-27,
-25,
40,
-32,
19,
6,
23,
-6,
-4,
-20,
34,
2,
17,
13,
30,
-14,
28,
-22,
-8,
62,
-42,
-29,
-25,
-1,
43,
48,
-4,
-20,
-26,
-18,
27,
27,
40,
-91,
33,
-37,
-1,
-20,
-30,
-16,
-55,
-15,
23,
-33,
39,
38,
36,
-38,
18,
-8,
1,
-26,
23,
-54,
-43,
-14,
18,
0,
31,
45,
-26,
-16,
-4,
19,
-9,
-14,
17,
16,
2,
-4,
-10,
-33,
-15,
5,
-39,
1,
0,
-81,
-34,
-1,
-51,
13,
-33,
-53,
51,
-43,
46,
5,
-2,
1,
-45,
-34,
0,
2,
-49,
17,
-16,
7,
-72,
-26,
54,
-10,
20,
-1,
-2,
6,
53,
-9,
-72,
-6,
-20,
26,
7,
-2,
-8,
0,
31,
49,
78,
36,
18,
14,
-73,
1,
-65,
45,
36,
62,
0,
48,
-29,
57,
13,
13,
49,
32,
0,
9,
-13,
8,
3,
38,
5,
-5,
64,
-1,
-8,
-18,
-41,
-26,
-32,
2,
7,
9,
-22,
-28,
12,
-6,
-27,
6,
2,
-9,
-23,
-64,
2,
-2,
-18,
-18,
-25,
43,
-37,
-93,
13,
12,
-28,
-20,
6,
35,
1,
13,
8,
0,
-52,
7,
-10,
-32,
14,
-20,
20,
32
] |
Moore, J.
The complainant filed a bill to remove a cloud upon her title to certain real estate, the cloud consisting of tax titles owned by defendants. Answers in the nature of cross-bills were filed. Prom a decree dismissing the bill of complaint, complainant appeals.
The record shows the following state of facts:
“Dr. William Paine died in July, 1893, seised of the lands described in the bill of complaint, and other lands in the immediate neighborhood. Complainant, the wife of Paine, then became the owner of these lands by and through his last-will and testament. Part of the lands were delinquent for the taxes of 1891, and were sold to the State at the annual tax sale in December, 1893. All of the lands were delinquent for the taxes of 1892, and became delinquent for the taxes of 1893 and 1894. At the annual tax sale, and on the 3d day of December, 1894, defendant Boynton purchased 80 acres of the land for the taxes of 1891 and 1892. At the same time defendant Harbeck purchased the other lands described in the bill of complaint for tho taxes, of 1892. Complainant alleges in her bill of complaint that she had one year for the redemption of said lands from such purchase, and that, after the expiration of one year, the title to said lands became absolute, and vested in defendants, Boynton and Harbeck, according to their respective purchases. Defendants, in their answers, deny that there was any redemption from the sales for the taxes of 1891, and admit that the title to said lands vested in them after the expiration of the year’s redemption from the sales for the taxes of 1892. Complainant has not attacked, either by her pleadings or proofs, the validity and regularity of the sales and deeds to defendants, except by claiming that she redeemed from such sales, or acquired title by virtue of a subsequent purchase for the taxes of 1893.
“The time of redemption from the sales to defendants for the taxes of 1892 expired on the 3d day of December, 1895. On the 2d day of December, 1895, complainant purchased a draft in Philadelphia, Pa., and mailed the same to the county treasurer of Muskegon county, together with á letter requesting the county treasurer to apply the draft in part payment of the taxes due on the Paine lands in Muskegon county. In the evening of the same day complainant sent a night telegraph message to the county treasurer, notifying him that the draft had been mailed. The telegram was received by the county treasurer on the 3d day of December. The letter and draft did not reach the county treasurer until the 4th day of December, and after the time of redemption had expired. Neither the telegram nor the letter contained any descriptions of land. The county treasurer did not know, and had no means of knowing, either the lands upon which complainant desired to pay or the year’s taxes to be paid. The telegram, letter, and draft were laid aside until the descriptions of land should be ascertained. On the 9th of December, complainant, at Philadelphia, mailed to the county treasurer a list of the lands. This letter reached the county treasurer on the 11th. The annual tax sales closed on the 7th day of December, 1895, and four days prior to the receipt of the list of lands.
“ Upon receipt of such list, the county treasurer made out and issued to D. William Paine certificates |of purchase for the taxes of 1893 of the lands which had been purchased by defendants December 3, 1894, for the taxes of 1891 and 1892, and certificates of redemption of the other lands described in the list .from the taxes of 1893, and tax receipts for the taxes of 1894. These receipts and certificates of purchase and redemption were mailed to complainant at Philadelphia. On the 14th day of December, complainant’s attorney at Philadelphia wrote a letter to the county treasurer, acknowledging the receipt of the certificates and tax receipts, and made inquiries concerning the taxes for 1892. This letter reached the county treasurer on the 16th or 17th of December, and was answered on December 17th. On the 21st day of December, complainant’s attorney at Philadelphia wrote the county'treasurer, and for the first time informed him that they desired the money which had been sent to him to be applied to the payment of the earliest taxes in arrears, and4 asked him to apply the money to the payment of the taxes of 1892, and make a proper adjustment of the matter. On the 23d day of December, 1895, the county treasurer wrote complainant’s attorney the following: ‘Your list did not reach this office until the time for redemption of 1892 taxes had expired. A tax title for that year is not very good, and you can probably settle with the parties who purchased the taxes for that year at a reasonable rate of interest.’ The above letter closed the correspondence, Nothing further was done by complainant concerning the taxes and tax deeds of defendants for the years 1891 and 1892 until the commencement of this suit.
‘.‘ Each of the defendants filed a cross-bill to quiet the title in him to the lands deeded to him by the auditor general. The cross-bills allege the regularity and validity of the sales and deeds to the defendants, and also a title in fee simple in the defendants by virtue of the tax deeds. Complainant, in her answers to the cross-bills, neither admits nor denies these allegations -in the cross-bills, except to deny their validity upon the ground that defendants’ deeds have not been recorded, and except that in her answers she refers to the allegations in her bill of complaint, and adopts those allegations as part of the answers.”
Counsel claim that the depositing of the letter containing the draft in the post-office at Philadelphia was a delivery of the draft to the county treasurer, and that, as the letter was mailed before the expiration of the time in which redemption might be made, defendants have no title based upon the taxes of 1891 ahd 1892. They cite certain cases, all of which are insurance cases, which hold that a forfeiture will be prevented if the draft is sent on the day payment should be made. We’think it would be a novelty to apply this doctrine to a redemption of lands from sales for taxes. The person having the right to redeem must avail himself of that right during the time fixed by the statute. See Paine v. Commissioner of State Land Office, 66 Mich. 245 (33 N. W. 491). The money came to the county treasurer after the period of redemption was ended. He made no effort to apply the money to the redemption of the lands. The complainant was advised of what he had done, and she in turn made no effort to have it so applied.
The county treasurer used the money for the purpose of buying the land for the taxes of 1893 in the name of D. William Paine, to whom certificates of purchase were issued, and later deeds were made. It is now claimed these deeds cut off the title of defendants. Mr. Paine had been dead for several years when the money was sent to the county treasurer, and when the certificates of purchase and the deeds were made. It has long been settled that a deed running to a grantee not in existence is a nullity. Skinner v. Grace Church, 54 Mich. 543 (20 N. W. 577).
It is said defendants did not prove a shadow of title to the lands, as they did not prove a decree or proceedings leading up to a decree. The bill filed by the complainant avers that defendants obtained tax titles to these lands, and then alleges:
“ That said lands so bid in in the name of said Boynton were subject to redemption for one year after the same were sold by the State for the taxes for the year 1891; also for the taxes for the year 1892; and that, after the said year for redemption had expired, the title became absolute in said Boynton, and it became and was then and there his duty to pay all taxes assessed thereon; that the bids made in the name of Herman F. Harbeck for the taxes for the year 1892 were subject to redemption for one year thereafter, and, when that year of redemption expired, the title to said lands so bid in as aforesaid vested in said Harbeck, and it became and was then and there his duty to pay all taxes assessed against said lands aforesaid, — if they, or either of them, expected to, or intended to, claim said lands by virtue of said several tax sales aforesaid.”
The bill then avers that the taxes were paid by com plainant in the way we have already discussed. The answers of defendants admitted obtaining tas deeds on these lands, and their title thereto, and denied complainant had paid the taxes on the lands. Upon the trial, defendants introduced their deeds in evidence. As we have already said, complainant did not redeem these lands. Under the pleadings we do not think she can now urge that defendants have not shown any title in themselves. Emerson v. Atwater, 12 Mich. 314.
The decree is affirmed, with costs
The other Justices concurred. | [
-5,
28,
13,
0,
16,
28,
23,
-24,
23,
35,
-11,
-3,
29,
33,
11,
-10,
-14,
3,
-19,
10,
-17,
-26,
-3,
44,
-11,
7,
15,
24,
-30,
5,
50,
-36,
-42,
7,
28,
-22,
35,
-13,
9,
15,
-61,
28,
0,
-34,
-5,
12,
-22,
1,
30,
-3,
18,
-25,
16,
-43,
-38,
-7,
-16,
3,
-33,
-40,
-5,
4,
-10,
-11,
-7,
3,
15,
-25,
5,
-17,
14,
43,
40,
-59,
-5,
-17,
5,
-23,
-5,
22,
-47,
-34,
4,
-9,
-9,
11,
7,
8,
1,
40,
-18,
-36,
-18,
45,
31,
12,
14,
7,
19,
33,
4,
-2,
-43,
34,
33,
-31,
18,
-14,
-18,
-43,
28,
-11,
42,
-3,
39,
-12,
-11,
-30,
5,
-17,
6,
-15,
29,
-27,
9,
25,
-51,
-4,
-19,
17,
7,
0,
-34,
-10,
3,
-15,
-7,
-1,
3,
-29,
-17,
-17,
-8,
-61,
-19,
33,
-41,
-23,
31,
-57,
-31,
40,
42,
22,
23,
-17,
22,
-6,
36,
-44,
44,
-13,
-30,
-42,
-25,
-2,
12,
3,
3,
8,
58,
18,
-26,
1,
-4,
-33,
18,
-7,
5,
5,
11,
-7,
38,
0,
1,
-50,
16,
-30,
-35,
-22,
39,
-31,
-2,
-3,
-8,
0,
10,
-16,
21,
0,
-12,
-63,
-3,
11,
40,
-4,
3,
-12,
-68,
-3,
-29,
20,
4,
-17,
-58,
28,
37,
-3,
-19,
19,
66,
20,
9,
23,
-57,
-40,
39,
-9,
8,
-9,
7,
6,
-3,
21,
-18,
-13,
14,
21,
-31,
-19,
-59,
34,
-2,
-35,
-22,
49,
11,
8,
-9,
58,
-35,
22,
-56,
13,
-19,
6,
-5,
-23,
-23,
-60,
-32,
3,
-8,
-35,
-27,
-32,
32,
17,
15,
22,
6,
28,
5,
31,
-23,
-24,
16,
1,
-13,
-6,
60,
-20,
73,
7,
-23,
54,
6,
0,
-5,
-26,
-8,
-17,
15,
7,
6,
66,
9,
8,
29,
-21,
-31,
-6,
26,
-30,
30,
30,
56,
0,
20,
-1,
3,
-12,
39,
-17,
-9,
22,
-12,
-4,
8,
18,
9,
4,
-1,
-1,
-22,
19,
22,
-43,
-27,
36,
-24,
40,
22,
-5,
21,
-13,
28,
-35,
-50,
-27,
34,
31,
25,
-16,
13,
13,
-15,
8,
12,
29,
-37,
-7,
-53,
38,
27,
-44,
21,
6,
-7,
22,
46,
38,
-23,
-31,
-1,
-43,
-27,
-21,
-1,
-6,
16,
12,
-8,
48,
-17,
1,
-23,
33,
23,
14,
38,
-12,
-3,
45,
-3,
9,
13,
-32,
0,
-7,
4,
22,
9,
0,
-42,
-48,
-9,
-50,
-98,
20,
-21,
20,
1,
18,
-37,
10,
-13,
37,
-9,
37,
-4,
-65,
49,
-40,
4,
-21,
1,
-56,
35,
24,
32,
13,
-3,
-39,
-27,
-58,
13,
6,
47,
45,
-45,
19,
33,
-12,
15,
-28,
-60,
-39,
10,
-3,
6,
63,
25,
49,
-8,
15,
-20,
8,
30,
-3,
-16,
-67,
-9,
6,
-19,
2,
62,
-46,
49,
-15,
42,
-17,
-32,
28,
9,
33,
-5,
8,
10,
25,
-18,
4,
4,
-44,
-5,
-23,
35,
-21,
19,
6,
9,
-21,
-26,
-3,
-59,
-37,
42,
12,
-37,
-35,
66,
-40,
-14,
-7,
6,
17,
-29,
-35,
0,
16,
-3,
36,
-1,
37,
-1,
-1,
-35,
9,
40,
42,
-41,
-33,
-17,
50,
1,
57,
49,
-22,
51,
0,
8,
-11,
-57,
0,
1,
25,
42,
10,
67,
9,
-30,
-27,
-40,
24,
-17,
8,
7,
8,
-52,
3,
-1,
42,
28,
16,
-13,
22,
25,
-12,
-8,
-38,
-16,
-17,
-13,
-8,
-36,
-2,
5,
-48,
13,
13,
-9,
-18,
-34,
-79,
26,
-37,
38,
-50,
-16,
11,
-13,
-47,
44,
-39,
19,
-2,
-35,
-32,
15,
41,
-66,
-44,
4,
-39,
46,
7,
25,
49,
16,
-7,
-11,
-10,
3,
17,
-9,
-11,
-33,
-19,
43,
3,
-40,
-35,
-18,
-35,
16,
28,
-16,
6,
14,
-8,
28,
10,
3,
-13,
18,
51,
5,
-16,
22,
-25,
22,
16,
16,
-9,
54,
-1,
33,
0,
-26,
40,
12,
-43,
-14,
24,
-9,
20,
13,
30,
5,
-6,
-52,
-35,
-58,
-54,
-24,
75,
-36,
13,
-10,
-58,
-17,
-18,
-25,
4,
-18,
1,
-14,
5,
22,
8,
9,
-34,
34,
36,
13,
-22,
5,
-40,
-56,
10,
-8,
-39,
4,
-47,
-5,
23,
2,
45,
0,
-11,
20,
-15,
20,
6,
-18,
-10,
0,
24,
-18,
3,
-3,
-55,
0,
46,
-37,
5,
-20,
-29,
41,
36,
19,
37,
-11,
52,
-11,
14,
16,
-7,
-31,
-49,
-21,
5,
37,
-43,
2,
17,
58,
8,
-1,
-36,
31,
-35,
33,
-24,
-1,
26,
32,
9,
-2,
39,
-12,
67,
-15,
-1,
-46,
17,
-18,
8,
-10,
-19,
-2,
8,
-38,
-24,
37,
-24,
-15,
5,
0,
25,
4,
-1,
9,
27,
3,
-45,
-35,
-25,
-6,
-7,
29,
34,
4,
7,
1,
4,
18,
-43,
62,
7,
-11,
26,
-25,
-24,
45,
-2,
-38,
14,
17,
-10,
28,
-57,
-46,
-16,
-9,
-14,
48,
-1,
3,
-23,
-7,
-6,
5,
-16,
-34,
10,
-16,
-25,
-34,
-43,
9,
-3,
-1,
4,
0,
46,
-2,
14,
-56,
36,
14,
-29,
-13,
-36,
-25,
-42,
-16,
28,
-14,
-18,
-14,
12,
-5,
58,
7,
-4,
2,
27,
-16,
12,
11,
-24,
-47,
12,
24,
-29,
7,
4,
-21,
-7,
-34,
7,
20,
13,
-12,
7,
4,
22,
-27,
14,
-34,
-11,
-15,
-12,
-75,
-27,
17,
-14,
12,
-13,
38,
-30,
-15,
-3,
-11,
4,
52,
21,
99,
10,
-36,
-12,
-27,
29,
37,
27,
8,
-28,
-28,
3,
-25,
-32,
-22,
25,
19,
72,
47,
-17,
-22,
-8,
-21,
-21,
22,
-22,
-35,
-10,
4,
-8,
6,
22,
8,
36,
39,
-46,
-22,
-32,
-2,
16,
8,
10,
8,
-14,
-8,
-38,
-56,
-15,
-2,
-32,
16,
-24,
47,
2,
-16,
28,
-25,
12,
20,
-24,
-24,
79,
14,
-26,
-26,
14,
-25,
11,
30,
-23,
32,
0,
23,
-13,
-23,
-22,
-37,
12,
33,
9,
38,
39,
5,
24,
33,
35,
-77,
-4,
-35,
-15,
-8,
-13,
-35,
14,
1,
-30,
18,
36,
31,
28,
3,
-11,
3,
-26,
6,
19,
44,
42,
-22,
0,
21,
64,
24,
0,
0,
39,
-27,
-11,
39,
-19,
-59,
-14,
24,
40,
43,
-1,
-23,
-36,
-29,
36,
-19,
-26,
12,
-55,
24,
16,
-6,
-70,
51,
35,
63,
-26,
-51,
27,
52,
8,
-65,
5,
20,
10,
-5,
-2,
18,
30,
1,
22
] |
Grant, J.
(after stating the facts). It is urged that the court erred in holding that the evidence to maintain adverse possession must be disregarded because the notice was insufficient under the new rule of the court. The court found that there was no adverse possession of 10 years’ duration by Hall under any claim; that he did not acquire title under the tax deed of 1888 until October 17, 1893, and less than five years before the commencement of suit. Under these findings it becomes unnecessary to determine the question of the sufficiency of the notice attached to the plea. The testimony as to adverse possession is not returned. The finding of the court, therefore, is conclusive.
The tax deed for the years 1869 to 1880 was inadmissible in evidence, and is ineffectual, for the reason that there was no proof of the regularity of the tax proceedings. The law under which the sale took place did not provide that deeds issued thereunder should be prima facie evidence of title. Farmers & Mechanics’ Bank v. Bronson, 14 Mich. 361, 373.
The tax deeds for 1882 and 1883 were void, under Hall v. Perry, 72 Mich. 205 (40 N. W. 324). Counsel for defendant, in their brief, assert that the court erred in holding that the tax deed for 1882 was void because the sale was made under the law of 1885, and that that law was not retroactive. They state that the deed recites that it was under “Act No. 229 of 1881, as amended by Act No. 7 of 1882.” We have examined the deed (a copy of which is not printed, but which is attached to the original record), and we find no such statement in the deed. The only recital in the deed is that the sale was for the delinquent taxes of 1882, and was made October 6, 1885.
The tax deeds for 1887 and 1888 were void, under Millard v. Truax, 99 Mich. 157 (58 N. W. 70).
The recitals in the three documents executed in 1846 (one of which was the power of attorney to Dana, another the deed from the survivors to Allsop, and the third the order of the court vacating the plat of North St. Joseph) are the sole evidence of the death of Sterne. These are ancient documents. 2 Jones, Ev. § 312. Recitals in ancient deeds are proof of the facts therein recited, even as against strangers. Underh. Ev. §§ 53, 54; Deery v. Cray, 5 Wall. 795; Fulkerson v. Holmes, 117 U. S. 389 (6 Sup. Ct. 780); Jackson v. Cooley, 8 Johns. 128; Bowser v. Cravener, 56 Pa. St. 142; Chamblee v. Tarbox, 27 Tex. 139. The authorities cited by counsel for defendant are not cases of ancient documents.
The power of attorney contains the words, “ excepting therefrom such lots as may have been heretofore conveyed.” Counsel for defendant insist that plaintiff should have shown what lots, if any, were conveyed. The power of attorney does not state that any lots were conveyed. By introducing his deeds covering .the entire land, plaintiff made a prima facie case of ownership. If any land had been sold by his grantors, the onus probandi was upon the defense to show it.
Joint tenancy is not created by operation of law, but by the specific act of the parties. 2 Rice, Mod. Law Real Prop. § 420. The deed from Dyson to the five trustees expressly stated that they were to hold “ as joint tenants, and not as tenants in common.” Under the declaration of trust, executed simultaneously with the deed, and the articles of association, which are given in full in. the instrument, the five trustees hold this land in trust for the association, the proceeds of the sale to be divided among the shareholders in proportion to their holdings. Counsel for defendant contend that, reading the instrument as a whole, it was not intended to confer power to sell upon four trustees in the event of the death of one. It is true that the declaration provides for the appointment of a successor in the event of the death of one of their number. We, however, do not think that this takes away the right of survivorship which exists at the common law. Survivorship is the distinguishing attribute of joint tenancy, and has been generally abrogated by statute, except in the case of joint trustees. 2 Rice, Mod. Law Real Prop., supra; 1 Perry, Trusts, § 343. The intent, therefore, to avoid the rule of survivorship, must clearly appear in the instrument itself. Besides, these defendants are not in position to raise the question. They are not cestuis que trustent, who alone can interfere. As long as they are satisfied with the action of their trustees in selling the property, other parties cannot object. 1 Perry, Trusts, supra.
Judgment is affirmed.
The other Justices concurred. | [
-31,
56,
23,
-8,
-27,
37,
22,
44,
19,
14,
9,
-15,
25,
33,
32,
-18,
-12,
44,
-30,
9,
10,
-4,
-27,
5,
5,
-13,
40,
40,
-13,
-1,
38,
5,
-23,
14,
5,
6,
-14,
-23,
8,
-13,
-2,
5,
12,
-22,
-16,
12,
-27,
-22,
22,
-9,
24,
-18,
4,
-28,
35,
7,
-12,
2,
-13,
13,
41,
-30,
0,
33,
-33,
3,
15,
-8,
1,
-74,
-31,
6,
13,
-26,
17,
-19,
5,
57,
-31,
-7,
48,
-39,
45,
-31,
0,
-19,
-6,
-57,
25,
-35,
-9,
-5,
10,
-14,
36,
21,
54,
29,
-1,
-16,
-8,
6,
11,
21,
33,
-10,
-15,
13,
-38,
-57,
14,
-21,
31,
11,
-9,
-7,
1,
-13,
-21,
-30,
46,
-52,
27,
-4,
32,
29,
-10,
-16,
15,
-7,
-13,
5,
-48,
51,
25,
-31,
-9,
-39,
1,
-23,
4,
10,
-16,
-54,
15,
20,
2,
-21,
16,
-31,
-61,
68,
13,
-17,
-24,
0,
5,
-40,
24,
-50,
32,
49,
-41,
-67,
-20,
18,
4,
-18,
-2,
-7,
38,
2,
-34,
-7,
43,
23,
16,
29,
-27,
-5,
4,
-25,
26,
-54,
-9,
-70,
-3,
-9,
-6,
-46,
2,
25,
-28,
-6,
-24,
27,
-19,
13,
7,
-30,
-10,
-51,
-3,
12,
25,
19,
29,
-53,
-5,
68,
-38,
1,
-15,
-32,
0,
2,
-4,
-15,
11,
21,
43,
57,
-24,
-43,
-1,
14,
34,
0,
-31,
26,
-67,
49,
-4,
-61,
-33,
-13,
19,
-7,
5,
-1,
21,
-19,
-25,
3,
-31,
23,
4,
-20,
-27,
26,
-23,
-29,
-39,
28,
-21,
-31,
20,
3,
-48,
-52,
5,
81,
0,
-38,
0,
-35,
19,
-3,
-11,
12,
-18,
-3,
17,
28,
1,
-5,
-8,
-21,
-27,
19,
-25,
-26,
52,
54,
-40,
39,
2,
52,
4,
13,
45,
-47,
-46,
31,
11,
24,
22,
-5,
12,
10,
-1,
8,
16,
1,
12,
-23,
-27,
9,
17,
2,
14,
20,
-13,
31,
4,
33,
-23,
-38,
0,
-14,
-9,
9,
-2,
-45,
13,
13,
34,
-80,
-3,
26,
-27,
6,
0,
8,
5,
12,
32,
-66,
-4,
-4,
-5,
-10,
9,
-41,
15,
8,
-44,
-9,
-4,
75,
7,
4,
-14,
25,
-1,
-10,
13,
-10,
14,
34,
34,
10,
35,
3,
-27,
15,
-58,
-18,
75,
25,
50,
12,
2,
44,
-23,
-8,
4,
-2,
-9,
12,
7,
-7,
13,
-6,
0,
50,
-3,
-26,
6,
26,
-32,
-18,
32,
0,
-6,
-36,
25,
14,
-45,
-28,
-37,
3,
-10,
-14,
-32,
-8,
10,
21,
-11,
32,
13,
8,
-9,
-49,
-1,
-15,
43,
-11,
23,
-5,
-4,
26,
-1,
-36,
-8,
-10,
0,
76,
-1,
3,
24,
16,
48,
-14,
13,
5,
-17,
14,
-6,
0,
-9,
15,
9,
27,
-2,
47,
-25,
9,
14,
18,
3,
5,
0,
22,
-9,
43,
83,
-64,
33,
-14,
71,
-22,
-27,
29,
18,
-23,
-28,
-50,
18,
-11,
-6,
-6,
24,
-10,
-15,
13,
-18,
-18,
28,
32,
34,
22,
41,
42,
-15,
10,
-54,
-18,
-28,
-18,
42,
-10,
15,
2,
-23,
-19,
0,
-31,
13,
28,
-2,
27,
2,
-11,
16,
14,
-18,
-40,
-12,
58,
13,
-24,
27,
21,
-26,
14,
23,
-1,
13,
8,
23,
-36,
-66,
-40,
12,
6,
47,
44,
21,
-9,
41,
52,
22,
-27,
-7,
11,
12,
15,
-16,
19,
-35,
16,
14,
35,
-12,
28,
16,
-12,
-30,
0,
-34,
-39,
-18,
17,
-48,
-26,
14,
-25,
-11,
-5,
-5,
-33,
34,
-53,
66,
-24,
-6,
-52,
-31,
-20,
-46,
-50,
27,
-36,
-30,
-16,
-19,
-44,
12,
1,
-33,
34,
11,
-65,
14,
19,
-20,
21,
1,
19,
19,
20,
-40,
-9,
-53,
-7,
-28,
8,
-7,
20,
8,
-21,
0,
5,
34,
2,
-29,
-9,
24,
-38,
14,
-2,
23,
5,
7,
47,
14,
-39,
25,
42,
-1,
23,
17,
-40,
-4,
-9,
10,
6,
-28,
27,
-5,
-5,
-8,
19,
-35,
51,
20,
-26,
26,
-43,
-12,
-51,
-32,
37,
21,
35,
-39,
2,
19,
-26,
-39,
-7,
-22,
8,
3,
42,
42,
-45,
46,
-48,
50,
-39,
-3,
31,
-8,
3,
9,
-25,
26,
2,
-5,
-22,
-18,
-2,
-4,
3,
14,
14,
87,
16,
-4,
-12,
7,
13,
11,
-75,
-13,
-6,
13,
30,
16,
-23,
-25,
34,
-47,
10,
14,
47,
34,
25,
39,
3,
16,
32,
-43,
10,
12,
-38,
-19,
-25,
7,
12,
-1,
-65,
-22,
34,
21,
-3,
-17,
-20,
-21,
-49,
2,
-37,
0,
-28,
44,
-28,
-16,
0,
-4,
0,
-17,
3,
-4,
4,
22,
20,
4,
0,
-34,
-20,
-9,
15,
5,
14,
68,
21,
-2,
-1,
50,
-13,
21,
18,
-24,
-5,
-31,
1,
-38,
-61,
25,
23,
-41,
-3,
9,
-14,
-51,
-18,
-25,
-9,
-22,
-2,
10,
-2,
21,
-6,
-6,
-5,
63,
-10,
13,
-33,
-17,
41,
8,
-12,
-7,
0,
-24,
36,
12,
-4,
-6,
-27,
-38,
3,
-9,
-42,
11,
4,
5,
11,
5,
17,
24,
31,
-27,
50,
15,
-5,
37,
-23,
-26,
-37,
-13,
-11,
11,
48,
6,
-19,
8,
-2,
-21,
-15,
0,
10,
-1,
-11,
-1,
-8,
14,
-45,
-52,
23,
38,
-62,
-45,
30,
-1,
-32,
-1,
-15,
-30,
17,
3,
-3,
-16,
5,
-5,
19,
-35,
-5,
-7,
-4,
-13,
5,
-1,
-9,
50,
1,
3,
31,
3,
0,
7,
-13,
10,
-10,
14,
-2,
-30,
12,
-14,
39,
3,
-11,
16,
2,
-3,
20,
14,
25,
-24,
26,
-26,
-12,
19,
-31,
17,
12,
15,
12,
-6,
26,
-5,
-11,
30,
-33,
9,
-1,
-42,
-43,
-22,
18,
0,
10,
39,
26,
31,
-5,
3,
-31,
-38,
-75,
-13,
-21,
-44,
-44,
35,
17,
80,
11,
-32,
-26,
0,
-51,
-19,
14,
-26,
9,
-24,
50,
-30,
23,
65,
17,
12,
-32,
8,
-10,
15,
-5,
-13,
42,
-64,
19,
43,
12,
-20,
1,
-10,
-3,
46,
40,
-6,
33,
-45,
-52,
-32,
12,
-24,
48,
-14,
-28,
31,
16,
31,
-13,
-23,
27,
-45,
-13,
-14,
11,
3,
38,
22,
13,
-8,
9,
7,
-25,
-21,
-2,
1,
-9,
12,
-31,
-62,
-19,
27,
33,
8,
2,
-39,
13,
-12,
13,
-8,
-3,
-5,
-36,
50,
10,
22,
-57,
47,
9,
-28,
-22,
-80,
-17,
10,
53,
-39,
18,
-31,
22,
-2,
8,
46,
-4,
-14,
37
] |
Long, J.
This is an action of ejectment. The premises in controversy belonged to John Gellen in his lifetime, and were occupied as a homestead by him and his wife, the defendant. He died in October, 1895, leaving a last will and testament, which was duly probated. By the will Peter Braun was appointed executor of the estate. The will directed that the executor should sell and dispose of all the real estate of the deceased, and that the executor should pay out of the estate all the debts of the deceased, and should also pay the widow of the deceased such sum or amount as might be agreed upon between the executor and the widow in lieu of her dower interest, ‘ ‘ and, in case of disagreement, such sum or amount as the court may direct.” It appears that the executor and the widow could not agree upon the amount the widow should receive in lieu of her dower interest, and thereupon the executor filed a petition in the probate court, asking the court to fix the amount he should pay said widow in lieu of her dower right, according to the terms of said will. At the same time the widow petitioned the probate court for the same purpose. The prayer of her petition reads as follows:
“Your petitioner therefore asks the court to proceed under the provisions of the will above cited, and allow your petitioner a reasonable sum out of said estate, instead of her dower interest, but to be in lieu thereof.”
The probate court heard both petitions as one, and made a decree which provides:
“That said Catherine Gellen be allowed the sum of one hundred and ninety-six and forty-three hundredths dollars in lieu of her dower interest in the real estate of said deceased, and that the executor pay the same to her accordingly.” '
The executor tendered her the amount fixed by the decree, which she refused to accept, claiming that it was not enough for her dower interest. No appeal, however, was taken from this decree. The executor, after advertising according to law, sold the premises in controversy here at public sale by virtue of the power given him by the will, and the plaintiff became the purchaser thereof, and received the executor’s deed therefor. Written demand was served by the plaintiff upon defendant for possession of the premises before suit was commenced. The defendant has occupied the premises ever since the death of her husband as her homestead, and still occupies and claims them as such, and avers that she has no other homestead. December 14, 1896, plaintiff commenced proceedings against defendant before a circuit court commissioner, under 3 Comp. Laws 1897, § 11164 et seq., for the purpose of obtaining possession of these premises and other lands. The defendant, in her plea before the-commissioner, claimed the premises as her homestead. The commissioner decided that the plaintiff was entitled to that part of the premises not occupied by defendant as a homestead, but was not entitled to a judgment for that part which was occupied by defendant as her homestead. No appeal was taken by either party from this judgment. The widow took no proceedings for the assignment or recovery of her dower, as provided by 3 Comp. Laws 1897, §§ 8935, 8936. On these facts the court below found, as a conclusion of law, that the defendant was entitled to the premises as and for a homestead so long as she remained the widow of John Gellen. Plaintiff assigns error.
It is now contended by counsel for plaintiff:
1. That the defendant, by failing to commence proceedings for the assignment or recovery of her dower within one year after the death of her husband, as provided by statute, and by petitioning the probate court to proceed under the provisions of the will, and allow her a reasonable sum out of the estate, instead of her dower interest, in lieu thereof, has waived her right to dower under the statute, and has elected to take under the will. In this, we think, counsel for plaintiff are correct. In re Smith’s Estate, 60 Mich. 142 (27 N. W. 80); In re Bloss’ Estate, 114 Mich. 204 (72 N. W. 148). The statute provides:
‘ ‘ If any lands be devised to a woman, or other provision be made for her in the will of her husband, she shall make her election whether she will take the lands so devised or the provision so made, or whether she will be endowed of the lands of her husband; but she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator.” 3 Comp. Laws 1897, § 8935.
“When a widow shall be entitled to an election under either of' the two last preceding sections, she shall be deemed to have elected to take such jointure, devise, or other provision, unless, within one year after the death of her husband, she shall commence proceedings for the assignment or recovery of her dower.” Id. § 8936.
2. It is contended that, the estate being solvent, no homestead right attached in favor of the widow in this piece of land. The .argument of counsel is that the widow has elected to take under the will, and the will provides for a sale of the premises, and a payment to her in cash in lieu of her dower; that the executor has proceeded under the power of sale contained in the will, and sold the premises, and the purchaser is seeking to obtain possession of the property in an action of ejectment under the executor’s deed; that the estate was solvent, and all the debts paid before the executor sold the land; that the executor did not sell the land in order to pay debts, but sold it in pursuance of the provisions of the will, which directed him to sell and dispose of all the real estate of said deceased; that defendant now seeks to hold possession of the house and lot in.question as a homestead. It is the contention that, under such circumstances, no homestead right attaches in favor of the widow in'the piece of land. Counsel cite in support of this contention: Zoellner v. Zoellner, 53 Mich. 624 (19 N. W. 556); Patterson v. Patterson, 49 Mich. 176 (13 N. W. 504); Robinson v. Baker, 47 Mich. 619 (11 N. W. 410).
The constitutional provisions relative to homestead rights (article 16, §§ 2-4) are as follows:
“Sec. 2. Every homestead of not exceeding forty acres of land, and the dwelling-house thereon, and the appurtenances, to be selected by the owner thereof, and not included in any town plat, city, or village, or instead thereof, at the option of the owner, any lot in any city, village, or recorded town plat, or such parts of lots as shall be equal thereto, and the dwelling-house thereon, and its appurtenances, owned and occupied by any resident of the State, not exceeding in value fifteen hunched dollars, shall be exempt from forced sale on execution, or any other final process from a court, for any debt contracted after the adoption of this Constitution. Such exemption shall not extend to any mortgage thereon lawfully obtained; but sfich mortgage or other alienation of such land, by the owner thereof, if a married man, shall not be valid without the signature of the wife to the same.
“Sec. 3. The homestead of a family, after the death of the owner thereof, shall be exempt from the payment of his debts contracted after the adoption of this Constitution, in all cases, during the minority of his children.
“Sec. 4. If the owner of a homestead die, leaving a widow, but no children, the same shall be exempt, and the rents and profits thereof shall accrue to her benefit during the time of her widowhood, unless she be the owner' of a homestead in her own right.”
In each of the above cases cited by counsel for plaintiff there were children having interests in the. property in. controversy. In Robinson v. Baker, supra, a bill was filed for partition by one who had purchased the interest of one of -the children. The deceased owner of the land left a widow and three children surviving him. The land in question consisted of a quarter section and two village lots. One of the village lots was occupied by the deceased as a homestead prior to his death, and the widow continued to occupy it as a homestead. It was held that the statutes and constitutional provisions did not preclude proceedings for partition as between the heirs at law or their assigns; that in making such partition, where there is a homestead and also other lands, if there is a widow with a right of dower, she should have her dower and homestead right saved to her in the homestead land whenever it can be done consistently with justice. In Patterson v. Patterson, supra, it appeared that Patterson died, leaving surviving him two adult children and three infant children, besides his widow, who was the mother of two of the infant children. The widow was occupying the dwelling-house upon the farm, and claimed a homestead in the dwelling-house and 40 acres of land, of which she was in possession with her children. It appeared that one of the adult children'had harvested and carried off the crop from this land claimed as a homestead. The widow sued in trespass. It was held that the constitutional provisions which protect homestead rights ia Michigan are strictly exemptions, and give the right only as against the creditors, and that the statutes have not enlarged it. It was also held that adult heirs residing away from home cannot disturb an existing possession in the widow while the estate is in process of settlement; that the heirs can claim no distinct part until partition actually made. In Zoellner v. Zoellner, supra, the bill was filed by the two minor children for pai’tition. It was said:
'‘ The case presents some novel questions. Unless there are creditors at the time the owner of a homestead dies, and the estate, aside from such homestead, is insolvent, no homestead right attaches in favor of the widow or children, and the premises pass at once to the heirsj subject to the widow’s right of dower. Here the widow claims a homestead. She is the only creditor. Were it not for her claim as a creditor of the estate, it would descend immediately to the heirs of the deceased.”
It will be seen that none of these cases comes within the provisions of section 4, art. 16, of the Constitution, above quoted. In that section provision is made for the widow when no children are left surviving the deceased. Our statutes in case of intestacy have also made better provision for the widow in such cases than where children are left surviving. In case no children are living at the death of the intestate, then of the lands the widow takes one-half in fee in lieu of dower.
As we have seen, the widow has elected to take under the will, and therefore the question of her dower interest is disposed of; but she also had a homestead interest in this property, which is described as the N. £ of the E. $ of lots 5 and 7, Jefferson street, Scribner’s addition to the city of Grand Rapids, being 66 feet wide and 66 feet deep, with the dwelling-house thereon. The widow had a dower interest in these premises as above described. She also had a homestead interest in them, which was in no manner affected by the disposition made of her dower interest. Under section 4, art. 16, of the Constitution, she is entitled to this homestead interest so long as she remains the widow of the testator, as it appears that she has no other homestead. The petition for the sale of the dower interest cannot estop her from setting up a claim to the homestead interest. In Showers v. Robinson, 43 Mich. 502 (5 N. W. 988), it was held that a widow is not estopped frpm claiming a homestead in land by the fact that she desired its sale for the payment of debts, and requested a party to buy the land, and received from the proceeds the amount of a claim allowed in her favor; that it must be presumed that the sale the widow desired was a sale subject to the homestead. We think, in the present case, neither the widow, nor any one else connected with the property, expected her homestead interest was to be sold; nor is it claimed that it was sold, but the claim is that, under the circumstances, she is estopped from setting it up. We think not. The property was valued at $1,400, and it was sold by the executor for $975; yet all the widow received from it was $196.43. Under the statute she was entitled to one-half of it in fee, aside from her homestead interest in the whole.
The court found from these facts that the plaintiff was not entitled to recover. The other questions need not be considered. The judgment must be affirmed.
The other Justices concurred. | [
6,
0,
7,
-40,
1,
-26,
57,
53,
29,
-17,
27,
-14,
78,
23,
-12,
-2,
69,
-70,
-41,
-6,
31,
-37,
-26,
-7,
28,
0,
15,
-61,
-6,
-42,
1,
12,
-63,
19,
27,
53,
-19,
-33,
22,
2,
14,
-40,
40,
-11,
28,
58,
11,
-60,
19,
54,
-12,
-8,
55,
8,
24,
-23,
-16,
12,
16,
-27,
4,
-65,
-24,
-32,
-5,
85,
49,
33,
-12,
-37,
-35,
-34,
6,
26,
5,
-9,
20,
35,
-23,
-23,
16,
-18,
8,
-20,
-10,
4,
-23,
29,
-16,
-3,
-8,
61,
21,
15,
-11,
78,
32,
28,
-6,
38,
37,
6,
-17,
36,
-33,
1,
2,
0,
45,
-29,
24,
-39,
31,
-4,
-15,
-7,
-44,
-69,
-17,
-5,
20,
-10,
10,
9,
-3,
39,
0,
12,
-4,
-24,
24,
7,
-32,
-26,
-7,
-30,
-26,
-15,
0,
-20,
7,
-21,
-32,
-34,
11,
-40,
34,
-19,
4,
-24,
-66,
82,
-22,
10,
41,
-23,
57,
20,
24,
-12,
16,
-9,
1,
-14,
-7,
-12,
1,
21,
-30,
35,
44,
37,
-38,
-26,
20,
19,
0,
-34,
-45,
-6,
16,
22,
28,
17,
13,
-61,
7,
16,
18,
2,
-9,
-43,
48,
19,
8,
47,
4,
32,
16,
28,
-8,
-21,
-2,
-2,
17,
-12,
-16,
-6,
-28,
-26,
-15,
38,
-60,
-6,
-65,
-22,
-7,
-55,
-4,
1,
26,
-14,
-11,
0,
-39,
-86,
24,
-57,
-6,
-2,
11,
-34,
-31,
-10,
-21,
-22,
33,
17,
-72,
1,
-8,
36,
9,
14,
-22,
-2,
-13,
43,
20,
17,
-32,
-19,
-43,
63,
52,
40,
-3,
-7,
53,
1,
8,
40,
-41,
12,
4,
-29,
0,
-48,
35,
2,
47,
13,
29,
-3,
4,
-34,
-30,
-17,
-15,
-59,
22,
-2,
-24,
-28,
-10,
52,
-52,
32,
-13,
41,
-1,
11,
11,
-10,
0,
37,
-8,
0,
30,
-64,
-30,
-37,
73,
19,
26,
-7,
14,
-9,
-22,
-30,
-24,
-16,
0,
9,
57,
8,
-52,
-36,
14,
-27,
78,
-21,
-49,
53,
-10,
14,
-15,
3,
7,
69,
23,
-11,
-18,
5,
30,
-16,
-3,
-12,
-59,
-32,
37,
-19,
9,
-1,
45,
3,
26,
12,
-26,
-14,
-14,
-37,
-10,
49,
-33,
-5,
37,
-3,
1,
63,
-13,
28,
61,
-26,
-25,
-16,
-7,
-47,
32,
1,
16,
45,
-76,
-39,
-4,
42,
10,
-48,
24,
29,
13,
-48,
-14,
17,
74,
30,
-54,
-48,
-18,
9,
-35,
-11,
-28,
-8,
-24,
-15,
-37,
-53,
-20,
-2,
31,
28,
-47,
-30,
-37,
7,
-9,
-51,
-24,
53,
13,
-31,
36,
-26,
48,
11,
44,
-16,
55,
24,
11,
-32,
19,
17,
28,
-20,
-33,
-49,
-15,
11,
-62,
43,
56,
30,
88,
-30,
5,
-5,
-29,
55,
0,
-11,
36,
38,
-24,
49,
-22,
-32,
38,
7,
-10,
40,
0,
3,
19,
-20,
38,
22,
-36,
35,
2,
31,
25,
0,
15,
-36,
-1,
46,
34,
25,
-11,
-2,
25,
-35,
-2,
-12,
-22,
21,
-50,
0,
27,
7,
7,
-40,
-2,
-19,
-54,
-22,
-30,
-103,
39,
-51,
10,
5,
-10,
-56,
-7,
-11,
-1,
12,
-7,
5,
27,
64,
-2,
-29,
11,
-11,
53,
-4,
-41,
-36,
20,
23,
34,
0,
1,
-10,
26,
74,
24,
-47,
-42,
-29,
27,
-18,
67,
64,
-16,
-1,
-26,
-17,
-8,
-13,
2,
-63,
22,
-13,
29,
-4,
-27,
40,
5,
60,
-17,
44,
38,
30,
46,
33,
-12,
-44,
2,
3,
0,
19,
23,
-45,
6,
-52,
-3,
39,
-53,
-18,
56,
-73,
19,
-49,
-28,
42,
-1,
-16,
25,
8,
-16,
-34,
45,
-30,
18,
-29,
-40,
-44,
30,
0,
9,
33,
12,
46,
18,
17,
-19,
-25,
-45,
-35,
21,
-46,
46,
-37,
23,
-7,
-41,
-35,
-3,
-40,
-18,
-26,
6,
10,
-3,
-32,
10,
20,
8,
29,
-17,
43,
6,
-28,
-6,
25,
-6,
46,
2,
4,
18,
-5,
-18,
42,
12,
7,
-3,
-51,
25,
33,
-54,
35,
-24,
-21,
4,
-67,
-44,
-14,
-18,
-22,
-45,
-24,
-5,
-33,
4,
0,
-5,
28,
8,
35,
5,
-40,
6,
-23,
20,
-13,
35,
-25,
-5,
-20,
3,
26,
9,
13,
-56,
-19,
18,
17,
21,
15,
-38,
44,
29,
47,
15,
39,
2,
-24,
30,
26,
-32,
-50,
61,
-3,
-45,
-15,
17,
-82,
-18,
-30,
-25,
44,
-8,
11,
18,
38,
9,
9,
-38,
28,
-21,
-21,
-7,
30,
-62,
-43,
29,
9,
-6,
-30,
8,
-28,
27,
-49,
32,
-5,
21,
10,
0,
-74,
5,
-26,
54,
28,
-3,
-23,
24,
13,
-22,
4,
-5,
29,
18,
-1,
-52,
-53,
-22,
32,
-13,
-9,
-5,
-16,
-32,
25,
-15,
-19,
37,
54,
32,
11,
36,
-10,
-2,
13,
-16,
14,
-20,
40,
-27,
52,
-23,
13,
-46,
-80,
-23,
-6,
-57,
44,
-13,
0,
-13,
-25,
-7,
-3,
22,
0,
17,
-42,
8,
-22,
-9,
-34,
53,
-32,
26,
43,
-12,
-57,
10,
-5,
-44,
-20,
28,
-26,
22,
-56,
4,
1,
-13,
13,
-28,
2,
-35,
16,
-38,
-12,
-21,
-25,
-27,
-35,
-54,
0,
-3,
19,
-22,
31,
-11,
-29,
24,
24,
10,
-24,
16,
9,
-80,
45,
-7,
-43,
0,
5,
0,
-42,
34,
13,
-30,
-41,
-19,
-47,
-13,
42,
20,
10,
17,
-2,
-5,
4,
2,
-29,
50,
43,
-20,
-49,
-49,
-6,
21,
-2,
27,
15,
9,
16,
26,
-34,
-22,
71,
35,
8,
-7,
-1,
-26,
31,
29,
24,
10,
-20,
17,
37,
-4,
5,
-54,
20,
-45,
66,
65,
11,
-59,
43,
5,
-8,
-7,
12,
-39,
-42,
38,
-49,
40,
2,
-33,
-10,
-13,
-27,
1,
-21,
-13,
43,
52,
5,
6,
-1,
-21,
-17,
-3,
3,
53,
26,
-33,
24,
36,
-37,
-54,
14,
5,
-6,
20,
-28,
-48,
34,
1,
53,
-12,
-14,
15,
-53,
0,
-33,
-14,
14,
45,
25,
-26,
35,
19,
11,
17,
-3,
14,
2,
-28,
6,
64,
14,
3,
-16,
-40,
-11,
-84,
31,
25,
-8,
43,
-38,
70,
-17,
46,
33,
-12,
-11,
-9,
-71,
13,
-28,
23,
-32,
30,
-12,
0,
5,
23,
-56,
-32,
23,
-11,
21,
26,
-7,
-21,
-2,
29,
4,
-8,
39,
20,
19,
11,
11,
-10,
-18,
-44,
-13,
-8,
18,
-25,
-25,
0,
15,
20,
-46,
-43,
-36,
47,
14,
-67,
38,
22,
59,
31,
-25,
6,
-14,
-4,
64
] |
Hooker, J.
In 1897 the legislature passed an act amendatory of the Detroit water-board act, designed to provide for defraying the expense of the extension of water mains, including street intersections, by assessment upon the private property (i. e., land) abutting the streets in which the mains should be laid,' upon.a basis of the frontage of the respective lots, irrespective of value. Acting under this amendment, the water board laid a main, and the cost was assessed upon property belonging to the complainants. The act provides that:
“Whenever, in the judgment of said commissioners, it shall be necessary to lay and construct water pipes and main a in and through streets and alleys in which no water pipes and mains now are laid, it shall be the duty of said commissioners to declare by resolution that, in their opinion, such necessity exists, specifying in such resolution the streets or alleys through which it is proposed to extend or lay such pipes, and the size, material, and estimated cost thereof. Such resolution shall fix a time and place when said commissioners will hear any persons desiring to object to such proposed’construction and extension of such water pipes and mains. Said commissioners shall cause notice to be published in one or more daily papers printed in the English language in said city, for at least five days prior to said time fixed for hearing said matter, that it is proposed to levy an assessment upon the land or lands abutting the street or alley through which it is proposed to lay and construct such pipes and mains, for the cost thereof. At the time fixed for such hearing, or at such time to which the same may be adjourned, such commissioners shall attend for the purpose of hearing and deciding upon objections thereto, and, if no sufficient cause to the contrary be shown, the said commissioners may cause the said water pipes and mains to be laid and constructed as set forth in said resolution, and an accurate account shall be kept of the cost thereof. When the work of laying and constructing such pipes and mains is fully completed and performed, the said commissioners shall report the completion thereof to the common council, and shall at the same time report the cost thereof. Upon receiving such report, it shall be the duty of the common council to cause the sum so reported to be assessed upon the lots abutting the street or alley through which said water pipes and mains have been laid, in proportion to the frontage of such lot or lots: Provided, that no lot shall be assessed on more than one front, and, where such pipes and mains are constructed across more than one front of a lot, only the shortest front shall be estimated in making the assessment: And provided further, that no lot or lots shall be assessed for a [larger] sum than its proportionate share for laying and constructing a pipe or main six inches in diameter, and that whenever it shall have been necessary, in the judgment of said commissioners, to lay and construct pipes and mains of a larger size than six inches in diameter through the Whole or any part of such proposed extension, then said commissioners shall determine the cost and expense of laying and constructing pipes and mains six inches in diameter, and such sum shall be reported to the common council for assessment in lieu of the actual cost of such larger pipes and mains. Property already supplied with water shall not be assessed' for water mains and pipes [hereafter] heretofore laid, nor shall property once assessed for water pipes and mains under this act be liable for any additional or further assessments therefor. The sums so reported as aforesaid shall be levied and collected by the same officers that levy and collect assessments for the construction and building of lateral sewers, and in such manner as the common council may by ordinance prescribe.” Act No. 477, Local Acts 1897, § 28.
It is admitted that the acts complained of in this case were done while a majority of the board consisted of members appointed by the council before the enactment of the amendment of 1897, and it appears to be conceded that, under the pre-existing statute, the board had not the power to impose any burden of construction upon citizens or property by assessment. Counsel for the complainants .contend that it was not within the power of the legislature to confer upon officers appointed before the passage of the act the power to lay pipe and impose an assessment upon abutting property, either directly or indirectly, by requiring the council to do so in conformity to the report of the water board. The case of Board of Park Com’rs v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202), is alleged to be conclusive of the question. In that case a board had been provided for, with authority to make conditional contracts for lands suitable for a public park, subject to ratification by a meeting of the citizens. The law provided that, after ratification by the citizens, the council might issue bonds of the city to pay for the land. Conditional contracts were made, and two meetings of the citizens were held, without result. Subsequently an amendment was passed by which the then existing board was authorized to locate suitable lands, and report the same to the common council, with an estimate of the amount necessary to pay-for the same, and it was provided that thereupon the council should provide money for the purpose. It was said by the court:
“It will be seen from this that the board of park commissioners are to have discretionary and unrestricted power in the location of the park or boulevard, or both, and in determining the amount of debt the city shall incur for the purpose, within the limits prescribed by the act, and the only discretionary authority left with the council is that the act authorizes that body to determine the rate of interest on the bonds, not exceeding 7 per cent., the sums in which they shall be issued, and the time when they shall be payable, which shall be not less than 30 nor more than 50 years.”
The authority of the legislature in matters pertaining to the regulation of the duties which the people of a locality-owe to the Commonwealth at large was recognized, and the necessity of consulting them denied. Upon the other hand, it was said that the legislature had no authority to compel them to submit to taxation in matters which apply merely to those necessities or conveniences adapted to the local conditions, and in which the State has no concern, as illustrations of which the furnishing of light and of water to the citizens are mentioned. See Bailey v. Mayor, etc., of New York, 3 Hill, 531 (38 Am. Dec. 669). It is unnecessary to repeat the arguments used in support of the decision, which may as well be read. That case is decisive of this, unless we are to say that there should be a distinction drawn between a provision for waterworks and one for a public park, for which we see no sound reason. While it was doubtless competent for the legislature to prescribe the board through which action might be taken to lay water mains, if it could confide the matter to such a board to be thereafter appointed to the exclusion of the common council, — a question which we are not called upon to decide, — it could not confer such power upon a board consisting of members previously appointed, at a time when its powers were less, and who were not selected with a view to the exercise of such powers.
We are of the opinion that the act was void, and the decree is affirmed, with costs.
The other Justices concurred. | [
-42,
55,
37,
-79,
-4,
11,
59,
-28,
39,
30,
0,
-24,
1,
17,
4,
24,
-62,
-43,
-10,
14,
-20,
-4,
30,
-44,
-45,
96,
31,
-36,
-20,
-12,
1,
11,
-32,
44,
72,
-20,
-23,
3,
25,
13,
0,
47,
-47,
-67,
36,
15,
31,
-31,
17,
-16,
-75,
37,
14,
5,
-50,
-4,
-39,
-9,
-59,
13,
-53,
-25,
-16,
36,
14,
18,
-35,
1,
29,
-34,
-22,
35,
7,
-64,
87,
37,
58,
-26,
-37,
10,
-74,
19,
-28,
-4,
-6,
-33,
-43,
-23,
-14,
-32,
-7,
-83,
38,
84,
25,
-5,
0,
10,
-27,
10,
36,
65,
-18,
-25,
35,
-17,
8,
-50,
-11,
-36,
-28,
-5,
11,
-37,
-25,
0,
-15,
21,
-12,
-23,
14,
33,
15,
-36,
-89,
43,
-21,
-43,
-39,
-42,
-23,
-41,
48,
-4,
27,
29,
-34,
36,
86,
62,
-37,
33,
-20,
-27,
-17,
24,
-15,
35,
-4,
-10,
35,
-5,
0,
-28,
-8,
-6,
-39,
-22,
52,
28,
-26,
-46,
21,
-31,
-87,
60,
-59,
-14,
-26,
78,
17,
-35,
0,
-44,
15,
-26,
-5,
54,
-26,
-67,
56,
-11,
-12,
-10,
15,
11,
22,
-56,
7,
-9,
57,
-48,
-48,
-31,
-8,
2,
46,
27,
15,
30,
2,
-9,
-42,
4,
-12,
-7,
-32,
66,
-19,
10,
-8,
51,
-33,
67,
42,
1,
40,
-25,
3,
-7,
11,
-42,
59,
1,
-23,
37,
-25,
6,
0,
21,
56,
-13,
44,
-25,
-14,
52,
-60,
76,
-19,
29,
-17,
25,
-43,
-2,
-22,
23,
0,
-7,
43,
20,
2,
-17,
-1,
-19,
-25,
10,
-20,
10,
19,
9,
47,
40,
51,
-36,
50,
8,
-6,
19,
-20,
14,
7,
54,
-7,
56,
-74,
-26,
8,
-57,
-28,
8,
-44,
-39,
-32,
11,
16,
-37,
-33,
7,
37,
31,
-28,
31,
0,
15,
2,
17,
3,
17,
51,
-75,
-42,
-35,
11,
19,
37,
17,
0,
46,
37,
13,
5,
22,
-39,
50,
-45,
-8,
24,
11,
13,
63,
3,
2,
4,
-15,
-66,
45,
73,
-2,
0,
19,
62,
-38,
-1,
30,
17,
43,
42,
28,
-63,
-38,
29,
-3,
26,
-7,
2,
2,
-54,
-30,
15,
-9,
-17,
35,
-18,
18,
-20,
-30,
10,
19,
-16,
38,
31,
52,
1,
-13,
-18,
-46,
-54,
-11,
21,
28,
-9,
0,
-62,
63,
31,
15,
76,
27,
-31,
14,
19,
25,
-32,
-6,
36,
-31,
13,
-3,
10,
-20,
-5,
41,
-23,
28,
19,
-14,
-24,
-21,
-49,
-30,
2,
24,
14,
48,
4,
21,
5,
12,
10,
21,
-41,
-40,
23,
-39,
-62,
27,
2,
-35,
-17,
-28,
13,
24,
16,
-37,
5,
-69,
43,
13,
-17,
-10,
-41,
-27,
19,
-16,
-38,
30,
-46,
-63,
-24,
-51,
-39,
4,
15,
42,
-12,
17,
-2,
-14,
6,
-37,
46,
21,
-29,
14,
24,
22,
25,
36,
22,
17,
-64,
-8,
-7,
-31,
-71,
18,
-33,
14,
-8,
19,
-68,
16,
11,
-55,
-1,
-27,
18,
6,
-15,
-10,
15,
-71,
-29,
21,
-13,
-32,
-7,
14,
-26,
3,
81,
-16,
-36,
-48,
67,
-4,
18,
-27,
24,
5,
38,
9,
-28,
-75,
-59,
-51,
6,
61,
39,
40,
-1,
4,
20,
7,
10,
60,
-20,
-47,
32,
-50,
-17,
22,
-52,
-15,
-25,
26,
15,
20,
51,
-26,
7,
-30,
-24,
4,
-55,
-36,
-7,
45,
-8,
-18,
28,
7,
53,
45,
20,
-3,
-15,
-65,
5,
-29,
-67,
-21,
5,
-19,
-7,
30,
-35,
-36,
-17,
67,
-52,
27,
32,
-55,
12,
21,
24,
-9,
-4,
13,
-31,
24,
16,
-23,
-39,
-1,
-7,
-24,
31,
46,
0,
-25,
1,
0,
33,
17,
-7,
19,
-38,
50,
-35,
3,
-66,
21,
8,
26,
19,
51,
4,
-18,
20,
-28,
0,
13,
-30,
33,
-18,
-12,
7,
19,
5,
-12,
25,
66,
36,
64,
-3,
-25,
3,
-4,
18,
-14,
28,
20,
20,
-34,
57,
16,
-23,
0,
-28,
41,
-4,
13,
20,
-53,
56,
-42,
48,
45,
-49,
-12,
-60,
-15,
-12,
26,
-50,
46,
-21,
35,
-36,
15,
18,
-41,
12,
3,
-19,
-15,
24,
-25,
34,
6,
55,
-7,
-1,
5,
33,
-18,
12,
-49,
1,
5,
0,
24,
-3,
-40,
-14,
-2,
67,
16,
-17,
6,
-28,
50,
37,
-41,
13,
6,
3,
-6,
33,
-15,
13,
-19,
38,
29,
3,
2,
8,
-31,
-17,
-42,
32,
79,
-21,
-20,
14,
-21,
24,
-68,
51,
-43,
24,
22,
-3,
-31,
-7,
47,
33,
6,
36,
-32,
-39,
4,
-9,
-17,
-72,
-21,
-64,
43,
-35,
0,
25,
-42,
13,
4,
-53,
8,
41,
-72,
22,
-63,
-12,
-43,
-47,
-55,
-47,
-11,
-7,
52,
-7,
7,
27,
17,
31,
0,
-20,
17,
-7,
2,
-33,
4,
47,
17,
-3,
-37,
-25,
63,
29,
-6,
-48,
19,
-48,
1,
21,
1,
-56,
-16,
23,
-67,
-49,
5,
10,
16,
4,
5,
38,
-19,
45,
-27,
-32,
-13,
-9,
-7,
-23,
39,
-60,
-5,
-1,
-48,
32,
-9,
-7,
-24,
0,
-13,
-28,
-11,
-53,
17,
-42,
-2,
-16,
-10,
23,
-51,
13,
45,
0,
19,
-35,
70,
33,
4,
0,
-19,
-25,
14,
-17,
12,
59,
27,
21,
11,
-9,
-4,
-20,
15,
32,
6,
-92,
-18,
-5,
-15,
-59,
-24,
-31,
35,
-30,
69,
-42,
65,
-32,
27,
70,
35,
3,
-33,
-50,
-6,
92,
35,
46,
0,
-33,
-6,
7,
-3,
-32,
26,
7,
5,
-82,
-61,
0,
0,
-9,
-41,
-2,
-17,
-21,
-9,
59,
-55,
-19,
-6,
9,
6,
34,
66,
36,
43,
-20,
-10,
30,
-18,
24,
12,
-34,
-3,
-40,
-26,
-19,
25,
-48,
-5,
-3,
-2,
34,
0,
17,
-11,
-26,
14,
-19,
-37,
-30,
-88,
-22,
69,
31,
-8,
-17,
-25,
-41,
-3,
20,
-7,
3,
51,
-39,
0,
-26,
33,
31,
-66,
51,
-25,
21,
-47,
2,
9,
21,
38,
53,
6,
13,
37,
76,
-21,
-29,
-6,
19,
33,
35,
-33,
-4,
55,
-43,
54,
47,
28,
0,
-31,
-24,
-48,
7,
20,
-20,
-9,
-17,
46,
-17,
-5,
35,
2,
-14,
-36,
-45,
-34,
5,
-32,
40,
33,
-29,
18,
-9,
-51,
59,
25,
-14,
25,
-8,
3,
-52,
-49,
-50,
54,
39,
-7,
84,
61,
-49,
59,
-10,
21,
33,
-23,
-10,
-29,
-37,
45,
21,
40,
-31,
1,
-29,
54,
-4,
-5,
42,
-29,
-51,
63
] |
Moore, J.
The complainant is about 61 years of age. The defendant is her son. The bill in this case is filed by her to have a deed set aside because it was fraudulently obtained from her. The proofs were taken in open court. The circuit judge granted a decree in favor of complainant. The only question involved is one of fact. It would not profit any one to detail the testimony. It will be sufficient to say of it that we think it fully justified the circuit judge in the decree he made.
The decree is affirmed, with costs.
The other Justices concurred. | [
3,
3,
-24,
40,
7,
13,
68,
27,
24,
40,
38,
-6,
41,
31,
-13,
1,
-8,
-9,
0,
-57,
-50,
13,
2,
11,
-1,
11,
4,
41,
-33,
18,
-9,
2,
-29,
38,
-1,
-74,
37,
-11,
22,
10,
-6,
10,
3,
-13,
-47,
-10,
-28,
4,
-1,
-26,
-28,
-16,
10,
-45,
-4,
5,
-30,
-6,
-26,
-40,
11,
-8,
25,
-29,
-20,
24,
-3,
-14,
-18,
-2,
0,
-1,
-34,
-35,
-46,
32,
-6,
22,
-62,
-5,
-4,
-53,
36,
10,
15,
1,
6,
-21,
-11,
-20,
-3,
49,
-20,
-22,
-12,
9,
19,
29,
51,
20,
-34,
-16,
3,
8,
16,
1,
-46,
-83,
-38,
-21,
-5,
-56,
33,
-4,
-2,
15,
-52,
16,
-16,
-87,
-19,
-4,
8,
-26,
-16,
23,
18,
-52,
-50,
4,
-16,
-6,
-15,
6,
1,
-53,
-2,
21,
-4,
-19,
54,
-14,
61,
-58,
-2,
12,
20,
21,
-58,
-5,
-4,
23,
3,
33,
21,
-30,
-40,
-34,
25,
-35,
75,
49,
-33,
-10,
-61,
-14,
18,
3,
47,
-29,
4,
6,
-26,
-31,
47,
-22,
26,
-8,
-41,
-12,
2,
30,
1,
20,
11,
7,
18,
3,
-5,
4,
-30,
-2,
39,
47,
11,
18,
5,
-13,
-12,
-39,
-59,
-26,
2,
6,
-28,
-19,
-7,
-7,
-33,
34,
6,
41,
10,
-23,
19,
-7,
29,
-5,
-26,
26,
10,
30,
0,
12,
-72,
-52,
3,
-36,
43,
2,
-25,
29,
5,
3,
1,
42,
23,
-36,
-5,
-8,
-60,
47,
11,
-47,
-16,
29,
-40,
6,
-15,
-2,
-44,
43,
-18,
64,
1,
15,
17,
21,
17,
8,
9,
13,
-8,
-13,
26,
-44,
6,
18,
7,
-35,
18,
-14,
-29,
17,
21,
2,
-14,
15,
-74,
10,
37,
33,
5,
14,
-11,
41,
45,
18,
69,
8,
33,
-19,
-21,
3,
33,
15,
-4,
2,
23,
-21,
-12,
-58,
-9,
37,
-16,
-21,
26,
-27,
-15,
23,
18,
27,
17,
17,
-4,
22,
-53,
-84,
-4,
17,
47,
2,
-17,
-24,
-4,
9,
59,
-56,
-26,
29,
-7,
26,
-5,
-7,
43,
7,
-13,
10,
-72,
-30,
22,
11,
-1,
9,
12,
17,
-20,
-11,
-19,
-1,
-34,
50,
0,
25,
9,
-38,
7,
-46,
-17,
11,
0,
12,
13,
-18,
26,
12,
7,
-29,
6,
3,
0,
-22,
-9,
25,
-39,
-53,
0,
-31,
38,
16,
-30,
-24,
-30,
66,
6,
-22,
-25,
-31,
-4,
9,
-53,
9,
2,
16,
-34,
-10,
-5,
-19,
-57,
-17,
-34,
7,
16,
11,
-72,
54,
-26,
7,
5,
16,
37,
-32,
32,
-4,
4,
21,
23,
-10,
35,
22,
-23,
-10,
-20,
-16,
-27,
-29,
-16,
19,
59,
7,
2,
23,
2,
-12,
59,
-12,
0,
-30,
-53,
36,
21,
31,
23,
1,
23,
3,
-12,
-29,
19,
-21,
46,
-14,
6,
-4,
-15,
-18,
19,
2,
-27,
-71,
25,
-8,
-1,
6,
24,
8,
-9,
13,
9,
-4,
11,
56,
-7,
-10,
0,
19,
-33,
-8,
-3,
20,
-13,
3,
0,
4,
-6,
-12,
-10,
-25,
-45,
-23,
24,
-32,
10,
-28,
28,
5,
7,
-6,
-28,
15,
17,
69,
52,
-51,
3,
-46,
-27,
71,
-27,
21,
-7,
-25,
12,
4,
-2,
2,
47,
17,
-26,
27,
19,
-60,
-18,
-29,
-33,
-6,
6,
51,
0,
-6,
-7,
43,
-28,
-2,
-2,
50,
9,
-16,
22,
-11,
-63,
55,
2,
26,
-6,
-5,
0,
-71,
1,
19,
25,
-30,
-19,
18,
-3,
30,
21,
-28,
6,
-42,
27,
-22,
-2,
-2,
47,
-9,
27,
-19,
-27,
2,
-22,
-31,
-11,
-41,
-2,
-28,
-24,
37,
-11,
1,
-25,
-2,
-18,
-7,
15,
23,
17,
42,
50,
-36,
-28,
-27,
10,
-33,
-36,
-45,
-15,
-41,
0,
5,
15,
-8,
-52,
3,
23,
-1,
6,
63,
-32,
4,
29,
21,
0,
-5,
78,
38,
-3,
-34,
-28,
30,
22,
7,
1,
-14,
12,
-14,
29,
-14,
14,
9,
8,
-7,
6,
3,
-7,
6,
-36,
6,
-7,
-45,
-19,
28,
-49,
-24,
37,
38,
17,
-5,
-27,
-28,
9,
39,
3,
-1,
31,
-39,
43,
-49,
-10,
-10,
46,
-43,
27,
45,
0,
15,
60,
35,
-24,
6,
-5,
-49,
41,
19,
-1,
0,
13,
-5,
3,
-21,
-10,
-22,
14,
8,
-62,
-19,
45,
13,
-1,
76,
-8,
0,
18,
40,
-11,
-5,
36,
0,
34,
20,
11,
-17,
8,
-18,
-19,
6,
21,
41,
-1,
17,
-31,
-30,
-17,
40,
-31,
-11,
56,
4,
20,
-34,
0,
-2,
21,
5,
8,
-29,
80,
42,
23,
28,
29,
48,
-31,
6,
-59,
13,
-25,
-47,
4,
-21,
-29,
22,
-19,
-57,
19,
16,
27,
-11,
-16,
33,
30,
-31,
12,
26,
-3,
11,
21,
-5,
63,
-21,
2,
9,
38,
-43,
30,
-18,
-52,
-21,
4,
15,
0,
-27,
-8,
-20,
14,
4,
26,
-34,
54,
-43,
1,
-2,
-9,
20,
43,
-43,
57,
-45,
22,
7,
26,
36,
-32,
-22,
-8,
46,
-40,
-33,
-23,
-46,
-20,
25,
15,
-29,
-13,
35,
-56,
2,
-32,
16,
12,
-2,
0,
-68,
-69,
-47,
-14,
31,
-22,
21,
25,
17,
21,
-6,
-47,
40,
9,
-4,
-44,
7,
11,
-45,
11,
13,
4,
0,
-17,
13,
32,
-1,
-5,
-8,
22,
-16,
12,
6,
-46,
4,
-31,
37,
28,
-30,
60,
-16,
3,
-61,
0,
7,
-14,
-33,
14,
4,
-4,
-22,
34,
6,
13,
56,
74,
-33,
17,
15,
-35,
-4,
-3,
-38,
28,
-4,
28,
-27,
65,
15,
-29,
48,
-21,
46,
42,
-46,
-46,
15,
3,
-27,
43,
14,
-32,
21,
-5,
-45,
-18,
-27,
20,
16,
-22,
-25,
17,
-27,
-23,
4,
-15,
-10,
7,
-28,
-45,
-64,
-22,
19,
6,
-30,
-20,
3,
42,
7,
-15,
8,
29,
-9,
26,
-23,
-30,
5,
4,
-31,
-22,
53,
6,
-21,
-36,
11,
0,
42,
29,
-38,
-5,
9,
-54,
0,
-15,
-5,
11,
35,
-1,
30,
-9,
4,
-17,
-10,
-24,
17,
-32,
-7,
-19,
70,
18,
-27,
23,
7,
29,
26,
-46,
10,
40,
-24,
-22,
-33,
6,
-26,
39,
27,
-10,
29,
-5,
-13,
-52,
49,
-15,
3,
15,
2,
-31,
-51,
35,
-6,
43,
4,
-24,
-8,
-41,
15,
-5,
56,
-26,
4,
22,
-9,
53,
-47,
-6,
13,
18,
-35,
-43,
23,
64,
35,
-15,
16,
12,
-42,
45,
17,
14,
8,
47,
44
] |
Montgomery, C. J.
Defendants are husband and wife. On the 19th day of April, 1890, they made and executed a promissory note in the sum of $1,000, payable to complainant, and executed a mortgage collateral thereto. A bill was duly filed to foreclose this-mortgage, a subpoena served, together with a memorandum stating that a personal decree was sought against both defendants. Default was made by defendants, and a decree declaring both defendants liable for, and determining, the amount due, was duly entered. A sale of the mortgaged premises was had, and a deficiency reported. Application was thereupon made for an execution for deficiency. The petition was dismissed as against Anna Soderberg on the ground that she was a married woman when the note was given, and, as it was not given with reference to her separate estate, she was not personally liable upon it. Complainant appeals.
The defense attempted should have been interposed before decree. Haldane v. Sweet, 58 Mich. 431 (25 N. W. 383); Jehle v. Brooks, 112 Mich. 131 (70 N. W. 440); Ward v. Obenauer, 119 Mich. 17 (77 N. W. 305). It was competent for the court to determine the liability of the defendant by the decree. Simons v. McDonnell, 120 Mich. 621 (79 N. W. 916). A judgment or decree is binding upon a married woman. See Wilson v. Coolidge, 42 Mich. 112 (3 N. W. 285); Evans v. Calman, 92 Mich. 427 (52 N. W. 787, 31 Am. St. Rep. 606).
The order will be reversed, and an order entered for execution, with costs of this court.
The other Justices concurred. | [
-44,
19,
1,
-1,
-59,
4,
32,
6,
19,
-20,
20,
-28,
18,
35,
9,
14,
-12,
-23,
-42,
-5,
-43,
-1,
-53,
14,
0,
15,
61,
19,
48,
-37,
10,
-1,
-25,
8,
7,
-46,
44,
-29,
46,
1,
4,
35,
24,
-23,
-56,
8,
28,
-37,
-24,
-16,
-18,
-19,
20,
0,
22,
-15,
-26,
3,
-44,
-12,
-6,
-50,
13,
-8,
-17,
-9,
24,
-7,
-9,
-12,
7,
0,
5,
-36,
-7,
-1,
17,
-8,
-25,
-43,
-16,
-44,
13,
-9,
-16,
-48,
9,
-7,
-28,
20,
11,
53,
-28,
-15,
9,
-8,
-16,
23,
3,
28,
-5,
-5,
-17,
57,
-3,
18,
-20,
-27,
-31,
32,
37,
-3,
39,
7,
-45,
6,
-31,
-1,
-5,
-22,
-10,
17,
24,
-38,
14,
18,
-36,
-14,
50,
-24,
5,
12,
3,
13,
-44,
-1,
2,
-19,
6,
-13,
-6,
-30,
15,
-40,
12,
13,
10,
-25,
2,
-27,
-36,
-4,
-1,
49,
61,
-9,
28,
-44,
1,
22,
38,
-19,
-9,
-29,
-34,
-34,
-24,
45,
-8,
-36,
81,
22,
-36,
-54,
17,
-50,
25,
-31,
37,
2,
42,
33,
-6,
-26,
-6,
21,
-81,
0,
5,
-2,
-2,
-14,
17,
34,
9,
33,
-8,
12,
26,
27,
13,
-36,
-36,
-8,
-13,
-45,
27,
-15,
-12,
-16,
-19,
-10,
-42,
3,
-50,
5,
17,
-52,
-29,
22,
18,
15,
-18,
30,
-28,
-68,
17,
1,
-7,
9,
16,
-15,
-1,
11,
24,
3,
30,
28,
16,
16,
-14,
5,
-10,
13,
1,
17,
-35,
-4,
10,
6,
22,
3,
-15,
31,
0,
44,
0,
-13,
21,
-8,
-1,
0,
-13,
-5,
-7,
5,
41,
13,
-48,
3,
-1,
-33,
30,
19,
25,
-2,
-14,
51,
-35,
28,
15,
21,
-24,
4,
-39,
-1,
-23,
0,
-8,
50,
29,
-25,
11,
2,
36,
2,
-33,
-62,
12,
6,
-1,
3,
55,
3,
27,
-24,
0,
-14,
-19,
-72,
-8,
11,
6,
-45,
0,
49,
-34,
17,
14,
9,
9,
-27,
-59,
-24,
31,
15,
-12,
-3,
-67,
21,
-15,
12,
-16,
40,
-9,
28,
10,
22,
-21,
-27,
-1,
-48,
-22,
9,
0,
32,
15,
19,
-42,
1,
-40,
-22,
-34,
11,
0,
-25,
25,
-42,
-14,
17,
24,
1,
-7,
1,
4,
-20,
-1,
-95,
29,
35,
40,
44,
-23,
-31,
-38,
13,
17,
5,
-17,
56,
0,
21,
59,
11,
27,
20,
-19,
-13,
-35,
20,
-33,
7,
12,
-11,
-29,
-58,
-30,
-28,
-53,
-38,
-4,
50,
10,
12,
-17,
8,
-15,
-40,
-15,
46,
19,
-36,
63,
0,
21,
3,
11,
-27,
9,
-9,
3,
0,
4,
28,
-10,
3,
15,
-28,
24,
-7,
10,
55,
17,
36,
32,
-14,
-54,
14,
28,
-25,
16,
46,
-6,
25,
2,
25,
5,
-16,
27,
-8,
67,
-31,
-18,
5,
-16,
-18,
43,
25,
-36,
-58,
49,
-30,
9,
-17,
-14,
12,
-24,
-29,
-28,
-10,
2,
-26,
26,
-6,
-20,
9,
-4,
34,
-22,
-10,
-55,
17,
33,
-34,
-17,
-1,
-72,
-56,
-41,
-43,
32,
-23,
-46,
52,
16,
-16,
-43,
-59,
-22,
29,
0,
-2,
28,
48,
5,
0,
18,
-11,
39,
23,
-5,
-18,
29,
32,
-22,
10,
21,
-25,
39,
64,
-3,
15,
-57,
9,
11,
4,
44,
0,
-19,
14,
-8,
19,
8,
19,
31,
28,
13,
-3,
15,
-24,
-14,
11,
8,
52,
8,
40,
8,
-16,
0,
10,
-41,
-71,
7,
8,
11,
12,
-4,
28,
-22,
-19,
-38,
-17,
20,
-10,
32,
-12,
23,
-26,
-27,
-35,
-23,
13,
-22,
-16,
0,
-2,
0,
-21,
-7,
-17,
24,
23,
-27,
-45,
27,
-21,
-8,
22,
-15,
4,
-13,
20,
43,
-7,
-36,
-19,
-9,
-7,
26,
32,
15,
7,
-22,
4,
5,
-30,
-26,
38,
20,
-51,
38,
-8,
42,
18,
29,
-11,
-14,
-30,
-40,
-18,
16,
49,
52,
20,
7,
18,
-7,
-7,
-30,
15,
22,
23,
26,
26,
-9,
48,
46,
11,
-1,
-29,
-21,
66,
-38,
4,
6,
0,
-8,
7,
79,
-33,
-15,
32,
0,
-38,
95,
-40,
46,
-22,
8,
0,
-6,
0,
20,
41,
34,
13,
-43,
-6,
-21,
-18,
61,
-8,
32,
-5,
76,
2,
-8,
23,
40,
-22,
-14,
-7,
-12,
23,
1,
-44,
0,
-16,
-16,
6,
-26,
-18,
-37,
6,
-4,
-21,
0,
38,
-9,
32,
69,
-30,
5,
33,
2,
1,
-52,
15,
1,
-45,
-12,
0,
-9,
-18,
-41,
9,
41,
-3,
-30,
-20,
-19,
-30,
4,
-22,
-21,
-36,
-18,
-10,
12,
31,
5,
16,
-24,
47,
29,
31,
-27,
-27,
-25,
-6,
-5,
17,
-35,
-4,
-16,
-33,
-24,
-7,
5,
-1,
25,
25,
18,
-1,
-7,
-7,
-22,
-30,
-28,
5,
-33,
20,
-47,
13,
-36,
-5,
-10,
-16,
20,
-31,
-20,
4,
-1,
-15,
-1,
8,
26,
-20,
44,
-23,
15,
-19,
-3,
8,
19,
-47,
27,
-10,
12,
15,
-11,
-51,
-29,
-12,
-22,
-4,
16,
-33,
2,
0,
16,
7,
-2,
-24,
7,
20,
-62,
25,
-13,
36,
31,
18,
-20,
25,
-29,
50,
-28,
-23,
43,
-7,
-26,
-8,
29,
-7,
-2,
16,
-5,
-21,
-23,
8,
56,
-3,
-4,
12,
1,
-34,
30,
49,
15,
-4,
-13,
-42,
-37,
-11,
20,
25,
16,
70,
67,
-13,
34,
-20,
17,
13,
-22,
-34,
-13,
58,
1,
32,
33,
-12,
-62,
8,
-1,
-13,
-9,
0,
25,
0,
-15,
-6,
-14,
30,
21,
58,
31,
-68,
25,
16,
-12,
3,
-5,
33,
-37,
32,
33,
-4,
-81,
-36,
2,
11,
13,
14,
-42,
-24,
-3,
-52,
23,
-39,
-13,
-6,
-6,
-28,
37,
49,
-15,
82,
17,
-22,
47,
0,
-7,
17,
-5,
15,
-6,
-21,
2,
3,
-7,
4,
3,
-18,
2,
6,
29,
18,
-35,
7,
-3,
-15,
-52,
20,
-20,
-22,
7,
-29,
29,
-45,
-5,
-19,
-27,
-21,
0,
40,
29,
15,
31,
14,
-2,
45,
25,
55,
-14,
36,
-31,
15,
-23,
14,
-65,
30,
48,
4,
15,
-18,
23,
-19,
39,
-13,
-3,
-52,
-22,
-41,
-51,
12,
35,
40,
2,
-24,
1,
-25,
26,
26,
18,
-2,
32,
-21,
-37,
-46,
-11,
-15,
31,
8,
-33,
-33,
-6,
-8,
10,
10,
-13,
-20,
36,
15,
-15,
-45,
21,
37,
-16,
20,
-30,
-20,
53,
45,
14,
15,
-14,
-7,
23,
-3,
13,
-10,
-25,
53
] |
Per Curiam.
The sole question is whether the statute applies to a case where the decree was rendered in the circuit court before that act took effect, and the decree upon appeal was rendered in this court after it took effect. Cases in equity are heard in this court de novo, and the appeal suspends all proceedings under the decree below. There was no decree under which a sale could be made until the final decree in this court. The mortgage was given subject to the right of the legislature to change the remedy in foreclosure proceedings. We think the language in State Sav. Bank of Detroit v. Matthews, 123 Mich. 56 (81 N. W. 919), fully covers this case.
The order of the circuit court denying the writ of mandamus will be affirmed. | [
-20,
26,
4,
-18,
-5,
23,
17,
30,
-2,
27,
-18,
6,
-4,
-14,
8,
-9,
13,
-27,
-20,
50,
-54,
25,
-8,
6,
-25,
-19,
29,
-25,
30,
9,
-48,
-55,
-3,
49,
8,
-40,
-6,
-18,
56,
-11,
-10,
2,
-6,
23,
-56,
-37,
21,
-24,
-7,
-22,
-30,
-15,
-26,
-20,
4,
4,
-29,
-47,
-4,
-9,
-71,
21,
10,
34,
-10,
6,
-26,
-40,
31,
-43,
-3,
-6,
23,
-11,
33,
15,
-40,
29,
-46,
-31,
-10,
-27,
40,
4,
-19,
-5,
-33,
-16,
-76,
11,
-22,
-19,
-36,
-38,
3,
10,
66,
-1,
50,
24,
-23,
35,
3,
17,
-7,
-52,
-31,
-45,
-18,
-48,
4,
-42,
13,
-1,
-8,
14,
-50,
-11,
15,
-20,
35,
-9,
2,
-20,
27,
36,
-28,
-22,
-18,
-17,
-9,
17,
-41,
56,
9,
12,
5,
10,
3,
-60,
42,
-33,
33,
-79,
37,
-42,
49,
-39,
9,
-4,
-2,
43,
-29,
24,
-7,
16,
-30,
-4,
0,
30,
10,
14,
-39,
7,
-12,
17,
-49,
20,
4,
26,
-12,
5,
-21,
12,
21,
-29,
27,
26,
-1,
-31,
-16,
50,
11,
-28,
-9,
-6,
-8,
-46,
-9,
-48,
-18,
20,
21,
23,
25,
26,
0,
21,
25,
7,
-49,
-13,
-28,
44,
-9,
-49,
23,
1,
-4,
39,
-46,
4,
-44,
8,
26,
-30,
23,
31,
8,
22,
72,
26,
47,
10,
-10,
-10,
25,
3,
24,
45,
19,
3,
-1,
10,
14,
32,
-27,
18,
4,
-18,
-23,
15,
-23,
4,
-26,
47,
18,
-19,
57,
-42,
3,
-1,
0,
-19,
35,
4,
-32,
-6,
-13,
17,
51,
56,
-64,
-22,
15,
-13,
5,
29,
-20,
-16,
-29,
-5,
26,
1,
-15,
15,
-32,
-3,
-13,
13,
-17,
8,
24,
13,
-28,
38,
-14,
-8,
4,
40,
14,
-30,
-43,
36,
5,
13,
-43,
-46,
3,
0,
-5,
5,
-17,
36,
27,
-19,
-29,
-34,
51,
-23,
3,
44,
22,
45,
-22,
6,
-11,
-7,
5,
-9,
14,
-16,
1,
11,
-18,
2,
74,
-49,
-27,
14,
28,
-6,
-4,
17,
27,
47,
42,
1,
-6,
4,
9,
32,
13,
-2,
-8,
-28,
-19,
-35,
4,
32,
-2,
5,
1,
27,
5,
-48,
-12,
-27,
-77,
23,
24,
3,
-38,
18,
10,
29,
-15,
19,
26,
60,
6,
45,
-15,
32,
-45,
-20,
4,
-19,
-29,
36,
9,
-13,
57,
28,
23,
45,
-62,
21,
-1,
2,
-29,
-33,
17,
-20,
-20,
-5,
3,
39,
-29,
-18,
13,
-21,
-50,
-3,
-37,
26,
7,
5,
18,
48,
9,
-17,
5,
-1,
-21,
21,
21,
20,
48,
7,
-42,
-14,
-30,
-55,
-12,
-19,
21,
-21,
29,
61,
-5,
15,
24,
16,
-6,
46,
-29,
-29,
-44,
12,
-17,
18,
-10,
8,
4,
-8,
-44,
-51,
21,
6,
53,
-5,
-19,
-58,
-26,
20,
-31,
-10,
-20,
-35,
35,
-55,
0,
10,
-28,
-21,
-32,
-33,
14,
-42,
-41,
-1,
-41,
17,
-3,
16,
-15,
0,
21,
-1,
-14,
9,
-25,
42,
-38,
-35,
-76,
8,
-4,
0,
-3,
20,
32,
27,
-1,
4,
-38,
-52,
-16,
17,
67,
-11,
0,
8,
7,
-13,
-1,
-37,
15,
26,
-16,
4,
43,
27,
29,
28,
28,
-20,
23,
28,
-42,
-51,
-41,
-42,
-30,
29,
-14,
8,
7,
-5,
37,
12,
17,
-25,
-8,
3,
-28,
3,
5,
41,
-26,
14,
-20,
71,
30,
35,
-38,
-48,
22,
-9,
-31,
-44,
-42,
-12,
-9,
36,
-37,
11,
13,
-12,
9,
0,
32,
9,
25,
13,
5,
-40,
-42,
20,
-22,
13,
0,
5,
-3,
-31,
21,
-4,
-34,
-19,
-37,
16,
-3,
-23,
84,
-31,
1,
-22,
0,
-43,
-8,
20,
23,
-1,
-42,
-14,
-24,
12,
46,
4,
-9,
32,
-28,
-17,
34,
5,
0,
9,
1,
12,
16,
17,
2,
0,
-19,
-5,
-40,
11,
-7,
27,
-17,
10,
10,
-28,
-8,
27,
42,
-26,
-24,
24,
19,
33,
61,
-49,
-19,
4,
12,
25,
-10,
-32,
-49,
34,
-25,
-13,
33,
-21,
-11,
10,
29,
52,
-8,
38,
-42,
-41,
84,
-42,
11,
-85,
60,
-53,
17,
-40,
-29,
-12,
13,
-7,
-49,
-12,
-7,
-2,
24,
36,
52,
3,
28,
46,
-63,
45,
41,
-22,
-51,
15,
-10,
5,
1,
-31,
37,
-10,
-8,
54,
25,
-9,
1,
-11,
22,
18,
-1,
108,
0,
-26,
52,
0,
6,
35,
-14,
14,
6,
17,
-11,
-13,
-66,
20,
-17,
10,
18,
15,
43,
-18,
6,
-67,
4,
-56,
4,
-67,
-35,
-32,
-4,
0,
7,
-1,
1,
-40,
53,
13,
-11,
53,
-19,
24,
-4,
-16,
-15,
8,
-17,
-34,
-7,
-28,
3,
66,
22,
16,
41,
-5,
9,
54,
-58,
-15,
8,
-47,
10,
35,
-8,
29,
-10,
24,
32,
-36,
9,
0,
-22,
-49,
28,
-45,
-13,
26,
-7,
-48,
-20,
10,
51,
-58,
-39,
-41,
-17,
3,
52,
-13,
20,
-26,
22,
-9,
49,
1,
-50,
8,
12,
35,
31,
-50,
38,
1,
36,
9,
45,
-12,
32,
19,
-79,
21,
20,
-20,
52,
-11,
-19,
-16,
2,
3,
-18,
22,
-14,
-8,
21,
43,
-27,
-50,
-14,
49,
27,
-12,
-9,
77,
37,
-46,
38,
55,
19,
-27,
9,
24,
57,
-32,
-53,
-14,
1,
-3,
3,
30,
-8,
5,
-15,
13,
-29,
-33,
-11,
5,
29,
2,
-36,
-2,
13,
-33,
30,
45,
-25,
-43,
-10,
-45,
-50,
7,
29,
50,
2,
-5,
-13,
-33,
-16,
3,
27,
0,
-14,
-3,
35,
-40,
-15,
-29,
-28,
13,
-25,
-19,
-41,
24,
39,
19,
-47,
29,
52,
12,
-15,
-55,
24,
-35,
-14,
-43,
26,
35,
17,
41,
24,
58,
5,
22,
-12,
22,
2,
-19,
-3,
39,
-9,
-48,
11,
-10,
25,
43,
-36,
-41,
-12,
-27,
36,
-27,
-38,
-30,
-38,
-4,
-38,
-7,
-6,
-108,
16,
-9,
22,
40,
-19,
19,
-10,
-1,
-20,
8,
26,
-14,
65,
-43,
-3,
-31,
30,
-22,
4,
24,
-49,
-9,
-22,
7,
9,
26,
63,
-13,
32,
17,
-10,
-5,
5,
0,
4,
12,
13,
-34,
-29,
7,
14,
37,
16,
56,
-26,
-42,
26,
27,
-14,
-2,
9,
-12,
-13,
-49,
17,
6,
52,
-14,
-35,
-17,
-31,
41,
-3,
35,
48,
19,
42,
-11,
24,
11,
12,
-13,
0,
-2,
-17,
25,
10,
11,
-14,
-10,
-13,
0,
-1,
52,
40,
36,
-42,
40
] |
Moore, J.
These cases were heard as one, and the disposition of one case disposes of both. The complainant filed bills to set aside certain conveyances of property made by Fred E. Hazle and Frank B. Clark, as being in fraud of the bankruptcy law. Demurrers were interposed to the bills. The demurrers were overruled. The only question we deem it necessary to discuss is whether the court should take jurisdiction of the cases. The authorities are very conflicting. In the case of Brigham v. Claflin, 31 Wis. 607 (11 Am. Rep. 623), the court makes use of the following language:
“But the practical difficulties which will necessarily result if a State court at law should entertain suits brought by assignees concerning the property and debts of the bankrupt are scarcely less grave and serious than the complications which might arise in equitable actions. In the first place, it must be obvious that the assertion of a State jurisdiction in such causes will greatly tend to protract and multiply suits in respect to the bankrupt’s estate, and will inevitably be a. most fruitful source of conflict and collision between the State and Federal tribunals. The object and policy of the bankrupt law manifestly are to collect and distribute the property of the bankrupt among his creditors as promptly as practicable; and these ends can be much more readily accomplished by the United States courts, which have plenary jurisdiction in these matters, than by tribunals acting by different modes, and deriving their powers from other' sources. Some of the remarks made by Mr. Justice Story in the case of Ex parte Christy, 3 How. 292, in reference to the provisions of the bankrupt law of 1841, express my own views so well upon this subject that I cannot do better than quote them. He.says:
•“ ‘The obvious design of the bankrupt act of 1841, chap. 9, was to secure a prompt and effectual administration and settlement of the estates of all bankrupts within a limited period. For this purpose it was indispensable that an entire system adequate to that end should be provided by Congress, capable of being worked out through the instrumentality of its own courts, independently of all aid and assistance from any other tribunals over which it could exercise no effectual control. * * * If we are told that resort may be had to the State courts for redress, our answer is that Congress did not intend to trust the working of the bankrupt system solely to the State courts of twenty-six States, which were independent of any control by the general government, and were under no obligations to carry the system into effect. The judicial power of the United States is, by the Constitution, competent to all such purposes; and Congress, by the act, intended to secure the complete administration of the whole system in its own courts, as it constitutionally might do.’ Pages 312, 320.
“These remarks indicate clearly that, according to the judgment of this eminent judge, sound policy and a just regard to public as well as private interests require that the jurisdiction of the district and circuit courts of the United States over all cases arising under the bankrupt law should be exclusive of the State courts. And I cannot but think that Congress has in fact vested in those courts this complete and exclusive jurisdiction over ‘all acts, matters, and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estaté of the bankrupt,’ including, of course, such jurisdiction and power as may be essential for ‘the collection of all the assets of the bankrupt,’ independently of all aid and assistance from any State tribunals, over which it could exercise no effectual control. See, also, McLean v. Lafayette Bank, 3 McLean, 185; Peck v. Jenness, 7 How. 612. But, even if I had any doubt about this being the proper construction of the bankrupt law, I should still think it was more consistent with the dignity and independence of the State tribunals to decline to take jurisdiction of cases arising under that act, if such jurisdiction theoretically existed, rather than expose themselves to collisions and conflicts with the United States courts, or subject their proceedings to the control of those courts in attempting to adjudicate them.”
This case was followed in Bromley v. Goodrich, 40 Wis. 131 (22 Am. Rep. 685). See Hecht v. Springstead, 51 Iowa, 502 (1 N. W. 773); Seavey v. Maples, 94 Ind. 205.
In Re Newberry, 97 Fed. 24, the present bankruptcy law was construed by Judge Severens. His conclusion is that bills filed by trustees in bankruptcy to reach property transferred contrary to the provisions of the bankruptcy act should be brought in the United States courts. He makes use of the following language:
“An anomalous state of things would be presented if the bankruptcy court, which is charged with the duty of prompt action in collecting and distributing the estate of the bankrupt, should be compelled to await, and be balked by, the pendency of proceedings in another court having a jurisdiction entirely foreign to its own, and in no manner subject to it. The reasons for finding, if fairly practicable, a construction which will avoid such inconvenience, are quite fully stated hy Judge Baker in Carter v. Hobbs, 92 Fed. 594, and, indeed, are obvious.”
See In re Woodbury, 98 Fed. 833; In re Hammond, Id. 845.
The questions involved here are not new in this State. They were discussed in Voorhies v. Frisbie, 25 Mich. 476 (12 Am. Rep. 291), where Justice Campbell, speaking for the court, used the following language:
“We do not deem it necessary to consider, for the purposes of .this case, to what extent assignees may sue at law, on the same footing and with the same rights as private persons, to recover upon contracts or legal liabilities, or in equity, to enforce such liens and obligatidns as involve the same kind of interests. No such difficulties would arise at law as may arise in equity, and it may be there are classes of equitable proceedings which could raise no complications. The present case is one where no cause for equitable interference could exist in this State in favor of private parties, upon the facts alleged. No creditor who has not obtained a lien or judgment, and who has not, in seeking to enforce that lien or judgment in the ordinary way, found it necessary to assail the conveyance of his debtor’s property as fraudulent, can complain of it. And a transfer for a valuable consideration and in good faith, though made by a person known to be insolvent, would not, in the absence of a bankrupt law, be necessarily void as against any one, as it would not necessarily impair the rights of creditors. Our laws have never prohibited honestly-made preferences. The rights of assignees under the bankrupt law rest largely on new and purely statutory grounds. And where a sufficient power exists in the.courts of the United States, not only to enforce those rights, but to do it more conveniently and effectually, in connection with the administration of the whole estate, there is no necessity, and, we think, no propriety, that we enlarge our own jurisdiction to interfere directly in matters beyond our full control.
“The peculiar advantages of equity jurisdiction depend almost entirely on the power of courts of equity to do full justice by a complete control over the matters in controversy, directly, or by personal coercion of the parties. The rule is almost universal that no interference will be exercised unless this complete power exists to compel justice to be done throughout. Specific performance, which is one of the commonest forms of relief, will seldom be granted where there is not a mutual liability to the jurisdiction, or where the court has not the means of seeing .that its decree shall be carried out. It will not entertain a bill where it could not obtain the means of enforcing a cross-bill, if one should become proper, so as to compel both parties to do equity. In maintaining jurisdiction in favor of a foreign state, in U. S. v. Wagner, 2 Ch. App. Cas. 582, the English court of chancery maintained the jurisdiction, with the express assertion that, in case a cross-bill should be filed, proceedings should be stayed until the complainant in the original bill should submit to it. And in U. S. v. McRae, 3 Ch. App. Cas. 79, the principle was further recognized that equities connected with the matter in controversy were entitled to be enforced. This doctrine is elementary, and is incident to equity jurisdiction.
“In all controversies concerning conveyances alleged to have been made in fraud of creditors, it is competent, and generally necessary, to inquire into consideration and notice; and, under the rule in this State, there may be many cases where purchasers, not entitled to hold the entire title, maji- be protected in their partial payments, and authorized to demand repayment of moneys and cancellation of securities, and in some cases to ask reconveyance of property or reassignment of obligations. There may also be a right to an accounting. There certainly can be no jurisdiction in a State court to deal with a fund in bankruptcy, and direct the course to be taken by the assignee; and the assignee would have no power, in some cases, at least, to submit himself to such a jurisdiction. There are some arrangements which he can make with the leave of the bankrupt court, but not without. His powers and duties, as prescribed by the bankrupt law, would not permit any but the courts taking jurisdiction under the statute to adjust all the equities by compulsion. This, we think, is a conclusive objection to entertaining jurisdiction in such suits as the present, 'if the jurisdiction could properly be said to exist. But it would be a misnomer to speak of - such a jurisdiction as existing, and yet not plenary. The constitution of our courts of equity gives them.no such hampered powers, and it would not be promotive of justice if these limited powers had been given. They could not disregard the bankrupt law, without violating their legal duty; and they have not the means of controlling proceedings under it, which are necessary to prevent injustice otherwise resulting from the application of single clauses, or the separation of transactions, where all need to be administered by one set of tribunals.”
This case was followed in Sheldon v. Rounds, 40 Mich. 425; McMaster v. Campbell, 41 Mich. 513 (2 N. W. 836).
The execution of the provisions of the bankruptcy law can well be left to the Federal courts, where there will be uniformity in its execution.
The circuit judge should have sustained the demurrers. The decrees are reversed, and the bills dismissed, with costs of both courts. -
The other Justices concurred. | [
20,
0,
6,
26,
-19,
19,
55,
-11,
26,
42,
21,
6,
15,
-1,
34,
-2,
-48,
-9,
-23,
11,
-3,
-11,
1,
11,
15,
-26,
62,
35,
-2,
2,
21,
-21,
-20,
31,
-1,
-6,
30,
-4,
51,
-18,
-5,
-34,
22,
-24,
-15,
42,
-2,
-38,
30,
-47,
-15,
-54,
-5,
26,
13,
23,
-35,
13,
-14,
-36,
-16,
-42,
24,
-78,
-16,
-28,
11,
-13,
27,
-39,
-21,
21,
8,
4,
58,
-34,
-19,
-53,
-31,
-14,
29,
-31,
-16,
-56,
-24,
49,
-26,
29,
-30,
0,
-17,
30,
-36,
31,
0,
28,
54,
62,
21,
15,
21,
-27,
-93,
20,
19,
-16,
-47,
-46,
11,
-23,
17,
21,
3,
-24,
-20,
-14,
-27,
-16,
-27,
1,
-12,
2,
-12,
2,
-26,
52,
-39,
9,
3,
33,
10,
28,
-58,
13,
-33,
-22,
-48,
-18,
-37,
-53,
-6,
-38,
13,
-33,
-6,
-10,
20,
19,
27,
4,
41,
18,
0,
-6,
-28,
-15,
15,
-21,
54,
-17,
42,
-13,
-13,
-33,
2,
9,
-66,
18,
18,
25,
-20,
16,
-63,
48,
26,
-19,
18,
-28,
-30,
4,
-4,
16,
25,
-37,
-43,
4,
22,
1,
8,
-45,
-18,
21,
23,
62,
-7,
35,
32,
-12,
30,
-12,
-43,
-42,
-26,
-12,
10,
1,
37,
-5,
-40,
2,
-25,
22,
-22,
-15,
-24,
8,
9,
-66,
0,
-27,
8,
67,
37,
3,
-28,
-44,
-40,
-18,
26,
0,
16,
-50,
25,
41,
43,
28,
70,
-13,
-15,
-15,
-1,
49,
-11,
-41,
24,
2,
-19,
26,
-26,
-12,
-23,
53,
36,
47,
-5,
-5,
-1,
28,
-42,
-65,
17,
50,
-46,
-39,
-14,
-45,
-22,
25,
30,
1,
-13,
12,
33,
-2,
28,
7,
-4,
39,
-27,
15,
30,
14,
22,
-2,
-40,
-24,
-22,
9,
46,
29,
19,
-30,
-23,
31,
20,
75,
6,
6,
18,
-1,
-7,
-32,
15,
21,
15,
-5,
-11,
-22,
-21,
-43,
-48,
45,
-53,
-33,
37,
71,
-12,
1,
19,
-5,
44,
37,
21,
-31,
53,
45,
70,
-27,
-9,
13,
3,
-20,
17,
-35,
-12,
-12,
32,
0,
-63,
-8,
6,
-74,
-19,
-12,
1,
-38,
9,
-44,
18,
-13,
0,
-8,
-69,
65,
42,
-32,
10,
-37,
-43,
12,
18,
0,
2,
42,
3,
-22,
-9,
9,
35,
-2,
30,
3,
-13,
-24,
-33,
-9,
-42,
64,
-33,
-30,
-11,
-38,
-10,
35,
50,
5,
-18,
0,
-45,
-11,
23,
3,
-4,
6,
-25,
60,
-14,
-7,
-39,
-25,
-22,
53,
-13,
-68,
-5,
8,
13,
-30,
-1,
24,
6,
-51,
48,
10,
-11,
39,
6,
1,
31,
22,
4,
33,
23,
-13,
9,
1,
6,
51,
-43,
15,
4,
9,
11,
-26,
-17,
-20,
-13,
-33,
29,
-5,
-32,
0,
11,
42,
-16,
-11,
6,
-3,
39,
35,
-25,
7,
-41,
-5,
-37,
4,
-2,
-27,
46,
-36,
41,
-11,
32,
12,
-11,
11,
-25,
-21,
80,
1,
-32,
-25,
-23,
18,
-23,
7,
-4,
8,
-21,
25,
-20,
25,
24,
6,
-59,
15,
-16,
-9,
-12,
-43,
-8,
33,
6,
-66,
3,
-11,
-20,
-44,
-70,
11,
61,
58,
29,
-45,
-5,
-4,
-8,
2,
16,
49,
-45,
-54,
54,
67,
-16,
41,
25,
-14,
-12,
-13,
17,
-36,
-71,
-25,
-19,
-34,
19,
43,
74,
-79,
-11,
10,
-34,
-21,
-7,
68,
13,
45,
17,
-25,
-12,
35,
50,
58,
-8,
13,
7,
-26,
25,
-11,
-4,
-24,
58,
17,
20,
16,
-25,
-7,
57,
2,
19,
-21,
-23,
-54,
23,
-21,
-1,
-7,
-11,
-29,
-19,
-30,
29,
36,
-67,
-2,
19,
27,
30,
-48,
-48,
-16,
-81,
-73,
27,
0,
-23,
-48,
27,
-29,
57,
6,
-22,
-3,
-32,
-34,
11,
-8,
44,
64,
-56,
-18,
-20,
-13,
2,
20,
7,
25,
-15,
-2,
11,
-12,
45,
-4,
34,
14,
-6,
14,
-27,
7,
-10,
13,
19,
-4,
14,
-46,
12,
1,
-22,
13,
19,
-6,
-25,
-6,
-92,
3,
21,
12,
-5,
47,
-55,
20,
0,
-14,
7,
37,
33,
52,
12,
-23,
-17,
33,
-42,
46,
10,
-18,
3,
-3,
22,
-20,
24,
-25,
26,
30,
-27,
27,
-7,
2,
-39,
4,
36,
-23,
41,
44,
17,
-42,
-68,
24,
13,
5,
-20,
5,
5,
-2,
-15,
30,
-1,
14,
-3,
57,
28,
-30,
-19,
-30,
3,
16,
19,
0,
17,
-12,
33,
-41,
8,
32,
-33,
-18,
-42,
10,
-24,
-15,
-13,
-5,
3,
-27,
-2,
16,
13,
-40,
-30,
2,
25,
-46,
56,
-55,
26,
-32,
39,
-27,
-19,
-7,
5,
3,
-23,
-1,
-44,
41,
-24,
-6,
5,
18,
21,
64,
-7,
9,
-1,
17,
-15,
9,
25,
9,
17,
-13,
48,
-27,
-36,
-22,
-33,
-24,
-2,
-11,
0,
12,
-11,
34,
-12,
-2,
-27,
-29,
-13,
-51,
-9,
-32,
-16,
-14,
26,
33,
0,
-17,
7,
-25,
-16,
-48,
-40,
30,
63,
-75,
25,
-22,
25,
9,
-6,
34,
44,
37,
-56,
6,
-10,
-31,
-29,
28,
5,
0,
-11,
19,
12,
43,
-35,
53,
3,
18,
3,
-51,
-2,
-7,
-22,
6,
-34,
-2,
-47,
-43,
-29,
-2,
24,
21,
-22,
48,
-11,
-18,
-30,
17,
14,
-50,
-52,
0,
66,
-16,
13,
-8,
43,
2,
-51,
8,
-4,
27,
9,
31,
-45,
0,
-58,
18,
-9,
-19,
-5,
57,
-21,
-35,
-26,
33,
7,
-9,
-11,
6,
20,
-2,
0,
-5,
4,
41,
22,
50,
-27,
50,
-12,
-13,
-15,
-19,
43,
-29,
-16,
-21,
43,
11,
-41,
68,
21,
62,
70,
-31,
-48,
41,
52,
-24,
-27,
77,
21,
8,
-17,
-48,
7,
-25,
-31,
0,
18,
7,
35,
-14,
-10,
24,
-21,
5,
58,
29,
-62,
-32,
-2,
28,
37,
-22,
11,
35,
3,
33,
11,
41,
0,
5,
69,
13,
7,
37,
-50,
34,
-54,
-12,
-25,
-58,
-22,
1,
-3,
-26,
-17,
-20,
43,
0,
-13,
21,
29,
-4,
-17,
19,
-29,
17,
2,
13,
-26,
35,
-36,
-13,
-25,
-13,
-77,
-17,
20,
-28,
22,
9,
20,
-30,
-19,
-41,
0,
-7,
0,
-36,
45,
-15,
37,
-20,
-14,
-1,
-9,
14,
-19,
44,
5,
-24,
3,
-40,
-73,
3,
31,
22,
55,
16,
-49,
5,
-14,
29,
-1,
-7,
24,
-15,
41,
8,
34,
-44,
-16,
31,
50,
-62,
-29,
4,
31,
8,
-30,
-23,
19,
41,
25,
-21,
60,
27,
-16,
15
] |
Montgomery, C. J.
The complainant, in April, 1895, entered into a contract to sell defendant certain lands in Clare county. The contract contained the usual stipulation giving the purchaser the right to possession, and the usual stipulation that in case of default the vendor might treat the purchaser as a tenant holding over without permission. Defendant and his wife entered into possession, and have since retained possession. A portion of the land constituted their homestead. Defendant defaulted in his payments, and complainant instituted this suit to foreclose the land contract. A decree was entered authorizing a sale to satisfy the unpaid portion of the purchase price. A sale was had, and complainant became the purchaser. Possession was demanded and refused, and thereupon a petition for a writ of assistance was filed. The defendant answered, setting up a homestead right, and claiming that, inasmuch as Mrs. Bracy was not made a party to the foreclosure proceeding, their homéstead right had not been cut off. The circuit judge refused to issue the writ as against the 40 acres occupied as a homestead, but granted it as to the remainder. Complainant appeals.
The sole question, therefore, is whether, in a suit in equity to foreclose the lien of a land contract, the wife of the contract purchaser is a necessary party, when, as in this case, a portion of the land which is the subject of the contract is a homestead. This question must be answered in the negative. Stating the rights of the contract purchaser most broadly, they cannot be greater than a purchaser under a deed of conveyance who gives back a purchase-money mortgage. Indeed, this is the relation which equity accords to the parties; that is to say, equity treats the purchaser as the holder of the title, subject to the lien of the vendor for the purchase price. The question involved has been determined by this court in the case of Amphlett v. Hibbard, 29 Mich. 298. This case has not been overruled or questioned, so far as we have been able to discover. See, also, Kuhnert v. Conrad, 6 N. Dak. 215 (69 N. W. 185). True, it is held in numerous cases that the homestead right cannot be cut off by a proceeding to which the wife is not a party, but in this case, as in Amphlett v. Hibbard, the wife has no homestead interest as against the complainant’s claim. The protection of the homestead is protection against creditors. Patterson v. Patterson, 49 Mich. 177 (13 N. W. 504); Maatta v. Kippola, 102 Mich. 116, 118 (60 N. W. 300); Robinson v. Baker, 47 Mich. 619 (11 N. W. 410).
The order will be modified, and the full relief prayed will be granted.
The other Justices concurred. | [
13,
32,
-18,
53,
31,
30,
35,
35,
27,
3,
3,
-29,
-8,
27,
4,
20,
-25,
-32,
-17,
42,
-19,
-55,
-41,
-1,
37,
-10,
7,
-23,
1,
26,
0,
-5,
-47,
38,
-7,
-14,
26,
-26,
27,
-4,
10,
22,
-1,
5,
11,
28,
-7,
-19,
-1,
-12,
-9,
-35,
7,
13,
-27,
-26,
-25,
-12,
-13,
-18,
-25,
-12,
-18,
20,
-9,
42,
5,
11,
17,
-56,
14,
6,
18,
-58,
8,
-13,
18,
-18,
-8,
-9,
22,
-28,
37,
-56,
5,
-16,
13,
-19,
-27,
10,
-36,
38,
-13,
40,
-12,
12,
59,
11,
18,
34,
-21,
9,
6,
60,
-35,
20,
-29,
-29,
-22,
0,
-9,
-4,
10,
-42,
-17,
9,
11,
-4,
-10,
-12,
-8,
14,
29,
-33,
-5,
-7,
-26,
-29,
-18,
2,
31,
-15,
-21,
0,
-13,
-10,
-8,
22,
4,
0,
13,
-39,
-6,
-67,
20,
-3,
28,
-45,
-48,
-29,
7,
56,
-29,
33,
21,
-50,
31,
7,
-10,
-53,
69,
-9,
-19,
-20,
-49,
18,
0,
10,
13,
19,
40,
0,
-24,
-31,
-9,
-40,
69,
6,
-2,
-1,
25,
-23,
-32,
-7,
19,
-16,
19,
-6,
-25,
-1,
-30,
-7,
16,
19,
-32,
24,
-27,
3,
-51,
-4,
-26,
-17,
-11,
15,
11,
-65,
18,
3,
23,
6,
-38,
23,
-17,
-28,
-65,
7,
23,
15,
-32,
24,
33,
3,
-34,
7,
-43,
-34,
7,
-26,
43,
-10,
-3,
1,
6,
14,
-32,
8,
-4,
-21,
21,
-39,
15,
4,
-6,
-20,
-26,
-37,
-34,
-22,
-6,
25,
-50,
-11,
-28,
58,
15,
13,
-13,
-10,
-14,
13,
-6,
33,
-19,
-2,
33,
-5,
-9,
0,
23,
4,
-26,
7,
8,
51,
-9,
17,
-48,
13,
-46,
-16,
34,
22,
-14,
2,
-39,
48,
27,
91,
-28,
31,
49,
-56,
-32,
-39,
-19,
27,
-17,
-45,
5,
1,
-35,
-39,
23,
51,
-8,
5,
-4,
-13,
31,
11,
8,
-10,
9,
-18,
-8,
18,
0,
-3,
-4,
-9,
35,
-12,
15,
19,
54,
-4,
24,
-61,
-66,
54,
12,
-15,
-28,
5,
1,
31,
8,
-29,
-59,
30,
-5,
3,
13,
34,
76,
39,
-17,
10,
-5,
13,
-26,
-7,
-26,
20,
43,
-8,
-16,
16,
-35,
7,
4,
9,
-12,
-9,
6,
42,
3,
-60,
12,
6,
14,
35,
23,
13,
-77,
-1,
-10,
-56,
1,
9,
21,
-14,
23,
23,
40,
-13,
-41,
3,
-16,
20,
-45,
-48,
4,
2,
0,
-27,
5,
-8,
-36,
-27,
17,
10,
-47,
-1,
-69,
29,
3,
-34,
-19,
6,
-12,
-46,
-31,
21,
11,
42,
33,
-8,
38,
25,
-44,
-2,
18,
18,
-23,
-13,
48,
-24,
-22,
20,
-6,
1,
19,
25,
69,
-26,
-49,
-26,
-18,
53,
-20,
5,
3,
-1,
16,
19,
-23,
-12,
10,
-4,
25,
4,
-6,
33,
-12,
12,
26,
-9,
-21,
-45,
36,
-11,
50,
14,
14,
-23,
-25,
-15,
-25,
14,
22,
36,
56,
-17,
-17,
1,
-11,
4,
-30,
43,
6,
-14,
-5,
-10,
-11,
-21,
-49,
13,
27,
8,
48,
-32,
60,
23,
4,
-59,
-20,
-22,
28,
41,
49,
16,
17,
22,
-17,
-4,
-48,
5,
34,
39,
2,
-53,
22,
47,
5,
20,
43,
25,
20,
16,
1,
-17,
-51,
-42,
2,
-29,
25,
76,
36,
18,
-3,
38,
-9,
-11,
-23,
30,
2,
4,
18,
-27,
-47,
53,
0,
29,
-61,
61,
22,
-33,
15,
-13,
-5,
-73,
12,
-15,
10,
55,
-34,
-13,
-1,
17,
-4,
-7,
24,
-11,
72,
-51,
18,
-61,
-13,
88,
-29,
0,
-14,
5,
0,
-68,
-1,
-39,
12,
31,
-55,
-34,
27,
-65,
64,
23,
-7,
30,
8,
-1,
-20,
16,
-4,
-54,
-35,
-50,
15,
20,
-16,
18,
-12,
17,
-68,
-10,
25,
-13,
-19,
-12,
-15,
15,
-20,
-21,
-2,
-2,
49,
13,
88,
-28,
5,
6,
20,
54,
11,
-29,
-12,
-12,
0,
24,
-10,
-7,
11,
-17,
21,
13,
-8,
28,
19,
18,
-37,
-5,
-23,
-27,
-75,
5,
14,
-23,
-21,
-35,
13,
-24,
-88,
48,
-21,
12,
32,
-37,
2,
5,
9,
0,
70,
-35,
-30,
-13,
67,
-15,
-5,
12,
-38,
34,
-4,
0,
15,
10,
53,
65,
61,
50,
31,
8,
8,
-41,
30,
2,
-16,
-27,
21,
-39,
4,
13,
12,
-25,
43,
-3,
-31,
-37,
12,
55,
-2,
9,
52,
-7,
-19,
14,
22,
50,
-27,
-10,
-6,
-10,
-14,
22,
6,
0,
-16,
42,
7,
-44,
0,
16,
9,
-15,
-11,
-95,
5,
-48,
45,
3,
7,
0,
19,
32,
23,
-1,
-20,
0,
8,
-8,
9,
-46,
-13,
12,
-3,
0,
12,
-14,
16,
0,
-19,
-59,
36,
-42,
6,
33,
-24,
-40,
-36,
19,
-32,
-7,
-5,
41,
-32,
1,
13,
26,
8,
-29,
21,
-17,
11,
5,
-40,
-40,
26,
-25,
43,
27,
22,
-45,
8,
-77,
-16,
-11,
12,
-21,
58,
-14,
27,
-8,
14,
-43,
-9,
-49,
-61,
-19,
50,
38,
0,
-21,
-29,
17,
19,
-2,
4,
19,
-34,
12,
-18,
-11,
6,
-57,
9,
-15,
-6,
12,
12,
90,
-15,
24,
5,
20,
-21,
0,
-24,
7,
59,
0,
-50,
16,
37,
-36,
-10,
36,
0,
-32,
28,
-4,
33,
-49,
0,
-12,
-1,
-46,
32,
-2,
-11,
-30,
-33,
20,
-22,
-16,
9,
55,
-36,
-69,
-59,
41,
2,
32,
20,
4,
-59,
11,
1,
-8,
17,
37,
29,
33,
2,
-16,
-29,
21,
60,
21,
-14,
-27,
-9,
-29,
-20,
0,
-47,
66,
-32,
39,
36,
2,
-17,
28,
23,
-36,
-36,
62,
-52,
4,
12,
-54,
11,
-38,
-25,
11,
6,
-4,
20,
11,
-12,
20,
32,
-2,
32,
-18,
-27,
-33,
-14,
5,
-35,
-63,
-4,
60,
2,
-8,
-48,
-24,
-27,
-40,
17,
9,
25,
16,
-9,
8,
-18,
17,
4,
-39,
47,
-5,
1,
-25,
10,
16,
22,
-35,
-41,
-12,
33,
-5,
24,
47,
-40,
72,
46,
34,
-10,
13,
-58,
-2,
-37,
2,
-42,
42,
-7,
-75,
48,
17,
18,
18,
-45,
-10,
24,
-49,
-8,
-18,
-31,
28,
27,
59,
-5,
-25,
-38,
-48,
-24,
24,
-9,
18,
22,
-5,
-48,
-52,
32,
37,
45,
-2,
25,
19,
6,
23,
-22,
28,
-9,
-27,
19,
-30,
15,
-25,
48,
11,
16,
-26,
-39,
-22,
74,
41,
-15,
2,
-43,
51,
-7,
13,
36,
5,
-13,
41
] |
Grant, J.
(after stating the facts). Acts of this character, when valid, must find a reason for their existence in the police power of the State. The act is not aimed at brokers, in the ordinary meaning of that word. It is not aimed at commission merchants generally. It is aimed solely at commission merchants who engage in the business of selling farm produce for producers upon commission. It provides 'that such a merchant shall pay a fee and execute a bond, as conditions precedent to doing business. The condition of the bond is the honest and faithful performance of his contracts. The business of buying and selling on commission has existed ever since commerce began. There are and always have been dishonest men engaged in it, as there are and always have been in every other branch of business. There are and always have been dishonest sellers, who will pack their produce in such a manner as to deceive. It would be as reasonable to require the latter to give bond to properly pack their produce. In every such case the common law provides an ample remedy for redress to the injured party for breach of contract. There is no more reason why a commission merchant should pay a license fee, and execute a bond to pay his debts and to do his business honestly, than there is that any other merchant should pay a like fee, and file a like bond to properly do his business and pay his debts. The business requires no regulation, any more than any other mercantile pursuit. There is nothing in it hostile to the comfort, health, morals, or even convenience, of a community. It is carried on by private persons in private buildings, and in a manner no different from that in which the merchant selling hardware or groceries or dry-goods carries on his business. The law can find no support in the police power inherent in the State. It is not like the liquor traffic, which, under the decisions of every court, is subject to the police power, because of the injury it does to the health, morals, and peace of the community, and may be prohibited altogether. Neither is there anything in it requiring regulation, as do hack-drivers, .peddlers, keepers of pawnshops, and the like. The legislature of this State is not empowered by the Constitution to regulate contracts between its citizens who are engaged in legitimate commercial business, or to require any class of persons to pay a fee for the right to carry on business, or to give a bond to perform their contracts which other parties may choose to make with them. The Constitution guarantees to citizens the right to engage in lawful business, unhampered by legislative restrictions, where no restrictions are required for the protection of the public. We are compelled to hold this law void, because (1) it is class legislation, and (2) it is an unjustifiable interference with the right of citizens to carry on legitimate business.
It is unnecessary to discuss the other questions raised. The writ is denied.
The other Justices concurred. | [
62,
31,
-2,
8,
-14,
-14,
66,
35,
15,
79,
-12,
17,
39,
-11,
34,
17,
50,
26,
-6,
42,
6,
-25,
38,
-3,
-41,
-23,
44,
11,
-46,
49,
1,
19,
-11,
18,
-15,
57,
-28,
2,
50,
-3,
32,
-3,
17,
29,
22,
29,
10,
-105,
8,
-40,
-27,
24,
33,
13,
11,
-9,
-4,
9,
26,
22,
3,
-57,
5,
-30,
-61,
-36,
-35,
59,
31,
-11,
13,
39,
-34,
24,
41,
9,
48,
-13,
10,
-16,
3,
9,
29,
-46,
-23,
11,
-4,
-25,
0,
-33,
40,
-26,
-16,
-12,
-23,
-34,
50,
55,
2,
14,
14,
-32,
-52,
-65,
13,
28,
10,
-29,
-31,
31,
-9,
-25,
-10,
-42,
-22,
5,
-55,
-1,
-25,
0,
53,
3,
34,
-25,
-46,
-38,
4,
-45,
-74,
-12,
57,
-51,
-10,
-16,
-14,
21,
-82,
13,
35,
21,
-53,
46,
-41,
-34,
18,
-47,
-19,
-11,
-31,
33,
1,
-6,
16,
-22,
-43,
-67,
-8,
-13,
-7,
-9,
19,
11,
15,
26,
-30,
19,
-51,
-68,
-72,
54,
-18,
54,
-5,
2,
38,
-47,
36,
5,
-54,
-27,
-54,
-7,
-34,
50,
20,
-13,
9,
-17,
19,
-24,
1,
-2,
-23,
27,
22,
16,
6,
9,
29,
-29,
-20,
4,
-28,
-3,
7,
-5,
-15,
19,
-9,
47,
-41,
-11,
-17,
-29,
16,
17,
-49,
-26,
40,
-29,
21,
-26,
15,
26,
-12,
-100,
-22,
-13,
-59,
-15,
10,
23,
-2,
-10,
0,
-15,
24,
-12,
30,
127,
11,
25,
-19,
-42,
5,
-11,
3,
-30,
4,
0,
1,
-15,
2,
76,
-15,
0,
21,
36,
-53,
-5,
21,
49,
19,
10,
44,
-50,
-14,
24,
11,
47,
-18,
-49,
-11,
-10,
-13,
8,
-19,
8,
6,
-67,
-15,
0,
21,
12,
-7,
-22,
6,
10,
-28,
-63,
69,
-47,
13,
32,
21,
72,
46,
71,
15,
10,
40,
-19,
6,
-13,
1,
-10,
12,
24,
-13,
-54,
-13,
-25,
-39,
-17,
6,
-12,
34,
-36,
65,
-2,
38,
32,
47,
1,
37,
-38,
47,
-34,
43,
-14,
50,
-20,
14,
-83,
18,
6,
56,
0,
-60,
-12,
-4,
-20,
50,
1,
-21,
-4,
-29,
-13,
-52,
-10,
4,
35,
2,
52,
36,
24,
-22,
30,
10,
-31,
34,
38,
-23,
-33,
-14,
0,
-26,
-3,
-24,
19,
-21,
22,
-50,
12,
-15,
-20,
-2,
-35,
-52,
-27,
23,
3,
-10,
-2,
6,
-8,
-34,
-15,
-33,
0,
4,
13,
-6,
5,
-12,
44,
-17,
-50,
-28,
-18,
-65,
44,
-51,
-25,
-25,
40,
16,
14,
45,
-1,
-23,
-34,
28,
10,
-7,
33,
52,
-46,
61,
-29,
33,
-41,
0,
3,
41,
-25,
-36,
76,
-57,
8,
-8,
-51,
40,
-18,
-15,
-85,
-54,
-13,
-30,
9,
-40,
-5,
29,
59,
-11,
30,
-36,
2,
0,
-45,
42,
33,
1,
61,
27,
99,
21,
61,
-8,
9,
19,
8,
26,
-27,
22,
-59,
-13,
-55,
45,
-27,
-11,
-18,
30,
13,
-5,
-6,
-19,
21,
17,
8,
-17,
25,
42,
-32,
-28,
-29,
-45,
51,
-24,
35,
39,
-24,
10,
-6,
-27,
-23,
93,
-13,
1,
46,
29,
-12,
-50,
29,
-45,
50,
14,
60,
64,
55,
-12,
41,
10,
50,
7,
34,
-62,
16,
-48,
-28,
4,
-55,
-68,
-21,
2,
34,
17,
33,
8,
-54,
-30,
50,
-10,
-19,
31,
31,
31,
42,
28,
-25,
2,
26,
0,
60,
38,
38,
39,
-30,
25,
1,
-41,
16,
46,
-13,
-37,
-3,
-37,
17,
-2,
13,
-68,
29,
25,
27,
18,
3,
21,
30,
17,
80,
-38,
-46,
-19,
42,
-4,
-38,
11,
-12,
41,
3,
0,
-43,
-50,
-34,
5,
-34,
-45,
-8,
15,
-24,
20,
12,
15,
28,
2,
-38,
3,
-49,
-15,
6,
-8,
-10,
-61,
-18,
30,
-26,
61,
63,
-16,
15,
-7,
3,
64,
6,
53,
17,
-4,
-20,
-26,
29,
31,
-27,
-8,
-51,
-5,
2,
72,
10,
46,
29,
-65,
-35,
19,
24,
-87,
54,
-12,
22,
1,
-18,
-58,
-2,
-29,
7,
46,
91,
-28,
58,
16,
-29,
-64,
-40,
-22,
-40,
30,
40,
-45,
39,
-2,
-6,
44,
-33,
-10,
28,
33,
-3,
-41,
6,
-8,
-31,
35,
-57,
20,
-35,
48,
34,
20,
-5,
32,
10,
-18,
-18,
15,
29,
3,
39,
-23,
-6,
-22,
-18,
-21,
-26,
-13,
-26,
-14,
4,
-35,
11,
15,
-21,
24,
-43,
-101,
0,
-53,
-45,
-19,
-27,
-11,
-14,
30,
-14,
1,
-14,
27,
-65,
-38,
60,
-6,
-37,
-83,
-78,
28,
-5,
-18,
-5,
-23,
23,
-52,
51,
-6,
-65,
-12,
-39,
-4,
39,
-17,
9,
25,
-65,
-20,
20,
12,
14,
-6,
-33,
-53,
-6,
36,
20,
39,
35,
-8,
3,
-57,
-11,
-47,
31,
-46,
-44,
-25,
41,
0,
33,
23,
-4,
-44,
-44,
64,
-33,
-25,
-33,
-32,
54,
69,
2,
32,
-66,
22,
-11,
-18,
-19,
8,
-26,
0,
-29,
-15,
-18,
28,
4,
36,
42,
-39,
17,
-36,
22,
-20,
25,
16,
-51,
44,
-10,
-82,
-14,
24,
-6,
10,
16,
-11,
-40,
0,
-50,
-10,
-17,
-14,
-7,
25,
-14,
32,
-26,
6,
-4,
54,
-61,
-32,
19,
-19,
5,
-38,
-2,
-31,
24,
-22,
-32,
-2,
65,
-25,
-74,
44,
-6,
19,
8,
21,
28,
44,
19,
-8,
21,
-52,
-20,
-40,
10,
-24,
5,
46,
13,
-25,
45,
6,
23,
14,
11,
0,
-1,
18,
-68,
-13,
-4,
-31,
6,
15,
33,
16,
33,
0,
-3,
-19,
-15,
-2,
10,
54,
-19,
-45,
0,
45,
14,
-13,
-32,
-42,
3,
31,
-25,
-58,
33,
37,
-21,
19,
3,
43,
-16,
-18,
-5,
-68,
3,
-7,
10,
22,
32,
39,
3,
44,
-30,
-13,
-44,
-11,
44,
22,
-41,
-8,
22,
8,
8,
-25,
-11,
16,
-2,
-56,
-7,
24,
25,
-70,
-6,
-3,
16,
3,
-43,
-11,
14,
-7,
-61,
13,
50,
1,
-19,
-29,
-21,
-18,
39,
50,
-61,
-26,
60,
17,
-7,
-8,
-26,
-21,
16,
-14,
70,
-8,
117,
6,
-53,
-5,
61,
83,
-12,
-59,
-8,
48,
15,
-28,
12,
29,
8,
4,
-10,
0,
-14,
-33,
26,
26,
40,
-32,
27,
29,
-9,
-49,
-7,
-11,
-8,
2,
39,
-51,
-25,
-59,
50,
6,
-59,
51,
46,
-36,
22,
52,
-26,
45,
15,
58,
-35,
-83,
-36,
65,
77,
-58,
11,
0,
37,
-2,
-55,
46,
27,
-6,
55
] |
Hooker, J.
The defendant’s workmen, engaged in constructing a telephone line, had strung and fastened its wire along Main street, in the village of Centerville, to and upon a pole standing at the corner of Main and Clark streets. The wire was then carried diagonally across the intersection of the two streets to the opposite corner, and over a crossbar upon a pole there situate, being allowed to sag near the ground across the intersection of the streets, thereby temporarily obstructing travel. The plaintiff, while driving his horse before a cutter, ran against the wire, and claims that the horse was injured. He recovered a judgment of $125, and the defendant has appealed.
The plaintiff testified that he was driving at a rate of about 12 miles an hour, and did not see the wire, which hung about 2 feet from the ground, until just before it struck his horse’s knees. Counsel allege that the court erred in refusing to direct a verdict for the defendant, asserting that the record conclusively shows that the plaintiff knew that the defendant was stringing wire upon its poles along Main and Clark streets, and that the sun was at his back, shining brightly upon the wire, which was copper. It is contended that he was bound to know that there was liable to be a temporary obstruction, and that he was negligent in not having his horse under control, and in not seeing the wire in time to avoid it. We agree with the learned circuit judge that it was for the jury to say whether he had reason to expect and should have seen the obstruction; for we think it is not conclusively shown that he had such knowledge or notice as should lead an ordinarily careful man to look for an obstruction, or that it was negligence not to detect the wire.
It is contended that he was shown to have been driving in violation of an ordinance imposing a penalty on dangerous or unusual driving. If it be conceded that he was driving in violation of the ordinance, that fact alone is not conclusive against him. Before contributory negligence is established as a defense, there must be proof, not only of negligence, but that it contributed to the injury. These we consider questions of fact in this case, and it was proper to leave them to the jury.
The defendant was not entitled to have given either the fourth or sixth request to charge. We cannot say, as a legal proposition, that defendant had a right to hang a wire across the street for such reasonable time as might be necessary for its purposes, without taking measures to protect travelers against accident; It would depend upon the circumstances, and therefore it was for the jury to determine the question. Again, if, as contended, the judge might have told the jury that the proofs conclusively showed that plaintiff was driving at an unlawful rate of speed, that of itself did not entitle defendant to a verdict. .There was the further question of whether it contributed to the injury.
It is said that the judge should not have left the jury to determine whether the speed was unusual, and that he should not have omitted to say to them that the ordinance prohibited dangerous as well as unusual driving, and that he should not have left them to determine whether 12 miles an hour was prohibited by the ordinance or not. There was considerable testimony tending to show that others drove at a 12-mile pace through these streets, and our attention is not called to any proof that a 12-mile pace was dangerous. It seems to us that they were proper questions for the jury.
The omission to instruct in relation to the word “dangerous” cannot be allowed to reverse the case. No proper request was directed to this question, and counsel did not call the court’s attention to the omission, while one or more of the requests omit the word “dangerous,” while including “unusual.”
The judgment is affirmed.
The other Justices concurred. | [
1,
13,
6,
-12,
-26,
-13,
20,
-31,
40,
43,
33,
-18,
14,
44,
4,
-27,
-10,
-2,
-14,
41,
-44,
-52,
7,
-6,
-28,
-26,
18,
-10,
-61,
17,
40,
25,
0,
25,
-14,
-1,
8,
16,
-15,
4,
8,
36,
-31,
-94,
57,
-19,
23,
-25,
-10,
-57,
-11,
23,
0,
-36,
9,
0,
61,
18,
-54,
10,
-4,
-15,
-19,
-4,
-19,
-6,
14,
15,
-23,
-10,
-32,
32,
-33,
-25,
37,
17,
37,
40,
-22,
14,
-50,
6,
3,
33,
-3,
-8,
-14,
-41,
6,
2,
-26,
-54,
-35,
26,
-47,
14,
5,
-29,
-21,
9,
-8,
29,
6,
6,
-12,
3,
-55,
-35,
-56,
17,
-27,
33,
-2,
-21,
-2,
-51,
-16,
23,
27,
0,
44,
-23,
36,
32,
-45,
18,
-35,
8,
-15,
-10,
2,
-45,
3,
-41,
34,
7,
-83,
-5,
56,
21,
20,
34,
-13,
26,
24,
-24,
-58,
39,
-20,
12,
-2,
-8,
5,
-50,
42,
-25,
-22,
-24,
46,
17,
6,
36,
-14,
-33,
-39,
6,
-46,
-9,
-37,
39,
28,
18,
29,
-31,
51,
-44,
-15,
26,
-49,
-31,
15,
1,
5,
29,
-18,
5,
68,
14,
-32,
45,
2,
-19,
-41,
-77,
-15,
2,
44,
-23,
-21,
-8,
-6,
17,
-24,
-1,
-35,
-1,
-12,
-8,
5,
-47,
-20,
-21,
-30,
9,
11,
8,
22,
-19,
1,
2,
-7,
59,
7,
-28,
-76,
-5,
-65,
-22,
-4,
7,
0,
-1,
19,
3,
-27,
-29,
-1,
-32,
16,
-28,
-20,
4,
0,
-13,
-21,
-10,
-6,
-10,
-24,
2,
-7,
-10,
-14,
8,
-10,
-15,
20,
-16,
13,
-23,
41,
55,
-9,
56,
33,
-11,
39,
21,
-14,
-10,
-41,
20,
19,
26,
-65,
-40,
-7,
25,
20,
17,
51,
-16,
-36,
12,
-32,
-7,
3,
13,
22,
6,
20,
-75,
-22,
25,
-20,
3,
56,
-9,
-43,
-73,
10,
-10,
31,
-8,
46,
0,
-1,
10,
68,
8,
-45,
-2,
0,
41,
-7,
9,
11,
-24,
1,
-22,
-30,
-4,
-16,
-33,
-5,
34,
9,
-69,
13,
6,
-15,
32,
-1,
-4,
3,
5,
21,
18,
-61,
-6,
-37,
3,
24,
-10,
33,
32,
26,
12,
75,
-1,
-54,
15,
41,
-69,
-13,
-39,
16,
-63,
-17,
13,
0,
-19,
-13,
23,
18,
-87,
-13,
-2,
-35,
12,
19,
-38,
37,
8,
25,
-27,
6,
59,
-22,
34,
24,
-17,
0,
-43,
14,
-40,
-25,
31,
-18,
21,
-23,
5,
33,
64,
18,
20,
-38,
-55,
-2,
-40,
-7,
-13,
42,
-20,
-32,
-51,
-2,
30,
-7,
-29,
-41,
-10,
72,
27,
-2,
18,
-7,
0,
-38,
-26,
71,
39,
48,
-19,
24,
-13,
0,
5,
-43,
-4,
21,
-47,
26,
-36,
4,
6,
25,
4,
-29,
-25,
-36,
-18,
20,
36,
-9,
4,
21,
0,
-8,
-21,
42,
-39,
29,
17,
-6,
-1,
37,
-30,
-42,
2,
4,
21,
28,
-34,
67,
-45,
-26,
-49,
59,
-45,
-5,
-23,
19,
-5,
2,
2,
-19,
31,
-41,
-3,
-48,
-36,
3,
-20,
35,
-18,
7,
-7,
20,
51,
32,
-17,
11,
-50,
-3,
24,
14,
12,
20,
36,
-1,
-14,
1,
-31,
18,
-47,
29,
-14,
20,
26,
13,
-2,
21,
21,
-18,
48,
-44,
2,
1,
0,
15,
-61,
5,
-25,
-29,
41,
26,
-25,
8,
-34,
27,
26,
6,
-28,
66,
-45,
7,
-22,
3,
-23,
-24,
41,
6,
-5,
22,
-1,
59,
29,
48,
1,
14,
13,
12,
-27,
13,
-5,
-49,
-41,
-16,
14,
-10,
-6,
33,
-1,
46,
22,
4,
29,
41,
-27,
4,
42,
23,
16,
-55,
-5,
-40,
-3,
-40,
9,
18,
4,
-55,
-2,
6,
-9,
3,
35,
-14,
-6,
-9,
53,
-1,
-11,
28,
-27,
25,
29,
-40,
-17,
-16,
-4,
-35,
22,
24,
-12,
-28,
44,
6,
63,
8,
57,
6,
13,
24,
-9,
-29,
-30,
48,
-8,
-26,
7,
-33,
54,
-14,
-36,
1,
21,
-9,
-83,
-29,
24,
-37,
19,
-11,
-12,
-6,
7,
-20,
-4,
19,
-15,
-11,
-28,
9,
-13,
-71,
12,
-40,
-31,
-36,
-19,
43,
-38,
22,
12,
-27,
-7,
-35,
-11,
21,
-6,
15,
-18,
-45,
28,
-6,
-8,
-27,
-16,
23,
-13,
52,
-3,
35,
-60,
46,
28,
50,
14,
16,
-72,
43,
-56,
59,
13,
-31,
0,
40,
-2,
-17,
-5,
41,
25,
8,
12,
35,
-54,
-18,
21,
0,
5,
6,
59,
7,
14,
35,
-39,
-11,
9,
52,
1,
-14,
35,
7,
14,
20,
5,
-43,
15,
13,
-56,
5,
-13,
-10,
20,
-12,
-17,
-31,
16,
8,
0,
-39,
29,
-24,
-24,
20,
-23,
-38,
-35,
-28,
-48,
20,
23,
-27,
-5,
21,
-3,
28,
2,
-19,
26,
22,
-19,
28,
-35,
5,
-19,
-18,
-62,
39,
-30,
29,
-13,
0,
19,
-29,
-34,
15,
-1,
-42,
20,
-4,
-54,
24,
69,
-40,
-39,
-5,
1,
-25,
-13,
12,
22,
-23,
42,
-27,
4,
42,
-35,
42,
10,
5,
-20,
-7,
-30,
-52,
57,
15,
-13,
21,
9,
-28,
-15,
-1,
-61,
44,
34,
40,
13,
19,
40,
-26,
-30,
-18,
5,
39,
2,
-43,
19,
-26,
63,
-15,
-20,
-7,
-3,
40,
-32,
49,
11,
50,
-35,
-29,
-3,
34,
32,
-11,
-15,
-29,
57,
10,
18,
24,
-3,
65,
-26,
-6,
5,
18,
33,
-25,
42,
-11,
6,
-8,
-42,
-3,
37,
-47,
54,
32,
-30,
-45,
-18,
6,
-25,
1,
24,
5,
-39,
25,
24,
-30,
9,
-38,
13,
-36,
22,
9,
-33,
-12,
2,
12,
58,
-44,
-59,
4,
-23,
30,
40,
44,
-24,
-1,
31,
23,
11,
-22,
36,
32,
-42,
-30,
46,
-3,
12,
-37,
-36,
-12,
24,
-8,
20,
-3,
-12,
-36,
-25,
-10,
11,
-101,
28,
16,
33,
-17,
37,
40,
31,
-40,
33,
-6,
-21,
1,
43,
-21,
-6,
5,
3,
29,
6,
1,
0,
25,
-2,
36,
1,
-13,
7,
-22,
-22,
-59,
7,
19,
32,
-27,
25,
23,
32,
-11,
0,
-49,
5,
5,
28,
15,
45,
41,
15,
13,
36,
58,
-13,
-7,
51,
-17,
-29,
24,
-54,
-10,
20,
19,
-3,
-5,
20,
36,
-47,
52,
46,
16,
2,
53,
-19,
-17,
-23,
-54,
-7,
0,
8,
-52,
-42,
-83,
-7,
1,
-14,
12,
-24,
-5,
37,
72,
16,
85,
40,
-14,
0,
-24,
21,
4,
15,
29,
7,
3,
-11,
12,
-17,
20,
32,
36,
42
] |
Montgomery, C. J.
The bill in this case was filed to correct a mistake in a party-wall agreement, and to restrain the further prosecution of an ejectment suit brought against the grantee of complainants. The testimony on the hearing disclosed the following facts: Prior and up to the fall of 1893 the complainants (who are husband and wife) and the defendant owned adjoining parcels of land on the south side of East Main street in the city of Jackson. The complainants’ premises lay just east of the defendant’s. By the descriptions in their respective deeds the complainants’ lot had a frontage on Main street of 18 feet, and the defendant’s of 15 feet. The front portions of both parcels were covered by old wooden buildings, which directly adjoined each other, and had been occupied for business purposes for more than 20 years. During all of that period, each party and their grantors had possessed and occupied these buildings as their property without question or dispute as to the division line, and as though the line between these buildings was the true division line between their respective premises. In the fall of 1893 the complainants determined to join with one Neesley, who owned the lot next east of theirs, in building a modern brick building covering substantially both of their lots, and having a united frontage on Main street of about 46 feet. They tore down the old wooden buildings on the premises, and began excavating for the foundation walls.
The defendant resided at Rouse’s Point, N. Y., and left his property in general charge of his nephew, Frank Heaton, who resided in Jackson, and was defendant’s agent for the purpose of collecting the rents, making repairs, and overseeing this with defendant’s other real estate in Jackson. When the complainants began to make excavations and lay in said concrete and foundation, said Frank Heaton, who was about the premises overlooking the matter for the defendant, thought that complainants were crowding the foundation and wall over on defendant’s land, and forbade Mr. Lake, one of the contractors, from proceeding further with the work until the matter should be definitely understood. Mr. Lake, an experienced contractor, suggested that the parties make a party wall of it, and make a mutual agreement covering the subject, to which both Frank Heaton and the complainants assented, and such an agreement was orally made by Frank Heaton and Mr. Lake, acting for complainants, by which it was provided, among other things, that the wall should be a party wall, having its center on the line then determined upon, and marked by a nail driven in the sidewalk. This nail was to be, and actually was, 14 feet and 7-]- inches east from the east wall of Bennett’s building, located on the lot next west of the defendant’s. It was understood between Frank Heaton and the complainants that the oral agreement thus made should be put into the form of a written contract to be signed and executed by the parties. The complainants, however, did not wait for this to be done, but proceeded with the work of construction, and located the wall with its center at the point and on the line so agreed upon. This oral agreement was made some time in October, and, before any written agreement with reference to tho party wall was executed, the complainants and Neesley had completed the brick building. On the 7th day of November, 1893, a written contract was prepared by Judge Lewis M. Powell, which was finally executed by complainants and defendant, by Frank Heaton, his attorney-in-fact, on the 26th day of February, 1894. This contract located the west line of the party wall “fourteen feet seven and one-half inches easterly, by the line of Main street, from the east side of the brick wall of the adjoining building, owned by Charles E. Bennett.”
So far we have taken our statement from the brief of defendant’s counsel, from which it clearly appears: First, that there was an oral agreement that the center line of the division wall was to be 14 feet 7-J- inches from the east side of the Bennett building; second, that it in fact was so placed; third, that, after it was so placed, the party-wall agreement was executed, which did not accord with the parol agreement.
The testimony of the county surveyor establishes the fact that the division line as fixed by actual occupancy for more than the statutory period was still less favorable to the defendant than the parol agreement and actual location of the wall, and that by the parol agreement the defendant actually gained 3-J inches, and that, if the written contract is to stand, he will gain about 13|- inches. We are also convinced that the complainants and defendant’s agent understood, at the time of the execution of the written agreement, that it did not fix the boundary line different than it had been fixed by the oral agreement and actual location of the wall.
At the close of the testimony, complainants were permitted to amend their bill by adding an alternative prayer as follows:
“Or that the defendant be perpetually enjoined from maintaining the said ejectment suit, and that he be required to pay to complainants one-half the cost of such wall within a reasonable time, and that the center of such wall be declared to be the boundary line between the lands of said defendant and said William Breitmayer, and that the said written agreement be set aside and annulled.”
The circuit judge granted the relief prayed, and defendant appeals.
Defendant contends that by the amendment to the bill it was made multifarious. It is conceded that a bill may have a double aspect and an alternative prayer if the two prayers are not inconsistent, but it is claimed-that these prayers are inconsistent. We do not think the eases cited are controlling, and we do not discover any inconsistency in the prayers. Both the original bill and the amended prayer prayed for an injunction restraining the prosecution of the suit in ejectment, and prayed that the center line of the wall be declared tbe boundary line between the two properties. It is true, the original prayer was for a reformation of the instrument, and the amended prayer asks that it be set aside; but in either case it is asked that the legal rights of the parties to the property be declared in the same terms. The amendment was probably intended to meet a possible difficulty arising out of want of authority in the agent to execute any other than the agreement actually signed.
On the merits the equities are very clearly with the complainants. It is manifest that complainants did not intend to grant away the partition wall already constructed, nor did the agent of defendant understand that his principal was acquiring it.
It is contended that complainants are not entitled to relief, because they failed to ascertain the authority of defendant’s agent, which was in fact limited to the execution of the instrument as written. The complainants may have taken the risk of the agent’s authority, but in doing so they did not bind themselves to an undertaking to which they never intelligently assented, unless they are guilty of such culpable negligence as debars them, or are estopped by their conduct. We are satisfied that complainants should not be held barred by their negligence, inasmuch as no action by defendant with reference to the possession of this land has been induced by their laches. 2 Pom. Eq. Jur. § 856. Nor is there any element of estoppel. The defendant has parted with nothing on the strength of complainants’ mistake. Id. § 870. If the agreement were wholly canceled, the rights of the parties would be determined by their previous undisputed occu pancy and tbe verbal agreement, and the rights accorded by the decree are only those to which the complainants are entitled.
The decree is sufficiently favorable to defendant, and is affirmed, with costs.
The other Justices concurred.
Viz.: Shields v. Barrow, 17 How. 130; Livingston v. Hayes, 43 Mich. 129 (5 N. W. 78); Schafberg v. Schafberg, 52 Mich. 429 (18 N. W. 202); Ogden v. Moore, 95 Mich. 290 (54 N. W. 899). | [
-20,
30,
53,
27,
-11,
-12,
-11,
-10,
24,
11,
0,
22,
13,
-34,
11,
1,
-35,
-11,
8,
-26,
14,
-2,
16,
-28,
24,
37,
39,
2,
-5,
-28,
0,
-25,
-30,
14,
-9,
19,
84,
-33,
37,
4,
29,
-5,
-46,
-66,
27,
26,
24,
10,
-10,
15,
-83,
-46,
38,
-3,
-64,
-66,
-19,
15,
14,
4,
-55,
-6,
12,
-26,
7,
4,
0,
4,
35,
-62,
-6,
47,
2,
-48,
19,
-24,
6,
-55,
-12,
-28,
-18,
29,
49,
27,
-55,
-22,
4,
0,
12,
62,
-33,
31,
-8,
38,
10,
-13,
35,
37,
4,
13,
-4,
-15,
-35,
6,
4,
19,
-21,
-11,
19,
15,
-5,
-67,
46,
-27,
-42,
-22,
30,
-3,
-13,
-10,
46,
21,
-11,
-9,
-75,
12,
-29,
-49,
-29,
-12,
16,
-17,
-45,
-33,
-20,
6,
30,
22,
-20,
11,
0,
1,
-6,
-41,
-39,
29,
-50,
24,
-32,
-47,
-14,
1,
16,
-8,
22,
-26,
8,
-16,
59,
19,
9,
-43,
6,
-34,
-60,
-34,
-26,
-20,
0,
37,
-27,
-22,
-37,
-28,
-11,
-17,
6,
1,
-45,
2,
54,
-7,
28,
-22,
9,
0,
25,
-5,
-29,
34,
35,
5,
-56,
-27,
7,
10,
-12,
-11,
11,
17,
-74,
7,
-40,
-90,
-20,
-18,
49,
24,
-9,
5,
18,
0,
-26,
17,
24,
24,
56,
-34,
3,
25,
10,
30,
-38,
38,
-62,
-65,
23,
20,
-24,
-25,
3,
-16,
-6,
3,
2,
-12,
27,
30,
13,
-25,
-28,
33,
-35,
-4,
28,
41,
-68,
32,
23,
8,
-22,
28,
3,
9,
39,
50,
-25,
0,
-7,
-11,
22,
-20,
-52,
-74,
44,
-14,
-7,
-43,
30,
50,
-11,
7,
7,
89,
3,
-8,
-33,
23,
-56,
-12,
-10,
12,
-22,
-18,
27,
-28,
18,
27,
-7,
-11,
0,
-35,
5,
-18,
10,
23,
34,
20,
8,
-16,
-49,
-34,
29,
-46,
24,
-17,
0,
21,
42,
-33,
-9,
47,
4,
-3,
3,
32,
4,
50,
17,
-46,
49,
-2,
-14,
-2,
8,
22,
18,
13,
-84,
10,
59,
18,
36,
-44,
-9,
36,
6,
-22,
-8,
22,
8,
29,
39,
-9,
40,
32,
-20,
-30,
-15,
38,
-28,
-81,
0,
0,
28,
2,
2,
-21,
6,
31,
45,
-3,
14,
-40,
-7,
-54,
-36,
-58,
14,
16,
-53,
44,
-46,
43,
-31,
12,
55,
14,
-31,
59,
26,
9,
-6,
3,
59,
-25,
-14,
0,
-5,
38,
-27,
20,
-12,
32,
-19,
-15,
-3,
0,
-39,
-21,
2,
13,
-30,
-7,
-19,
24,
-8,
19,
-4,
19,
32,
-39,
40,
1,
-9,
54,
-23,
-13,
47,
19,
-29,
-11,
-2,
-21,
-26,
-17,
66,
16,
-9,
-35,
-47,
-11,
37,
16,
32,
-5,
-66,
-36,
-37,
30,
-25,
17,
-15,
26,
24,
15,
-11,
29,
18,
35,
21,
65,
-41,
20,
-7,
40,
0,
-3,
44,
-9,
9,
5,
-17,
-3,
-3,
-9,
-53,
-19,
-46,
28,
5,
-14,
20,
-26,
-22,
-22,
32,
-43,
-6,
-21,
3,
18,
2,
28,
-27,
-23,
-8,
28,
-16,
0,
15,
-17,
31,
-17,
30,
-3,
-6,
-35,
-22,
-33,
-22,
71,
2,
12,
-6,
-27,
-13,
1,
15,
75,
-38,
-13,
26,
2,
0,
10,
19,
7,
11,
18,
18,
5,
10,
-6,
-12,
4,
-10,
45,
-2,
4,
10,
8,
0,
34,
-2,
7,
-4,
22,
18,
-5,
-5,
21,
45,
49,
0,
57,
-21,
-4,
36,
23,
11,
-29,
-2,
-30,
-60,
25,
-10,
-6,
-4,
0,
0,
-24,
24,
-30,
18,
43,
20,
-49,
55,
-3,
-42,
57,
45,
-36,
-1,
-27,
-57,
-23,
27,
4,
-7,
-17,
44,
-9,
55,
-9,
5,
34,
-62,
30,
-68,
-24,
2,
-45,
45,
7,
11,
-17,
-16,
0,
2,
-71,
-11,
-11,
-6,
-18,
-48,
17,
-12,
19,
9,
14,
5,
-1,
-23,
26,
-2,
-7,
-27,
-22,
23,
36,
4,
-11,
22,
-26,
14,
32,
-31,
15,
-42,
-18,
-17,
26,
32,
7,
39,
-20,
11,
5,
-30,
6,
-65,
-23,
-58,
44,
-4,
24,
-17,
-20,
-27,
-6,
59,
19,
55,
-36,
36,
-30,
31,
-45,
61,
-28,
37,
36,
-10,
-41,
47,
0,
-9,
24,
-2,
-11,
4,
59,
18,
26,
6,
24,
41,
-13,
46,
-22,
-16,
0,
50,
-37,
-3,
-34,
-50,
61,
-25,
-68,
2,
-24,
-28,
37,
5,
-12,
5,
18,
-5,
-32,
67,
5,
16,
48,
25,
2,
-14,
-6,
57,
20,
0,
-13,
9,
39,
-6,
14,
-25,
12,
22,
-12,
-15,
-6,
-38,
3,
-1,
-9,
-19,
-27,
-17,
6,
-30,
12,
-11,
9,
-17,
-25,
-1,
-51,
1,
-24,
-70,
0,
23,
-28,
2,
16,
-35,
13,
5,
-12,
-40,
5,
23,
-36,
-41,
-6,
-12,
22,
-5,
13,
-3,
-5,
-46,
-5,
22,
19,
31,
-19,
-16,
13,
28,
-37,
38,
36,
-8,
-9,
-47,
2,
19,
-31,
-21,
25,
8,
-5,
20,
-10,
-1,
-3,
-2,
-42,
-8,
-17,
-50,
-33,
-39,
-5,
-1,
-34,
-58,
36,
20,
53,
-13,
-33,
-37,
40,
0,
32,
-13,
-33,
-11,
-37,
-50,
0,
4,
21,
8,
2,
-28,
38,
1,
4,
62,
-3,
10,
9,
-31,
-5,
30,
-19,
13,
9,
49,
-16,
22,
45,
-35,
-3,
-8,
-17,
-24,
9,
12,
-15,
-51,
30,
-8,
40,
-17,
36,
0,
0,
-8,
-33,
9,
-3,
-35,
11,
67,
5,
-28,
12,
-35,
-3,
-7,
7,
9,
5,
5,
9,
-49,
17,
17,
27,
-5,
-42,
11,
1,
-3,
0,
3,
31,
3,
-16,
19,
-4,
13,
12,
34,
8,
12,
-10,
-36,
7,
5,
-14,
10,
-44,
3,
1,
-2,
-12,
12,
-57,
24,
55,
12,
-36,
30,
37,
-43,
-32,
-42,
20,
-39,
0,
-13,
36,
1,
-1,
25,
6,
-27,
-11,
9,
34,
9,
68,
-6,
-31,
-15,
-2,
-33,
-12,
34,
-18,
32,
-21,
-9,
-26,
-16,
-19,
-32,
-13,
22,
-8,
24,
18,
7,
21,
31,
15,
13,
0,
-32,
14,
-30,
2,
-4,
33,
2,
-39,
11,
-7,
48,
27,
-21,
5,
17,
-61,
-38,
-42,
-2,
25,
-24,
42,
9,
-25,
2,
9,
30,
3,
-12,
31,
-7,
-17,
-11,
-16,
57,
18,
-23,
-6,
-31,
-16,
-49,
-44,
2,
36,
14,
-4,
29,
26,
0,
10,
69,
33,
12,
-51,
-39,
32,
42,
-19,
-12,
51,
-37,
47,
4,
-62,
39,
-30,
-65,
83
] |
Montgomery, C. J.
The respondent was convicted of the crime of robbery, being armed with a dangerous weapon. On the trial Detective Baker was sworn as a witness for the people. On cross-examination this witness admitted that the only description he had of the three men arrested was what he had from the conductor of the car and what the officers said about the shoe prints they had tracked. Continuing, the witness said that the only particular description he had of the men was the shoes they wore, but they were not noticed until they were on the street, when he noticed their footprints in' the snow.
“Q. You arrested them on the description you had?
“A. That and the fact that they were with Lyle, whom I knew to be an ex-convict, and I knew the men traveling with him would not be right.
" Mr. Hall: I object to that, as not being responsive, and I take exception to that remark of the witness.”
The only assignment of error is that the court erred in allowing the answer above quoted to stand. There was no motion to strike out this answer. Such a motion was necessary to raise the question. Baumier v. Antiau, 79 Mich. 509 (44 N. W. 939). The fault in the answer given was not that ‘it was not responsive, but that it introduced incompetent matter. Not only was there no motion to strike out for this reason, but the attention of the trial court was in no way challenged by such a claim. We do not feel warranted in setting aside the conviction on a point not made in the court below.
Conviction affirmed.
The other Justices concurred. | [
68,
6,
-1,
8,
-10,
-9,
-2,
-4,
-2,
29,
74,
1,
49,
-10,
0,
-38,
6,
12,
48,
-48,
-7,
-22,
13,
20,
-30,
-42,
45,
20,
-39,
62,
33,
22,
59,
-67,
1,
36,
66,
6,
20,
38,
15,
26,
21,
-39,
-27,
7,
-47,
-6,
-4,
-52,
66,
10,
-19,
37,
38,
62,
-16,
41,
1,
-20,
-11,
28,
0,
-31,
-32,
-32,
3,
6,
-22,
-16,
-44,
7,
-22,
-36,
-17,
-22,
-18,
20,
-39,
-20,
11,
11,
22,
-11,
62,
-41,
31,
-51,
36,
-38,
19,
63,
-12,
-43,
32,
-9,
52,
4,
37,
-16,
-5,
-26,
-37,
-6,
-7,
36,
-51,
-34,
-8,
14,
25,
43,
39,
-9,
-20,
-34,
3,
-36,
60,
9,
-9,
-26,
37,
17,
-22,
-49,
-8,
-24,
-24,
23,
3,
62,
41,
1,
-41,
-18,
-2,
6,
-26,
11,
-14,
32,
-20,
-16,
27,
18,
-21,
55,
7,
7,
-3,
7,
-27,
-23,
-42,
1,
-6,
-36,
-4,
-24,
28,
-2,
-21,
-11,
18,
34,
-39,
26,
-7,
1,
17,
9,
47,
44,
46,
20,
-32,
42,
45,
-8,
26,
-3,
-7,
1,
3,
-28,
-18,
45,
-16,
-27,
-23,
24,
-27,
-9,
6,
4,
-16,
3,
21,
-53,
28,
14,
-36,
-14,
-42,
20,
38,
37,
0,
31,
-3,
14,
35,
-61,
7,
-28,
17,
-30,
-3,
-37,
-36,
13,
-31,
-45,
-12,
-39,
-10,
43,
-41,
15,
21,
31,
-17,
4,
-19,
-5,
34,
-55,
28,
-8,
30,
-33,
-15,
-55,
42,
18,
-22,
-20,
24,
30,
13,
-30,
15,
11,
-52,
-33,
42,
-15,
-19,
-44,
-18,
27,
-7,
3,
28,
30,
15,
27,
-40,
14,
4,
-47,
-35,
-10,
3,
-14,
-26,
6,
-5,
57,
28,
41,
-4,
19,
-40,
-26,
-1,
25,
15,
19,
57,
-51,
-16,
7,
7,
20,
50,
6,
-49,
-5,
55,
15,
-30,
-3,
-4,
3,
35,
13,
-6,
45,
28,
22,
8,
31,
27,
31,
25,
2,
21,
-6,
-61,
-12,
-5,
-76,
75,
8,
-2,
25,
0,
-40,
22,
-6,
-11,
49,
-8,
14,
-12,
-7,
40,
45,
-83,
0,
-22,
-95,
29,
58,
-36,
28,
-25,
-44,
32,
-28,
22,
-42,
19,
-15,
-30,
-8,
31,
-44,
56,
-52,
-7,
43,
21,
15,
-19,
-53,
-20,
37,
-29,
-59,
-11,
2,
-21,
-22,
67,
-32,
-18,
15,
0,
-7,
0,
-27,
-11,
-52,
-19,
-45,
6,
38,
4,
9,
12,
-18,
-38,
28,
0,
9,
46,
-38,
-83,
29,
28,
10,
-41,
-18,
7,
0,
-13,
-30,
-48,
11,
-2,
61,
17,
0,
-2,
3,
19,
3,
23,
-27,
23,
9,
26,
7,
-46,
13,
-27,
-22,
22,
-49,
7,
-14,
-20,
-16,
-31,
-58,
12,
-48,
-81,
-16,
-24,
10,
4,
23,
-33,
-6,
-10,
-13,
13,
-41,
9,
-10,
-43,
49,
25,
-51,
47,
12,
3,
-13,
-17,
26,
38,
-9,
-42,
-61,
13,
-14,
64,
-21,
10,
22,
-3,
4,
-10,
38,
10,
36,
-7,
-15,
32,
9,
-41,
-59,
-43,
6,
41,
25,
44,
18,
14,
-32,
17,
16,
-7,
-4,
2,
-3,
-26,
15,
-34,
-22,
10,
25,
5,
19,
61,
8,
1,
58,
-14,
-45,
-20,
-23,
-27,
-16,
-28,
31,
53,
0,
5,
-8,
41,
41,
-4,
-31,
-25,
-13,
76,
-4,
19,
-14,
81,
30,
26,
-43,
30,
-25,
33,
17,
4,
-3,
-28,
-6,
-4,
-2,
14,
-5,
20,
-8,
51,
-44,
-18,
-47,
-10,
-19,
-20,
-10,
-21,
32,
40,
33,
-8,
18,
0,
29,
76,
-21,
-15,
18,
-53,
18,
-20,
-8,
-2,
24,
-20,
32,
15,
44,
-65,
9,
-6,
70,
9,
-33,
-23,
-30,
-54,
2,
-17,
-31,
-36,
23,
-34,
-28,
7,
28,
64,
9,
-38,
9,
24,
-12,
0,
-36,
-18,
-26,
19,
-4,
0,
-20,
-30,
29,
-43,
-8,
-36,
-11,
-51,
-16,
-19,
-6,
-30,
11,
-42,
-11,
-1,
-32,
-37,
-5,
-25,
8,
9,
24,
31,
0,
-53,
2,
13,
-21,
2,
-18,
43,
-2,
-12,
81,
35,
-75,
-20,
0,
14,
-46,
46,
18,
-15,
9,
-32,
-1,
8,
21,
-18,
10,
38,
7,
-74,
-40,
32,
-7,
42,
-20,
0,
31,
11,
33,
11,
1,
-25,
33,
-15,
-60,
29,
-15,
1,
33,
-30,
7,
23,
0,
-30,
23,
41,
-33,
3,
-47,
55,
-12,
-12,
-43,
-8,
-26,
-4,
-70,
33,
-44,
23,
8,
26,
68,
5,
60,
6,
-2,
-3,
-26,
-58,
27,
14,
24,
5,
0,
67,
-24,
21,
10,
28,
-24,
-2,
5,
13,
30,
3,
-23,
13,
38,
-7,
-1,
15,
-24,
-56,
66,
54,
9,
-8,
-10,
35,
-69,
-13,
30,
48,
46,
16,
-20,
-29,
13,
-1,
21,
-53,
-48,
6,
10,
-14,
-64,
-33,
-18,
0,
-20,
24,
-11,
-12,
-49,
7,
11,
-66,
34,
-17,
1,
31,
-5,
-8,
39,
-32,
44,
-13,
21,
-14,
-30,
-34,
18,
13,
9,
-51,
10,
-13,
-19,
11,
-11,
30,
4,
10,
7,
29,
-25,
-6,
10,
27,
51,
50,
-16,
39,
-59,
-38,
-45,
-4,
36,
-15,
1,
61,
-61,
-3,
-12,
25,
-36,
-20,
36,
49,
-60,
10,
-28,
-6,
0,
30,
83,
-31,
18,
-9,
-22,
11,
1,
44,
19,
-7,
49,
20,
29,
3,
11,
-7,
-1,
11,
22,
1,
45,
15,
6,
-44,
44,
0,
4,
-14,
11,
-44,
-21,
19,
-45,
47,
-24,
7,
44,
13,
63,
26,
45,
-8,
16,
13,
19,
-17,
-1,
-5,
-21,
21,
11,
29,
21,
-50,
-42,
-11,
-38,
-55,
-15,
-39,
19,
-65,
-12,
-17,
-5,
27,
-6,
-3,
1,
-65,
1,
70,
-6,
10,
-7,
-16,
23,
41,
4,
12,
-4,
34,
42,
-11,
-14,
31,
-6,
-13,
56,
52,
34,
19,
-22,
-15,
0,
-13,
11,
-50,
6,
52,
-42,
7,
9,
34,
-35,
-18,
-17,
4,
-9,
-52,
28,
-29,
-2,
-11,
-9,
-29,
37,
6,
19,
16,
0,
13,
5,
-54,
-37,
-43,
-6,
-67,
10,
10,
-17,
16,
52,
-49,
-46,
-24,
-6,
31,
-20,
-6,
-52,
32,
-34,
-8,
13,
-37,
-14,
-49,
10,
-37,
19,
9,
-25,
-3,
12,
-95,
4,
-35,
24,
16,
24,
-15,
0,
-25,
0,
-45,
-1,
-47,
10,
30,
38,
2,
0,
-18,
35,
-27,
-23,
-24,
-36,
-4,
-10,
-29,
4,
-14,
1,
-23,
22,
-23,
22,
16,
38
] |
Grant, J.
(after stating the facts). Courts of probate have only such jurisdiction as is conferred by statute. Const, art. 6, § 13. They are not empowered to construe wills when presented for probate. The sole question, then, is, Did the testatrix execute the will? Parties in interest may appear and contest it on the ground that it was not properly executed, or was obtained through undue influence, or was forged, or that the testatrix was incompetent. If it is admitted to probate, its construction is a matter for after consideration. If its provisions are of doubtful meaning, either the executor, legatee, or heir should apply to a court of chancery for their construction. Byrne v. Hume, 84 Mich. 185, 191 (47 N. W. 679). This has been the universal practice in this State, and is also the rule in other courts. 1 Woerner, Adm’n, § 222; Hawes v. Humphrey, 9 Pick. 350, 361 (20 Am. Dec. 481); In re John’s Will, 30 Or. 494 (47 Pac. 341, 36 L. R. A. 242); Hegarty’s Appeal, 75 Pa. St. 503. After the estate is settled and is before the probate court for distribution, it must be distributed according to the terms of the will, which is the sole guide for the court in its order of distribution. The probate court then has jurisdiction to interpret the various provisions of the will, but not otherwise. Glover v. Reid, 80 Mich. 228 (45 N. W. 91); Byrne v. Hume, supra. The construction of this will was not, therefore, before the court. Two of its provisions were certainly valid, viz., the payment of the expenses of her interment, and the revocation of the former will. It was also lawful for her to devise her property to Mrs. Dudley without condition, or upon the condition that it was insufficient for the charitable bequest. After the will is probated, the executrix, or the heirs, if any, or the State, if there be no heirs, can enter the proper suit to construe the will. All the important questions now raised will then be before the court for determination.
Should the charitable bequest be held void for indefiniteness or other reason, still the will, being properly executed by a competent person, must be held to revoke the former will by its express provision to that effect. Powell thus states the rule:
“If the latter will contain an express revocation of the former, it is immaterial whether the latter be or be not inconsistent with the former, or whether it operate as a will at all or not.” Pow. Dev. 516.
This is cited with approval in Smith v. McChesney, 15 N. J. Eq. 359.
The question is discussed at some length in Pickens v. Davis, 134 Mass. 252 (45 Am. Rep. 322), in which the court say:
“Since the enactment of the English statute of wills (Stat. 7 Wm. IV. and 1 Viet. c. 26, § 22), the decisions in all the courts have been uniform that after the execution of a subsequent will which contained an express revocation, or which, by reason of inconsistent provisions, amounted to an implied revocation, of a former will, such former will would not be revived by the cancellation or destruction of the later one.”
Where a will was lost or destroyed, and its contents (other than the revocatory clause) could not be proved so that it could be allowed and executed as a will, held to be effectual as a revocation of the former will. In re Cunningham, 38 Minn. 169 (36 N. W. 269, 8 Am. St. Rep. 650). It is there said: ‘ ‘ Such a revocation is in general effectual, although the will cannot otherwise be executed.” The same rule was held in Wallis v. Wallis, 114 Mass. 510. Where a codicil revoked valid bequests, and bequeathed them to a void charity, held, that the revocation took effect. Tupper v. Tupper, 1 Kay & J. 665; Baker v. Story, (N. S.) 31 Law T. 631. In Scott v. Fink, 45 Mich. 241 (7 N. W. 799 ), it was held that a will is not revived by the destruction of a subsequent will when the latter will had contained a clause revoking the former will. In Stevens v. Hope, 52 Mich. 65 (17 N. W. 698), it was held that, when a will has once been expressly revoked by a later one, nothing can be claimed under it, though the later has been destroyed. See, also, Cheever v. North, 106 Mich. 390 (64 N. W. 455, 37 L. R. A. 561, 58 Am. St. Rep. 499).
Counsel for' contestants cite Laughton v. Atkins, 1 Pick. 542; Reid v. Borland, 14 Mass. 208; Rudy v. Ulrich, 69 Pa. St. 177 (8 Am. Rep. 238); and In re Goods of Fraser, (N. S.) 21 Law T. 680,—in support of their contention. In Laughton v. Atkins and in Rudy v. Ulrich the wills were denied probate because obtained through undue influence. In Reid v. Borland the instrument presented as a will was held void because not executed in accordance with the statute. The instruments in these cases were held void in toto, and therefore not admissible for any purpose. Incompetency or undue influence vitiates the revocatory clause as well as the other provisions. They have no application to cases like the present, where there was no undue influence. The testatrix was competent, and the intention to divert her property from the devisees by a former will is plain. Those cases would apply if the present will were held void for incompetency or undue influence, or because not lawfully executed, and the other will were before the court for probate, and a contestant should offer this one as evidence of a revocation of the other. In Re Goods of Fraser, the testator had written across the will, “This will was canceled this day in the presence of Dr. Robert Fraser, Esq., physician, and Margaret Rielly, nurse,” and was witnessed by them. The motion before the court was that this memorandum be included in the grant of administration to the widow. The opinion cites the English statute as to revocation of wills, and then says:
“The statute draws a distinction between ‘wills and codicils’ and ‘some writing.’ I am clearly of opinion that this is some writing declaring an intention to revoke a previous will, and, being only a writing of that character, it cannot be called a will. It disposes of nothing; it throws no light on the testamentary intentions of the deceased; it does not declare an intestácy. It simply revokes one particular paper. The application, therefore, must be refused.”
The opinion cites In re Goods of Hicks, 38 Law J. Prob. 65, in which a similar memorandum was written upon a will. In that case Lord Penzance said:
“The language of the statute, therefore, implies that a will may be revoked either by a subsequent will, or by a codicil executed as a will, or by something which is neither a will nor a codicil, namely, ‘ some writing declaring an intention to revoke’ the will. I had serious doubts whether this paper ought not to be looked upon merely as ‘some writing,’ and consequently neither a will nor q codicil, so as properly to be made the subject of a probate or administration with the will annexed.”
He then cites the case of Brenchley v. Still, 2 Rob. Ecc. 162, and stated the proper course was “to allow the grant to go with the paper annexed.”
Counsel in Re Goods of Fraser also cited In re Goods of Hubbard, 35 Law J. Prob. 27. In that case, at the foot of a deed, was written, “I do add unto my will this codicil, hereby revoking any other codicil or codicils heretofore made by me. I constitute and appoint my said son A. G. [a trustee under the deed] my sole and only trustee and administrator under my said will.” It was held (1) that the deed was not entitled to probate as a will; (2) that, as there was no will, A. G. was not executor; (3) that, as the codicil revoked other codicils, administration with it annexed should be granted to the next of kin.
I am unable to see that these cases support the contestants’ claim.
The testimony as to competency and undue influence was in sharp conflict, and both questions were properly submitted to the jury. In reply to special questions, the jury found that Mrs. Gibson executed the will; that she had sufficient mental capacity; and that she was not under the undue influence, restraint, or duress of any one.
It remains to consider whether there was error committed upon the trial. Two expert witnesses were placed upon the stand by the contestants, and a hypothetical question put to each of them, covering seven pages of the record, and containing a statement of the facts as claimed by the contestants. Based upon these facts, the witnesses testified that, in their opinion, she was incompetent to comprehend the will. Each of the witnesses stated that his opinion was based upon the assumption that the statements made in the question were facts. The court instructed the jury upon this testimony as follows:
“In order to make their opinions as to the mental incapacity of the testatrix to make such will competent evidence in the case, all the facts assumed and stated in the hypothetical questions put to them must be proved as true, and if the facts assumed as stated in such questions, or any portion of them, are not proven true, then the opinions of those two expert witnesses as to the mental incapacity of the testatrix to make the will in question are of no value as evidence in this case, and must be rejected by the jury. I think, gentlemen of the jury, that that is a proper request. You will remember that Dr. Emerson and Dr. Inglis were not eyewitnesses as to the condition of Mrs. Gibson in the month of July, 1898. Now, if you believe that the several facts which are embodied in those hypothetical questions are true, then I think you are justified in giving importance to the testimony of the physicians; but, of course, if you do not find that those facts are true, or if you find that any of those facts are untrue, then, inasmuch as the testimony of those witnesses is confessedly based upon the facts which are assumed in the question at least, then, under those circumstances, of course, their evidence would become valueless; but it is for you to say, of course, being the judges of what the actual facts were, what credit shall be given to their testimony, if you find the facts to be true.”
The opinions of the experts were evidently based upon the supposed facts set forth in the question, and the instruction limited the jury to the opinions based upon the question. If counsel desired their opinion upon a portion of those facts, they should have propounded a question which included them and excluded the others. We think the instruction was correct. Rice v. Rice, 50 Mich. 454 (15 N. W. 545); Kempsey v. McGinniss, 21 Mich. 123.
We find nothing in the remarks of counsel to justify a reversal of the case.
We find no error upon the record. The judgment is affirmed.
The other Justices concurred. | [
3,
-13,
-19,
-89,
-16,
29,
50,
96,
26,
-24,
6,
-33,
34,
36,
-10,
-18,
-14,
45,
-40,
11,
-54,
35,
-32,
2,
-8,
2,
26,
29,
44,
-50,
-3,
5,
-40,
72,
-9,
0,
61,
-30,
49,
47,
-11,
5,
-19,
35,
-27,
-9,
21,
-61,
0,
1,
-30,
-1,
-28,
-35,
19,
8,
-21,
-34,
-103,
32,
5,
-55,
-33,
18,
-20,
32,
33,
2,
-60,
-9,
-6,
2,
-4,
56,
17,
-32,
2,
3,
7,
1,
90,
-44,
-22,
-18,
-51,
-10,
-44,
-10,
-10,
-34,
-47,
-4,
-47,
-14,
-29,
15,
44,
2,
49,
53,
23,
34,
15,
34,
-36,
-6,
-10,
-47,
-28,
-35,
22,
4,
2,
-3,
-1,
47,
-72,
-14,
-8,
-41,
-34,
-31,
-43,
-35,
35,
23,
19,
-34,
55,
-13,
29,
23,
-21,
-22,
-21,
12,
-58,
-9,
-18,
-24,
18,
4,
31,
-62,
29,
-54,
7,
-53,
-64,
-16,
-12,
-17,
-3,
21,
-10,
0,
4,
-65,
49,
-7,
25,
21,
-17,
-31,
-36,
-27,
10,
28,
35,
22,
-4,
22,
-30,
43,
-2,
-23,
-1,
-15,
-14,
-44,
-27,
34,
41,
4,
41,
-7,
-10,
6,
19,
-23,
-25,
13,
7,
84,
0,
69,
8,
-7,
14,
-28,
-72,
3,
5,
-24,
4,
-13,
-5,
-62,
-27,
-7,
-16,
26,
-39,
33,
0,
-38,
43,
-2,
-15,
-19,
7,
45,
42,
-56,
-58,
-4,
-14,
6,
-13,
0,
27,
10,
-42,
45,
47,
11,
28,
-19,
-45,
-3,
44,
29,
-5,
14,
-24,
9,
34,
16,
-5,
-3,
-16,
-34,
70,
32,
10,
-13,
-2,
52,
9,
-25,
62,
47,
-76,
-44,
31,
34,
60,
-55,
-22,
-22,
12,
-13,
8,
-46,
22,
-39,
-25,
24,
-9,
3,
4,
29,
-15,
40,
18,
36,
-61,
25,
9,
36,
28,
6,
25,
4,
39,
65,
-7,
7,
5,
-37,
-36,
90,
70,
74,
16,
-15,
29,
35,
-37,
-8,
-21,
47,
-26,
9,
36,
42,
-24,
-50,
32,
11,
13,
-5,
8,
-32,
7,
-17,
-45,
-6,
9,
91,
-32,
52,
68,
0,
-10,
-21,
6,
14,
-6,
-22,
32,
-34,
-3,
-41,
44,
-21,
38,
-24,
21,
-6,
4,
18,
-41,
21,
-7,
-17,
-15,
-24,
-19,
11,
20,
4,
30,
24,
-13,
21,
-17,
1,
43,
39,
55,
-1,
-10,
41,
25,
15,
-6,
16,
-29,
9,
-77,
-25,
-6,
47,
30,
8,
-27,
56,
-12,
19,
25,
17,
-2,
1,
9,
17,
-32,
0,
-10,
-1,
-31,
100,
-14,
-11,
-65,
19,
3,
-7,
-11,
16,
0,
11,
52,
-29,
-31,
30,
9,
0,
34,
57,
13,
18,
-7,
-16,
-64,
-21,
-29,
25,
-49,
-33,
-18,
25,
46,
16,
48,
15,
-29,
15,
-11,
16,
-27,
-18,
49,
2,
-33,
-3,
46,
-7,
-9,
14,
41,
37,
-6,
-9,
27,
-68,
63,
9,
25,
1,
20,
-25,
6,
-53,
41,
17,
-15,
6,
36,
-29,
-46,
1,
-31,
0,
5,
19,
3,
25,
-4,
-40,
75,
-18,
-45,
-62,
-1,
4,
15,
-14,
2,
-23,
-21,
-31,
8,
-25,
-7,
-58,
-1,
5,
-56,
-12,
63,
48,
22,
17,
6,
0,
17,
-47,
-66,
-20,
-8,
-19,
41,
45,
31,
18,
85,
20,
8,
-5,
-20,
-91,
-90,
-71,
6,
47,
20,
50,
7,
-54,
-20,
-10,
24,
-4,
-28,
7,
-47,
-9,
11,
-51,
-72,
46,
38,
47,
-5,
57,
11,
-22,
-22,
-3,
-41,
-73,
-14,
-2,
9,
-51,
57,
-67,
60,
2,
1,
54,
13,
-20,
51,
-25,
33,
-39,
-27,
-31,
-11,
-5,
-9,
0,
-31,
-15,
57,
30,
-23,
-50,
-20,
3,
-48,
-26,
49,
33,
0,
-13,
37,
-5,
-32,
37,
-41,
19,
-40,
-60,
0,
-23,
75,
16,
-35,
-21,
21,
32,
6,
27,
50,
-22,
-41,
-3,
4,
14,
12,
-42,
12,
64,
-49,
-51,
-9,
66,
-5,
-25,
28,
0,
6,
-16,
55,
10,
23,
13,
10,
12,
-33,
2,
-33,
17,
-14,
-33,
27,
-39,
-57,
6,
-45,
-32,
61,
10,
1,
34,
44,
54,
-16,
10,
-34,
-5,
20,
-11,
-8,
-59,
44,
17,
47,
-63,
9,
2,
22,
55,
0,
51,
-8,
-19,
-32,
11,
10,
7,
-35,
-42,
-18,
-9,
4,
-9,
-17,
37,
-2,
27,
17,
11,
-41,
-1,
-12,
33,
16,
-27,
16,
60,
1,
-69,
-5,
29,
22,
-4,
3,
44,
27,
28,
-34,
0,
12,
1,
-27,
-73,
-39,
51,
-39,
4,
-22,
26,
55,
-43,
3,
22,
19,
-82,
-30,
-15,
0,
12,
14,
15,
-24,
-35,
58,
-41,
-9,
48,
-5,
21,
0,
2,
44,
-6,
-33,
35,
-20,
-6,
-43,
7,
72,
50,
-24,
17,
16,
33,
37,
-36,
-48,
-55,
16,
5,
9,
-3,
-43,
19,
-39,
-4,
7,
-65,
-3,
9,
-61,
-26,
42,
-22,
30,
-19,
-48,
0,
8,
-57,
43,
-16,
-17,
9,
0,
35,
16,
-52,
39,
-72,
0,
27,
15,
10,
3,
11,
-14,
-34,
24,
-5,
55,
-10,
9,
62,
5,
6,
17,
11,
-37,
55,
-11,
13,
46,
3,
-30,
0,
-38,
-28,
11,
51,
-24,
-66,
45,
10,
65,
-29,
-24,
18,
-6,
-56,
-57,
-2,
-18,
21,
-29,
-33,
19,
-21,
-2,
37,
12,
-26,
-18,
9,
-11,
49,
9,
14,
-1,
-10,
-70,
12,
14,
13,
1,
15,
21,
1,
-17,
6,
25,
52,
25,
8,
51,
-32,
16,
-35,
9,
-1,
46,
-2,
-35,
25,
-21,
-21,
-11,
-5,
10,
-23,
-20,
9,
43,
64,
-29,
-4,
-50,
-24,
40,
-11,
-29,
71,
88,
-29,
5,
33,
-4,
-8,
-52,
-39,
-21,
2,
-50,
-29,
-20,
-3,
16,
-46,
-37,
19,
10,
-25,
-22,
-35,
-8,
-22,
53,
-25,
55,
-51,
15,
-50,
0,
28,
-15,
-15,
-39,
-25,
8,
-27,
-30,
-1,
-56,
-6,
-11,
-5,
-23,
-3,
-20,
29,
-25,
-23,
37,
-35,
-40,
-20,
40,
41,
24,
-7,
9,
-77,
0,
-1,
46,
8,
-43,
2,
0,
-32,
-31,
15,
-27,
19,
28,
20,
51,
-49,
1,
-24,
7,
-5,
-72,
11,
37,
-42,
12,
-5,
40,
-12,
51,
-40,
-21,
-24,
23,
71,
-26,
3,
28,
-37,
-25,
-98,
36,
-11,
-52,
25,
-48,
32,
-11,
37,
-35,
27,
-6,
-7,
5,
-25,
33,
-36,
-1,
5,
-13,
-39,
-27,
16,
21,
4,
-36,
33,
-18,
-7,
24,
-16,
34,
-39,
12,
12
] |
Moore, J.
Respondent was charged and convicted of assault with the intent to commit the crime of murder, and sentenced to Marquette prison for 25 years. Respondent and his wife lived unhappily together during most of their married life, and at the time the crime was committed were living apart. They had two children, both of whom were boys. The younger boy lived with his father, on Lockwood street; the older boy and Mrs. Casey, with Mrs. Casey’s mother and sister, on Plains street, in the city of Alpena. On Sunday, the 19th day of December, 1897, the boy Freddie called to see his mother and brother. Later, respondent was seen by Eliza Sheridan and Mrs. Casey approaching the house. They supposed he had come for Freddie, who was playing in the yard. Mrs. Casey told her sister to put Freddie’s overcoat on him outside the house, so respondent would have no excuse to come in the house. As respondent came up the steps, Miss Sheridan said to him, “Here, Freddie is ready; ” and he said, “Get the whisk and brush the snow off that child.” Respondent then came up the steps, and pushed past her into the house. This was at the back kitchen door. Witness and the boy followed respondent into the house. Mrs. Casey was washing dishes, and stood almost behind the kitchen door. Respondent went up to her and said, ‘ ‘ I will give you until Monday to get out of town.” She asked him what she had got to get out of town for. Respondent then pointed a revolver at her face and fired. The shot took effect under the right eye. Miss Sheridan ran to the front door to call help, and, while away, respondent shot his wife through the elbow. Miss Sheridan returned to the kitchen, where respondent pointed the gun at her. She said, “For God’s sake, Maurice, don’t shoot me.” In the meantime Mrs. Casey had crawled under the table. Respondent then fired two more shots at,his wife, and attempted to fire the third, but the gun did not go off. Respondent took his child and walked away. He was later found in a cellar just outside the city, and arrested. The defense was insanity, and the case is brought here for review upon writ of error. There were a number of assignments of error, but we shall discuss only those we deem important.
On the part of the defense, Mr. Wyman testified as fol-* lows:
“I have known Maurice Casey for about 10 years. During the last four or five years I have had business with him right along, so we became familiarly acquainted. I have noticed that since the first of the summer he has acted peculiarly, different from what he used to. The most of the conversation I had with him was concerning his family troubles, — his wife and children leaving him and being away from him, — and thought his mother-in-law had a good deal to do with it, and would talk about nothing else in my company. He was talking about it all the time, and didn’t talk about anything else. He used to be in my shop from one to half a dozen times a day when he wasn’t working. He would sometimes come in and cross the shop two or three times with his head down, not noticing or speaking to any one. Sometimes we would speak to him, but he would not answer us. We have passed each other on the street, he not noticing or speaking to me, and we were good friends. Lots of times I spoke to him when passing him on the street, and he didn’t answer. I have met him on Second street, going to and coming from my meals, and heard him talking to himself and making gestures. I remember one time passing him, I think, near the Beebe Block. I was going to my dinner. He was going downtown, with his head down, making motions with his hands as though he were speaking to some one. I met him face to face. Then he didn’t speak to me, nor I to him. He didn’t notice me, so I passed him right by. I didn’t like to speak to him any more than I could help, because he would talk about nothing else but his troubles, and I didn’t want to be bothered with him. I was acquainted with him in 1894, 1895, and 1896. I don’t think he ever spoke of his family troubles during these years. Never saw him act that way before 1897. I noticed a radical change in his conduct. I saw respondent the next day after he was arrested. I thought he was a raving maniac that day. He was hollering and raving around the jail. Would throw himself on the floor and cry and holler. Then he would turn and walk away from the door of the jail, and laugh as he moved away. It sounded to me like a maniacal laugh. I talked with him that day. He answered me a part of the time. When I first went in he didn’t know me until I spoke to him a couple of times. Then he reached his hand through the grates of the door and shook hands with me. I remember one time of telling him that he was going crazy, but I don’t remember what he said in reply.”
He was then asked to state whether he considered the respondent sane or insane. The court held he was not competent to express an opinion upon that subject, and excluded the testimony.
A number of other witnesses testified to their acquaintance with the accused and his unusual conduct and actions, and an offer was made to show that in their opinion the accused was insane. The judge held the testimony was incompetent.
The right to express an opinion as to sanity or insanity, where it is in issue, is not confined to experts. Any person having sufficient knowledge to speak intelligently upon that subject is competent. He may not express an opinion simply because he was acquainted with the person, but in addition thereto he must show facts and circumstances which the court can say tend to show the insane condition. When that is done, then the witness may express his opinion, and it is for the jury to say how much weight should attach to it. In Armstrong v. State, 30 Fla. 170 (11 South. 618, 17 L. R. A. 484), the question was raised as to the competency of certain witnesses to express an opinion as to the insanity of. the accused, and the court used the following language:
“These witnesses conversed with him on the subject of his delusion, observed his strange conduct, and gave it as their opinion that he was insane on that subject. They are not shown to he experts in such matters, but the weight of authority is clearly in favor of admitting such testimony on an issue of sanity vel non. No objection was made to it on the part of the State in the case. 11 Am. & Eng. Enc. Law, 161, and authorities in note 1 to heading, ‘Opinions of Nonexpert Witnesses;’ 1 Whart. Ev. §451; Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612 (4 Sup. Ct. 533); McClackey v. State, 5 Tex. App. 320; Webb v. State, Id. 596; People v. Sanford, 43 Cal. 29; People v. Wreden, 59 Cal. 392; State v. Klinger, 46 Mo. 224; Wood v. State, 58 Miss. 741; State v. Newlin, 69 Ind. 108; Sage v. State, 91 Ind. 141; Clark v. State, 12 Ohio, 483 (40 Am. Dec. 481). It may be proper to state that such witnesses cannot express a general opinion as to sanity, nor can they give an opinion independent of the facts and circumstances within their own knowledge; but they can detail the facts known to them which show insanity, and thereupon express an opinion as to the sanity of the person whose mental condition is being investigated. Of course, the value of such testimony must depend largely upon the opportunities of the witnesses to correctly observe the appearances and conduct of the person whose mind is claimed to be unsound, as well as the character of such appearances and conduct. The witnesses who testify as to the mental disorder of the accused had an opportunity to observe him closely, and some of them made special investigation as to his condition.”
This opinion is in harmony with the decisions of our own court. Beaubien v. Cicotte, 12 Mich. 459; O’Connor v. Madison, 98 Mich. 183 (57 N. W. 105); People v. Borgetto, 99 Mich. 336 (58 N. W. 328); Prentis v. Bates, 93 Mich. 234 (53 N. W. 153, 17 L. R. A. 494). We think the proper foundation was laid to make these witnesses competent to express an opinion.
Upon the trial the people were allowed to swear a witness in rebuttal, without the name of the witness being indorsed upon the information, and without requiring any showing why it was not indorsed. Section 11934, 3 Comp. Laws 1897, relating to the indorsement of names upon the information, has been repeatedly construed by this court. See the cases cited in the note to this section. In People v. Quick, 58 Mich. 321 (25 N. W. 302), Justice Campbell, speaking for the court, said:
“We have held on several occasions that the defendant has a right to know in advance of the trial what witnesses are to be produced against him, so far as then known, and to have any new witnesses indorsed on the information as soon as discovered. The object of this is not merely to advise a respondent what witnesses will be produced on the main charge; it is to guard him against the production of persons who are unknown, and whose character he should have an opportunity to canvass. It is as important to impeach a rebutting witness as any other.”
In People v. Howes, 81 Mich. 396 (45 N. W. 961), Justice Grant, for the court, said:
‘ “"The prosecuting attorney was present at the examination before the justice, and then knew of this witness. The statute required him to indorse upon the information the names of the witnesses then known to him, and authorized him to indorse the names of other witnesses at such time before the trial as the court may, by rule or otherwise, prescribe. 2 How. Stat. § 9549. It needs no argument to show that the letter and spirit of this statute were violated in permitting the name of this witness to be indorsed after the trial had commenced. This right given by the law to the accused is a substantial one, which courts cannot ignore. The carelessness or neglect of the prosecuting attorney will not warrant the court in permitting names to be indorsed upon the trial when the witnesses were before known to him.”
Should the testimony introduced upon the part of the respondent make it necessary to call witnesses in rebuttal whose names, and the materiality of whose testimony, until then were unknown to the prosecuting attorney, upon a showing of those facts it would be the duty of the judge to allow the names to be indorsed. Until this is done, the testimony of the witness may not be taken.
The other assignments of error do not call for discussion. For the reasons stated, the judgment of the court below is reversed, and a new trial ordered.
The other Justices concurred. | [
49,
55,
-11,
37,
-59,
-1,
-14,
31,
36,
-20,
-18,
-11,
-19,
-18,
9,
15,
-69,
-22,
36,
-30,
2,
-20,
-59,
20,
-10,
-23,
-25,
0,
-59,
47,
51,
40,
8,
-37,
29,
-21,
63,
-15,
50,
46,
-4,
44,
41,
13,
3,
6,
0,
6,
-7,
9,
26,
-59,
60,
-8,
20,
-14,
16,
60,
15,
-1,
-3,
-28,
-35,
-26,
-30,
-52,
22,
-12,
-52,
45,
-3,
14,
4,
-12,
-5,
12,
-24,
-41,
-21,
-28,
-35,
0,
33,
15,
-29,
-22,
-7,
-45,
-16,
34,
68,
68,
-34,
55,
65,
3,
20,
-3,
16,
-12,
3,
-51,
-45,
-21,
-14,
6,
-43,
-12,
18,
68,
-36,
32,
70,
43,
-29,
-50,
6,
-8,
16,
-17,
-16,
25,
60,
-45,
26,
-24,
-51,
-13,
68,
-30,
-39,
49,
66,
5,
-61,
-47,
13,
-11,
44,
-20,
-50,
8,
15,
-15,
-1,
22,
-11,
23,
-11,
9,
-42,
-22,
47,
12,
58,
-7,
-18,
-20,
-38,
4,
6,
-36,
27,
-25,
-35,
-49,
-10,
-24,
5,
-10,
-64,
41,
-32,
12,
43,
23,
-16,
-23,
0,
36,
7,
41,
13,
4,
17,
-26,
3,
-3,
19,
1,
1,
26,
-18,
-31,
-1,
23,
11,
-45,
15,
-31,
1,
12,
-25,
-33,
16,
-30,
-14,
47,
21,
-30,
10,
16,
-30,
17,
-47,
15,
-32,
-11,
-37,
13,
-65,
-2,
-10,
68,
-55,
-58,
-11,
-7,
-52,
-15,
47,
-17,
-2,
-16,
12,
-30,
-17,
-22,
-20,
-7,
-44,
-13,
17,
2,
59,
52,
-13,
23,
-27,
26,
-8,
-26,
-2,
47,
-19,
2,
0,
-40,
-14,
-15,
-72,
2,
15,
20,
69,
37,
15,
20,
-27,
-8,
31,
-26,
33,
-16,
-27,
4,
64,
23,
-20,
-25,
64,
25,
18,
27,
-14,
-53,
-3,
-6,
-6,
-9,
25,
-27,
47,
-45,
56,
-34,
37,
-12,
15,
-51,
40,
6,
-31,
-3,
-1,
0,
49,
-15,
-13,
20,
7,
25,
-36,
8,
49,
-38,
20,
-14,
-7,
53,
-5,
-43,
-36,
-46,
-5,
27,
-21,
15,
-101,
27,
-10,
40,
2,
32,
-47,
51,
-6,
28,
26,
-23,
-4,
-14,
-2,
-4,
-27,
-18,
47,
41,
-43,
-54,
-31,
-49,
1,
-6,
-16,
-12,
-29,
-9,
55,
3,
36,
-19,
-16,
23,
6,
-30,
4,
-70,
-4,
16,
7,
-45,
16,
10,
26,
47,
51,
-15,
7,
13,
-6,
-2,
0,
12,
0,
-28,
21,
-46,
0,
32,
-34,
-1,
-10,
-24,
-3,
-71,
-21,
12,
4,
-76,
-40,
0,
63,
32,
4,
9,
-38,
25,
54,
-7,
26,
-32,
30,
21,
16,
-20,
-39,
-55,
40,
9,
3,
21,
95,
-66,
27,
-1,
1,
-16,
-3,
-34,
59,
3,
11,
27,
9,
-20,
-56,
20,
35,
-79,
-53,
19,
-14,
37,
15,
6,
-75,
-17,
0,
-12,
-9,
-10,
-9,
-13,
-51,
7,
-31,
29,
62,
0,
46,
-17,
31,
-12,
12,
-4,
-33,
6,
-31,
19,
30,
-27,
-53,
-47,
23,
27,
42,
-19,
37,
-12,
-35,
-11,
10,
34,
-54,
-38,
-11,
-52,
-6,
0,
26,
6,
-42,
-11,
-11,
33,
39,
14,
10,
-8,
-21,
22,
-4,
0,
-23,
-8,
59,
27,
23,
-19,
-3,
9,
-55,
-13,
-7,
-40,
31,
7,
-39,
-45,
-18,
66,
-6,
41,
17,
-2,
41,
-7,
-80,
-15,
22,
4,
1,
7,
71,
11,
-19,
4,
32,
8,
49,
-42,
54,
9,
-15,
-6,
15,
11,
-21,
5,
20,
-28,
-8,
-50,
2,
-4,
-12,
-5,
-47,
-39,
4,
-13,
28,
-18,
15,
-31,
-20,
41,
27,
-3,
-11,
42,
-16,
37,
-46,
4,
-11,
34,
-38,
40,
30,
15,
-63,
72,
-8,
-5,
-14,
-3,
-47,
33,
-54,
26,
37,
4,
4,
-33,
3,
22,
16,
-60,
-34,
4,
27,
-15,
-9,
44,
-15,
0,
38,
-8,
37,
27,
-40,
-28,
0,
42,
10,
16,
-57,
0,
-13,
9,
-22,
-26,
-43,
-22,
32,
-42,
0,
-22,
-29,
16,
9,
43,
11,
-2,
38,
43,
-2,
-3,
-18,
24,
-17,
-1,
8,
54,
-4,
15,
3,
-46,
-41,
-58,
-7,
-10,
0,
-41,
35,
60,
12,
35,
39,
41,
0,
-21,
1,
25,
-5,
9,
-17,
-2,
-2,
-17,
25,
-67,
-22,
14,
-28,
19,
50,
38,
-10,
-3,
-15,
19,
30,
1,
3,
0,
-43,
16,
-73,
-1,
57,
0,
21,
-3,
12,
5,
-5,
-7,
-4,
-19,
19,
3,
28,
-37,
70,
-30,
-9,
-58,
-7,
21,
50,
16,
-39,
-5,
9,
-15,
53,
16,
-14,
17,
60,
28,
35,
4,
36,
-7,
40,
-10,
31,
-8,
-38,
10,
30,
31,
-22,
-13,
-7,
24,
-20,
-37,
-79,
11,
24,
-23,
10,
-79,
-3,
11,
27,
15,
57,
-11,
28,
5,
21,
-3,
-11,
-10,
4,
9,
-21,
-43,
-52,
3,
-4,
-6,
52,
13,
-13,
-7,
-23,
52,
-10,
63,
-4,
-8,
36,
-55,
0,
55,
-31,
-19,
-16,
-8,
37,
-11,
38,
3,
-21,
15,
-26,
34,
-33,
-4,
5,
-60,
2,
25,
7,
-5,
5,
-32,
39,
-11,
50,
16,
-50,
26,
53,
59,
-32,
-10,
-112,
-41,
-20,
-9,
11,
54,
57,
-12,
56,
-33,
15,
26,
9,
16,
-20,
-44,
-7,
26,
0,
20,
29,
19,
-41,
5,
-16,
71,
-13,
-22,
49,
-13,
51,
6,
25,
9,
-15,
27,
15,
-21,
-42,
-1,
-51,
-67,
-1,
24,
4,
-18,
-30,
-43,
-39,
-30,
-34,
35,
38,
0,
-15,
-20,
-50,
-39,
0,
5,
-12,
61,
-4,
-5,
17,
0,
29,
-14,
2,
55,
48,
3,
-14,
-48,
-48,
7,
-7,
-24,
19,
-37,
-48,
-25,
36,
29,
-18,
-26,
21,
-6,
-9,
35,
92,
-90,
11,
2,
32,
-38,
18,
-3,
-20,
16,
-5,
13,
-74,
-23,
7,
-31,
-44,
-5,
47,
40,
-4,
18,
-49,
-2,
-21,
23,
2,
9,
-28,
-61,
-44,
17,
12,
-60,
7,
8,
7,
68,
-41,
29,
-35,
32,
65,
-79,
-29,
39,
44,
-1,
-10,
52,
-18,
19,
-40,
17,
-42,
3,
6,
-27,
-3,
20,
6,
4,
-8,
9,
12,
-47,
29,
-42,
30,
0,
31,
-14,
3,
12,
53,
6,
-37,
-2,
-26,
27,
27,
2,
-4,
-15,
-83,
-31,
-68,
11,
-9,
54,
-20,
3,
-30,
-4,
-19,
-15,
5,
-4,
39,
89,
0,
-48,
-29,
56,
-16,
-55,
-15,
10,
18,
-6,
14,
29,
-26,
12,
16,
41,
0,
-9,
0,
36
] |
Moore, J.
The plaintiff brought this action against defendant to recover for injuries received by him while operating a surface wood-planing machine. The case was tried by a jury, who rendered a verdict in favor of the defendant. The plaintiff brings the case here by writ of error.
The plaintiff is 45 years old. Prior to January, 1896, he had worked for defendant 18 or 19 months, operating a wood planer. In January, 1896, a new planer was put in operation in the place of the old one. It was a surface planer, about three feet wide and six or seven feet long. A little more than half way back from the front of the machine, its surface was divided into two parts by a throat, which extended entirely across the width of the machine. Just below this throat was a square shaft, which made about 4,000 revolutions a minute. Attached to the shaft were two knives. When the shaft and knives were revolved, they made a diameter of about five inches. The edges of the knives came to the same height as the rear portion of the surface or bed of the machine, but would project above the front portion of the bed the thickness of the shaving it was proposed to take off from the piece of wood which was to be planed. If the shaving was to be thin, the front portion would be lifted, narrowing the throat of the machine. If the shaving was to be thicker, the front bed would be lowered, and, because of the diameter of the circle made by the knives, the throat of the machine would be widened. This machine was used for planing pieces of wood of various lengths, widths, and thicknesses. The article to be planed was placed in front of the revolving knives, upon the front portion of the bed of the machine. It was held down with one hand, and with the other hand was pushed back against the knives, which revolved against the lower side of the article, planing the lower surface as the article passed over the knives and upon the rear portion of the surface of the machine. The machine was not at all complicated, and its construction and method of operation would be very quickly apparent to an operator of ordinary intelligence. Soon after the machine was placed in position, the plaintiff commenced work upon it, and, according to his testimony, he observed within a day or two thereafter that to plane short pieces of wood was a dangerous operation. He says he called the attention of the defendant to that fact, and was assured by him that it was entirely safe to plane such pieces of wood upon the machine, and that, relying upon said assurance, he continued to work with the machine until about Thanksgiving, when he again had a similar talk with defendant. He says that, relying upon this assurance, his fears were allayed until the 7th of December, 1896, when, planing a short board, the board kicked, and his hand was thrown into the throat of the machine, and was very severely injured.
The position of counsel, as stated in their brief, is: “If the plaintiff complained to defendant of what he thought was dangerous, and was commanded by defendant to 'go on with his work, and was given the assurance that it was safe, defendant will not he heard to say after-wards, and when an injury has resulted from the very, defect complained of, ‘You assumed the risk; you were guilty of contributory negligence in doing what I commanded you to do,’”—citing Schlacker v. Mining Co., 89 Mich. 253 (50 N. W. 839); Lake Superior Iron Co. v. Erickson, 39 Mich. 492 (33 Am. Rep. 423); Burnside v. Manufacturing Co., 121 Mich. 115 (79 N. W. 1108). Counsel say the court erred in his charge to the jury, and the case ought to be reversed.
We do not think the above statement of counsel is a proper statement of the law, and the cases cited do not so indicate. One cannot continue to operate a machine which he knows is dangerous, simply upon the assurance of his employer that it is not, if he has just as much knowledge of the danger arising from the operation of the machine as his principal has. Taking plaintiff’s own version of the situation, speaking for myself, I think the court would have been justified in directing a verdict for the defendant. The plaintiff was a man of mature years, acquainted, by actual operation, with machinery. He was put at work upon a new machine of simple construction. He had as much knowledge of its operation within a few days after he began work, and of its dangers, as any one. He says he learned of the danger of planing short pieces with the machine within a day or two after he commenced to work with it, and, after obtaining that knowledge, without any promise of any change in the machine or its conditions, he continued to work upon it for the period of 11 months, when he was hurt. If, under such circumstances, the employer is liable, it is difficult to conceive of a case where an accident occurred that liability would not attach. See Kean v. Rolling Mills, 66 Mich. 277 (33 N. W. 395, 11 Am. St. Rep. 492), and the many cases there cited; Fisher v. Railway Co., 77 Mich. 546 (43 N. W. 926); Toomey v. Steel Works, 89 Mich. 249 (50 N. W. 850); Wheeler v. Berry, 95 Mich. 250 (54 N. W. 876); Breig v. Railway Co., 98 Mich. 222 (57 N. W. 118); Hayball v. Railroad Co., 114 Mich. 135 (72 N. W. 145), and the cases there cited.
The judge, however, did not see fit to direct a verdict in favor of defendant, but submitted the case to the jury with a charge of exceptional clearness, and which was much more favorable to the plaintiff than he was entitled to have given.
The judgment is affirmed.
The other Justices concurred. | [
36,
-5,
-19,
2,
0,
-9,
-7,
-43,
37,
27,
7,
-5,
-16,
31,
44,
-6,
-17,
-78,
-15,
16,
47,
-67,
0,
-47,
-55,
-25,
-38,
-12,
-25,
31,
-18,
6,
4,
-21,
-11,
0,
9,
44,
-14,
-5,
-6,
6,
47,
4,
13,
19,
36,
12,
22,
-3,
57,
-17,
32,
-53,
-43,
8,
8,
57,
-55,
29,
34,
-1,
6,
-44,
28,
-18,
-24,
-6,
-59,
42,
-43,
-7,
13,
9,
-13,
-39,
2,
31,
-52,
36,
-5,
18,
-8,
-4,
-32,
37,
14,
15,
-14,
-17,
11,
10,
-27,
57,
13,
13,
-57,
54,
4,
48,
56,
54,
-19,
-38,
-57,
-31,
-4,
-68,
-14,
14,
18,
27,
1,
52,
25,
-47,
42,
22,
26,
-3,
-47,
7,
-14,
-35,
12,
18,
5,
-29,
15,
-3,
23,
4,
-4,
-1,
-15,
-1,
0,
22,
-25,
6,
38,
13,
2,
40,
5,
-25,
-25,
53,
-44,
12,
-21,
-15,
-28,
-15,
13,
-35,
-44,
-4,
27,
-35,
44,
9,
-4,
1,
-12,
18,
-39,
-1,
0,
8,
-47,
-12,
-42,
-74,
40,
15,
-2,
-16,
-21,
-32,
-21,
-11,
43,
0,
-16,
-5,
38,
27,
41,
42,
57,
12,
-53,
-13,
-26,
-25,
-15,
-7,
45,
-33,
35,
-49,
19,
-45,
30,
-22,
2,
5,
-6,
25,
1,
9,
-39,
-52,
-45,
17,
-16,
-56,
8,
28,
-3,
7,
-1,
1,
-73,
-10,
-24,
34,
65,
17,
-65,
19,
17,
-21,
22,
-62,
-24,
-35,
19,
20,
-43,
-2,
-21,
10,
36,
6,
-39,
-34,
-17,
-22,
-19,
46,
-68,
-11,
9,
-10,
-1,
-22,
2,
-30,
-29,
34,
-18,
10,
26,
3,
25,
17,
-15,
25,
-54,
-42,
18,
-1,
-46,
-10,
-7,
43,
1,
-20,
38,
10,
-22,
4,
-16,
-27,
19,
-4,
-15,
5,
-4,
-19,
22,
-14,
37,
35,
52,
-23,
5,
-48,
-52,
-53,
-20,
-65,
45,
10,
-3,
-63,
-1,
-6,
-51,
-61,
-36,
-8,
18,
12,
-7,
-13,
-15,
0,
-18,
17,
-61,
-32,
-2,
39,
15,
-2,
-6,
55,
3,
13,
18,
19,
-11,
-22,
38,
30,
-34,
-3,
42,
21,
-2,
33,
-17,
7,
32,
-53,
33,
-25,
11,
-45,
20,
-4,
35,
9,
-26,
-44,
-7,
40,
74,
20,
23,
-1,
21,
-38,
26,
36,
-20,
5,
-41,
-17,
-12,
-39,
31,
0,
-32,
20,
7,
42,
13,
18,
-2,
-43,
-19,
-3,
35,
-14,
4,
6,
-55,
3,
-7,
28,
-4,
-16,
-30,
-48,
-14,
-38,
10,
9,
49,
-3,
-15,
-12,
-45,
38,
35,
-18,
4,
-38,
23,
3,
8,
-33,
-13,
-22,
0,
24,
52,
11,
-17,
-31,
52,
2,
7,
-35,
4,
-25,
-4,
13,
18,
-3,
6,
4,
-54,
58,
22,
9,
-80,
0,
-40,
-23,
34,
-15,
-13,
69,
41,
-31,
2,
-6,
-17,
15,
33,
-29,
-22,
-26,
46,
26,
-39,
33,
5,
9,
-25,
12,
27,
-43,
-11,
7,
-25,
0,
30,
-33,
-3,
6,
9,
5,
0,
-50,
-10,
13,
33,
6,
-30,
18,
3,
51,
-5,
-30,
15,
29,
37,
-69,
-38,
47,
-46,
11,
-9,
76,
-67,
-15,
27,
-32,
-49,
-53,
73,
39,
3,
31,
-39,
-7,
-10,
-44,
12,
15,
-7,
42,
-15,
6,
-15,
-66,
2,
63,
-10,
4,
6,
-3,
-8,
-44,
48,
-21,
-46,
45,
-23,
-7,
-20,
-41,
-16,
-18,
-28,
20,
74,
36,
-28,
21,
-38,
-44,
18,
24,
24,
-21,
22,
-19,
11,
14,
-30,
0,
-30,
-7,
29,
-18,
1,
17,
74,
9,
-52,
-7,
39,
-45,
2,
0,
13,
45,
-28,
40,
-14,
1,
-30,
-11,
-37,
1,
-50,
1,
-44,
-56,
4,
74,
11,
7,
-48,
-11,
14,
-19,
14,
5,
-31,
38,
37,
-66,
5,
7,
-34,
-37,
0,
-18,
-17,
70,
-3,
-17,
4,
-5,
-4,
14,
41,
-2,
-26,
5,
8,
1,
12,
10,
-89,
47,
17,
20,
-9,
-24,
-7,
-46,
-75,
57,
-47,
42,
-24,
-5,
24,
-7,
-30,
2,
5,
9,
-18,
-22,
-2,
23,
5,
-13,
-9,
-3,
14,
-20,
15,
22,
-26,
-41,
38,
14,
-46,
8,
6,
-16,
30,
12,
18,
45,
-26,
-26,
-43,
-43,
41,
22,
42,
-58,
-18,
-56,
-41,
15,
3,
-14,
38,
11,
46,
-4,
11,
46,
40,
15,
-9,
2,
-18,
3,
63,
-27,
3,
37,
19,
-56,
-7,
-59,
-9,
13,
6,
56,
48,
5,
-22,
0,
8,
-40,
14,
39,
5,
36,
13,
65,
12,
-66,
-3,
-25,
17,
2,
23,
3,
-7,
29,
-21,
88,
-32,
-45,
-17,
2,
-33,
12,
-2,
6,
9,
-13,
12,
50,
32,
-27,
-41,
-33,
6,
-36,
19,
-13,
-27,
0,
-15,
36,
44,
8,
48,
-35,
16,
-7,
-9,
2,
24,
-23,
42,
-29,
-14,
39,
-16,
-29,
21,
7,
11,
12,
-18,
12,
13,
37,
26,
-9,
44,
12,
5,
-50,
-6,
3,
-59,
-29,
36,
20,
53,
8,
28,
-21,
-16,
31,
-67,
-49,
-49,
5,
-32,
-17,
46,
9,
0,
5,
-23,
-30,
49,
6,
2,
-40,
-4,
28,
6,
-56,
-27,
-34,
12,
14,
-32,
31,
15,
29,
-27,
-15,
43,
-59,
-15,
24,
-19,
37,
36,
-23,
-3,
24,
60,
14,
-14,
-2,
-18,
48,
5,
8,
58,
8,
31,
-18,
-36,
39,
-15,
-3,
1,
3,
-6,
-10,
-25,
-37,
32,
17,
30,
37,
-14,
-47,
-33,
-1,
-23,
15,
0,
1,
6,
-22,
31,
4,
26,
-63,
2,
17,
-74,
-26,
37,
29,
13,
2,
18,
39,
-2,
-21,
-36,
-27,
-18,
16,
-38,
-35,
62,
-7,
26,
-15,
-25,
19,
-29,
-12,
42,
35,
75,
54,
36,
-34,
-16,
-42,
-20,
-31,
23,
-26,
-6,
6,
-16,
13,
-4,
42,
-24,
1,
-31,
-67,
26,
38,
52,
36,
13,
5,
5,
62,
37,
-55,
95,
5,
9,
36,
-22,
-93,
-17,
9,
25,
37,
28,
-18,
-52,
-58,
-21,
-14,
-47,
46,
19,
22,
-27,
21,
-52,
4,
-40,
-13,
-38,
4,
44,
12,
26,
83,
12,
28,
-30,
-4,
6,
-83,
14,
-6,
57,
-13,
37,
12,
21,
20,
-15,
42,
-2,
-44,
13,
58,
4,
-18,
54,
-20,
-4,
17,
-24,
40,
17,
10,
10,
-26,
-60,
-30,
-16,
3,
28,
11,
23,
41,
26,
-20,
-13,
54,
-11,
-7,
-11,
45,
44,
-25,
-29,
24,
-39,
-25,
-5,
-18,
50,
5,
15,
46
] |
Christiancy J.:
The notice of special matter of defense in this case was, in substance, that defendants would show on the trial that the note upon which the suit was brought was given for a cow and certain heifers mentioned in the plaintiff’s bill of particulars, sold by the plaintiff below to the defendants, with warranty, averring the breach of the warranty, and damages thereby, and notifying the plaintiff that they would set up these damages by way of recoupment or reduction of the plaintiff’s claim.
The evidence on the part of the defendants corresponds, in all respects, with their notice, except that it shows the sale and warranty made to one of the defendants only, though the note was given by both for the property sold. It is not necessary to decide whether, if the question had arisen under a declaration or special plea, the allegation would have been sufficient to warrant the evidence, without an amendment. Such are all the cases cited by the defendant in error. This notice is not properly a pleading, nor is it to be tested by the same rules applicable to a plea. No issue of fact or of law can be founded upon it. The only issue in the case is the general issue, and this is all the issue the statute authorizes. The difference between such a notice and a plea of the same matter, was recognized and fully explained by this court in Rosenbury v. Angell, 6 Mich. 518 to 515; and it was there expressly held that the only purpose of the notice is to apprise the plaintiff of the nature of the defense relied upon, so that .he might be prepared to meet it, and to avoid surprise on the trial; and this was held^ to be the sole test of the sufficiency of the notice.
Tested by this rule, it is doubtless true that the notice of a joint contract with two could not, in all cases, nor probably as a general rule, be held sufficient to warrant evidence of a contract with one alone. But the question is whether, under the peculiar circumstances of this case, the notice did not fairly apprise the plaintiff of the nature of the intended defense, and whether ho could have been misled as to the sale intended, or surprised by the evidence introduced. The action was between the original [parties to the note; the plaintiff, as payee, must be supposed to know what the note was given for, and the nature of the consideration in fact.— And, though he declared upon the common counts, and attache^ a copy of the note, he relied at the trial upon the note alone; and to this the defense set up in the notice exclusively applied. Judging from the whole case, as presented on the trial, it cannot be reasonably doubted that the plaintiff’s bill of particulars was intended to cover the consideration for which the note was given, and not a separate claim, independant of the note.— This bill of particulars is for cows and heifers “sold, by the plaintiff to the defendants.” And though the plaintiff relied exclusively upon the note, yet his bill of particulars furnishes strong evidence, if any were needed, that he could not have been misled by a notice which stated the contract of sale between the same parties as stated in his own bill of particulars, to which the notice expressly refers. He could not have doubted that the notice referred to the same sale for which the note was given, and to the warranty on that sale. The notice plainly and expressly refers to the sale which constituted the consideration of the note, and to no other. There is therefore no reasonable ground for supposing the plaintiff could have been misled.
No amendment of the notice was needed to avoid surprise on the trial, and no amendment then made could have had that effect.
It must be remembered, also, that this notice set up only the defense of recoupment, and this was the only ground on which the notice was required; and so far as this question of recoupment was involved, it is difficult to see any difference in the legal effect of the sale, whether made to one or both the defendants. The sale constituted the only consideration for the note of both the defendants upon which the plaintiff relied.— We shall consider this point more fully under a different head.
But there is still another reason why the notice in this case should have been held sufficient. If defective, the plaintiff was not bound to object to it on that ground; and if he did not, he must be held as having waived the objection. So far as appears from the record, he made no objection, either to its introduction or to its consideration by the jury. The only objection appears in the charge of the court to the jury; and this charge does not appear to have been requested by the plaintiff. Indeed, it would seem from the language of the charge, that it was founded in a great measure, if not entirely, upon the idea that the two defendants could not set up the defense of recoupment, upon a sale made to one only. This point we will now consider.
The note upon which the plaintiff sought to recover was made by the two defendants jointly; and it is insisted that the two defendants were not entitled to recoup the damages arising on the breach of a warranty, on the sale which constituted the consideration of the note, because that sale was made to one of the defendants only.
If recoupment were allowed on the same principle of a set-off merely, this objection would be insurmountable. A set-off is in the nature of a cross action to the full extent: it does not deny the validity [of any part of the plaintiff’s claim or cause of action; but sets up a separate and independent claim against the plaintiff; and the defendant is entitled to judgment upon any surplus of his claims beyond those of the plaintiff.
A defense by way of recoupment denies the validity of the plaintiff’s cause of action to so large an amount as he claims. It is not an independent cross claim, like a Separate and distinct debt or item of account due from the plaintiff, but is confined to matters arising out of or connected with the contract or transaction which forms the basis of the plaintiff’s action. It goes only in abatement or reduction of the plaintiff’s claim, and can be used as a substitute for a cross action only to the extent of the plaintiff’s demand. No judgment can be obtained by the defendant for any balance in his favor. See Ward v. Fellers, 3 Mich. 282, where the distinctions between these two classes of defenses are very fully discussed.
It is not denied that the defense, by way of recoupment, would have been available to the defendant who purchased the cattle, if the note had been given by, and the suit brought against, him alone.
Now the only consideration given for the note was received by Findley McIIardy. Donald McHardy, though a joint maker in form, would seem to have been, as between himself and the other defendant, but a surety; and it is difficult to discover any good reason why he should not be entitled to any defense, connected with the consideration, which would be available to the real principal in the transaction had he made the note and been sued alone. If the consideration paid to the former enures to bind the latter, can there be any good reason why a want or failure of that consideration should not enure to his benefit? We can discover no more reason why the defense, in the present case, should not enure to the benefit of both defendants, than if it had been a defense by way of payment, want or failure' of consideration for the note, or fraud in the sale for Which the note was given. It prevents circuity of action, and accomplishes full justice to all the parties without the violation of any rule of law.
If) instead of setting this up in defense, a cross action had been brought, such cross action probably could not have been maintained by the two defendants jointly. But we cannot see why this , consideration should affect the question when set up in defense only in abatement of the amount of the plaintiff’s recovery.
The judgment of the court below must be reversed* and a new trial awarded.
Martin Ch. J. and Manning J. concurred.
Campbell J.:
I agree with my brethren that a defense arising out of a failure of consideration of a note signed by. a principal and surety, may be set up in an action against the two on the note, as well as if there had been no surety. And I think the doctrine of recoupment, arising directly, as here, out of matters forming the consideration, should be permitted in like manner to apply. And I am also of opinion that it would have been entirely competent for the court below, if satisfied (as it probably would have been in this case) that no injustice Would follow, to permit an amendment of the notice so as to conform to the truth.
But I do not think the evidence offered was admissible to go to the jury without an amendment of the notice; neither do I think an amendment can be allowed in this court upon facts aliunde the pleadings and record.
The statute of 1839, p. 225, provided that when the general issue was pleaded, a defendant might “give notice with such plea of any matters which, if pleaded, would be a bar to such action, and may give such matter in evidence on the trial in the same manner as if the same had been pleaded.” Our present statute de dares that “To entitle a defendant to avail himself of any matters of defense which, according to the practice as it has heretofore existed, was required to be pleaded specially, or of which a special notice was required to be given under the general issue or other general plea, said defendant shall annex to his plea of the general issue a notice to the plaintiff, briefly stating the precise nature of such matter of defense? — Qomp. L. §41 IS. The only changes are that now the notice must be annexed to the plea (which, however, was always or generally done in practice before), whereby the notice now must go on file in the cause; and that the notice need not contain more than a brief statement of the precise nature of the matter of defense, instead of that prolixity which, under some rather technical rulings, had made a notice under the old law practically as long as a plea. But the notice, however brief, must contain a statement of the precise nature of the matter of defense. The statute never contemplated that a party could introduce matters which the notice does not state directly or inferentially. The difference between a joint contract and the contract of one individual, is as substantial as between a note of A. and a note of B.
Neither are we at liberty, sitting as an appellate court, to look into facts given in evidence to determine whether the plaintiff was or was not really misled by the notice, if the testimony is variant from it. The statute is clear that the precise nature ■ of the defense must appear in the notice itself. If the matter offered in proof is not a distinct transaction, but is merely a step in a transaction which is pleaded, there is no variance, because the one includes the other. And this was the case in Rosenbury v. Angell, where a defendant having given notice of an attachment, my brother Christiancy held that proof of the preliminary affidavits, without which an attachment could not legally issue, might be introduced, because the notice was sufficient “to apprise the plaintiff, with reasonable certainty,” that they would be offered in evidence. I think that case was correctly decided. But had the notice alleged an attachment in favor of two plaintiffs, and proof been offered of a suit by a sole plaintiff— Which would make a case parallel to this — I cannot perceive on what principle it would have been admissible, or could have been made so. And I cannot assent to the proposition that the admissibility of evidence under a notice can be tested by anything but the notice.
I think the ruling below was correct on this point, and that the judgment should be affirmed.
Judgment reversed. | [
17,
-3,
24,
14,
-35,
-13,
14,
12,
-9,
61,
57,
-18,
25,
29,
-10,
-12,
27,
-44,
-4,
-37,
-55,
3,
-44,
17,
-14,
10,
-5,
-33,
26,
13,
-41,
34,
-59,
-13,
-28,
2,
34,
-22,
10,
16,
24,
46,
83,
-60,
-9,
-1,
-1,
-11,
0,
-12,
59,
-4,
14,
-44,
-4,
-15,
-37,
16,
43,
-17,
-4,
-64,
-27,
7,
-8,
-23,
6,
-36,
-28,
-50,
-25,
52,
-3,
-16,
17,
-68,
-18,
16,
-7,
-22,
67,
-5,
22,
-53,
15,
-13,
38,
-47,
-2,
4,
-9,
3,
-13,
-22,
-4,
-4,
13,
44,
24,
7,
-15,
-21,
-7,
28,
-16,
40,
-47,
-13,
-11,
-2,
42,
-6,
22,
-45,
-35,
-19,
-22,
9,
-11,
-24,
41,
46,
47,
-11,
4,
29,
-15,
1,
-20,
-12,
40,
-15,
-19,
73,
16,
-21,
42,
-63,
-52,
-45,
-21,
15,
-22,
-10,
22,
38,
-20,
-14,
-58,
15,
7,
22,
-44,
5,
-5,
-11,
1,
-107,
16,
-46,
52,
30,
-27,
-2,
-12,
10,
-32,
1,
-2,
8,
-3,
17,
-51,
34,
22,
-22,
29,
-12,
12,
-30,
12,
-19,
-6,
-28,
6,
-15,
-78,
16,
-40,
27,
6,
-24,
-4,
2,
38,
41,
-39,
31,
41,
-69,
-10,
-24,
-18,
3,
-18,
-4,
16,
-41,
-3,
8,
-28,
13,
-44,
-40,
-21,
-26,
42,
-30,
-30,
28,
-13,
-3,
-54,
-17,
-46,
-40,
5,
-18,
31,
-16,
-9,
28,
17,
12,
-20,
-6,
19,
-7,
22,
18,
-16,
-14,
-51,
-74,
34,
-19,
25,
20,
18,
-6,
26,
-5,
-17,
36,
-10,
-21,
-29,
2,
0,
22,
-15,
72,
-35,
-12,
-51,
-35,
3,
2,
-39,
57,
21,
-38,
15,
34,
21,
-14,
11,
-13,
0,
27,
14,
22,
-51,
1,
7,
25,
-19,
38,
4,
33,
2,
-16,
-17,
-18,
59,
35,
-19,
-22,
-3,
-22,
25,
-21,
32,
-6,
-33,
-29,
-2,
-35,
-72,
-10,
-2,
30,
11,
-18,
-23,
30,
-11,
20,
45,
-44,
57,
17,
13,
45,
23,
-52,
44,
-47,
3,
23,
29,
-7,
-1,
-23,
-43,
14,
44,
14,
-18,
-1,
22,
20,
-28,
36,
-23,
44,
-8,
28,
-38,
17,
-39,
-19,
-41,
-11,
73,
-13,
11,
-24,
7,
27,
5,
6,
6,
9,
-10,
23,
15,
-29,
-48,
37,
-22,
-9,
-34,
-35,
-79,
-25,
-29,
-14,
-29,
16,
-14,
-48,
14,
14,
19,
34,
-37,
6,
19,
33,
-33,
-25,
60,
53,
16,
12,
-21,
-2,
-31,
-19,
16,
14,
4,
-46,
-59,
24,
-25,
-67,
-1,
73,
-31,
-17,
-37,
24,
-22,
-25,
-8,
-35,
-6,
-27,
12,
8,
-40,
-7,
11,
-23,
21,
-27,
-3,
-1,
-22,
50,
-28,
-36,
37,
36,
1,
-9,
40,
-8,
14,
34,
-72,
28,
11,
32,
3,
-4,
10,
-58,
38,
-6,
-17,
0,
0,
11,
34,
-18,
-2,
-38,
46,
-3,
-2,
-64,
10,
-18,
30,
-45,
-11,
8,
-4,
-43,
96,
12,
-33,
-4,
-33,
44,
-23,
17,
-30,
27,
45,
-14,
-15,
-1,
-64,
-9,
8,
13,
13,
18,
-3,
37,
-35,
0,
4,
-47,
13,
50,
11,
-6,
0,
10,
28,
39,
34,
15,
34,
38,
2,
11,
32,
-24,
34,
18,
50,
12,
-14,
28,
65,
-59,
-37,
-29,
-22,
-29,
9,
2,
31,
-12,
37,
47,
64,
17,
87,
9,
45,
21,
16,
2,
-56,
19,
38,
21,
19,
-12,
-33,
-31,
-6,
14,
-46,
-52,
49,
52,
17,
44,
29,
46,
18,
-26,
-19,
11,
1,
-15,
77,
14,
41,
-7,
14,
-19,
-37,
-51,
-3,
7,
6,
0,
-13,
-19,
1,
-18,
14,
-47,
-5,
-19,
-26,
4,
25,
-47,
25,
-63,
1,
-20,
28,
-5,
-47,
-4,
-10,
-70,
-16,
71,
2,
-23,
-42,
-13,
51,
-22,
-35,
42,
21,
-27,
-2,
-1,
8,
3,
-39,
-56,
-16,
-30,
4,
22,
5,
-46,
3,
35,
34,
11,
-8,
43,
25,
-4,
-13,
-22,
-3,
-31,
2,
52,
29,
14,
-25,
-50,
4,
8,
10,
7,
4,
-51,
-54,
45,
28,
-58,
3,
39,
9,
-39,
9,
-16,
1,
23,
-1,
-36,
-8,
-55,
10,
1,
-22,
-44,
4,
-13,
-13,
-12,
53,
7,
9,
66,
34,
5,
19,
3,
36,
0,
40,
-50,
12,
-7,
-2,
-1,
29,
-8,
-5,
8,
-15,
0,
20,
-12,
0,
-37,
56,
22,
-21,
11,
44,
-18,
-16,
-6,
-1,
-8,
-36,
12,
33,
49,
40,
-5,
-17,
-25,
0,
12,
-34,
34,
10,
-47,
25,
34,
43,
-48,
15,
3,
84,
16,
37,
57,
22,
32,
-36,
12,
2,
93,
23,
-29,
-27,
-15,
2,
15,
25,
-47,
19,
21,
-1,
30,
0,
57,
58,
-28,
69,
5,
27,
22,
-6,
-41,
-50,
-43,
9,
-3,
-5,
-60,
14,
12,
22,
-44,
-8,
-44,
-8,
-10,
17,
6,
2,
39,
0,
-59,
60,
-24,
0,
-12,
-26,
9,
0,
-40,
14,
-3,
-26,
59,
39,
-17,
18,
-54,
-2,
-13,
16,
19,
-2,
-18,
18,
-32,
29,
85,
-14,
19,
3,
78,
21,
16,
20,
20,
-17,
4,
-30,
35,
-46,
26,
12,
-26,
-20,
32,
-23,
6,
15,
38,
-47,
-8,
-12,
-19,
35,
-80,
-18,
0,
-1,
31,
-18,
44,
-12,
26,
2,
-48,
0,
28,
30,
10,
-21,
35,
27,
-71,
12,
30,
-24,
6,
43,
-26,
-25,
21,
-32,
8,
1,
-4,
-19,
9,
18,
-58,
-13,
14,
14,
-33,
5,
19,
-41,
33,
37,
-6,
-25,
-25,
18,
14,
12,
-33,
5,
-4,
-16,
-4,
-3,
-9,
12,
-32,
24,
11,
-31,
26,
35,
-34,
20,
16,
32,
-9,
-39,
-24,
32,
0,
19,
7,
-1,
-5,
-8,
30,
43,
-36,
29,
9,
15,
40,
-4,
-12,
74,
-32,
25,
29,
-1,
-6,
-12,
-3,
-17,
29,
10,
9,
36,
-12,
-13,
7,
43,
-48,
-14,
-66,
-5,
42,
-11,
0,
14,
0,
-5,
-8,
-14,
-16,
-11,
-42,
-45,
31,
-11,
11,
-16,
-50,
33,
-17,
-13,
-8,
-6,
16,
2,
-18,
-10,
-4,
-7,
-3,
-11,
-58,
-10,
-15,
-14,
-55,
12,
29,
30,
-33,
-34,
28,
19,
-22,
-34,
7,
30,
31,
6,
-12,
-35,
2,
43,
10,
9,
-15,
-45,
-31,
16,
26,
-16,
-23,
6,
20,
-1,
32,
-18,
-42,
30,
16,
-33,
-23,
-22,
-45,
51,
52,
-26,
-8,
19,
3,
-27,
-34,
8,
71,
23,
36
] |
Brooke, J.
(after stating the facts). It is the claim of counsel for the appellants that assuming, as we must, the truth of all the allegations contained in the bill of complaint, no case is here made out for equitable relief. Uses and trusts are abolished by section, 8829, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 10669), except as they are saved by statutory enactment. Section 8837 provides that section 8835 shall not extend to cases where the alienee named in the conveyance (1) shall have taken the same as an absolute conveyance in his own name, without the knowledge or consent of the person paying the consideration, or (2) when such alienee, in violation of some trust, shall have purchased the lands so conveyed, with money belonging to another person. The claim of the complainant is that this case falls within the terms of the exception stated in the latter part of section 8837 (4 How. Stat. [2d Ed.] § 10677); that is, that the defendants in this case in violation of some trust pur chased the lands described in the bill of complaint, or at least those which were exchanged for said lands. We find ourselves unable to agree with complainant’s position. It would seem to be quite obvious that the title to the land first purchased was taken in the names of the defendants with the knowledge of the complainant, for the letters indicate that the $750 was advanced for the purpose of aiding defendants to complete the purchase of those lands.
We are unable to discern under the admitted statement of facts any trust violated by the defendants in the purchase of the first lands. The money was advanced by the complainant to the defendants' for that purpose. It is true that complainant believed that in advancing said money he would be able to reimburse himself from the moneys to be paid by Jackson on the escrow deed. He, however, made no conditions with the defendants when the money was paid over to them, and in using it as they did, and acquiring the title to the property in question in their own names, they certainly violated no trust. It is not apparent nor inferable from their acts that at that time they even entertained a disposition to defraud the complainant. Their fraudulent conduct commenced when later, through correspondence, they induced Jackson to pay the $900 directly to them, disregarding their obligation to the bank. While their conduct in the premises is concededly dishonest, disreputable, and fraudulent, we are of opinion that under the admitted facts they violated no trust and committed no fraud at the time the purchase of the lands was made. Thompson v. Marley, 102 Mich. 476 (60 N. W. 976); Wheeler v. Reynolds, 66 N. Y. 227.
The decree of the court below will be reversed and the bill of complaint dismissed, but without costs.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
26,
30,
-23,
1,
9,
6,
34,
21,
16,
55,
41,
-10,
43,
2,
-31,
-19,
-22,
33,
1,
-12,
-17,
4,
-11,
-4,
1,
-11,
54,
-29,
22,
12,
3,
16,
-22,
20,
1,
-1,
22,
12,
7,
-7,
-27,
-19,
37,
18,
-28,
4,
-40,
-46,
0,
-41,
37,
-21,
50,
14,
-14,
5,
-8,
-53,
-35,
0,
-2,
15,
41,
-22,
-5,
-6,
-18,
0,
-14,
-58,
-20,
51,
9,
-27,
4,
-42,
4,
-22,
34,
-9,
-9,
-22,
27,
-26,
4,
-8,
23,
-24,
-55,
-3,
-32,
12,
-20,
-30,
-20,
35,
56,
21,
33,
32,
3,
-59,
-6,
18,
16,
-11,
-12,
-29,
-19,
40,
40,
-10,
-7,
-5,
-56,
-32,
2,
-51,
-61,
-31,
-9,
-31,
19,
-23,
6,
16,
29,
-22,
-38,
32,
31,
-28,
-41,
-7,
-17,
-28,
7,
-47,
4,
0,
2,
-3,
-9,
-42,
0,
6,
31,
-12,
-24,
-4,
-31,
7,
-36,
40,
18,
-38,
16,
-39,
20,
-49,
46,
20,
-22,
-12,
-33,
26,
-11,
-19,
21,
14,
26,
-15,
-22,
28,
10,
-26,
22,
-28,
-45,
-41,
41,
31,
14,
-2,
28,
-12,
0,
-31,
-45,
21,
13,
0,
5,
11,
21,
7,
2,
-48,
-5,
-19,
-27,
-52,
-1,
59,
43,
-4,
46,
-4,
60,
33,
-22,
43,
19,
-36,
-40,
-14,
45,
-1,
-3,
19,
44,
47,
-35,
-22,
-22,
-34,
57,
-10,
17,
30,
-15,
1,
10,
14,
-57,
-16,
0,
10,
12,
8,
10,
-7,
-51,
-65,
-16,
9,
15,
8,
-29,
17,
-56,
-4,
-11,
57,
-2,
41,
7,
15,
-69,
-46,
-21,
10,
-36,
18,
9,
-46,
-16,
27,
-17,
16,
-8,
-30,
-6,
30,
-15,
-16,
-38,
46,
-42,
-44,
3,
9,
41,
35,
-12,
14,
-12,
33,
51,
10,
47,
-4,
7,
-20,
3,
52,
-3,
28,
40,
23,
10,
-18,
-15,
-24,
-11,
13,
66,
-18,
-23,
-13,
40,
45,
-9,
-1,
1,
7,
4,
13,
30,
-58,
35,
22,
32,
-18,
31,
-15,
74,
-75,
-16,
26,
29,
-9,
-22,
-21,
31,
28,
27,
-93,
-17,
0,
16,
-6,
44,
-15,
44,
-1,
-7,
-33,
-25,
30,
-6,
11,
-27,
17,
0,
21,
12,
-8,
3,
12,
33,
10,
22,
-63,
-5,
-8,
-25,
1,
33,
20,
24,
-14,
-52,
12,
-3,
20,
-20,
20,
-23,
0,
-5,
28,
20,
38,
33,
-19,
-67,
-47,
-25,
34,
-13,
14,
19,
29,
0,
-36,
8,
-26,
-8,
-2,
-42,
56,
0,
-7,
-68,
8,
-6,
-18,
-22,
-10,
-7,
0,
8,
3,
-43,
14,
76,
-12,
64,
23,
5,
-18,
3,
-32,
-6,
-27,
-21,
34,
-35,
-8,
-36,
15,
30,
-9,
17,
29,
-34,
-29,
-49,
46,
26,
-1,
2,
31,
-4,
20,
-15,
-9,
10,
-7,
-14,
3,
-45,
30,
8,
-7,
48,
-21,
20,
7,
43,
-1,
6,
37,
25,
-59,
-4,
-23,
15,
0,
28,
45,
5,
-1,
-11,
4,
22,
23,
9,
7,
5,
-5,
2,
8,
-14,
-25,
-22,
-35,
18,
-7,
33,
3,
3,
-2,
22,
-45,
-9,
-40,
27,
15,
1,
22,
45,
-11,
38,
22,
-17,
-30,
-6,
95,
-15,
-5,
-5,
9,
-30,
4,
66,
-5,
-14,
41,
47,
-15,
-14,
-47,
9,
6,
1,
21,
16,
-33,
1,
0,
-6,
-23,
-26,
23,
5,
-12,
5,
-2,
-52,
25,
-27,
52,
-13,
48,
21,
-50,
-7,
-2,
-69,
-5,
19,
15,
-20,
10,
0,
-50,
5,
-19,
-46,
19,
19,
-52,
8,
16,
49,
-24,
-4,
16,
-9,
0,
10,
-8,
21,
2,
16,
0,
-2,
-17,
-1,
-56,
-10,
-95,
17,
11,
5,
32,
10,
24,
9,
5,
5,
-26,
4,
-33,
10,
-57,
15,
54,
6,
-24,
-42,
-13,
26,
-52,
-34,
7,
-36,
0,
3,
-4,
31,
13,
-10,
22,
7,
-3,
0,
38,
7,
-6,
45,
-65,
33,
-19,
-15,
7,
-33,
-22,
9,
-27,
0,
39,
-6,
17,
-23,
-3,
-2,
-32,
18,
-8,
-47,
-8,
-3,
47,
-15,
6,
16,
-48,
-25,
20,
50,
18,
13,
39,
-14,
-14,
0,
-30,
16,
-52,
-12,
40,
-11,
-5,
46,
-22,
14,
5,
9,
-52,
39,
41,
17,
-16,
-48,
22,
13,
-51,
-26,
-56,
22,
-14,
-11,
30,
-27,
-38,
-3,
64,
25,
-17,
-28,
18,
29,
-13,
32,
12,
-9,
-3,
-14,
-18,
40,
-19,
0,
-15,
-9,
1,
-30,
41,
32,
29,
-10,
-23,
-37,
-7,
-14,
3,
-45,
-42,
-30,
-33,
51,
-11,
31,
3,
63,
-27,
-21,
-18,
-4,
36,
-4,
23,
-14,
29,
-27,
2,
-7,
10,
20,
21,
3,
11,
51,
19,
18,
14,
22,
6,
40,
-4,
7,
31,
-31,
-7,
-50,
-19,
-40,
-26,
7,
60,
6,
-55,
8,
-5,
-52,
-33,
21,
-25,
-29,
-12,
-20,
12,
1,
9,
-17,
-12,
30,
0,
27,
47,
-26,
19,
9,
-36,
18,
-15,
30,
40,
16,
16,
-35,
-7,
-36,
2,
7,
-20,
-22,
-46,
-52,
-6,
-3,
0,
-3,
22,
9,
-9,
-29,
5,
-10,
-22,
-17,
6,
-33,
7,
-36,
35,
0,
-38,
15,
60,
1,
-29,
5,
58,
20,
-18,
-42,
4,
-19,
-39,
2,
21,
27,
-2,
15,
-35,
18,
-30,
-7,
-27,
-30,
-9,
63,
-15,
1,
-29,
-8,
-30,
0,
10,
-15,
-23,
-26,
-20,
-10,
26,
20,
-6,
22,
14,
2,
-31,
22,
-37,
15,
55,
29,
25,
-3,
39,
-23,
20,
1,
13,
50,
-37,
0,
16,
-29,
18,
-26,
21,
-40,
11,
0,
-12,
-15,
9,
9,
-37,
-25,
2,
-18,
2,
16,
-35,
54,
-17,
14,
3,
-69,
-2,
6,
-33,
7,
26,
32,
2,
3,
-24,
-39,
-31,
-64,
21,
8,
-1,
-18,
9,
20,
26,
-29,
-16,
-11,
-19,
32,
37,
-21,
5,
-27,
-19,
-17,
29,
46,
-17,
-15,
-21,
-3,
-15,
-7,
-11,
14,
13,
-13,
15,
-9,
17,
14,
6,
-50,
-5,
52,
50,
-10,
-30,
-33,
-36,
-30,
-50,
-31,
19,
-21,
-16,
38,
16,
60,
1,
-32,
-4,
7,
-25,
-48,
-30,
29,
40,
18,
-29,
-21,
-16,
14,
-12,
-47,
0,
44,
54,
17,
18,
-39,
-8,
35,
-19,
28,
12,
-1,
11,
2,
34,
-33,
-30,
25,
-10,
8,
-14,
26,
8,
38,
82,
31,
-34,
-58,
2,
60,
36,
-26,
42,
3,
9,
41,
18,
14,
-2,
29,
62
] |
Bird, J.
This is a personal injury case, in which the trial court at the conclusion of plaintiff’s case directed a verdict for the defendant, on the ground that the plaintiff contributed to his own injury. The sole question presented is whether the trial court was in error in so doing.
The testimony discloses that on the night of November 27, 1910, plaintiff was walking south on the west side of McDougall avenue in the city of Detroit. When he reached the intersection of McDougall avenue and Hendricks street, he lowered his umbrella, and went to within a few feet oí the north rail of defendant’s track on Hendricks street, where he stopped, looked, and listened for an approaching car. Neither seeing nor hearing one, he proceeded on his way, and an instant later was struck by a west-bound car and injured.
It is gathered from the testimony of the plaintiff and his witnesses that the night in question was a dark and stormy one, that the car "was being operated at a high rate of speed, without a headlight, and that no warning was given as it approached the intersection of the avenues. It further appeared that there was no street light at the intersection. Under this state of facts, we do not think it should be said, as a matter of law, that plaintiff was not in the exercise of ordinary care in attempting to go across the track. That question was one of fact to be determined in view of all the circumstances by the jury. In determining the question, it was proper for the jury to consider to what extent the storm and darkness might have prevented him from discovering the car in season to avoid it, and it was likewise proper for them to consider to what extent the failure to have a headlight in the usual position on the car might have misled him, and also to consider whether his lack of appreciation of the danger he was in was due in any manner to the failure of defendant to do the usual thing and sound the gong as the car approached the intersection.
Notwithstanding the presence of all these conditions, as is urged by defendant, it would seem as though plaintiff ought to have seen or heard the car approaching if he took the precaution which he testified he did before attempting to go upon the track; but whether he did the thing which ordinarily careful and prudent men would do under similar circumstances is a question which is not within our province to decide. Wavle v. Railways Co., 170 Mich. 81 (135 N. W. 914). Some light is thrown upon the question by a lady who walked down McDougall avenue for two blocks immediately behind the plaintiff. She testified that, when plaintiff was struck, she was not to exceed three feet away, and up to that time she had neither seen nor heard the approaching car.
The trial court was much influenced in his disposition of the case by the holding in Hamilton v. Railway, 167 Mich. 5 (132 N. W. 453). In that case plaintiff alighted from a north-bound car, and went around the rear and attempted to cross the south-bound track and was struck by a car. It was dark, and the claim was made that no headlight was exhibited. The question as to whether there was a headlight was submitted to the jury, and they found against the plaintiff, and the case was subsequently affirmed by this court. We do not think that case is controlling because of the difference in conditions.
The judgment of the trial court is reversed, and a new trial granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, and Steere, JJ., concurred. Moore, J., did not sit. | [
-50,
29,
-32,
-38,
-13,
-54,
22,
-2,
2,
45,
-25,
3,
47,
6,
12,
-22,
11,
0,
-26,
-7,
-19,
-25,
-14,
-42,
-9,
-6,
4,
-45,
-25,
37,
47,
-4,
-13,
-8,
-13,
9,
11,
0,
28,
8,
44,
-16,
-2,
-47,
10,
-57,
-22,
-23,
30,
-13,
-1,
-7,
4,
-23,
-29,
10,
12,
55,
-39,
-26,
8,
-7,
35,
-31,
9,
-16,
16,
-1,
-41,
12,
-55,
2,
2,
-10,
-14,
5,
-12,
22,
-23,
31,
-35,
-6,
38,
25,
26,
-9,
-25,
-31,
-60,
-20,
-11,
3,
-17,
8,
33,
1,
0,
-30,
-2,
7,
-35,
9,
11,
-25,
-11,
-5,
-33,
-54,
-24,
-40,
6,
66,
-9,
7,
20,
23,
33,
2,
27,
-16,
40,
-36,
22,
27,
-34,
-9,
-12,
19,
-39,
2,
22,
-19,
5,
34,
3,
-3,
-21,
13,
0,
30,
-7,
12,
18,
25,
-37,
19,
-4,
24,
-15,
-9,
8,
-24,
-32,
-57,
-2,
-50,
-43,
-46,
85,
25,
16,
60,
25,
7,
-10,
13,
-47,
18,
-12,
-10,
11,
-18,
85,
-37,
55,
22,
-10,
-27,
-43,
-26,
-10,
19,
24,
21,
-20,
-63,
0,
9,
-14,
-27,
47,
-18,
-36,
-17,
-5,
30,
31,
-31,
21,
-3,
51,
-38,
-37,
-4,
-34,
-25,
27,
-26,
41,
15,
-8,
-3,
-2,
-3,
69,
-12,
11,
-48,
-24,
-88,
-12,
0,
13,
-26,
-30,
-44,
-62,
-31,
0,
45,
-2,
3,
-9,
-6,
-16,
-29,
-22,
-32,
21,
-29,
53,
20,
-13,
14,
15,
7,
5,
-20,
26,
-2,
21,
6,
-15,
-59,
6,
6,
52,
-11,
15,
-6,
30,
108,
-14,
-1,
62,
-3,
13,
11,
-13,
-55,
2,
4,
2,
31,
-48,
-70,
6,
21,
33,
35,
7,
-10,
-64,
-1,
-15,
48,
-48,
1,
-22,
-32,
31,
-25,
-8,
22,
-9,
38,
46,
9,
-87,
-8,
35,
27,
-29,
18,
33,
-18,
2,
-5,
-15,
26,
-24,
-27,
-4,
14,
18,
19,
9,
6,
66,
1,
-21,
-9,
-37,
-1,
-15,
54,
35,
-43,
-23,
-19,
23,
64,
19,
82,
21,
-30,
32,
53,
-4,
-17,
-16,
6,
7,
1,
1,
25,
11,
4,
-33,
-29,
-70,
-37,
9,
-84,
-40,
12,
34,
-47,
-18,
3,
15,
-56,
6,
61,
12,
-20,
-4,
-17,
-32,
80,
27,
-50,
2,
3,
-25,
-24,
34,
-4,
-45,
74,
-12,
-53,
-7,
-59,
-30,
-63,
-50,
-50,
-36,
39,
-50,
-5,
22,
22,
16,
3,
12,
0,
-12,
21,
1,
35,
-13,
-29,
-46,
-7,
33,
-55,
-34,
-34,
-75,
49,
49,
-14,
15,
-19,
27,
24,
-28,
-55,
13,
27,
60,
-41,
-7,
-10,
21,
-20,
0,
-21,
44,
-21,
26,
0,
-6,
8,
34,
-31,
13,
-49,
-33,
-23,
-4,
11,
20,
3,
-1,
-14,
-24,
29,
49,
-3,
44,
18,
11,
28,
41,
-18,
0,
11,
16,
-26,
-20,
17,
4,
-13,
-9,
-2,
59,
-14,
25,
16,
-38,
46,
-2,
-23,
-29,
9,
-44,
11,
-77,
0,
30,
-23,
-55,
-42,
15,
-5,
30,
46,
28,
67,
-14,
11,
2,
-9,
-30,
14,
-39,
-29,
-33,
16,
-36,
-19,
68,
-28,
11,
-24,
-3,
-26,
13,
9,
6,
5,
29,
36,
-16,
-8,
45,
-6,
25,
-18,
-18,
-19,
-20,
6,
-16,
-28,
-9,
-46,
65,
-9,
25,
-4,
18,
3,
-19,
33,
1,
-21,
-8,
28,
4,
-39,
18,
-19,
6,
45,
23,
13,
29,
2,
13,
-46,
2,
-17,
13,
-21,
27,
13,
29,
19,
35,
20,
17,
9,
2,
27,
67,
-15,
-11,
38,
1,
-19,
-62,
47,
-6,
63,
-67,
-8,
23,
17,
-3,
18,
-8,
2,
20,
-23,
-10,
51,
-3,
4,
38,
23,
4,
-13,
3,
9,
35,
-9,
8,
-42,
-20,
26,
18,
49,
-30,
-32,
53,
12,
20,
22,
-20,
19,
-8,
12,
-32,
14,
41,
16,
-8,
-38,
-5,
11,
-9,
-42,
-26,
40,
-31,
-28,
-60,
12,
-43,
14,
-12,
-18,
13,
35,
-34,
15,
-8,
-3,
32,
-37,
22,
-30,
-60,
40,
-36,
-9,
-23,
35,
-33,
-3,
-27,
-14,
-19,
16,
-34,
11,
-18,
9,
-30,
-27,
-58,
-24,
-29,
-22,
-5,
8,
27,
-23,
33,
7,
11,
6,
-26,
51,
17,
10,
12,
11,
19,
-20,
13,
4,
-60,
17,
76,
-37,
-27,
-23,
21,
-5,
-20,
29,
49,
-11,
6,
-16,
-7,
-38,
3,
6,
-25,
-1,
65,
15,
4,
-30,
61,
51,
-2,
2,
-6,
42,
30,
10,
-51,
20,
20,
-34,
19,
-47,
15,
-10,
17,
-28,
13,
-11,
45,
-6,
-14,
6,
-8,
13,
28,
-8,
-31,
-82,
-12,
6,
49,
-6,
-79,
-33,
41,
-3,
32,
13,
-21,
-21,
60,
-19,
16,
-3,
28,
64,
-13,
-61,
19,
-33,
43,
-28,
-26,
7,
37,
4,
10,
-39,
-28,
-33,
-7,
-64,
-63,
65,
7,
-56,
20,
3,
-16,
5,
8,
42,
-16,
-6,
-60,
37,
9,
-4,
36,
38,
22,
-3,
43,
-13,
-6,
-31,
62,
4,
-24,
38,
18,
-23,
42,
-17,
23,
38,
59,
0,
36,
20,
19,
-5,
17,
31,
24,
40,
-7,
-6,
9,
59,
4,
-21,
24,
8,
-2,
-67,
37,
-4,
9,
7,
0,
72,
-50,
5,
21,
-6,
-35,
-2,
23,
25,
-56,
65,
32,
-2,
-23,
54,
21,
28,
-6,
0,
-12,
-26,
-40,
13,
-38,
-38,
20,
17,
-39,
-47,
-49,
1,
34,
-19,
-16,
-29,
-20,
-39,
18,
46,
-8,
11,
-34,
-1,
4,
-36,
10,
46,
10,
-63,
34,
62,
-33,
-2,
-44,
-67,
-1,
52,
-5,
5,
7,
-20,
-19,
-15,
-59,
46,
69,
-18,
-24,
0,
0,
6,
-10,
-36,
-6,
-13,
-55,
43,
-8,
1,
12,
18,
20,
18,
-46,
-9,
37,
17,
6,
40,
-19,
30,
-21,
22,
-46,
-1,
-9,
53,
-29,
-16,
29,
-32,
4,
0,
3,
-63,
-6,
-16,
34,
-4,
-28,
35,
19,
-37,
-4,
26,
-30,
26,
27,
-16,
-35,
23,
11,
-28,
-40,
-19,
-4,
24,
13,
25,
-1,
-16,
24,
-16,
52,
-16,
-23,
1,
1,
8,
2,
-28,
16,
-2,
-21,
7,
-38,
-45,
5,
-11,
42,
-13,
21,
-24,
-4,
-26,
-29,
7,
-66,
-24,
-45,
38,
-12,
-26,
6,
22,
13,
-12,
-26,
-25,
0,
0,
50,
-13,
38,
48,
-18,
20,
-19,
41,
38,
74,
-8,
43,
-29,
-5,
-43,
13,
4,
50,
35,
19
] |
Ostrander, J.
(after stating the facts). The testatrix has not indicated, in her testament, the objects of her bounty, specially or generally, except that St. Stephen’s Church of Port Huron is named as a beneficiary, and the purpose of the gift to it, but not the amount of the gift, is stated. No scheme of charity or of charitable distribution is indicated, nor whether individuals or private or public institutions are objects of her bounty. A purpose to devote the residue iof her estate to charity is indicated, but not a purpose to devote it to charity generally. The trustee nominated in the codicil has been instructed, and therefore the idea of a selection of beneficiaries by the trustee is apparently excluded. It is plain that the intention of the testatrix cannot be ascertained from the will itself, beyond this: That she intended to create a trust and, through a trustee whom she has nominated and has instructed, to devote to St. Stephen’s Church and to other charitable purposes the residue of her estate. I think decision may be safely rested here, not because, as is contended by counsel for appellants, the trust attempted to be created does not satisfy the requirements of our statute of uses and trusts, that statute affecting real property only (Ledyard’s Appeal, 51 Mich. 623 [17 N. W. 208] ; Hopkins v. Crossley, 132 Mich. 612 [96 N. W. 499]), and we might, other objections aside, apply here the doctrine of equitable conversion and treat all of testatrix’s property as personalty, but because, in this State, the disposition of' property, real or personal, by will must be by writing, attested by two witnesses. The instrument before us is such a writing, but the trust attempted to be created is not contained therein. See Wilcox v. Attorney General, 207 Mass. 198 (93 N. E. 599, Ann. Cas. 1912A, 833, and note).
I do not mean to hold, and the case does not involve the point, that a valid trust for charitable uses may not now be created by will; the selection of the particular beneficiaries from a class, or according to a charitable scheme, indicated in the will, being left to a trustee or to the court. In such a case it might be said, what cannot be said here, that the' intention of the testator was expressed in the will, and the disposition of property attempted was complete.
Counsel for complainant is of opinion, and to this the learned trial .court must have agreed, that the statute of 1907 has introduced into the State the doc trine of charitable uses, and that according thereto the trust in question here may be sustained. In this I think he is mistaken, not, indeed, in thinking that the statute has to some extent introduced the doctrine of charitable uses, but in supposing that the doctrine may be invoked to sustain this trust. Except as introduced by this statute, the doctrine has never obtained in this State (Methodist Church of Newark v. Clark, 41 Mich. 730 [3 N. W. 207] ; Hopkins v. Crossley, 132 Mich. 612 [96 N. W. 499]), whether the trust fund was real estate or was personalty, or the object private or public benefaction. The rule which has been in force here is the rule of the common law, expressed in Morice v. Bishop of Durham, 9 Vesey, 399, as follows:
“If there be a clear trust, but for uncertain objects, the property that is the subject of the trust is undisposed of; and the benefit of such trust must result to those to whom the law gives the ownership in default of disposition by the former owner.”
And as stated in Levy v. Levy, 33 N. Y. 97:
“A ‘charitable trust’ is simply an indefinite or uncertain trust — a trust without a beneficiary; and certainly a trust of that description is void by the rules of the common law as it existed at the time of adoption by us, and now exists. If there is a single postulate of the common law established by an unbroken line of decisions, it is that a trust without a certain beneficiary who can claim its enforcement, is void, whether good or bad, wise, or unwise.”
See, also, Tilden v. Green, 130 N. Y. 29 (28 N. E. 880, 14 L. R. A. 33, 27 Am. St. Rep. 487) ; Wheelock v. American Tract Society, 109 Mich. 141 (66 N. W. 955, 63 Am. St. Rep. 578) ; Stoepel v. Satterthwaite, 162 Mich. 457 (127 N. W. 673) ; McPherson v. Byrne, 155 Mich. 338 (118 N. W. 985). I find no decisions of this court which, as respects the rule that the beneficiaries of a trust shall be certain, have distinguished between charitable and other trusts. Whether it would have been more reasonable to have excepted from the rule trusts for public charity, the beneficiaries of which must of necessity be uncertain, at least in cases where the gift or bequest was personal property (Perry on Trusts, § 687; Dodge v. Williams, 46 Wis. 95-98 [1 N. W. 92, 50 N. W. 1103] ; Harrington v. Pier, 105 Wis. 485 [82 N. W. 345, 50 L. R. A. 307, 76 Am. St. Rep. 924] ; Dulles's Estate, 218 Pa. 162 [67 Atl. 49, 12 L. R. A. (N. S.) 1177]), is a matter about which men may differ in opinion, but, as has been stated, no such exception has been made. What the prevailing rule has been is of interest in determining what change in the law the statute of 1907 has made.
The statute relates only to gifts, etc., to religious, educational, charitable, or benevolent uses, and to those only which are in other respects (except in respect to matters to be remedied by the statute) valid under the laws of the State. No such gift, is the legislative declaration, shall be invalid by reason of the indefiniteness or uncertainty of the persons designated as .the beneficiaries thereunder in the instrument creating the same, nor by reason of the same contravening any statute or rule against perpetuities. I have pointed out that no beneficiary, excepting St. Stephen’s Church, is designated in the will, and also that the idea of an indefinite beneficiary is excluded, and the idea of a certain, but not validly declared, beneficiary is included, by the words employed.
It is said our statute was borrowed from New York, where, in 1893, a statute similar, but not containing the provision relative to perpetuities, was enacted, and before its enactment here was_ construed by the court of last resort of that State. It is urged on the part of complainant that the statute must be considered as adopted here with the meaning and effect given it by the New York court. In Allen v. Stevens, 161 N. Y. 122 (55 N. E. 568), the court considered, in the light of the statute, a clause in a will reading as follows:
180 Michigan Reports. [Apr.
“Tenth. I give, bequeath and devise all the rest and residue of my property of every kind, personal and real, wherever situate, to my trustees hereinafter named for the purpose of founding, erecting and maintaining Graves Home for the Aged, to be located in the city of Syracuse, in the State of New York. It is intended as a home for those who by misfortune have become incapable of providing for themselves and those who have slender means of support. The institution to be known as the Graves Home for the Aged. I hereby appoint Charles E. Stevens, Rasselas A. Bonta, and Maurice A. Graves for the trustees to execute the above trust. I hereby authorize and empower my executors, or the survivor of them, to rent or sell any part or all of my real estate that I may own at the time of my death. They are authorized to employ a person or persons to have charge of the real estate, to collect rents, make & to repairs, and to pay such sums for compensation as they may deem reasonable and proper.
“After my executors have executed their trust and paid all the legatees provided for in this will they are authorized and directed to convey to the said trustees above named the balance and remainder of my property of every kind to be applied for the purposes above provided, and the said trustees, or the survivor, are authorized to rent or sell all or any part of my real or personal property and to employ such agents as they may deem proper to take charge of the same and pay them such compensation as they deem best.”
There was a dissenting opinion, but the provision of the will was sustained. It is said in the majority opinion that:
“Reading the statute in the light of the events to which reference has been made, it seems to me very clear that the legislature intended to restore the law of charitable trusts as declared in the Williams Case; that having discovered that legislative enactment had operated to take away the power of the courts of equity to administer trusts that were indefinite as to beneficiaries, and had declared a permanent charity void unless the devise in trust was to a corporation already formed or to one to be created, it sought to restore that which had been taken away through another enactment. This is markedly indicated, not only by the absence of details in the statute, which is broadly entitled ‘An act to regulate gifts for charitable purposes,’ but also in the brevity of the statute, which confers all power over such trusts and trustees on the Supreme Court and directs the attorney general to represent the beneficiaries in cases within the purview of the statute, as was the practice in England. Practical effect can be given to the provision that no devise or bequest shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as beneficiaries only by treating it as a part of a general scheme to restore to the courts of equity the power formerly exercised by chancery in the regulation of gifts for charitable purposes, for, in order to ascertain the class of persons who were entitled to the benefits of the trust, the rule formerly in force must necessarily be invoked by which the court ascertained, as nearly as possible, the intention of the testator, by decree adjudged, who were intended to be the beneficiaries of the trust and directed its administration accordingly.”
It is this declaration of the legislative purpose and of amended state policy which counsel for complainant regardas adopted in this State with the adoption of the statute. It ought to be said, perhaps, that the effect of a new statute upon the law and policy of a State depends upon the existing state of the law and the policies theretofore declared. The same law adopted in different States might have a varying effect upon the existing laws and policies of each State. The history of the particular subject in the State of New York has not been repeated in this State. Therefore,, the adoption of the particular statute from New York,, and the rule relied upon by complainant, are not necessarily conclusive of the effect to be given the statute here. In so far as the statute had been applied in New York to particular facts, and its meaning and effect thus determined, we think the rule should be observed, unless our statute and policies dissimilar to those of New York forbid it. The effect of the decision of Allen v. Stevens, and of cases since decided (Matter of Griffin, 167 N. Y. 71 [60 N. E. 284] ; Matter of Graves, 171 N. Y. 40 [63 N. E. 787] ; Murray v. Miller, 178 N. Y. 316 [70 N. E. 870] ; Rothschild v. Schiff, 188 N. Y. 327 [80 N. E. 1030] ; St. John v. Andrews Institute, 191 N. Y. 254 [83 N. E. 981, 14 Am. & Eng. Ann. Cas. 708] ; Matter of Shattuck, 193 N. Y. 446 [86 N. E. 455] ; Matter of Cunningham, 206 N. Y. 601 [100 N. E. 437]), is that, since the enactment of the law referred to, gifts in trust for public charitable purposes are not void for the uncertainty and indefiniteness of the beneficiaries, if the purpose of the trust is defined with sufficient certainty to be carried out by the court. It was expressly held (Matter of Shattuck, supra) that it was not the purpose of the act to preserve gifts to private institutions or individuals, and when the selection of the beneficiaries of a trust is left to the discretion of a trustee, subject only to the limitation that they shall be “religious, educational, or eleemosynary institutions,” the trust is void, because the word “educational,” as used, does not necessarily describe a public or charitable institution, within the meaning of the act. It was said:
“In this will the testatrix, without defining the use to which the income of the trust fund is to be applied, directs generally that it be paid over to such particular ones of certain institutions as in the judgment of the trustee seems advisable. The power of the court to control the trustee is bounded by the directions of the testatrix. It cannot add to or take from the terms of this will properly construed any more than it could if the testatrix had specified by name the particular institutions entitled to the income of the trust fund, and she had included among them one or more manufacturing or transportation corporations. The possible devotion of the income of said trust in whole or in part to private use necessarily affects the entire gift and requires that the same shall be held invalid.”
It is further pointed out that a school, unless it is a free school, does hot come within the enumeration of charities in the statute 43 Elizabeth, chap. 4. Assuming that our statute should have the meaning and effect which were given to the New York law before its adoption here, it is evident that the purpose of the trust we are considering is not defined with sufficient certainty in the instrument creating it to be carried out by the court. There was a time when the English court of chancery would perhaps have seized upon the general statement of the testatrix that the estate was to be disposed of for charitable purposes, have ascertained, as best it could, the intentions of the testatrix or what were her favorite charities, and disposed of the fund in conformity, “as near as may be,” with her ascertained desires; in any event, would have disposed of it for charitable purposes. The cy pres doctrine was carried to extravagant lengths in some decisions. The subject is treated generally in 6 Cyc. p. 961 et seq. A late case (Blair v. Duncan, 27 App. Cases, 37, decided in the House of Lords in 1901) indicates the trend of modem decisions. In that case a testatrix, by codicil, directed her trustee that, in events which happened, one-half of the residue of her estate should be applied “for such charitable or public purposes as my trustee thinks proper.” It was held the direction was void for uncertainty; that the words “charitable” and “public” were used disjunctively; and that the disposition given to the trustee to • determine what particular public purposes should be the objects of the trust is too vague and •uncertain for any court to administer.
In my opinion, the trust in question here is invalid: First, because it is not evidenced according to law, and the unexpressed will of the testatrix cannot be given expression by parol; second, because the intended beneficiaries are not, upon the instrument creating the bequest, uncertain or indefinite within the meaning of the statute.
It follows that the decree must be reversed and a decree entered in this court adjudging the trust attempted to be created by the codicil to the will to be invalid. Appellee may have his actual costs and expenses allowed, as a disbursement, out of the fund. Appellants may, if they choose, have a decree for costs payable out of the fund.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
-12,
-7,
28,
-29,
-56,
1,
77,
63,
-4,
-16,
35,
-34,
74,
58,
-11,
-25,
0,
28,
-80,
26,
-29,
-16,
-63,
-45,
-13,
-2,
63,
7,
25,
8,
5,
-12,
-23,
5,
-28,
-12,
8,
-22,
56,
12,
-2,
-19,
16,
16,
0,
17,
46,
-63,
-28,
-50,
59,
8,
-21,
-4,
72,
18,
-1,
-49,
-21,
-21,
25,
-63,
-12,
14,
-2,
6,
13,
10,
-73,
-29,
-26,
12,
-31,
-22,
55,
-55,
37,
34,
-4,
11,
47,
-62,
-9,
-28,
-12,
-27,
-14,
-5,
3,
-60,
-24,
-61,
-42,
7,
-43,
56,
64,
9,
38,
29,
-16,
23,
-13,
8,
6,
5,
-1,
7,
49,
-27,
38,
4,
7,
-3,
-22,
26,
-80,
-33,
-36,
-10,
-29,
5,
-1,
-17,
62,
-9,
20,
-28,
22,
-16,
48,
3,
-35,
3,
-18,
-4,
-54,
-28,
-8,
11,
-7,
3,
-2,
6,
-16,
-5,
-5,
-50,
1,
-56,
-6,
-32,
9,
14,
8,
3,
-19,
-35,
16,
-23,
3,
46,
-10,
21,
-28,
4,
18,
36,
-7,
36,
6,
29,
-20,
11,
-27,
-22,
10,
-39,
-29,
-14,
24,
50,
44,
36,
23,
-41,
-24,
-3,
0,
-24,
-33,
-1,
10,
45,
-3,
59,
0,
19,
-34,
-49,
5,
-23,
10,
50,
6,
-4,
-6,
-51,
-20,
20,
-12,
60,
-5,
45,
-46,
-24,
-33,
-62,
-19,
-8,
2,
-8,
34,
-25,
-32,
10,
-13,
-20,
-46,
-19,
-40,
5,
-34,
23,
-32,
-13,
-2,
37,
-13,
56,
6,
9,
17,
6,
-19,
-56,
26,
0,
14,
44,
11,
-14,
12,
27,
-8,
-32,
-20,
23,
28,
-40,
-15,
21,
-31,
22,
-23,
1,
41,
-4,
-27,
-26,
25,
-13,
17,
-46,
13,
-22,
23,
-42,
-14,
-3,
10,
44,
3,
-6,
-15,
50,
-52,
-5,
-5,
43,
26,
7,
56,
10,
30,
8,
-45,
-42,
17,
-34,
13,
46,
26,
78,
45,
-9,
22,
30,
27,
-31,
-1,
-34,
0,
4,
10,
7,
-29,
-44,
-2,
44,
54,
-19,
-11,
-13,
11,
-3,
8,
-57,
12,
77,
-62,
64,
26,
35,
9,
0,
20,
-24,
-34,
-76,
51,
-17,
17,
-48,
8,
-8,
-31,
-15,
-39,
-13,
1,
82,
7,
3,
-25,
-10,
32,
-1,
10,
20,
-15,
22,
35,
-3,
7,
-14,
-10,
10,
-27,
-9,
6,
-26,
-51,
-7,
15,
7,
-11,
-6,
-12,
9,
-53,
-12,
33,
17,
1,
18,
-20,
36,
-9,
11,
-7,
-17,
32,
27,
-4,
-34,
-7,
-2,
-45,
-3,
-67,
70,
-10,
-29,
-70,
39,
-17,
-22,
-23,
45,
-50,
73,
51,
-15,
13,
-23,
5,
-60,
5,
21,
29,
28,
-9,
2,
-43,
-25,
-55,
34,
-76,
-24,
-29,
65,
28,
-6,
32,
7,
25,
-3,
-18,
-34,
38,
45,
-7,
9,
-8,
88,
30,
-41,
3,
-11,
60,
-31,
13,
6,
42,
-19,
64,
0,
-10,
-25,
19,
-28,
10,
-46,
31,
-21,
-14,
-36,
60,
-12,
-17,
13,
-16,
0,
44,
44,
4,
40,
-7,
-10,
48,
23,
39,
-35,
-1,
18,
-47,
-34,
-38,
-64,
39,
-12,
1,
18,
-52,
-37,
-19,
-9,
18,
47,
34,
14,
-9,
-1,
-4,
-18,
10,
-49,
-5,
-23,
8,
-16,
42,
24,
-11,
25,
25,
-39,
10,
29,
46,
-71,
-40,
-36,
11,
60,
51,
44,
8,
-27,
-16,
14,
11,
3,
-30,
-3,
40,
-11,
-33,
-21,
-64,
-34,
-1,
22,
-37,
38,
27,
-23,
-43,
-17,
-79,
-4,
25,
59,
29,
-15,
8,
-64,
16,
7,
-48,
60,
8,
-37,
12,
-45,
21,
-37,
-34,
-27,
28,
-41,
6,
0,
-13,
8,
37,
22,
-1,
-54,
18,
-14,
-1,
-67,
-16,
5,
-22,
4,
6,
17,
26,
-9,
9,
22,
-50,
-54,
19,
-3,
11,
9,
-39,
19,
16,
-38,
-13,
-13,
-11,
10,
46,
-26,
-19,
-36,
23,
19,
-54,
17,
-4,
-46,
0,
15,
17,
-12,
63,
-59,
37,
3,
23,
4,
37,
-36,
35,
-46,
-12,
-15,
-23,
21,
-74,
-28,
-27,
-28,
13,
21,
1,
9,
39,
-1,
-17,
28,
51,
12,
0,
14,
-23,
-13,
-7,
26,
-30,
-21,
22,
0,
-2,
-4,
-15,
56,
54,
46,
28,
61,
23,
18,
16,
-23,
-4,
26,
35,
-23,
2,
0,
35,
-11,
-36,
-11,
-3,
-5,
5,
-34,
-42,
-4,
54,
-8,
29,
7,
-3,
31,
35,
-40,
34,
61,
27,
20,
19,
-4,
-52,
9,
-48,
-19,
-38,
29,
6,
-36,
-10,
32,
4,
-42,
-28,
18,
-1,
27,
-2,
5,
-10,
-46,
-1,
-11,
37,
-19,
24,
-48,
6,
8,
25,
-53,
-3,
29,
14,
36,
36,
-22,
21,
9,
-18,
87,
-42,
20,
-14,
40,
22,
14,
-17,
1,
20,
46,
53,
0,
-39,
-2,
-33,
43,
-13,
-44,
-22,
25,
-38,
-16,
58,
-16,
-28,
31,
-23,
-19,
29,
23,
-30,
21,
-45,
18,
7,
1,
49,
11,
30,
-8,
-19,
28,
46,
-30,
13,
-25,
-5,
35,
-35,
45,
23,
-15,
-9,
-14,
-2,
25,
55,
-59,
48,
22,
-22,
15,
0,
51,
0,
58,
1,
27,
15,
12,
0,
-5,
-47,
-12,
-12,
32,
17,
-45,
7,
-22,
8,
-30,
0,
42,
-16,
-7,
-12,
15,
10,
6,
-17,
8,
-4,
-10,
-32,
7,
8,
-30,
1,
-31,
7,
31,
-19,
-22,
16,
-2,
-34,
-51,
-29,
13,
20,
20,
28,
-48,
12,
11,
11,
26,
-29,
11,
-3,
-7,
59,
-36,
13,
10,
7,
-11,
-60,
54,
-82,
-7,
-33,
1,
7,
-4,
-34,
17,
35,
49,
-49,
-15,
-14,
8,
27,
-15,
-12,
16,
36,
-15,
8,
49,
-17,
1,
-13,
15,
18,
0,
-27,
-29,
-53,
-4,
-53,
2,
33,
23,
40,
21,
-23,
-43,
22,
33,
13,
9,
-1,
-72,
31,
-24,
6,
-31,
-9,
-24,
-28,
-2,
15,
1,
-59,
16,
-10,
-4,
-12,
28,
62,
-19,
-12,
-13,
30,
44,
-3,
-38,
-40,
20,
38,
-13,
15,
-3,
-25,
-47,
30,
-10,
8,
38,
-33,
29,
27,
-38,
-59,
-7,
-11,
18,
-8,
30,
56,
-34,
-5,
-35,
8,
27,
-33,
12,
0,
-40,
1,
-50,
68,
-32,
-41,
-16,
1,
-25,
6,
29,
-19,
4,
12,
-14,
-31,
-53,
-10,
35,
15,
-2,
12,
-40,
9,
16,
-12,
-62,
33,
-29,
-7,
33,
-9,
-22,
13,
17,
-33,
-30,
2,
-28,
27,
49,
-4,
3,
-22,
-12,
39,
8,
23,
2,
26,
13
] |
Kuhn, J.
The bill of complaint in this case is filed, to obtain a construction of a clause in the will of Harriet Nault Lauzon, who died at Sault Ste. Marie, in this State, on the 28th day of June, 1897. The will, which was dated on the 21st day of April, 1897, contained the following clause:
“Sixth: I give, devise and bequeath to my beloved son, Joseph Honoré Nault, and his heirs surviving him, as follows: To said Joseph Honoré Nault the right to improve, let, or use and occupy as a home during his natural life, all that part of private land claim number 110 in said Sault Ste. Marie, Michigan, lying north of Portage avenue south of the water line of St. Mary’s river and west of a line drawn parallel with the west line of Sova street and 96 feet distant west therefrom, and at his decease to his heirs surviving, the absolute title in fee to said premises, share and share alike.”
Joseph Honoré Nault, who was unmarried at the death of his mother, subsequently married. He died September 3, 1911, leaving surviving him his widow and one child, Genevieve H. Nault. On May 16, 1906, Joseph Honoré Nault made a lease of the lands in question to the Union Carbide Company for 75 years; but the lease also provided that it was to terminate at his death. On the same day he made an absolute conveyance thereof by warranty deed to the same party, and in this conveyance Louise Nault joined as his wife. The complainant was appointed administrator of the estate of Joseph Honoré Nault, deceased, and also guardian of the person and estate of Genevieve H. Nault, the said minor child. The complainant was authorized by the probate court to sell the property in question, which he did, for the sum of $6,000. While this proceeding was pending in the probate court, the defendant claimed to be an heir at law of Joseph Honoré Nault, deceased, and entitled, under the clause of the will above set forth, to one-half of the proceeds of the sale of said lands. This suit was brought to determine the merits of this claim, and the circuit judge made a decree in favor of the defendant. Complainant appeals. The question therefore is: Is the defendant, or was she at the time of Ms death, an heir at law of Joseph Honoré Nault, her husband, and, also, if she was, did she convey her prospective interest in the lands by« the deed of May 16, 1906? The defendant contends that she became an heir at law by virtue of Act No. 286 of the Public Acts of 1909, which provides, in part, as follows:
“Section 1. When any person shall die seised of any lands, tenements or hereditaments, or of any right thereto, or entitled to any interest therein in fee simple, or for thedife of another, not having lawfully devised the same, they shall descend, subject to his debts, in the following manner:
“First. One-third to his widow and the remaining two-thirds to his issue, and if he leaves no widow then the whole thereof to his issue, and if all the said issue are in the same degree of kindred to the intestate, they shall share the estate equally, otherwise they shall take according to the right of representation;
“Second. If the intestate shall leave a husband or widow and no issue, one-half of the estate of such intestate shall descend to such husband or widow and the remainder to the father and mother of the intestate in equal shares, and if there be but one of the parents living, then to the survivor alone; and if the intestate shall leave no issue, husband or widow, his or her estate shall descend to the father and mother in equal shares, and if there be but one of the parents living, then to_ the survivor alone; and if the intestate shall leave no issue, father or mother, Ms or her estate shall descend, subject to the provisions herein made for the widow or husband, if a widow or husband sur-' vive the deceased, to his or her brothers and sisters and the children of deceased brothers and sisters, and if such persons are in the same degree of kindred to the intestate, they shall take equally, otherwise they shall take by right of representation: Provided, however, if such intestate shall die under the age of twenty-one years and not having been married, all the estate that came to such intestate by inheritance from a parent, which has not been lawfully disposed of, shall descend to the other children and the issue of deceased children of the same parent, if there be such children or issue, and if such persons are in the same degree of kindred to said intestate they shall take equally, otherwise they shall take by right of representation.”
The claims of the complainant are stated as follows:
“That Act 286 of the Public Acts of 1909 does not operate to make the widow an heir of Joseph Honoré Nault for the reason that, under said act, the widow becomes an heir only when the husband dies seised of lands or an interest therein in fee simple or for the life of another; that such was not the instant case, because Joseph Honoré Nault had merely a life estate in the premises, and, because of the lease and the conveyance given by him to the Union Carbide Company, he had conveyed his whole estate, and had no interest whatever in the property at the time‘of his death. That it appears from the will that the testatrix intended the estate to inure to the benefit of her immediate family only.”
The circuit judge has given us the benefit of a written opinion, which states his conclusions as to these questions, and with which we agree. We therefore incorporate them as a part of this opinion:
“By virtue of the provisions of section 8810, Comp. Laws 1897 (4 How. Stat. [2d Ed.] § 10650), abolishing the rule in Shelley’s Case, the word 'heirs' as used in the will is a word of purchase to designate the persons who are to take the estate lipón the death of the life tenant. It is not a word of limitation to define the estate. The heirs do not take by inheritance from Joseph Honoré Nault, nor do they acquire any title through or by virtue of his right of possession. Their title is derived entirely from the testatrix by virtue of the provisions of the will. Consequently the disposition made by Joseph Honoré Nault of his life estate becomes unimportant.
“The will expressly defines the estate to be taken, a remainder over after an estate for life, and designates the persons who are to take the remainder, but by a generic term. It requires no construction to ascertain the estate. It requires construction only to determine the particular persons who belong to the designated class. Who are the heirs of Joseph Honoré Nault, surviving him?
“It is assumed by both the parties hereto that the heirs of Joseph Honoré Nault must be ascertained as of the time of his death, rather than of the time of the death of the testatrix. This assumption is in accordance with both the principles of law and the intent of the testatrix as expressed in the will.
“The word ‘heirs’ has a technical meaning, and as such it describes those who succeed to one’s ownership of real estate on his death. Fullagar v. Stockdale, 138 Mich. 367 [101 N. W. 576] ; 2 Blackstone’s Comm. 201 (Cooley’s); Bailey v. Bailey, 25 Mich. 188.
“Where by statute, the husband or wife takes an absolute interest in the estate of the deceased consort, they come within the technical definition of ‘heirs.’ 40 Cyc. p. 1463; Turner v. Burr, 141 Mich. 111 [104 N. W. 379] ; Proctor v. Clark [154 Mass. 45, 27 N. E. 673], 12 L. R. A. 721.
“When the words, ‘heir,’ ‘heirs,’ ‘unlawful heirs,’ or the like are clearly used, not to define the estate given, but to designate the persons who are to take, whether heirs of the testator or of some other person, they mean the person or persons who would by law succeed to the real estate of the person named if he had died intestate, unless an intention to express a different meaning appears from the context of the will and the circumstances of the case. Rood on Wills, §449.
“The statute of descent (Act 286, supra) designates the defendant and the child as the persons who would be entitled to succeed to any real estate, or interest therein, of which Joseph Honoré Nault might die seised, in the absence of devise, and are therefore his ‘heirs.’ They are the persons who come within the class mentioned in the will, and are therefore entitled to the property in question, unless, from the will, it appears that such was not the intention of the testatrix.
“In construing the will, to ascertain the intent of the testatrix, the language of the will must govern.
“The intent is to be gathered from the language used, for the object of construction is not to ascertain the presumed or supposed, but the expressed, intention of the testator; that is, the meaning which the words of the will, correctly interpreted, convey.’ Allison v. Allison [101 Va. 543, 44 S. E. 906], 63 L. R. A. 924.
“A will cannot be construed by mere conjecture as to the intention of the testator; but it is the intention which the testator expresses in his will that controls, and not that which he may have had in his mind. 40 Cyc. p. 1389.
“The plain intent of the testator as evinced by the language of the will must prevail. The intent must be gathered from the ‘four corners of the instrument.’ Wales v. Templeton, 83 Mich. 179 [47 N. W. 238].
“A careful examination of the will has failed to reveal to me the expression of any intention on the part of the testatrix that her property should inure to the benefit of her immediate family, to the exclusion of any of the legal heirs of Joseph Honoré Nault.
“If we assume that the testatrix reviewed the then existing provisions of law relative to the descent of property and the determination of ‘heirs,’ and considered the different situations which might exist at the death of Joseph Honoré Nault, we must conclude she knew that, in the event of his death married, but without issue, the widow and his brothers and sisters would be his heirs. By the use of the term ‘heirs surviving,’ the testatrix then must have known and intended that the widow of her son should, under such circumstances, take part of the property.
“If, on the other hand, we assume that the testatrix had in mind only the situation as it now exists, in order to hold that she intended to give all the property to the child, and to exclude the widow, it is necessary to apply some rule of construction or discover some language in the will which would warrant us in finding that she intended the ‘heirs surviving’ should be ascertained by the facts as they might exist at the time of the execution of the will or of the testatrix’s death.
“I know of no rule which would justify such a construction, nor can I discover any language in the will which points to such an intention. The construction to be given, in my judgment, is that both the fact and the law as they existed at the time of the death of Joseph Honore Nault must control in determining his 'heirs surviving/ Lincoln v. Perry [149 Mass. 368, 21 N. E. 671], 4 L. R. A. 215; Gray v. Whittemore, supra [192 Mass. 367, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246].
"This ruling, moreover, appears to be in full accord with intention of the testatrix as it may be gathered from the will.
"There is no indication of a desire to build up a landed property in the family. The will provides for the early final disposition of the entire estate, either by sale or absolute devise, except the descriptions in which the sons take their respective life estates.
“After providing for the support of her mother, and for her grandchildren in being, the testatrix divides the rest of her estate among her four children, the three sons and one daughter. While the value of the particular descriptions of land specifically devised does not appear, the whole tenor of the will indicates that it was the intention to give the children equal portions.
“She placed no restraint of alienation upon the estate given the daughter. By making him an executor and trustee under the will, the testatrix evinces confidence in the integrity and ability of her daughter’s husband, which doubtless accounts for the absolute devise and bequest to the daughter, in whose hands, under the counsel and management of the husband, the mother felt that the property would be conserved.
“The unqualified disposition of the entire estate, except the life interests given the sons, and the unhindered devise to the daughter, would appear to negative the idea that the testatrix wished to keep the property in the immediate family, to the exclusion of any legal heir.
“For. some reason, however, the testatrix deemed it expedient to restrict the control of the sons over their portions. The provision relative to their receiving only the income, or part of it, of their shares of the residue of the estate for ten years, and the one regarding the possibility of their not paying the taxes and insurance premiums on the property in which they had life estates, would seem to indicate that she did not have full confidence in their business ability, experience, or providence.
“In the event of the death of a son before the expiration of the ten-year period, his share of the residue, then converted into money, was to go to his heirs. The remainder over after the expiration of the life estate was to go to-his heirs. In neither instance is there the expression of any restriction as to whom such heirs should be.
“It was the evident purpose of the testatrix to divide her estate equitably among her four children; but she felt it necessary to restrict the power of each of the sons to dispose of his share, not with the idea of keeping the property in the immediate family, but to insure those dependent, or who might become dependent, upon such son, an estate undissipated by incompetence, improvidence, or inexperience. And in the meantime the son should have full use of the property as though he were the sole owner.
“It therefore appears, and is so determined, that the defendant is an heir of Joseph Honoré Nault, and as such heir is entitled to one-half interest in the property in issue. As such property has been sold under agreement of parties, this determination shall apply to the proceeds of such sale.”
Did.the future interest of the wife pass by way of estoppel under the warranty deed of May 16, 1906? This doctrine' of estoppel has been applied in certain jurisdictions where a married woman joins her husband in the execution of a warranty deed and after-wards acquires a title through a foreclosure sale of a mortgage existing at the time of the conveyance (George v. Brandon, 214 Pa. 623 [64 N. W. 371] ; Sandwich Manfg. Co. v. Zellmer, 48 Minn. 408 [51 N. W. 379]) ; but the general rule is that a married woman is not liable on her covenants in a deed or mortgage made jointly by herself and husband, in the absence of a statute imposing such a liability (note to Wadkins v. Watson, 22 L. R. A. 779). In this State we have no such statute, and the rule has been repeatedly stated that the married woman’s act of 1855 confers upon the wife power only to contract and bind herself in relation to her property and estate already possessed, or referring to it, or in relation to property to be acquired by the contract, or in consideration of it. Johnson v. Sutherland, 39 Mich. 579; Kenton Insurance Co. v. McClellan, 43 Mich. 564 (6 N. W. 88) ; Reed v. Buys, 44 Mich. 80 (6 N. W. 111) ; Naylor v. Minock, 96 Mich. 182 (55 N. W. 664, 35 Am. St. Rep. 595) ; Edison v. Babka, 111 Mich. 235 (69 N. W. 499). See, also, note to Mosher v. Kittle, 101 Mich. 345 (59 N. W. 497), for compilation of cases on contracts of married women. In Arthur v. Caverly, 98 Mich. 82 (56 N. W. 1102), it was held that a married woman uniting with her husband in a warranty deed of his property is liable on the covenant when she obtains all the consideration, which, in that case, was a conveyance to her of other property. The record in the instant case does not disclose for what purpose the wife signed the deed, as she had no dower interest; the husband’s interest being simply a life estate. The burden was upon the complainant to show for what purpose she joined in the instrument, and to prove it clearly, and to show that she had brought herself within the rule above set forth. Mutual Benefit Life Ins. Co. v. Savings Bank, 68 Mich. 116 (35 N. W. 853). This complainant has failed to do, and it necessarily follows that the wife’s signature to the instrument was a nullity, and did not bind her subsequently acquired estate.
The decree of the court below is affirmed; but, as this is an amicable proceeding, it having been deemed imperative that this court should construe the will and direct the distribution of the estate so as to protect complainant and the interests of his ward, no costs will be allowed to either party.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
-17,
52,
12,
-40,
19,
-1,
66,
51,
26,
-7,
3,
-7,
39,
37,
-33,
27,
-12,
-40,
-61,
-25,
-11,
-18,
-90,
-12,
34,
-26,
20,
-35,
-15,
5,
6,
17,
-67,
50,
9,
20,
24,
-71,
17,
31,
-4,
-4,
27,
24,
21,
20,
-17,
-19,
54,
30,
2,
-1,
19,
13,
-7,
7,
-14,
11,
15,
25,
-2,
-68,
-1,
3,
27,
29,
43,
31,
27,
-41,
-13,
2,
-13,
27,
-13,
17,
-18,
-53,
-13,
-29,
-14,
-21,
29,
-31,
-39,
-40,
-62,
-4,
1,
-15,
-47,
-25,
-15,
5,
-32,
25,
5,
46,
22,
-20,
0,
11,
-5,
-19,
18,
-17,
-60,
1,
45,
-52,
20,
1,
-5,
-36,
-45,
-5,
-28,
-19,
23,
-9,
-4,
-36,
40,
-42,
14,
3,
-24,
-6,
-28,
-15,
17,
25,
-43,
-28,
-12,
12,
-13,
-41,
29,
-24,
28,
7,
-15,
-36,
8,
20,
-32,
-68,
-6,
-59,
-28,
39,
-20,
25,
18,
-22,
1,
-19,
23,
-15,
51,
-23,
38,
-34,
-40,
-15,
20,
6,
-16,
-12,
-22,
29,
-10,
-34,
37,
40,
70,
-26,
-59,
27,
13,
0,
8,
-30,
-28,
-42,
-18,
-15,
-8,
16,
-27,
-16,
-23,
14,
-69,
21,
7,
15,
19,
21,
-5,
4,
9,
0,
12,
-39,
-31,
-39,
-5,
40,
30,
0,
-31,
11,
-28,
26,
11,
-50,
-57,
-1,
27,
24,
-41,
-10,
3,
-11,
46,
-10,
0,
-29,
-13,
-58,
11,
19,
10,
22,
38,
-18,
-19,
-42,
-30,
56,
-17,
1,
6,
15,
-3,
22,
15,
34,
19,
14,
-40,
-15,
-3,
6,
-33,
-7,
-17,
-49,
5,
-15,
-50,
24,
3,
-10,
15,
-18,
-34,
-4,
39,
-1,
29,
-8,
-53,
-30,
38,
3,
19,
-6,
0,
-5,
-61,
41,
-46,
22,
-30,
14,
-66,
36,
-32,
33,
2,
-45,
21,
36,
25,
14,
1,
24,
-16,
2,
13,
59,
3,
-63,
-14,
24,
36,
41,
-17,
8,
-10,
50,
-16,
1,
3,
-13,
-20,
65,
40,
-13,
-26,
64,
-61,
33,
13,
28,
-37,
82,
5,
9,
1,
-14,
-51,
-36,
38,
15,
-11,
-54,
42,
24,
16,
1,
11,
-21,
-11,
-3,
25,
-21,
-56,
42,
-9,
-17,
3,
-19,
53,
-8,
4,
85,
37,
53,
55,
9,
0,
-11,
-28,
-30,
33,
11,
2,
6,
14,
14,
7,
-26,
-37,
20,
-42,
51,
13,
-14,
11,
69,
59,
-26,
-43,
20,
24,
24,
11,
-30,
-32,
19,
15,
42,
17,
1,
-38,
-39,
-5,
70,
-13,
-21,
-49,
45,
-47,
-1,
0,
30,
8,
8,
65,
-19,
55,
2,
9,
17,
11,
38,
-33,
32,
59,
38,
-8,
-29,
28,
15,
20,
20,
-9,
24,
50,
27,
46,
-20,
13,
1,
17,
21,
-21,
23,
16,
-17,
8,
6,
-46,
-43,
45,
-9,
-4,
71,
-23,
13,
-10,
-31,
70,
21,
-15,
-2,
-6,
-25,
39,
9,
24,
14,
-15,
21,
30,
9,
-62,
-12,
21,
-26,
15,
23,
31,
15,
16,
8,
3,
-5,
0,
0,
6,
-34,
-60,
15,
-10,
0,
35,
22,
-49,
-17,
2,
-73,
-43,
32,
75,
-4,
-17,
28,
11,
-10,
3,
-4,
-30,
-20,
-20,
10,
-19,
-53,
18,
-19,
0,
55,
70,
0,
23,
6,
0,
-17,
-60,
66,
18,
-22,
35,
5,
-2,
-5,
-17,
2,
7,
7,
-27,
-7,
8,
7,
-9,
-22,
-32,
12,
49,
20,
-52,
35,
-20,
28,
-10,
-4,
-23,
-51,
-16,
-10,
-2,
15,
17,
-22,
-18,
-16,
67,
15,
-17,
-28,
51,
-3,
29,
-50,
-9,
10,
-61,
-32,
6,
-26,
-19,
19,
19,
8,
-13,
8,
23,
-46,
68,
-15,
4,
-1,
-17,
-44,
-10,
17,
6,
21,
-36,
-38,
-48,
-15,
17,
18,
-9,
-17,
-9,
15,
-11,
0,
-34,
26,
-36,
-2,
39,
-41,
5,
40,
-2,
3,
2,
44,
48,
-51,
42,
20,
10,
-23,
-16,
26,
2,
0,
-7,
-5,
16,
38,
37,
17,
-17,
-15,
-4,
40,
-39,
29,
14,
-41,
-33,
-26,
-8,
29,
-68,
-18,
17,
0,
-4,
-15,
-25,
11,
34,
37,
-11,
-30,
37,
2,
5,
-20,
28,
-30,
-12,
46,
-4,
57,
31,
15,
-49,
45,
30,
12,
-43,
9,
-10,
40,
25,
31,
43,
30,
-43,
16,
24,
37,
11,
0,
4,
-11,
10,
14,
0,
10,
24,
-9,
-8,
0,
2,
50,
56,
9,
-42,
39,
25,
6,
-4,
-12,
17,
-6,
-32,
-26,
53,
-14,
37,
-3,
-17,
19,
40,
-69,
-8,
-31,
-9,
-19,
35,
-69,
65,
-27,
38,
11,
7,
36,
2,
1,
15,
-22,
25,
2,
36,
-41,
22,
-22,
-54,
-24,
-17,
-5,
59,
-16,
12,
25,
-8,
-9,
-12,
3,
20,
1,
-6,
-67,
-28,
38,
-24,
-19,
-2,
0,
-9,
14,
-15,
-14,
-29,
13,
-17,
10,
-28,
-33,
-8,
-20,
6,
-6,
6,
13,
51,
-15,
22,
-11,
-29,
-40,
-8,
-15,
60,
-20,
3,
42,
-17,
-46,
-23,
11,
-18,
-56,
-4,
-98,
-11,
-56,
12,
6,
-19,
13,
19,
14,
-18,
56,
-41,
25,
-8,
-14,
-49,
7,
-37,
7,
-36,
26,
38,
20,
20,
-18,
2,
27,
0,
19,
51,
27,
-39,
-8,
19,
-47,
-46,
40,
42,
-32,
-11,
59,
-9,
6,
9,
-38,
-11,
21,
-12,
0,
28,
20,
-21,
20,
-36,
-10,
-17,
44,
-3,
-68,
-46,
9,
-2,
11,
22,
-24,
-42,
-36,
35,
42,
1,
27,
-11,
5,
-14,
-21,
-58,
-22,
48,
-9,
3,
-34,
25,
16,
-28,
17,
-27,
29,
-26,
66,
39,
-10,
-11,
-26,
15,
-18,
-18,
-11,
-33,
23,
43,
-40,
-11,
8,
-71,
22,
-6,
-12,
-2,
7,
-22,
32,
5,
-15,
15,
-46,
-33,
2,
-34,
-18,
-19,
17,
-30,
6,
32,
-7,
-45,
-14,
-29,
-33,
-13,
9,
-25,
24,
0,
12,
-34,
1,
16,
3,
-1,
-10,
5,
35,
30,
9,
-15,
-13,
-4,
26,
60,
-83,
9,
27,
0,
-17,
29,
43,
13,
-5,
-28,
1,
-100,
3,
-27,
-19,
37,
15,
60,
-4,
-31,
-9,
15,
6,
-14,
-52,
-33,
-10,
-20,
-42,
21,
13,
4,
-29,
19,
-14,
-53,
-3,
7,
27,
-8,
-3,
-23,
-113,
43,
35,
-25,
36,
20,
28,
12,
66,
17,
56,
-60,
-44,
0,
31,
35,
-29,
-3,
17,
-39,
-56,
-68,
16,
-21,
40,
13,
50,
-16,
-6,
16,
19,
21,
-35,
11,
38
] |
Steere, J.
In this action plaintiff seeks to recover the amount of certain paving taxes, previously paid under protest, which were levied upon land belonging to him, located in the then village of Fairview. The levy was made pursuant to a special assessment for paving that portion of Jefferson avenue running through said village.
Jefferson avenue is an old, important, and well-known thoroughfare of the city of Detroit, and continues easterly under the same name into contiguous territory, formerly constituting the township of Grosse Pointe, in which plaintiff’s land lies fronting on both sides of said avenue. Preliminary steps were taken for this paving by the township of Grosse Pointe under authority of a local act of the legislature passed in 1901, and $81,000 was raised by township bonds towards the expense of extending the pavement of Jeiferson avenue from the city limits easterly to an intersection known as the Cadieaux Road; but a change of municipal control over that territory took place before the work was done. In 1903 the village of Fairview was incorporated under the general law for incorporation of villages out of Grosse Pointe township territory, and included plaintiff’s property. Under the requirements of appropriate local legislation the township turned the money it had raised by bond for paving that portion of Jeiferson avenue over to the village. Two years later, in 1905, following various preliminary steps taken by the village authorities, the portion of Jefferson avenue included within its boundaries was paved at an approximate cost of $220,000, provided for by money received from the township as stated, a similar amount to be raised by special assessment, and a bond issue of about $26,000 to covér cost of paving at street intersections and in front of public grounds.
Plaintiff’s total frontage on both sides of the avenue is 1,574.30 feet. His premises consist of 120 acres composed of two adjoining private land claims of a combined width of 787.15 feet, across which the avenue runs. His special assessment, first levied in 1905, was $3,826.08. June 27, 1911, he paid to the county treasurer of Wayne county, to whom under a supplementary assessment the taxes had been returned as delinquent, $4,906.94, filing a written protest stating various alleged grounds of invalidity. In the meantime intervening causes had relieved him from legal necessity of immediate action.
The rapid growth of Detroit and its environments in that direction led to extension of its boundaries and changes in the organization of its suburbs. By an act of the legislature passed in 1907, the village of Fair-view was abolished; a portion of its territory being annexed to Detroit, and the remaining part incorporated as the village of Grosse Pointe Park, plaintiffs premises, except 10 acres remote from Jefferson avenue, coming within the boundaries of the latter.
Under this legislation it was required that “all the books, papers and documents belonging to said village shall be transferred and delivered to the common council of said city or to such offices of said city as they may direct.” Provision was also made for an adjustment and assumption between Detroit and Grosse Pointe Park of remaining rights, duties, and liabilities of Fairview. A suit in chancery to determine the proportions between the two municipalities, the details of which need not be given, resulted in a decree providing, among other things, that the city furnish the village of Grosse Pointe Park a duplicate of the special assessment roll for said paving to collect its percentage of the amount remaining unpaid against property now within the limits of said village, which was found to comprise 36.28 per cent, of the original special assessment district. Thereupon the village authorities took proper action to collect the same, and spread a reassessment of such delinquent taxes upon the general assessment roll of said village for the year 1910. Plaintiff not having paid any of the special tax against his property, it was reassessed at the same amount as before. No interest was added, though nearly five years had intervened since the original assessment was made, and the paving done. This tax, so reassessed, was not paid to the village treasurer, and at the proper time was returned as delinquent to the county treasurer.
In authorizing this improvement, and levying an assessment to defray the cost, the village authorities of Fairview acted under the provisions on that subject found in chapter 87, 1 Comp. Laws. Section 2786 (3 How. Stat. [2d Ed.] § 6005) provides that the expense of paving may be defrayed by special assessment upon the abutting premises in proportion to the number of feet front upon the street. Subchapter 8 relates generally to improvements and assessments, and section 10 (Compiler’s section 2840) declares:
“When any special assessment shall be confirmed by the council, it shall be final and conclusive.”
The record shows a series of meetings, beginning on June 5, 1905, held by- the village council in which the various steps provided by statute appear to have been taken. At a meeting held on July 3, 1905, a special assessment roll for this improvement, prepared by the village assessors, was presented, and a resolution adopted that the assessors meet with the council on July 20th for the purpose of reviewing said assessment roll. Notice of this meeting was given, and on July 20th the council and board of assessors met together for that purpose, and, not concluding their work on that day, adjourned said meeting till July 24th, on which date the council and board of assessors met together, heard objections, and reviewed the roll. During this meeting the council referred the roll back to the board of assessors for certain corrections which were at once made, and the roll forthwith again reported to the council, whereupon, and before adjournment, the council adopted a resolution confirming said special assessment roll, also directing the clerk to indorse thereon a certificate showing the date of said confirmation, and attach thereto a certified copy of the resolution.
While some question is raised by defendants as to plaintiff having made protest against this tax at the proper time, we think the record shows that he did in that particular protect his rights by appearing before both the board of assessors and the council and urging his objection.
It was conceded on the trial that the total length of this paving, measuring both sides of the avenue as assessed, was 19,587.1 feet or 3.7 miles, and that the same amount per front foot was assessed against the abutting property for the entire distance, regardless of the width or character of the pavement in front of any portion of the property. Of this, 12,020 feet easterly from the limits of the city of Detroit was paved 60 feet wide, the 3,040 feet next east being 48 feet wide, and the balance continuing to the east village limits, was but 46 feet wide. Plaintiff’s property all fronted on the narrowest portion, farthest from the city. His assessment for a pavement 46 feet wide was the same amount per front foot as that on property nearest the city for a pavement of the same kind 60 feet wide.
If the assessment as originally made by the village of Fairview in 1905 was valid, the subsequent steps taken by its assessors to collect the unpaid portion of the tax are not open to question. Plaintiff’s indicated grievance was and is, not that the improvement was made, and he was taxed for it, but that the uniform front-foot rule of assessment adopted, when applied to the varying width of the pavement in the assessment district as planned and carried out, was not and could not be, under the facts shown, just and equal between the parties assessed, or according to benefits.
It is urged against this by defendants that the plaintiff’s remedy, if any, was by a bill in chancery; that assessment in proportion to frontage is the method authorized by statute, and has many times been sustained by the courts as a rule of apportionment on the whole more just than any other; that plaintiff is estopped from now objecting through having stood by and allowed the work to be done without taking action, and especially by reason of the village council having confirmed the special assessment roll.
At the conclusion of the testimony on the trial of said cause both parties asked for a directed verdict on the undisputed evidence. The court was of the opinion that the questions raised by plaintiff could not be considered in view of the provisions of said section 2840, and directed a verdict for defendants, quoting the statute, and saying, “This special assessment was confessedly confirmed by the council, and in my judgment it thereupon became final and conclusive.”
At the inception of this inquiry we are confronted with a somewhat novel situation, radically different from any of the cases cited by counsel, in the particular that here the pavement in the same assessment district is of varying width, and a uniform front-foot cost is assessed, while in those cases the pavement is of uniform width, and the assessment presumptively equitable, as each owner is required to pay the same for the same amount of paving in front of each foot of his property. Can such presumption arise here, where the record discloses no reason why the pavement was not made of uniform width, or why the charge was uniform? Or, to go farther back with the inquiry, does the uniform foot-front rule authorized by the statute contemplate or permit its application, in one assessment district, to a plan of improvement with such variations in different parts of the district? If so, it would seem to follow that the authorities can, in their discretion, provide for a cheap and inferior pavement 20 feet wide in front of one man’s property and an expensive pavement of superior quality 60 feet wide in front of that of another, and assess each the same amount per front foot. The improbability of this being done does not affect the principle. It is only a matter of degree.
While the cost of preparing the highway for paving may vary along different parts of the way, the rule contemplates that exact equality cannot be reached in tax cases, and approximate justice is attained when each owner pays for the same kind of finished improvement in front of his property in proportion to frontage. It is said, “The idea that underlies statutes for this purpose is, that the benefit to the abutting lots is generally in proportion to the length of their respective fronts, and that as a rule this principle of apportionment is more just than any other” (Thomas v. Gain, 35 Mich. 155 [24 Am. Rep. 535]) ; and the principle is sought to be strengthened in our statute by a provision that where, owing to the size or shape of a particular lot, the rule works particular injustice, the authorities may assess such lot for such number of feet frontage as in their opinion would be just.
“The whole tenor of the law upon that subject is to maintain an equal foot-front assessment on all property, equitable and proportionate to benefits, with a discretion given the assessing authorities to assess for a less number of feet, but at the regular price per foot in cases where justice and equity demand it.” Cote v. Village of Highland Park, 173 Mich. 201 (139 N. W. 69).
We think the uniform foot-front rule contemplates a uniform system of improvement within the assessment district. If the municipal authorities decide it expedient to build pavements of materially different width or quality in different localities, they could and should provide different assessment rolls, in different assessment districts, therefor. We think this course is contemplated and authorized by section 2786, 1 Comp. Laws.
Confirmation by the council of any special assessment roll which, in its application to proposed improvements, violates the fundamental principles of the statute on which its validity depends is not final and conclusive upon that question.
In connection with the steps taken subsequent to the disorganization of Fairview in 1907, it is urged that the city of Detroit cannot be held liable in this action, because it never received, and is not entitled to, any of this money paid by plaintiff under protest; that the tax was not levied upon land annexed to the city. The steps referred to were taken under Local Act No. 1, p. 56, Extra Session 1907, which provides:
“All suits or actions, either at law or in equity, hereafter commenced upon any debt, obligation or right of action, in favor of or against said village (Fairview) shall be prosecuted by or against the city of Detroit and the village of Grosse Pointe Park as the case may be. Any judgment hereafter rendered upon any such debt or obligation or in any such suit shall be paid by said city of Detroit and said village of Grosse Pointe Park in the above proportion and may be enforced as judgments against municipalities are usually enforced and as provided by law for the enforcement of judgments against the city of Detroit and villages.”
Under said act the city of Detroit and village of Grosse Pointe Park acquired together all the property and rights of the village of Fairview, and became responsible for its obligations. With the aid of a court of chancery, they adjusted such matters between themselves; but this did not necessarily relieve either as to third parties. This paving was done by Fair-view as one improvement in a single district now partly belonging to Detroit and partly to Grosse Pointe Park. If a wrong was done, it was inflicted when the assessment was made and confirmed, and affected one way or the other all property then within the assessment district. Grosse Pointe Park, as to third parties at least, in putting the unpaid tax on its tax roll, was acting for both itself and Detroit, and the county of Wayne collected it for both. Plaintiff is not concerned with the accounting and division of interests between these two. Under the special act referred to we think that, if the village of Fairview would have been liable, both defendants to this action are liable; the judgment when obtained, however, to be paid or enforced in the • proportion and manner specified in the statute.
Plaintiff’s position in this litigation is consistent with his attitude and protests to the village authorities when the assessment was levied, and the pavement laid. He was agreeable to the improvement, and did not desire to prevent it, but protested that the assessment was inequitable and unjust, not made on a proper basis under the statute, and that he should not be compelled to pay for 60 feet, unless that width was laid in front of his premises. On the trial in the lower court his counsel, though insisting that the tax is invalid in its entirety, and asking a judgment to that effect, if an equitable reduction could not be legally made, said, “Mr. Corby would prefer to adjust all the equities right here;” and on the oral argument in this court took the same position, saying, “We went to the council and asked for 60 feet, and they refused us, * * * our whole objection is their charging us for what we did not get,” and suggested that this court could equitably and finally dispose of the matter along lines indicated in Fletcher Paper Co. v. City of Alpena, 160 Mich. 462 (125 N. W. 405).
Defendants’ counsel say to this, “Plaintiff having placed his case on equitable grounds, equitable rules should be applied,” citing Tuller v. City of Detroit, 126 Mich. 605 (85 N. W. 1080), and cases cited there; Nowlen v. City of Benton Harbor, 134 Mich. 401 (96 N. W. 450); Farr v. City of Detroit, 136 Mich. 200 (99 N. W. 19); and Stewart v. City of Detroit, 137 Mich. 381 (100 N. W. 613).
These cases and many others which might be cited apply the equitable doctrine of estoppel to persons who had knowledge that improvements which enhanced the value of their property were being made, stood by, and took no steps to prevent them proceed ing, but later, after having received the benefit of the same, brought suit to defeat the tax on technical grounds, and thus escape paying their just share of the cost of such improvements.
In this case plaintiff, not objecting to the improvement, and standing willing to pay his just share according to a proper assessment, timely interposed his objection to the unjust excess imposed upon him by the method of assessment pursued. As applied to that portion of the tax which he ought of right to pay, those authorities are well in point.
In this equitable action of assumpsit it is permissible, ■ under Fletcher Paper Co. v. City of Alpena, supra, and cases there cited, to conclude this litigation by a judgment in plaintiff’s favor for the amount his taxes were unjustly increased by reason of the wrongful assessment, together with the penalties, interest, and fees relating thereto and collected, provided the record .furnishes sufficient data therefor; and we are asked to do so.
Taking the full amount assessed and the total number of square yards as a basis, the overcharge of which plaintiff complains is $808.67. Deducting this from $3,826.08, the amount actually assessed against him, his just tax, due July 24, 1905, would be $3,017.41. He did not pay or tender this until June 27, 1911. We cannot agree with his contention that no interest, penalties, or fees should be added to this amount. It is true that delays and a somewhat chaotic condition of municipal affairs in that territory resulted for a time from the disorganization of Fairview village and subsequent readjustments; but the facts remain that the improvement in front of plaintiff’s property had been made, and he had the benefit of it during all the intervening time, and paid nothing. To stand on equitable grounds as to his just proportion of the tax, he could and should, when it was due, have paid or tendered that amount to the village treasurer. We see no equitable reason why he should be relieved from interest and fees as to that which he of right should have paid when due.
The record shows that on the trial in the court below all parties requested the court to direct a verdict, claiming no questions of fact for a jury were involved ; the only issue being upon propositions of law.
The case will be remanded to the trial court, with instructions to compute the tax against plaintiff as above indicated, and enter a judgment in his favor for the balance. Plaintiff will recover costs of both courts.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
-21,
97,
7,
-25,
-65,
15,
25,
-17,
-28,
7,
-53,
-4,
32,
51,
-18,
25,
-41,
-17,
-9,
1,
-45,
-34,
36,
-57,
0,
33,
1,
-48,
-25,
-8,
-30,
-43,
-35,
52,
-21,
-1,
0,
-23,
38,
-5,
18,
-13,
-59,
-23,
-1,
26,
4,
-42,
6,
-3,
-47,
47,
37,
0,
6,
3,
-18,
-32,
-43,
-23,
-17,
4,
7,
29,
0,
20,
-2,
14,
25,
-21,
-49,
-3,
6,
-29,
54,
-12,
-14,
-30,
-15,
-22,
-49,
-24,
28,
45,
-25,
8,
-33,
-15,
-29,
30,
-22,
-27,
26,
34,
25,
17,
8,
-18,
6,
-7,
-3,
24,
3,
25,
11,
-21,
1,
-21,
0,
-10,
2,
-21,
59,
16,
18,
-12,
23,
-33,
58,
-40,
2,
-42,
-10,
6,
-19,
27,
-11,
4,
-46,
-8,
30,
-39,
-9,
4,
-15,
16,
-17,
-24,
-2,
48,
17,
15,
3,
-10,
2,
22,
-34,
11,
16,
-28,
-31,
30,
39,
29,
29,
28,
47,
12,
49,
22,
-7,
-20,
27,
-5,
-68,
13,
-25,
52,
-20,
64,
80,
-21,
-14,
-92,
12,
23,
-16,
48,
5,
1,
17,
-12,
7,
-30,
-28,
-72,
36,
-13,
-26,
-25,
37,
1,
-35,
-49,
3,
54,
21,
-17,
-63,
-1,
7,
-37,
1,
-28,
-15,
-8,
32,
0,
-21,
37,
-6,
-1,
-7,
24,
15,
22,
61,
-12,
41,
25,
41,
24,
23,
21,
-1,
-17,
-23,
-3,
18,
-30,
-10,
6,
-17,
-12,
-19,
-12,
0,
79,
-45,
27,
-41,
39,
-5,
-29,
-40,
17,
-55,
-20,
18,
28,
-10,
0,
-73,
-37,
-33,
-38,
18,
-22,
54,
22,
14,
82,
28,
-8,
-9,
31,
-1,
51,
-13,
6,
-31,
38,
-22,
-10,
-46,
-34,
31,
-21,
0,
63,
-20,
-96,
-8,
11,
24,
18,
-24,
3,
7,
-13,
-40,
-6,
38,
-3,
-10,
-1,
0,
-7,
17,
33,
-30,
25,
-18,
-15,
27,
-25,
-3,
-23,
74,
22,
40,
26,
-2,
33,
6,
2,
13,
20,
36,
13,
7,
21,
-21,
-4,
-45,
-8,
9,
-14,
-64,
-33,
33,
1,
33,
-12,
-3,
-27,
46,
32,
17,
-35,
29,
64,
10,
-16,
28,
-3,
-66,
-3,
44,
-7,
-21,
-21,
6,
32,
14,
11,
45,
-15,
-12,
35,
53,
30,
27,
-26,
-16,
-3,
-25,
2,
7,
4,
11,
6,
-30,
44,
-20,
-24,
10,
-22,
-55,
38,
14,
-54,
12,
20,
39,
-29,
32,
4,
-5,
-9,
-32,
19,
37,
38,
-6,
1,
-1,
-30,
-32,
-47,
-20,
60,
10,
39,
-43,
-7,
23,
3,
-2,
25,
0,
-49,
38,
-10,
17,
-5,
10,
0,
-25,
4,
51,
55,
-13,
-25,
44,
-10,
15,
1,
37,
13,
-31,
21,
0,
-41,
55,
16,
-35,
-62,
-58,
-42,
-26,
35,
49,
2,
-12,
-52,
-62,
31,
-3,
10,
-10,
60,
5,
54,
-23,
-43,
17,
-21,
62,
-39,
-13,
-39,
-9,
-14,
-50,
15,
-31,
43,
-19,
51,
-30,
61,
16,
-82,
8,
-24,
7,
-22,
-19,
9,
-10,
-55,
0,
18,
-37,
5,
41,
16,
-30,
-5,
45,
-11,
-24,
47,
63,
-8,
-20,
33,
37,
-23,
0,
-4,
-14,
-16,
2,
-33,
39,
-20,
-24,
7,
-10,
-25,
8,
42,
-7,
68,
-7,
-33,
36,
34,
-27,
37,
-1,
9,
18,
60,
35,
23,
9,
18,
-9,
-10,
3,
19,
-50,
-44,
0,
53,
-48,
-6,
-8,
0,
45,
2,
7,
5,
-26,
-4,
50,
7,
-6,
9,
-10,
2,
-12,
-46,
-15,
-37,
-10,
23,
-35,
9,
0,
-20,
12,
-3,
47,
-25,
-3,
0,
-53,
1,
70,
-44,
-27,
10,
-17,
-40,
-27,
-29,
7,
-3,
-25,
-34,
49,
57,
30,
-12,
4,
55,
-24,
-11,
13,
-4,
-17,
31,
-22,
46,
38,
-23,
20,
-10,
-55,
-23,
-39,
-28,
-39,
-23,
36,
-13,
43,
13,
-13,
74,
14,
67,
14,
-16,
12,
-11,
10,
11,
-7,
5,
11,
-4,
19,
-20,
-75,
53,
-1,
17,
9,
21,
-7,
-34,
40,
30,
17,
-40,
1,
-5,
-28,
-34,
-33,
4,
-72,
9,
-26,
13,
-61,
25,
38,
-18,
-3,
0,
11,
-23,
0,
-7,
30,
-9,
15,
31,
-6,
-24,
19,
-31,
32,
-34,
-8,
-15,
-16,
-2,
-26,
-48,
-44,
48,
13,
42,
-3,
8,
-51,
50,
-13,
-40,
-12,
41,
14,
-1,
-29,
31,
-19,
-6,
-24,
9,
3,
-21,
4,
25,
-3,
54,
-10,
43,
-35,
4,
5,
42,
0,
-48,
46,
-8,
29,
35,
-8,
49,
42,
12,
-5,
6,
-10,
-40,
-36,
-43,
19,
-43,
-10,
-29,
-52,
45,
-14,
29,
4,
0,
-11,
-2,
7,
-13,
-27,
-22,
42,
-47,
-19,
4,
-16,
-21,
40,
44,
-19,
71,
-25,
29,
0,
21,
19,
-27,
6,
53,
-22,
49,
-14,
-15,
59,
48,
-12,
-16,
29,
-2,
22,
18,
-64,
62,
-48,
3,
28,
25,
-73,
0,
2,
-29,
-37,
37,
13,
-3,
-42,
2,
-1,
9,
16,
4,
-20,
-31,
2,
-11,
-16,
38,
45,
-14,
62,
-36,
-8,
38,
-11,
0,
9,
0,
-59,
-11,
-25,
32,
-10,
-14,
-22,
-15,
-12,
8,
-30,
56,
17,
0,
16,
24,
1,
16,
2,
14,
-1,
11,
8,
22,
22,
3,
-5,
0,
4,
-21,
16,
18,
-14,
-4,
-7,
-30,
-43,
15,
-21,
28,
-63,
24,
-9,
-10,
-60,
27,
0,
-1,
6,
46,
15,
-10,
-23,
-18,
67,
0,
-31,
-30,
-44,
28,
9,
-58,
22,
-13,
19,
66,
-45,
-7,
9,
16,
4,
9,
8,
-55,
-34,
-35,
38,
-8,
-29,
0,
1,
2,
13,
34,
7,
7,
-33,
-38,
-5,
-6,
-31,
4,
12,
-29,
20,
-10,
10,
-56,
-53,
-34,
12,
31,
-13,
17,
-87,
-44,
-8,
-14,
-56,
-23,
-47,
-5,
-3,
23,
57,
28,
-16,
-12,
-61,
10,
-6,
1,
-14,
39,
-16,
4,
-9,
0,
-29,
-2,
24,
-77,
-13,
-15,
20,
-46,
-59,
-16,
3,
8,
7,
17,
8,
20,
23,
-40,
-2,
67,
24,
-24,
-29,
-35,
6,
25,
58,
-3,
40,
-56,
-23,
-4,
16,
-16,
51,
4,
-49,
-39,
-15,
-28,
6,
-7,
-19,
-18,
6,
-33,
-16,
6,
2,
16,
-43,
-7,
58,
0,
-29,
46,
-10,
-15,
-3,
-19,
-17,
-5,
5,
-6,
73,
-35,
-4,
11,
17,
0,
52,
8,
81,
-12,
-13,
5,
-20,
34,
16,
16,
20,
15,
23,
24,
-44,
-33,
-5,
-45,
-45,
41
] |
Moore, J.
This case was commenced by declaration, the material parts of which are as follows:
“Frank J. Veriden, plaintiff in this suit, by James H. Pound, his attorney, comes into this court and complains of Alexander I. McLeod, Abner Larned, George Osius, Julius Hagar, William E. Roney, and Louis J. Girardin, defendants herein, in an action of trespass on the case, for that whereas, the defendants and this plaintiff are all residents of the village of Grosse Pointe Shores, * * * and are all citizens thereof, and the defendants are its village council, also were the inspectors of election at the village election, on the 8th day of April, 1912. * * * And whereas, plaintiff is a dealer in a legal business authorized to do business in the county of Wayne, * * * the defendants did, plaintiff avers, enter into a certain illegal, corrupt, and unlawful act, and series of acts and conspiracies, not only to deprive this plaintiff from carrying on his legal business, but plaintiff avers that he being in fact legally and lawfully nominated as a village trustee of said village of Grosse Pointe Shores, and striving for the said office, and the said defendants, and each of them, not wanting a saloon-keeper upon the board of village trustees, resolved to wrongfully keep him (plaintiff) from out thereof. * * * And plaintiff avers that defendants successfully did so keep him (plaintiff) out of said office of village trustee by the following unlawful, illegal, and wrongful acts: * * * They (the defendants) * * * wrongfully violated their oaths, and tricked plaintiff out of a recount, and out of the office of village trustee, to which he avers that he was legally elected, to wit, the village trustee of the village of Grosse Pointe Shores, in the manner following, amongst others: They did not honestly count the ballots cast at said election, except the first time, when plaintiff was elected by a plurality of two votes, but purposely counted them dishonestly, and pulled and hauled and marked them at different times during the day, and counted plaintiff out of his honestly elected office of village trustee. By also deliberately not counting for this, plaintiff ballots which were cast for him, and counting against him ballots that had been cast in his (plaintiff’s) favor by which wicked, cruel, wanton, and crafty acts upon defendants’ part, and particularly the action of defendant Alexander I. McLeod in pushing plaintiff’s employee’s ballot into the ballot box with a sharp-pointed lead pencil, point downward, plaintiff was deprived of several ballots'by claimed distinguishing marks. Also in permitting the defendant William E. Roney, although disqualified to act upon said board of election inspectors, to act as their clerk. By all of which means this plaintiff avers that the defendants, and each of them, wholly deprived plaintiff of the office of village trustee of the village of Grosse Pointe Shores for a period of two years from a certain date, to wit, April 8, 1912. And plaintiff avers that, the said inspectors having canvassed the said vote at the spring election of the village of Grosse Pointe Shores, it then and there became and was their legal duty, as election inspectors, and officers, to seal the said election boxes in the manner and form prescribed by law, and to lock them and care for them in a certain manner prescribed by the statutes of the State of Michigan, which course of procedure prescribed by law plaintiff avers that the defendants, to conceal their crime, they (the defendants) conspired one with the other not to do. And in pursuance of such criminal agreement did not in fact do. And plaintiff avers that he, in due form of law, demanded a recount and paid his money therefor, to wit, $10, and that, after divers days had been set for a hearing, plaintiff forced a hearing, when, lo and behold, the defendants, to whom the matter of a recount had been referred by the village council of Grosse Pointe Shores, as well as by the statutes of his State, these men (the defendants), who had violated the law, and who were criminals, refused to open the boxes and recount the ballots for the reason that they themselves, and each of them, had with criminal intent themselves disobeyed the law, and used that as a fulcrum to deny to this plaintiff a recount, for the reason that they (the defendants) had not properly locked and sealed the election box or had it cared for thereafter. That this plaintiff avers it to be true that the integrity of this country depends upon an honest count, of an honestly cast ballot. That this homely maxim has become honored in its breach rather than in its observance in Michigan. And that, to wit, on a certain day, namely, April 10, 1912, defendants, and each of them, did advisedly nullify an election, disobey a statute of this State, and commit treason to this State, by robbing the electorate of the village of Grosse Point Shores of the fruitage of a regular village election held in the village of Grosse Pointe Shores, on a certain day, to wit, April 8, 1912; they (the defendants), and each of them, thereby depriving this plaintiff of the office of village trustee for the ensuing two years from a certain date, to wit, April 8, 1912, and of all the honors, profits, and emoluments arising by or therefrom, by denying to him (plaintiff) an honest count of said election ballots in the first instance, and a recount and an honest certification of the ballots cast at said election.
“And plaintiff avers that the defendants to the plaintiff then and there other wrongs and injuries did, to plaintiff’s damage of $5,000, and therefore he brings this his suit.”
The defendants pleaded the general issue.
When the case came on to be heard, counsel for defendant objected to any testimony being received for several reasons, among them:
“The more specific reasons that we base our objection to receiving testimony in this case are, as a matter of law, the plaintiff in this case was not shorn of his office, nor was he shorn of his * * * remedy by a count, or by recount having been denied. That this is a collateral proceeding, and an election cannot be inquired into in a collateral proceeding, whereas it could have been inquired into in a proper proceeding at that time, namely, quo warranto proceedings.”
The objection was overruled, and nine witnesses were sworn on the part of the plaintiff. The petition of plaintiff for a recount was introduced in evidence. The record of the election proceedings was also produced, and Mr. Pound read into the record, “Moved that two doubtful ballots be rejected.” The record book was received in evidence, but is not made a part of the bill of exceptions. After the plaintiff rested, the court directed a verdict in favor of defendants, because plaintiff had failed to make a case. The suit is brought here by writ of error.
It is so difficult to state clearly the contention of counsel for appellant that it may be well to quote from his briefs.
The following appears in his original brief:
“Plaintiff is an American citizen, a native of the township of Grosse Pointe, in the county of Wayne, and a resident of the village of Grosse Pointe Shores. He was regularly nominated, and was a candidate for the office of trustee of the village of Grosse Pointe Shores, located in the counties of Wayne and Macomb, facing upon Lake St. Clair, at the village of St. Clair Heights charter election, in the year 1912. The defendants were the board of election inspectors and its clerks. The election inspectors being Alex. I. McLeod, Abner E. Larned, George Osius, and Julius Hagar. The clerks being Louis J. Girardin and William E. Roney. The last named, who was instructor as to ballots, assistant clerk, and general assistant at all points of the election, who succeeded in getting himself counted into office, when he was fairly beaten in spite of all his efforts by a majority of three in the plaintiff’s favor. To do this, defendant McLeod put a distinguishing mark upon the ballot of Louis Devroy. By refusing to count a ballot for Mr. Veriden, which was plainly his, and by some other wrongful actions, which are not made clear, but Veriden’s majority was not shown to have been overcome, except by an unjustifiable announcement. Plaintiff legally and properly demands a recount, which the law expressly gives him, and it is seemingly acceded to, when lo, these wrongdoers refuse to grant it, because they themselves had disobeyed the law in not sealing the locked box. Not having any sealing wax, I suppose. * * * The plaintiff has a case for the jury, not only against all the defendants, but against Alex. I. McLeod, for two different torts committed by himself upon this record, without remonstrance from the other - codefendants. * * * There is abundant circumstantial evidence in this case to warrant the submission to the jury of the question whether defendants did not conspire together to wrongfully, illegally, and criminally deprive plaintiff of the office to which he was duly elected by his fellow villagers, and to rob him (plaintiff) of his office. The defendants being for this purpose a band of election manipulators in the strongest sense of the term. I therefore, as a debt due to the laws of the State of Michigan, insist upon the reversal of this case, with costs in plaintiff’s favor, that the law may rule, which, for sonie inexplicable reason, it is contended, it has not done so far in this case.”
The following appears in the supplemental brief:
“Had there been a recount, I concede that for all I know there might have been no further trouble. There certainly would not, had Mr. Veriden not appeared to have a clear majority of the ballots, or had it been explained to him how his 47 votes legally shrunk to less than 44. Mr. Veriden wants no election he is not honestly entitled to. He is no ballot box manipulator, nor will he countenance any irregular action by others in his behalf. All he desired was a daylight count. He was entitled to it. Did he get it? No. And that, too, by reason of the confessed action of the defendants in not sealing the ballot box. And the worst part of the matter is that they (the defendants) had the physical power to open the box. It was in their possession. Plaintiff asking his rights under the statute. They or one of their number had the key. And the plaintiff was still insisting on the recount. He would not object, and could not be heard to complain, if the recount had been had, being done at his own demand and solicitation. But defendants would not give it. Why? Because they themselves had not done their ministerial duty in sealing the ballot box is the sole reason given for the refusal, and that objection is waived by the party most in interest. The one who has been dispossessed of his office, and upon whose objection? Why that of the person who promoted this violation of legal duty. The man who has gotten the office. What a shame! And then to say that we have no remedy for such an action. It is a reflection on the law itself, I submit. I deny that I have changed my position, which I have occupied in this case from the first. I do maintain that, plaintiff having attempted to follow the remedy provided for him by the law, and having been prevented from obtaining the relief the law gave him by reason of the wrongful acts of omission in the not sealing of the ballot box by the inspectors of election, and of commission by marking and not counting the ballots, and the whole board by not counting those ballots which were cast for plaintiff, plaintiff has a cause of action against them for such damages as a jury may deem the honor of the office to be worth, as well as the inconvenience put upon the plaintiff by defendants’ actions, together with at least nominal damages for the wrong itself. Counsel cannot, or perhaps will not, understand me. I ask no court to put the plaintiff into the office of village trustee of Grosse Pointe Shores which he might be ousted from, by a hostile board of trustees, in the village of Grosse Pointe Shores at any time immediately after the roll call. Plaintiff was, if elected, entitled to the certificate of election, to show that fact, viz., that he had been elected to this responsible office. The law of this State guaranteed to him a recount, if he made a proper demand and deposited his money, which he concededly did. This he did not get, through defendants’ wrongful actions. And I do claim that I have a right in this case, as the counsel for the plaintiff, to show the true facts as I might in any other action of tort. That I may show all the defendants did, or any of them did, to plaintiff’s injury, and to recover such damages therefor as may be deemed by them to be just, under the evidence, offered against the defendants, or any of them rendering them liable in this case. * * * No person is trying to hold election inspectors liable for every irregularity, but when they by their act deny a candidate for office a right the legislature and governor of our State has given them, making it into a law, then there certainly should be a recovery. And if the inspectors were like the one who was sworn, Mr. Harger, the less the State have of such men the better.”
It is also claimed the court improperly excluded testimony.
The defendants again urge that plaintiff is not pursuing his proper remedy, citing a great many authorities to be found in their brief. They also urge that the trial judge made a right disposition of the case.
We think it, upon this record, unnecessary to consider whether plaintiff is pursuing the proper remedy. A perusal of the record shows a willingness upon the part of the trial court to try the case upon the merits and to let in all the testimony except that which he thought was hearsay. It is possible that it might have been well to permit an answer to several questions, of which the following is an example:
“Q. Did you hear the announcement made by the clerk?
“A. I heard it. But I could not say how.
“Q. You heard an announcement?
“A. Yes, sir.
“Q. Do you recollect from the announcement that you heard read by the clerk. Do you know whether —do you know from that who the three were that were elected? (Objected to.)
“The Court: I will exclude it.
“Mr. Pound: Note an exception.
“Mr. Pound: I am only asking for what the clerk read off.
“The Court: That will be excluded.”
Evidently the court thought, if the witness did not know how he heard the announcement which the clerk made, that it would be hearsay, and that he also thought that, if the clerk read from something, the paper from which he read would be the best evidence of what he read, because the court repeatedly ruled that what was done by the board might be shown.
Plaintiff was permitted to show, and did show, that as the result of the first count of the ballots it was announced that Mr. Veriden received 47 votes and Mr. Roney 44; that Mr. Roney requested that the votes be counted again; and that they were counted at least once more, when it was announced that Mr. Roney received more votes, the number being stated, than Mr. Veriden and was declared elected.
Giving the testimony the most favorable construction possible for the plaintiff, it shows that, when one of the ballots was received and put in the ballot box, Mr. McLeod pushed it in with the sharpened end of a lead pencil; that, when the votes were counted, what we have above recited occurred; and one of the witnesses, who testified he was 10 or 15 feet away when it occurred, says the ballot which was pushed into the box with the pencil was rejected. The record also shows that plaintiff demanded a recount in due form and that a day was set for the hearing; that the plaintiff, Mr. Roney, and Mr. Jewett each appeared before the board with their respective attorneys; that Mr. McLeod moved to proceed with the recount, when objection was made by the attorneys for Mr. Roney and Mr. Jewett to a recount because the ballot boxes had not been sealed as the law required them to be sealed. The record also shows that plaintiff’s counsel and the counsel for Mr. Roney and Mr. Jewett were heard at length, and that, after hearing them, the board decided not to make the recount.
We have already quoted at length from the declaration, and, as we understand it, the defendants are charged therein with a conspiracy by means of illegally rejecting ballots, and by illegally refusing a re- ' count, to deprive plaintiff of an office to which he was legally elected, which conspiracy it is averred was carried out. This is a very grave charge and requires proof of a substantial nature to substantiate it.
There are many attempts to define the word “conspiracy” in 2 Words and Phrases. We quote one of them:
“The most satisfactory definition of ‘conspiracy’ to be found in any of the adjudicated cases is perhaps that given by Shaw, J., in Commonwealth v. Hunt, 45 Mass. (4 Mete.) 111 (38 Am. Dec. 346), in which he says:
“ ‘Without attempting to review and reconcile all the cases, we are of the opinion that as a general description, though perhaps not a precise or accurate definition, a conspiracy must he a combination of two or more persons by some concerted action to accomplish some criminal or unlawful purpose, or to accomplish some purpose not in itself criminal, by criminal or unlawful means. We use the terms “criminal” or “unlawful” because it is manifest that many acts are unlawful which are not punishable by indictment or other public prosecution, and yet there is no doubt, we think, that a combination by numbers to do them would be an unlawful conspiracy, and punishable by indictment.’
“He further adds:
“ ‘But yet it is clear that it is not every combination to do unlawful acts to the prejudice of another which is punishable as conspiracy.’ Hart v. Hicks, 129 Mo. 99, 105, 318 (31 S. W. 351, 352).”
“Conspiracies are of two kinds: (1) Against the public, or such as endanger the public health, violate public morals, insult public justice, destroy the public peace, or affect public trade; (2) against individuals, such as have a tendency to injure them, in their persons, reputation, or property. Clinton v. Estes, 20 Ark. 216, 224.”
“The essentials of a conspiracy are: (1) A combining of two or more minds; (2) the purpose of the combining. Commonwealth v. Grinstead, 108 Ky. 59 (55 S. W. 720, 725 [57 S. W. 471]).”
It is also said at page 1458, Id.:
“In order to establish a conspiracy, evidence must be produced from which a jury may reasonably infer the joint assent of the minds of two or more persons to the prosecution of the unlawful enterprise. Drake v. Stewart (U. S.), 76 Fed. 140, 142, 22 C. C. A. 104.”
Giving every reasonable inference to what was shown or what was proposed to be shown by plaintiff, we think it falls far short of showing concerted action on the part of any of the defendants to do plaintiff any wrong.
Judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
1,
16,
25,
-39,
-33,
48,
16,
-19,
-5,
19,
-4,
-6,
-16,
38,
-14,
-40,
-38,
-36,
-27,
-32,
11,
-41,
0,
-27,
-17,
-12,
10,
18,
-52,
-10,
5,
11,
-17,
-18,
27,
-25,
17,
-28,
-26,
-2,
-49,
3,
6,
1,
-31,
10,
2,
8,
4,
-17,
2,
8,
34,
44,
-11,
-1,
-11,
6,
10,
-16,
-4,
-29,
1,
0,
7,
-43,
5,
21,
1,
-35,
4,
-46,
2,
-65,
11,
8,
-28,
12,
-24,
21,
2,
0,
24,
-7,
-57,
23,
-44,
-12,
-13,
-4,
6,
26,
-55,
39,
48,
-13,
17,
-22,
42,
-15,
-41,
31,
-92,
17,
-1,
-25,
-5,
-17,
-34,
16,
-14,
-5,
65,
13,
0,
-10,
10,
-32,
51,
-26,
2,
-63,
7,
5,
17,
24,
-2,
-17,
-41,
36,
16,
21,
57,
-21,
-25,
23,
-32,
3,
45,
-19,
44,
23,
16,
-18,
-10,
34,
-40,
41,
17,
8,
-47,
-29,
5,
39,
-6,
19,
19,
-23,
31,
27,
-4,
-24,
16,
-53,
-63,
-6,
13,
-20,
-11,
28,
14,
-7,
8,
-51,
-11,
-72,
-26,
21,
-32,
20,
43,
11,
-30,
-8,
-30,
-49,
10,
12,
-52,
29,
36,
-60,
-20,
-43,
18,
28,
-1,
4,
-31,
25,
42,
-33,
-11,
-43,
-16,
-13,
48,
28,
-16,
39,
2,
-16,
33,
-15,
12,
12,
-10,
-3,
37,
14,
-45,
18,
-2,
59,
-25,
-17,
17,
0,
-20,
13,
11,
46,
-55,
73,
-20,
-58,
0,
16,
-10,
34,
-85,
-8,
31,
12,
22,
-21,
-57,
-37,
-55,
91,
-31,
72,
29,
-25,
-50,
0,
9,
-26,
22,
34,
22,
-10,
-52,
-9,
-13,
-15,
62,
38,
-46,
1,
-69,
8,
0,
-8,
-1,
1,
0,
22,
-5,
34,
2,
-39,
18,
7,
-3,
-5,
35,
-7,
20,
-14,
-34,
59,
3,
30,
30,
18,
62,
-55,
32,
0,
-62,
26,
-19,
-39,
30,
-4,
-1,
-29,
34,
25,
46,
7,
-25,
35,
16,
25,
11,
-16,
11,
-7,
6,
24,
-62,
-60,
-8,
11,
4,
-8,
-47,
-34,
-13,
38,
14,
-71,
-35,
6,
34,
-6,
-11,
-42,
24,
28,
-2,
1,
2,
-10,
-27,
-7,
-1,
-33,
-13,
-32,
35,
18,
-4,
-18,
6,
8,
22,
-1,
54,
0,
-13,
11,
40,
-2,
-30,
19,
5,
54,
-4,
-1,
29,
17,
16,
-46,
-1,
28,
-17,
75,
-30,
-1,
30,
33,
16,
-5,
18,
-18,
-31,
-3,
-86,
25,
-8,
27,
9,
-29,
-17,
-55,
-23,
-47,
-12,
43,
38,
14,
-79,
-8,
-44,
-16,
35,
27,
15,
-18,
32,
-56,
15,
-55,
20,
-4,
70,
-7,
46,
50,
8,
-52,
59,
19,
52,
41,
27,
0,
-9,
31,
1,
-46,
38,
-58,
-26,
-16,
2,
-26,
-17,
28,
25,
-45,
21,
-65,
-9,
45,
33,
35,
6,
33,
35,
21,
-31,
-9,
5,
-43,
58,
-22,
-20,
-14,
-39,
-9,
-25,
70,
-25,
-8,
-34,
49,
-39,
41,
-2,
-25,
-37,
-8,
39,
23,
34,
-2,
0,
-7,
20,
-40,
-35,
-32,
51,
4,
-46,
-11,
47,
33,
-4,
35,
28,
43,
11,
50,
-8,
44,
-19,
35,
6,
-6,
-11,
12,
1,
-23,
2,
27,
2,
-19,
-12,
73,
9,
28,
28,
-14,
10,
15,
21,
4,
-10,
-4,
-19,
111,
39,
23,
-9,
-24,
-16,
-8,
-35,
-7,
1,
-11,
7,
-20,
-13,
2,
46,
22,
112,
8,
28,
8,
-8,
6,
93,
-23,
55,
14,
-37,
-28,
-31,
-11,
-14,
-39,
54,
-29,
-17,
-65,
30,
-22,
45,
-34,
41,
-66,
26,
-42,
-57,
11,
-6,
-16,
-11,
58,
-25,
-11,
22,
12,
15,
-3,
-15,
-4,
48,
28,
5,
-1,
-7,
-6,
-24,
-43,
-69,
3,
53,
5,
-67,
87,
65,
-17,
15,
-4,
-52,
-21,
32,
-45,
-53,
9,
2,
26,
7,
-17,
-40,
18,
94,
36,
13,
-33,
-5,
3,
40,
-43,
-11,
1,
54,
-36,
0,
-26,
-57,
10,
-21,
8,
-35,
23,
18,
-44,
-12,
48,
14,
19,
8,
12,
-56,
-34,
17,
28,
-52,
20,
6,
-6,
-26,
-2,
21,
22,
-7,
-21,
23,
11,
13,
-7,
14,
0,
-32,
12,
-16,
3,
13,
-8,
-26,
-23,
30,
-56,
12,
-30,
-19,
-70,
8,
12,
-26,
41,
59,
2,
-42,
0,
1,
-30,
-7,
38,
-11,
33,
-27,
43,
-9,
-31,
-5,
14,
-3,
-16,
44,
-17,
-36,
-19,
-16,
34,
-28,
3,
47,
-12,
-25,
-46,
-12,
-38,
10,
40,
0,
65,
-46,
0,
-20,
64,
-37,
-74,
36,
9,
9,
4,
-17,
22,
-38,
-26,
-1,
-1,
-8,
14,
10,
14,
11,
-41,
-64,
24,
11,
-43,
-25,
-7,
16,
12,
33,
14,
0,
6,
-40,
27,
17,
28,
89,
19,
5,
11,
-23,
16,
16,
18,
40,
-18,
2,
2,
76,
0,
2,
26,
-46,
-2,
-48,
-29,
20,
15,
-4,
-1,
29,
11,
-22,
7,
6,
-20,
-17,
-5,
9,
-3,
-4,
-10,
-10,
-57,
-29,
9,
-13,
38,
56,
-22,
16,
-3,
-9,
2,
-5,
17,
-18,
0,
-15,
81,
1,
3,
27,
-36,
5,
-69,
21,
-6,
14,
34,
1,
5,
9,
4,
21,
-32,
1,
-33,
7,
4,
-22,
-9,
13,
30,
-12,
44,
33,
-26,
0,
-1,
-78,
45,
9,
3,
3,
25,
-3,
-20,
6,
14,
-30,
-18,
14,
4,
-21,
-26,
-33,
-2,
44,
-31,
-15,
4,
37,
-47,
-41,
-24,
-20,
14,
-40,
-74,
-4,
-16,
1,
14,
-38,
11,
11,
-21,
2,
3,
-19,
-51,
-66,
-3,
21,
-5,
21,
33,
57,
-20,
18,
30,
-9,
2,
13,
29,
-14,
6,
14,
-32,
-41,
-7,
-57,
3,
49,
-39,
-68,
-82,
13,
17,
0,
20,
-22,
-14,
-28,
-39,
-48,
4,
-54,
12,
29,
29,
35,
13,
34,
16,
-28,
8,
26,
26,
29,
56,
-24,
-23,
5,
0,
-14,
52,
32,
-21,
-1,
40,
-11,
-51,
-40,
-40,
-31,
3,
37,
4,
-35,
57,
-19,
-28,
-25,
26,
-43,
-3,
-42,
-65,
1,
23,
36,
-5,
39,
38,
7,
13,
-21,
-21,
27,
-25,
-8,
-4,
32,
20,
-1,
-27,
-1,
-12,
30,
22,
-2,
13,
-17,
86,
15,
6,
12,
-35,
-28,
-7,
-2,
20,
7,
-6,
-24,
-45,
-70,
-25,
-59,
-18,
-7,
28,
45,
-10,
-5,
-23,
55,
17,
13,
26,
-1,
28,
47,
31,
-22,
15,
16,
-10,
-59,
-33,
-30,
-6,
-18,
52
] |
Steere, J.
This is an action in replevin, involving two teams of horses and their harnesses, brought here for review from the circuit court of Marquette county, where, upon trial by jury, judgment was rendered on a directed verdict for defendant.
Before, and at the time, the parties to this suit became interested in the property in question it belonged to Reichel Bros., a lumbering firm of Marquette county, whose title defendant subsequently acquired on execution sale. Plaintiff’s claim is based upon a chattel mortgage given him by Reichel Bros.
On September 12, 1911, the corporation of A. G. Wells Company commenced an action against Reichel Bros, upon a note given in March, 1911, maturing in July, 1911, and at the same time instituted garnishment proceedings against the Consolidated Fuel & Lumber Company, as garnishees of Reichel Bros. Said fuel and lumber company disclosed that the horses and harnesses involved were held by it under a contract with the principal defendants, whereby the garnishee defendant had use and possession thereof until satisfaction of a debt due it from the Reichel Bros.; which contract provided that Reichel Bros, were to be credited with the sum of $35 per month for the use of each team and its harness, and that there was at the time of the disclosure yet’ owing and unpaid upon said indebtedness the sum of $317.19, for which a lien upon said property was claimed by the garnishee defendant.
On December 6> 1911, A. G. Wells Company recovered in the action upon its note a judgment against Reichel Bros, for $311.81 damages and costs. On the concurrent proceedings in garnishment a judgment was entered providing in part as, follows:
“It is hereby determined that at the time of the service of the writ of garnishment in this cause upon said garnishee it had' in its possession and under its custody and control the following goods and chattels of the said principal defendants, viz.: One team of horses [describing them] and two sets of heavy double harness, including collars, which said goods and chattels were then and are now held by the said garnishee under a contract with said principal defendants, whereby the said garnishee has a lien thereon and a right to retain possession of said goods and chattels and have the use thereof until the full payment to said garnishee of the sum of $71.69, which constitutes the amount of said lien at the rate of $35 per month for the use of each of said teams and harness.”
By said judgment the garnishee defendant was also ordered to deliver said property to the sheriff on demand, to be sold by him to satisfy the execution to be issued upon said judgment, subject to the amount of said lien.
An execution was issued in said garnishee proceedings, reciting the principal judgment, the garnishment, and the garnishee judgment, commanding the sheriff to satisfy thereunder, out of the property, the amount of the principal judgment and costs in the garnishee proceedings, subject, however, to the lien of the garnishee.
Under this execution the sheriff levied upon said property March 1, 1912, and, after seizure, on'the same day made an arrangement with the garnishee defendant, by which the latter gave him a receipt for the property, agreeing therein to hold possession thereof until the 14th of said month, and then turn the same over to him, subject to its lien; that being the day set by the sheriff for execution sale. On that date the sheriff sold said property to defendant, Brooks, as the highest bidder, for the sum of $375, subject to said lien of garnishee defendant, amounting at the date of sale to $17.69. Brooks at that time had also levied an execution upon this property to satisfy a judgment against Reichel Bros, for the sum of $707.98 obtained by him March 8, 1911, with similar ancillary proceedings in garnishment against the same garnishee defendants.
After Brooks secured possession of the property, plaintiff seized it under a writ of replevin, as being property covered by a chattel mortgage dated January 9, 1911, given him by Reichel Bros, to secure the sum of $2,000 which he had loaned them. Said mortgage was not, however, filed for record until January 10, 1912.
On January 14, 1911, after said loan was negotiated, but before the chattel mortgage was delivered,' Reichel Bros., with plaintiff’s consent, gave possession of this property to the fuel and lumber company, under a contract to turn the same over to the latter, to be worked and used in payment of a debt Reichel Bros, then owed it, amounting to $522; said fuel and lumber company agreeing to credit upon said indebtedness the sum of $70 per month for the use of said property, keep and care for the same, and furnish food and drivers for said horses while in its possession.
Shortly after the fuel and lumber company received possession of this property under said contract, it further agreed with Reichel Bros, to furnish the latter from time to time certain supplies, the amount of which should be charged in and become a part of the original indebtedness owing from the latter to the former, and did so furnish the same to the amount of $460, of which supplemental agreement plaintiff was informed by Reichel Bros., and to them gave his consent thereto.
The fuel and lumber company retained, used, and worked said property until the entire indebtedness owing it by Reichel Bros, was paid, including the $18 yet due when defendant bought the same on execution sale, after which he took possession, and plaintiff took it from him, after demand, by writ of replevin, claiming right thereto under his chattel mortgage.
After the property was replevied, default was entered by defendant against plaintiff for failing to file a declaration, and before the case came to trial a stipulation was entered into by counsel of record, providing in part:
“ * * * That the default of the plaintiff heretofore entered in this cause may be, and the same is, hereby set aside, and the plaintiff allowed to serve copy of his declaration in this cause instanter; * * * that upon the trial of the above-entitled cause it will be admitted that all the proceedings in the case of A. G. Wells Co., a corporation, v. George Reichel et al., principal defendants, and the Consolidated Fuel & Lumber Company, garnishee defendant, and also all the proceedings .in the case of Arthur Brooks against the same principal and garnishee defendants, were regular and proper and effective for the purposes thereof, it being the intention hereby to give the said defendant all the benefit that he could derive from such proceedings when regularly and properly carried through, but not to admit that such proceedings, when so conducted, operated to give to the plaintiffs therein such prior rights in the property seized under the writ in this cause as to enable them, or either of them, to sell the same free of the chattel mortgage lien of this plaintiff thereon, that question to remain to be litigated the same as though this stipulation had not been entered into; said O’Neil not admitting these said plaintiffs did not have notice of his chattel mortgage and rights prior to and after judgment in said garnishee proceedings, either by themselves or agents or attorneys.”
As to this stipulation, it is urged by present counsel for appellant that an attorney has no implied power to release errors in the record; that this was entered into under a misapprehension, is but mere admissions of law which the court is not required to act upon if satisfied to the contrary, and ought not to be held binding under the circumstances. Assuming that it will not be, counsel argue at length in their brief against the regularity and validity of the proceedings in the cases mentioned.
Without reviewing in detail the questions there raised, it is sufficient to state that we are not satisfied that the irregularities complained of render those proceedings invalid, and, under this record, we conclude the only serious question for consideration is that of the priority between plaintiff’s chattel mortgage and defendant’s title under the execution sale.
The trial court held that the lien, by virtue of said garnishee proceedings and judgment, took priority over plaintiff’s chattel mortgage, which was unrecorded at the time such lien attached, and therefore directed a verdict in favor of defendant for the value of said property, which, as an issue of fact, was submitted to the jury under proper instructions, resulting in a verdict against said plaintiff in the sum of $641.25.
The recording law relative to chattel mortgages (section 10, Act No. 258, Public Acts 1905), provides that:
“Every mortgage, or conveyance intended to operate as a mortgage, of goods and chattels, which shall hereafter be made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers or mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be filed in the office of the township clerk * * * where the goods or chattels are located,” etc.
The indebtedness for which A. G. Wells Company obtained judgment against Reichel Bros, arose out of credit extended March 10, 1911, while plaintiff’s mortgage was withheld from record. The company’s claim accrued subsequent to the execution and delivery of an unrecorded chattel mortgage, and it could therefore assert a lien upon the property before or after the mortgage was filed under the recording law. This whole subject has been so recently reviewed, with numerous authorities cited, in People, for use of Esper, v. Burns, 161 Mich. 169 (125 N. W. 740, 137 Am. St. Rep. 466), and City Bank & Trust Co. v. Hurd, 179 Mich. 454 (146 N. W. 299), that further discussion of that question here is. unnecessary.
It is the contention of plaintiff that there was, in legal effect, under the facts shown, such a delivery or change of possession of the things mortgaged at or about the time of delivering the instrument to him as to relieve plaintiff from the necessity of recording the mortgage, not by actual delivery of the property to him, but into the hands of a third party with his consent, who had notice of his mortgage, held actual and exclusive possession against the mortgagor, and, as a matter of law, held possession for the mortgagee.
It may be conceded that, if this property was turn ed over to the fuel and lumber company to hold for plaintiff, while its indebtedness was being worked out, such change of possession would be sufficient to protect-his security, but the record fails to show such was the case. Plaintiff is not shown to have been a party to the contract' by which Reichel Bros, turned the property over to the fuel and lumber company or to even have communicated with the latter on the subject; his dealings were with Reichel Bros., in which he gave them his consent to their letting the fuel and lumber company take the property and use it for a time. There were no contractual relations between him and the latter, and whether it even had notice or knowledge of his chattel mortgage is a matter in dispute. Its possession came from Reichel Bros, with their consent, was for an indefinite time, not hostile nor adverse to their title, and was contingent on their indebtedness being paid to it. They had, so far as shown, the right at any time to pay up the balance owing and take their property. The property was being held by the bailee for' the bailor from whom it was received and with whom the contract of bailment was made, and from whom there were no instructions to return the property at the expiration of the bailment to any third party.
We conclude the learned circuit judge correctly held that, under the undisputed evidence in this case, there was no change of possession, as between mortgagor and mortgagee, and plaintiff’s chattel mortgage was invalid as to the A. G. Wells Company, which became a creditor of the mortgagor in good faith after said mortgage was given and before the same was put on file and of record.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
22,
25,
40,
2,
8,
75,
43,
-7,
13,
-8,
1,
-27,
-1,
25,
89,
14,
1,
-3,
-7,
8,
20,
-25,
-3,
14,
3,
0,
-10,
-24,
-17,
-26,
-14,
15,
-12,
5,
-61,
-28,
-73,
19,
-30,
-68,
-1,
45,
-27,
23,
25,
16,
0,
-37,
9,
-38,
37,
-13,
3,
6,
21,
1,
-1,
4,
-49,
-5,
26,
-20,
23,
22,
-6,
22,
-19,
30,
-3,
8,
4,
17,
17,
24,
21,
4,
27,
20,
-2,
-3,
14,
-34,
49,
40,
-33,
0,
-11,
2,
-7,
5,
-58,
-1,
-53,
56,
2,
-28,
2,
-20,
-58,
2,
-4,
11,
2,
40,
-20,
-19,
13,
-28,
-11,
1,
-30,
18,
21,
-13,
20,
-23,
-10,
-39,
22,
34,
17,
-9,
26,
40,
-15,
23,
-10,
26,
-36,
54,
-15,
-4,
-47,
-15,
17,
20,
-8,
-30,
-33,
-64,
91,
41,
-55,
-29,
4,
17,
-4,
-15,
0,
26,
-19,
-26,
-2,
16,
69,
13,
15,
28,
22,
0,
13,
32,
-18,
-45,
-54,
-20,
19,
-2,
-46,
69,
26,
41,
17,
-40,
14,
-1,
14,
7,
-43,
45,
14,
-34,
-21,
-6,
-66,
-14,
12,
16,
-28,
4,
-25,
-32,
-6,
0,
-75,
38,
28,
-19,
-48,
41,
39,
1,
-18,
-6,
3,
16,
0,
4,
-18,
10,
-22,
19,
-55,
-9,
-17,
46,
-10,
-20,
-23,
-24,
-5,
30,
-12,
29,
-18,
-40,
14,
18,
-20,
5,
-52,
-17,
19,
-24,
-3,
-55,
-20,
3,
44,
10,
-2,
-64,
-17,
17,
-20,
-47,
-53,
-44,
7,
42,
-65,
-17,
-47,
26,
0,
-8,
4,
1,
-9,
13,
-9,
35,
-19,
25,
10,
-25,
-7,
29,
-30,
-1,
14,
-26,
51,
-15,
-8,
0,
7,
32,
14,
-7,
67,
-59,
-62,
-3,
-43,
-4,
19,
-17,
-90,
35,
-32,
31,
11,
-13,
6,
8,
-40,
9,
47,
-26,
-41,
-13,
25,
-54,
9,
11,
-18,
-38,
61,
-23,
-66,
-1,
-16,
-14,
-12,
-9,
15,
63,
-4,
-60,
-37,
-29,
24,
-42,
-12,
7,
14,
-20,
49,
66,
-27,
-78,
-23,
-13,
-38,
-57,
42,
6,
8,
6,
-12,
84,
36,
1,
-17,
3,
27,
-26,
40,
15,
-43,
-8,
16,
40,
-34,
-20,
35,
15,
-17,
45,
-5,
32,
-42,
23,
35,
-13,
-42,
18,
13,
-3,
59,
-12,
17,
-30,
-13,
-5,
-63,
-1,
-42,
19,
14,
-38,
29,
2,
42,
-35,
54,
14,
-54,
16,
-22,
47,
45,
56,
-23,
33,
-8,
-100,
-61,
-36,
-1,
5,
25,
-69,
-9,
-20,
8,
6,
-6,
-47,
11,
-64,
27,
40,
13,
-20,
-11,
0,
9,
31,
57,
-15,
15,
-5,
43,
-39,
63,
-17,
-54,
-13,
-26,
36,
15,
1,
41,
-1,
-23,
34,
-22,
-15,
-23,
-13,
42,
24,
1,
-67,
25,
62,
64,
-41,
31,
13,
-29,
42,
-10,
-9,
48,
-58,
45,
23,
43,
8,
19,
-15,
12,
22,
15,
-18,
40,
48,
-19,
5,
51,
-5,
-26,
-36,
11,
10,
-27,
2,
-32,
-5,
-33,
-9,
-27,
4,
-1,
-37,
16,
53,
40,
17,
-13,
-21,
3,
-10,
-19,
7,
49,
14,
-37,
-39,
45,
-16,
50,
-5,
9,
-50,
-29,
29,
43,
-15,
49,
10,
-24,
56,
11,
-29,
-41,
39,
15,
20,
-41,
14,
-1,
65,
46,
3,
65,
9,
-12,
-10,
-23,
22,
-43,
-6,
11,
2,
-51,
-25,
4,
22,
43,
-33,
-38,
29,
-15,
-13,
8,
-12,
-10,
-31,
20,
34,
-1,
-9,
-68,
-31,
38,
29,
9,
-6,
-2,
-45,
19,
-28,
1,
5,
-42,
16,
2,
58,
35,
12,
27,
-3,
-16,
-28,
-46,
-20,
-67,
5,
-59,
-33,
34,
71,
-2,
-25,
-64,
38,
-38,
18,
-13,
16,
-17,
-11,
16,
70,
25,
39,
-67,
3,
-10,
9,
-6,
-46,
4,
28,
-31,
49,
14,
22,
18,
7,
39,
-14,
-6,
-2,
-4,
25,
-8,
22,
-57,
41,
-27,
10,
29,
4,
-6,
16,
-23,
8,
-29,
4,
-22,
28,
21,
18,
-51,
-11,
7,
-66,
-34,
1,
0,
-107,
-38,
8,
12,
-28,
-55,
13,
13,
0,
30,
5,
45,
59,
19,
-49,
35,
-14,
-4,
63,
36,
-24,
-6,
-23,
-5,
14,
37,
-20,
-9,
-17,
1,
-38,
30,
53,
16,
32,
6,
7,
15,
29,
-21,
36,
13,
53,
7,
-24,
7,
-6,
-53,
2,
-43,
19,
-21,
-14,
12,
-18,
36,
41,
-51,
55,
19,
26,
-13,
6,
23,
-5,
63,
-43,
37,
46,
-5,
23,
26,
25,
-41,
-36,
18,
-2,
0,
-1,
35,
10,
-20,
-34,
-43,
28,
-23,
25,
-46,
21,
-28,
37,
-23,
-52,
-105,
-6,
2,
-30,
27,
52,
10,
20,
28,
43,
17,
-29,
11,
47,
4,
0,
54,
-36,
-5,
5,
-33,
-30,
-8,
-10,
5,
42,
-6,
75,
-16,
-78,
-17,
-47,
20,
53,
-21,
-27,
51,
-13,
24,
4,
11,
-18,
-17,
-82,
-24,
39,
-28,
20,
-21,
6,
4,
-17,
32,
-70,
8,
-47,
-18,
13,
16,
36,
-24,
-26,
-30,
29,
-72,
42,
4,
-39,
12,
-10,
23,
6,
-50,
-50,
7,
-10,
33,
9,
-37,
15,
-35,
10,
-48,
35,
-16,
45,
-1,
3,
-16,
-3,
22,
-4,
9,
-31,
-29,
-6,
1,
-61,
12,
20,
3,
33,
-24,
-39,
-11,
17,
40,
13,
-34,
76,
-45,
-15,
10,
-24,
0,
72,
-20,
-27,
-11,
-1,
-29,
33,
21,
-33,
-17,
-21,
-25,
-5,
-5,
-6,
-29,
-36,
22,
12,
-71,
13,
10,
-3,
16,
30,
-1,
-6,
-27,
-15,
-20,
10,
20,
31,
12,
-39,
26,
53,
-13,
-45,
-15,
20,
48,
-2,
12,
-47,
46,
-6,
-38,
-7,
13,
-8,
-21,
-60,
-24,
-11,
1,
29,
24,
3,
-70,
3,
-17,
-6,
-8,
8,
2,
16,
30,
-62,
1,
10,
-12,
97,
13,
31,
10,
53,
-31,
1,
-1,
-10,
7,
3,
-8,
-33,
-32,
25,
29,
4,
-31,
-15,
18,
-15,
28,
30,
13,
24,
-3,
60,
16,
62,
6,
-1,
-32,
12,
25,
28,
18,
5,
-5,
-10,
-5,
-3,
11,
3,
22,
-37,
-13,
-41,
-27,
-58,
-9,
-3,
-2,
15,
18,
-25,
6,
-13,
-46,
39,
-12,
-11,
-10,
0,
0,
45,
24,
-39,
31,
26,
17,
41,
10,
13,
-39,
-24,
-10,
-45,
-21,
-43,
17,
37,
37,
28,
1,
-46,
-22,
-15,
0,
-25,
3,
8,
2,
7,
54,
-13,
46,
-31,
-17,
26
] |
Stone, J.
Relator was arrested by the sheriff of Ottawa county on a writ of capias ad respondendum, issued out of the circuit court for said county at the suit of Leonard Vis. Relator was held to bail in the sum of $2,000 on an order made by the respondent, which bail relator gave. Attached to the writ were three affidavits; one of Leonard Vis, the plaintiff, one of Maggie Vis, his wife, and one of Harry Vis, his brother.
The relator contends that the action was one of criminal conversation of relator with Maggie Vis, the wife of plaintiff. Counsel for respondent contends that the action was for assault and rape committed upon the wife of Leonard Vis, and the furnishing of her with intoxicating liquors; she being a minor. It is the claim of relator that the affidavits of Leonard Vis, the plaintiff, and of his brother, Harry Vis, show that they were made entirely on information and belief. It can properly be said that the statement of the material facts essential to maintain the writ must be found, if they exist, in the affidavit of the wife. Relator made a motion that the court dismiss the writ of capias, for the reason that the affidavits were not such as could be made the basis of a writ of capias to deprive relator of his liberty for the reasons set forth in the motion, which are substantially as follows: (1 and 2) That the affidavits of Leonard Vis and Harry Vis show affirmatively that they were not based upon the personal knowledge of affiants, but upon information and belief. (3) That the affidavit of Maggie Vis, accompanying the other affidavits, and upon which the writ in said cause was issued, was the affidavit of the wife of the plaintiff; that the cause of action set forth in said affidavit of said plaintiff is an action of criminal conversation of the defendant, Mike Hirdes, with the wife of said plaintiff, and that said affiant, Maggie Vis, could not testify to the allegations contained in her said affidavit in the trial of said cause, because of the language of our statute (section 10213, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 12857), which reads as follows:
“But in any action or proceeding instituted by the husband or wife, in consequence of adultery, the husband and wife shall not be competent to testify.”
Respondent denied the motion, and relator prays for mandamus to compel respondent to discharge the writ.
In the affidavit of Leonard Vis, he swears that the said Mike Hirdes, contriving and wrongfully and unjustly intending to injure him and deprive him of the comfort, fellowship, society, aid, and assistance of his said wife, and alienate and destroy her affection for him, on the 20th day of March, 1913, at the city of Zeeland; wrongfully, wickedly, and unjustly debauched and carnally knew deponent’s wife, and did then and there have sexual intercourse with her, as deponent is informed and believes. In another part of the affidavit the plaintiff states that the defendant caused the said wife to become intoxicated in order that he might carry out his wicked purpose of seducing her, as he was informed and believed. The affidavit further states that affiant makes the affidavit for the purpose of procuring a writ of. capias ad respondendum, and claims that he has a just cause of action against the said Mike Hirdes, and is damaged in the sum of $10,000. The affiant then refers to the accompanying affidavits of his wife and brother.
It is necessary that we should critically examine the affidavit of the wife, Maggie Vis. She therein states that she was 20 years of age, the wife of Leonard Vis, and resided with him in the city of Zeeland; that on the 20th day of March, 1913, in the absence of her husband, Mike Hirdes came to deponent’s home and furnished her with a quart of whisky, part of which she drank, and became intoxicated; that the said Hirdes then and there took advantage of deponent’s condition, and had sexual intercourse with her; that she did not have will power enough, being in an intoxicated condition, to resist the actions of said Mike Hirdes, which purpose he could not have accomplished had she not been intoxicated. We quote from the affidavit:
“Deponent further says that she gave the said Mike Hirdes no occasion whatever to think or believe that she would be open and subject to his embraces, and that in order to have sexual intercourse with her he first procured the liquor, gave it to her, and caused her to be intoxicated. * * * Deponent further says that she refused to have sexual intercourse with him, whereupon he procured this liquor, and, while in the state of intoxication, and not being able to resist, he took advantage of her and had sexual intercourse,”
as above stated, and that the facts stated in said affidavit were within her personal knowledge.
The affidavit of Harry Vis states that on the 20th day of March, 1913, the said Mike Hirdes came to the home of his brother, where deponent and Maggie Vis were, and furnished a quart of whisky, and induced deponent and Maggie Vis to drink a part thereof; that soon after deponent left the house, and Mike Hirdes continued to stay there with the said Maggie Vis.
The respondent denied the motion, for the reason that the charge involved was not one of criminal conversation, but one for assault, and assault with rape, and the unlawful furnishing of liquor to a minor. It appears that at the time the motion was argued the plaintiff in the suit had filed his declaration.
It is our opinion that we have no right, in considering the questions involved, to examine the allegations of the declaration, but the matter must be disposed of upon the condition existing at the time of the arrest of the relator,- for, if the affidavits were not sufficient to warrant the arrest upon the writ, they cannot be aided by a subsequent pleading of the plaintiff. The important question is whether the affidavit of Maggie Vis contains such a statement of facts as would permit her, as a witness at the trial of the case, to testify that she was assaulted and ravished by said Mike Hirdes.
In the case of Stoudt v. Shepherd, 73 Mich. 588 (41 N. W. 696), Justice Campbell said that the words “seduction” and “debauch” are, in civil cases, very generally used as substantially similar terms, and that he did not think it important which word was used in the pleadings.
Upon the trial of the case under a proper declaration, would it be competent for the wife, Maggie Vis, to testify that the said Mike Hirdes furnished her with whisky, and caused her to become so intoxicated that she was not in a condition to resist the action of said Hirdes, and that, while, in such condition produced by him, he had sexual intercourse with her, she not being able, by reason of -such intoxication, to resist his acts and conduct? We are of opinion that it would be competent for her to so testify, and, should those facts be shown to the satisfaction of a jury, that they would be warranted in' finding that the conduct of the said Hirdes, under such circumstances, amounted to rape.
In the case of People v. Croswell, 13 Mich. 427 (87 Am. Dec. 774), Justice Cooley, after defining the crime of rape, used the following language:
“In the case of Regina v. Camplin, 1 Den. C. C. 89; same case 1 C. & K. 746, it appeared that the prisoner gave the woman liquor for the purpose of exciting her, but which had the effect to make her quite drunk; and, while' she was in a state of insensibility, he took advantage of it and violated her. The court held the act to be rape. The prosecutrix showed by her words and conduct, up to the latest moment- at which she had sense or power to express her will, that it was against her will that intercourse should take place. It was no answer to the charge, therefore, that she had no opposing will at the moment when intercourse actually took place, since the prisoner had actually mastered it by means of the stupefying drug, which was the same, as was well remarked by one of the judges, as if it had been overcome by a blow. * *_ * If the woman was insensible, some'degree of physical force must actually have been employed by the prisoner; and no more resistance is required by the law, in any case, than the condition of the woman will permit her to make. * * * The outrage upon the woman, and the injury to society, is just as great in these cases as if actual force had been employed; and • we have been unable to satisfy ourselves that the act can be said to be any less against the will of the woman when her consent is obtained by fraud than when it is extorted by threats or force.”
In 38 Cyc., at pages 1426 and 1427, it is said:
“So, if ability to resist is taken away by administering drugs, even though the woman may be conscious, sexual intercourse with her is rape. * * * And if the woman is intoxicated to the extent of being unable to resist, the act is without her consent and is rape” — citing many cases.
Especially should this be the rule if the state of intoxication is produced by the defendant. To the same effect see Commonwealth v. Burke, 105 Mass. 376 (7 Am. Rep. 531) ; State v. Atherton, 50 Iowa, 189 (32 Am. Rep. 134). See note to State v. Warren, 232 Mo. 185 (134 S. W. 522), reported in Ann. Cas. 1912B, 1043-1049.
In such a case we think that the statute of this State above referred to would not prohibit the wife from testifying, because the charge would not be that of adultery, but of an assault and ravishment. People v. Upton, 169 Mich. 31 (135 N. W. 108); Totten v. Totten, 172 Mich. 565 (138 N. W. 257).
In the case of Egbert v. Greenwalt, 44 Mich. 245 (6 N. W. 654, 38 Am. Rep. 260), the cause of action was for the alleged criminal conversation with the plaintiff’s wife. The suit was in the common form of an action on the case. The whole testimony to prove the imputed intercourse and establish the cause of action was given by Greenwalt and his wife. The act was represented as one to which she was an involuntary party, and as having been accomplished against her will by actual force and over the stoutest resistance of which she was capable. The record contains a general exception to the court’s refusal to con sider the evidence sufficient to bar the action. Justice Graves said:
“The point of the objection is understood as being that the nature of the action excluded the idea of violence, and contemplated that the wife’s participation was voluntary and not forced, and that, as the case made by the evidence negatived her consent and proved that she was debauched by violence, the action failed.
“The position is not tenable. The common law, in giving this remedy, instead of making the husband’s right of action depend on his wife’s having consented to her defilement, has invariably, whatever the truth might be, decisively assumed that she did not assent, but was overcome by force, and the action has been sustained just the same, whether, as matter of fact, her will concurred, or she was outraged by actual violence [citing cases]. And there seems to be no basis in justice or policy for the position that if the personal wrong is accompanied by circumstances of such atrocity as to elévate it to the public offense of rape the private remedy is thereby either taken away or suspended. Cooley on Torts, 86 to 90. It is not reasonable to convert the wife’s innocence into a shield to save her assailant from prosecution for his private wrong to her husband.”
In Johnston v. Disbrow, 47 Mich. 59 (10 N. W. 79), Disbrow charged the defendant below, Johnston, with having, at a certain time and place named, unlawfully, forcibly, and violently assaulted the wife of said plaintiff, compelling her by force to have unlawful sexual carnal intercourse with him (the defendant) to the injury, etc., whereby plaintiff was damaged in his reputation, and suffered in injured feelings and of being deprived of the society and assistance of his said wife, to his damage. We refer to this case because it is the claim of relator’s counsel that, if force was used by Hirdes, and he was guilty of rape, the wife should have brought the action, and not the husband. In the last-cited case, Chief Justice Marston, in speaking for the court, said:
“While it may be true as argued that the reputation of the plaintiff should not suffer because of such a wrong committed by force and against the will of his wife, yet that the matter would become a subject of unpleasant comment and injure his feelings cannot well be questioned, and the right to recover damages therefor is well settled in this State (Scripps v. Reilly, 38 Mich. 23), and no evidence as to the amount thereof in dollars and cents need be proven on the trial. The jury, in view of all the facts, are qualified to fix the amount thereof. The fact that the wife of the plaintiff also has a cause of action for the same injury and would be entitled to recover damages on account of injured feelings, is no answer to the right of this plaintiff to recover. His right to maintain the action grows out of his marital relations with the person upon whom the wrong was committed. And this right is not possessed by others, so that the fears expressed that all the relatives and neighbors of Mrs. Disbrow might maintain separate actions and recover damages on account of injured feelings is not to be seriously feared.”
See Cooley on Torts, p. 226; Berger v. Jacobs, 21 Mich. 215-220. At the last-named page this court said:
“But, on the other hand, for any damages accruing to the husband from the assault and battery upon the wife, as for loss of her assistance and society, * * * he-alone could sue.”
See Velthowse v. Alderink, 153 Mich. 217 (117 N. W. 76, 18 L. R. A. [N. S.] 587, 15 Am. & Eng. Ann. Cas. 1111).
The provision (section 10213, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 12857), above referred to has been in our statute at least since 1861, and existed at the time the above decisions were rendered.
We think that, in support of the state of facts set forth in the affidavit of Mrs. Vis, she would be a competent witness upon the trial of the case, and that it cannot be said that the affidavits for the writ of capias were defective or insufficient.
In our opinion, the circuit judge did not err in so holding, and the writ of mandamus must therefore be denied, with costs against relator.
McAlvay, C. J., and Brooke, Kuhn, Osteandee, Bied, Moore, and Steere, JJ., concurred. | [
30,
-11,
-1,
39,
15,
-17,
6,
9,
-2,
21,
17,
-46,
-8,
50,
-2,
-27,
81,
26,
63,
-64,
-19,
9,
30,
33,
0,
-31,
0,
0,
39,
-20,
-2,
0,
1,
-41,
38,
6,
11,
-2,
-27,
19,
-7,
59,
19,
10,
-49,
-9,
8,
9,
-21,
-27,
1,
-39,
5,
25,
32,
-14,
19,
-30,
4,
-29,
26,
-9,
-55,
-11,
-10,
-16,
-10,
4,
-18,
4,
60,
-56,
-32,
-5,
-13,
-36,
-55,
-11,
58,
59,
-23,
33,
-2,
53,
-14,
-21,
-15,
-20,
-11,
-36,
-13,
1,
-65,
29,
-39,
14,
13,
11,
31,
51,
-1,
29,
6,
25,
-10,
72,
3,
-19,
29,
-5,
21,
15,
46,
-3,
-5,
-47,
-49,
-102,
52,
-67,
-17,
-10,
61,
35,
11,
-48,
25,
-23,
-46,
-37,
38,
15,
51,
-25,
-29,
-30,
7,
34,
25,
-1,
-7,
14,
14,
24,
-2,
46,
41,
-24,
-30,
27,
-9,
12,
37,
26,
-28,
-5,
77,
-34,
-32,
16,
58,
1,
-64,
18,
-2,
-61,
9,
-8,
-12,
-57,
56,
11,
2,
85,
-28,
-43,
-58,
-13,
21,
14,
10,
48,
-34,
4,
38,
-25,
22,
-32,
-5,
7,
-9,
21,
-10,
39,
67,
18,
-45,
3,
-11,
-31,
-1,
32,
-14,
6,
11,
-28,
-4,
-19,
5,
-13,
3,
-13,
-49,
-71,
-19,
-80,
-23,
10,
16,
21,
-33,
-1,
8,
29,
-48,
-44,
29,
35,
13,
23,
48,
-53,
-82,
2,
-34,
-1,
37,
7,
55,
34,
-21,
11,
14,
-56,
66,
-29,
4,
-24,
-24,
6,
-11,
10,
-4,
0,
-95,
-4,
49,
37,
7,
36,
-32,
-4,
2,
60,
10,
-22,
-33,
48,
-20,
-2,
0,
12,
0,
-8,
19,
3,
-28,
27,
6,
38,
-12,
1,
-52,
-31,
-14,
26,
26,
-11,
5,
-10,
47,
-19,
-29,
-69,
-6,
5,
22,
-17,
-10,
25,
26,
1,
23,
19,
-83,
-22,
34,
40,
-46,
6,
-2,
0,
22,
49,
19,
0,
-4,
7,
-12,
-63,
-24,
4,
-10,
-2,
-28,
-8,
24,
8,
21,
20,
-39,
-17,
-20,
-31,
-26,
44,
-49,
7,
-16,
1,
17,
-32,
-54,
-4,
-29,
44,
-39,
8,
-17,
-9,
-43,
-19,
30,
0,
-46,
-12,
-63,
27,
41,
-9,
32,
7,
-33,
-8,
23,
35,
18,
-10,
-16,
66,
-3,
3,
-5,
-36,
28,
-49,
-10,
-25,
-10,
22,
-9,
-8,
49,
-26,
-22,
-1,
-55,
-32,
-17,
-38,
3,
8,
3,
-33,
-35,
3,
33,
-11,
42,
-12,
12,
6,
79,
22,
-29,
-8,
-18,
46,
14,
0,
4,
9,
6,
8,
2,
-7,
-28,
7,
1,
26,
32,
-26,
29,
-55,
37,
27,
-36,
-39,
39,
-28,
-44,
2,
26,
54,
30,
20,
-15,
54,
0,
-13,
-36,
-37,
14,
-10,
-14,
-12,
-44,
-13,
45,
-43,
-41,
-7,
-11,
-34,
-3,
53,
36,
33,
15,
-19,
-15,
15,
30,
42,
43,
-43,
-19,
-16,
-35,
-25,
23,
-13,
-1,
10,
-16,
-21,
-33,
16,
-6,
12,
-9,
4,
3,
-77,
-12,
100,
23,
-36,
12,
49,
-19,
-35,
8,
55,
-11,
-13,
5,
23,
18,
2,
-68,
45,
-50,
-27,
44,
48,
15,
77,
50,
-17,
-4,
-3,
-28,
4,
-72,
14,
9,
-6,
-6,
11,
-12,
-8,
54,
33,
-30,
12,
39,
6,
-49,
-28,
20,
-28,
-2,
-44,
5,
42,
11,
-14,
34,
-18,
-36,
27,
17,
-16,
-33,
7,
8,
-10,
-53,
46,
8,
-6,
37,
23,
-5,
11,
24,
-48,
-76,
-45,
13,
-7,
0,
37,
-5,
-40,
3,
-37,
51,
24,
5,
-54,
-2,
-28,
9,
4,
-26,
18,
22,
-11,
27,
0,
-31,
5,
-6,
9,
43,
-27,
-16,
-62,
-18,
48,
-38,
-5,
-20,
-49,
-10,
-18,
-24,
-15,
28,
46,
24,
-49,
20,
38,
84,
36,
-21,
4,
26,
-13,
-28,
15,
-6,
45,
-10,
-19,
-18,
61,
9,
-11,
-65,
37,
9,
-23,
-30,
-27,
17,
-6,
-46,
-46,
-7,
-16,
0,
6,
-13,
47,
-5,
-15,
23,
10,
-8,
11,
-13,
0,
5,
-4,
-5,
-10,
-3,
-12,
6,
1,
-20,
-16,
-26,
-40,
11,
15,
-17,
8,
25,
39,
0,
-24,
46,
0,
13,
-2,
-15,
-58,
27,
24,
18,
-73,
-18,
7,
7,
41,
16,
1,
-4,
-41,
24,
45,
-30,
44,
2,
48,
-18,
39,
-21,
39,
-11,
38,
30,
-17,
-33,
42,
-5,
-51,
8,
-49,
11,
-33,
35,
-39,
11,
-2,
30,
-38,
4,
16,
6,
-1,
6,
-31,
-11,
18,
-24,
24,
7,
-24,
38,
15,
-16,
0,
19,
-27,
42,
26,
-13,
-31,
35,
10,
-9,
8,
2,
36,
-48,
-31,
-6,
-54,
61,
1,
2,
32,
-3,
18,
16,
11,
4,
-11,
-43,
74,
-6,
-57,
-5,
12,
7,
32,
-68,
-34,
-56,
-26,
-42,
-32,
52,
9,
2,
0,
21,
-23,
-47,
60,
37,
-6,
18,
-12,
1,
41,
-53,
18,
-11,
-50,
15,
-98,
-26,
17,
26,
-44,
22,
17,
-14,
3,
3,
-13,
-26,
-4,
23,
11,
-46,
20,
34,
43,
-17,
5,
-5,
6,
0,
-1,
0,
-10,
-64,
6,
-18,
5,
5,
-40,
4,
-35,
21,
8,
37,
56,
51,
13,
-10,
-12,
38,
1,
-12,
53,
-21,
19,
39,
-70,
-6,
-25,
58,
-1,
1,
-25,
8,
-8,
38,
-5,
-17,
-32,
57,
-14,
27,
36,
-39,
15,
16,
70,
14,
-1,
16,
-20,
-16,
-63,
-41,
-39,
44,
43,
-18,
29,
78,
-23,
-35,
93,
-8,
9,
30,
-27,
-58,
26,
17,
9,
1,
30,
-10,
-1,
29,
-55,
-31,
-15,
-13,
29,
45,
-13,
-49,
29,
-8,
-53,
-28,
-22,
-5,
86,
-28,
44,
45,
-36,
-7,
-48,
41,
0,
5,
2,
24,
-11,
-28,
3,
-11,
14,
-28,
11,
9,
33,
41,
-2,
-37,
2,
3,
27,
-28,
17,
14,
11,
-8,
-22,
12,
5,
48,
13,
-31,
19,
17,
-21,
-55,
27,
23,
30,
-36,
-10,
-19,
-6,
-70,
-3,
11,
16,
7,
-2,
16,
41,
-41,
2,
0,
67,
-49,
22,
-47,
20,
-34,
58,
58,
16,
-13,
-53,
7,
6,
-39,
10,
16,
-10,
-26,
-1,
-64,
-12,
-14,
2,
-19,
-25,
-12,
49,
-24,
-25,
21,
23,
-71,
61,
46,
5,
-28,
-62,
-37,
-29,
-15,
-8,
41,
-11,
26,
-58,
6,
37,
24,
8,
-38,
-64,
48,
-2,
-18,
31,
13,
-23,
21,
24,
-33,
19,
61,
-1
] |
Kuhn, J.
The bill of complaint filed in this cause alleges, in substance, that complainant, who was born on April 17, 1887, was taken from the St. Vincent’s Orphan Home in Saginaw, at the age of 7, and placed in the home of John Coryeon, where she remained until she was 17 years old, when, it is alleged, she was forced to leave and compelled to shift for herself; that while at this home it was represented to her that she was a legally adopted child, but that she has been unable to find that any proceedings for adoption have been taken; that she was illtreated and compelled to labor beyond her strength and years. John Coryeon died March 23, 1906, and by his will bequeathed his estate, real and personal, to his wife, Christine Coryeon, who died before this bill was filed, and to his daughter, Teresa Tierney. Commissioners on claims were appointed in the estate, but no claim was presented by or on behalf of the complainant. The administrator of the estate was discharged May 15, 1908. The complainant asks to have $1,000 allowed to her for services rendered, and prays that the court decree a lien for the same upon certain lands received from the estate of John Coryeon by Teresa Tierney.
The demurrer filed by the defendant alleges:
(1) That there is no equity on the face of the bill; (2) that the bill of complaint fails to state a cause of action within the jurisdiction of the court; (3) that under the facts stated in the bill defendant is subject to no liability for the indebtedness, if any, of John Coryeon, deceased; (4) that complainant’s claim, if any, is barred because of her failure to seek her remedy in the probate court; (5) that complainant is guilty of such laches as to bar relief in equity; (6) that no agreement for compensation is alleged; and (7) that there is nonjoinder, in the failure to join the heirs or representatives of Christine Coryeon, deceased.
Section 9380, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11091), provides:
“(9380) Sec. 14. Every person having a claim against a deceased person, proper to be allowed by the commissioners, who shall not, after the publication of notice as required in the second section of this chapter, exhibit his claim to the commissioners within the time limited by the court for that purpose, shall be forever barred from recovering such demand, or from setting off the same in any action whatever.”
This statute has been construed by this court and its terms enforced. See Winegar v. Newland, 44 Mich. 367 (6 N. W. 841); First Nat. Bank v. Sherman’s Estate, 117 Mich. 602 (76 N. W. 97) ; Benjamin v. Early, 123 Mich. 93 (81 N. W. 973) ; Draper v. Brown, 153 Mich. 120, 135 (117 N. W. 213) ; Thurber v. Aldrich, 167 Mich. 656 (133 N. W. 620).
The bill of complaint contains no allegations of fraud, ignorance, or mistake.
Did the minority of the complainant change the legal situation and excuse failure to proceed as required by the statute? Section 9380 being “a statute of nonclaim,” a different rule has been applied by the authorities than in case of “a statute of limitations.” The general rule is laid down in 18 Cyc. p. 467:
“The limitation of time within which claims must be presented for allowance in the probate court is inseparable from the peculiar procedure prescribed in each jurisdiction; it is a part of that procedure and so not like a general statute of limitations, and can only be applied to persons who are bound by such special mode of procedure. But where the statute of nonclaim makes no exception as to any persons or class of persons, the courts can make none; and hence in the absence of some provision to the contrary, the statutes of nonclaim run against nonresident as well as resident, and infant as well as adult claimants, and also against insane persons, and the estate of a deceased creditor.”
Our statute makes no exceptions as to persons or classes of persons, and under the rule the minority of the claimant did not suspend the application of the statute. See Morgan v. Hamlet, 113 U. S. 449 (5 Sup. Ct. 583). Because of this conclusion it will be unnecessary to discuss the other grounds of demurrer.
The decree of the court below is affirmed, with costs to the defendant.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
-24,
33,
-28,
20,
18,
-1,
50,
-5,
-3,
15,
8,
-13,
13,
44,
-54,
-19,
-12,
-50,
-56,
-35,
-5,
33,
-49,
21,
9,
-4,
87,
-59,
2,
-31,
-15,
-11,
-23,
11,
24,
1,
37,
-54,
15,
19,
-13,
-59,
38,
-32,
8,
17,
45,
11,
20,
27,
-17,
-16,
-31,
23,
-10,
20,
25,
-23,
-17,
-1,
-47,
-44,
-10,
-75,
-12,
15,
13,
12,
-59,
-42,
40,
13,
-17,
-52,
0,
-25,
-43,
-73,
0,
46,
4,
-8,
25,
-18,
-10,
0,
-37,
8,
-29,
8,
-37,
27,
-13,
-11,
-21,
5,
2,
43,
36,
-35,
23,
-9,
-30,
18,
55,
5,
-1,
-37,
-3,
-14,
3,
-22,
5,
-22,
15,
-21,
-12,
-63,
-31,
-20,
15,
0,
39,
-70,
11,
37,
-7,
19,
58,
40,
23,
17,
-37,
-33,
-29,
2,
-26,
-77,
17,
-42,
-3,
-41,
-4,
-62,
-17,
70,
-84,
-24,
46,
-65,
4,
70,
-34,
50,
9,
17,
0,
-3,
28,
-20,
24,
-7,
19,
-42,
-60,
-35,
-15,
19,
17,
8,
-5,
0,
-28,
-24,
1,
22,
19,
-5,
-52,
14,
12,
24,
5,
2,
10,
-28,
-11,
-15,
-43,
-18,
0,
-37,
3,
41,
-18,
30,
55,
-37,
20,
-9,
-7,
-20,
31,
12,
55,
-33,
-9,
-24,
-56,
-3,
16,
-7,
-29,
38,
-110,
12,
49,
-49,
-36,
22,
17,
2,
28,
-3,
35,
-46,
27,
-39,
-1,
-45,
19,
-18,
-12,
31,
-43,
29,
45,
21,
-7,
25,
-8,
43,
15,
-78,
-33,
38,
-1,
-3,
-3,
34,
25,
63,
-33,
10,
-37,
-23,
-11,
21,
-21,
-34,
12,
-23,
-19,
38,
-4,
2,
-5,
31,
-2,
-16,
77,
-8,
16,
-10,
24,
-60,
36,
27,
-5,
3,
-16,
28,
18,
-18,
-26,
-22,
23,
22,
15,
29,
-15,
-18,
17,
-25,
58,
39,
20,
-7,
0,
-5,
-31,
-37,
25,
2,
-31,
-20,
22,
60,
-4,
3,
-36,
45,
-19,
-15,
52,
-11,
-28,
-21,
9,
48,
44,
1,
2,
15,
-1,
-4,
27,
9,
-11,
65,
-10,
-2,
35,
-71,
13,
-20,
-10,
-6,
-53,
-29,
69,
61,
8,
-4,
5,
-22,
15,
6,
3,
25,
-30,
16,
-2,
5,
30,
-10,
48,
-29,
-23,
92,
-6,
31,
-3,
-37,
3,
-34,
-8,
0,
32,
48,
4,
-21,
-17,
7,
9,
4,
-34,
36,
0,
43,
23,
-17,
-4,
72,
8,
-30,
-51,
6,
42,
29,
-5,
34,
13,
-13,
5,
-9,
-16,
9,
-62,
13,
-5,
59,
-25,
-12,
-48,
68,
-30,
-4,
5,
32,
37,
-18,
31,
-13,
27,
7,
2,
-23,
36,
1,
37,
47,
2,
-2,
4,
-6,
7,
0,
42,
-50,
-16,
0,
26,
7,
74,
10,
-18,
-31,
-4,
-1,
24,
32,
29,
20,
19,
12,
-19,
-46,
42,
-2,
-22,
36,
40,
28,
10,
17,
37,
18,
-60,
-41,
-35,
-10,
7,
55,
-21,
32,
37,
53,
-13,
24,
-7,
-11,
0,
-13,
29,
11,
6,
-7,
36,
22,
-38,
-12,
0,
-51,
4,
-19,
-4,
-17,
-33,
-53,
19,
-46,
3,
20,
-9,
3,
-44,
-15,
7,
1,
5,
14,
31,
50,
37,
-58,
-44,
8,
16,
16,
0,
0,
13,
-24,
-45,
68,
66,
-10,
48,
-21,
-9,
30,
-63,
14,
-19,
-9,
1,
3,
13,
14,
15,
-22,
-7,
23,
-1,
-18,
-17,
3,
-8,
-6,
-6,
40,
-1,
65,
-12,
9,
-23,
-7,
-8,
-33,
12,
-3,
5,
18,
-12,
1,
-7,
-48,
-26,
0,
0,
1,
-7,
-42,
32,
-21,
46,
-16,
-20,
1,
-5,
-17,
42,
-1,
17,
-20,
21,
-17,
19,
-31,
-10,
-11,
41,
-30,
-16,
-34,
-15,
20,
-11,
15,
-30,
0,
-47,
-8,
0,
-23,
-45,
-64,
17,
-15,
-64,
-29,
21,
-1,
1,
-3,
-31,
2,
31,
-32,
12,
15,
-19,
-8,
0,
9,
19,
-58,
23,
3,
-10,
41,
64,
-3,
-9,
-23,
25,
6,
31,
41,
74,
-46,
4,
-5,
-7,
20,
-24,
31,
1,
1,
-47,
13,
-37,
13,
-36,
55,
21,
5,
-17,
-25,
-51,
9,
-44,
29,
-26,
-1,
33,
-41,
-19,
-12,
25,
-40,
-8,
46,
6,
38,
19,
29,
-13,
16,
26,
2,
-27,
18,
-5,
4,
0,
35,
14,
5,
-8,
-23,
35,
-2,
-45,
-4,
-26,
-31,
-4,
-10,
20,
-46,
23,
77,
2,
6,
4,
22,
47,
15,
-48,
-6,
2,
34,
-51,
-19,
26,
-4,
-50,
-16,
43,
-19,
26,
-41,
-2,
5,
22,
-36,
19,
-20,
-47,
-13,
45,
-27,
-15,
7,
64,
3,
0,
6,
-19,
37,
-5,
19,
-37,
22,
-12,
-73,
23,
40,
-19,
-49,
-33,
-4,
5,
-10,
-8,
-1,
-5,
31,
8,
4,
-47,
5,
-13,
-29,
-8,
10,
-23,
-21,
23,
6,
25,
15,
0,
42,
-8,
6,
19,
0,
-29,
17,
1,
-28,
32,
26,
36,
-3,
17,
-15,
35,
-2,
-33,
8,
-14,
-10,
26,
-30,
10,
10,
-32,
-1,
-9,
2,
-23,
11,
-65,
-60,
1,
-16,
-3,
8,
-25,
47,
51,
-1,
-8,
28,
-80,
19,
-19,
-18,
-81,
-34,
-30,
4,
0,
38,
25,
-1,
4,
-7,
-17,
37,
43,
2,
-11,
28,
2,
-11,
-1,
-60,
-47,
-1,
15,
9,
-15,
31,
-11,
-1,
-22,
2,
5,
26,
20,
-1,
9,
-25,
-6,
1,
-1,
-46,
3,
72,
-8,
-66,
-33,
0,
4,
-15,
0,
-28,
32,
-79,
-14,
62,
27,
14,
30,
3,
-16,
-46,
-39,
-28,
39,
-20,
51,
-8,
21,
-17,
-18,
5,
-51,
34,
26,
55,
66,
-18,
6,
-7,
39,
36,
19,
-17,
-64,
14,
12,
10,
-5,
2,
-34,
3,
-35,
-54,
-74,
-15,
-5,
19,
-42,
-2,
30,
-51,
-1,
6,
-37,
14,
44,
19,
-51,
-6,
29,
-44,
-2,
2,
-12,
-47,
110,
-15,
-59,
49,
-2,
23,
-58,
11,
43,
-47,
16,
8,
10,
43,
36,
21,
-38,
-31,
-16,
-4,
12,
-32,
11,
2,
-10,
-8,
44,
54,
20,
29,
15,
-24,
-59,
16,
42,
18,
-3,
12,
42,
-12,
15,
2,
-4,
4,
-7,
5,
-43,
-52,
-4,
-13,
21,
10,
37,
34,
-33,
-38,
-35,
45,
-2,
-1,
-1,
-51,
-65,
-25,
53,
22,
0,
5,
16,
-36,
7,
12,
22,
-62,
-8,
-47,
15,
87,
5,
-25,
20,
-7,
-45,
-46,
-25,
12,
8,
45,
-32,
27,
0,
52,
11,
-9,
33,
-6,
6,
38
] |
Brooke, J.
Relator prays for the issuance of a writ of mandamus against respondent requiring him to recall and quash a writ of capias ad satisfaciendum. The antecedent facts are briefly as follows: One Della Anthony brought suit against relator and another in an action of trespass upon the case. The suit was commenced by a summons, and the declaration charged relator with fraud. Under a plea of the general issue, the parties went to trial, and a judgment was rendered against relator on the 27th day of Octo ber, 1913. On the 24th day of November, 1913, an execution was issued upon said judgment, made returnable January 15, 1914. Under date of January 10, 1914, the sheriff returned the execution nulla bona. On January 12, 1914, a writ of capias ad satisfaciendum was issued, although the record is silent as to the application therefor. The relator was arrested upon said writ and on January 13, 1914, gave a bond in the penal sum of $7,500 to the jail limits of the county of Washtenaw. On January 19th relator made a motion for an order recalling and quashing said writ of capias ad satisfaciendum, based upon the following grounds:
“First. That the said writ was issued without warrant or authority in law therefor.
“Second. That the plaintiff in the above case had waived the tort, if any, set up and complained of in the declaration in said cause, and had taken and accepted a verdict of the jury therein in assumpsit on contract.
“Third. That, at the time of the issue of the said writ of capias ad satisfaciendum, no judgment had been made and entered in said cause.
“Fourth. That no writ of execution had been issued in said cause and returned unsatisfied previous to the issuance of the said writ of capias ad satisfaciendum.
“Fifth. That there is no order or authority in said cause for the issuance of said writ.
“Sixth. That there is no order in connection with said writ to hold to bail the defendants.
“Seventh. It does not appear from the said writ that any judgment has been entered in said cause and the amount thereof so that the amount of bail under said writ may be determined.”
The action of the trial court in refusing to grant the order is reviewed in this proceeding. Relator discusses several minor questions arising antecedent to the issuance of the ca. sa. These relate to the form in which the verdict was originally entered and its amendment under the authority of the court and to the failure of the sheriff to note upon the fi. fa. the date of its receipt by him. It appears from the return that the verdict was taken in due form.by.the clerk of the court, but that an inexperienced deputy incorrectly entered it as a verdict in assumpsit instead of one in tort. By direction of the court the entry of the verdict was amended to conform to the fact. The amendment was properly made. Reynolds v. Cavanaugh, 139 Mich. 387 (102 N. W. 986). See 3 Comp. Laws, § 10270.
On March 2, 1914, Leo J. Kennedy, deputy sheriff, filed an affidavit in the cause stating that he had received the writ of execution on the 24th day of November, 1913, and asking for leave to indorse such receipt upon the writ; the same having been omitted through an oversight. This, in our opinion, was properly permitted by the court. Shepard v. Schrutt, 163 Mich. 485-490 (128 N. W. 772). The meritorious question raised by this application is the first one, “that the said writ was issued without warrant or authority in the law therefor.”
It is the claim of relator that plaintiff, Della Anthony, having commenced her action by summons instead of by a capitis ad respondendum, as she might have done under section 9996, 3 Comp. Laws, is now precluded from having recourse _ to a writ of capias ad satisfaciendum, although she would have been entitled to the latter writ had she used the more rigorous process as commencement of suit. The precise question seems never to have been raised in this court.
3 Comp. Laws, § 10301, provides:
“Such execution may be either: (1) Against, the goods and chattels, lands and tenements of the party against whom such judgment was recovered; or (2) ■against the body of such party, in the cases authorized by law.”
The statutes are silent as to the cases in which a body execution may issue in this State. It is there fore necessary to determine the question from an examination of the precedents arising under the common law.
In an early case (Fuller v. Bowker, 11 Mich. 204), Justice Christiancy used the following language at page 210:
“We understand the common-law rule to have been that a capias ad satisfaciendum could be issued in those cases, and those [cases] only, in which the suit might have been commenced by capias ad respondendum, or, in other words, when the latter was the immediate process upon the original writ. The only exception to this seems to have been when the defendant was an attorney or officer of the court; in such case he might be taken in execution, though sued by bill. 2 Arch. Pr. 276. Originally the capias ad satisfaciendum lay at common law only in trespass vi et armis. But as statutes were subsequently passed, giving the capias ad respondendum as the mesne process in other cases, the capias ad satisfaciendum was held to follow, as a common-law incident. But in no case was the latter allowed without the former unless directly authorized by statute. 1 Sellon’s Pr. 513; Comyn’s Dig. Execution, c. 9; Tomlin’s Law Diet, title ‘Capias;’ 1 Arch. Pr. 276.”
In 1 Sellon’s Practice, p. 513, cited by Judge Christiancy, it is said:
“A capias ad satisfaciendum, by the common law, lay only in trespass vi et armis, being a direct and wilful wrong, and wherein the capias ad respondendum was the immediate process upon the original writ. But several statutes having given the process of capias ad respondendum, as the mesne process upon the original writ in other personal actions, than those committed vi et armis, the capias ad satisfaciendum has become an executory process in them also, it being held as a rule that, where a capias lies in process before judgment, it will lie in execution upon the judgment itself.”
In 1 Burrill’s Practice, p. 308, we find the following:
“It may be considered a general rule, that a capias ad satisfaciendum will lie in all cases where a (bailable) capias ad respondendum might have been used as the process to bring the. defendant before the court” — citing 1 Arch. Pr. 303.
In 1 Tomlin’s Law Dictionary, at page 287, after describing the writ, the writer says:
“Properly speaking, this writ cannot be sued out against any but such as were liable to be taken upon the capias mentioned in the preceding article” — citing 3 Rep. 12; M. O. 767. See, also, 2 Tidd’s Practice (2d Am. Ed.), p. 1025; Graham’s New York Practice, p. 410.
In 4 Comyn’s Digest, at page 228, we find the following :
“So execution may be by capias ad satisfaciendum against the body of the defendant in all cases where a capias ad respondendum lies in process.”
Our Constitution, art. 2, § 20, provides:
“No person shall be imprisoned for debt arising out of or founded on a contract, express or implied, except in cases of fraud or breach of trust, or of moneys collected by public officers or in any professional employment. No person shall be imprisoned for a military fine in time of peace.”
It is obvious that the plaintiff in the principal case might have proceeded against relator under the Constitution as well as under the statute cited, supra, by causing to issue a writ of capias ad respondendum as commencement of suit. Should she now be deprived of her right to the writ of ca. sa. because of having chosen the less drastic writ for her mesne process? We are of the opinion that she should not.
In the case of Hunt v. Burdick, 42 Vt. 610, it is said:
“There is nothing in our statutes or practice that requires the establishment of a rule that the plaintiff in an action of tort shall be deprived of the right, which the law gives him, of taking an execution against the body of the judgment debtor, because he omits to issue his original writ against the body. What operates so manifestly as matter of ease and favor to the defendant, ought not to be the ground of forfeiture of the rights of the plaintiff.”
The case of Lapham v. Oakland Circuit Judge, 170 Mich. 564 (136 N. W. 594), cited on behalf of respondent as authority, is not controlling for the reason that in that case the question considered was only whether the body execution had been seasonably issued. The basic right of the plaintiff to the writ was not questioned.
The writ is denied.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
-13,
16,
38,
63,
17,
-43,
14,
-21,
9,
2,
7,
-69,
-42,
40,
-16,
-59,
64,
54,
4,
-6,
-4,
-11,
-7,
6,
15,
21,
19,
-29,
34,
0,
-10,
-15,
-3,
-2,
-17,
-18,
37,
-9,
52,
8,
7,
59,
-11,
39,
-40,
-48,
-22,
3,
23,
-50,
-34,
-30,
-30,
19,
-13,
9,
7,
-24,
11,
6,
16,
-12,
-59,
-1,
-37,
-19,
5,
24,
4,
35,
34,
-44,
33,
9,
-4,
-5,
-18,
-27,
49,
17,
21,
2,
-19,
88,
-23,
-4,
-16,
-24,
20,
-53,
-35,
48,
-92,
28,
-5,
-24,
-10,
-3,
-13,
42,
0,
19,
-47,
20,
-35,
7,
0,
-41,
-5,
35,
25,
59,
28,
11,
-35,
-30,
-98,
-42,
101,
-64,
-14,
-20,
34,
13,
2,
-13,
-15,
-33,
8,
-12,
-54,
14,
16,
2,
-42,
-19,
16,
16,
-7,
-41,
-7,
0,
-3,
-1,
39,
5,
29,
-2,
-17,
14,
16,
52,
55,
62,
27,
-36,
38,
-21,
-52,
6,
56,
17,
-28,
-13,
18,
-13,
8,
-26,
10,
-32,
2,
28,
-51,
43,
-18,
-13,
-59,
-43,
14,
-6,
1,
32,
-26,
-28,
49,
-12,
6,
-18,
28,
-20,
-19,
-6,
-7,
66,
23,
-35,
-38,
-29,
-4,
-2,
-34,
60,
-31,
5,
-30,
-65,
0,
-45,
-23,
5,
-46,
-44,
-46,
-22,
8,
-26,
7,
20,
27,
31,
-54,
2,
25,
41,
-22,
6,
32,
21,
3,
2,
34,
-21,
-27,
-14,
34,
2,
-9,
20,
5,
7,
-22,
54,
1,
4,
80,
3,
26,
16,
-14,
2,
-42,
13,
-6,
-32,
-64,
-37,
1,
14,
-7,
0,
3,
-1,
-3,
13,
2,
-58,
16,
4,
27,
-9,
-30,
-17,
1,
-29,
13,
-39,
-27,
-18,
16,
-48,
-30,
5,
-79,
-22,
-10,
27,
-26,
-35,
-68,
-11,
21,
-12,
33,
13,
-15,
4,
20,
-31,
33,
18,
-8,
-7,
30,
6,
-16,
11,
-8,
23,
-35,
-32,
9,
-20,
0,
52,
37,
-8,
12,
-20,
-12,
-34,
-9,
48,
-7,
-25,
-33,
13,
0,
36,
-50,
18,
-18,
9,
-30,
0,
-12,
46,
10,
49,
-16,
-6,
19,
3,
-81,
15,
-51,
29,
-6,
27,
-52,
12,
-48,
-4,
-1,
3,
-14,
-17,
-41,
-25,
38,
68,
46,
0,
-7,
-7,
38,
31,
-20,
0,
-13,
37,
11,
10,
-2,
-34,
-21,
5,
-9,
16,
-8,
42,
4,
-63,
16,
2,
-24,
-42,
-33,
24,
-13,
12,
-29,
51,
-28,
-26,
-45,
-10,
-3,
7,
-27,
7,
-29,
54,
27,
16,
0,
-18,
-30,
37,
10,
25,
70,
14,
1,
-14,
33,
-29,
-34,
-25,
-5,
-26,
0,
-32,
10,
-40,
0,
56,
-13,
0,
10,
-4,
-7,
18,
49,
46,
-21,
17,
-15,
-27,
7,
-37,
40,
15,
-17,
2,
35,
-1,
-22,
-32,
18,
31,
40,
9,
-20,
-43,
-42,
10,
36,
9,
46,
-3,
39,
-35,
-26,
56,
36,
-42,
-10,
13,
-6,
-18,
27,
-10,
-48,
19,
-24,
19,
13,
7,
41,
-34,
-44,
6,
5,
-38,
-9,
53,
4,
-27,
-55,
45,
-30,
-18,
-41,
66,
-24,
-8,
-15,
-14,
18,
14,
-24,
59,
-45,
24,
22,
35,
32,
-13,
0,
-8,
-39,
0,
11,
-14,
10,
0,
13,
11,
-36,
-10,
1,
-15,
8,
4,
-50,
10,
12,
20,
-36,
11,
-11,
-43,
-14,
-36,
-23,
72,
-20,
-47,
4,
-9,
-22,
29,
0,
18,
-18,
43,
-20,
-37,
-34,
18,
19,
-10,
-23,
0,
-37,
3,
17,
-21,
-41,
6,
71,
-8,
20,
10,
-29,
-15,
-34,
17,
-19,
20,
7,
-24,
26,
30,
-9,
2,
-87,
-21,
23,
-5,
14,
65,
-45,
-6,
33,
-28,
-13,
-12,
-11,
19,
-32,
48,
4,
-23,
-16,
0,
-1,
0,
23,
-23,
11,
61,
19,
-36,
-20,
27,
27,
16,
23,
1,
-5,
34,
-27,
-18,
-44,
26,
43,
-4,
-25,
62,
13,
25,
-23,
14,
33,
-12,
57,
-52,
-5,
16,
-10,
-6,
-6,
-7,
-19,
3,
-51,
57,
13,
-37,
-25,
-6,
19,
-91,
3,
1,
-6,
-11,
13,
-4,
10,
-9,
23,
-35,
-38,
-26,
31,
14,
32,
25,
-19,
18,
-48,
8,
-14,
-2,
-1,
62,
-9,
48,
43,
-72,
42,
-54,
24,
-45,
-27,
-16,
10,
32,
-23,
2,
25,
-17,
11,
22,
-18,
14,
10,
31,
-40,
11,
-11,
0,
39,
12,
48,
11,
-14,
8,
12,
-48,
17,
-10,
-33,
-5,
20,
-10,
67,
-31,
21,
-36,
-15,
33,
27,
22,
49,
-16,
9,
-2,
-26,
0,
-1,
-9,
30,
45,
3,
-14,
6,
2,
50,
46,
29,
-25,
16,
14,
2,
-15,
-5,
-9,
-50,
-27,
0,
-2,
14,
-29,
10,
0,
0,
-6,
33,
-55,
45,
-4,
-53,
37,
-35,
-32,
16,
21,
10,
23,
-71,
8,
-52,
-3,
-31,
-37,
5,
13,
38,
-35,
-13,
-6,
5,
13,
53,
-24,
21,
-33,
-10,
36,
-42,
26,
24,
-69,
9,
-36,
-76,
2,
6,
-42,
24,
-5,
-22,
-12,
46,
-27,
-38,
-15,
39,
11,
30,
14,
41,
20,
0,
-19,
0,
0,
0,
12,
-23,
22,
-33,
-9,
-61,
-9,
39,
-13,
-16,
-36,
53,
-4,
-9,
78,
7,
-6,
-40,
47,
47,
-2,
-6,
44,
4,
23,
15,
-26,
38,
-10,
30,
-26,
26,
-12,
-34,
-40,
37,
39,
-46,
-32,
12,
2,
-38,
18,
-29,
-9,
1,
24,
7,
-12,
-14,
12,
-1,
-18,
-11,
-20,
0,
63,
20,
32,
49,
0,
6,
37,
-20,
28,
40,
-27,
-3,
2,
-8,
9,
-4,
32,
-46,
12,
5,
-79,
-10,
30,
4,
31,
-2,
25,
-5,
-9,
-11,
-52,
-52,
-15,
-46,
14,
28,
20,
19,
13,
-9,
15,
22,
34,
44,
-18,
-29,
-34,
-18,
10,
3,
2,
-3,
40,
-15,
20,
-7,
9,
6,
4,
-5,
5,
11,
72,
39,
-5,
-26,
1,
-29,
-16,
12,
5,
51,
-1,
-15,
-4,
-42,
2,
4,
20,
-5,
20,
0,
-16,
-43,
24,
16,
12,
-9,
10,
0,
23,
-11,
-15,
-29,
-4,
-23,
39,
-4,
59,
3,
20,
51,
33,
12,
-28,
-44,
21,
-18,
16,
31,
-16,
9,
-15,
-35,
10,
18,
-32,
-8,
-12,
46,
35,
-31,
-55,
42,
52,
-27,
29,
19,
-1,
-26,
-17,
-14,
3,
-8,
-25,
44,
18,
-2,
-35,
2,
7,
-27,
13,
11,
-45,
38,
25,
14,
52,
7,
-27,
28,
3,
30,
8,
13,
-10
] |
McAlvay, C. J.
Complainants, heirs at law of John S. Turns, Sr., deceased, filed their bill of complaint in this cause against defendants to remove a cloud from the title to certain land in Muskegon county, averring in said bill that their ancestor, John S. Turns, Sr., being the owner in fee of the land therein described, on August 1, 1896, conveyed the same to defendant John S. Turns, Jr.; that the grantor in said deed was at the time mentally incompetent to make such conveyance, and that the same was procured by fraud and duress; that on November 1, 1906, John S. Turns, Jr., by- quitclaim deed, transferred the said premises to his wife, defendant Jennie Turns; that both of these deeds were duly recorded. The bill prays that the deeds be declared void and set aside as a cloud upon the title of complainants, and further prays for general relief.
Defendants answered, claiming the benefit of a demurrer, admitting that the conveyances were made, but denying the allegations of fraud, etc., set forth in the bill, averring that the first transfer was made in good faith for a valuable consideration, in fulfillment of an agreement entered into between the parties in 1890, whereby, in consideration that defendants made a home for the grantor during his lifetime, he agreed to give them the lands described in the deed, and under such agreement they went into possession at once, and have so continued in possession without interruption until the present time; that at the time John S. Turns, Sr., gave the deed above mentioned defendant gave back to him a life lease of the premises, and agreed to support him during his natural life; that afterwards, in 1904, for the sum of $1,000 cash, paid to said John S. Turns, Sr., they purchased all his right in said premises under said life lease and contract. Defendant John S. Turns, Jr., disclaimed any interest in the premises, having deeded all such interest to his wife. Upon an issue joined a hearing was had upon proofs taken in open court. Later a decree was granted, dismissing the bill of complaint. Complainants have appealed from this decree to this court.
The record shows that from the time of the conveyance by the ancestor to them, the defendant John S. Turns, Jr., and his wife, Jennie Turns, up to the time of the transfer to Jennie Turns, these premises in question continued in the open, notorious, and exclusive possession of the defendants, and from that time up to the time of the hearing were so possessed and occupied by said Jennie Turns. The record also shows that upon the hearing both sides introduced all the evidence they desired upon the merits of the case, and that the court decided the case upon its merits and dismissed the bill.
The contention of the defendants was in the court below, and is in this court, that a bill to quiet title cannot be maintained by one out of possession against a defendant in possession. This is answered on the part of appellants by saying that this is not a bill to quiet title, but a bill to set aside a certain deed fraudulently obtained by defendants.
In a recent case this exact question was presented, and this court held that a bill of complaint, containing averments similar to those contained in the bill in this case, was not a bill to quiet title, but to procure the cancellation of an alleged deed upon the ground that it was obtained by fraud, and therefore presented a ease for equitable cognizance. Gragg v. Maynard, 164 Mich. 535 (129 N. W. 723), and cases cited.
In the instant case the averment in this bill is that the deed sought to be set aside and declared void was obtained by fraud and undue influence, and, as in the case above cited, also averred that the deed was a cloud upon complainants’ title, and prayed to have such cloud removed. The contention of defendants, therefore, cannot be sustained.
We have examined all of the evidence presented in the case to the court. It will be of no benefit to the profession to rehearse it in this opinion. The complainants upon the hearing abandoned all claim of undue influence, and failed to establish any fraud on the part of defendants. There is abundant evidence in the record to support the conclusion of the circuit court that the conveyance by the father to his son John Turns, Jr., was made in good faith and for a valuable consideration.
We, therefore, affirm the decree. John Turns, Jr., having disclaimed all interest in the premises, defendant Jennie Turns will recover costs against complainants to be taxed.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
-19,
43,
30,
6,
7,
28,
7,
10,
41,
17,
-10,
-50,
2,
8,
-33,
12,
-14,
0,
-3,
-7,
-6,
-58,
-1,
14,
-4,
-17,
27,
9,
-25,
0,
0,
-14,
-31,
21,
52,
-13,
35,
-39,
-20,
-12,
-1,
-58,
2,
-23,
24,
32,
15,
-24,
24,
-24,
-22,
-30,
-4,
-5,
-17,
-19,
-37,
21,
-19,
7,
6,
6,
-50,
-37,
12,
5,
32,
-14,
18,
-14,
14,
-18,
33,
-2,
28,
23,
-35,
-25,
0,
7,
-32,
-22,
34,
0,
-60,
-9,
-10,
-36,
-34,
2,
-25,
30,
-4,
7,
13,
2,
48,
42,
-9,
0,
-8,
10,
25,
17,
25,
-14,
-15,
-7,
-36,
-28,
0,
-19,
61,
-9,
32,
-30,
13,
-9,
-31,
-4,
-11,
-36,
14,
-37,
-23,
37,
-31,
-3,
6,
35,
63,
-28,
-47,
-4,
7,
-29,
33,
3,
22,
14,
11,
38,
-36,
-23,
-16,
4,
-30,
-26,
11,
-65,
-59,
10,
56,
0,
28,
-27,
17,
26,
18,
-19,
63,
15,
35,
-63,
-41,
-14,
2,
-24,
19,
15,
19,
-16,
-24,
-52,
-6,
-60,
42,
-15,
-24,
25,
2,
36,
68,
-5,
5,
-29,
26,
-14,
13,
-7,
-9,
20,
9,
-16,
-27,
11,
0,
-29,
23,
24,
-19,
-45,
3,
-34,
-14,
-62,
17,
-4,
-40,
9,
-8,
-35,
-50,
-2,
-19,
26,
40,
-21,
-17,
-17,
70,
43,
0,
37,
-6,
-19,
26,
-15,
8,
4,
29,
-42,
12,
13,
-35,
6,
-9,
16,
-4,
-17,
0,
14,
3,
-42,
-41,
77,
-24,
17,
-16,
45,
-7,
2,
-58,
-31,
31,
42,
7,
31,
1,
-23,
0,
13,
-11,
-9,
-13,
-11,
-1,
-23,
11,
-21,
-5,
-49,
22,
9,
-4,
-8,
-19,
31,
-11,
34,
46,
-28,
17,
17,
-23,
34,
10,
57,
-14,
26,
-58,
-20,
11,
-20,
9,
12,
-4,
-29,
10,
0,
-39,
-1,
-21,
-12,
-14,
-45,
-7,
-27,
-23,
41,
67,
-12,
22,
9,
21,
8,
-4,
8,
65,
8,
-4,
-33,
-28,
-24,
16,
56,
50,
-12,
1,
41,
-21,
-31,
27,
4,
-4,
2,
28,
6,
17,
0,
63,
29,
14,
-32,
12,
4,
19,
-35,
31,
-2,
-31,
-19,
18,
26,
-19,
-19,
28,
-22,
0,
-10,
19,
15,
-28,
8,
19,
35,
-56,
-20,
-11,
15,
28,
7,
-21,
25,
5,
9,
-12,
-35,
-21,
34,
56,
-33,
11,
24,
5,
-35,
-58,
-3,
-58,
34,
-24,
26,
7,
-10,
-12,
-37,
-11,
-19,
-81,
-12,
10,
35,
-19,
31,
-58,
17,
24,
24,
43,
0,
16,
-25,
57,
-24,
34,
-7,
-24,
5,
33,
17,
24,
49,
38,
-35,
12,
15,
16,
12,
-5,
-33,
32,
17,
57,
14,
51,
44,
-45,
39,
45,
52,
41,
41,
67,
14,
12,
1,
-40,
-19,
17,
-8,
35,
15,
2,
-43,
-23,
-3,
62,
-12,
17,
-67,
24,
-17,
22,
2,
23,
7,
-37,
6,
37,
18,
-15,
30,
-24,
-25,
-28,
-26,
55,
0,
7,
-33,
3,
-12,
-15,
-22,
-20,
-33,
-21,
48,
-10,
-37,
2,
-32,
-15,
35,
-12,
-51,
-24,
-1,
34,
3,
13,
1,
8,
20,
-15,
-12,
-42,
-4,
-7,
49,
5,
-26,
-9,
-16,
-35,
66,
63,
-17,
55,
-29,
25,
-37,
-5,
-24,
8,
-14,
19,
43,
19,
18,
-18,
-53,
-10,
-3,
-1,
-26,
-17,
24,
-19,
-17,
23,
10,
25,
15,
-4,
-22,
-25,
-35,
6,
10,
-25,
-51,
4,
0,
-59,
7,
9,
-44,
-13,
-29,
4,
-34,
-5,
-34,
35,
-16,
18,
-25,
-21,
6,
-29,
6,
83,
-33,
1,
15,
-34,
-44,
0,
16,
19,
21,
21,
-53,
37,
50,
-4,
36,
3,
28,
-33,
26,
-14,
12,
-15,
0,
0,
25,
74,
-42,
-10,
-25,
-39,
5,
1,
14,
21,
39,
7,
-22,
-1,
-17,
12,
26,
20,
43,
10,
-36,
19,
-6,
10,
5,
13,
-5,
-18,
0,
18,
44,
-50,
57,
9,
-7,
-75,
0,
-17,
22,
-27,
-15,
8,
-9,
-25,
-19,
-75,
26,
-19,
16,
-16,
-11,
-28,
27,
-39,
10,
14,
38,
-28,
-19,
35,
0,
31,
18,
87,
-6,
-5,
51,
-2,
-6,
18,
0,
25,
18,
1,
1,
-4,
12,
-42,
-32,
-1,
74,
61,
20,
6,
0,
34,
-9,
40,
-32,
-30,
1,
7,
4,
-6,
-31,
-9,
33,
-41,
27,
-44,
4,
80,
-16,
3,
45,
-11,
15,
-59,
15,
12,
-28,
-42,
-9,
-26,
5,
22,
-19,
2,
89,
38,
14,
12,
-2,
-3,
-19,
0,
-63,
17,
-9,
-14,
-37,
-21,
-1,
-13,
86,
8,
6,
-12,
-1,
-17,
20,
-13,
-7,
8,
-56,
-76,
25,
25,
-46,
-22,
44,
-10,
-32,
0,
7,
-14,
25,
-1,
-49,
-8,
-3,
-12,
-32,
7,
18,
38,
-13,
-44,
0,
20,
-27,
0,
0,
-20,
17,
-13,
-18,
-30,
-5,
5,
4,
6,
-28,
14,
-10,
-37,
-34,
-2,
-18,
10,
-51,
28,
-18,
-8,
-27,
-19,
-7,
-58,
-32,
-5,
-18,
-20,
-50,
-27,
19,
-49,
2,
11,
-14,
-10,
-5,
-29,
33,
24,
-31,
-19,
-23,
-26,
17,
6,
43,
-9,
-1,
18,
17,
9,
7,
3,
19,
56,
32,
-69,
-1,
12,
-40,
-19,
36,
11,
-66,
23,
-8,
19,
-8,
-21,
-10,
-19,
41,
7,
37,
23,
-28,
27,
-10,
-37,
-10,
-19,
-1,
-53,
-39,
-12,
9,
-8,
-13,
56,
1,
-48,
-41,
-34,
18,
21,
-31,
-9,
-6,
0,
-20,
-29,
2,
41,
-24,
45,
-30,
-19,
54,
-24,
-13,
-4,
-7,
-23,
27,
49,
-29,
-4,
15,
-8,
-4,
-4,
-10,
-16,
-13,
46,
-23,
-2,
-8,
11,
-19,
-27,
-28,
-39,
-40,
2,
50,
41,
22,
-7,
-23,
-33,
-48,
-68,
-13,
19,
0,
-2,
15,
10,
21,
-3,
10,
-34,
-28,
-6,
23,
-40,
51,
13,
59,
5,
-11,
30,
-12,
36,
-30,
43,
0,
17,
35,
42,
9,
-21,
-18,
31,
-16,
17,
67,
0,
-42,
18,
45,
-28,
28,
-18,
-47,
-26,
3,
5,
4,
2,
-3,
39,
-9,
13,
-3,
1,
65,
-6,
0,
-1,
-33,
-18,
1,
25,
12,
35,
-58,
33,
-41,
-22,
52,
4,
10,
-3,
-80,
-24,
-31,
83,
6,
19,
-32,
-8,
2,
-21,
-23,
-20,
-11,
40,
-25,
32,
-14,
37,
-42,
32,
21,
10,
-2,
-57,
26,
63,
53,
-29,
1,
20,
0,
22,
2,
1,
12,
4,
45
] |
Bird, J.
In the early evening of November 3, 1910, Henry J. Horrigan was driving his automobile in a westerly direction on Briggs avenue, in the city of Grand Rapids. In the automobile with him were his wife and her parents, Mr. and Mrs. Westover. It was Ms intention, when he reached the intersection of Briggs and Grandville avenues, to cross over the street car tracks and drive south on Grandville avenue. As he approached Grandville avenue, he looked to the south and saw the headlight of an approaching street car. His estimate of the distance it was away was 200 feet. He was going from 6 to 8 miles an hour, and concluded he could cross in safety before the street car arrived at the intersection. He proceeded across; but before he cleared the east track the car struck the automobile, turning it over, and throwing the occupants out, and injuring Mr. Westover so badly that he died within a few hours thereafter. Mrs. Westover, the widow, brings this suit, as executrix, to recover for the negligent killing of her husband. The negligence complained of was the excessive speed of the car, a failure to observe the ordinance, which limits the speed to 15 miles an hour, and the failure of the motorman to have the car under control in passing the intersection of these avenues. The defendant denied the charge of excessive speed, denied that it violated the ordinance, and charged that the driver of the automobile was guilty of contributory negligence in attempting to cross in front of the car, and also in operating his automobile at an excessive and unreasonable speed. Upon these issues the case was tried and submitted to the jury, who returned a verdict for the defendant. The plaintiff brought error, and her principal assignments of error are based upon the charge of the court.
One portion of the charge complained of is as follows:
“(1) If you find that Horrigan was inattentive to the rate of speed at which the car was coming, that would be negligence on his part, as it was his duty under the circumstances to have noticed the speed at which the car was coming, as far as he could do so. It was Mr. Horrigan’s duty to observe the speed of the car from the time he first saw it and up to the time he went onto the track. Merely looking at the car once at a distance was not enough; he should have continued to observe the speed until he got to the track, and if h& failed to do this, the plaintiff cannot recover.”
That portion of the charge which appears in italics is attacked on the ground that it instructed the jury that the driver of the automobile was guilty of negligence if he did not continue to observe the street car from the time he first saw it until he went onto the track. The driver testified that, when within 5 or 6 feet of the east line of Grandville avenue, he first saw the approaching headlight. He thought the car was then 200 feet away. He had to travel 6 feet to Grand-ville avenue and upwards of 24 feet beyond that to a place of safety. If, when he had gone half that distance, another observation had convinced him that it was dangerous to cross ahead of the car, it would have been his duty to stop. We think it can be said as a matter of law that, when an ordinarily prudent person is about to cross a highway, whether on foot (Zoltovski v. Gzella, 159 Mich. 620 [124 N. W. 527, 26 L. R. A. (N. S.) 435, 134 Am. St. Rep. 752]), on a bicycle (Measel v. Railway, 166 Mich. 688 [132 N. W. 453]), or in a carriage or automobile, and he observes an approaching street car or any other vehicle which may obstruct his passage, he is watchful of it or them until he has passed the danger point and reaches a place of safety. As to whether he has done so in any given case is usually a question of fact to be determined from all the circumstances by a jury. But counsel argue that the rule laid down by the court is too strict, in that it placed the duty upon the driver to look continually at the car after he first saw it until the danger of collision was passed. A fair construction of the language means that it was the duty of the driver to continue his observation sufficiently after he first saw it to enable him to verify the safety of his decision, or to revise it if necessary to avoid a collision. This is a reasonable construction of the language used by the court, and is a reasonable requirement, and one usually followed by ordinarily, prudent people when crossing the highway.
The court, in compliance with defendant’s requests, instructed the jury that:/ •
“The statutes, of the State also required Mr. Horrigan, on approaching the intersection of Grandville avenue and Briggs avenue, to have his automobile under control, and to operate it at such speed as was reasonable and proper, having regard to the traffic then on Grandville avenue, and for the safety of the public, and if he failed to do so, he was negligent, and, if this negligence contributed té Mr. Westover’s death, the plaintiff cannot recover. -The statutes of this State made it unlawful for Mr. Horrigan to operate his automobile on Briggs avenue at a higher rate of speed than 15 miles an hour. If, approaching Grandville avenue, he was running his automobile at a greater rate of speed than 15 miles an hour, he was guilty of negligence, and if such negligence in any degree contributed to the accident, plaintiff cannot recover.”
These instructions were evidently based upon Act No. 318 of the Public Acts of 1909 (2 How. Stat. [2d Ed.] §§ 2487, 2493) , known as the automobile law. The criticism made upon the first paragraph is that it was not applicable to the facts as they were established by the proofs. In view of the claims made by defendant on the trial, that the driver of the automobile was guilty of contributory negligence in operating his automobile at a speed which was improper and unreasonable, and in excess of that prescribed by the statute, we see no impropriety in defining to the jury the statutory duty of those driving automobiles upon the public highway.
The other paragraph is criticised because the court instructed the jury that, if the driver of the automobile was running his car at a speed in excess of 15 miles an hour, he was guilty of negligence. It is said that, even if he were operating the automobile at a speed in excess of 15 miles an hour, it was not negligence per se, but only evidence of negligence. It is argued that this instruction was error, and was harm-, ful to the- plaintiff’s case.
In some jurisdictions it has been held that a violation of an ordinance or a statute is negligence per se; but this court has not followed that rule with reference to violations of ordinances. Cook v. Johnston, 58 Mich. 437 (25 N. W. 388, 55 Am. Rep. 703) ; Flater v. Fey, 70 Mich. 644 (38 N. W. 656); Sterling v. City of Detroit, 134 Mich. 22 (95 N. W. 986) ; Blickley v. Luce’s Estate, 148 Mich. 233 (111 N. W. 752). It has, however, followed the rule with reference to violations of statutes, and it has been many times held that a violation of a statute was negligence per se. Billings v. Breinig, 45 Mich. 65 (7 N. W. 722) ; Syneszewski v. Schmidt, 153 Mich. 438 (116 Ñ. W. 1107) ; Little v. Bousfield & Co., 154 Mich. 369 (117 N. W. 903) ; Van Doom v. Heap, 160 Mich. 199 (125 N. W. 11) ; Tabinski v. Manufacturing Co., 168 Mich. 392 (134 N. W. 653).
While in some cases involving the statute the violation has been spoken of as “evidence of negligence,” we think there has been no intention to depart from the rule that a violation of a statute imposed under the police power of the State is negligence per se. The portion of the charge complained of in this connection having been based on the statutory provisions regulating the operation of automobiles, the trial court was in no error in giving the request.-
It is also said that the trial court was in error in giving defendant’s fourteenth request, which was as follows:
“When a street car and an automobile are approaching a street intersection, the street car has the right of way, and if it is necessary to avoid an accident, it is the duty of the automobile to stop and allow the street car to pass on ahead of it.”
Counsel contends that, if this request- had been properly qualified, it would not have been objectionable, but, as it stands, it is not the law, for thte'reason that, if a motorman should discover that the track was about to be occupied by an automobile in making a crossing, it would be his duty to stop, if necessary, to avoid a collision; and it is further claimed that--the whole charge is characterized “by emphasizing duties of the party attempting to cross the tracks, without also explaining the duties of the motorman in connection therewith.”
Counsel have evidently overlooked the fact that this request was not given as requested. The trial court inserted the word “ordinarily” after the words “street car,” making the charge read, “the street car ordinarily has the right of way,” etc. Before giving this request, the trial court gave some rules of law bearing upon the reciprocal duties of the street railway company and other parties using the highways, and, among these observations, the following occur:
“People who are traveling upon the streets of this city have a right to rely to some extent upon the watchfulness and prudence of the motorman in charge of the cars, and upon his ability to stop his car within a reasonable distance, and it 'would be the duty of the motorman in this case, who represented the defendant, and who was in charge of the car, to be cautious and vigilant, and not to run his car at an unlawful or dangerous rate of speed, and to- keep a sharp lookout, and to give reasonable and timely warning of the approach, of his car to travelers upon the street, or who were about to cross the tracks ahead of his car, and to check and stop his car when it seemed necessary to do so.
“A traveler upon the streets of this city is not required to refrain from crossing whenever a car is in sight, and there may be cases where he may properly exercise his judgment upon the question of when he should attempt to cross the tr'ack, and it may happen that he has miscalculated the distance the street car is away from him. The question is: Did he act as an ordinarily prudent man would have acted in attempting to cross?
“If an ordinarily prudent man under the circumstances would have attempted to cross, he is not necessarily guilty of contributory negligence, although he miscalculated the distance.
“The rights to travel the streets of this city as between the street cars and travelers, and at the intersections thereof, are reciprocal, and it is the duty of the motorman to watch and so far as practicable keep his car under control.”
In view of the jury having been instructed in this manner, we think the criticism of counsel is not well taken. We have examined the other errors assigned, but find no reversible error in them.
The judgment of the lower court is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
-9,
87,
0,
-7,
-26,
-32,
51,
-12,
62,
9,
-56,
0,
9,
-34,
8,
-8,
-7,
-47,
-33,
-20,
-19,
-40,
-27,
-62,
-5,
-1,
56,
-7,
-57,
36,
70,
-10,
-28,
-18,
-27,
39,
31,
0,
17,
-3,
24,
-20,
-23,
-47,
50,
-40,
11,
-2,
27,
-7,
1,
-8,
2,
-29,
-39,
-8,
21,
37,
-17,
20,
18,
-21,
49,
-36,
0,
19,
8,
47,
-27,
-19,
-22,
-4,
10,
-23,
-35,
13,
24,
35,
-32,
4,
-56,
53,
68,
18,
-10,
7,
-56,
-8,
-41,
-96,
6,
-7,
-3,
3,
47,
7,
-64,
13,
-3,
-6,
-16,
8,
47,
56,
-39,
4,
-25,
-32,
11,
-58,
-8,
89,
38,
23,
-1,
-19,
12,
0,
21,
25,
23,
-48,
37,
38,
-45,
-2,
-27,
18,
-14,
14,
-1,
-15,
30,
-32,
-5,
10,
-33,
-3,
-10,
19,
-24,
-28,
26,
67,
-50,
9,
-6,
39,
-19,
-22,
-5,
35,
-55,
-45,
-3,
-36,
-44,
-37,
46,
46,
-19,
20,
88,
22,
-54,
14,
-86,
38,
-24,
-1,
14,
-25,
49,
-36,
32,
10,
-31,
-26,
-76,
9,
-4,
11,
46,
12,
-12,
-96,
27,
59,
-28,
2,
32,
-24,
-27,
-14,
-23,
65,
13,
-47,
19,
2,
79,
-9,
-16,
-25,
-39,
-15,
-6,
1,
-22,
-14,
13,
-42,
1,
22,
21,
-1,
-44,
-27,
4,
-42,
36,
-31,
22,
13,
24,
-39,
-68,
-36,
-46,
34,
12,
8,
-44,
-21,
-19,
-15,
-22,
-58,
3,
4,
62,
28,
15,
-12,
0,
20,
18,
6,
-8,
49,
21,
14,
-13,
-9,
1,
-6,
49,
16,
46,
30,
21,
88,
7,
5,
22,
3,
-22,
14,
28,
-1,
-27,
-16,
2,
20,
-24,
-51,
14,
38,
14,
17,
7,
-40,
-54,
11,
19,
14,
-29,
-11,
-25,
-55,
70,
-15,
-7,
53,
-3,
49,
67,
40,
-67,
-4,
35,
-42,
-13,
13,
44,
-4,
-38,
-29,
-11,
18,
-41,
-23,
-29,
27,
40,
25,
-9,
-5,
49,
-7,
19,
20,
-57,
7,
-48,
43,
8,
0,
2,
-12,
26,
49,
-1,
62,
24,
-84,
-16,
40,
6,
-9,
-21,
14,
23,
-7,
10,
-4,
24,
55,
-10,
-14,
-28,
-1,
-1,
-53,
-38,
-15,
43,
-31,
-23,
-25,
24,
-40,
23,
24,
-1,
0,
18,
-9,
-15,
57,
34,
-18,
-32,
-15,
-19,
-17,
10,
30,
-39,
61,
3,
-56,
-45,
-50,
-34,
-2,
-48,
-30,
-22,
38,
-49,
-16,
-14,
5,
32,
33,
10,
55,
-40,
-35,
40,
19,
-13,
-52,
-7,
-7,
51,
-5,
7,
-15,
-51,
-32,
91,
-27,
54,
-34,
0,
8,
-19,
-46,
33,
98,
19,
9,
9,
-16,
-10,
-44,
1,
0,
40,
-32,
56,
-2,
13,
-26,
11,
-6,
80,
-35,
-36,
-25,
-3,
32,
9,
8,
-4,
14,
-6,
15,
85,
23,
58,
32,
-13,
21,
29,
34,
-26,
40,
-8,
-30,
16,
11,
-8,
-3,
-13,
17,
42,
-34,
-6,
0,
-74,
22,
21,
-10,
13,
16,
-18,
-2,
-101,
-11,
39,
-55,
-18,
-18,
-18,
-2,
8,
14,
40,
28,
-43,
25,
-4,
-18,
24,
23,
-41,
-13,
-69,
-4,
-48,
36,
20,
-31,
4,
-21,
-7,
-9,
-33,
-16,
-4,
33,
6,
21,
-11,
-13,
40,
-20,
-2,
46,
-4,
9,
-11,
2,
-8,
-50,
0,
-37,
75,
18,
-21,
0,
-12,
-19,
-9,
31,
-4,
-26,
-3,
55,
-8,
0,
2,
-6,
3,
43,
19,
-36,
23,
0,
7,
-55,
-3,
-33,
3,
-22,
-49,
21,
37,
5,
1,
-2,
8,
27,
6,
-4,
81,
5,
-33,
30,
-7,
-43,
-54,
0,
-5,
28,
-35,
7,
22,
6,
-50,
2,
-17,
19,
-10,
25,
-25,
33,
5,
31,
-6,
25,
73,
10,
25,
30,
45,
-37,
0,
-26,
-21,
80,
1,
51,
-59,
-19,
4,
-42,
-14,
-11,
-41,
38,
-32,
-8,
-44,
15,
48,
-38,
-36,
-18,
6,
3,
-25,
-19,
6,
67,
-4,
-17,
-64,
18,
-57,
16,
9,
4,
0,
60,
-17,
-4,
9,
16,
39,
-36,
5,
22,
-41,
28,
-52,
-20,
-43,
14,
-44,
-9,
-24,
-8,
-33,
-6,
-30,
44,
13,
-21,
-6,
-47,
-62,
-8,
-19,
-41,
-14,
4,
5,
-10,
38,
8,
43,
28,
-30,
83,
21,
28,
17,
-17,
-4,
12,
30,
-15,
-50,
20,
66,
-1,
-35,
23,
-13,
-2,
-10,
13,
20,
-23,
-1,
-22,
4,
-46,
-12,
7,
-54,
16,
34,
2,
-28,
5,
-6,
21,
27,
-33,
-14,
28,
19,
17,
-36,
3,
-10,
-4,
-3,
-60,
4,
20,
-9,
-24,
-14,
-35,
40,
-15,
-14,
16,
-12,
-12,
62,
5,
-9,
-79,
-35,
-45,
29,
24,
-34,
-73,
-20,
1,
8,
12,
6,
-1,
51,
-44,
-11,
-35,
36,
39,
-3,
-67,
56,
-37,
-10,
-21,
-30,
22,
2,
22,
20,
-32,
-12,
8,
17,
-38,
-52,
34,
-13,
-36,
52,
0,
-11,
3,
44,
12,
42,
21,
-37,
6,
8,
-9,
29,
10,
39,
33,
21,
-13,
-46,
-35,
22,
17,
-7,
-6,
-30,
10,
42,
-45,
43,
27,
31,
7,
43,
10,
5,
-71,
33,
-22,
54,
24,
-37,
31,
13,
45,
0,
0,
31,
-19,
-2,
-48,
2,
-32,
35,
-2,
-27,
20,
-15,
30,
53,
7,
-12,
11,
28,
68,
-51,
26,
3,
14,
5,
-3,
31,
22,
-27,
-17,
6,
-25,
-6,
35,
-26,
5,
-6,
68,
-28,
-126,
-62,
-5,
2,
0,
-9,
-15,
-27,
-73,
-33,
22,
-12,
20,
8,
-14,
13,
-20,
20,
35,
-39,
-45,
47,
53,
-30,
-17,
-38,
-35,
12,
61,
-35,
-1,
25,
-5,
-57,
-11,
-73,
56,
40,
-12,
-14,
24,
10,
24,
-42,
19,
-31,
-13,
-30,
18,
11,
-1,
30,
6,
16,
16,
-33,
-20,
5,
-31,
-10,
2,
-22,
37,
-15,
37,
-23,
5,
0,
48,
-15,
-25,
19,
-30,
62,
24,
-11,
-14,
-15,
-41,
32,
26,
-46,
62,
9,
-16,
20,
-2,
-14,
24,
0,
9,
-61,
56,
1,
4,
-22,
-25,
-10,
18,
51,
-2,
22,
8,
38,
-44,
31,
32,
-11,
45,
-42,
-28,
-30,
22,
1,
-1,
-22,
38,
-14,
-5,
-6,
-5,
32,
15,
-2,
-33,
9,
-15,
-55,
19,
-64,
-40,
-57,
15,
-8,
-44,
12,
4,
34,
-8,
-26,
-25,
38,
48,
46,
-60,
25,
24,
6,
0,
-28,
30,
31,
31,
39,
61,
6,
-11,
-39,
-55,
-9,
14,
-13,
-27
] |
BROOKE, J.
(after stating the facts). It must be held that complainant Rollo Hatt took nothing under the will of his grandfather. His mother’s children were described by name in the will before his birth, and he was a grandson, not a son, of the testator. Moreover, he was a party to the proceeding in which the will was construed and his rights determined. No appeal was taken from that decree, and it stands as the law of the case.
We are satisfied that the appraisal of 1891 was fair. It was made by a supervisor and an ex-supervisor of the township, and it remained on file in the probate court unquestioned by complainants for upwards of 20 years. In the meantime the executors paid the taxes upon the land and it was drained. It undoubt edly increased in value, particularly within the past 10 years. We are unable to discover any fraud or gross undervaluation in the appraisal. Assuming that defendant William Green and his coexecutor had the right to elect to keep the land and pay its appraisal value to the children of Mary Ann Hatt, a conclusion perhaps warranted by the terms of the decree construing the will and the opinion upon which the decree was based, have they discharged their obligations to complainants? It is obvious that it was the intention of the testator to create a fund (either land or money) for the benefit of - complainants and their brothers and sisters.
The fact that the will commanded an appraisal and distribution of the fund from time to time with interest imposed the duty upon the executors and trustees of turning over the land with its unearned increment to the beneficiaries from time to time as they became of age, or of investing the fund represented by the appraisal valuation for the benefit of the beneficiaries, so that when each reached his majority, he should receive his share, plus the interest earned thereon during his minority. Neither course was followed by the trustees.
We are satisfied that when the eldest child became of age and the trustees paid to him his proportionate share of the appraisal value of the lands, they should be held to have made an election to keep the lands and to treat the appraised valuation as fixing the amount of a trust fund in their hands which, both under the will and the decree, they were bound to keep invested for the benefit of their cestuis que trustent. A careful reading of the record convinces us that the trustees dealt with the complainants about as they pleased. They told each one that the sum of $475 represented his share of the estate to which he was entitled, and demanded and secured a formal release.
The several transactions occurred when each of the complainants was barely 21 years of age, country boys, and presumptively ignorant of their legal rights.
The learned circuit judge held that any claim which complainants might have was barred by the statute of limitations. In this case we think he was in error.
In 2 Perry on Trusts and Trustees (6th Ed.), § 863, it is said:
“As between trustee and cestui que trust, in the case of an express trust, the statute of limitations has no application, and no length of time is a bar. Against an express and continuing trust time does not run until repudiation or adverse possession by the trustee and knowledge thereof on the part of the cestui.”
See, also, Jones v. Home Savings Bank, 118 Mich. 155 (76 N. W. 322, 74 Am. St. Rep. 377) ; Murphy v. Cady, 145 Mich. 33 (108 N. W. 493), and Russell v. Huntington, Nat. Bank, 162 Fed. 868, 89 C. C. A. 558.
The decree of the court below is reversed, and a decree will be entered in this court confirming the title to the lands in question in defendant William Green and the heirs of his cotrustee, but providing for an accounting against said defendant William Green in which he shall be charged with interest upon each share paid complainants from the time settlement was made with the oldest child, at which time the trustees must be held to have made their election. Complainants will recover costs of both courts.
McAlvay, C. J., and Kuhn, Stone Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
8,
18,
22,
-5,
-19,
4,
64,
26,
8,
-4,
14,
-37,
55,
17,
0,
-12,
-11,
23,
-31,
22,
19,
-13,
-43,
3,
2,
10,
-2,
8,
3,
14,
2,
22,
-36,
56,
-28,
-6,
-8,
-7,
22,
1,
18,
25,
26,
18,
16,
7,
-31,
-48,
4,
3,
1,
-24,
32,
-21,
51,
39,
33,
-18,
-50,
-2,
36,
-16,
23,
23,
32,
55,
6,
23,
-12,
-46,
-6,
22,
-3,
4,
28,
-40,
-2,
26,
-46,
-14,
17,
-81,
20,
-11,
-29,
-13,
-6,
29,
-8,
15,
-19,
-4,
17,
-3,
-11,
84,
34,
18,
-29,
-7,
30,
-2,
5,
36,
8,
-15,
-21,
10,
-9,
-13,
29,
34,
30,
-11,
-11,
-5,
-32,
-66,
-59,
13,
18,
27,
24,
-27,
14,
28,
0,
-24,
4,
-14,
0,
0,
-50,
-5,
1,
-13,
-31,
-57,
-40,
-32,
7,
-16,
-36,
-67,
-36,
-16,
-26,
-33,
2,
-41,
-11,
18,
6,
1,
38,
0,
-9,
-30,
16,
-79,
19,
9,
-15,
1,
-56,
-10,
7,
12,
1,
31,
23,
15,
-38,
9,
40,
53,
33,
-29,
-27,
-12,
35,
7,
40,
19,
-3,
-50,
12,
0,
31,
-23,
-54,
0,
16,
26,
-12,
-7,
10,
8,
-13,
-17,
-9,
-1,
22,
33,
23,
2,
30,
-82,
-43,
9,
-22,
46,
28,
-41,
-32,
24,
-20,
-24,
-56,
-4,
76,
32,
-11,
-8,
-20,
-9,
-26,
-30,
18,
-14,
-36,
41,
18,
33,
10,
2,
-21,
30,
-46,
-38,
-9,
1,
-20,
-65,
-7,
7,
35,
37,
16,
68,
-16,
19,
16,
34,
36,
-13,
-10,
33,
23,
-44,
-17,
8,
18,
-24,
3,
-14,
30,
12,
-12,
-26,
10,
-41,
40,
-14,
-5,
-37,
-29,
-17,
-29,
-39,
-12,
8,
0,
29,
-12,
40,
-42,
-16,
-27,
10,
36,
-14,
33,
-2,
10,
14,
4,
12,
-2,
-11,
-28,
22,
18,
23,
53,
20,
-12,
-15,
-34,
-51,
-8,
-29,
2,
17,
36,
11,
-59,
-54,
3,
6,
17,
-29,
14,
-14,
-9,
32,
23,
-37,
0,
33,
-53,
28,
25,
-28,
18,
0,
45,
-50,
-22,
-16,
39,
17,
68,
-49,
23,
-4,
-34,
-25,
-25,
-10,
2,
68,
14,
28,
-16,
8,
33,
-7,
12,
37,
34,
7,
18,
1,
-31,
8,
-36,
-57,
1,
-18,
81,
24,
-16,
-5,
9,
16,
-24,
22,
-1,
20,
-8,
-23,
-13,
48,
59,
27,
-7,
0,
-2,
28,
-17,
5,
-1,
35,
-61,
10,
15,
2,
-26,
20,
-50,
4,
-18,
-12,
-45,
44,
-18,
14,
-19,
10,
22,
41,
43,
-58,
18,
-38,
30,
-40,
16,
42,
13,
-23,
43,
11,
-8,
-56,
-4,
31,
-38,
-22,
-21,
8,
46,
-17,
16,
-24,
9,
31,
-65,
10,
-48,
11,
32,
46,
-19,
7,
-45,
-40,
41,
22,
5,
5,
-4,
23,
4,
-20,
42,
-37,
46,
14,
13,
15,
-19,
-12,
17,
-32,
-10,
-13,
68,
-3,
-14,
18,
-24,
-56,
17,
38,
11,
12,
7,
-14,
71,
-8,
-7,
-8,
-58,
13,
-59,
-41,
-15,
-11,
25,
-22,
29,
-21,
15,
-14,
-12,
-41,
22,
-20,
35,
60,
11,
-25,
-5,
-11,
-30,
-17,
14,
9,
-2,
-35,
23,
-6,
-42,
-19,
65,
24,
43,
18,
52,
-22,
-63,
-18,
10,
26,
-6,
25,
40,
-21,
-7,
46,
-20,
-4,
-32,
-4,
31,
-4,
-3,
-61,
-38,
18,
37,
29,
-39,
30,
38,
-21,
25,
-27,
-31,
-42,
-18,
59,
-27,
6,
-6,
4,
-3,
-9,
18,
-2,
16,
-14,
31,
-60,
6,
-12,
-9,
-6,
34,
-34,
-11,
-15,
3,
31,
24,
-19,
-26,
11,
-22,
-9,
4,
-37,
35,
55,
-19,
29,
29,
-8,
2,
6,
-47,
-8,
-38,
-62,
17,
14,
13,
-10,
-4,
17,
-42,
0,
-35,
8,
41,
-25,
-22,
-41,
-11,
-18,
16,
8,
-26,
68,
27,
-18,
55,
-34,
-21,
38,
-10,
-72,
51,
-8,
17,
9,
-23,
11,
-10,
-45,
22,
52,
-46,
23,
-29,
16,
-15,
-45,
-27,
-26,
-20,
-12,
20,
37,
3,
-14,
0,
-7,
-45,
31,
-4,
38,
-20,
10,
19,
-40,
11,
-14,
57,
-5,
-15,
57,
-28,
46,
31,
26,
20,
13,
3,
-9,
12,
-20,
-48,
-7,
-14,
64,
16,
19,
-22,
-28,
24,
11,
0,
15,
-18,
46,
9,
-2,
26,
-33,
-5,
-52,
-11,
0,
18,
25,
40,
13,
6,
-30,
27,
-20,
-30,
2,
14,
27,
-5,
-35,
22,
21,
37,
-38,
-14,
-28,
31,
-17,
18,
12,
-8,
-30,
26,
-62,
38,
-9,
33,
-13,
-9,
28,
-17,
1,
-19,
-4,
-10,
-6,
-4,
-30,
-14,
-29,
-18,
27,
-16,
19,
20,
15,
29,
13,
-7,
36,
28,
40,
-3,
-16,
-43,
-6,
-15,
35,
17,
-37,
-12,
41,
-25,
33,
9,
2,
-61,
-39,
7,
11,
8,
0,
-28,
-30,
-9,
-5,
1,
-23,
22,
-10,
17,
-4,
-13,
70,
-23,
-59,
21,
-29,
-10,
68,
-30,
-17,
-19,
2,
-16,
2,
18,
-40,
19,
-38,
-13,
9,
17,
-42,
39,
20,
-5,
-21,
-54,
10,
27,
-40,
-33,
-37,
-48,
-64,
-41,
62,
5,
6,
11,
53,
30,
5,
-32,
1,
78,
2,
-22,
45,
35,
-12,
-72,
21,
-18,
-12,
-29,
-1,
17,
9,
-14,
-47,
-44,
33,
5,
-1,
-33,
23,
-35,
-9,
-26,
-19,
32,
15,
-12,
-64,
-15,
-55,
45,
21,
12,
14,
7,
21,
10,
10,
12,
39,
-23,
-14,
-32,
-2,
-57,
-33,
-56,
9,
22,
8,
-34,
2,
-30,
53,
-35,
9,
-23,
41,
6,
-56,
-10,
31,
32,
-37,
15,
25,
0,
8,
24,
-32,
21,
4,
-33,
-11,
-31,
-20,
-16,
-37,
19,
-23,
11,
34,
2,
-45,
-11,
-40,
-24,
17,
-14,
-52,
-9,
13,
49,
7,
-47,
-8,
21,
-14,
12,
-31,
-7,
22,
9,
-14,
42,
37,
29,
12,
9,
-23,
40,
-3,
44,
-24,
-70,
59,
-1,
-20,
-10,
11,
34,
6,
20,
21,
65,
43,
-11,
2,
-48,
-50,
-73,
15,
-68,
5,
17,
1,
57,
7,
24,
-10,
6,
-8,
-31,
-31,
17,
-21,
35,
-22,
50,
-30,
-13,
-32,
13,
-41,
-37,
-3,
-39,
17,
13,
-15,
-21,
-33,
29,
31,
7,
14,
-10,
-5,
-19,
27,
15,
-26,
22,
-29,
22,
-16,
2,
-26,
13,
48,
6,
-56,
-49,
37,
2,
71,
-12,
-23,
-9,
2,
25,
19,
41,
-1,
31,
-7
] |
V. J. Brennan, P. J.
Defendants, H. P. Sportservice, Inc., D. R. T. Sportservice, Inc., Michigan Sportservice, Inc., and Detroit Sportservice, Inc. (hereinafter defendants), appealed from an order of the circuit court of Ingham County which remanded for further hearings a license revocation proceeding upon a petition for review brought by intervenor Attorney General of the State of Michigan pursuant to the Michigan Administrative Procedures Act of 1969.
On April 26, 1972, Emprise Corporation, a foreign corporation, was convicted by a Federal court jury in the United States District Court along with a number of other defendants, of conspiracy to use interstate transportation in aid of racketeering in violation of 18 USC, §§ 371, 1952, and were sentenced to pay a fine of $10,000, the maximum allowable under the statute. This conviction was later affirmed by the United States Court of Appeals, sub nom United States v Polizzi, 500 F2d 856 (1974), cert den 419 United States 1120; 95 S Ct 802; 42 L Ed 2d 820 (1975). Subsequent to the conviction, a complaint was issued by the Michigan Liquor Control Commission (hereinafter com mission) charging that the four defendants were in fact sham corporations of the Emprise Corporation, and that, therefore, the liquor licenses held by the defendants constituted a violation of MCLA 436.23; MSA 18.994, which provides that corporate liquor licenses may not be held by corporations not authorized to do business under the laws of the State of Michigan, as well as other violations which would justify the revocation of the defendants’ licenses.
On or about November 20, 1972, the commission caused to be served on Jeremy M. Jacobs, president of Emprise Corporation, and each of the named defendant corporations a subpoena which required that Mr. Jacobs appear on November 22, 1972, for a hearing before Mr. Thomas A. VanTiem, one of the five Liquor Control Commissioners, who was designated to conduct the hearing of the contested matter. Mr. Jacobs did not attend the hearing. Counsel for the commission made a motion for continuance for cause, to enable him to have time to seek the aid of the circuit court in enforcing the subpoena. Mr. VanTiem refused to allow the continuance. Mr. VanTiem’s opinion was issued on February 16, 1973, in which he dismissed the complaint against Emprise Corporation and a subsidiary, on the ground that they were not named licensees, and that therefore, the conviction of Emprise was immaterial and inadmissible as evidence against the defendants.
One month later the Attorney General, Frank J. Kelley, intervened in the proceedings, for and on behalf of the people of the State of Michigan, and counsel for the commission filed a petition for rehearing pursuant to the Michigan Administrative Procedures Act, citing errors committed by Mr. VanTiem. On August 7, 1973, the commission issued a written decision holding, inter alia, that it had no authority to consider a petition for rehearing and that the Attorney General could not intervene.
The Attorney General then proceeded to file petitions with this Court and with the Ingham County Circuit Court asking for superintendence of the members of the Liquor Control Commission and for a full new hearing of the matter, and for a review pursuant to the Michigan Administrative Procedures Act of 1969. On December 13, 1973, this Court held that the proper remedy for plaintiff Attorney General was under the provisions of the Michigan Administrative Procedures Act of 1969, MCLA 24.201 et seq.; MSA 3.560(101) et seq. After a hearing on the matter the circuit judge filed an opinion and order on May 15, 1974, remanding the case to the Liquor Control Commission hearings examiner to take further testimony. Thereafter, the circuit court allowed the licensees to intervene as defendants for purposes of appeal, after which, on June 12, 1974, the intervening defendants filed the instant appeal. We have refrained from stating all the details of this long and involved course of litigation, since we find such details unnecessary for a disposition of the matter.
After all the dust has settled, this case boils down to two very simple issues: (1) whether the Attorney General has standing to intervene in a hearing before an administrative agency of this state so as to seek review thereof, and (2) whether the circuit court erred in remanding the matter for further testimony before the Liquor Control Commission.
Defendants contend in substance that the Attorney General did not have standing to intervene in the administrative proceeding to seek judicial re view thereof. Defendants reason that since MCLA 436.20; MSA 18.991 specifically provides for review for licensees who feel aggrieved, and makes no mention of appeals by other aggrieved persons, that only a licensee may appeal an order of a hearing commissioner. Plaintiif argues that this statute does not expressly proscribe appeal by other aggrieved persons, and that further, MCLA 24.301; MSA 3.560(201) does provide that an aggrieved person may have review of a decision or order of an agency, and that the definition of a "person” in MCLA 24.205(4); MSA 3.560(105) is clearly broad enough to include the Attorney General, acting for and on behalf of the people. There a person is defined as:
"[A]n individual, partnership, association, corporation, governmental subdivision or public or private organization of any kind other than the agency engaged in the particular processing of a rule, declaratory ruling, or contested case.”
Michigan statutes clearly provide for intervention by the Attorney General in any case in which the people of the state may be interested. MCLA 14.101; MSA 3.211, MCLA 14.28; MSA 3.181. The Michigan Supreme Court held in People v O’Hara, 278 Mich 281; 270 NW 298 (1936), that the statutory authority of the Attorney General is to be liberally construed. This Court has held that the discretion of the Attorney General is only limited when intervention by the Attorney General is clearly inimicable to the public interest. Gremore v People’s Community Hospital Authority, 8 Mich App 56, 59; 153 NW2d 377 (1967). The Michigan Supreme Court has also recognized the wide-ranging powers of the Attorney General which he has at common law. Mundy v McDonald, 216 Mich 444, 450-451; 185 NW 877 (1921).
If we follow the reasoning of defendants, once an administrative agency of this state has ruled in favor of a licensee, no matter how prejudicial to the public interests or how grievous an error may have been committed by the agency, Michigan law, it is contended, does not provide for a judicial review thereof. If the Attorney General may not seek review, who can seek review? We do not believe that any administrative agency of this state can be immune from review. We hold that the Attorney General had both the right and the duty to intervene and seek review of a decision of the Michigan Liquor Control Commission when, in his discretion, he deemed it in the public interest to do so.
The only remaining issue is whether the circuit judge committed error when he remanded the matter to the commission for further hearings. At the hearing on May 24, 1974, the circuit judge explained his reasons for his decision. We quote pertinent parts of the judge’s ruling.
"The hearing commissioner I believe clearly committed a glaring error in refusing to honor the request for continuance for time in which to seek the aid of the circuit court in enforcing its subpoena. That is, a subpoena of the Commission. Now, when I ran across this, it’s obvious to all concerned that nothing that can be done now will alter the transcript of what took place then.
* * *
"Now, this Court sits in review of the conduct of administrative bodies. Why should this Court go to the matter of reviewing subsequent conduct on the part of the Commissioners, or some of them, or all of them, where the Commission as a whole, when at the very outset of the hearing a gross error was committed? Now under these circumstances this Court issued the opinion and order that is being mentioned here, and I said this is such a breach of discretion that it is to go back to the Commission.
* * *
"What are these licensees being called upon to do? They’re being called upon to go back and if they are parties to that proceeding, to proceed to participate in a hearing which is conducted in accordance with what this Court thinks is a fair exercise of discretion.”
We fully agree with the circuit judge. The president of the defendant corporations refused to honor a subpoena of the commission; the plaintiffs sought a continuance to seek the aid of the circuit court to enforce the subpoena as provided in MCLA 436.7a; MSA 18.977(1); the hearing commissioner denied plaintiffs’ motion and subsequently dismissed the complaint for a failure of proof. The circuit judge correctly ruled that this ruling of the hearing commissioner constituted an abuse of discretion.
The instant action was brought by the Attorney General against the commission to compel the commission to grant a full and fair hearing of the case. The rights of the defendants are in no way prejudiced thereby. The defendants have a right to a full and fair hearing. The order of the circuit judge requires no less. We require no more.
We have examined defendants’ other allegations of error and have found them to be without merit.
Affirmed. | [
-7,
21,
33,
46,
-12,
6,
-22,
-24,
-51,
5,
-24,
-17,
26,
-14,
48,
1,
23,
-12,
-37,
-24,
21,
-7,
33,
-8,
11,
-48,
19,
3,
3,
-7,
-11,
-22,
72,
-44,
16,
-15,
0,
50,
5,
33,
-31,
45,
-6,
21,
-17,
-18,
57,
-25,
20,
3,
14,
8,
-6,
18,
-19,
-10,
5,
0,
-5,
19,
-3,
35,
14,
4,
5,
-55,
-7,
17,
28,
-7,
15,
1,
-46,
78,
-3,
0,
28,
-3,
10,
5,
-64,
28,
63,
-15,
-28,
44,
7,
-12,
8,
-19,
-36,
-28,
-76,
-2,
18,
15,
-39,
-23,
9,
-19,
-34,
-17,
-15,
-13,
1,
66,
42,
-25,
-69,
15,
15,
-25,
27,
-62,
-8,
-60,
-13,
-19,
-7,
31,
7,
-50,
46,
38,
-21,
-15,
29,
-6,
-33,
23,
0,
-17,
-9,
1,
-51,
16,
3,
29,
24,
47,
-46,
27,
28,
-1,
-27,
3,
14,
36,
-10,
-22,
-3,
-22,
22,
10,
-17,
14,
3,
4,
32,
6,
-61,
-35,
-30,
-8,
-8,
-3,
-17,
-20,
-24,
36,
0,
-62,
7,
-28,
-15,
-55,
-3,
65,
-4,
14,
-37,
7,
1,
8,
-7,
-24,
42,
-26,
-25,
-16,
47,
-29,
-12,
17,
-29,
2,
-9,
53,
-7,
43,
-33,
-30,
-22,
-10,
16,
-33,
14,
20,
3,
9,
22,
7,
30,
-19,
-5,
-21,
-13,
-2,
23,
-30,
10,
-30,
-47,
17,
-15,
-38,
2,
37,
-53,
-40,
26,
-27,
42,
8,
-20,
-52,
11,
20,
28,
28,
29,
16,
-47,
-47,
29,
18,
-27,
-52,
-29,
44,
-17,
-79,
-2,
13,
-36,
-9,
18,
0,
36,
85,
-17,
26,
-29,
15,
-66,
-18,
23,
30,
-27,
22,
-10,
-53,
21,
8,
14,
6,
10,
38,
51,
-16,
13,
-11,
52,
5,
-25,
26,
-5,
25,
-32,
-9,
-23,
39,
3,
26,
43,
-29,
8,
-31,
0,
9,
-28,
32,
22,
24,
-26,
5,
1,
12,
27,
-30,
19,
-84,
29,
-43,
18,
-37,
37,
-15,
36,
-42,
15,
17,
10,
42,
5,
-42,
62,
30,
32,
2,
1,
-29,
-23,
-4,
-45,
-23,
46,
-32,
2,
41,
-18,
6,
23,
12,
-19,
15,
12,
-1,
-17,
-28,
-44,
-4,
63,
23,
-2,
0,
15,
-8,
-34,
25,
-7,
-47,
-28,
58,
18,
23,
-52,
10,
3,
42,
-37,
28,
-43,
25,
-19,
7,
2,
-13,
-50,
7,
20,
-41,
2,
-36,
43,
-3,
-33,
17,
-70,
34,
-49,
44,
-1,
30,
-40,
-29,
0,
27,
38,
16,
40,
19,
-17,
6,
-20,
-92,
53,
22,
67,
0,
-46,
-37,
19,
12,
-6,
14,
29,
-35,
-19,
-39,
31,
41,
8,
-43,
46,
-10,
-8,
-8,
47,
13,
-8,
5,
50,
-29,
-25,
1,
-18,
-31,
27,
-2,
-23,
-21,
-24,
24,
31,
-8,
-4,
13,
-15,
-38,
38,
34,
-60,
-2,
-89,
50,
17,
20,
4,
24,
24,
-20,
-14,
-43,
13,
63,
-18,
23,
3,
12,
6,
-12,
-25,
22,
-70,
-6,
40,
-5,
-27,
25,
-28,
33,
-11,
-3,
4,
-32,
27,
-3,
-56,
68,
6,
34,
-1,
32,
-65,
12,
51,
7,
22,
23,
-32,
-45,
31,
60,
-23,
22,
23,
11,
-36,
37,
-34,
44,
7,
47,
36,
7,
5,
-5,
16,
-17,
-4,
3,
-55,
1,
-37,
41,
35,
-13,
32,
-86,
66,
-10,
11,
-29,
-7,
-67,
75,
16,
-41,
-12,
50,
-20,
-42,
-2,
23,
-4,
-22,
-32,
51,
10,
7,
-11,
-36,
-47,
5,
1,
34,
-6,
-19,
-12,
-29,
24,
29,
-37,
49,
9,
-31,
3,
43,
-1,
4,
17,
61,
-5,
30,
28,
52,
-15,
-29,
-8,
20,
5,
2,
15,
8,
30,
16,
47,
4,
-15,
-14,
1,
-17,
-12,
54,
35,
18,
-32,
21,
0,
-8,
26,
-40,
19,
11,
-59,
-26,
14,
-54,
1,
-20,
-20,
-15,
-3,
-33,
56,
-24,
10,
-15,
73,
-50,
-22,
3,
10,
37,
39,
-7,
9,
26,
9,
-3,
-4,
-48,
15,
26,
-1,
-12,
31,
-41,
-27,
-30,
-26,
-33,
-7,
10,
-21,
-3,
45,
28,
32,
-16,
3,
-24,
-9,
-26,
-14,
-30,
4,
-7,
3,
-32,
26,
-2,
32,
-3,
-28,
3,
-5,
12,
-1,
-18,
-22,
10,
-31,
-17,
-26,
37,
0,
14,
67,
-10,
4,
-31,
-42,
29,
8,
7,
18,
-11,
31,
-14,
7,
-63,
-48,
0,
23,
-17,
-22,
0,
-63,
-36,
33,
-19,
42,
-13,
37,
13,
-35,
-18,
72,
-19,
-45,
-12,
18,
30,
34,
-4,
47,
-43,
-22,
-42,
-41,
9,
-12,
39,
47,
-24,
-8,
1,
-42,
3,
47,
39,
-24,
36,
6,
-40,
-83,
-80,
47,
25,
-69,
-40,
-30,
-25,
-5,
-36,
21,
47,
15,
1,
-1,
34,
25,
14,
-15,
2,
-16,
-61,
16,
24,
0,
-3,
31,
-24,
18,
22,
18,
86,
13,
-37,
-39,
-66,
-14,
-33,
11,
-19,
-18,
-3,
-22,
6,
-10,
-8,
-4,
16,
-26,
-27,
28,
28,
-36,
-4,
-5,
0,
20,
-28,
29,
3,
66,
-5,
-22,
-4,
13,
-4,
-42,
-41,
-57,
42,
-45,
0,
-25,
-34,
29,
28,
-32,
42,
26,
-27,
-33,
-18,
7,
6,
-49,
1,
-1,
-49,
-73,
4,
-5,
-5,
6,
22,
42,
-27,
4,
-5,
-2,
49,
-13,
52,
28,
8,
19,
-18,
47,
-1,
0,
8,
-6,
-71,
-21,
13,
28,
-84,
-23,
0,
26,
-29,
-17,
12,
21,
-12,
12,
-21,
-5,
-28,
19,
-52,
-39,
0,
-18,
9,
28,
7,
9,
-18,
-23,
11,
-24,
0,
5,
8,
-54,
48,
-29,
-7,
-5,
34,
22,
-4,
4,
19,
-1,
-31,
-32,
-22,
-2,
42,
-14,
52,
10,
6,
9,
-1,
-35,
-41,
-12,
-2,
-20,
-39,
2,
14,
27,
20,
6,
-54,
-3,
-21,
28,
39,
-2,
6,
9,
-36,
28,
-26,
48,
20,
-36,
3,
66,
-6,
-17,
7,
19,
-26,
6,
-2,
8,
30,
-22,
-13,
44,
-16,
-9,
13,
-24,
-10,
33,
13,
-11,
-19,
1,
22,
14,
-4,
41,
-51,
24,
19,
-47,
27,
5,
3,
20,
-34,
-24,
-31,
-43,
9,
35,
-21,
34,
-49,
0,
8,
31,
11,
43,
73,
-21,
-1,
17,
17,
36,
55,
-10,
44,
52,
-9,
-2,
7,
-36,
29,
24,
8,
0,
-10,
36,
-32,
-47,
45,
-37,
-68,
-1,
34,
-24,
-14,
-2,
-11,
26,
15,
-49,
-21,
-26,
-47,
33,
4,
-26,
-30,
2,
-26,
-5,
-24,
25
] |
J. H. Gillis, P. J.
Defendant, Gloria Mae Williams, was convicted by a jury of control of heroin, MCLA 335.153; MSA 18.1123. She was sentenced to a prison term of 32 to 48 months and appeals as of right. We reverse.
At trial, the prosecutor introduced testimony showing that defendant was arrested in the living room of the upstairs flat of a two-flat house she owned. Three tinfoil packets containing heroin were discovered in a jewelry box in her bedroom. Defendant testified in her own behalf, claiming she did not know the heroin was in her jewelry box. She explained, too, that she had once been a heroin addict but was not an addict when arrested.
On appeal, defendant contends that certain comments made by the prosecutor during closing and rebuttal arguments denied her a fair trial. Although we will discuss only one of those remarks, we do not, by so doing, imply approval of the others.
During rebuttal argument, the prosecutor said:
"Ladies and gentlemen of the Jury, you have an opportunity to effect [sic] the drug traffic in this city. You have a voice. You have a chance to use it.”
Although defense counsel objected to the comment, the trial court overruled the objection.
This comment was highly prejudicial. We believe the rationale of People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971), controls this case. Farrar, supra, adopted the following American Bar Associ ation standard regarding prosecutorial conduct during argument to the jury:
"The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law.”
This Court is aware of the seriousness of the drug problem and realizes it touches the lives of many average citizens, generating much fear and dismay. We recognize, too, that jurors share the average citizen’s desire to eliminate the narcotics traffic. In such an emotion-laden situation, sensibilities are easily inflamed. Because emotional reaction to social problems should play no role in the evaluation of an individual’s guilt or innocence, prosecutors must exercise special care to avoid arousing jurors’ emotions concerning such issues.
In the instant case, by arguing that the jurors had an "opportunity to effect [sic] the drug traffic in this city”, the prosecutor appealed to the jurors’ fears and encouraged them to go outside the evidence and decide the case on the basis of their desire to alleviate the drug problem. This type of prosecutorial argument does not comport with the mandate of Farrar, supra, and it will not be allowed by this Court. Consequently, defendant’s conviction must be reversed.
We have considered the remaining issue raised by defendant, and we find no error as to it.
Reversed.
T. M. Burns, J., concurred.
This statute was repealed by 1971 PA 196; MCLA 335.341; MSA 18.1070(41).
The prosecutor, in closing argument, may draw reasonable inferences based on the evidence. People v Giacalone, 52 Mich App 428, 430; 217 NW2d 444, 445 (1974). In the instant case, although no evidence was introduced at trial indicating that narcotics were sold in defendant’s home, the prosecutor argued "[t]his was a dope house”. We noted the prejudicial effect of a similar comment, also unsupported by the evidence, in People v Page, 41 Mich App 99; 199 NW2d 669 (1972). In addition, in spite of the fact that no evidence was offered regarding the method by which the downstairs tenant paid rent to defendant, the prosecutor asked, "How do you think the rent was paid? Do you think it was paid in cash; or do you think it was paid in tin foil packs of Heroin?” Furthermore, although no evidence was produced connecting defendant with the heroin discovered in the downstairs flat, the prosecutor argued: " * * * that house belonged to Gloria Williams. She knew what was going on in that house. She was part of it. * * * And heroin was found downstairs. And that was certainly under the influence of the owner of the house”.
Because there was no evidentiary support for these arguments, they were prejudicial and, consequently, improper. Although we need not determine whether these errors would require reversal, we discuss them to indicate our disapproval.
People v Farrar, 36 Mich App 294, 299; 193 NW2d 363, 365 (1971), quoting from ABA Project on Standards for Criminal Justice, The Prosecution Function, Std. 5.8(d). See also People v Gregory Williams, 57 Mich App 521; 226 NW2d 547 (1975), applying People v Farrar, supra.
We are aware of People v Garcia, 31 Mich App 447, 450; 187 NW2d 711 (1971), involving a charge of rioting, where the prosecutor told the jurors "[h]ere is your chance as a citizen to do something about this problem in Kalamazoo”. Defense counsel in Garcia, supra, failed to object to that remark. Consequently, Garcia, supra, can be distinguished from the case at bar. Additionally, because People v Farrar, supra, which adopted the ABA standard prohibiting this type of prosecutorial conduct, was decided after Garcia, supra, we believe the result in the instant case is correct. | [
0,
10,
8,
19,
-53,
-46,
-73,
0,
-72,
-1,
-9,
-27,
1,
32,
23,
-17,
14,
3,
57,
-8,
-16,
-3,
8,
71,
2,
-36,
23,
79,
-39,
51,
14,
0,
36,
-16,
16,
-13,
11,
-6,
-1,
33,
23,
12,
-18,
-17,
-58,
7,
31,
-23,
69,
12,
-8,
3,
-6,
42,
-50,
29,
35,
15,
44,
19,
-54,
-12,
-88,
-41,
29,
-29,
-38,
1,
-45,
-40,
-8,
-24,
-18,
-16,
39,
12,
-9,
45,
33,
22,
-38,
15,
28,
-17,
-28,
21,
-23,
-64,
15,
-22,
23,
-70,
-8,
3,
1,
-3,
58,
-61,
14,
-33,
-27,
-41,
-11,
-8,
-5,
25,
42,
2,
22,
4,
-30,
-5,
15,
-11,
-11,
-64,
-20,
35,
-50,
16,
-23,
26,
32,
-11,
28,
1,
-13,
-38,
-7,
-77,
3,
52,
61,
-39,
1,
54,
4,
33,
37,
46,
-30,
61,
24,
29,
3,
9,
-4,
48,
15,
17,
-41,
-23,
-60,
22,
-41,
-35,
-3,
-12,
-31,
29,
-58,
-2,
-19,
21,
-10,
-49,
-56,
-2,
1,
-5,
23,
7,
10,
41,
29,
-22,
-32,
1,
-4,
2,
-29,
26,
-5,
40,
29,
-40,
18,
-12,
-52,
-41,
41,
17,
-37,
-9,
38,
1,
18,
36,
53,
-12,
18,
-19,
-30,
40,
24,
6,
-75,
-7,
57,
-26,
-14,
-18,
1,
0,
4,
-60,
-40,
0,
15,
3,
-33,
-27,
11,
-41,
-25,
-1,
13,
7,
-9,
-12,
31,
-15,
-8,
-25,
-46,
22,
49,
-12,
-14,
22,
-26,
11,
18,
-23,
-73,
-11,
-3,
20,
-10,
32,
-4,
27,
46,
55,
-55,
-33,
39,
-68,
-18,
21,
26,
63,
6,
21,
31,
36,
2,
30,
-105,
1,
-16,
18,
-26,
1,
19,
5,
-22,
49,
17,
22,
12,
5,
-15,
-31,
-34,
-39,
-25,
52,
-1,
-16,
61,
-14,
-49,
7,
20,
35,
28,
23,
-41,
-4,
1,
-22,
-11,
-53,
8,
-7,
37,
38,
-58,
4,
88,
-34,
4,
52,
-27,
-7,
-20,
-31,
48,
26,
-41,
21,
-19,
-45,
0,
-36,
7,
-65,
33,
-9,
14,
66,
1,
1,
44,
-2,
-17,
46,
-8,
-12,
-56,
-3,
-15,
1,
-6,
-7,
-9,
70,
-36,
-28,
50,
13,
14,
19,
1,
-52,
-11,
7,
-12,
-54,
-17,
-27,
-32,
32,
11,
-63,
62,
-5,
-15,
26,
38,
-52,
-3,
-9,
2,
-7,
29,
-68,
45,
-10,
-21,
-16,
98,
-7,
-10,
0,
-14,
-8,
13,
-12,
7,
32,
-1,
-23,
-50,
-19,
9,
23,
37,
-22,
-72,
-10,
6,
30,
-27,
5,
-13,
11,
9,
-17,
-48,
15,
41,
36,
-28,
-19,
4,
-14,
35,
-56,
17,
4,
-17,
-19,
-34,
-2,
-3,
19,
74,
-9,
-37,
3,
2,
-68,
-22,
25,
-23,
-38,
30,
1,
-2,
-23,
-23,
16,
33,
-1,
-4,
-12,
37,
-23,
0,
-18,
-8,
11,
4,
24,
25,
-14,
-13,
40,
-8,
-28,
-19,
21,
29,
-19,
-9,
-28,
40,
2,
39,
18,
7,
-24,
1,
31,
-35,
36,
14,
-2,
40,
30,
15,
-18,
52,
30,
17,
-76,
0,
-21,
17,
-75,
-14,
-18,
-23,
23,
63,
28,
5,
40,
-4,
8,
-25,
-14,
40,
-7,
5,
31,
21,
37,
23,
7,
-43,
35,
-24,
2,
-11,
-15,
19,
-10,
17,
-46,
37,
5,
-89,
26,
-32,
-60,
-3,
-56,
27,
26,
-8,
-36,
35,
-4,
-41,
-44,
-18,
-30,
-3,
0,
13,
10,
11,
-4,
-19,
23,
34,
24,
0,
52,
-18,
-50,
30,
0,
-8,
3,
-8,
3,
-63,
44,
60,
24,
32,
13,
38,
-18,
85,
58,
12,
-24,
-24,
-4,
-13,
24,
8,
78,
-39,
12,
14,
25,
12,
-6,
0,
-61,
40,
6,
-25,
-23,
13,
-1,
33,
12,
-22,
-20,
-55,
-53,
-35,
-2,
67,
9,
-4,
-17,
-19,
-34,
18,
-23,
9,
-6,
53,
-6,
-31,
11,
-27,
72,
-21,
-65,
-16,
20,
-19,
31,
-56,
-8,
-24,
-25,
-39,
7,
-12,
-41,
-36,
-10,
16,
-15,
-34,
34,
-53,
-12,
-54,
10,
-14,
52,
46,
-22,
21,
17,
-10,
-10,
-2,
3,
-42,
9,
7,
-64,
52,
5,
-71,
6,
3,
-45,
-14,
79,
-9,
-9,
-1,
13,
35,
-9,
0,
2,
-59,
-34,
6,
62,
21,
-11,
9,
-22,
-9,
-11,
-33,
-12,
23,
-32,
2,
13,
16,
12,
12,
14,
-13,
39,
43,
71,
32,
21,
42,
38,
-7,
-18,
19,
9,
-45,
-13,
-39,
7,
18,
-38,
-1,
-2,
-26,
-8,
-35,
-1,
-38,
-19,
-24,
14,
-46,
18,
0,
-52,
7,
25,
2,
-27,
32,
0,
11,
19,
5,
-40,
-7,
19,
-13,
14,
-50,
19,
0,
-2,
-16,
25,
-45,
-70,
-70,
21,
1,
-27,
12,
25,
61,
61,
35,
9,
-26,
-25,
33,
-11,
-41,
-42,
-23,
-4,
-47,
5,
-27,
41,
-15,
13,
61,
-7,
-27,
-44,
19,
1,
-24,
-9,
-53,
1,
1,
-23,
33,
1,
-39,
-21,
4,
3,
27,
29,
-20,
29,
-38,
11,
-1,
39,
13,
57,
-40,
6,
10,
-3,
71,
15,
8,
-27,
32,
57,
6,
-11,
9,
2,
5,
30,
11,
-26,
16,
-23,
-37,
-5,
2,
8,
-4,
-2,
-54,
-6,
-33,
29,
11,
-17,
33,
31,
-5,
10,
17,
43,
-68,
26,
65,
29,
11,
-17,
35,
24,
-3,
43,
2,
4,
18,
-30,
3,
59,
10,
-30,
-21,
10,
-27,
24,
-14,
21,
21,
10,
0,
-12,
3,
-53,
12,
64,
-12,
-27,
43,
-13,
-25,
9,
15,
48,
-45,
27,
-53,
31,
-56,
27,
2,
-75,
32,
37,
0,
10,
10,
-34,
-27,
-2,
-21,
55,
26,
-27,
-22,
-15,
71,
-28,
17,
-1,
-3,
-19,
-14,
35,
-3,
-63,
21,
-6,
-28,
-54,
3,
37,
46,
27,
1,
1,
-60,
6,
36,
-10,
-28,
39,
32,
49,
7,
-30,
22,
-51,
-31,
31,
1,
-39,
-17,
-54,
-19,
20,
0,
7,
16,
-26,
-5,
-16,
-55,
70,
4,
15,
4,
20,
33,
23,
-9,
41,
15,
3,
-29,
-10,
27,
23,
4,
-21,
-35,
54,
-49,
-9,
4,
11,
-12,
20,
6,
17,
24,
-32,
-27,
-72,
36,
-57,
20,
-44,
18,
11,
-56,
-6,
-6,
16,
37,
-34,
20,
40,
-35,
2,
-25,
4,
24,
54,
-23,
25,
-14,
-62,
-10,
-27,
3,
19,
0,
12,
0,
-12,
42,
-10,
-2,
-10,
10,
-38,
32,
-36,
14,
25,
12,
-33,
-56,
19,
-34,
43,
9,
9
] |
Danhof, J.
On August 13, 1973, the plaintiff, Edsel Matson, brought the present action seeking declaratory judgment against the defendant, State Farm Mutual Automobile Insurance Company (hereinafter referred to as State Farm). The trial court declared a judgment in favor of the defendant against the plaintiff. The plaintiff appeals of right.
The instant case arises out of an accident that occurred on June 6, 1971, in which the plaintiff’s minor daughter, Linda Marie Matson, was struck and killed by an automobile driven by Edward A. Soronen, an uninsured motorist. Subsequently, the plaintiff, as father and administrator of the estate of his deceased daughter, brought a civil suit against the uninsured motorist under the wrongful death act (MCLA 600.2922; MSA 27A.2922) and against Stowe Enterprises, Inc. under the dram-shop act (MCLA 436.22; MSA 18.993).
The defendant insured the plaintiff and the members of his family under two policies of insurance, both of which provided for uninsured motorist coverage. Pursuant to the above policies, State Farm made full payment to the plaintiff, as administrator of his deceased daughter’s estate, and to the plaintiff and his wife, Eunice Matson, individually and as parents of the deceased, in the amount of $20,000.
The policy provisions dealing with the uninsured motorist coverage specify in relevant part:
"COVERAGE U — Damages for Bodily Injury Caused by Uninsured Automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile;
"13. Limits of Liability.
"(b) Any amount payable under this coverage because of bodily injury sustained in an accident by a person who is an insured under this coverage shall be reduced by:
"(1) all sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured automobile and (ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under coverage A;
* * *
"16. Trust Agreement. In the event of payment to any person under this coverage:
"(a) the company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made;
"(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of the damages which are the subject of claim made under this coverage;
"(c) such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights;
"(d) if requested in writing by the company, such person shall take, through any representative designated by the company, such action as may be necessary or appropriate to recover such payment as damages from such other person or organization, such action to be taken in the name of such person; in the event of a recovery, the company shall be reimbursed out of such recovery for expenses, costs and attorney’s fees incurred by it in connection therewith;
"(e) such person shall execute and deliver to the company such instruments and papers as may be appropriate to secure the rights and obligations of such person and the company established by this provision.”
The plaintiff further signed a receipt in the capacities noted above. The receipt, entitled "Release and Trust Agreement”, contained the following provision:
"For the consideration aforesaid, and to the extent of any payment made thereunder, the undersigned agrees to hold in trust for the benefit of the Company all rights of recovery which he shall have against any person or organization legally liable for such bodily injuries, and assigns to the Company the proceeds of any settlement with or judgment against such person or organization.”
The trial court declared "that defendant shall be entitled to be reimbursed from any recovery plaintiff shall have against any person or organization legally liable for any injuries and damages arising out of the accident which occurred on or about June 6, 1971, including any recovery under the dramshop act, and that any amounts of recovery up to the amount of Twenty Thousand ($20,000.00) Dollars are to be held in trust by the plaintiff for the benefit of the defendant”.
The issue raised on appeal is whether the trial court committed reversible error by determining that the insurer was entitled to be reimbursed by the plaintiff pursuant to the trust provisions agreed to by the parties.
Where an insurance contract requires judicial interpretation, it is a well established rule that the contract will be liberally construed in favor of the insured and strictly construed against the insurer. See Arrigo’s Fleet Service, Inc v Aetna Life & Casualty Co, 54 Mich App 482, 487, fn 5; 221 NW2d 206 (1974), lv den, 392 Mich 812 (1974), and the cases cited therein.
Further, it is a fundamental principle of contract law that "a promise to pay is not binding if made without consideration”. Kirchhoff v Morris, 282 Mich 90, 95; 275 NW 778 (1937).
In the instant case, the defendant insurer was obligated under the coverage section, quoted, to pay the insured or his (her) legal representative those damages which the insured was legally entitled to recover from the uninsured motorist. In line with its obligation, the defendant insurer carried out its performance under the contract by paying the representative of the deceased, Edsel Matson, the $20,000 required under the policy. In return for its performance to the insured, the defendant secured a signed release and trust agreement from Edsel Matson, both as administrator of his daughter’s estate and individually. However, in construing the contract in favor of the insured, the performance by the insurer must be deemed to have run only to the person to whom the liability ran, the deceased daughter. She was the insured, not her father. Thus, there was no consideration for the plaintiffs signing of the agreement in his individual capacity. Therefore, the plaintiff is not bound by the trust agreement in his individual capacity.
On the other hand, an insurer may limit his liability to the insured under the uninsured motorist coverage in that the amount payable under the coverage may be reduced by other sums paid to the insured by any other person or organization liable for the injury. See Michigan Mutual Liability Co v Karsten, 13 Mich App 46; 163 NW2d 670 (1968), lv den, 381 Mich 792 (1968).
The statute relevant to this appeal, the dram-shop act, reads in pertinent part, MCLA 436.22; MSA 18.993:
"Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, shall have a right of action in his or her name against the person who shall by such selling or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury, and the principal and sureties to any bond given under this law shall be liable, severally and jointly, with the person or persons selling, giving or furnishing any spirituous, intoxicating or malt liquors as aforesaid, and in any action provided for in this section, the plaintiff shall have the right to recover actual and exemplary damages in such sum not less than $50.00 in each case as the court or jury may determine, but no surety shall be liable in excess of the amount of the bond required by this act. Any action shall be instituted within 2 years after the happening of the event. In case of the death of either party, the action or right of action given in this section shall survive to or against his or her executor or administrator, and in every such action by a husband, wife, child or parent, the general reputation of the relation of husband and wife or parent and child shall be prima facie evidence of such relation, and the amount so recovered by either husband or wife or parent and child shall be his or her sole and separate property.”
However, the dramshop act was not intended to allow the plaintiff a redundancy of damages. Robertson v Devereaux, 32 Mich App 85, 92, fn 9; 188 NW2d 209 (1971).
While Edsel Matson is not bound by the trust agreement in his individual capacity, he is bound by the agreement as administrator of his daughter’s estate. The dramshop act gives him a right to recover for injury to person or property in his own name. The defendant has no claim under the policy to that recovery. Yet, the dramshop act does not prevent the trust agreement from being enforced against his daughter’s estate. As the insured under the policy, the estate is bound by its provisions. Those amounts received by the estate as a recovery under the dramshop act must be held in trust for the defendant in accordance with the provisions of the insurance policy.
Affirmed in part, reversed in part. Remanded for further proceedings consistent with this opinion. No costs, neither party prevailing in full.
On appeal, Matson v Soronen, 57 Mich App 190; 226 NW2d 52 (1974), lv den, 394 Mich 762 (1975).
While not affecting the instant case, the portion of the dramshop act quoted herein would not include the 1972 amendment. See Koehler v DRT Sportservice, Inc, 55 Mich App 567; 223 NW2d 461 (1974), lv den, 393 Mich 776 (1974). | [
-60,
28,
-30,
-43,
9,
6,
6,
-46,
34,
2,
11,
7,
39,
36,
-20,
3,
17,
33,
25,
10,
-42,
-25,
-44,
0,
-8,
-9,
78,
-106,
-26,
24,
-7,
4,
-29,
-20,
-15,
-9,
24,
-14,
-60,
55,
16,
-10,
44,
7,
7,
-25,
10,
8,
11,
17,
-12,
-20,
-23,
5,
43,
-21,
25,
21,
-61,
18,
24,
-43,
50,
0,
-8,
39,
3,
52,
38,
28,
7,
-27,
-16,
42,
-39,
7,
32,
49,
14,
-25,
9,
-31,
12,
-43,
-33,
35,
-69,
-50,
-50,
-36,
-28,
5,
-3,
-24,
-22,
-4,
-37,
-11,
29,
33,
9,
-84,
25,
35,
-6,
53,
-36,
-57,
-13,
30,
-34,
-8,
29,
32,
-4,
-2,
-30,
27,
-9,
30,
-17,
-51,
42,
-31,
-23,
-3,
6,
-9,
-1,
29,
11,
14,
61,
12,
16,
-13,
-14,
-58,
18,
-7,
-12,
16,
-20,
-20,
9,
72,
21,
-41,
-12,
-4,
0,
54,
-24,
-1,
-3,
-42,
-16,
-35,
19,
-47,
13,
-31,
17,
37,
-1,
-29,
-9,
56,
-26,
-7,
22,
-53,
26,
-33,
32,
-10,
54,
-16,
-42,
30,
-1,
21,
7,
10,
-5,
-13,
-11,
28,
-24,
11,
49,
-56,
5,
0,
23,
21,
6,
36,
4,
19,
42,
-73,
-14,
-50,
5,
-3,
-10,
-24,
-13,
-8,
45,
-19,
21,
4,
-45,
8,
-31,
-10,
-43,
-48,
-21,
27,
-21,
-31,
-30,
-41,
-45,
-34,
-37,
-21,
33,
14,
-4,
55,
-65,
3,
-64,
-40,
0,
53,
59,
4,
4,
-49,
66,
7,
16,
21,
-8,
14,
12,
6,
39,
46,
16,
-10,
12,
9,
19,
8,
9,
60,
0,
34,
26,
-21,
-4,
-19,
-3,
-20,
-16,
-38,
14,
-40,
-15,
-85,
0,
29,
21,
-21,
21,
-11,
-58,
-64,
-51,
-10,
15,
-7,
-14,
-7,
59,
-38,
9,
-33,
-6,
6,
45,
-17,
-8,
22,
39,
19,
55,
-8,
-8,
-34,
-25,
-29,
-22,
-16,
-36,
-40,
-18,
-37,
80,
-8,
-17,
-24,
36,
-22,
6,
26,
-42,
22,
25,
-63,
31,
-52,
36,
6,
-72,
28,
14,
-29,
26,
-67,
-28,
46,
29,
14,
56,
5,
-1,
35,
-13,
7,
44,
67,
-9,
-7,
-39,
-20,
-33,
-17,
-20,
2,
72,
20,
-24,
-4,
-4,
12,
-34,
15,
-27,
-17,
40,
37,
-14,
63,
52,
-3,
-18,
-28,
2,
-60,
-35,
55,
-48,
41,
13,
-21,
-2,
-24,
-9,
31,
-85,
-61,
-67,
16,
-61,
-13,
3,
35,
55,
-35,
-20,
13,
-24,
38,
-32,
38,
-13,
-51,
-22,
0,
25,
-23,
-27,
-6,
-30,
-4,
28,
0,
12,
25,
69,
-35,
-33,
-36,
15,
-9,
2,
-30,
7,
-47,
-17,
42,
-53,
-30,
26,
-11,
-14,
-13,
33,
-22,
-29,
-34,
21,
22,
-2,
54,
6,
3,
-6,
12,
-31,
4,
34,
0,
77,
22,
74,
17,
-42,
-6,
25,
23,
-24,
-44,
-57,
-26,
26,
-33,
23,
-40,
-50,
19,
32,
-64,
8,
8,
27,
-5,
29,
-19,
-10,
-16,
-18,
2,
-62,
-3,
-6,
-38,
10,
2,
1,
34,
3,
-12,
37,
-18,
-33,
5,
-13,
13,
0,
37,
-24,
-35,
-18,
-14,
0,
28,
6,
-22,
-25,
-10,
-62,
-39,
-7,
0,
-5,
44,
47,
7,
-13,
35,
44,
11,
-43,
31,
-76,
27,
-3,
-52,
28,
-6,
-44,
-53,
46,
2,
18,
-34,
-27,
-2,
22,
-34,
-30,
9,
4,
28,
-19,
-28,
3,
-59,
33,
-11,
0,
24,
-3,
-20,
-4,
-54,
44,
-19,
26,
-16,
8,
23,
-19,
60,
3,
-4,
8,
-25,
15,
-28,
52,
-23,
-46,
41,
34,
-39,
-16,
0,
-41,
5,
-49,
0,
-6,
25,
-28,
24,
-62,
-1,
-11,
18,
22,
-33,
27,
29,
-1,
23,
68,
34,
14,
-43,
-41,
-41,
-27,
29,
-50,
38,
18,
21,
33,
30,
-14,
-16,
-13,
35,
16,
-4,
37,
-30,
0,
-23,
19,
-30,
-16,
-18,
41,
16,
34,
64,
8,
58,
8,
-3,
29,
-45,
-3,
-26,
-41,
-35,
29,
59,
-60,
-5,
-25,
11,
33,
19,
-53,
2,
37,
-11,
18,
-24,
-59,
45,
-34,
-14,
-39,
32,
-16,
-4,
-47,
-2,
-3,
-16,
2,
21,
-28,
27,
12,
-28,
-17,
27,
53,
0,
39,
27,
37,
53,
-28,
68,
-25,
56,
2,
28,
2,
-1,
5,
15,
41,
21,
49,
-27,
-12,
-8,
-25,
-37,
29,
-11,
25,
34,
-40,
13,
-32,
47,
-64,
-3,
-18,
31,
-25,
-8,
5,
39,
-26,
-16,
13,
-44,
-21,
33,
-3,
-7,
-46,
-26,
16,
-48,
-5,
-44,
-28,
47,
61,
8,
25,
-18,
1,
-7,
-37,
1,
32,
30,
63,
-35,
22,
-24,
13,
44,
68,
4,
-42,
4,
-83,
19,
36,
9,
-45,
-2,
35,
-8,
-17,
-35,
24,
57,
25,
-57,
-13,
25,
92,
6,
0,
-18,
-38,
27,
2,
-50,
-5,
34,
-3,
-94,
-16,
7,
16,
-80,
-62,
-2,
18,
7,
30,
16,
-12,
-27,
2,
-37,
-23,
10,
22,
47,
45,
-25,
-8,
41,
8,
44,
25,
-20,
13,
48,
-2,
23,
51,
-31,
38,
15,
20,
-33,
-15,
3,
34,
-18,
-6,
3,
-13,
34,
-65,
2,
-13,
8,
-11,
-27,
32,
21,
2,
-41,
44,
-12,
-28,
-51,
-47,
3,
-38,
76,
50,
22,
-31,
-61,
29,
33,
-34,
18,
57,
0,
16,
1,
38,
-12,
27,
-81,
0,
15,
-19,
-29,
-65,
3,
-41,
-10,
2,
-38,
-53,
29,
12,
16,
1,
37,
-23,
-35,
-13,
60,
-12,
-13,
-11,
-11,
-19,
-38,
57,
-46,
5,
5,
-51,
52,
-67,
4,
17,
15,
-38,
31,
26,
10,
39,
-19,
-70,
13,
-24,
58,
60,
-53,
-23,
66,
28,
24,
26,
34,
12,
1,
-43,
18,
35,
-35,
36,
0,
41,
95,
-16,
18,
-6,
66,
21,
-32,
-11,
-26,
10,
-27,
36,
29,
15,
7,
26,
-26,
-10,
43,
20,
-13,
-26,
2,
-64,
-37,
47,
20,
-22,
-22,
3,
-2,
47,
-18,
-23,
5,
40,
8,
-4,
41,
-18,
18,
6,
25,
18,
65,
-29,
-3,
33,
19,
61,
-57,
44,
2,
-27,
-12,
37,
10,
-32,
-1,
-14,
10,
30,
0,
-39,
-38,
-47,
-32,
-39,
24,
-27,
4,
-19,
-2,
-34,
16,
17,
15,
-5,
64,
12,
18,
28,
64,
68,
-70,
-10,
3,
35,
18,
-24,
-13,
37,
-11,
61,
10,
-44,
13,
-30,
-45,
31,
45,
-26,
-46,
1,
-57,
35,
39,
22,
1
] |
Per Curiam.
Defendant was found guilty by a jury of felonious assault, contrary to MCLA 750.82; MSA 28.277. He was sentenced to a term of from 32 months to 4 years in prison, and appeals by right.
Defendant contends for the first time on appeal that the prosecutor’s remarks during the closing arguments impermissibly infringed upon defend ant’s right to refuse to testify. The prosecutor merely stated that certain evidence was uncontradicted. Such a statement was permissible and did not affect defendant’s right to remain silent. People v Balog, 56 Mich App 624, 629; 224 NW2d 725 (1974), People v Sullivan, 290 Mich 414; 287 NW 567 (1939), People v Hammond, 132 Mich 422; 93 NW 1084 (1903).
Defendant also argues that the prosecutor committed reversible error by failing to indorse and produce an alleged res gestae witness. That issue is not preserved for review here, as defendant failed to make a motion for a new trial. People v Robinson, 390 Mich 629, 634; 213 NW2d 106 (1973), People v Lovett, 63 Mich App 656; 234 NW2d 749 (1975).
Finally, defendant claims that the trial judge committed reversible error by excusing the prosecutor’s failure to produce two indorsed res gestae witnesses. Although defendant made no motion for a new trial, we find this issue to be preserved for appeal. People v Robinson, supra, speaks broadly of the necessity for a new trial motion when challenging the prosecutor’s failure to produce a res gestae witness, whether indorsed or unindorsed. Yet Robinson involved a case where no mention of this issue was made at trial. We hold that the Robinson requirements are satisfied when the defendant, as here, objects at trial to the prosecutor’s failure to produce a res gestae witness, and evidence is taken on that question. That result is in keeping with the holding of another panel of this Court in People v Lovett, supra, that a motion for mistrial at the close of the prosecution’s proofs, when an evidentiary hearing is held, preserves this issue for appeal.
The trial judge ruled that the prosecutor had exercised due diligence in an attempt to locate the two missing witnesses. We agree. The record shows that the day following the alleged assault upon the complaining witness in his apartment, the police went to the apartment down the hall where the two witnesses lived. The police were unable to find anyone at home, and they left a card for the witnesses to contact the police.
One of the two witnesses appeared at the police station the next day, and talked to the police officer in charge of the investigation. That witness told him that she was moving, and gave him her new address. However, when the police attempted to contact the witnesses at a later date prior to trial, the occupants at the new address knew nothing of these witnesses. The postal authorities were contacted, but they had no listing of the new address as a forwarding address. A subpoena was issued and returned unserved at some time during this period prior to trial.
The police returned to the old address two or three times, and finally found a Robert Harris at home. Harris stated that he knew the two witnesses, but that they had moved from that address. The manager of the apartment building could not be immediately located. Prior to trial, other units of the police department to whom the witnesses were known attempted to locate them without success. Police files and identifications were checked, and the witnesses were not found to be in police custody. Additionally, two officers who knew these two persons by sight checked various places which they were known to frequent.
On the first day of trial, the manager was finally found. He stated that the witnesses had actually moved only a few days before. Another neighbor who lived in the building and who had witnessed the assault told the police on the second day of the trial that the witnesses had returned the night before to pick up some things left behind. She explained that the witnesses were avoiding the police because they didn’t want to get involved in this whole episode. The codefendant being tried with Jones verified that fact. He stated that he had asked the two witnesses to appear, but that they had refused.
We hold that the finding of due diligence by the trial judge is supported by the record. The evidence shows efforts at least as extensive as those in People v Yarborough, 61 Mich App 303; 232 NW2d 394 (1975), and People v Riley, 33 Mich App 721; 190 NW2d 569 (1971). In addition, there was clear evidence that the witnesses in question were deliberately avoiding the police, indicating that more extensive efforts to obtain their presence at trial would be unproductive. The trial court properly excused the prosecutor’s failure to produce these two indorsed res gestae witnesses at trial.
Affirmed. | [
19,
-5,
-36,
14,
-8,
-20,
-29,
-38,
-75,
65,
0,
-21,
42,
-12,
4,
-18,
2,
-29,
17,
-23,
21,
-30,
16,
12,
-6,
-2,
-24,
77,
-17,
12,
14,
13,
-30,
-21,
28,
-48,
39,
41,
-14,
37,
44,
-82,
-24,
21,
-81,
-40,
20,
46,
33,
13,
59,
19,
-34,
14,
-14,
4,
21,
0,
-10,
1,
-7,
29,
-15,
-29,
-42,
-32,
20,
-3,
-52,
4,
-20,
16,
23,
-9,
7,
-8,
-16,
15,
34,
14,
-22,
12,
21,
0,
49,
-21,
17,
-76,
24,
3,
-18,
-22,
-74,
-21,
-35,
-19,
56,
-48,
45,
-28,
-4,
35,
-26,
38,
-10,
-16,
-60,
10,
16,
-7,
30,
10,
26,
11,
-25,
-24,
11,
1,
-15,
-13,
19,
14,
87,
53,
5,
10,
43,
-54,
63,
-8,
15,
34,
-9,
-29,
20,
4,
14,
20,
19,
12,
-31,
0,
22,
-45,
38,
8,
-39,
40,
46,
0,
-35,
4,
-6,
0,
-13,
-20,
-17,
-62,
7,
-10,
0,
15,
-49,
-39,
-17,
11,
9,
-26,
14,
-37,
21,
-30,
37,
33,
3,
2,
-8,
-9,
37,
-1,
-5,
23,
-16,
-44,
23,
3,
-1,
12,
-38,
-25,
-13,
41,
17,
-31,
73,
34,
-58,
30,
48,
-2,
-1,
-15,
-2,
36,
-31,
5,
11,
-38,
17,
13,
-39,
-22,
-27,
-51,
3,
-47,
-16,
-2,
0,
70,
-36,
-15,
7,
-15,
-19,
15,
38,
25,
-3,
18,
27,
-3,
-21,
-13,
-56,
13,
-41,
5,
41,
16,
-25,
-20,
29,
-39,
13,
33,
-2,
20,
-41,
-17,
30,
-23,
5,
7,
-45,
-42,
5,
-10,
-86,
14,
-16,
51,
16,
0,
-32,
17,
30,
18,
-13,
16,
-6,
-18,
11,
42,
-16,
-18,
-12,
-11,
-8,
11,
-29,
22,
-2,
-2,
-61,
-3,
-80,
53,
14,
-16,
79,
-24,
-79,
33,
57,
8,
5,
38,
-63,
-21,
24,
16,
-19,
-26,
-5,
-24,
-15,
9,
-19,
-8,
-27,
25,
14,
13,
6,
-19,
-53,
-23,
52,
-47,
-60,
-6,
18,
-42,
32,
-25,
14,
-37,
4,
12,
-52,
21,
-9,
8,
23,
6,
12,
2,
-13,
14,
4,
-6,
-30,
-15,
-16,
49,
13,
13,
-23,
5,
-7,
-23,
51,
16,
-18,
-15,
-24,
-30,
30,
-8,
38,
-11,
-11,
13,
1,
24,
-12,
-17,
31,
38,
4,
-41,
-51,
-31,
-12,
-21,
77,
-26,
23,
30,
-4,
32,
25,
-44,
-14,
15,
-6,
7,
-55,
9,
-52,
-57,
-5,
-69,
-44,
37,
-1,
46,
30,
25,
-15,
-7,
23,
13,
-31,
-8,
-5,
4,
-2,
3,
5,
60,
-20,
63,
-23,
-58,
17,
-24,
58,
-12,
38,
8,
40,
-37,
-32,
-35,
-39,
20,
4,
-58,
10,
34,
8,
-64,
29,
29,
-49,
13,
15,
2,
-10,
15,
-62,
-21,
5,
29,
-3,
19,
5,
-5,
-7,
20,
-5,
-27,
-3,
8,
26,
-3,
27,
-7,
-36,
-45,
-42,
-44,
36,
-46,
-28,
-36,
8,
13,
47,
-3,
23,
38,
-59,
1,
-27,
19,
-17,
29,
52,
56,
12,
-8,
-24,
5,
-4,
-45,
14,
-22,
-13,
24,
10,
12,
-8,
-9,
-5,
-7,
-23,
5,
-11,
12,
-52,
8,
1,
4,
47,
-42,
13,
26,
4,
49,
-21,
-15,
-49,
-32,
19,
-22,
34,
32,
-10,
-26,
0,
5,
-46,
15,
-36,
-30,
9,
40,
97,
40,
7,
19,
-10,
26,
-16,
-65,
-2,
27,
-4,
53,
22,
-1,
16,
-7,
-15,
-1,
27,
15,
40,
30,
31,
-6,
-25,
5,
14,
19,
22,
-45,
-25,
21,
49,
49,
-3,
-10,
-10,
-10,
60,
-13,
43,
81,
-27,
8,
-4,
40,
10,
48,
-20,
-3,
-33,
47,
8,
-45,
-26,
17,
28,
-15,
16,
5,
-81,
4,
29,
-37,
-61,
-11,
-34,
-31,
12,
2,
55,
-14,
-43,
2,
49,
-4,
36,
-18,
20,
-32,
46,
21,
-59,
0,
27,
-6,
-22,
14,
-43,
39,
11,
2,
-16,
-16,
2,
-11,
-32,
-18,
-29,
-27,
-12,
-11,
-19,
0,
-32,
9,
6,
-5,
-29,
-29,
18,
24,
-4,
-13,
45,
-29,
21,
32,
11,
-15,
-5,
61,
6,
-29,
19,
-11,
-19,
32,
82,
7,
-9,
-9,
-50,
-33,
-23,
24,
-4,
-21,
30,
-4,
7,
-10,
12,
3,
-2,
20,
33,
24,
-29,
-15,
-29,
-32,
-10,
-15,
-34,
-25,
-30,
45,
9,
-13,
15,
30,
42,
-3,
19,
-14,
63,
5,
-56,
33,
13,
-7,
26,
-14,
16,
-6,
-8,
-27,
39,
-18,
-16,
46,
36,
-24,
10,
25,
-56,
-30,
-7,
11,
15,
0,
-2,
-5,
-40,
16,
43,
0,
64,
27,
1,
-6,
2,
10,
7,
18,
30,
-13,
-26,
16,
-21,
8,
28,
-32,
12,
-26,
1,
-16,
29,
16,
23,
20,
6,
33,
-73,
37,
40,
-8,
-25,
-7,
28,
20,
-41,
-53,
-13,
-9,
1,
-39,
55,
4,
-69,
-57,
37,
-6,
-50,
23,
-13,
-2,
35,
-10,
-11,
5,
-28,
0,
14,
-18,
-27,
15,
-63,
39,
18,
-18,
-53,
67,
11,
23,
-12,
-35,
3,
39,
-9,
-10,
-6,
9,
10,
11,
15,
7,
27,
-18,
49,
13,
-20,
-27,
-3,
-38,
8,
-3,
0,
-36,
-9,
41,
16,
-52,
-22,
0,
17,
-67,
-36,
-6,
32,
-16,
-9,
83,
1,
-4,
-6,
51,
-26,
21,
17,
11,
-10,
-3,
53,
0,
-17,
-6,
23,
18,
78,
13,
13,
-4,
-20,
24,
-1,
-19,
20,
36,
2,
36,
-41,
-50,
22,
-1,
-17,
-32,
24,
-40,
1,
-5,
38,
-5,
-63,
13,
-5,
17,
-28,
40,
46,
6,
11,
-18,
15,
-65,
-6,
-69,
-26,
-16,
-1,
18,
20,
1,
-17,
0,
79,
-22,
38,
-12,
-23,
-8,
9,
-13,
35,
3,
52,
3,
3,
2,
-17,
15,
25,
6,
21,
7,
-59,
-12,
54,
-32,
7,
66,
27,
0,
-3,
-41,
-14,
-21,
-49,
13,
33,
-8,
-40,
-49,
-6,
11,
36,
-37,
17,
-34,
-15,
0,
-33,
16,
-54,
21,
-62,
6,
-36,
28,
-45,
-40,
26,
0,
-3,
8,
6,
-10,
-21,
-1,
-28,
55,
-40,
15,
20,
-18,
-11,
-13,
15,
33,
50,
-56,
-10,
-38,
-23,
-9,
1,
25,
-15,
9,
0,
-39,
-3,
0,
30,
-38,
0,
-14,
0,
-20,
19,
52,
21,
-6,
-3,
15,
-24,
-61,
5,
27,
-21,
9,
5,
31,
7,
4,
18,
19,
-35,
10,
2,
-15,
34,
0,
-6,
22,
8,
10,
-9,
7,
-25,
49,
-11,
-5
] |
Danhof, J.
On August 2, 1974, John Edward Fell, Jr. was found guilty by the trial court, sitting without a jury, of larceny in a building. MCLA 750.360; MSA 28.592. He was sentenced to a term of a minimum of 2 years to a maximum of 4 years in prison on August 15, 1974.
On March 15, 1974, the defendant and his stepbrother drove into a gas station at approximately 6:30 p.m. A seventeen-year-old man was the only attendant at the gas station that night.
The gas station building was divided into two rooms, an outer room referred to as the "salesroom” and an inner room referred to as the "backroom”. The backroom could only be entered through a door from the salesroom. The cash proceeds were kept in the backroom in a cabinet with a broken lock.
After the attendant put approximately $1 worth of gas into the defendant’s car, the defendant and his step-brother asked the attendant if he would like to purchase a radio and a portable bar from them. Exactly where the ensuing discussion was carried on was disputed, but the attendant stated none of the sale took place in the backroom. However, the attendant did go into the backroom to get the money to purchase the radio and a map of the Detroit area for the defendant. He testified that he had shut the door securely upon leaving the backroom, but that he had not locked the door. The attendant then waited on another customer outside the building. Upon returning to the building, the attendant stated he observed the defendant leaving the backroom carrying two maps. Thereafter, he waited on yet another customer before he noticed two $20 bills missing.
The attendant testified that he had counted the number of $20 bills just ten minutes before the defendant and his step-brother had driven into the station. He stated there were five $20 bills at that time. However, the testimony of the attendant was not clear on the total amount of money in the cabinet nor on whether the attendant had carried any money on his person.
The defendant was later arrested at a farm between 9 and 9:30 p.m. on the same date by a deputy from the sheriffs department, who had been given the license number of the defendant’s car by the gas station attendant. At the farm, the deputy found the farmer holding a shotgun on the defendant and his step-brother. At the trial, the prosecutor elicited the following from the deputy:
"Q. I see. Were there any other people around in that area that you could recognize besides the man with the gun?
"A. No, sir.
"Q. What happened then?
"A. I got out of the car and was advised by the man holding the shotgun that—
"Mr. Hofmart [defense counsel]: I’ll object to anything that the man with the shotgun said on the basis that it’s hearsay.
"The Court: Objection overruled. It’s not hearsay. Proceed.
"The Witness: I was advised by him that he was the owner of the property, adjoining property and that this Mercury had pulled in his driveway and was acting very suspiciously and he was concerned that they were attempting a larceny.”
The deputy was later recalled for further testimony related to an attempted larceny at the farm. The farmer was not present at the trial.
The first issue raised on appeal is whether there was sufficient evidence to support the conviction of the defendant.
People v Matthews, 53 Mich App 232, 235-236; 218 NW2d 838 (1974) stated:
"The evidence is insufficient if it could not support a finding of guilt beyond a reasonable doubt. People v Williams, 368 Mich 494; 118 NW2d 391 (1962).”
See also People v Palmer, 392 Mich 370, 376; 220 NW2d 393 (1974).
As to the evidence presented to the trial court, People v Stewart, 36 Mich App 93, 98; 193 NW2d 184 (1971), lv den, 386 Mich 775 (1971), stated:
"When an appellate court is confronted with a challenge to the judgment of the trier of the facts, it will not easily be moved to overturn the judgment below. The trier of the facts, be it judge or jury, has had the opportunity to listen to the witnesses and observe their demeanor; he has had the opportunity to observe and evaluate the plethora of subjective and objective factors which together influence his opinion of the credibility of the witnesses. These factors do not survive in the stenographic transcription, we merely have a record of the words spoken at trial — an incomplete record at best. For this reason, an appellate court is reluctant to overturn the judgment of the trier of fact and substitute its judgment, which must necessarily be based on an inadequate description of the factors which lead the trier of fact to reach its decision. People v Franczyk, 315 Mich 384 [24 NW2d 87] (1946); People v Panknin, 4 Mich App 19 [143 NW2d 806] (1966).”
A review of the record indicates that the defendant’s conviction is based almost entirely on the testimony of the gas station attendant. There were no eyewitnesses to an actual taking of any money. In fact, all the evidence was circumstantial. Even this evidence was very limited. None of the alleged missing money was even found on the defendant. The evidence became a matter of who to believe. As stated in People v Stewart, the trial court was in the unique position of being able to study the demeanor of the witnesses, while this Court on appeal can only look at the printed words of the transcript. A careful reading of the transcript does reveal there is sufficient evidence to support a finding of guilt beyond a reasonable doubt if due weight is given to the testimony of the attendant and the testimony of the defendant is disbelieved. Therefore, in accord with People v Matthews, supra, the finding of the trial court will not be disturbed on the ground that there was insufficient evidence to support the conviction.
The second issue raised on appeal is whether the admission of hearsay testimony relating to an alleged larceny by the defendant subsequent to the crime charged constituted reversible error.
The Court in People v George Jones, 48 Mich App 102, 106; 210 NW2d 145 (1973), defined hearsay as follows:
"Hearsay evidence is testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. McCormick, Evidence (2d ed), § 246, p 584.”
The reason that hearsay evidence is generally held inadmissible is because the defendant is denied the right of cross-examination. People v Rea, 38 Mich App 141, 142; 195 NW2d 809 (1972), lv den, 388 Mich 795 (1972). Where hearsay testimony has been admitted, People v Kelley, 32 Mich App 126, 146; 188 NW2d 654 (1971), stated:
"We think in each case the question whether a particular hearsay declaration may be admitted against an accused without infringing the right of confrontation depends, as we have said, on the nature of the declaration and the circumstances of its making. Where such circumstances, however, create the substantial likelihood of an accurate report of the hearsay assertion and where there exists reasonable assurance that cross-examination would be unavailing, hearsay may be admitted without violating the confrontation right in criminal cases. In each case, the trial judge, outside the hearing of the jury, should first test the proffered declaration against these standards; if satisfied that the high standards of probable trustworthiness have been met, the court may then permit introduction of the hearsay statement without running afoul of the Confrontation Clause.”
When the deputy in the present case testified that the owner had advised the deputy he was "concerned that they were attempting a larceny”, that out-of-court statement was offered for the truth of the matter asserted therein. No other reason appears on the record for the admission of what the farmer said to the deputy. The statement was hearsay.
The statement does not appear to fall within the recognized exceptions to the hearsay rule. Perhaps the most likely exception with the farmer would have been the res gestae exception. An examination of this exception, though, indicates it would not apply either. See People v Kelley, supra, p 135.
As stated in the Kelley case, the determination of whether the defendant’s right of confrontation has been violated depends upon the nature and circumstances of the hearsay. Here, the nature of the statement is to present evidence against the accused of a subsequent crime. While the statement was not objected to in the trial court on this basis, the nature and impact of the statement go to the very fairness of the defendant’s trial. Thus, the hearsay statement must be examined in light of its effect both on the defendant’s right of confrontation and right to a fair trial.
People v DerMartzex, 390 Mich 410, 413; 213 NW2d 97 (1973), states the general rule as to the admissibility of evidence of other crimes:
"While evidence of a prior conviction of a defendant may be admissible to impeach his credibility, the general rule is that evidence tending to show the commission of other criminal offenses by the defendant is inadmissible on the issue of his guilt or innocence of the offense charged.
"Evidence of other crimes is barred because it has been decided that whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant’s guilt or innocence. 'This rule of law guards against convicting an accused person because he is a bad man. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts or crimes.’ People v Matthews, 17 Mich App 48, 52; 169 NW2d 138 (1969).
"It also has been decided, however, that the probative value of such evidence may outweigh the disadvantages where the people seek to use such evidence to show the defendant’s 'motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in the act, in question’. MCLA 768.27; MSA 28.1050.”
An alleged attempted larceny at the farm does not relate to any of the factors set out in the statute. The record fails to indicate any relevance between an attempted larceny at the farm and the alleged larceny at the gas station. Besides its inadmissibility as hearsay, the statement should have been ruled inadmissible as evidence of a subsequent crime offered to show the defendant is a bad man and not offered to prove the defendant guilty of the crime charged.
The standard of review for error in the admission of evidence has been stated in various ways. GCR 1963, 529.1 indicates that a judgment may not be disturbed unless refusal to do so would be "inconsistent with substantial justice”. MCLA 769.26; MSA 28.1096 states that no judgment shall be set aside or reversed for the improper admission of evidence unless, after an examination of the whole record, "it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice”. As to the above provisions, People v Robinson, 386 Mich 551, 562-563; 194 NW2d 709 (1972), stated:
"We regard the strictures of MCLA 769.26 and GCR 1963, 529.1, as different articulations of the same idea: appellate courts should not reverse a conviction unless the error was prejudicial. As stated in Nichols, supra— ' * * * the rule always in effect in Michigan, * * * has been and is that the question of reversal is controlled by determination of whether the error was prejudicial’.
"In determining prejudice in an error there are many considerations. As pointed out by former California Chief Justice Roger Traynor in his book The Riddle of Harmless Error (Ohio State Univ Press ed 1970), p 17:
" 'A large word like justice incorporated into a rule governing harmless error, compels an appellate court to concern itself not alone with a particular result but also with the very integrity of the judicial process.’
"The appropriate considerations are described in People v Wichman, 15 Mich App 110, 116 (1968):
" 'Where it is claimed that error is harmless two inquires are pertinent. First, is the error so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless? See People v Bigge, 288 Mich 417, 421 (1939); People v Berry, 10 Mich App 469, 474 (1968); People v Mosley, 338 Mich 559, 566 (1953). See, also, Chapman v California, 386 US 18, 23-24 (87 S Ct 824; 17 L Ed 2d 705) (1967), reh den 386 US 987 (87 S Ct 1283; 18 L Ed 2d 241). Second, if not so basic, can we declare a belief that the error was harmless beyond a reasonable doubt? See People v Liggett, 378 Mich 706, 716, 717 (1967); Chapman v California, supra. ’ ”
People v Lundberg, 364 Mich 596; 111 NW2d 809 (1961), indicates the standard of review may vary for a nonjury trial. In Lundberg, the trial court admitted evidence of the commission of subsequent unrelated crimes by the defendant. In ruling on the admission, the court stated, in 364 Mich at 603-604:
"Had such evidence been admitted in a trial to a jury, we would not hesitate to reverse a verdict of guilt. However, trial here having been to the court without a jury, and with due regard for the whole evidence of guilt disclosed by this record, we do not believe the verdict would have been different than it was had such testimony been excluded.”
However, the Court in People v Ramsey, 385 Mich 221; 187 NW2d 887 (1971), did find the trial court could be prejudiced by inadmissible evidence so as to require reversal of the trial court. The Court stated, in 385 Mich at 225-226:
"A trial judge, sitting as the trier of the facts, can assume no greater prerogatives than a jury if a jury were impanelled to determine the facts.”
Further, People v Jackson, 391 Mich 323, 340, fn 17; 217 NW2d 22 (1974), indicated further dissatisfaction with the trial court receiving evidence inadmissible at the trial. In consideration of the above cases, it appears that the trial court sitting without a jury may be one factor to consider on review, but the basic standard of review as set forth in the court rule, the statute, and People v Robinson, supra, remains applicable.
In the present case, the statement by the farmer to the deputy concerning an attempted larceny was inadmissible under the hearsay rule of evidence. In line with People v Kelley, supra, the nature of the hearsay was that it was highly prejudicial. The circumstances under which it was given to the deputy gave no assurance the farmer’s statement was trustworthy. Cross-examination may very well have shown the farmer’s statement was thoughtlessly made and without a basis in fact. No reason has been shown why the farmer could not have been present in court. Therefore, admission of the statement violated the defendant’s right to confront witnesses against him.
Moreover, even if cross-examination had been available, the statement should not have been admitted into evidence to begin with. Evidence of a subsequent unrelated crime had no probative value to prove the alleged larceny at the gas station. The statement served only to divert the trier of fact. It cannot be concluded the error was harmless beyond a reasonable doubt. It is evident the statement introduced a subject that was given undue emphasis. On the witness stand, the defendant responded to the statement in an attempt to rebut it. Later, the deputy was recalled by the prosecution to further explain the incident at the farm. While the trial judge did not expressly make this evidence part of his finding to convict the defendant, he did question the defendant about the farm incident at the sentencing on August 15, 1974. Even under People v Lundberg, supra, the evidence of the defendant’s guilt for the crime charged is so limited in the present case that it would not prevent reversal of the conviction because the trial court was sitting without a jury. The error was so prejudicial in this case that it cannot be said with assurance that the defendant received a fair trial. Under the standards set forth in People v Robinson, supra, it would be manifestly unjust to let the conviction stand where such prejudicial error preceded it.
Accordingly, the trial court is reversed and the Case remanded for a new trial. | [
11,
7,
25,
12,
-9,
-21,
-20,
11,
-17,
23,
-17,
29,
-25,
-11,
-3,
11,
37,
73,
-1,
-37,
13,
-61,
28,
66,
-16,
-4,
26,
6,
-71,
60,
0,
-14,
14,
-87,
43,
70,
37,
-27,
36,
21,
-13,
22,
-7,
-26,
7,
-10,
-19,
-3,
25,
5,
19,
-16,
24,
-3,
41,
-8,
-9,
15,
3,
44,
37,
41,
0,
-57,
31,
-3,
-23,
0,
-36,
47,
25,
0,
-18,
33,
0,
14,
-22,
37,
16,
10,
10,
16,
23,
10,
-2,
-7,
-7,
-34,
-22,
-52,
-7,
1,
-18,
20,
10,
-42,
-14,
18,
-5,
-26,
-36,
-37,
-52,
4,
24,
2,
1,
-46,
-74,
-24,
-17,
-7,
51,
1,
7,
-20,
-5,
-9,
-32,
16,
25,
-21,
77,
40,
-1,
-29,
-20,
-35,
13,
-48,
-16,
54,
-54,
-19,
-14,
-34,
3,
51,
-4,
12,
-10,
44,
35,
43,
-15,
-10,
-36,
42,
20,
53,
-54,
0,
20,
0,
3,
10,
-47,
-13,
-42,
-11,
-13,
-10,
-34,
-1,
27,
-32,
23,
-29,
-24,
-10,
-20,
10,
30,
1,
74,
2,
11,
-10,
23,
22,
-25,
6,
-5,
50,
23,
-10,
70,
23,
-40,
0,
4,
8,
-57,
35,
28,
-22,
1,
31,
29,
48,
-36,
-33,
51,
38,
19,
-16,
25,
45,
6,
-31,
0,
-37,
20,
-10,
-50,
4,
-35,
-30,
32,
-57,
-100,
-47,
-44,
25,
-6,
3,
42,
36,
-15,
1,
28,
-30,
27,
20,
8,
-40,
-56,
-33,
37,
34,
20,
-56,
6,
20,
52,
47,
4,
-26,
-5,
9,
-37,
2,
-58,
25,
-38,
7,
57,
-50,
-6,
38,
-16,
-28,
37,
14,
-2,
14,
0,
-5,
-54,
-8,
20,
-49,
-8,
-32,
5,
-1,
-3,
10,
25,
-49,
43,
-51,
1,
-16,
-1,
-16,
39,
26,
-4,
-14,
47,
-9,
38,
-9,
8,
-36,
33,
-3,
-67,
-38,
-46,
0,
-48,
-29,
-9,
11,
34,
-13,
-37,
8,
51,
-25,
50,
28,
54,
-56,
6,
-7,
51,
44,
-14,
-66,
-25,
0,
-7,
-2,
14,
-3,
11,
-19,
39,
7,
13,
-9,
-62,
-1,
-10,
17,
37,
12,
-10,
-62,
20,
-13,
20,
-9,
24,
28,
-57,
-18,
47,
-55,
43,
23,
26,
-31,
-8,
-4,
16,
17,
21,
-7,
-28,
17,
-7,
-78,
-27,
-9,
55,
36,
50,
-46,
-33,
19,
12,
-35,
1,
-44,
-7,
4,
51,
4,
19,
-13,
-14,
-18,
-34,
-62,
-25,
87,
-43,
44,
7,
-41,
27,
-16,
15,
-20,
0,
-14,
-17,
24,
53,
-2,
-22,
1,
-25,
32,
14,
-49,
1,
-37,
-5,
5,
-23,
6,
27,
-33,
1,
-28,
16,
60,
33,
-44,
89,
-13,
-19,
52,
19,
0,
34,
-9,
-36,
1,
12,
23,
-69,
2,
-7,
-25,
13,
1,
-9,
15,
68,
31,
-57,
-70,
59,
31,
18,
-25,
30,
-12,
7,
77,
-13,
-12,
-33,
-42,
35,
8,
-53,
-15,
39,
-1,
2,
-39,
-21,
23,
-31,
6,
4,
-2,
-11,
-22,
7,
-14,
14,
-22,
14,
43,
-40,
-7,
-9,
-48,
-68,
-51,
-43,
46,
19,
5,
-31,
-43,
25,
66,
0,
19,
-7,
0,
-33,
-41,
2,
31,
37,
-18,
-18,
-29,
0,
-20,
6,
19,
-38,
-10,
-13,
-13,
29,
4,
24,
55,
18,
11,
-32,
43,
-40,
16,
10,
-23,
-46,
-18,
18,
-43,
2,
-30,
17,
-39,
17,
-4,
-24,
-19,
87,
11,
74,
19,
-10,
-16,
12,
-19,
-25,
-24,
39,
18,
27,
-43,
-31,
-36,
-10,
31,
-14,
13,
-52,
36,
58,
-16,
47,
-8,
-8,
21,
16,
18,
-88,
62,
-7,
39,
11,
-2,
-45,
13,
-3,
54,
48,
68,
33,
30,
-23,
76,
-3,
44,
1,
12,
-11,
-14,
-8,
4,
27,
-7,
-13,
-8,
22,
-47,
19,
-19,
-8,
44,
29,
-24,
7,
63,
-10,
-28,
55,
15,
14,
-34,
12,
46,
-7,
-18,
-19,
-24,
-8,
-31,
-27,
27,
5,
4,
-26,
-16,
-6,
-46,
-24,
-4,
-11,
12,
-5,
-19,
36,
-14,
-35,
23,
-3,
4,
15,
-20,
14,
33,
-10,
-9,
-4,
1,
-19,
-17,
21,
67,
45,
7,
-17,
-25,
55,
-43,
-2,
39,
-35,
50,
-33,
26,
13,
-59,
50,
-12,
-20,
-28,
-30,
-24,
12,
32,
12,
-9,
2,
-37,
-1,
36,
-22,
0,
-1,
19,
29,
6,
16,
-23,
-49,
24,
-15,
50,
55,
75,
9,
-5,
-63,
-8,
1,
-31,
0,
17,
-7,
2,
56,
-28,
-34,
16,
-27,
7,
0,
67,
5,
-25,
-21,
-29,
-23,
-1,
-82,
-21,
5,
39,
-26,
13,
14,
-28,
-34,
-22,
3,
-19,
1,
-27,
0,
68,
-101,
6,
9,
43,
-42,
14,
-19,
-34,
14,
-20,
-5,
-34,
4,
-18,
1,
83,
10,
37,
-27,
-10,
37,
-31,
-72,
-39,
-18,
36,
1,
-23,
-34,
-25,
11,
-57,
55,
-41,
-23,
-29,
-72,
7,
6,
15,
-53,
-46,
26,
-7,
0,
22,
10,
-11,
16,
-16,
-39,
15,
46,
18,
11,
-36,
17,
28,
-14,
5,
3,
47,
-4,
-29,
-8,
-8,
13,
15,
8,
-29,
45,
53,
-38,
-20,
14,
-14,
9,
-33,
21,
41,
34,
-44,
-27,
36,
8,
-9,
-23,
-106,
-22,
45,
-22,
-16,
0,
29,
-37,
-4,
41,
-6,
8,
-38,
5,
-9,
-10,
9,
33,
6,
2,
0,
0,
-49,
22,
30,
41,
26,
36,
-50,
-56,
-45,
-41,
-16,
31,
42,
3,
-3,
-21,
-23,
-32,
0,
-15,
7,
-10,
29,
-8,
8,
8,
4,
19,
23,
23,
19,
36,
9,
9,
-31,
-31,
-30,
25,
24,
35,
29,
5,
-79,
-48,
4,
-72,
-25,
-76,
-68,
-15,
-14,
61,
-11,
25,
-36,
38,
-17,
-57,
-11,
18,
12,
3,
-26,
-36,
-27,
0,
45,
4,
33,
-15,
5,
19,
32,
13,
-10,
3,
39,
15,
69,
23,
-34,
5,
-20,
-31,
27,
-19,
11,
28,
-40,
-71,
-13,
5,
-52,
47,
38,
-15,
4,
-24,
29,
-14,
25,
34,
-49,
-24,
4,
-8,
46,
-83,
26,
32,
25,
27,
28,
-22,
29,
-41,
-8,
0,
32,
30,
18,
-12,
22,
-31,
-15,
7,
-4,
-33,
7,
77,
10,
1,
13,
6,
-2,
-25,
-41,
-35,
11,
14,
4,
-37,
47,
-2,
-3,
16,
-18,
-25,
97,
45,
31,
-16,
7,
-18,
-56,
-39,
-57,
-12,
-21,
-3,
38,
-18,
9,
-13,
4,
-25,
-52,
-18,
26,
15,
34,
3,
6,
-9,
35,
-47,
21,
-23,
76
] |
Per Curiam.
This cause arises out of a dispute over the proceeds of a life insurance policy issued on the life of Joseph Thomas, deceased. Plaintiff, Elizabeth Smith, sister of the deceased and the designated beneficiary under the policy, instituted suit against John Hancock Mutual Life Insurance Company which interpleaded the other defendants. Defendant, Linda Thomas, daughter of the deceased, filed a cross-claim seeking the proceeds by virtue of the provision of a judgment of divorce previously entered between the deceased and his wife. On November 20, 1974, a motion for summary judgment was granted on defendant’s cross-claim and plaintiff appeals.
The pertinent facts are as follows: On September 1, 1965, defendant Thomas’s parents, Joseph and Alice Thomas, were divorced pursuant to a judgment granted by Judge William J. Beer who is also the trial judge in the instant case. One section of the divorce judgment provides:
"It is further ordered and adjudged that the defendant [Joseph Thomas, deceased] shall keep and maintain as beneficiary, the existing life insurance policy on his life, the minor child of the parties hereto.”
It is conceded that defendant, Linda Thomas, is the minor child referred to in the judgment and the trial judge interpreted the above section:
"I do not consider it part of a property settlement. It is labeled separately under article 8, 'Child beneficiary of insurance.’ Then it reads, 'It is further ordered and adjudged that the defendant shall keep and maintain as beneficiary the existing life insurance policy on his life, to the minor child of the parties hereto.’ And, I hold further that, using the term 'child beneficiary or minor child’ in themselves, did not free him from the responsibility of seeking court approval before changing this beneficiary.
"I hold further, that the child herself, even though she would become an adult had, under the laws of insurance, an interest in this policy. She had been told by a judgment order of this court entered into by her father that the insurance policy would be kept and maintained for her as beneficiary. He never sought to change this judgment order, and I think it is final and controlling.”
Following the entry of the judgment of divorce, the deceased, on September 16, 1965, changed the beneficiary on his John Hancock Certificate of Insurance No. [ XXX-XX-XXXX ], issued pursuant to Group Policy No. 17 GCC, from his former wife, Alice, to his minor daughter, Linda, defendant herein, who at that time was 14 years old. She was 21 years old when her father changed the beneficiary from Linda Thomas, daughter, to Elizabeth Smith, sister, on June 10, 1972, and then died the following month.
Defendant Thomas’s cross-claim, in addition to asserting that the deceased was prohibited by the terms of the judgment of divorce from designating anyone other than herself as beneficiary, also claimed that her deceased father’s designation of plaintiff as beneficiary was void because of mental incapacity and undue influence.
MCLA 552.17a; MSA 25.97(1) confers jurisdiction on a court with respect to the custody and/or support of any child of the parties until such child attains the age of 18 or beyond that age in case of exceptional circumstances . See Price v Price, 395 Mich 6; 232 NW2d 630 (1975). As this Court stated in Gray v Independent Liberty Life Insurance Co, 57 Mich App 590, 594; 226 NW2d 574 (1975):
"We agree with the trial court that the language of the divorce judgment relative to insurance is not ambiguous. However, we read that language to mean that Mr. Dempsey was to maintain the insurance with his children as beneficiaries for so long as he was obligated to pay support for the children under the judgment. If the meaning of that language is not so limited and it is read to mean that Mr. Dempsey was to maintain the life insurance with his children as beneficiaries, the provision would be invalid. In divorce actions, the authority of the court to act is purely statutory, Flynn v Flynn, 367 Mich 625; 116 NW2d 907 (1962). We find no statute authorizing a trial court to compel a husband and father to maintain insurance on his life for the benefit of his children.”
Attacking the authority of the court to make a ruling is not, as defendant Thomas would argue, the same as attacking the ruling of the trial court in the divorce proceedings. Binben v Continental Casualty Co, 9 Mich App 97, 100; 155 NW2d 883 (1967).
The trial court’s grant of summary judgment is reversed and the cause remanded for trial. Costs to plaintiff, Elizabeth Smith.
"The court shall have jurisdiction in making such order or judgment relative to the minor children of such parties as authorized in this chapter to award custody of each child to 1 of the parties or a third person until each child has attained the age of 18 years and may require either parent to pay such allowance as may be deemed proper for the support of each child until each child shall have attained that age and may in case of exceptional circumstances, require payment of such allowance for any child after he attains that age. However, on application for modification of a judgment or order where applicant is in contempt, for cause shown, the court may waive the contempt and proceed to a hearing without prejudice to applicant’s rights and render a determination on the merits.” | [
-78,
-3,
23,
46,
29,
-17,
32,
-56,
43,
-37,
-16,
-17,
28,
27,
26,
-26,
-23,
-28,
0,
-14,
-59,
5,
-56,
46,
36,
0,
17,
-15,
0,
-16,
-42,
-17,
-23,
-28,
-36,
36,
28,
17,
-6,
30,
29,
-22,
52,
57,
-44,
-26,
35,
0,
3,
6,
13,
-17,
19,
-14,
-33,
-3,
20,
36,
21,
12,
-28,
-9,
19,
51,
5,
20,
21,
38,
17,
19,
59,
20,
-37,
33,
2,
0,
1,
-17,
-9,
-34,
-8,
-26,
0,
-2,
-9,
16,
-28,
33,
-9,
11,
-33,
17,
-51,
-82,
-32,
70,
-3,
3,
14,
42,
12,
-47,
26,
70,
-1,
20,
48,
-69,
-19,
5,
58,
-9,
39,
-12,
6,
19,
-37,
-8,
-52,
-32,
-2,
4,
43,
1,
11,
48,
-4,
-22,
5,
43,
-50,
-3,
-14,
-11,
3,
-24,
-4,
-23,
3,
-43,
42,
-48,
-13,
-15,
5,
26,
-10,
-43,
-47,
-25,
16,
39,
-7,
34,
17,
27,
-41,
-36,
-7,
-68,
0,
0,
8,
56,
-70,
-16,
16,
24,
3,
20,
2,
-37,
-25,
19,
28,
54,
44,
-9,
-41,
35,
11,
29,
13,
11,
-21,
-30,
-2,
6,
-19,
-17,
-4,
-39,
-10,
68,
-1,
54,
59,
54,
20,
-21,
-8,
-41,
33,
14,
-21,
-24,
0,
6,
-45,
-29,
-1,
23,
3,
-6,
-50,
-7,
6,
21,
-40,
-2,
2,
-9,
6,
22,
-25,
-44,
-26,
-22,
-38,
-36,
19,
-21,
13,
16,
-11,
54,
-46,
7,
-17,
37,
44,
-1,
-6,
-25,
24,
26,
17,
4,
22,
8,
-7,
-3,
-37,
82,
15,
-84,
-10,
28,
-2,
4,
-51,
41,
-48,
-18,
5,
-6,
16,
1,
32,
0,
20,
-28,
42,
-32,
-4,
-14,
-9,
47,
-13,
-16,
17,
43,
-7,
4,
-54,
-15,
44,
4,
53,
17,
16,
-4,
30,
-11,
39,
-25,
-14,
-8,
19,
-28,
25,
-18,
63,
-8,
-35,
-4,
-24,
-60,
9,
-17,
21,
-38,
-23,
-40,
38,
-45,
-56,
-73,
26,
9,
42,
20,
2,
58,
-39,
-5,
47,
6,
15,
39,
-53,
63,
21,
-2,
23,
-76,
31,
74,
-3,
-15,
24,
14,
26,
-56,
-15,
-21,
56,
9,
-26,
-14,
-50,
45,
38,
4,
-29,
-3,
82,
-53,
-10,
39,
18,
14,
22,
-14,
33,
28,
51,
4,
-21,
2,
15,
5,
-27,
-24,
5,
-27,
-40,
48,
-20,
39,
21,
-44,
40,
18,
12,
25,
-13,
2,
-9,
-44,
-29,
-62,
92,
20,
-29,
23,
-69,
17,
-24,
19,
-10,
16,
-40,
-16,
-19,
46,
-29,
-40,
-8,
12,
-8,
13,
19,
-40,
20,
35,
26,
-47,
22,
25,
-1,
26,
-8,
-23,
-46,
-57,
21,
9,
12,
-31,
-9,
44,
-21,
-24,
30,
18,
-17,
-44,
4,
30,
-33,
37,
21,
25,
4,
30,
-26,
8,
52,
8,
27,
15,
-1,
-7,
-32,
-8,
-9,
-10,
-27,
-51,
11,
-21,
15,
20,
15,
1,
-28,
25,
63,
-22,
-7,
7,
-61,
3,
56,
23,
-11,
-48,
-40,
-23,
-48,
30,
-41,
22,
-11,
6,
26,
21,
-14,
-5,
-4,
-31,
11,
-18,
-6,
-15,
-62,
0,
-40,
-86,
16,
-33,
50,
8,
13,
1,
-40,
-32,
-69,
-8,
-19,
-51,
29,
-12,
-13,
7,
14,
1,
19,
11,
10,
-5,
1,
0,
10,
13,
13,
-7,
28,
10,
22,
73,
15,
7,
-1,
58,
0,
-9,
-19,
-5,
12,
26,
9,
12,
-16,
0,
31,
-21,
-41,
-10,
0,
-40,
-5,
38,
23,
-10,
19,
49,
24,
-19,
-5,
23,
-1,
-9,
6,
-10,
-36,
-49,
4,
-1,
-45,
-21,
-8,
-2,
-6,
15,
6,
25,
-22,
-2,
-45,
-23,
-12,
-9,
-14,
-16,
31,
51,
10,
-53,
-23,
-4,
-11,
-21,
39,
-47,
33,
-45,
-20,
-35,
-24,
7,
-46,
-42,
14,
-13,
39,
14,
-4,
-45,
31,
-13,
-20,
-5,
-2,
6,
41,
-1,
19,
-36,
-12,
20,
6,
2,
19,
-14,
19,
28,
9,
27,
53,
-66,
7,
-44,
18,
-33,
-32,
35,
-6,
-45,
-24,
14,
47,
-2,
-43,
-1,
5,
-3,
17,
-43,
-33,
8,
-25,
-5,
-7,
-34,
-31,
-16,
-26,
-18,
-26,
-31,
33,
46,
-6,
21,
22,
9,
-16,
-23,
-6,
10,
35,
27,
21,
51,
5,
22,
10,
-6,
-47,
-29,
-9,
16,
15,
-4,
32,
-21,
19,
2,
26,
-46,
-2,
-2,
13,
-3,
18,
44,
53,
5,
-36,
38,
-19,
6,
4,
-14,
-31,
37,
4,
37,
-86,
34,
51,
-19,
-39,
21,
46,
-24,
4,
-40,
-12,
17,
10,
-52,
-26,
55,
40,
1,
9,
-21,
1,
-1,
-16,
1,
-14,
19,
91,
-49,
7,
30,
3,
9,
-11,
8,
-56,
59,
-34,
7,
4,
5,
-9,
21,
12,
-17,
-21,
-34,
2,
31,
62,
9,
-32,
17,
45,
50,
-7,
-8,
-19,
-16,
9,
-17,
-25,
0,
-6,
6,
-45,
-1,
10,
-30,
-7,
-31,
6,
5,
35,
5,
37,
-7,
75,
-12,
38,
7,
-5,
11,
31,
38,
-22,
59,
-5,
26,
-9,
-8,
11,
71,
32,
-24,
14,
16,
-15,
-13,
-7,
-42,
-26,
-38,
-6,
-19,
-77,
31,
-78,
28,
-11,
17,
-12,
-25,
-27,
17,
0,
-11,
-26,
-10,
39,
21,
-6,
-80,
-44,
42,
-17,
6,
15,
-30,
-21,
-35,
35,
-2,
2,
-28,
0,
21,
5,
0,
24,
-8,
-28,
-105,
-19,
17,
36,
-49,
-30,
-50,
5,
12,
-23,
-42,
-31,
-29,
33,
8,
12,
32,
15,
-46,
-41,
-7,
-58,
7,
5,
-21,
23,
-16,
28,
-24,
13,
13,
-37,
32,
-36,
-13,
82,
-22,
-27,
14,
39,
27,
13,
1,
-51,
11,
-45,
-9,
28,
4,
-3,
38,
-5,
-14,
-69,
4,
30,
15,
0,
-15,
42,
-34,
-6,
-25,
61,
18,
67,
-28,
-45,
6,
0,
-67,
-28,
0,
26,
-32,
29,
31,
0,
25,
79,
30,
-27,
52,
57,
-40,
-46,
-17,
-16,
19,
34,
-32,
-17,
3,
-17,
5,
60,
-51,
-6,
-1,
-5,
-13,
-12,
11,
4,
5,
-22,
3,
-17,
-14,
-1,
68,
-13,
-4,
43,
-74,
44,
16,
-8,
-18,
21,
-59,
-12,
-47,
-50,
-60,
65,
13,
-22,
-14,
-25,
16,
-9,
23,
-97,
33,
2,
30,
-33,
-8,
27,
-15,
50,
19,
40,
24,
5,
52,
-33,
-9,
2,
22,
49,
18,
-37,
0,
-54,
34,
23,
-6,
-5,
-22,
-18,
31,
-12,
28,
-68,
-23,
51,
-20,
56,
40,
24,
-41
] |
Per Curiam.
Plaintiff received workmen’s compensation benefits from her employer, General Motors Corporation, for a shoulder injury. When the benefits were terminated, plaintiff filed a claim for continuation with the Bureau of Workmen’s Compensation. Pursuant to its rights under the Workmen’s Compensation Act, General Motors had plaintiff examined by the defendant, a licensed physician who is board certified in the specialty of orthopedics.
Subsequent to the examination, defendant reported to General Motors and testified at the workmen’s compensation hearing that there was nothing wrong with the plaintiff and that she was a malingerer. The referee decided the plaintiff was not disabled.
In this suit, plaintiff alleges malpractice in defendant’s examination of plaintiff, and fraud and libel in the report to General Motors and in defendant’s testimony at the hearing. The trial court granted defendant’s motion for summary and/or accelerated judgment as to all counts except the charge of libel in the report to General Motors.
The principal question raised by this appeal is whether a professional physician-patient relationship is a legal prerequisite to basing a cause of action in professional malpractice against a physician. Plaintiff asserts that defendant had a duty to examine her in accordance with the standard of practice of physicians who hold themselves out as orthopedic specialists, and she alleges that he wilfully or negligently failed in his duty because he did not conduct an examination in accordance with such standard of practice, which resulted in a failure to properly diagnose plaintiffs condition. Plaintiff claims that defendant’s report of her condition was known or should have been known to be false and that it resulted in injury to her— namely, loss of benefits.
The examination of plaintiff was performed on behalf of her employer in preparation for testifying before the workmen’s compensation referee, and it was not performed for the plaintiff’s benefit to diagnose or treat an ailment. The trial court was correct in ruling that plaintiff had no cause of action for malpractice.
The term "malpractice” denotes a breach of the duty owed by one in rendering professional ser vices to a person who has contracted for such services; in physician-malpractice cases, the duty owed by the physician arises from the physician-patient relationship. No such relationship existed in the case at bar. Defendant was employed by General Motors to examine one of its employees in preparation for a workmen’s compensation hearing. Plaintiff did not employ the defendant, nor did she seek or receive medical advice or treatment. Under such circumstances, the defendant did not owe plaintiff any duty arising from a physician-patient relationship. This is not to say that a physician who examines a person for reasons other than diagnosis or treatment and for the benefit of some one other than the examinee owes no duty of due care to that person. Rather, we hold that the physician in such a case does not owe such a duty of care as will subject him to liability for malpractice.
Plaintiff next assigns error to the trial court’s granting accelerated or summary judgment for defendant on the claim of fraud. In her complaint, plaintiff charged that reporting the "false” diagnosis to General Motors and testifying regarding the "false” diagnosis at the workmen’s compensation hearing was knowingly done by defendant to cause injury to the plaintiff.
The trial court was correct in ruling that the complaint, as a matter of law, did not state a cause of action in fraud. The elements necessary to make out a prima facie case of fraud and deceit need no repetition here. Plaintiff has failed to allege that she relied upon defendant’s representations by taking any action or refraining from acting. Plaintiff has also failed to allege that defendant intended to induce plaintiff to act or refrain from acting in reliance upon any misrepresentations. Lacking these two essential elements, plaintiff’s allegation of fraud must fail.
On cross-appeal defendant asserts that the trial court was in error in failing to pierce the verbiage of plaintiff’s complaint and recognize that it is a collateral attack on a judgment rendered by the Workmen’s Compensation Bureau and that as such, the trial court should have completely dismissed plaintiff’s cause of action for lack of jurisdiction. This issue arises from the trial court’s refusal to dismiss the libel count. We must accept plaintiff’s action for what it purports to be: an action for libel. The question of libel obviously was not before the Workmen’s Compensation Bureau. The issue not having been litigated before, the trial court was not deprived of subject matter jurisdiction.
Finding no error, the judgment of the trial court is affirmed.
Kambas v St Joseph’s Mercy Hospital, 389 Mich 249, 254-255; 205 NW2d 431 (1973), Delahunt v Finton, 244 Mich 226, 230; 221 NW 168 (1928), Cf. Johnson v Borland, 317 Mich 225, 231; 26 NW2d 755 (1947).
Courts in other states have recognized that a physician does not owe the same duty of care to persons he examines on behalf of an employer as he owes to his patients. See Annot., 10 ALR3d 1071.
See Prosser, Torts (4th ed), § 105, pp 685-686, A&A Asphalt Paving Co v Pontiac Speedway, Inc, 363 Mich 634; 110 NW2d 601 (1961), Hi-Way Motor Co v International Harvester, 59 Mich App 366; 229 NW2d 456 (1975). | [
5,
9,
-35,
39,
3,
-24,
45,
-12,
-38,
-3,
-33,
3,
62,
-11,
13,
-5,
36,
6,
2,
-20,
-7,
-24,
-13,
30,
-17,
29,
4,
-3,
-23,
-6,
-47,
43,
-54,
-25,
-35,
-10,
53,
5,
4,
-3,
-6,
25,
15,
-18,
-11,
-9,
52,
10,
1,
-8,
39,
1,
-18,
-6,
16,
-34,
63,
19,
-38,
10,
5,
0,
59,
-5,
34,
-5,
23,
13,
3,
29,
-31,
13,
6,
17,
-25,
-52,
53,
5,
15,
8,
30,
-20,
46,
3,
7,
64,
9,
45,
16,
-74,
-12,
-23,
-16,
-6,
-38,
5,
-56,
12,
52,
57,
-32,
34,
-16,
24,
-16,
-10,
9,
-40,
21,
20,
-1,
16,
-33,
-31,
0,
-19,
39,
-3,
25,
26,
-24,
-22,
31,
-18,
-19,
27,
5,
-24,
-19,
26,
22,
10,
14,
-2,
-10,
-27,
-35,
-41,
5,
-5,
-23,
68,
-20,
4,
10,
33,
17,
-34,
-15,
-33,
-22,
42,
-8,
-15,
-2,
-8,
3,
-11,
47,
-19,
-2,
-4,
11,
43,
3,
15,
4,
-3,
48,
-21,
29,
25,
33,
-54,
2,
-9,
19,
22,
-78,
-27,
-12,
-23,
-2,
15,
-6,
-7,
-18,
-3,
2,
-38,
-15,
0,
-10,
31,
32,
45,
-2,
7,
0,
-11,
36,
-38,
-42,
-7,
11,
37,
-6,
-50,
11,
6,
12,
5,
13,
-64,
13,
-40,
23,
-52,
-41,
6,
-24,
-42,
13,
-23,
-44,
-41,
17,
-28,
33,
-23,
10,
12,
-11,
-7,
-22,
-34,
16,
-29,
99,
-5,
-18,
13,
2,
-4,
-54,
15,
-30,
-29,
-7,
-11,
11,
2,
26,
16,
-55,
-5,
1,
44,
-8,
20,
-24,
75,
-35,
73,
18,
-34,
33,
16,
54,
-26,
-19,
-1,
32,
-17,
-50,
-82,
1,
-10,
12,
13,
-35,
-10,
-50,
-31,
-30,
13,
6,
-49,
2,
37,
20,
-38,
-7,
-5,
47,
-6,
42,
0,
-55,
21,
17,
9,
45,
18,
-33,
17,
-36,
-3,
5,
-10,
-24,
-23,
48,
-10,
8,
-18,
-14,
-27,
-4,
-39,
-16,
35,
-17,
-35,
-24,
-49,
-3,
-59,
-12,
-36,
-4,
1,
-5,
67,
24,
-46,
-7,
46,
39,
0,
12,
21,
0,
1,
-50,
37,
39,
17,
46,
1,
-3,
-45,
42,
-3,
-46,
20,
50,
-30,
-48,
14,
-63,
-14,
49,
4,
-25,
-28,
-32,
17,
-19,
68,
-32,
-26,
16,
-6,
-55,
-28,
-22,
-11,
-32,
49,
16,
-21,
24,
-63,
-38,
14,
-33,
-4,
15,
11,
-52,
-37,
32,
72,
-27,
28,
-3,
18,
-26,
34,
25,
23,
9,
40,
2,
-16,
20,
-54,
-30,
34,
-20,
25,
-15,
45,
3,
-14,
93,
-8,
-11,
-38,
23,
14,
-25,
-52,
13,
1,
8,
6,
-46,
18,
-23,
-49,
7,
2,
54,
-45,
-20,
-9,
28,
-6,
-26,
-46,
-39,
-36,
7,
54,
55,
5,
24,
-42,
57,
46,
16,
53,
-3,
-24,
-2,
31,
-5,
-27,
-17,
-48,
45,
-10,
54,
-3,
18,
-20,
-2,
46,
-17,
-26,
14,
39,
37,
-23,
-29,
5,
0,
-30,
-25,
6,
-1,
-53,
-48,
-14,
-74,
-22,
-13,
-2,
0,
-48,
-34,
17,
-37,
5,
-17,
32,
-48,
-37,
-26,
-41,
0,
24,
42,
-62,
-1,
-28,
19,
4,
-74,
-16,
23,
54,
26,
-21,
-12,
9,
4,
18,
-13,
-18,
-32,
-20,
-34,
-48,
-45,
19,
13,
-16,
26,
8,
62,
17,
36,
6,
24,
7,
-38,
-53,
-13,
33,
5,
22,
13,
-47,
-10,
-3,
66,
30,
-23,
-18,
47,
1,
45,
51,
34,
9,
39,
25,
-27,
32,
30,
25,
49,
29,
-7,
-29,
69,
-60,
-55,
37,
27,
17,
13,
-23,
-6,
-3,
-36,
-10,
-11,
-25,
50,
5,
-64,
-33,
50,
-38,
4,
-27,
-43,
-59,
23,
42,
71,
-31,
23,
-21,
23,
14,
-12,
-31,
-81,
18,
-14,
51,
-4,
29,
30,
-36,
-21,
9,
-2,
-62,
-29,
-55,
-45,
6,
5,
81,
-13,
6,
28,
-23,
19,
21,
15,
-5,
-48,
-66,
30,
-10,
-12,
-37,
18,
-3,
-22,
27,
-50,
2,
26,
25,
39,
19,
13,
-16,
4,
52,
-37,
-68,
23,
71,
-29,
12,
-47,
26,
35,
17,
-42,
-1,
-22,
-16,
-13,
-28,
34,
38,
32,
1,
-32,
-1,
24,
25,
56,
44,
72,
20,
11,
19,
45,
-41,
-18,
-66,
42,
15,
-30,
-5,
-35,
11,
40,
-25,
-13,
49,
10,
-7,
-32,
19,
32,
-23,
3,
-7,
-40,
26,
-62,
31,
31,
28,
-35,
-26,
14,
-47,
20,
8,
-45,
27,
12,
46,
-14,
0,
-15,
-59,
-25,
-15,
-38,
-2,
34,
31,
4,
20,
5,
-19,
22,
-38,
3,
30,
0,
5,
66,
5,
-66,
15,
80,
55,
0,
36,
-3,
-26,
-24,
11,
40,
-1,
-34,
38,
-2,
10,
3,
2,
38,
-47,
-11,
11,
2,
2,
17,
-15,
9,
32,
3,
1,
-48,
-14,
-36,
50,
38,
-28,
-23,
45,
-59,
-40,
-40,
-20,
30,
-46,
65,
33,
-67,
-79,
-16,
-13,
-13,
14,
-10,
-10,
-3,
-43,
47,
-32,
0,
-14,
-10,
-22,
30,
40,
-38,
14,
-13,
-29,
-1,
23,
51,
23,
27,
-23,
27,
-41,
-21,
-1,
8,
37,
-34,
7,
-4,
32,
-42,
-7,
39,
-24,
-40,
-40,
36,
-11,
-10,
-22,
-5,
37,
21,
28,
20,
3,
-44,
-9,
62,
31,
-57,
57,
54,
-19,
-17,
28,
6,
-43,
12,
-53,
2,
40,
36,
-2,
30,
-8,
-22,
14,
-29,
1,
-31,
6,
19,
30,
-35,
-10,
48,
-58,
23,
9,
-25,
-33,
3,
29,
-24,
-13,
25,
21,
30,
0,
-22,
-18,
-21,
-15,
31,
-17,
-35,
7,
23,
4,
4,
-26,
-49,
-8,
-35,
51,
19,
-51,
-27,
46,
41,
27,
0,
19,
-8,
-18,
-65,
6,
25,
-2,
9,
72,
-5,
29,
19,
43,
48,
-5,
-50,
-14,
-7,
9,
-5,
-1,
14,
2,
-36,
0,
51,
-22,
-4,
34,
70,
-8,
-5,
-24,
-3,
-25,
35,
23,
12,
29,
-64,
-69,
-41,
-5,
0,
25,
-9,
-21,
19,
21,
-60,
-28,
43,
-21,
13,
1,
29,
-8,
-56,
32,
7,
23,
-9,
4,
-16,
-28,
38,
0,
-33,
-33,
-25,
10,
1,
16,
4,
31,
-17,
-51,
-13,
36,
7,
-47,
-48,
-47,
33,
-17,
6,
4,
-20,
56,
39,
-2,
25,
-54,
59,
15,
23,
16,
-7,
14,
26,
-2,
-5,
-27,
2,
25,
29,
-2,
50,
-54,
-15,
28,
-35,
-28,
1,
-25,
-6,
10,
5,
-4
] |
M. J. Kelly, J.
Two separate B & E’s were committed in Charlotte, Michigan on the date in question. This defendant and his companion were tried for each B & E in separate trials. This case involved the second B & E. On appeal following conviction this matter was previously remanded to the trial court for an evidentiary hearing on the question of whether one Neil Howe was a res gestae witness in this, the second trial.
Howe, the 21-year-old son of the police chief, was a res gestae witness in the trial of the People v Kenneth Smith and Daniel Olson, for breaking and entering Denny’s Total Service, also known as Denny’s Bay Station. This crime was alleged to have occurred in the early morning hours of May 20, 1973 in Charlotte, Michigan. The defendants were tried on that charge and acquitted by directed verdict of not guilty by the trial court. Howe had been an eyewitness to the breaking and entering. He had driven by the station and seen two men, first crouched in the doorway, and later inside the premises when he circled the block. He went directly to the police station and told the officer in charge that if he wanted to stop a B & E in progress, he should get over to Denny’s Bay Station, where two men, one who looked like a Mexican and the other unidentified, were inside the premises.
At the trial of this case on the charge of breaking and entering Scheib Industries, a manufacturing plant located on Hall Street, Charlotte, Michigan, on the same early morning of May 20, 1973 against the same defendants, a motion was made by the prosecutor to strike the name of Neil Howe as a witness from the information, and a hearing was held thereon.
The prosecutor had two reasons for wishing to strike the name of Neil Howe. The first was a practical reason: Neil Howe was in Hawaii away at school. The second was that the court had already ruled, in segregating the trials, that the reference to the gas station robbery was prohibited during the trial of the breaking and entering of Scheib Industries. The court had ruled on defendants’ urging that reference to the gas station burglary might be prejudicial in the second trial and therefore testimony regarding the same was prohibited. The motion to strike the name of Neil Howe from the information was granted.
After conviction on the Scheib Industries breaking and entering, appellate counsel moved for a new trial on the grounds of prejudicial error in the striking of the name of Neil Howe from the information, alleging that Neil Howe was in fact a res gestae witness. This was denied in the trial court and on appeal to this Court, remand for an evidentiary hearing pursuant to People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), was ordered, October 2, 1974.
At the evidentiary hearing conducted on remand, a stipulation was entered into by the people and by the defense, as to Neil Howe’s testimony. This was possible of course because Mr. Howe’s testimony had been taken at the preliminary examinations on both B & E’s and he testified during the trial of the B & E at the gas station. The preliminary examinations had been held on different dates so there were really three sources of sworn testimony. Defense counsel filed a stipulation to introduce the prior testimony of Neil Howe and this was agreed to by the prosecutor. The trial judge evaluated all the available testimony and then ruled that Neil Howe was not a res gestae witness. Before ruling he said as follows:
’’The Court: It’s my understanding, counsel stipulated that the court has before it, through previous transcripts of the testimony of Neil Howe, all the testimony that would be pertinent to this case?
'Mr. Sugierski (Assistant Prosecutor): That’s correct your Honor.
”Mr. Flanagan (Defense Counsel): That’s right your Honor.”
The court found from the testimony of these transcripts, and we agree, that Mr. Howe was not a res gestae witness in connection with the Scheib Industries B & E. He had absolutely no testimony to offer with regard to that B & E and in view of the court’s previous ruling, disallowing mention of the gas station matter, this ruling was completely logical. Any other ruling would have been inconsistent.
The record shows that at a pretrial conference held on the consolidated cases, September 17, 1973, defense counsel objected to the people’s request to try the Scheib Industries B & E first. Defense counsel gave as the reason that the trial of such would bring in testimony concerning the breaking and entering of the gas station. The people acquiesced and tried the gas station B & E first. The defense couldn’t have it both ways.
The court ruled:
"The Court: From what I know about Mr. Howe’s testimony in the previous case which was tried here several weeks ago, unless something new — unless you can indicate that he has something to add to his testimony that he didn’t state then, I am of the opinion from that testimony, that he is not a res gestae witness to this case and, his testimony is not relevant to this case. Therefore, I’ll permit him to be stricken as a witness for the people.
# * ♦
"Mr. Sugierski (Assistant Prosecutor): Your Honor, I believe the motion was that we could bring reference to the prior case, to the Bay Gas Station case and to the Scheib Industries case and vice-versa and, this was objected to by defense counsel. And, we [sic] finally ruled we wouldn’t bring anything in. We never did attempt to bring all four charges together. But, defense counsel objected to any reference to the prior charges.
"The Court: Anything further Mr. Smith?
"Mr. Smith (Defense Counsel): Not really to that.”
Defense counsel was advised by letter of November 7th that Mr. Howe would not be called by the prosecutor. Trial commenced November 26th. According to the transcript the witness had left the jurisdiction only a few weeks before, and according to his father had been expected to be present at home for Thanksgiving, which would have allowed him to testify, but there was plane trouble.
It appears that the defense took a tactical and opportunistic objection to the striking of witness Howe from the information. It is inconceivable that Howe could have testified without violating the order of the court proscribing testimony about the gas station burglary. Now having been acquit ted of the gas station burglary, prior defense strategy was out the window, and the defense wished to chew the bone of that acquittal in the subsequent B&E.
We are of the opinion that the court was correct in its ruling, both at trial and at the evidentiary hearing on remand, that Neil Howe was not a res gestae witness in this case. We have also examined defendant’s other citations of error and believe that only one other issue merits discussion. That is, that the mere possession of recently stolen property was insufficient to allow the case to go to the jury on the charge of breaking and entering.
It is true that evidence of "mere possession” of stolen goods does not justify a finding that one is guilty of breaking and entering. People v Moore, 39 Mich App 329, 332; 197 NW2d 533 (1972). However, Olson was shown to be in possession of burglary tools as well as stolen goods at the time of his arrest. Moreover, one of the burglary tools— a large screwdriver — was directly linked to the scene of the crime by expert testimony. Under these circumstances, there was sufficient "evidence tending to establish additional facts and circumstances from which the jurors could properly have found that [Olson] broke and entered the building”. People v Moore, supra, at 332.
We find no reversible error. The verdict and judgment are affirmed. | [
-13,
-4,
23,
60,
-27,
-9,
-12,
-30,
-35,
-16,
-47,
0,
-5,
38,
-56,
-23,
14,
42,
-5,
-55,
99,
-46,
64,
-18,
14,
-14,
-2,
13,
-63,
-28,
26,
-48,
8,
-27,
18,
3,
31,
42,
8,
37,
-19,
-10,
-2,
54,
-4,
8,
2,
24,
31,
44,
38,
-20,
107,
34,
-11,
-8,
-38,
59,
48,
1,
-28,
42,
-29,
-10,
2,
-58,
2,
-6,
1,
2,
-9,
29,
-34,
27,
-34,
-21,
-16,
29,
12,
-19,
-33,
16,
57,
-28,
-16,
-9,
-7,
-60,
16,
-11,
37,
-31,
-52,
-28,
55,
-1,
-9,
-7,
-43,
-17,
7,
40,
-32,
-16,
-8,
22,
-43,
-53,
-35,
-8,
-19,
44,
60,
-38,
54,
-29,
-26,
17,
6,
31,
-14,
21,
18,
19,
-8,
-14,
17,
-40,
-21,
26,
-31,
43,
-41,
-6,
-25,
18,
5,
32,
-14,
20,
-19,
75,
26,
19,
-6,
23,
-30,
20,
49,
50,
-22,
-17,
23,
-6,
-31,
-41,
-14,
-21,
-32,
29,
-80,
-5,
31,
-36,
10,
-24,
46,
17,
-15,
-35,
2,
22,
-17,
14,
17,
24,
-28,
-12,
-13,
-16,
-9,
-6,
9,
4,
-6,
-24,
-4,
42,
-3,
12,
81,
0,
-16,
-21,
-9,
20,
-49,
-6,
9,
4,
-11,
14,
-17,
-51,
-10,
-16,
32,
9,
0,
39,
-12,
-13,
-9,
-35,
44,
20,
-50,
-27,
21,
-17,
-30,
-39,
-19,
-30,
-62,
10,
-23,
19,
17,
-10,
7,
-34,
3,
13,
-50,
-43,
30,
10,
39,
-2,
23,
-73,
14,
33,
38,
37,
12,
-36,
11,
8,
2,
-25,
-32,
43,
-74,
-28,
-18,
-44,
1,
63,
-48,
18,
-19,
-21,
5,
17,
-39,
-31,
-60,
36,
8,
-10,
73,
32,
-51,
-23,
5,
35,
34,
64,
33,
13,
1,
58,
2,
-14,
-26,
40,
5,
15,
11,
44,
21,
-20,
59,
-50,
17,
-38,
-112,
-37,
63,
-4,
-15,
-72,
-47,
0,
41,
-30,
51,
11,
19,
-14,
-25,
-10,
7,
-11,
-17,
7,
7,
-12,
-20,
-14,
-12,
27,
20,
12,
56,
19,
18,
-49,
52,
18,
-3,
27,
-55,
-14,
31,
13,
68,
3,
-70,
-31,
-2,
-39,
-39,
-34,
48,
11,
-38,
-63,
58,
13,
25,
36,
3,
4,
-29,
-15,
-13,
-22,
43,
-49,
-24,
14,
-21,
2,
-52,
-8,
-26,
26,
25,
-78,
-22,
43,
19,
-9,
15,
-9,
-22,
35,
-20,
-11,
30,
-61,
-56,
0,
4,
20,
-21,
64,
-67,
-40,
7,
-10,
40,
-10,
2,
54,
27,
-26,
10,
53,
54,
22,
15,
40,
15,
-30,
38,
-36,
-14,
4,
13,
43,
-21,
-21,
13,
-38,
17,
12,
-25,
38,
2,
-45,
52,
21,
-54,
64,
53,
-26,
-18,
27,
18,
-46,
6,
23,
-65,
-7,
34,
-69,
-70,
-27,
-27,
38,
33,
68,
-53,
-39,
-14,
-7,
-12,
55,
-18,
-19,
-2,
26,
20,
4,
37,
7,
-20,
17,
-18,
5,
57,
14,
-23,
-14,
19,
50,
-3,
68,
-19,
0,
-58,
-42,
50,
38,
40,
-3,
14,
2,
-29,
5,
-18,
-47,
12,
-101,
-2,
18,
-4,
33,
-7,
36,
21,
3,
13,
-22,
-52,
2,
-16,
-52,
-21,
1,
30,
3,
45,
-16,
9,
0,
-11,
18,
-9,
-23,
-22,
-29,
-14,
7,
1,
13,
69,
25,
36,
39,
-11,
-5,
-26,
-31,
-25,
-44,
56,
-14,
25,
-4,
37,
-36,
24,
-8,
41,
25,
27,
4,
47,
-8,
13,
-37,
37,
-99,
1,
25,
26,
60,
39,
-24,
-14,
6,
25,
49,
-15,
5,
-25,
-3,
52,
26,
-18,
21,
-46,
40,
48,
13,
-73,
66,
-20,
39,
-21,
61,
-19,
44,
-33,
71,
30,
27,
-8,
53,
-25,
31,
32,
28,
-8,
-25,
-56,
-4,
-5,
-47,
-31,
64,
-5,
-12,
-28,
-49,
73,
-45,
-41,
-18,
26,
-52,
-19,
38,
-28,
-58,
-4,
19,
-18,
0,
-20,
-8,
-56,
-12,
-46,
-36,
-23,
-29,
-10,
-19,
-2,
-2,
14,
5,
24,
-41,
-5,
-3,
-55,
9,
59,
-52,
16,
13,
-32,
15,
3,
25,
11,
9,
-12,
27,
10,
-17,
-7,
-28,
-25,
35,
31,
42,
54,
-31,
14,
36,
-16,
-60,
25,
9,
-20,
-9,
-24,
-2,
-34,
-24,
61,
-23,
0,
-16,
-11,
0,
-68,
16,
15,
-41,
-15,
-7,
-16,
26,
-34,
-35,
54,
-9,
-27,
3,
-57,
52,
-35,
1,
-21,
-4,
86,
6,
-37,
-26,
-2,
-4,
-18,
-18,
99,
22,
30,
-11,
42,
-59,
53,
5,
-73,
29,
19,
26,
-4,
-31,
-47,
25,
12,
7,
-50,
-2,
5,
24,
40,
31,
43,
-8,
24,
-12,
-8,
3,
26,
6,
-16,
8,
-29,
-11,
-39,
32,
-9,
-74,
-33,
-19,
-15,
-4,
10,
-21,
35,
10,
15,
33,
8,
17,
-18,
4,
32,
18,
-40,
19,
35,
18,
50,
-47,
-4,
-14,
-11,
-14,
12,
-9,
17,
-15,
-51,
18,
-37,
29,
0,
-9,
59,
-11,
-29,
28,
13,
-7,
24,
-36,
-7,
38,
54,
5,
-4,
15,
-13,
28,
31,
-5,
30,
-39,
-20,
30,
12,
-2,
60,
-24,
-12,
-90,
-19,
27,
-15,
5,
-4,
65,
-29,
-56,
-8,
-18,
-32,
-15,
6,
86,
8,
-15,
-2,
-66,
-65,
2,
-13,
-25,
-44,
-15,
22,
45,
12,
55,
13,
-57,
-18,
-3,
24,
52,
80,
24,
13,
2,
-30,
-19,
-17,
1,
37,
-7,
0,
25,
-4,
12,
16,
0,
10,
3,
21,
-42,
-44,
-4,
-42,
14,
-58,
30,
-32,
10,
-21,
15,
1,
-6,
19,
33,
-11,
4,
-44,
-3,
-33,
13,
0,
-23,
15,
-11,
24,
-49,
30,
-43,
-42,
32,
-38,
-30,
-4,
-84,
-28,
3,
27,
26,
-91,
-22,
26,
-14,
-54,
36,
0,
6,
31,
-59,
-26,
-8,
-17,
3,
-7,
31,
-33,
30,
-41,
9,
21,
10,
13,
47,
20,
68,
77,
16,
-34,
4,
-13,
67,
2,
19,
-18,
-60,
-5,
-12,
52,
-37,
-24,
37,
20,
24,
-31,
8,
-29,
6,
-8,
-10,
-88,
20,
-2,
0,
-90,
38,
17,
-15,
-16,
-11,
-4,
-11,
-8,
43,
29,
17,
13,
-29,
-37,
-7,
-29,
-57,
23,
-33,
-8,
-8,
9,
-20,
-28,
61,
18,
38,
8,
4,
16,
-13,
21,
-26,
43,
-21,
-27,
20,
-25,
0,
-20,
38,
19,
7,
-21,
-34,
-14,
10,
2,
56,
21,
-8,
13,
54,
-46,
82,
41,
-13,
-21,
-67,
0,
-5,
1,
50,
-33,
5,
-29,
24,
-16,
-30,
-11,
33
] |
Per Curiam.
On April 22, 1974, a judgment of no cause of action was entered against plaintiff and on August 21, 1974, plaintiffs motion for new trial was denied. It is from that denial plaintiff appeals.
Plaintiff bank loaned $50,000 to Voyager Detroit, Inc., to finance an airplane. In order to secure the loan, Voyager Detroit executed a chat tel mortgage and promissory note in favor of plaintiff. Defendants executed a guaranty to plaintiff.
Plaintiff first filed for recordation of the chattel mortgage with the Federal Aviation Authority (FAA) in December of 1966 but it was not actually recorded until January of 1969. In the meantime, California Airmotive Corp. (CAC) filed and recorded a writ of attachment against the aircraft with the FAA in August of 1968 and filed suit in Wayne County against Voyager Detroit. On June 30, 1969, CAC obtained a default judgment against Voyager Detroit in the amount of $25,511.75. Pursuant to the judgment, a writ of execution issued and the plane was sold on August 19, 1969 to CAC, the highest bidder, for $10,000.
On September 4, 1969, plaintiff filed suit against CAC and a restraining order issued, halting finalization of the aircraft’s sale. However, plaintiff allowed the suit to go down for lack of progress and the plane was removed from the state.
On January 18, 1971, plaintiff instituted the present action against defendants, seeking the outstanding balance due on the loan to Voyager Detroit, $9,379.76. The trial court found MCLA 440.3606; MSA 19.3606 to apply here and refused to hold defendants liable because of plaintiff’s own negligence.
MCLA 440.3606(l)(b); MSA 19.3606(l)(b) provides that:
"The holder discharges any party to the instrument to the extent that without such party’s consent the holder * * * unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.”
Defendants, in this case, are not "[parties] to the instrument” within the meaning of MCLA 440.3606; MSA 19.3606. " 'Instrument’ means a negotiable instrument.” MCLA 440.3102(l)(e); MSA 19.3102(l)(e). The guaranty, signed by defendants, is not a negotiable instrument and the promissory note, in the present case, does not incorporate or even make reference to the guaranty. Although MCLA 440.3606; MSA 19.3606 does not apply here, MCLA 440.9207; MSA 19.9207 does, and the result is the same. See MCLA 440.1102; MSA 19.1102.
Defendants, in this case, guaranteed "the prompt payment at maturity or any accelerated or extended date of all moneys which are now and/or shall at any time be owing to said bank by said Borrower”. The trial judge concluded that the collateral was impaired due to plaintiffs inaction and that plaintiff "should not be allowed to hold the guarantors liable because of their (bank’s) own negligence”. Implicit in the trial court’s holding is that a creditor may not spoil a guarantor’s right of subrogation against the principal debtor, even if such loss is occasioned by a creditor’s inaction, as opposed to affirmative conduct, and that any injury to the collateral, occasioned by such inaction, should be compensated by way of discharge of liability to the creditor to the extent of the loss. The only problem is that the trial judge relied on MCLA 440.3606; MSA 19.3606 to establish the creditor’s duty to take affirmative action to preserve the security in this case and we have found that statute not to apply here. Therefore, is there a duty, absent MCLA 440.3606; MSA 19.3606, on the part of a creditor, to promptly record a chattel mortgage, pursuant to which the promissory note to the principal debtor was issued?
MCLA 440.9207(1); MSA 19.9207(1) provides that:
"A secured party must use reasonable care in the custody and preservation of collateral in his possession. In the case of an instrument or chattel paper reasonable care includes taking necessary steps to preserve rights against prior parties unless otherwise agreed.”
Plaintiff, in this case, breached its duty to promptly record the chattel mortgage, thereby unjustifiably impairing the collateral upon which defendants had a right to rely and consequently defendants’ right of subrogation. Defendants were properly discharged to the extent of the value of the security lost. As the trial judge stated in his opinion, "National Bank of Detroit * * * should not be allowed to hold the guarantors liable because of [its] (bank’s) own negligence.”
That portion of the guaranty which has been the focal point of argument in the lower court and on appeal reads as follows:
"An adjustment or compromise may be made by said Bank with the Borrower or any other party to said liabilities and a lesser sum than the face thereof accepted in full payment and discharge, and any said writings, documents and property represented thereby and any other collateral or other security of said Borrower or any other party or any guaranty or other obligation of any other party which said Bank may hold or which may come to it or its possession may be released or otherwise dealt with by said Bank in all respects and particulars as if this guaranty were not in existence and the obligation of the undersigned hereunder shall be in no wise affected thereby, the undersigned hereby waiving and foregoing any right in respect of any such action of said Bank.”
The only fair reading of this provision is that absent an "adjustment or compromise”, plaintiff does not have total freedom in handling collateral without affecting the rights and obligations of defendants since it is an "adjustment or compromise” that releases the debtor, destroying the creditor’s right to sue, the right to which the guarantor would have been subrogated. There having been no "adjustment or compromise” made here, the provision is not applicable.
Defendants’ second argument on appeal is not properly before this Court. See GCR 1963, 807.
Affirmed. Costs to defendants. | [
9,
7,
11,
35,
46,
11,
6,
-17,
43,
-14,
26,
-23,
17,
-16,
-12,
13,
62,
13,
5,
-24,
-16,
-49,
-18,
-26,
31,
14,
37,
0,
35,
-14,
16,
-54,
4,
13,
-38,
6,
-12,
12,
7,
0,
0,
-3,
-1,
-43,
0,
-38,
24,
-33,
25,
-9,
3,
11,
40,
-27,
-49,
-55,
-9,
-11,
-37,
3,
-23,
-59,
21,
38,
-4,
24,
-40,
21,
-6,
24,
-21,
53,
51,
39,
-5,
-53,
0,
24,
-15,
-1,
2,
-3,
21,
-6,
24,
3,
-20,
-25,
-52,
-41,
-52,
54,
-60,
-27,
-18,
29,
-2,
27,
28,
23,
3,
16,
-17,
-10,
8,
-14,
6,
-84,
-13,
-3,
-2,
25,
-10,
-31,
-29,
2,
-41,
84,
37,
-31,
-68,
2,
-5,
-58,
10,
0,
13,
-2,
-7,
38,
11,
-20,
-42,
46,
-30,
-18,
4,
-38,
6,
-14,
18,
2,
12,
-7,
36,
29,
37,
-16,
-5,
-21,
-21,
-9,
-21,
61,
-2,
3,
-22,
-2,
22,
-40,
25,
-20,
-15,
-54,
-7,
5,
15,
14,
15,
-7,
29,
0,
-16,
-64,
6,
-47,
34,
4,
-19,
-10,
-40,
25,
24,
-8,
-14,
-4,
-15,
13,
2,
-19,
60,
-19,
-9,
81,
-22,
25,
13,
28,
25,
35,
24,
-57,
-1,
-24,
-23,
-18,
55,
-53,
-2,
45,
-24,
-29,
22,
-23,
-29,
-28,
61,
-19,
53,
-7,
6,
0,
-43,
7,
-69,
9,
-12,
-5,
15,
13,
-6,
11,
0,
28,
-24,
-2,
-1,
1,
87,
0,
-27,
41,
-2,
-41,
10,
13,
-36,
-24,
15,
-41,
-6,
-8,
-32,
-5,
13,
-41,
-8,
-24,
9,
-4,
43,
25,
-52,
-25,
-35,
-3,
1,
-44,
-35,
5,
7,
-54,
-3,
23,
-28,
-49,
-22,
19,
-6,
-5,
34,
-17,
-24,
-3,
-33,
14,
22,
45,
-3,
-20,
1,
-12,
14,
-30,
44,
-15,
4,
-67,
31,
40,
-58,
-21,
25,
13,
11,
-68,
-44,
-17,
-37,
-8,
-14,
12,
7,
11,
11,
-14,
3,
-67,
45,
-48,
46,
53,
-25,
1,
15,
-1,
36,
-9,
21,
25,
13,
-19,
-11,
40,
0,
-30,
17,
-5,
-19,
13,
-8,
48,
36,
1,
-7,
8,
-24,
-11,
-19,
50,
-55,
-27,
-13,
7,
23,
20,
59,
-8,
-57,
39,
36,
6,
-33,
-26,
42,
23,
-7,
19,
-38,
92,
8,
17,
-64,
-18,
-66,
5,
-40,
-7,
-33,
49,
3,
-51,
15,
12,
-7,
-61,
-52,
-7,
-11,
-30,
-6,
-21,
-7,
46,
7,
-58,
33,
51,
-67,
0,
30,
48,
-15,
3,
-12,
9,
40,
4,
1,
1,
-1,
15,
24,
14,
-17,
24,
41,
35,
31,
-40,
-5,
20,
-45,
-46,
13,
-53,
29,
2,
-16,
22,
-16,
39,
-7,
-21,
35,
31,
-31,
10,
40,
29,
61,
17,
-31,
-20,
62,
-49,
-17,
7,
13,
28,
51,
-6,
-27,
-12,
-14,
34,
1,
-28,
-40,
-36,
21,
-44,
-6,
-4,
36,
-31,
11,
10,
23,
-15,
27,
2,
-51,
48,
-57,
0,
10,
5,
-2,
14,
-83,
37,
11,
-51,
-42,
-38,
-9,
33,
16,
29,
6,
25,
0,
41,
-38,
5,
-31,
-18,
-7,
-4,
10,
-31,
21,
82,
22,
-36,
14,
-19,
-34,
31,
-26,
-6,
27,
21,
-26,
27,
0,
28,
17,
29,
-25,
23,
8,
31,
-24,
-43,
22,
10,
-15,
-1,
30,
-18,
-34,
-19,
5,
18,
-11,
14,
11,
-35,
-8,
40,
-37,
16,
-3,
5,
-31,
-72,
-23,
17,
12,
-37,
68,
14,
24,
4,
5,
51,
-44,
5,
10,
33,
34,
-9,
63,
13,
-18,
-16,
37,
-28,
-12,
27,
46,
0,
9,
-37,
25,
20,
-52,
0,
-53,
0,
-20,
-58,
-78,
-40,
-36,
54,
-10,
-34,
-48,
-7,
24,
-33,
25,
43,
-4,
-16,
5,
1,
-29,
17,
-45,
18,
-19,
-9,
-8,
0,
-2,
-36,
14,
27,
6,
8,
-31,
-51,
11,
1,
17,
-4,
-3,
-5,
52,
21,
-14,
30,
-21,
-18,
-8,
26,
-5,
-13,
-41,
-19,
-13,
-35,
3,
4,
-20,
-40,
-24,
19,
-9,
-42,
-6,
-28,
0,
11,
-4,
24,
-41,
21,
45,
-3,
40,
18,
-19,
-28,
29,
-20,
-26,
-25,
-18,
-3,
11,
-11,
-4,
11,
18,
-4,
10,
-7,
39,
2,
61,
12,
-57,
50,
13,
23,
-53,
9,
41,
-54,
14,
11,
-24,
0,
24,
27,
-26,
4,
21,
16,
21,
-38,
7,
53,
-10,
-15,
22,
22,
-23,
59,
-46,
41,
-16,
46,
17,
8,
-39,
1,
15,
-4,
-18,
12,
35,
21,
-83,
-37,
-44,
-7,
25,
-48,
-22,
-36,
-21,
-8,
-31,
21,
8,
-6,
5,
12,
-16,
13,
70,
-20,
13,
-18,
-5,
30,
69,
41,
-45,
4,
-31,
17,
14,
-7,
0,
-4,
19,
56,
-60,
9,
-9,
56,
10,
-50,
-27,
41,
1,
-12,
11,
24,
-21,
-29,
6,
-37,
-19,
-12,
22,
-26,
-35,
-14,
40,
-2,
22,
10,
20,
-10,
1,
28,
1,
-9,
0,
26,
40,
33,
52,
-23,
-1,
-8,
24,
5,
-13,
8,
-10,
-14,
6,
26,
-14,
5,
27,
-18,
15,
-15,
60,
0,
-6,
7,
18,
-58,
18,
74,
-12,
-4,
-31,
-8,
20,
33,
-71,
-5,
-31,
19,
0,
29,
-34,
52,
35,
-61,
13,
20,
-31,
-32,
13,
-11,
-6,
-2,
-2,
-44,
-45,
32,
23,
-26,
-42,
-13,
2,
-40,
-1,
33,
3,
34,
14,
-17,
-38,
30,
-12,
-24,
-15,
14,
-89,
-7,
31,
28,
-27,
30,
22,
-5,
0,
41,
-1,
98,
31,
-16,
57,
-22,
25,
-25,
15,
51,
-47,
17,
5,
48,
-11,
-20,
-48,
39,
16,
28,
-30,
-24,
8,
8,
5,
-2,
59,
-45,
-35,
34,
-3,
47,
26,
49,
-22,
-24,
-54,
8,
33,
-26,
22,
-7,
-15,
58,
45,
13,
22,
21,
51,
-17,
-40,
-21,
1,
-1,
-11,
2,
10,
3,
10,
-34,
11,
24,
7,
3,
-8,
-31,
0,
-16,
-5,
-19,
54,
4,
1,
-25,
-34,
18,
16,
18,
0,
28,
21,
35,
-32,
14,
-12,
4,
38,
-28,
0,
-12,
-9,
-47,
17,
7,
-45,
-18,
18,
39,
20,
-12,
29,
-35,
-54,
7,
34,
30,
-24,
14,
27,
-26,
1,
25,
34,
-33,
-15,
-9,
-23,
-38,
24,
-49,
0,
-17,
7,
-47,
33,
-2,
14,
19,
22,
-35,
50,
-8,
14,
1,
19,
-50,
-7,
53,
9,
37,
-32,
-15,
-21,
6,
-17,
-12,
-20,
30,
19,
5,
15,
-19
] |
Bronson, P. J.
In this case, the trial judge allowed plaintiffs’ attorneys to withdraw prior to settlement or trial, and imposed a lien for the value of their services. The propriety of that action is questioned here.
On October 26, 1971, plaintiffs filed a complaint against the Detroit Edison Company alleging denial of certain vested pension benefits owed to Joseph Ambrose by virtue of his prior employment with that company. Joseph Ambrose has been pursuing various claims relating to his dismissal in 1958 since that time, but all previous causes of action had been resolved against him. Plaintiffs specifically sought here all accrued benefits from the date Joseph Ambrose reached 65, the right to receive retirement benefits in the future, and $100,000 in exemplary damages for the willful refusal of Detroit Edison to pay such pension benefits.
Plaintiffs’ attorneys, the law firm of Colista, Baum & Domonkos, completed extensive discovery over the course of several years. Additionally, both parties and their attorneys participated in long negotiations, with an eye toward settlement. Some time around June, 1974, Detroit Edison made an offer which would give plaintiffs all accrued pension benefits at 8% interest, all current retirement benefits, the listing of Joseph Ambrose’s name in the directory of retired Detroit Edison employees, and $30,000 in exemplary damages. Plaintiff Joseph Ambrose refused to accept that offer, and the attorneys moved to withdraw on June 14, 1974.
The attorneys specifically alleged in their motion that the following grounds existed to show good cause for withdrawal: (1) that Joseph Ambrose refused to accept a settlement offer which was "fair, reasonable, equitable, and in the best interests of Plaintiffs”, without giving sensible and legitimate reasons; (2) that continuing the case would be a waste of judicial manpower, in violation of the court rules, and "perhaps” in violation of the Canons of Ethics; (3) that the attorneys had the "reasonable apprehension” that plaintiffs would take "nothing or substantially less” on the exemplary damage claim if the case went to trial; and (4) there was a breakdown in the attorney-client relationship. The trial judge allowed the attorneys to withdraw after an extended hearing on the motion, and impressed a lien upon any future settlement or judgment. The lien was set at the contingent fee percentage (here, 35%) of the Detroit Edison offer, found to be $21,420.39.
Plaintiffs entered into a consent judgment on August 13, 1974, accepting an offer identical or nearly identical to the previous offer in June, 1974. The only possible difference was that pension benefits were to be paid in increasing increments, which may or may not be equal to the cost-of-living increases under the previous offer. All other provisions were the same.
The law creates a lien of an attorney upon the judgment or fund resulting from his services, Wipfler v Warren, 163 Mich 189, 194; 128 NW 178 (1910), Kysor Industrial Corp v D M Liquidating Co, 11 Mich App 438, 445; 161 NW2d 452 (1968), Miles v Krainik, 16 Mich App 7, 9; 167 NW2d 479 (1969). When an attorney withdraws from a case, his reasons for doing so determine whether the lien will be preserved:
"An attorney who withdraws from a suit without cause loses his inchoate right to a lien on the ultimate recovery * * * . But where an attorney is justified in refusing to continue in a case, he does not forfeit his lien for services already rendered.” 7 CJS, Attorney and Client, § 220, pp 1164-1165.
See, also, Midvale Motors v Saunders, 21 Utah 2d 181; 442 P2d 938 (1968), Schwartz v Jones, 58 Misc 2d 998; 297 NYS2d 275 (1969). Since the record here shows good cause for the attorneys to withdraw, we hold that the trial judge properly imposed an attorneys’ lien in this case.
It is clear that "good cause” exists when the client has caused a total breakdown in the attorney-client relationship. For example, in Genrow v Flynn, 166 Mich 564; 131 NW 1115 (1911), the client sent a disparaging telegram to his attorney. The Court decided that withdrawal was proper, and discussed the attorney-client relationship in general:
"The relations between attorney and counsel are of a delicate and confidential nature. They should have faith in each other, and their relations should be such that they can cordially co-operate. What is a sufficient cause to justify an attorney in abandoning a case in which he has been retained has not been laid down by any general rule, and in the nature of things cannot be; but where, as in this case, the plaintiff, even if he has any ground for communicating with his attorneys, instead of doing so by mail under the secrecy of the postal laws, seeks to degrade and humiliate them by sending a telegram in which he states that they have been guilty of falsehood and gross fraud and neglect, and that he does not intend to stand their abuse any longer,- it must be held that such conduct is equivalent to a discharge of his counsel, and a breaking off of the confidential and delicate relation theretofore existing between them. Such conduct must result in the destruction of all faith in each other and render it impossible for them to further co-operate.” 166 Mich, at pp 567-568.
We feel that it follows from that view of the role of an attorney that a client’s total failure to cooperate is sufficient "good cause” to allow an attorney to discontinue representing his client and to recover for his services.
The decision as to whether an attorney’s lien should be imposed lies within the trial court’s discretion, Horvath v Vasvary, 246 Mich 231; 224 NW 365 (1929). The wisdom of that rule is illustrated here, for the trial judge was the one thoroughly familiar with the background of the case and the parties, and who had been in contact with Joseph Ambrose and his attorneys through long settlement sessions. Recognizing that the trial court therefore is in a better position to judge the conduct of the parties to this dispute, we hold that the record supports the determination of good cause for withdrawal.
One needs only to read the transcript of the hearing on the motion to withdraw to discover a total lack of communication between Joseph Ambrose and his attorneys by that time. A complete recitation of the actions of Joseph Ambrose, indicating that it was his unwillingness to cooperate with his attorneys which caused the problems, would occupy too much space here. However, two particularly illuminating examples will be discussed.
Joseph Ambrose refused to elect between the various payment options in the Detroit Edison pension plan despite advice by his attorneys that he was legally obligated to do so. Mr. Ambrose was not called upon to give up any rights, but merely to decide whether benefits were to be based upon his life or both his life and his wife’s. Ordinary Detroit Edison employees must make that election prior to retirement, a time long since past for Joseph Ambrose, so Detroit Edison had a legal right under the contract to require him to elect an option. Detroit Edison could not even determine if Mrs. Ambrose was a proper party plaintiff prior to an election. The steadfast refusal by Mr. Ambrose to follow this required legal procedure, even when ordered to do so by the trial judge, indicates an attitude standing in the way of the successful handling of this lawsuit by his attorneys.
Joseph Ambrose also refused to accept a settlement offer, which embodied virtually all of the relief he demanded in his complaint, without stating coherent reasons for doing so. About all the trial judge could garner from his statement was an attitude of "getting back” at Detroit Edison:
"The Court: All right. Then they’ve advised you of that before. Mr. Ambrose, I tell you something because I have tried to help you. I believe these men have. Mr. Ambrose, I think the problem is you’d miss this law suit if it went away. I think that’s the problem. It wouldn’t be in your mind every day and you wouldn’t be going after them every day and I think that’s your basic problem, Mr. Ambrose.
* * *
"The Court: Mr. Ambrose, you’re grasping at every straw you can to keep this case going. That’s what you’re doing and I know it is and you. know it is.”
An irrational rejection of the settlement offer such as we had here made intelligent decisions by plaintiffs’ attorneys virtually impossible, for they could not even tell which areas should be pushed harder in their negotiations with Detroit Edison. Again, a completely uncooperative attitude was evinced by Mr. Ambrose in his dealings with his attorneys.
We want to emphasize, however, that we view this case as embodying extreme circumstances, as we emphatically reassert the view that the client has control of the lawsuit, and can refuse even the most reasonable settlement offer. See, for example, Suffolk Roadways, Inc v Minuse, 56 Misc 2d 6; 287 NYS2d 965 (1968). The refusal to settle by a client can never be sufficient grounds to constitute "good cause” for an attorney to withdraw, but, as here, may be so irrational as to constitute one factor in evaluating his cooperation with his attorney.
This type of case is one in which the trial judge is in the best position to examine the causes of obvious breakdowns in the attorney-client relationship. Here, we have found ample support in the record for the trial judge’s finding of "good cause” to withdraw. An attorney’s lien could properly be imposed upon any future recovery by plaintiffs.
Although we hold that a lien could be properly imposed, we cannot agree with the trial judge’s method of calculating the amount covered by that lien. Although no Michigan case has decided this issue, the majority view is that an attorney on a contingent fee arrangement who is wrongfully discharged, or who rightfully withdraws, is entitled to compensation for the reasonable value of his services based upon quantum meruit, and not the contingent fee contract. See, Hubbard v Goffi nett, 253 Ky 779; 70 SW2d 671 (1934), Paolillo v American Export Isbrandtsen Lines, Inc, 305 F Supp 250 (SD NY, 1969), Fracasse v Brent, 6 Cal 3d 784; 100 Cal Rptr 385; 494 P2d 9 (1972), People v Radinsky, 182 Colo 259; 512 P2d 627 (1973), Wright v Fontana, 290 So 2d 449 (La App, 1974). The rationale for that rule was explored in Fracasse v Brent, supra, 6 Cal 3d at pp 789-790; 100 Cal Rptr, at pp 388-389, 494 P2d, at pp 12-13.
"The right to discharge is of little value if the client must risk paying the full contract price for services not rendered upon a determination by a court that the discharge was without legal cause. The client may frequently be forced to choose between continuing the employment of an attorney in whom he has lost faith, or risking the payment of double contingent fees equal to the greater portion of any amount eventually recovered. * * *. The uncertain position of the client in such circumstances is illustrated by the record in the present case where the trial court found the discharge was without cause and this court has made a contrary finding and concluded the discharge was justified. Unless a rule is adopted allowing an attorney as full compensation the reasonable value of services rendered to the time of discharge, clients will often feel required to continue in their service attorneys in whose integrity, judgment or capacity they have lost confidence.”
We agree with that reasoning and adopt the rule here.
The trial judge properly allowed the attorneys to withdraw, but he should have impressed a lien for the quantum meruit measure of the reasonable value of the services rendered. Accordingly, we retain jurisdiction and remand the case to the trial judge for an evidentiary hearing on the reasonable value of the services rendered by Colista, Baum & Domonkos prior to their withdrawal.
See, Paolillo v American Export Isbrandtsen Lines, Inc, 305 F Supp 250 (SD NY, 1969), for a good explanation of the method used to determine the reasonable value of services provided by attorneys. | [
-10,
9,
-16,
59,
34,
-24,
10,
7,
25,
-38,
-3,
-2,
19,
7,
-3,
16,
3,
24,
-38,
-61,
-11,
0,
59,
9,
32,
-6,
-8,
23,
-1,
8,
-18,
-4,
-36,
-12,
-27,
1,
-24,
-51,
-34,
0,
-39,
-44,
2,
-19,
-8,
-2,
5,
-6,
28,
-12,
-37,
87,
46,
22,
-37,
-32,
20,
39,
-14,
8,
-32,
-32,
33,
22,
4,
11,
3,
48,
32,
28,
-28,
0,
55,
-3,
-7,
-22,
2,
-33,
33,
-33,
31,
-3,
23,
-27,
2,
38,
9,
22,
1,
4,
-17,
75,
-28,
-4,
-6,
10,
5,
9,
-13,
49,
-41,
-8,
11,
17,
18,
3,
56,
-21,
-16,
22,
13,
38,
54,
19,
-43,
3,
-21,
-56,
12,
-24,
7,
-28,
-25,
-36,
-20,
33,
9,
-1,
0,
89,
23,
56,
-6,
-67,
-10,
-34,
-24,
7,
-44,
23,
3,
-20,
-33,
-36,
-8,
-4,
4,
-5,
73,
6,
-14,
-33,
13,
53,
-5,
-14,
-13,
-13,
64,
3,
31,
11,
-1,
32,
-19,
-14,
-14,
6,
96,
-52,
17,
-36,
14,
-84,
4,
-11,
59,
21,
-43,
3,
-2,
-4,
-26,
10,
46,
-13,
-2,
17,
7,
59,
52,
-51,
2,
59,
-13,
5,
26,
44,
2,
41,
4,
-83,
-14,
0,
-12,
-11,
0,
3,
-1,
-4,
-8,
4,
53,
-66,
-45,
-10,
-4,
-21,
48,
-12,
-19,
-45,
-63,
7,
-43,
-32,
-24,
-17,
27,
-29,
-23,
29,
54,
32,
-4,
-18,
17,
54,
22,
-2,
-42,
24,
-8,
-14,
-78,
-45,
-28,
1,
-19,
50,
-20,
-22,
-12,
24,
-27,
2,
-41,
-9,
7,
12,
-19,
21,
-69,
30,
91,
-46,
-13,
-7,
45,
-29,
11,
-36,
-3,
30,
3,
-49,
-36,
-16,
-8,
-16,
-15,
12,
-6,
-2,
-6,
68,
-33,
-32,
-29,
-8,
31,
-2,
41,
32,
37,
-10,
4,
31,
0,
10,
-2,
12,
57,
4,
6,
15,
-31,
16,
58,
53,
-30,
-5,
28,
-12,
46,
-25,
-70,
11,
0,
-39,
39,
-7,
4,
21,
-40,
-13,
23,
6,
-11,
5,
52,
-12,
-21,
-18,
-83,
-25,
-48,
-1,
-6,
-13,
-20,
3,
-19,
0,
-16,
-54,
28,
11,
2,
15,
-44,
5,
-9,
-17,
24,
9,
31,
-17,
-17,
35,
51,
-10,
30,
-5,
-10,
-1,
-33,
-16,
34,
66,
15,
47,
-77,
-5,
-36,
14,
-12,
-9,
-30,
17,
-69,
-63,
13,
29,
-6,
-37,
-10,
-8,
-30,
-4,
-94,
13,
-11,
41,
11,
70,
-9,
-11,
-19,
7,
36,
37,
-16,
0,
-20,
-7,
-27,
-55,
-10,
4,
-8,
-29,
78,
4,
-44,
-90,
56,
14,
29,
13,
9,
11,
-14,
-14,
7,
10,
40,
-7,
6,
17,
4,
18,
-1,
-42,
24,
44,
-25,
-54,
-34,
49,
20,
19,
43,
-3,
53,
-14,
-17,
-2,
23,
46,
-13,
72,
6,
-1,
-82,
-33,
6,
-31,
-40,
49,
-4,
-49,
-17,
-15,
15,
-11,
13,
83,
49,
28,
21,
23,
-7,
-36,
-20,
-1,
-58,
-19,
23,
21,
-12,
-17,
11,
17,
-36,
14,
18,
-60,
-23,
-9,
32,
-30,
0,
2,
21,
12,
-29,
-14,
-2,
-30,
10,
1,
22,
9,
23,
-20,
-22,
-46,
-17,
48,
-44,
-11,
-6,
41,
-21,
2,
-32,
29,
51,
45,
-6,
-16,
-19,
6,
-24,
-13,
-25,
14,
9,
-6,
42,
-44,
66,
-78,
6,
7,
-19,
-6,
11,
-44,
30,
11,
14,
53,
3,
-49,
-25,
40,
32,
-24,
-13,
-53,
25,
27,
34,
33,
-2,
-50,
36,
-13,
-6,
-22,
0,
-17,
-26,
20,
12,
31,
18,
28,
0,
23,
41,
24,
39,
42,
6,
9,
-80,
-27,
0,
0,
-3,
-7,
-40,
6,
38,
21,
23,
-19,
-16,
4,
1,
-2,
82,
-29,
43,
-3,
26,
33,
24,
18,
-10,
-6,
-29,
-10,
-57,
-5,
21,
1,
54,
-7,
-34,
-40,
20,
-9,
13,
-7,
67,
18,
35,
-15,
27,
-39,
8,
-8,
31,
-17,
-34,
38,
71,
-38,
-6,
-2,
17,
6,
-25,
38,
36,
0,
-15,
-7,
2,
-13,
-44,
-38,
-43,
16,
-8,
0,
-29,
-13,
51,
6,
-25,
-58,
-22,
-2,
-5,
-64,
-11,
-4,
-11,
-39,
-22,
32,
5,
-31,
-38,
-5,
8,
4,
29,
18,
38,
7,
-23,
49,
-26,
10,
-21,
-12,
-36,
17,
-46,
-43,
-5,
-8,
-2,
9,
20,
41,
-37,
8,
-50,
5,
34,
-6,
55,
-7,
-29,
-19,
3,
0,
-63,
3,
-10,
25,
-13,
0,
0,
-6,
1,
22,
0,
57,
-15,
-24,
-46,
-25,
-10,
-1,
-11,
21,
-8,
48,
-21,
-2,
-34,
-50,
3,
35,
-12,
39,
-4,
25,
5,
-29,
-80,
-2,
34,
-38,
-12,
36,
-11,
26,
-17,
3,
33,
42,
-42,
-8,
-22,
81,
30,
26,
9,
-4,
-18,
24,
-31,
15,
28,
1,
-19,
-22,
-2,
9,
11,
-1,
-36,
3,
-8,
-3,
11,
36,
-23,
-26,
-16,
11,
19,
32,
19,
6,
-12,
-43,
1,
-6,
57,
1,
-48,
-63,
-30,
-6,
34,
21,
7,
-19,
46,
-18,
-49,
8,
-4,
15,
19,
-27,
-15,
-17,
23,
-1,
-48,
18,
50,
4,
-3,
-6,
-41,
8,
9,
-21,
-16,
34,
5,
27,
-32,
9,
-38,
-31,
13,
16,
27,
-69,
-3,
11,
28,
21,
0,
43,
23,
-8,
19,
-52,
-44,
41,
1,
1,
-14,
-16,
-28,
-22,
-7,
-91,
-4,
-3,
11,
-11,
-33,
-25,
-22,
-55,
27,
31,
-12,
-29,
13,
-10,
-49,
35,
24,
-19,
-47,
21,
17,
-36,
2,
25,
-2,
-30,
23,
-65,
-20,
-14,
-6,
-61,
-21,
53,
42,
-35,
3,
66,
68,
24,
-31,
-3,
0,
-19,
-18,
-10,
98,
14,
39,
10,
7,
-30,
-10,
47,
-29,
29,
5,
38,
8,
-20,
20,
-17,
-5,
12,
-4,
42,
18,
36,
-20,
-22,
-52,
-40,
-38,
-35,
22,
31,
-11,
28,
44,
-36,
-25,
-43,
25,
-2,
20,
-30,
2,
0,
6,
-18,
0,
-12,
-12,
-19,
-24,
-23,
2,
77,
23,
-68,
0,
18,
-26,
-29,
6,
14,
33,
-17,
-13,
-28,
18,
-5,
66,
1,
50,
-17,
-9,
-25,
19,
-22,
-11,
-38,
-40,
-22,
31,
10,
-49,
-48,
14,
0,
-32,
-10,
14,
-13,
17,
16,
-26,
9,
11,
15,
-23,
20,
14,
-1,
33,
-22,
15,
-30,
32,
-10,
41,
22,
3,
3,
14,
-34,
28,
0,
8,
16,
18,
42,
15,
47,
8,
-47,
23,
-30,
22,
12,
-41,
53
] |
T. M. Burns, P. J.
On March 12, 1974, the Board of Education of the School District of the City of Detroit (hereinafter the Board) adopted a resolution requiring residency as a condition of employment for hire and promotion of all employees. The resolution stated in pertinent part:
"All employees in all classifications must be residents of the School District of the City of Detroit at the time of promotion and at the time for hire, except that new hires in shortage areas, may be hired on a temporary basis, while nonresidents.”
Subsequently, the Detroit Federation of Teachers (hereinafter the DFT), which represents regular and substitute teachers and others in the Detroit school system, filed unfair labor practice charges under § 10 of the Public Employment Relations Act (PERA), 1965 PA 379, as amended, MCLA 423.210; MSA 17.455(10), complaining of the Board’s unilateral adoption of the resolution without prior bargaining.
After a full hearing, an administrative law judge found that the portion of the March 12, 1974, resolution which required residency in the city of Detroit as a condition for promotion for all employees of the Board was a unilateral act contrary to the bargaining responsibilities of the Board insofar as the resolution dealt with promotions, but not insofar as it related to hiring or recruiting standards. The administrative law judge concluded that the bargaining obligation did not adhere to the portion of the resolution relating to time of hire and he further held that recruiting requirements are not mandatory bargaining topics. A recommended order was proposed requiring the Board to rescind its residency resolution of March 12, 1974, relating to promotions and remove any disqualification attached to any employee resulting from application of this part of the resolution.
The DFT filed exceptions to the administrative law judge’s ruling relating to bargaining not being required for conditions of recruitment or hire and the Board filed exceptions to the remainder of his decision. The matter was submitted to the entire Michigan Employment Relations Commission (hereinafter the Commission) on briefs and the Commission affirmed the administrative law judge and adopted his recommended order. The Commission unanimously agreed that the Board had acted unlawfully in the adoption of the resolution relative to promotions. However, the Commission divided two to one in affirming the administrative law judge with respect to his findings and conclusions relative to the hiring or recruitment issue. In his dissent Commissioner Ellman opined that there was a duty to bargain with respect to new hires of the Board on the residency question and that the DFT’s bargaining unit had been adversely affected by the resolution as it pertained to a condition of hire. From that portion of the decision and order of the Commission relative to conditions of hire, the DFT appeals.
The DFT claims that the Board’s duty under the PERA to bargain regarding residency as a condition of employment includes the duty to bargain with respect to conditions of hire or recruitment. Thus, the DFT claims that residency is a condition of hire mandatorily subject to collective bargaining. We disagree. Noting that the recent case of Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974), controlled the issue before it, the Commission correctly held that the residence requirement was invalid except insofar as it was a recruiting requirement, since by issuing a resolution declaring residency to be a condition of employment for promotion of all employees the Board rejected its bargaining obligation and violated the PERA.
As to DFT’s contention that conditions of hire are a mandatory subject of collective bargaining, DPOA v Detroit, supra, decides this question adversely to DFT’s claim. There the Supreme Court stated at 391 Mich 44, 61; 214 NW2d 803, 812:
"A recruiting requirement, whether it is age, mental competency, physical characteristics or residency, focuses on that point in time at which a candidate for employment is hired. At that moment the new recruit must meet established standards. Once an applicant has met these standards and has been hired as an employee, the 'recruiting requirements’ as such do not continue to regulate his or her right to hold the job. Employment standards are, of course, lawful, but they must be treated as a term and condition of employment.” (Emphasis added.)
Thus under DPOA v Detroit, supra, a residency requirement can only be valid as to the day of hiring. In the case at bar, the condition of hire, residency, does not continue to act as a condition of employment since it ceases to exist once a job applicant is hired. Consequently, under the cir cumstances of this case, it is not a continuing condition of employment and thus not a mandatory subject of collective bargaining.
However, while we affirm the holding of the Commission as the correct application of the law governing this case, we also are of the opinion that the Commission did not go far enough in its holding.
The DFT claims that employees designated as emergency substitutes (ES), who would under the DFT contract normally accrue emergency substitute with replacement status (ESRP) with improved job security, pay and benefits after 20 days in an ES assignment, are being prevented from attaining such accrual by the Board’s interruption of that assignment. A review of the administrative law judge’s findings of fact reveals the following:
"Charging Party DFT presented substantial testimony in support of its charge. Among the matters pertaining particularly to this unit, the record shows that there are no promotions, as such, within the classification of regular contract teacher. However, within the DFT unit there are certain differences in status of teaching personnel which have been, or could be, affected by the residency requirement. Teachers may be classified in one of three categories: emergency substitute (ES), emergency substitute with regular position (ESRP) and contract teachers. Under the contract, the ES is an employee who is called to work on a daily basis with no obligation on the part of the Respondent to call the employee. However, under the DFT contract, after teaching over 20 days, the ES progresses to the status of ESRP. The ESRP who remains in that status teaching for 100 days is entitled to a full personal teaching contract and becomes a regular teacher under the DFT contract entitled to all the rights that flow from that. Testimony indicated that a policy had been promulgated that ES’s were not to be retained beyond 19 days if they were non-residents. Such a policy would defeat the progression of teachers from ES to ESRP and eventually full-contract teacher status.”
Thus while the administrative law judge made findings of fact relative to this issue, nowhere in the Commission’s opinion do we find any conclusions as to whether the emergency substitutes (ES) are being subjected to a continuing condition of employment or whether the residency requirement as to them is only a condition of hire or recruiting standard. Since the Commission failed to expressly answer this important question we cannot now consider this argument since there is insufficient information from which we can draw a conclusion. Therefore, this matter must be remanded back to the Commission for further proceedings from which a conclusion shall be drawn as to whether or not, as to the emergency substitutes, the residency requirement is a continuing condition of employment which is a mandatory bargaining subject.
Affirmed in part; remanded to the Michigan Employment Relations Commission for further proceedings not inconsistent with this opinion. No costs, a public question being involved. | [
-20,
-22,
-23,
-22,
-2,
30,
19,
-2,
-54,
24,
-28,
23,
53,
12,
-2,
11,
-4,
57,
-54,
-8,
-64,
29,
7,
5,
0,
31,
49,
-16,
0,
3,
-49,
1,
-2,
-31,
-18,
0,
-2,
-6,
56,
20,
22,
-18,
-25,
-43,
-7,
7,
47,
41,
19,
-46,
-2,
64,
17,
60,
44,
-3,
-45,
-2,
18,
20,
-81,
49,
-3,
11,
6,
-59,
12,
60,
33,
-26,
-40,
5,
-2,
-29,
6,
27,
-22,
-21,
-18,
5,
56,
-51,
-4,
-84,
-22,
19,
-1,
7,
-20,
-3,
-25,
49,
-17,
12,
-4,
50,
26,
9,
16,
-64,
-12,
44,
-18,
-14,
-27,
-29,
-18,
56,
34,
14,
-9,
35,
27,
-63,
-35,
9,
5,
27,
17,
18,
51,
-31,
-38,
19,
-32,
24,
-25,
28,
15,
1,
-7,
44,
-55,
-27,
-2,
45,
20,
33,
43,
5,
14,
26,
2,
-23,
-3,
-17,
-68,
8,
-19,
-66,
28,
-12,
54,
24,
-32,
-44,
47,
10,
35,
-8,
-5,
-27,
-6,
22,
-15,
-12,
-19,
43,
14,
41,
25,
3,
45,
-12,
16,
-19,
-9,
70,
-20,
-21,
-29,
-49,
-6,
-45,
3,
19,
-45,
-42,
-10,
7,
21,
-44,
-10,
-7,
10,
-5,
-12,
59,
-60,
29,
-40,
-20,
-39,
53,
-17,
18,
-49,
-4,
-12,
37,
-2,
-17,
23,
9,
-6,
13,
7,
34,
21,
-26,
23,
-54,
14,
64,
-18,
-39,
-10,
11,
84,
-11,
37,
66,
56,
9,
11,
-12,
-25,
22,
63,
7,
0,
-10,
-14,
55,
-54,
-22,
-40,
-9,
42,
7,
-23,
-16,
61,
-31,
-38,
6,
-60,
49,
27,
13,
-31,
19,
-11,
22,
-7,
-5,
-47,
26,
-20,
-19,
-25,
42,
18,
-12,
-38,
-10,
-8,
-25,
50,
-12,
-86,
36,
-29,
51,
12,
67,
13,
-13,
-52,
19,
-36,
-3,
-20,
39,
59,
-4,
57,
20,
28,
41,
-29,
23,
15,
15,
-10,
-19,
-58,
-27,
37,
-8,
-19,
-73,
8,
48,
10,
-48,
16,
-19,
-23,
-35,
17,
25,
45,
27,
-48,
-44,
45,
6,
49,
-79,
60,
-54,
5,
64,
-6,
18,
19,
29,
17,
-55,
23,
3,
33,
-24,
31,
-12,
-20,
-7,
-3,
-61,
58,
-19,
19,
7,
10,
29,
33,
8,
-4,
-11,
10,
21,
-27,
-25,
-43,
-19,
22,
4,
84,
3,
42,
-10,
-13,
9,
-35,
-11,
64,
0,
-38,
33,
-24,
5,
6,
11,
27,
-20,
11,
-19,
33,
-51,
-33,
-21,
-47,
-6,
33,
9,
64,
17,
-5,
-5,
44,
7,
-17,
-24,
5,
-15,
-31,
-93,
-47,
50,
19,
18,
-3,
-29,
-19,
-24,
50,
-63,
17,
14,
32,
18,
-8,
12,
-22,
8,
-12,
33,
0,
14,
-28,
-30,
31,
-19,
-22,
-14,
-50,
-61,
-60,
1,
-41,
-16,
-37,
5,
-40,
-16,
-57,
32,
3,
22,
32,
58,
-14,
41,
-8,
-20,
-62,
30,
9,
-24,
-39,
-52,
-19,
5,
-23,
8,
-35,
48,
-14,
47,
-66,
-37,
11,
1,
30,
-69,
-26,
-12,
-5,
8,
21,
-7,
3,
-49,
-60,
-32,
15,
-24,
-72,
38,
-7,
-18,
-32,
59,
10,
48,
55,
-10,
-5,
8,
-6,
-20,
21,
3,
-22,
9,
-32,
-22,
-6,
-23,
-10,
-26,
-10,
80,
31,
-5,
-50,
17,
9,
4,
-13,
30,
-59,
-9,
1,
4,
9,
-29,
-52,
24,
25,
12,
74,
-34,
55,
15,
-3,
41,
22,
-47,
34,
9,
-46,
46,
17,
-12,
-41,
-24,
41,
-9,
59,
-21,
-56,
-67,
8,
0,
12,
21,
50,
14,
-47,
49,
41,
43,
8,
42,
-6,
22,
13,
85,
14,
-10,
-1,
29,
-14,
-25,
50,
-29,
-17,
-25,
-8,
20,
58,
5,
6,
-40,
29,
-8,
43,
-20,
0,
-30,
-46,
-12,
8,
9,
42,
66,
15,
9,
19,
24,
-37,
1,
-14,
-13,
-14,
3,
-3,
-86,
-26,
-8,
-9,
-57,
14,
5,
6,
82,
37,
40,
-43,
24,
12,
-14,
-2,
42,
50,
0,
31,
-18,
60,
-35,
7,
-9,
-5,
-36,
20,
-17,
21,
-10,
-14,
-4,
13,
53,
-2,
-6,
-59,
65,
-14,
16,
-25,
17,
29,
-58,
-31,
-17,
-32,
-23,
0,
-49,
0,
-19,
-25,
26,
26,
18,
-18,
-27,
16,
-64,
-23,
65,
21,
21,
22,
10,
11,
25,
19,
-6,
10,
22,
-67,
11,
23,
-95,
6,
32,
-24,
-27,
41,
48,
4,
-29,
23,
-35,
-1,
15,
19,
-27,
-36,
9,
-26,
-20,
-36,
8,
-18,
44,
-20,
-8,
-13,
-24,
7,
10,
-22,
14,
-36,
-4,
-28,
28,
0,
31,
13,
-1,
54,
-3,
16,
-57,
4,
-4,
40,
32,
-7,
-24,
20,
-2,
14,
35,
-17,
-4,
49,
35,
-40,
4,
-21,
-12,
30,
0,
-13,
-22,
-34,
-73,
-26,
19,
11,
41,
1,
-5,
-58,
58,
-46,
-28,
15,
58,
19,
8,
-13,
22,
28,
-13,
13,
13,
-19,
1,
70,
-45,
-23,
-30,
-92,
-31,
30,
19,
26,
-29,
-26,
-43,
-3,
0,
36,
-2,
-24,
-49,
5,
-28,
44,
46,
3,
-10,
1,
-35,
-29,
6,
1,
48,
-36,
-13,
-5,
-15,
25,
28,
20,
13,
-55,
23,
17,
14,
16,
26,
-28,
-2,
15,
10,
-57,
-13,
58,
-6,
-4,
-13,
-21,
-3,
21,
-2,
52,
20,
-3,
-30,
-28,
11,
85,
6,
-22,
-37,
-24,
-38,
-27,
27,
-54,
19,
-14,
-45,
-23,
3,
-40,
22,
25,
-24,
21,
-26,
37,
6,
7,
17,
-68,
19,
-12,
69,
-48,
-35,
51,
56,
5,
-26,
28,
-22,
12,
18,
1,
49,
-13,
-26,
19,
10,
53,
-71,
41,
40,
15,
-57,
19,
37,
46,
38,
-29,
1,
17,
-9,
8,
-8,
-28,
-41,
-17,
29,
-50,
3,
-81,
32,
27,
-63,
-74,
-5,
-20,
10,
-9,
-6,
-2,
33,
-63,
-21,
34,
-2,
41,
-28,
-36,
-70,
-13,
-18,
-5,
46,
7,
25,
2,
24,
-25,
-14,
35,
-11,
63,
7,
-12,
-7,
-14,
11,
-6,
-38,
13,
-7,
-47,
-17,
24,
-36,
-55,
38,
34,
-16,
-8,
3,
-49,
22,
10,
34,
-29,
0,
65,
17,
8,
-47,
-3,
-79,
-1,
-14,
-2,
38,
13,
7,
24,
-27,
-43,
8,
23,
9,
-29,
-18,
4,
36,
11,
-36,
14,
-16,
-6,
-36,
17,
-50,
43,
-11,
-24,
-25,
-31,
-33,
19,
-40,
40,
45,
-64,
3,
-14,
0,
16,
-90,
16,
25,
51,
42,
-29,
16,
-27,
9,
-29,
26,
-33,
-18,
78,
21,
-50,
36
] |
R. B. Burns, J.
Plaintiffs appeal the decision of the trial judge that the relationship between plaintiffs and defendants did not constitute a partnership, and that plaintiffs are not entitled to additional compensation for their labors on behalf of defendants’ Melody Lanes, a bowling and dining facility in South Haven, Michigan.
This is an unfortunate and difficult case, with many disputed questions of fact. Those that are not disputed are as follows.
In early 1967 Deo Rhoades was operating a gas station in South Haven. His business was about to end because the state had condemned the property. Mr. Rhoades was interested in finding a new occupation. It also appears that at that time Howard Barcal was interested in finding someone to manage the bowling alley (which includes a snack bar, liquor bar, and attached restaurant/cocktail lounge, the "Red Carpet”) of which he was the owner. Mr. Barcal needed extra cash to invest in Melody Lanes. With this in mind, Barcal and Rhoades discussed the formation of a partnership.
Deo Rhoades did not have any funds immediately available in April, 1967, when he began working at Melody Lanes. Nor was there a written agreement. However, at the end of May, 1967, Rhoades tendered a check for $5,000 to Barcal and a written agreement was then signed on June 29, 1967. This inelegantly drafted agreement contains a "Partnership Purchase Plan”, which indicates that Deo Rhoades could "elect” in an unspecified manner to accumulate "volume increase credits”, a portion of the increased profits of the business, towards payment of his recited capital share of $150,000. This document, as drawn by Howard Barcal, does not purport to set up an existing partnership.
Plaintiffs and defendants worked together for 5-1/2 years until November, 1972. Plaintiffs had tendered an additional $5,000 to Howard Barcal by two checks written in August and September of 1970. One day in November, 1972, Howard Barcal came up to Deo Rhoades in the bowling alley and indicated that they no longer agreed on the management of the business and that Rhoades would be terminated at the end of the year.
In January, 1973, plaintiffs commenced this action for a dissolution of the partnership and for an accounting or for additional compensation for services rendered. The trial revealed extensive evidence in support of both plaintiffs’ and defendants’ versions, and the judge found for defendants on both claims.
Much circumstantial evidence indicated the nonexistence of a partnership. The liquor license of the establishment was in Howard Barcal’s name, and was never changed to include Deo Rhoades. In 1969, the Barcals signed a land contract to purchase the real estate on which the bowling alley is located. Although plaintiffs witnessed this document, they did not have and do not claim an interest in the real estate. No partnership papers or partnership income tax returns were filed, and there are no other government documents that would indicate that the business was run as a partnership. A Van Burén County enforcement officer for the Michigan Liquor Control Commission had interviewed both Barcal and Rhoades and testified that, as far as he could determine, Rhoades had no interest in the establishment. Similar testimony was offered by an independent land developer.
Plaintiff’s circumstantial case is also attractive. Numerous employees of the business testified that the Rhoades were looked upon as part owners in the business, both from the standpoint of the nature of their work and by direct statements of Howard Barcal to the effect that Deo Rhoades was his partner. The yellow pages advertisement for the business contained the names Deo and Betty Rhoades and Bud and Fran Barcal. Deo Rhoades worked very long hours, often upwards of 100 hours per week, and involved himself in virtually all phases of the business. He appeared to have full managerial authority. The Rhoades’ investment of $10,000 and a pickup truck can be seen as a capital contribution. Betty Rhoades signed the paychecks for the business. Further, the 1967 agreement contains numerous indications of something other than an employer-employee relationship, e.g., the last paragraph: "The spirit of this agreement is to enable the parties involved to * * * build assets over a period of years for themselves and their estates * * * .”
The trial judge, sitting in equity, found "that no partnership ever existed between plaintiffs and defendants”, and that Deo Rhoades never exercised his "option to purchase an interest”. Plaintiffs’ cash advances were viewed as a loan, and ordered repaid with accumulated interest per the 1967 agreement. The requested accounting was denied.
While we cannot be wholly satisfied with this relatively mechanical disposition, we must approach this appeal with self-restraint. Our duty is to review the record de novo. In re Hartman Estate, 51 Mich App 192; 215 NW2d 202 (1974), Cerling v Hedstrom, 51 Mich App 338; 214 NW2d 904 (1974). However, "[w]hether an action is in law or equity, principle [sic] regard must be given to the special opportunity of the trial court to judge the credibility of witnesses, and findings of fact will not be set aside unless clearly erroneous. GCR 1963, 517”. Kurrle v Walker, 56 Mich App 406, 409-410; 224 NW2d 99, 101 (1974). It is also said:
"We do not ordinarily disturb the findings of the trial judge in an equity case unless, after an examination of the entire record, we reach the conclusion we would have arrived at a different result had we been in the. position of the trial judge.” Christine Building Co v City of Troy, 367 Mich 508, 518; 116 NW2d 816, 820 (1962).
We cannot classify this difficult decision as to the absence of a partnership as "clearly erroneous”. Defendants’ theory of the relationship is supported by sufficient evidence. This holding is affirmed.
We turn to plaintiffs’ request for extra compensation for their labor. Deo Rhoades worked extremely long hours for a salary of $100 per week, which was gradually increased over the 5-1/2 years to $150. Howard Barcal testified that Rhoades’ predecessor was paid $100 per week, and that the person hired to replace him was paid $125 per week. Deo Rhoades testified that at the date of trial he was making approximately $168 per week in another bowling alley job with significantly reduced hours and responsibilities. There can be little doubt that Deo Rhoades could reasonably believe that he was taking a limited present income while building equity in the business. Again, however, we cannot say with any certainty that the finding of the trial court is clearly erroneous. We affirm as to the compensation paid to Deo Rhoades.
The trial court also held "that plaintiff Betty Rhoades received adequate compensation for the occasional duties she performed”. The evidence indicates, however, that Betty Rhoades’ work for the business was more continuous than "occasional”. She made out the payroll for at least a year and a half. She assisted in the operation of the restaurant for roughly a year. She worked regular hours in the restaurant for approximately another year and a half. She assisted in the snack bar and the kitchen as needed. Her only compensation for these various tasks was receipt of a car that defendant Howard Barcal valued at $1,000. On one other occasion she received $150.
Betty Rhoades did not testify as to why she worked for no pay. Her behaviour is most explainable under the rationale, as cited in plaintiffs’ brief, that she considered this a family business.
The trial judge recognized the merit of her claim for some compensation by making a substantive ruling thereupon; he found "as a fact” that she received "adequate compensation”. This bare assertion is unencumbered by any specific determination of the extent of her labor. This finding is not as presumptively valid as is the holding as to Deo Rhoades. Deo Rhoades was paid a regular salary that might be construed as representing reasonable compensation. Betty Rhoades was not. We therefore remand for the trial court’s determination as to whether Betty Rhoades’ labor can be adequately quantified, evaluated, and remunerated under a theory of quantum meruit or quasi-contract of employment. See, e.g., Cascaden v Magryta, 247 Mich 267; 225 NW 511 (1929), Moll v Wayne County, 332 Mich 274; 50 NW2d 881 (1952).
Remanded for proceedings consistent with this opinion. | [
13,
25,
-46,
3,
56,
-2,
-31,
-60,
-16,
36,
31,
37,
28,
-2,
39,
11,
-3,
36,
-23,
17,
-23,
-4,
13,
-2,
-7,
16,
12,
-22,
15,
18,
5,
-22,
-4,
14,
-32,
7,
-16,
6,
-22,
21,
-15,
3,
24,
-18,
1,
1,
52,
-35,
47,
-46,
3,
-17,
-16,
20,
5,
-21,
5,
8,
-31,
14,
-6,
-1,
17,
30,
28,
-42,
0,
-2,
45,
12,
26,
-47,
-15,
5,
11,
-72,
-17,
2,
-4,
16,
25,
33,
32,
5,
-66,
66,
24,
9,
21,
17,
-46,
-27,
34,
22,
18,
23,
-23,
-26,
22,
0,
10,
9,
-21,
-3,
-14,
17,
65,
-11,
-17,
26,
-10,
20,
12,
-12,
15,
-11,
36,
-61,
-13,
2,
-49,
40,
37,
5,
41,
15,
-36,
-23,
-22,
-5,
10,
36,
0,
-20,
15,
6,
41,
12,
2,
18,
-25,
27,
-29,
18,
1,
3,
-7,
-11,
-33,
-24,
23,
-21,
42,
16,
-7,
-19,
50,
8,
67,
-25,
-3,
-28,
12,
50,
12,
15,
67,
11,
-11,
-29,
44,
-3,
-7,
-35,
-14,
0,
52,
-32,
-72,
-14,
2,
21,
14,
8,
9,
-32,
-5,
-22,
-28,
21,
60,
-57,
-20,
-9,
10,
-14,
17,
12,
8,
1,
23,
-69,
38,
16,
36,
2,
-29,
30,
-27,
17,
-15,
27,
36,
-74,
-35,
22,
-22,
3,
36,
-41,
2,
-54,
21,
-3,
-56,
-24,
30,
-61,
44,
-13,
-37,
0,
-56,
-6,
-82,
-53,
-35,
-1,
27,
20,
1,
-32,
-19,
-2,
-30,
15,
21,
37,
16,
39,
-45,
26,
-5,
-14,
-11,
-32,
-50,
37,
-5,
0,
1,
43,
-47,
-26,
15,
-9,
-26,
4,
-29,
51,
-10,
-43,
34,
0,
-50,
-61,
8,
62,
6,
-36,
-13,
-23,
19,
-14,
-4,
42,
-3,
12,
-14,
-19,
53,
66,
8,
-54,
58,
6,
64,
-2,
32,
44,
-39,
2,
10,
-3,
4,
-18,
0,
17,
-34,
-7,
10,
-71,
39,
-22,
21,
-56,
-12,
33,
21,
-19,
38,
11,
31,
42,
11,
-11,
20,
-20,
9,
-23,
4,
60,
-6,
33,
23,
-14,
37,
-15,
41,
-5,
-4,
38,
4,
10,
31,
13,
2,
35,
-16,
4,
-66,
-54,
-26,
2,
55,
-3,
-15,
6,
-51,
58,
-11,
-9,
-8,
-28,
-71,
42,
14,
14,
18,
55,
-16,
36,
-31,
25,
6,
-11,
22,
-44,
-20,
27,
-5,
-31,
31,
-24,
37,
-34,
-25,
-30,
-33,
-17,
-54,
-26,
35,
15,
11,
35,
-16,
1,
17,
18,
39,
16,
-17,
-14,
-25,
-6,
2,
-79,
-29,
-26,
-29,
34,
9,
39,
-20,
-43,
5,
-49,
-77,
34,
44,
-47,
4,
-23,
18,
-85,
-7,
31,
-7,
-13,
-94,
4,
3,
-51,
16,
12,
-21,
1,
-18,
-19,
-48,
6,
-14,
-22,
-12,
51,
-20,
0,
23,
21,
21,
27,
12,
79,
-60,
-26,
0,
9,
64,
-14,
-11,
32,
6,
0,
51,
-26,
-10,
-8,
-54,
53,
11,
47,
32,
59,
-35,
9,
71,
-38,
46,
22,
63,
31,
-1,
50,
-63,
-27,
-3,
-10,
-18,
10,
70,
3,
11,
5,
-8,
34,
-8,
17,
-41,
-24,
-28,
-24,
-22,
-14,
39,
20,
-7,
-60,
39,
39,
6,
-22,
51,
13,
6,
9,
-2,
68,
-23,
20,
-32,
-14,
-47,
30,
-13,
-55,
-17,
49,
16,
-12,
20,
-29,
16,
-54,
-10,
-48,
-11,
14,
-29,
-9,
-41,
9,
-1,
42,
-19,
22,
25,
-52,
4,
-16,
2,
3,
-17,
-1,
-12,
22,
-25,
-22,
3,
15,
-32,
29,
22,
28,
36,
-43,
37,
9,
14,
24,
-10,
-14,
22,
5,
13,
28,
-1,
-4,
-50,
51,
-28,
-11,
-24,
-14,
-46,
7,
54,
17,
21,
23,
-57,
-11,
-13,
-15,
26,
33,
11,
-78,
12,
-11,
14,
-2,
-9,
-54,
-21,
-30,
-47,
-36,
26,
4,
-15,
-6,
-44,
-8,
-6,
17,
23,
38,
35,
13,
53,
9,
-38,
-60,
44,
17,
-7,
20,
16,
26,
14,
-48,
5,
40,
24,
-43,
-12,
30,
-53,
5,
3,
28,
-22,
37,
-12,
-14,
-8,
41,
-33,
-22,
0,
25,
49,
30,
-36,
12,
6,
-1,
-22,
-31,
-41,
0,
-12,
11,
-37,
-56,
25,
-17,
32,
1,
-4,
13,
36,
15,
16,
0,
-37,
47,
2,
40,
72,
-36,
-56,
-50,
19,
3,
8,
-13,
8,
-11,
4,
19,
-54,
-47,
29,
-2,
-4,
-25,
-5,
-33,
-22,
-3,
-2,
45,
-8,
12,
-23,
-35,
9,
-49,
16,
2,
-1,
-13,
17,
40,
-74,
-3,
-13,
3,
-21,
-55,
2,
-14,
-17,
6,
-2,
-31,
20,
-7,
17,
-31,
37,
3,
-28,
12,
-26,
-53,
-7,
44,
0,
-15,
-32,
16,
-36,
-9,
-16,
-15,
3,
24,
-13,
11,
-68,
30,
1,
26,
-21,
10,
-52,
4,
0,
-18,
-14,
-26,
29,
-5,
14,
-31,
62,
-37,
-56,
24,
-34,
8,
-32,
-6,
6,
41,
-7,
-26,
43,
-18,
-3,
51,
-47,
-12,
20,
-13,
48,
7,
-43,
11,
42,
-36,
-17,
37,
22,
60,
56,
-47,
-12,
1,
8,
21,
39,
-38,
26,
-46,
50,
7,
-6,
-20,
38,
-2,
-3,
63,
-57,
3,
0,
16,
4,
-52,
-53,
9,
12,
-27,
-20,
6,
-48,
-13,
23,
-20,
-10,
76,
-44,
10,
17,
-2,
-10,
-9,
-43,
0,
-11,
52,
46,
-16,
4,
-1,
-40,
-9,
-40,
-8,
6,
-38,
-16,
37,
-42,
-37,
54,
-49,
24,
-9,
-10,
21,
-23,
32,
-5,
-8,
37,
-38,
11,
-2,
-7,
25,
-14,
-10,
2,
-28,
-23,
-29,
-24,
12,
25,
-25,
25,
5,
9,
-29,
-41,
60,
11,
-14,
8,
-19,
-21,
-35,
-42,
8,
21,
-43,
-52,
2,
-31,
-22,
9,
30,
4,
-10,
-2,
25,
25,
-14,
39,
-1,
-49,
3,
-13,
62,
5,
-12,
45,
-10,
-65,
-25,
-14,
-8,
-9,
-16,
-41,
68,
-6,
28,
5,
-15,
-18,
-12,
41,
-27,
-18,
-23,
26,
-4,
28,
16,
-1,
-13,
19,
41,
20,
28,
-37,
28,
2,
32,
-1,
-37,
-20,
54,
23,
13,
-18,
44,
-46,
43,
26,
-14,
25,
23,
-26,
-5,
-14,
-13,
-2,
7,
-11,
-33,
-21,
-13,
-20,
-59,
-14,
-7,
-31,
19,
-4,
10,
-54,
-45,
1,
-16,
-30,
2,
13,
-13,
-1,
1,
-23,
42,
12,
-62,
8,
61,
2,
19,
12,
42,
31,
36,
96,
14,
-25,
46,
38,
-10,
-39,
22,
-51,
31,
-20,
-35,
-53,
-9,
-5,
-24
] |
Per Curiam.
This is an appeal as of right from a Genesee County Circuit Court order denying the plaintiff Citizens Mutual Insurance Company (hereinafter "Citizens”) a declaratory judgment. At issue is whether a motorcycle was an "uninsured motor vehicle” within the meaning of Section 2(d) of the Motor Vehicle Accident Claims Act, 1965 PA 198, as amended, MCLA 257.1102(d); MSA 9.2802(d). The case arose from a May 20, 1972, accident wherein Diane Volatta, passenger on a motorcycle owned and driven by Michael Porritt, suffered severe personal injuries when Porritt drove into the path of an oncoming vehicle.
On April 5, 1972, Central National Insurance Company (hereinafter "Central National”) had issued a motor vehicle liability insurance policy for the motorcycle and furnished Porritt with a binder which he presented at the Secretary of State’s office in order to register the cycle and to obtain license plates. The policy contained the following provision:
"PART I LIABILITY
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
A. Bodily injury, sickness or disease, including death resulting therefrom, hereinafter called 'bodily injury’ sustained by any person; caused by accident and arising out of the ownership, maintenance or use of the owned motorcycle. * * * ”
Central National attempted to exclude passengers of the motorcycle from the benefits of coverage by including the following:
"EXCLUSIONS. This policy does not apply under Part I:
(m) Under coverage A and B to bodily injury to any person, or damage to the property of any person, while on or getting on or alighting from the insured motorcycle.”
Diane Volatta was an "insured” under an automobile liability policy issued to her father by Citizens, which policy provided personal injury liability protection in the event of an accident with an uninsured motorist. Citizens therefore commenced this declaratory judgment action seeking a declaration that Central National’s passenger exclusion was void as against public policy and that the motorcycle was not an uninsured vehicle within the meaning of the Motor Vehicle Accident Claims Act, supra, and the uninsured motorist provisions of Citizens’ insurance policy.
Section 2(d) of the Motor Vehicle Accident Claims Act, supra, provides that the term:
" 'Uninsured motor vehicle’ means a motor vehicle as to which there is not in force a liability policy meeting the requirements of [MCLA 500.3009; MSA 24.13009].”
MCLA 500.3009; MSA 24.13009 provides in pertinent part:
"(1) An automobile liability * * * policy insuring against loss resulting from liability imposed by law for * * * bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall not be * * * issued for delivery in this state * * * unless such liability coverage * * * is subject to a limit, * * * of not less than $20,000 because of bodily injury to or death of one person in any one accident * * * .
"(2) When authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person. Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance * * * :
"Warning — when a named excluded person operates a vehicle all liability coverage is void — no one is insured. Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.” (Emphasis added.)
Prior to its amendment in 1971, 1971 PA 211, § 2(d), supra, defined the term "uninsured motor vehicle” with a reference to the provisions of the Financial Responsibility Act, particularly § 520(b) of the act, MCLA 257.520(b)(2); MSA 9.2220(b)(2), which briefly outlined the statutory requirements which must be met by a liability insurance policy and also designated mandatory limits of personal injury and property damage liability coverage (now contained in MCLA 500.3009(1); MSA 24.13009). Citizens, to a large extent, relies on Allstate Insurance Co v Motor State Insurance Co, 33 Mich App 469; 190 NW2d 352 (1971), and other decisions of this Court construing the former statute and in effect argues that the 1971 amendment of § 2(d) did not work a change in the public policy of this state as enunciated in those decisions. We agree with this position.
Allstate, supra, involved the validity of an exclusionary clause in an automobile liability policy issued to Judith or Norman L. Bangs which attempted to exclude Norman L. Bangs from liability protection as an operator of the motor vehicle. The court referred to the statutory scheme and concluded:
"It is clear that the Legislature intended that no automobile should be registered in this state unless certain requirements have been met. To obtain registration for an automobile one must either have a policy of liability insurance or pay the uninsured motor vehicle fee. The requirements of the liability policy are those set forth in * * * MCLA §§257.501-257.532 [now MCLA 257.3009] * * * .
"The public policy as delineated by the Legislature requires that the liability policy must be written in conformity with the statutory requirements. The statute does not provide for the type of exclusionary clauses as were contained in the instant policy. Thus, the exclusionary clauses are contrary to the public policy of this state and are therefore invalid and of no effect.” Allstate, supra, at 473, 474.
In accord with this view are Robinson v Mendell, 45 Mich App 368; 206 NW2d 537 (1973), Cadillac Mutual Insurance Co v Bell, 50 Mich App 144; 212 NW2d 816 (1973), Celina Mutual Insurance Co v Preferred Risk Mutual Insurance Co, 51 Mich App 99; 214 NW2d 704 (1974), overruled sub nom Lilje v Allstate Insurance Co, 393 Mich 259; 224 NW2d 279 (1974), State Automobile Mutual Insurance Co v Babcock, 54 Mich App 194; 220 NW2d 717 (1974).
The Legislature obviously remains interested in requiring automobile insurance policies to conform to the dictates of the statute. The theory underlying the Allstate decision was that exclusionary clauses with respect to policies covering a particular motor vehicle which were not contemplated by the Legislature are contrary to public policy and therefore void. A clear intent of § 3009 was to allow an insurance company to exclude from liability coverage only named persons operating a motor vehicle. There are no statutory references to other types of exclusions. It is a familiar rule of statutory construction that the express mention of one thing implies the exclusion of other similar things. Stowers v Wolodzko, 386 Mich 119, 133; 191 NW2d 355 (1971), Marshall v Wabash Railway Co, 201 Mich 167, 172; 167 NW 19 (1918). An exclusionary clause which exempts from liability coverage all passengers of a motor vehicle is at variance with the intent of the Legislature, contrary to public policy and is therefore void and unenforceable.
Accordingly, we reverse the judgment of the trial court and hereby grant the plaintiffs request for declaratory judgment. No costs, a public question being involved.
MCLA 257.501 to 257.532; MSA 9.2201 to 9.2232. | [
-45,
-19,
20,
-12,
40,
32,
5,
-30,
25,
4,
-14,
3,
38,
23,
-44,
17,
5,
57,
-4,
18,
-84,
-25,
-42,
19,
-17,
-51,
77,
-5,
-37,
39,
9,
-27,
17,
12,
-34,
-14,
1,
51,
-22,
70,
18,
-15,
6,
-26,
8,
-30,
-11,
7,
18,
7,
38,
-24,
-27,
11,
-5,
0,
52,
-8,
-44,
-17,
-32,
-15,
30,
22,
-27,
-22,
-28,
62,
39,
29,
-7,
0,
-22,
-4,
-9,
22,
29,
31,
-26,
-6,
8,
-57,
34,
-33,
-58,
43,
-27,
-25,
31,
-6,
-11,
-73,
-50,
-29,
8,
0,
-11,
-63,
-19,
4,
7,
-61,
53,
56,
-30,
55,
-15,
-47,
-10,
2,
-27,
-20,
9,
9,
33,
-13,
-50,
75,
71,
20,
-39,
-54,
18,
-22,
0,
-4,
-54,
-12,
-6,
41,
8,
8,
37,
9,
-32,
-7,
-1,
-12,
42,
19,
20,
-3,
17,
-38,
17,
22,
-17,
-66,
43,
12,
21,
48,
21,
22,
-48,
-12,
-10,
-28,
60,
-29,
12,
-9,
18,
9,
-1,
-35,
-16,
58,
-24,
-12,
33,
-15,
-24,
-20,
6,
-17,
1,
-2,
-34,
19,
-20,
-12,
-8,
0,
7,
-49,
13,
-25,
-43,
67,
46,
-38,
-15,
-15,
2,
38,
12,
31,
-17,
11,
43,
-31,
-19,
-36,
18,
-5,
-19,
-28,
-20,
-15,
21,
-66,
40,
-19,
17,
8,
32,
-41,
-50,
-22,
2,
80,
-27,
-49,
-37,
8,
-70,
-48,
-46,
-6,
34,
5,
-1,
54,
-76,
20,
2,
-68,
19,
66,
6,
0,
20,
-16,
61,
4,
17,
20,
10,
-26,
58,
-106,
35,
4,
0,
0,
7,
11,
49,
-10,
-8,
46,
-8,
14,
56,
-22,
22,
-27,
0,
-5,
-18,
-2,
0,
-37,
5,
-69,
22,
10,
32,
-16,
30,
2,
-47,
-62,
-28,
12,
29,
-15,
-21,
-36,
24,
-36,
11,
3,
-28,
-14,
63,
-32,
11,
13,
1,
23,
39,
11,
9,
-98,
-46,
-26,
12,
-26,
-32,
-55,
36,
-47,
36,
-26,
6,
6,
24,
-25,
-44,
18,
9,
64,
-21,
-29,
19,
-26,
18,
18,
-68,
59,
20,
-37,
59,
-57,
12,
53,
-17,
8,
-3,
29,
-15,
4,
-31,
22,
33,
24,
55,
-5,
-57,
-1,
43,
-7,
-10,
56,
60,
-31,
-39,
-4,
15,
18,
-28,
-7,
42,
-51,
11,
31,
-32,
53,
-16,
-10,
38,
-23,
-36,
-41,
0,
72,
-39,
11,
40,
-36,
22,
-43,
-13,
47,
-59,
14,
-19,
3,
-32,
-50,
-17,
33,
33,
-13,
9,
15,
-6,
33,
13,
17,
-22,
-17,
6,
-16,
28,
-29,
-33,
-13,
-81,
27,
10,
3,
9,
73,
95,
-43,
-68,
-59,
-42,
-26,
-26,
-57,
8,
-24,
3,
62,
8,
0,
12,
-23,
-3,
-30,
11,
-45,
-32,
-49,
20,
20,
4,
8,
-3,
13,
28,
-20,
-24,
3,
-24,
-38,
79,
2,
6,
6,
-41,
13,
-8,
-21,
-52,
-93,
-24,
-34,
-12,
-31,
46,
-33,
-50,
-27,
70,
-89,
11,
-31,
-29,
7,
11,
-45,
-17,
-11,
-36,
-9,
-24,
0,
-3,
-20,
33,
-33,
39,
71,
-27,
8,
19,
-24,
10,
16,
24,
9,
-61,
30,
-43,
-63,
21,
37,
41,
92,
-3,
-5,
-49,
-14,
-8,
8,
-9,
23,
3,
10,
14,
19,
-42,
24,
19,
-4,
-15,
38,
-18,
-3,
38,
-43,
-6,
-12,
24,
0,
6,
-28,
34,
0,
-1,
-4,
5,
0,
-25,
-16,
3,
23,
-60,
-56,
1,
-42,
-23,
-13,
10,
8,
-3,
-26,
19,
-70,
53,
-73,
29,
-5,
-18,
53,
-33,
45,
13,
-16,
-15,
-20,
32,
-15,
67,
-61,
-59,
43,
-5,
-56,
-12,
23,
-7,
-17,
-30,
-23,
-23,
52,
-25,
26,
-37,
-39,
-42,
1,
25,
-44,
-24,
-2,
37,
52,
31,
36,
-6,
-28,
-57,
-26,
-19,
27,
-41,
14,
12,
-33,
4,
16,
43,
-4,
13,
60,
-9,
4,
17,
-15,
-10,
8,
62,
-12,
-33,
26,
-5,
72,
-24,
-15,
-41,
44,
27,
20,
-42,
-24,
-36,
-53,
-14,
2,
18,
63,
-48,
24,
-25,
9,
54,
43,
-57,
60,
6,
1,
-17,
-31,
-72,
52,
-28,
-16,
-16,
49,
-7,
18,
-41,
2,
-40,
-26,
11,
22,
6,
37,
-5,
-12,
2,
46,
52,
-19,
15,
30,
65,
19,
-28,
48,
18,
14,
-5,
2,
-5,
13,
30,
-14,
-18,
39,
80,
-12,
4,
8,
-18,
-13,
-25,
-40,
-15,
-14,
-32,
45,
-6,
31,
-85,
14,
-35,
20,
-31,
3,
-16,
9,
-27,
8,
-6,
-34,
-11,
48,
-6,
-15,
-38,
-19,
10,
-37,
-21,
-33,
-80,
33,
-2,
-8,
0,
14,
-23,
-8,
-6,
-29,
28,
7,
79,
7,
45,
-37,
7,
54,
34,
71,
-36,
1,
-93,
19,
45,
18,
-60,
34,
-4,
-9,
18,
-49,
-2,
66,
20,
-65,
18,
-2,
61,
24,
-27,
-33,
-44,
39,
14,
-54,
11,
81,
-7,
-117,
-31,
19,
19,
-45,
-47,
10,
-14,
-18,
36,
-2,
-4,
-6,
-28,
1,
-18,
-14,
77,
64,
32,
-68,
-13,
-7,
-29,
62,
54,
17,
19,
82,
5,
-26,
-6,
-14,
27,
30,
46,
5,
-16,
-49,
31,
3,
14,
62,
13,
30,
-45,
-66,
4,
5,
-40,
-5,
15,
-1,
6,
-10,
31,
-15,
-1,
-27,
-21,
-12,
-36,
23,
50,
2,
-23,
-65,
42,
23,
-1,
12,
47,
-14,
-13,
21,
56,
21,
4,
-61,
40,
-21,
-23,
-10,
-19,
4,
-38,
4,
27,
-31,
-43,
12,
3,
0,
-39,
28,
-12,
31,
-13,
82,
-23,
-11,
-24,
0,
-20,
-9,
53,
-34,
-16,
10,
-37,
7,
-35,
-21,
14,
9,
-9,
2,
41,
25,
-49,
-39,
-33,
5,
-20,
71,
79,
-87,
-50,
18,
-9,
-1,
-5,
45,
68,
-12,
-44,
15,
0,
-12,
28,
26,
29,
41,
10,
10,
3,
80,
-12,
2,
25,
-61,
-37,
13,
-5,
11,
55,
1,
29,
-14,
-22,
64,
0,
-30,
-9,
48,
-39,
-23,
44,
-14,
-7,
7,
-43,
3,
38,
0,
3,
22,
65,
-27,
10,
-5,
-39,
15,
-1,
-7,
24,
39,
-16,
52,
2,
-1,
26,
-43,
51,
-36,
-3,
12,
32,
45,
14,
-36,
-5,
-12,
53,
26,
-7,
-12,
25,
-30,
59,
30,
-33,
25,
-33,
18,
-32,
1,
-15,
30,
-24,
24,
4,
-9,
33,
43,
-13,
9,
17,
0,
61,
12,
12,
-8,
3,
-19,
31,
36,
12,
69,
0,
-41,
27,
28,
-7,
31,
-16,
-36,
41,
8,
20,
-10
] |
Bronson, J.
Defendant was found guilty by a jury of the charged offense of armed robbery, contrary to MCLA 750.529; MSA 28.797. He was sentenced to a prison term of from five to 20 years in prison, and appeals by leave granted.
On the night of March 4, 1973, a carry-out pizza restaurant in Litchfield, Michigan, called "The Station”, was robbed of approximately $70. The only eyewitness to the robbery was Karen Smith, a 16-year-old high school student who worked part-time at the restaurant. At trial, Ms. Smith testified that she was preparing a pizza when a young man walked into the restaurant and inquired about the price of a bottle of pop. When he brought the bottle to the cash register, she rang up the sale. At that time, the man leaned over the counter, pulled a knife, and said "empty”. Karen Smith got a bag from underneath the counter, and put the paper money in it. She then asked the man whether he wanted the change, and he stated that he didn’t want either checks or change. The robber then grabbed the bag and left the restaurant. Karen Smith called the owner of "The Station” and the police to report the robbery.
Three days after the robbery, Ed Curtis of the Litchfield Police Department visited Karen Smith and showed her photographs of 24 different subjects. Ms. Smith identified defendant from his photograph as the person who robbed the restaurant on the night in question. Officer Curtis testified later that he knew little about these photographs. On their own initiative, the Michigan State Police had dropped off these photographs at their Jonesville post, and they had been forwarded to the Litchfield police. Curtis knew only that this procedure was in connection with the investigation of a series of robberies by the state police.
After Karen Smith identified the defendant from the photographic display, Officer Curtis contacted the state police post in Jonesville to inform them that the witness had identified the defendant. At that time, Officer Curtis was informed that the defendant was already incarcerated in the county jail.
The next day Karen Smith went down to the district court to sign the complaint. After doing so, she observed the defendant come into the magistrate’s office for arraignment on other charges. She said, "There he is”, before anyone said anything to her. When defendant was returned one more time to that office to get his commitment papers, Ms. Smith stated that she was sure that defendant was the robber.
Karen Smith identified the defendant as the robber at both the preliminary examination and the trial. At trial, she also testified on direct examination to the fact that she had identified the defendant at the pretrial photographic display.
Of the many issues raised by defendant on appeal, the following claims merit discussion: (1) that defendant was denied his right to have counsel present at the photographic identification; (2) that the police were required to hold a corporeal lineup instead of a photographic display; (3) that the confrontation of the defendant by the complaining witness at the courthouse constituted an improper one-on-one lineup; (4) that the jury was never instructed as to the essential elements of armed robbery; and (5) that the trial judge improperly considered defendant’s military record in passing sentence.
I. The Photographic Identiñcation
Defendant moved prior to trial to quash the photographic identification by Karen Smith, and any in-court identification by that witness, alleging that (1) the photographic display was unduly suggestive, and (2) the defendant was denied his right to have counsel present during that identification procedure. At a pretrial hearing on that motion, Officer Curtis and Karen Smith were called to testify as to the photographic identification, while the defendant presented no witnesses. The trial judge denied the motion to quash the identification, based upon his ruling that Karen Smith’s in-court identification had an "independent basis”.
The rules pertaining to photographic identifications have been developed in recent years. The landmark case is People v Franklin Anderson, 389 Mich 155; 205 NW2d 461 (1973), where the Michigan Supreme Court held:
"1. Subject to certain exceptions, identification by photograph should not be used where the accused is in custody. (Footnote omitted.)
"2. Where there is a legitimate reason to use photographs for identification of an in-custody accused, he has the right to counsel as much as he would for corporeal identification procedures.” Anderson, supra, pp 186-187.
Despite United States Supreme Court cases to the contrary, the Michigan Supreme Court held that the Franklin Anderson rules apply even prior to indictment, People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). In People v Lee, 391 Mich 618; 218 NW2d 655 (1974), the Supreme Court rejected an attempt to extend the Anderson rules prior to custody if the investigation had "focused” on a particular individual.
Arguing from those cases, defendant contends that the Anderson rules were violated here because defendant was in custody when the photographic identification was held. He states that he was not allowed counsel at the identification, and that none of the "exigent circumstances” justifying a photographic identification in place of a lineup existed.
If only the in-court identification were involved here, we would sustain the trial judge’s decision. When it appears from the record by clear and convincing evidence that the in-court identification was not tainted by a prior improper identification —that it had an "independent source” — no reversible error results, United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), People v Franklin Anderson, 389 Mich 155; 205 NW2d 461 (1973). We hold that the trial judge correctly ruled that the prosecutor sustained his burden of proving an "independent basis” for the in-court identification.
The trial judge applied the factors found in People v Hutton, 21 Mich App 312; 175 NW2d 860 (1970), in order to review the prosecutor’s "independent basis” claim. Those factors are as follows: (1) the witness’s prior opportunity to observe the defendant during the crime; (2) the existence of any discrepancy between any pretrial description and defendant’s actual appearance; (3) any identification of another person prior to the improper identification procedure; (4) failure to identify the defendant on a prior occasion; (5) any identification of the defendant at a proper identification procedure prior to the improper one; and (6) the lapse of time between the crime and the improper identification procedure. We agree that those factors are good ones to use to review this type of claim for admissibility of the in-court identification.
. Several of those factors pointed strongly toward an "independent basis”. Karen Smith observed the defendant during the robbery at close quarters and in good light for several minutes. In addition, the photographic identification was held only three days after the robbery, preventing the photographs from being the predominant source of her in-court identification 2-1/2 months later.
The trial judge also found that none of the negative factors were present. That is, Karen Smith never identified a third party, nor did she fail to identify defendant on a prior occasion. The trial judge additionally determined that the witness’s description immediately after the crime, while different in some respects, did not "materi ally” differ from defendant’s actual appearance. When the lack of these negative factors is coupled with the strong factors discussed above, there is clear and convincing evidence of an "independent basis” for the in-court identification. The trial judge was correct insofar as he held that the in-court identifications by Karen Smith were proper.
At trial, Karen Smith did more than identify the defendant, she testified that she had identified him at the pretrial photographic display. It is well-established that such direct evidence of the out-of-court identification is per se inadmissible where there was a denial of defendant’s right to counsel when that identification was made, Gilbert v California, 388 US 263, 273; 87 S Ct 1951; 18 L Ed 2d 1178 (1967), People v Franklin Anderson, supra, at 169. We hold that the same per se exclusionary rule applies to the first Franklin Anderson rule, creating a preference for corporeal identifications, as well as to the second, relating to the right to counsel. Since defendant was not given the oppor tunity to have counsel present when Karen Smith identified defendant from his photograph, and the prosecutor does not claim that exigent circumstances required that a lineup not be held, the key question becomes whether the Franklin Anderson rules apply here.
Defendant claims that the Franklin Anderson rules apply in all cases where defendant is in custody. Yet the history of those rules given above is important, for it puts in perspective the Lee Court’s rejection of the "focus” test. In Lee, the Court held that custody was necessary, even if the investigation had "focused” on a particular criminal defendant, to bring into play the Franklin Anderson rules. However, the Supreme Court has never decided if custody is sufficient in all cases, and we think that the "focus” test is still a viable one to use in that area.
We hold that a criminal defendant has a right to counsel for photographic identifications and a preference for corporeal identifications only if he is in custody and the investigation has "focused” on him. During the general investigation by the po lice soon after a crime is committed, witnesses are often shown many photographs. The source of those photographs is often files of mug shots taken of persons who have previously committed similar crimes. Therefore, it is always likely that a high percentage of these suspects are in jail at the present time for committing other offenses.
The police cannot reasonably be expected to insure that each person whose picture is shown, and who happens to be in custody at that time, is represented by counsel or brought in for a lineup. Yet if the police want to be sure that the identification will be proper as to the one suspect who is identified, they will have to do so. It is exactly that kind of burden that led the Lee Court to refuse to extend the Franklin Anderson rules back to the "focus” stage:
"It is not feasible to require appointment of counsel in cases of pre-custody photographic showups where there is no detention of the defendant since under such a rule each photograph arguably depicts a suspect and therefore each person whose photograph appears in the photographic display, or perhaps even the 'mug book’ would require the representation of counsel. That would be impossible and absurd.” Lee, supra, p 625.
It is for these reasons that we hold that the rights to counsel and to lineup absent exigent circumstances attach only upon "focus” and custody.
In several cases prior to People v Lee, supra, the Supreme Court held that the right to counsel had attached because the suspect was in custody, without mentioning the "focus” factor. We do not view these cases as contrary to our holding here, for in each it was clear that the investigation had indeed "focused” on a particular suspect. In People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), photographic and lineup identifications were held pertaining to a certain armed robbery. Jackson was in jail for attempting to use a stolen credit card. Yet there was no doubt that the police investigation of the armed robbery had "focused” on Jackson, for the credit card was the one taken in that robbery. In People v James Anderson, 391 Mich 419; 216 NW2d 780 (1974), the Court pointed out in the first paragraph of the opinion:
"Five of the witnesses who identified him at the trial had previously identified him at photo showings. The showings were held while Anderson was in custody in connection with another offense, and, it would appear, under suspicion of having committed this offense. He was not represented by counsel at the showings.” James Anderson, supra, at 421.
In both cases, then, the elements of both custody and "focus” were present.
Defendant was incarcerated in the county jail on an unrelated charge when the photographs were displayed to Karen Smith in that county. It would seem unnecessary to state that defendant was in "custody” as that word is commonly defined. However, "custody” as used to invoke the Franklin Anderson rules is a term of art, and requires police knowledge that an individual is in fact in custody, People v Jackson, supra, People v James Anderson, 391 Mich 419; 216 NW2d 780 (1974), People v Beasley, 55 Mich App 583; 223 NW2d 77 (1974). The "custody” requirement is probably met also if the police have "reason to know” of the fact of defendant’s incarceration, but we need not reach that issue here.
In summary, we must find that two requirements are met here before we can hold that the Franklin Anderson rules apply. First, the investigation by the police must have "focused” on this particular defendant at the time of the photographic display. Secondly, the police must have known that defendant was in jail at that time.
It is crucial to determine to which police agency (the state police or the Litchfield police) we should look in applying those requirements. The answer is clear — the state police must be answerable for any investigation they may have started in motion. We cannot allow the actively investigating police agency to insulate itself from procedural safeguards intended to protect the rights of individuals by delegating ministerial tasks to other police agencies. The rule we have formulated today would be a nullity if we held otherwise. One police agency which has narrowed its inquiry to a single person known to be in custody could avoid the rule’s requirements by passing that person’s photograph along with others to a different police agency. We cannot allow that to happen.
It is clear from the evidence produced at the hearing that the state police knew that defendant was in custody. However, we are unable to determine from the record whether the state police investigation had "focused” on the defendant. No state policemen were called to testify, and Officer Curtis had no knowledge of the purpose of the investigation. The trial judge did not rule on this claim because he felt that his finding of an "independant basis” cured any earlier error. We feel that the proper remedy is for this Court to remand the case for an evidentiary hearing on the question of whether the state police investigation here had "focused” on defendant Metcalf.
We are confident that a remand is the proper remedy here, for this case is the first to directly hold that the "focus” test applies to the Franklin Anderson rules. Defense counsel cannot be held responsible for failing to correctly predict the direction of future opinions. However, we feel that the remand remedy has been overused by our appellate courts to resurrect errors which the defendant has neglected to raise below. That practice has resulted in overburdened trial courts, which are busy enough trying issues raised before them. Therefore, for suppression hearings held after the release of this opinion, failure on the part of the defendant to raise the "focus” issue below will bar raising it on appeal.
II. The Courthouse Confrontation
Defendant was observed and identified by Karen Smith after she signed the complaint, but before she testified at trial. We find the circumstances of that meeting to be similar to those in People v Hampton, 52 Mich App 71; 216 NW2d 441 (1974). There two witnesses for the prosecution were present at the courthouse during jury selection. The defendant was observed by both, and one of them spontaneously identified him. The Hampton Court held that such happenstance confrontations do not bring into play the Wade-Gilbert-StovalL line of cases. Applying that rule here, we hold that the trial judge properly denied the motion to quash the in-court identification on this basis.
III. The Jury Instructions
The defendant now contends, for the first time, that the trial judge committed reversible error by failing to mention the term "specific intent to deprive the owner of his property” in his charge to the jury regarding the offense of armed robbery. However, in his instructions, the trial judge read the language of the armed robbery statute, and further explained the elements of the crime as follows:
"Now there are certain elements of the crime of armed robbery with which you should be concerned. I might say are concerned. The elements of the offense with which we are concerned here this morning are the following:
"Number 1. An assault, as I defined it to you, by the defendant upon the complainant.
"Second, a felonious taking of any property which may be the subject of larceny from his person — the complainant — or in his presence.
"And third, that the defendant was armed with a weapon described in the statute. In other words, a dangerous weapon.”
That unobjected-to instruction is almost identical to the one upheld in People v Fry, 55 Mich App 18; 222 NW2d 14 (1974), and its use did not constitute reversible error.
IV. The Sentence
The defendant contends that his sentence should be vacated because the trial judge considered his undesirable discharge from the military, and also several "AWOL” citations during the periods of military service. The comments by the trial judge at sentencing put that claim in perspective:
"The Court: The pre-sentence investigation report, as I said earlier, I have considered in great detail. I note you are just past 20 years of age.
"Defendant Metcalf: Yes, sir.
"The Court: You are a product of a broken home. Your parents have been divorced. The report indicates to me that you put in little effort when you were in school, and you quit school as soon as you attained age 16. The report also indicates you entered the military service and were discharged with less than an honorable discharge. But there were periods when you were absent without leave. You have little or no work experience; you have little or no education to train yourself for useful citizenship in the future.
"You have been in trouble with the law on prior occasions, and you now stand convicted by a jury in this court on a very serious offense that could bring to you a sentence of up to life imprisonment, which you apparently are fully familiar with because you mention that fact in your communication to this court.”
As a general rule, the trial judge should be encouraged to explore the general background of each individual convicted of a crime before passing sentence. Our Supreme Court has endorsed that view in People v Lee, 391 Mich 618, 639; 218 NW2d 655 (1974):
"We do not believe it would he a wise policy to restrict the sentencing judge to the information admissible in open court alone. The question of sentencing is properly a matter for the exercise of judicial discretion, and an informed exercise of that discretion requires an individualized factual basis, such as is provided by the presentence report. Without knowledge of a convicted defendant’s past life, employment record, criminal record, psychiatric history, if any, and 'mental and moral propensities’, Williams v New York, 337 US 241, 245, it would be difficult for the sentencing judge to free himself in his determination of sentence from the nature of the offense charged and the caliber of the defense at trial.
"The presentence report not only aids the sentencing court in determining punishment, but in bringing relevant information regarding the character and antecedents of the defendant to the attention of the sentencing judge is of possible advantage to the defendant as well, since it shifts the emphasis of the sentencing proceedings from the specific nature of the crime committed to the individual convicted of the crime.”
Background information contained in a presentence report can be improper if it is inaccurate. However, the defendant or his attorney must challenge the accuracy of the information in the presentence report at the sentencing hearing, People v Lee, supra, People v Nelson Johnson, 58 Mich App 473; 228 NW2d 429 (1975). Defendant here did not object to the references to his military record, nor does he now assail the accuracy of the report. The trial judge quite properly reviewed defendant’s background before passing sentence, and we find no reversible error here.
V. Conclusion
Pursuant to GCR 1963, 820.1(5), we retain jurisdiction of this case and remand to the trial court for a hearing to determine whether the state police investigation had "focused” on the defendant when the photographs were displayed to the witness. If the trial judge determines that it had "focused”, a new trial shall be ordered.
If the trial judge reaches the contrary conclusion, he shall within 10 days after the end of the hearing state his findings. The judge’s findings and a transcript of the hearing shall be forwarded to this Court. Defendant may file a supplemental brief within 15 days after the trial court reaches its decision, and the people may file their brief within 15 days after the receipt of defendant’s brief.
N. J. Kaufman, J., concurred.
Defense counsel, during arguments on the motion, requested only that the in-court identification made by Karen Smith during the preliminary examination be quashed. However, counsel in his written' motion speaks broadly of the taint upon "the identification of defendant”. We hold therefore that the trial judge was sufficiently apprised of an objection to any in-court identification by Karen Smith.
The trial judge also stated that the fifth factor was satisfied because the defendant was identified from photographs by Karen Smith. That statement was clearly wrong. The fifth factor concerns identifications other than the one presently in question. If the requirement were otherwise, the improper identification could be used to bootstrap tainted in-court identifications into evidence. However, since the other factors were sufficient to establish an "independent basis”, the trial judge’s misapplication of this factor did not constitute reversible error.
This per se exclusionary rule is subject to the harmless error rule, Gilbert v California, 388 US 263, 274; 87 S Ct 1951, 1957; 18 L Ed 2d 1178, 1187 (1967). The admission of the evidence is reversible error unless this Court can find it harmless beyond a reasonable doubt. The test to be used is whether there is overwhelming untainted evidence to support the conviction, People v Roberson, 55 Mich App 413; 222 NW2d 761 (1974). Since Karen Smith was the only eyewitness to this crime, we cannot say that there was other evidence overwhelming enough to make this error harmless. In this case, then, the rule becomes one of per se reversible error.
It is not clear whether the per se exclusionary rule of Gilbert applies to pretrial identification procedures which are "impermissibly suggestive”. See, this author’s analysis of that question in People v Rivera, 61 Mich App 427; 232 NW2d 727 (1975), fn 3. We do not have to reach that issue, for defendant does not pursue the "suggestiveness” claim on appeal. Further, the photographic display here was not shown to be unduly suggestive. The only testimony at the hearing, by Officer Curtis and Karen Smith, indicated that there was no prompting or suggestion at the time the photographs were shown. In addition, the number of photographs, 24, was large. Finally, the suspects in the photographs all looked remarkably similar to the defendant.
The Lee Court was careful to use language which would indicate that the "focus” test was being rejected only in the context of the defendant’s arguments there. The specific language was as follows, Lee, supra, p 625:
"The Franklin Anderson rule attaches with custody. * * * [Citations omitted.] Defense counsel’s argument that the right to counsel attaches once 'an investigation has focused’ on a particular suspect is an inaccurate one, insofar as it is supposed to refer to ’pre-custody’ investigations. The cases to which the defendant refers are in -custody not pre-custody cases. ” (Emphasis added.)
The “focus” test derives from Escobedo v Illinois, 378 US 478, 490; 84 S Ct 1758, 1765; 12 L Ed 2d 977, 986 (1964), where it was held that the right to counsel attaches "where, as here, the investigation is no longer a general inquiry into an unsolved crime, but has begun to focus on a particular suspect”.
United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967), Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 1199 (1967). | [
18,
0,
-2,
42,
-44,
-34,
-14,
36,
-44,
8,
6,
24,
-15,
40,
-12,
-3,
-26,
-31,
-3,
-96,
-6,
-20,
-23,
19,
-29,
2,
36,
61,
-18,
-8,
-26,
27,
49,
-55,
25,
19,
21,
17,
8,
15,
-65,
20,
9,
32,
-35,
0,
-5,
-10,
-3,
-9,
8,
36,
18,
25,
-29,
12,
3,
-24,
6,
-6,
18,
16,
-4,
-17,
-8,
-11,
36,
-8,
-37,
-28,
21,
-12,
-24,
-3,
-9,
-3,
-12,
27,
17,
-35,
-23,
-22,
25,
-7,
23,
-27,
14,
0,
-48,
-36,
15,
-23,
-33,
-31,
76,
-6,
-17,
-38,
9,
-46,
-30,
3,
-47,
18,
44,
23,
-24,
-48,
-109,
8,
-7,
-17,
94,
-13,
-15,
17,
-12,
-6,
15,
3,
-23,
4,
21,
-20,
43,
-37,
-4,
-26,
47,
-10,
24,
-16,
-10,
5,
-76,
0,
-14,
29,
-23,
24,
-39,
24,
17,
13,
2,
-22,
-58,
-9,
17,
19,
-34,
-48,
-39,
33,
-5,
-10,
-30,
-45,
-80,
-17,
-22,
-40,
-5,
22,
-11,
-27,
34,
-32,
11,
-2,
0,
-40,
6,
-20,
55,
15,
-3,
-27,
-44,
-15,
12,
2,
-61,
34,
-13,
-41,
41,
-5,
-38,
43,
37,
0,
-26,
40,
39,
45,
37,
14,
-1,
11,
5,
-16,
33,
-8,
-6,
-20,
43,
5,
-17,
13,
-6,
-26,
16,
-7,
-17,
-30,
-12,
31,
49,
0,
-16,
-25,
11,
-32,
9,
-33,
-44,
15,
-50,
-10,
34,
-22,
-3,
-12,
-38,
-29,
8,
-23,
27,
48,
-4,
-79,
-13,
-26,
70,
14,
-21,
-13,
-12,
13,
13,
7,
-70,
14,
-56,
-2,
30,
15,
46,
49,
-53,
15,
11,
47,
-7,
6,
-3,
35,
-66,
12,
-32,
-47,
-38,
-3,
28,
7,
-14,
59,
0,
-3,
62,
-11,
4,
3,
51,
7,
5,
40,
59,
-24,
48,
0,
-7,
11,
1,
25,
-19,
5,
-31,
28,
40,
15,
-8,
11,
-34,
-10,
41,
-2,
2,
5,
56,
-28,
13,
0,
55,
-32,
-34,
8,
1,
6,
2,
-5,
-5,
-26,
34,
-60,
0,
7,
-46,
-64,
61,
26,
-16,
2,
-70,
0,
-1,
60,
42,
-22,
-53,
-39,
12,
0,
-13,
2,
6,
45,
-74,
-49,
37,
57,
17,
26,
49,
-12,
-8,
44,
-14,
-44,
26,
-63,
-9,
-18,
-2,
-2,
11,
-52,
3,
82,
6,
-43,
-26,
3,
-5,
-2,
41,
-15,
6,
9,
-31,
5,
29,
-21,
-70,
-35,
31,
-52,
-6,
38,
-60,
-1,
4,
-32,
56,
-30,
-31,
20,
53,
-42,
-22,
14,
57,
16,
-33,
16,
-81,
0,
47,
-32,
-34,
-5,
38,
19,
-49,
-22,
26,
-13,
2,
-22,
7,
59,
7,
-52,
4,
-11,
-43,
-1,
42,
4,
4,
27,
-26,
-37,
6,
19,
-48,
-21,
5,
-34,
5,
-8,
-29,
8,
0,
6,
-92,
14,
42,
-11,
12,
-3,
-8,
-7,
-56,
63,
2,
-10,
-25,
5,
34,
-32,
-40,
8,
36,
-17,
-6,
12,
4,
-35,
41,
8,
-34,
-23,
-2,
-16,
-13,
6,
56,
18,
23,
12,
22,
-13,
-6,
-52,
8,
-36,
-14,
25,
74,
-24,
17,
37,
57,
42,
-17,
9,
17,
7,
-62,
-21,
-2,
34,
11,
38,
2,
-17,
-19,
34,
-29,
20,
0,
-10,
-9,
-30,
-67,
2,
2,
40,
0,
32,
7,
21,
-38,
42,
-43,
-21,
-59,
-46,
20,
-26,
39,
-41,
31,
-15,
-16,
-14,
29,
2,
23,
-3,
32,
19,
-40,
7,
44,
-72,
13,
15,
39,
39,
31,
-33,
-16,
18,
-17,
-16,
-2,
-5,
-63,
-4,
18,
22,
-2,
11,
-10,
-34,
41,
-5,
-12,
5,
-3,
12,
-10,
-7,
-4,
34,
-18,
30,
-2,
64,
-44,
31,
4,
-12,
45,
49,
24,
-7,
-61,
64,
20,
-7,
34,
19,
-35,
-38,
6,
-30,
80,
4,
-18,
18,
56,
-127,
-10,
3,
20,
16,
33,
-12,
-8,
23,
-1,
3,
-43,
37,
-41,
16,
9,
-35,
9,
8,
17,
-15,
-27,
-2,
14,
-42,
-11,
19,
41,
-19,
-31,
-2,
32,
30,
-69,
-30,
-16,
39,
-14,
22,
-6,
31,
-25,
5,
4,
-17,
-69,
-12,
36,
4,
28,
-35,
-20,
11,
-16,
-40,
-12,
36,
-48,
-5,
24,
-15,
1,
-75,
28,
-25,
-55,
-38,
5,
7,
0,
21,
0,
17,
-3,
-72,
8,
15,
-32,
24,
-2,
2,
5,
-75,
-23,
38,
-31,
40,
2,
40,
78,
-5,
34,
40,
-15,
47,
16,
-35,
-8,
-2,
-26,
2,
0,
-73,
-38,
4,
-3,
41,
15,
49,
1,
-5,
-15,
30,
-24,
29,
-47,
-15,
49,
3,
-22,
-16,
32,
-11,
24,
-9,
6,
13,
26,
44,
34,
22,
-19,
34,
5,
26,
-49,
-26,
-44,
-41,
-21,
37,
29,
-15,
16,
29,
13,
56,
-18,
38,
-43,
29,
52,
11,
-60,
27,
-13,
40,
-14,
-36,
26,
1,
-33,
20,
75,
-11,
-54,
-22,
-44,
17,
-45,
-7,
3,
0,
37,
-37,
2,
77,
-3,
-5,
11,
-18,
-15,
24,
43,
8,
-17,
8,
27,
38,
-47,
68,
18,
6,
1,
2,
-44,
35,
78,
-25,
2,
-2,
-18,
34,
-22,
22,
-47,
58,
-22,
3,
-2,
48,
-12,
-42,
-16,
-5,
27,
-33,
24,
-47,
-43,
-4,
-33,
-34,
-54,
-22,
44,
48,
-2,
-5,
3,
-1,
-18,
-14,
24,
23,
82,
49,
19,
6,
-17,
-55,
16,
-25,
25,
7,
0,
-51,
-17,
-72,
4,
20,
1,
23,
3,
-7,
-18,
-39,
-21,
-29,
-45,
59,
-1,
-29,
-20,
36,
-27,
32,
7,
39,
28,
90,
29,
-55,
-40,
-94,
43,
-12,
59,
10,
64,
-21,
-18,
-1,
-23,
-8,
-28,
74,
-24,
-9,
-30,
-21,
-51,
-7,
20,
-45,
55,
6,
-77,
3,
18,
6,
60,
7,
24,
28,
-41,
17,
20,
35,
-43,
-6,
-20,
7,
8,
-56,
-12,
12,
41,
6,
22,
-34,
32,
34,
-40,
44,
-5,
-18,
1,
-52,
-54,
27,
45,
-82,
62,
67,
-11,
-9,
-29,
26,
11,
29,
-46,
-6,
-12,
-16,
-4,
-8,
-67,
16,
22,
-1,
-11,
42,
26,
36,
-17,
61,
30,
-18,
18,
59,
-8,
8,
1,
-3,
5,
-18,
-11,
-24,
18,
-2,
35,
24,
-40,
-11,
17,
-25,
6,
11,
13,
8,
65,
59,
-10,
-5,
-33,
-20,
-28,
39,
62,
-1,
43,
0,
-38,
-24,
-2,
-10,
-3,
14,
-22,
-54,
-12,
-22,
-2,
42,
1,
-46,
48,
11,
44,
34,
-48,
11,
7,
33,
-47,
38,
-40,
67
] |
D. E. Holbrook, Jr., J.
Defendant was convicted by a jury on June 11, 1974, of breaking and entering an occupied dwelling with intent to commit larceny. MCLA 750.110; MSA 28.305. Defendant was sentenced to a term of from 2 to 15 years in prison. He appeals as of right.
The object of the breaking and entering was a 12' X 60' mobile home situated in a mobile home park. The mobile home was the principal residence of Mr. and Mrs. William Lang. The structure rested on cement blocks which served to level it, although the axle and tires were still attached. However, a metal skirt attached to a wooden frame concealed the underside of the mobile home from view. The mobile home consisted of a kitchen, a living room, a bathroom, and two bedrooms. The mobile home was connected to sewage, water, electric and telephone service and the Langs received their mail there.
Some time after the breaking and entering was committed the defendant and his accomplice, who was the chief prosecution witness, were picked up by Robert Hannegan who drove them to a nearby restaurant. Both the accomplice and the defendant testified to this. However, Mr. Hannegan appar ently knew nothing about the breaking and entering. He was not called in the prosecution’s case-in-chief but was called as a rebuttal witness. Mr. Hannegan testified that the defendant attempted to get him to perjure himself to help defendant’s alibi.
At sentencing the trial court stated that one of its reasons for imposing the sentence that it did was for its deterrence value. Furthermore, the presentence report on the defendant initially stated that the defendant had been involved in an unrelated crime. However, this report was amended to state that the defendant had been found innocent of the second charge but that the probation officer still thought that he was involved.
Defendant’s initial claim of error is that he was charged and convicted under an inappropriate statute. Since the crime occurred "in” a mobile home, defendant claims he should have been charged and tried under the statute concerning breaking and entering of a motor vehicle or house trailer. MCLA 750.356a; MSA 28.588(1). It is defendant’s contention that since the latter statute specifically mentions house trailers that the occupied dwelling statute does not apply when the breaking and entering is of a mobile home. See Reithmiller v People, 44 Mich 280, 282; 6 NW 667 (1880), Mentel v Monroe Public Schools, 47 Mich App 467, 469; 209 NW2d 506 (1973).
While defendant makes an interesting argument, it must fail for several reasons. It is true that a mobile home is another name for a house trailer. Allstate Insurance Co v Walker, 111 Ga App 120, 122; 140 SE2d 910, 912 (1965), Lower Merion Twp v Gallup, 158 Pa Super 572, 575; 46 A2d 35, 36 (1946), appeal dismissed, 329 US 669; 67 S Ct 92; 91 L Ed 591 (1946). However, a dwelling house has been defined as a place where a man lives with his family. DesRoches v McCrary, 315 Mich 611, 614; 24 NW2d 511 (1946), Schadt v Brill, 173 Mich 647, 654; 139 NW 878; 45 LRA(ns) 726 (1913). Thus, it is also possible for a mobile home to be a dwelling house. Artman v College Heights Mobile Park, Inc, 20 Mich App 193, 198; 173 NW2d 833 (1969), Allstate Insurance Co v Walker, supra, Lower Merion Township v Gallup, supra. When a mobile home is used as a person’s principal residence, it more nearly fits within the meaning of the dwelling house statute than the house trailer statute.
Although this is a case of first impression in Michigan, in the context of the arson statutes, the Supreme Court has discussed the purposes for protecting dwelling houses more than other structures or objects. The burning of a dwelling house has been described as a crime against habitation rather than against the fee. Snyder v People, 26 Mich 106, 107; 12 Am Rep 302 (1872). Consequently, a charge that a person burned a dwelling house of another could not be sustained when the defendant lived in the house even though he did not own it. People v Handley, 93 Mich 46; 52 NW 1032 (1892), Snyder v People, supra. Likewise, what is sought to be protected in statutes proscribing breaking and entering of a dwelling house is the right to peaceful habitation. Smart v State, 244 Ind 69, 72-73; 190 NE2d 650, 652 (1963), State v Ebel, 92 Mont 413, 416-417; 15 P2d 233, 234-235 (1932), Annotation, 43 ALR2d 831, 835 (1955).
This concept that what is sought to be protected is the habitation has been applied to a mobile home in an arson case. In Harden v State, 417 SW2d 170, 172-173 (Tex Crim App, 1967), the defendant had been convicted after burning a trailer. Separate statutes proscribed the commission of arson against houses and trailers. The court affirmed a conviction under the former statute. It ruled that the mobile home was a house when it was used as a residence.
The theory that a person’s habitation is to receive more protection also finds support in the statutory breaking and entering scheme in Michigan. The maximum penalty for breaking and entering a motor vehicle or house trailer is 5 years in prison. MCLA 750.356a; MSA 28.588(1). A person convicted of breaking and entering any "tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat or ship, railroad car or any private apartment in any such buildings or any unoccupied dwelling house” may receive 10 years in prison. MCLA 750.110; MSA 28.305. But if the breaking and entering occurs in an occupied dwelling house, a person may be imprisoned for 15 years. MCLA 750.110; MSA 28.305.
Furthermore, it should be noted that the two statutes prohibit different things. The dwelling house statute proscribes any breaking and entering with the intent to commit a felony or a larceny. On the other hand, the house trailer statute only punishes a breaking and entering with the intent to commit a larceny. This is consistent with the theory that the former statute is designed to protect the habitation while the latter statute is merely intended to protect property.
By our holding that a mobile home may be an occupied dwelling house under MCLA 750.110; MSA 28.305, we do not eliminate the words "house trailer” from MCLA 750.356a; MSA 28.588(1). There are still many house trailers that are not used as dwelling houses. Moreover, the prosecuting attorney still retains his inherent authority to charge under MCLA 750.356a; MSA 28.588(1), if he so desires in his sound discretion. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972), People v Mire, 173 Mich 357; 138 NW 1066 (1912), People v Birmingham, 13 Mich App 402, 407; 164 NW2d 561 (1968).
Defendant’s next claim of error is that the prosecutor failed to endorse Robert Hannegan as a res gestae witness. He argues that this testimony should have been presented in the prosecutor’s case-in-chief and not as rebuttal testimony. However, even assuming that Mr. Hannegan was a res gestae witness, it is clear that defendant knew of his existence. Even with this knowledge defendant failed to move for his endorsement until after he rested his own case. This untimely motion for endorsement or production of a witness waives the right to endorsement and production. People v Parsons, 59 Mich App 79, 87; 228 NW2d 852 (1975), People v Love, 18 Mich App 228, 231; 171 NW2d 33 (1969).
Mr. Hannegan’s testimony was proper rebuttal testimony and in fact would have been improper during the prosecution’s case-in-chief. The testimony of the defendant and his accomplice indicated that Mr. Hannegan did not have any knowledge concerning any part of the criminal transaction. People v Tocco, 60 Mich App 130, 135-137; 230 NW2d 341 (1975). By the time Mr. Hannegan picked up the defendant and his accomplice and took them to the diner, the two had finished their crime. His testimony was limited to indicating that the defendant had requested him to assist the defendant in fabricating an alibi. Since this was solely for impeachment purposes it would have been improper before the defendant testified. It is first necessary for the defendant to put his credibility in question by testifying before it may be impeached. People v Whitson, 43 Mich 419, 420; 5 NW 454 (1880), Taylor v Klahm, 8 Mich App 516, 519; 154 NW2d 529 (1967).
Defendant’s next contention is that he should be resentenced because the trial court did not individualize his sentence, and the presentence report contained inaccurate and prejudicial statements. We reject defendant’s contention that the trial court did not individualize his sentence. Merely stating that it hoped the sentence would deter some future law breakers is not enough to hold that the trial court did not individualize the defendant’s sentence. People v Van Epps, 59 Mich App 277, 285-286; 229 NW2d 414 (1975).
It must be noted that the defendant did not object to the information contained in the presentence report. In fact, defense counsel used it as part of his argument for mercy in sentencing. When defendant makes a tactical decision not to object and affirmatively uses the objectionable material when that decision backfires, he should not be heard to complain. People v Lee, 391 Mich 618, 637; 218 NW2d 655 (1974). However, it should be noted that the sole basis of our decision on this issue is that defendant failed to object. We do not condone probation officers injecting personal opinions of guilt on other charges when the defendant has been found not guilty by a jury or court.
Defendant also i argues that the trial court should have sua sponte instructed on lesser included offenses. However, no instructions on lesser included offenses were requested and no objection was raised to the instructions as given. Since there was no objection defendant is precluded from raising this issue on appeal. GCR 1963, 516.2. People v Lula Watkins, 60 Mich App 124, 129; 230 NW2d 338 (1975). We further note that the trial court did not affirmatively exclude the jury’s consideration of lesser included offenses. People v Scott, 61 Mich App 91, 97; 232 NW2d 315 (1975).
We have reviewed defendant’s remaining allegations of error and find them without merit.
Affirmed.
MCLA 750.110; MSA 28.305.
MCLA 750.356a; MSA 28.588(1).
MCLA 750.71 et seq.; MSA 28.266 et seq.
Vernon’s Ann. Penal Code, art 1305 (repealed pursuant to a revision of the Texas penal code by Acts 1973, 63rd Leg., chp 399, § 3(a), eff. Jan 1, 1974).
Vernon’s Ann. Penal Code, art 1318 (repealed, see n4).
On cross examination, the defendant could not remember whether he had asked Mr. Hannegan to perjure himself to assist the defendant. | [
48,
54,
-17,
11,
-104,
-11,
-17,
13,
17,
60,
-8,
25,
-1,
19,
8,
-11,
-35,
20,
5,
19,
22,
-40,
27,
41,
-24,
-6,
36,
45,
-32,
42,
32,
8,
28,
-44,
-21,
-21,
46,
11,
6,
37,
8,
2,
14,
-37,
-6,
-22,
-6,
21,
28,
0,
11,
-28,
24,
-14,
11,
5,
14,
30,
-20,
25,
25,
26,
-43,
-27,
-10,
-28,
15,
25,
24,
-43,
44,
-6,
-22,
-36,
9,
33,
10,
23,
-10,
39,
-1,
21,
31,
-23,
6,
-61,
-25,
-71,
-13,
-37,
-38,
2,
-2,
32,
-18,
-56,
-43,
-27,
33,
6,
-73,
-25,
-1,
18,
-11,
-11,
-48,
-39,
-31,
-8,
16,
-8,
10,
-25,
1,
-52,
-12,
41,
-21,
3,
39,
14,
49,
-8,
-6,
-2,
-7,
-44,
21,
29,
27,
32,
-37,
-2,
-22,
1,
16,
47,
31,
-31,
1,
32,
32,
25,
-12,
-10,
-33,
-20,
3,
10,
4,
23,
-13,
16,
22,
13,
-39,
8,
-66,
28,
-45,
-48,
-27,
-5,
11,
-33,
-69,
28,
-13,
-8,
-9,
31,
6,
23,
20,
20,
4,
-15,
-15,
-19,
-6,
-16,
-29,
38,
-8,
-7,
41,
-13,
-21,
36,
22,
4,
-28,
-6,
-9,
24,
-44,
8,
-36,
1,
-2,
-45,
4,
-18,
44,
-30,
41,
84,
22,
-30,
18,
-12,
-10,
-17,
9,
42,
13,
-4,
16,
-17,
-35,
-57,
13,
45,
-36,
-1,
-49,
-48,
46,
-15,
10,
12,
16,
-50,
-17,
-28,
-61,
-30,
43,
18,
49,
-32,
3,
-16,
29,
-33,
-68,
2,
-53,
-4,
-22,
-10,
-18,
42,
-7,
30,
19,
2,
-11,
58,
6,
-8,
26,
-37,
3,
16,
32,
-45,
-82,
4,
-21,
34,
-23,
43,
-47,
17,
-54,
49,
2,
-51,
54,
-26,
35,
-25,
44,
-48,
48,
25,
-16,
-29,
13,
-51,
-2,
10,
-14,
19,
42,
15,
-64,
13,
5,
-22,
-82,
-59,
-36,
15,
14,
7,
-11,
47,
44,
-3,
35,
10,
13,
-35,
27,
18,
-30,
-17,
-6,
-6,
54,
4,
21,
-6,
9,
-44,
-21,
29,
14,
-21,
-4,
13,
33,
7,
35,
-35,
-20,
50,
-37,
-40,
65,
-48,
-13,
33,
-7,
45,
-58,
-26,
63,
2,
-16,
19,
-1,
-29,
-70,
18,
28,
-11,
62,
27,
-60,
-38,
-1,
-54,
32,
-11,
-16,
60,
-20,
-59,
-39,
23,
15,
-34,
-5,
-32,
-28,
34,
60,
7,
28,
-2,
-36,
-17,
-30,
-64,
41,
84,
-72,
-13,
41,
-55,
31,
5,
21,
3,
-5,
-58,
-20,
3,
30,
-62,
-33,
-24,
-19,
29,
-20,
-3,
11,
13,
32,
20,
-12,
22,
10,
-41,
-8,
2,
5,
69,
15,
-11,
12,
4,
-30,
-3,
-26,
-40,
58,
43,
-23,
-50,
33,
18,
-33,
-11,
19,
-6,
-27,
-31,
-14,
32,
35,
6,
-41,
-33,
25,
10,
-30,
13,
24,
49,
-29,
48,
38,
14,
-26,
-68,
42,
14,
10,
17,
12,
-17,
-67,
-37,
-42,
23,
-20,
2,
-12,
-10,
11,
0,
-26,
74,
-9,
6,
-12,
-53,
11,
36,
42,
-49,
-29,
-10,
0,
14,
42,
55,
-2,
-14,
72,
6,
22,
-24,
17,
29,
-31,
13,
-13,
-18,
41,
-24,
24,
20,
26,
72,
12,
47,
11,
26,
-32,
-36,
48,
-53,
17,
0,
10,
0,
-10,
27,
-37,
24,
15,
-20,
-21,
0,
17,
-24,
-41,
-35,
16,
-18,
-28,
-15,
-11,
-37,
52,
55,
10,
38,
-29,
8,
18,
-56,
-17,
-77,
-14,
-4,
35,
-31,
-39,
-33,
-18,
-5,
-35,
45,
2,
-1,
96,
-23,
-25,
-3,
4,
-12,
31,
29,
-25,
37,
-68,
-7,
-8,
23,
-34,
36,
11,
20,
27,
103,
-4,
-47,
-19,
75,
-31,
61,
7,
23,
-47,
-5,
-23,
-69,
2,
10,
-66,
-10,
13,
-5,
20,
15,
-9,
46,
31,
17,
1,
20,
-48,
2,
64,
-38,
-28,
1,
48,
17,
31,
-28,
-66,
-16,
21,
-39,
12,
44,
-62,
-52,
49,
33,
26,
-70,
-3,
34,
7,
7,
56,
-4,
-20,
-1,
-76,
16,
3,
39,
-35,
-28,
-54,
19,
2,
-49,
-19,
-16,
-46,
-23,
-36,
57,
83,
-18,
12,
-41,
9,
-8,
22,
27,
15,
55,
31,
10,
-11,
-40,
9,
34,
-9,
-26,
12,
67,
-3,
15,
9,
-49,
45,
-18,
4,
-21,
-19,
-18,
23,
38,
-3,
-12,
13,
-28,
-8,
8,
2,
-9,
9,
8,
14,
6,
-46,
10,
-10,
-46,
-16,
45,
-13,
61,
69,
-73,
-49,
30,
-23,
47,
36,
-17,
6,
-28,
-10,
5,
-41,
22,
15,
-38,
-25,
-13,
22,
10,
19,
-1,
37,
-56,
-2,
-2,
-18,
16,
-4,
15,
-63,
32,
46,
-14,
-75,
20,
-1,
24,
38,
-51,
23,
59,
51,
38,
18,
41,
1,
-4,
2,
34,
42,
4,
-30,
-12,
-19,
-23,
-48,
-22,
-21,
31,
26,
25,
67,
-9,
-49,
7,
-8,
13,
-20,
33,
-27,
15,
-4,
-3,
-8,
35,
-22,
14,
13,
3,
24,
-21,
32,
-30,
46,
-11,
-19,
30,
-14,
3,
31,
0,
-15,
-3,
10,
5,
54,
29,
-88,
12,
-25,
-35,
2,
-8,
3,
-72,
1,
-21,
56,
22,
40,
2,
-15,
-7,
22,
7,
-65,
-41,
15,
-24,
17,
-73,
-5,
-12,
-6,
-6,
54,
19,
10,
-32,
-26,
13,
32,
27,
10,
-16,
22,
-43,
4,
-4,
41,
-37,
53,
24,
-14,
-28,
28,
-25,
-27,
25,
45,
92,
-1,
-32,
27,
-23,
-30,
21,
-42,
-43,
8,
-2,
10,
47,
-15,
-9,
52,
32,
46,
40,
3,
5,
10,
28,
-30,
-9,
-18,
31,
-10,
24,
-84,
-54,
16,
18,
-36,
65,
-50,
77,
-23,
5,
60,
-43,
21,
-56,
26,
-14,
-77,
15,
-1,
-65,
-13,
-24,
-54,
-53,
4,
11,
9,
0,
-42,
18,
-54,
26,
-34,
-23,
-45,
26,
56,
38,
42,
-69,
-34,
-5,
-9,
62,
6,
-10,
-21,
-34,
-4,
-26,
46,
2,
64,
-33,
11,
26,
-31,
12,
-9,
35,
-7,
-54,
40,
-3,
-19,
50,
10,
39,
30,
37,
23,
-8,
-5,
-20,
-52,
40,
4,
-21,
15,
20,
-5,
8,
-51,
-2,
-6,
-43,
-24,
-25,
63,
4,
-43,
36,
-9,
-31,
10,
-14,
-27,
19,
-18,
-13,
-32,
26,
-21,
25,
-6,
-64,
-29,
41,
-9,
-9,
-20,
-92,
-10,
18,
-11,
-11,
21,
-12,
40,
-3,
-2,
-13,
-14,
-55,
-54,
-34,
0,
3,
-37,
29,
-18,
61,
-8,
25,
-48,
22,
-3,
32
] |
M. J. Kelly, J.
This action was filed to recover the proceeds of an insurance policy that was never issued. The action was based on a conditional receipt given by the agent at the time the application for insurance was filed and an advance premium paid. The jury verdict was no cause of action. Judgment was entered thereon and plaintiff appeals.
On November 4, 1969, defendant’s agent solicited a life insurance application from Clayton J. Cartwright and his wife, Margie L. Cartwright, at their home. The Cartwrights signed an application for insurance with defendant, seeking a $20,000 face amount joint life insurance policy on their lives, and a term insurance policy on the lives of their children. The application consisted of two parts and contained a number of questions directed to Mr. and Mrs. Cartwright. Mrs. Cartwright testified she was asked only two questions: (1) whether she was pregnant, and (2) when she had last seen a doctor. Mr. Cartwright answered the questions pertaining to him. Immediately above the signatures of Mr. and Mrs. Cartwright on Part I of the application appears the following language:
"IT IS UNDERSTOOD AND AGREED (1) that the above statements and answers and those in any Part II and III required are complete and true to the best of my knowledge and belief and shall, together with this agreement, form the basis and become a part of any policy issued hereunder; (2) that except as otherwise provided in the attached receipt, the insurance hereunder applied for shall not take effect until a policy therefor is accepted by the owner and the first premium paid while the undersigned have no knowledge that the health, habits and occupation of the proposed insured, family member or second insured have not remained as described in the application; (3) that, to the extent permitted by statute, the proposed insured, family member or second insured waive(s) all rights governing disclosure of medical examination or treatment * * * .”
Immediately above the signatures of Mr. and Mrs. Cartwright on Part II of the application appears the following language:
"I hereby declare that all the statements and answers to the above questions are complete and true to the best of my knowledge and belief, and I agree that the foregoing together with this declaration shall form a part, designated as Part II, of the application for the insurance.”
Contemporaneously with the completion of the application, Mr. and Mrs. Cartwright both signed medical authorizations as follows:
"TO ANY PHYSICIAN, HOSPITAL OR CLINIC: I hereby request and authorize you to give MACCABEES MUTUAL LIFE INSURANCE COMPANY any information they request concerning the present and past physical condition of myself, my spouse, and any of my children. A photostatic copy hereof shall be as valid as the original.”
At the time of the application, an advance premium of $170.49 was paid with respect to the insurance applied for, and a conditional receipt was delivered to the Cartwrights. The relevant part of that receipt reads as follows:
■ "[I]f the Company at its Home Office shall be satisfied that on the latest of the dates of the completed Part I, Part II (if required), and Part III (if required) of the application, any of the individuals to be insured are insurable under the Company’s rules of that date, whether on a standard basis or not, then, * * *
"(a) life insurance, only on the lives of the individuals who are determined by the Company to be insurable on that date, is effective as of that date; * * * .
"If the Company shall be satisfied that any individual intended to be insured is uninsurable, then no life insurance is effective as to that individual and if all are uninsurable then the Company’s liability is limited to the return of the amount of advance payment.”
On November 10, 1969, defendant received the application of Mr. and Mrs. Cartwright at its home office. Thereafter, the following events occurred:
1. On November 11, 1969, defendant received a report from the Medical Information Bureau showing that a Clayton J. Cartwright had been reported as having collagen disease, abnormal heart and albuminuria.
2. On November 13, 1969, defendant forwarded an attending physician’s statement to Dr. Howard B. Appleman, the physician listed by Mr. Cartwright on the application, requesting medical information regarding Mr. Cartwright.
3. From November 14, 1969, to December 1, 1969, defendant had correspondence with Retail Credit Bureau regarding an erroneous entry in its November 14, 1969 report that Mr. Cartwright engaged in a "hazardous sport”.
4. On December 5, 1969, defendant hand delivered another attending physician’s statement to Dr. Appleman requesting medical information concerning Mr. Cartwright.
5. On December 18, 1969, Mr. Cartwright died.
6. On December 19, 1969, defendant wrote to its agent advising that defendant was still waiting for medical information from Dr. Appleman.
7. On December 23, 1969, prior to issuance or delivery of an insurance policy, defendant learned that Mr. Cartwright had died.
8. On January 6, 1970, defendant again wrote to Dr. Appleman advising him that his report was needed to permit Maccabees to determine whether Mr. Cartwright "was insurable on any basis at time of application”.
9. On January 12, 1970, Dr. Appleman called defendant and gave his report. The report related a substantial medical history, including rheumatic fever, possible collagen disease and pneumonia. It further stated: "he developed a greater rash * * * in September of 69 and the thought of a possible systemic lupus erythematosus became fixed in my mind. This was the reason why I did not feel I should report the situation to the insurance company at the time I received request for informa tion determining my patient’s eligibility for insurance.”
10. January 16, 1970, defendant, having decided that Mr. Cartwright was uninsurable at the time of the application, advised Mrs. Cartwright by letter that it was unable to offer any insurance and enclosed a check for the amount of the advance premium paid.
An autopsy performed on Mr. Cartwright revealed the cause of death to be severe pneumonia in both lungs and that he did have systemic lupus erythematosus.
At trial, plaintiffs claim was based on three theories: (1) that upon proof of the payment of the premium, issuance of the conditional receipt and death prior to notification by the defendant that the decedent was rejected for insurance, plaintiff should recover; (2) that upon the above proof, if the defendant unreasonably delayed in notifying of acceptance or rejection, that plaintiff should recover; and (3) that plaintiff should recover in any event unless the defendant established that it in good faith became satisfied that Clayton Cartwright was not on November 4, 1969 insurable on any basis whatsoever.
Under defendant’s underwriting rules as of November 4, 1969, a person suffering from systemic lupus erythematosus was not insurable on a standard basis or otherwise.
At trial, plaintiff offered certain exhibits which were received, read into the record responses to plaintiffs requests for admissions, and rested her case on that proof and the pleadings. Defendant then moved for a directed verdict as to all issues except insurance coverage under the conditional receipt and whether the receipt was voided by fraud in the application. This motion was granted and the trial proceeded on that basis. Coverage under the conditional receipt was contingent on defendant proving by a preponderance of the evidence that it made a good faith effort to determine Mr. Cartwright’s insurability as of the date of the application, November 4, 1969.
In support of its claim of good faith, defendant was allowed to introduce in evidence a transcript of an oral report made by Dr. Howard B. Apple-man, the doctor who had treated Mr. Cartwright. This exhibit was apparently reduced to writing by defendant’s vice-president, Mr. Vanderbeck, after having received a telephone call from Dr. Apple-man on January 12th. The trial court admitted this exhibit over plaintiffs objection, and we believe, improperly so. Plaintiff asserted as grounds for objection the physician-patient privilege. The trial court allowed the transcript, not for the truth of the matter contained therein, but to show that it acted in good faith in denying the application for insurance of plaintiffs decedent. The privilege is set out in MCLA 600.2157; MSA 27A.2157:
"No person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon: Provided, however, That in case such patient shall bring an action against any defendant to recover for any personal injuries, or for any malpractice, if such plaintiff shall produce any physician as a witness in his own behalf, who has treated him for such injury, or for any disease or condition, with reference to which such malpractice is alleged, he shall be deemed to have waived the privilege hereinbefore provided for, as to any or all other physicians, who may have treated him for such injuries, disease or condition: Provided further, That after the decease of such patient, in a contest upon the question of admitting the will of such patient to probate, the heirs at law of such patient, whether proponents or contestants of his will, shall be deemed to be personal representative of such deceased patient for the purpose of waiving the privilege hereinbefore created.”
We can find no support for the view that the privilege applies only where a party seeks to introduce the doctor’s statement as substantive evidence of the matters contained therein. There is much Michigan law to the contrary. For example, it has been held that the statute bars the use of privileged information for impeachment, for purposes of refreshing a witness’s recollection, for discovery purposes, and for purposes of rebutting a claim of insanity. It has been held that privileged information cannot be used as the basis for hypothetical questions, or for purposes of eliciting opinion testimony, or to show the testimonial incompetence of a witness. Our Court has assumed that the statute precludes the use of privileged information to show the medical condition of a party.
The privilege has been broadly construed. It bars the doctor from divulging what he has been told by his patient or revealing information he may have received in the course of treatment. It extends to judicial and quasi-judicial proceedings alike. It seems to us that the focus is not upon the use to which disclosure is put. The information is out of the hat whether its use is labeled substantive evidence or not. The trial court’s limitation of the use of the information did not amount to an enforcement of the statutory privilege, it amounted to an evasion. To treat the release of information as allowable for any purpose was a violation of the statute. We conclude that reversible error resulted.
Defendant concedes that Mr. Cartwright’s medical authorization did not constitute a waiver of his right at trial to invoke the privilege. That concession is eminently correct in light of Wohlfeil v Bankers Life Co, 296 Mich 310, 320; 296 NW 269 (1941):
"The blank form of proof of loss which was signed by plaintiff contained the following: 'Do you authorize the above named [Dr. H. C. Hill] or any other physician or practitioner consulted by the deceased or by whom he was attended during the last five years and who has information regarding the personal history, physical or mental condition of the deceased, to disclose the same and testify thereto?’ To this question plaintiff subscribed the answer 'Yes.’ Notwithstanding this concession obtained from plaintiff, under the circumstances it was not error on the part of the trial court to sustain objections made by her to any testimony of Doctor Hill as to matters of a privileged character. The law as administered by the trial court is provided by the statute. 3 Comp. Laws 1929, § 14216 (Stat. Ann. § 27.911). It cannot be changed or frittered away in the manner attempted in this case. Gilchrist v Mystic Workers, 188 Mich 466 (Ann Cas 1918C, 757) [154 NW 575 (1915)].”
Since the exhibit could not be permissibly introduced in evidence unless the privilege was waived, the only remaining question is whether the error was harmless. We believe the exhibit may have been determinative. With the exhibit in evidence, defendant could point to its reason for rejection. Without the exhibit defendant would be left with its claim of good faith unfortified except by the autopsy and the testimony of Dr. Climie, the pathologist. He was not asked to testify how long this condition existed, or whether it existed on November 4,1969. The cause of death was pneumonia.
Secondly, we find factual support for plaintiffs claim of unreasonable delay and believe the court erred in taking this issue from the jury by way of a directed verdict as to plaintiffs theory number two.
Where the insurance company accepts an initial premium at the same time it accepts the application for insurance and retains that initial premium during processing, it has an affirmative duty to act with reasonable promptness.
“Based on the doctrine that an application for insurance is a mere offer which must be accepted before a contract of insurance can come into existence, and that silence and inaction do not amount to an acceptance of an offer, the overwhelming weight of authority is to the effect that, at least in the absence of additional circumstances, no inference or presumption of acceptance which would support an action ex contractu can be drawn from mere delay or inaction by the insurer in passing on the application. But there appears to be a distinction drawn where the applicant paid the initial premium at the time the application was signed. Delay in acting on the application, along with a retention of the premium, under these circumstances is inconsistent with a rejection of the risk. Michigan has long held to this rule, it being originally established in the case of Robinson v United States Benevolent Society, 132 Mich 695 (102 Am St Rep 436) [95 NW 993 (1903)], where Justice Grant, writing for the Court, said (p 699):
" 'In insurance contracts of this character it is the duty of the company to act with reasonable promptness. Failing to reject within reasonable time, the law implies an acceptance.’ ” Gorham v Peerless Life Insurance Co, 368 Mich 335, 341; 118 NW2d 306 (1962).
While the factual context is materially different in Gorham, there the delay between application and formal action by the insurer was 37 days. In the case at bar it should not be said that the insurer in 73 days acted with reasonable promptness as a matter of law. That is a question of fact for the trier of fact. Reasonable men, it seems to us, could honestly reach a different conclusion and therefore as to this issue a directed verdict was inappropriate. Anderson v Gene Deming Motor Sales, Inc, 371 Mich 223, 229; 123 NW2d 768, 771 (1963), Sparks v Luplow, 372 Mich 198, 202; 125 NW2d 304, 306 (1963), Kucken v Hygrade Food Products Corp, 51 Mich App 471, 474; 215 NW2d 772, 773 (1974). There is evidence from defendant’s agency bulletin that even defendant company considered 73 days an unreasonable delay. The exhibit introduced by plaintiff reads:
"The maximum amount of time allowed for completion of a pending application will be 45 days from receipt in the home office. The maximum amount of time allowed for delivery of a prepaid policy will be 31 days.”
At the time the motion for directed verdict in favor of defendant was granted as to all issues except insurance coverage under the conditional receipt, and whether the receipt was voided by fraud in the application, evidence as to why Dr. Appleman delayed in responding to defendant’s request for information was not in the record. We do not attribute Dr. Appleman’s delay to one side or the other. We believe the delay could just as easily have been caused by the casual handling of the request for information by the defendant. Balanced against its own agency bulletin, a reasonable man could find that the delay was attributable to defendant’s inaction. When the defendant did finally act on the application by rejecting it, it gave no reason for rejecting the children and Mrs. Cartwright as applicants. Were they being as carefully considered and accorded as reasonably prompt consideration as the application of Mr. Cartwright? The jury might well have considered this treatment in the light of testing the good faith or reasonableness of the defendant’s conduct. The defendant knew on November 11, 1969 that Mr. Cartwright had a collagen disease. This information was supplied by the medical information bureau but this did not prompt any activity on the part of the defendant, such as calling for its own medical examination, and it is at least curious that the processing meandered along until the letter of January 16, 1970.
We do not find plaintiff’s other claims of error meritorious. We hold that the trial court did not err in denying plaintiff’s motion for a directed verdict or refusing to submit the matter to the jury on the theory that the advance payment coupled with death before determination or notification of rejection entitled plaintiff to recover. We also hold that the defense of fraud in the application was properly submitted to the jury. Defendant was not estopped from asserting that defense; it properly presented factual questions for jury determination. ‘
Reversed and remanded for a new trial at which the question of unreasonable delay should go to the jury and at which the transcript of the physician’s statement should not be admitted into evidence absent a waiver of the physician-patient privilege. Costs to plaintiff-appellant.
T. M. Burns, P. J., concurred.
People v Bland, 52 Mich App 649; 218 NW2d 56 (1974).
Franklin Life Insurance Co v William J Champion & Co, 350 F2d 115, 130; 26 ALR3d 1034 (CA 6, 1965) (interpreting Michigan Law).
Schechet v Kesten, 372 Mich 346; 126 NW2d 718 (1964).
People v Plummer, 37 Mich App 657; 195 NW2d 328 (1972).
Knoper v Burton, 12 Mich App 644; 163 NW2d 453 (1968), rev’d on other grounds, 383 Mich 62; 173 NW2d 202 (1970).
Rose v Supreme Court, Order of Patricians, 126 Mich 577; 85 NW 1073 (1901).
People v Lapsley, 26 Mich App 424; 182 NW2d 601 (1970).
Mattara v Mattara, 4 Mich App 246; 144 NW2d 668 (1966).
Briggs v Briggs, 20 Mich 34, 41 (1870).
Dick v Supreme Body of the International Congress, 138 Mich 372; 101 NW 564 (1904). | [
8,
-41,
-27,
-11,
-25,
-8,
22,
35,
-10,
-16,
-14,
-6,
29,
70,
-55,
23,
-7,
-54,
15,
-25,
-41,
9,
-43,
10,
21,
-32,
-11,
-13,
-21,
16,
7,
46,
-48,
-10,
20,
-32,
14,
10,
-1,
16,
-3,
-38,
43,
7,
-44,
-44,
-2,
-46,
25,
50,
80,
-27,
34,
-31,
-7,
10,
14,
3,
-13,
-13,
-35,
13,
10,
-11,
-10,
49,
-2,
50,
-8,
44,
14,
-21,
-32,
2,
-21,
0,
20,
-5,
-16,
-27,
9,
-32,
27,
-1,
-5,
42,
-2,
-17,
29,
30,
-62,
-14,
20,
-48,
-7,
22,
-41,
6,
-2,
52,
29,
-18,
-42,
-5,
-2,
60,
12,
-30,
-20,
15,
-36,
6,
-28,
4,
-4,
30,
26,
38,
-27,
-31,
-24,
12,
19,
-16,
-20,
22,
2,
-17,
2,
20,
11,
24,
-4,
16,
-81,
-6,
2,
-56,
17,
-46,
-24,
17,
0,
-50,
5,
28,
15,
-43,
-12,
-2,
0,
5,
-54,
17,
10,
4,
7,
-31,
27,
-107,
10,
-60,
22,
24,
-27,
-34,
26,
-7,
0,
0,
48,
-47,
8,
23,
6,
23,
85,
-9,
-16,
51,
-21,
9,
7,
57,
31,
-21,
23,
39,
-22,
-33,
36,
-64,
-16,
22,
10,
20,
-5,
29,
27,
-23,
-8,
-37,
51,
-16,
43,
15,
-37,
-11,
-33,
-29,
-8,
-15,
-64,
-51,
-1,
21,
17,
-51,
-13,
0,
-51,
26,
20,
14,
-44,
-41,
-74,
2,
-33,
-52,
-64,
-20,
3,
74,
-13,
19,
-25,
-32,
18,
23,
32,
8,
16,
-31,
60,
41,
-1,
-10,
1,
-2,
54,
0,
29,
35,
7,
-37,
17,
27,
-14,
22,
-47,
50,
-47,
18,
4,
-35,
10,
-32,
8,
23,
20,
6,
7,
-28,
-3,
-102,
-33,
38,
-8,
-40,
54,
16,
14,
-18,
-57,
-22,
1,
33,
14,
0,
-15,
-45,
22,
-54,
9,
-47,
-1,
4,
-29,
-13,
18,
-1,
62,
-17,
0,
-27,
-11,
-37,
-22,
-26,
-22,
25,
-7,
-24,
44,
-103,
-1,
-10,
19,
45,
54,
4,
23,
27,
-11,
-89,
31,
-2,
-36,
41,
-50,
-25,
-13,
8,
18,
-38,
13,
22,
39,
36,
34,
8,
-42,
-11,
-38,
49,
39,
-30,
11,
-37,
-56,
-21,
23,
0,
-43,
66,
29,
-49,
-24,
23,
-9,
58,
-20,
1,
41,
25,
-5,
-26,
14,
45,
30,
-31,
5,
-93,
-14,
-7,
-19,
70,
-25,
24,
3,
-43,
-1,
19,
10,
0,
5,
6,
-18,
-6,
-33,
-27,
29,
33,
-39,
-48,
-45,
-17,
3,
27,
0,
30,
-2,
-14,
-41,
31,
-1,
-44,
-29,
-6,
-20,
13,
30,
13,
24,
26,
47,
21,
5,
-50,
22,
14,
2,
-38,
-47,
-27,
21,
32,
-14,
-48,
-23,
56,
22,
-18,
57,
1,
-12,
7,
29,
2,
-41,
15,
-44,
38,
3,
-39,
-31,
-17,
21,
-23,
18,
55,
2,
34,
-12,
38,
14,
-10,
-48,
-80,
18,
-19,
29,
-51,
22,
4,
-33,
-1,
14,
-19,
32,
20,
-28,
0,
-13,
7,
-7,
7,
-40,
-46,
-27,
39,
0,
-33,
29,
-28,
31,
8,
-6,
-27,
37,
-37,
-22,
0,
-34,
-24,
-28,
-2,
-48,
-59,
-22,
-9,
73,
54,
22,
-19,
-31,
-1,
20,
-2,
-20,
0,
-13,
-42,
9,
53,
-14,
-18,
2,
33,
-23,
-16,
-66,
4,
-20,
-53,
26,
-7,
25,
-6,
14,
-4,
36,
-72,
-19,
-4,
-34,
41,
-10,
-27,
-3,
46,
-4,
31,
-31,
-2,
8,
-12,
39,
1,
-19,
-20,
12,
48,
22,
21,
18,
-14,
1,
-15,
-40,
18,
23,
9,
-18,
-29,
25,
-11,
19,
37,
-35,
3,
8,
13,
-35,
-2,
11,
-8,
-8,
6,
3,
-2,
-44,
-23,
-18,
23,
26,
51,
-16,
-25,
-57,
-12,
1,
-23,
30,
9,
13,
-57,
-61,
-22,
-50,
28,
-66,
-17,
-28,
-22,
-3,
57,
13,
-31,
3,
36,
-15,
11,
-35,
-16,
33,
-44,
-3,
-18,
2,
69,
17,
-9,
-11,
38,
6,
52,
33,
-16,
68,
-35,
25,
-49,
4,
-31,
-32,
60,
-21,
-30,
24,
0,
5,
40,
2,
0,
43,
-46,
28,
-21,
-22,
10,
20,
37,
-29,
-4,
-36,
28,
-38,
30,
-9,
-55,
16,
31,
21,
40,
62,
2,
-35,
3,
24,
-35,
14,
28,
66,
36,
35,
71,
28,
47,
-31,
-24,
44,
20,
-11,
-21,
-35,
-21,
-20,
0,
-23,
8,
-13,
-23,
-2,
45,
-12,
62,
62,
-6,
20,
-37,
-12,
0,
19,
7,
-28,
0,
24,
23,
-16,
49,
4,
-45,
-35,
38,
8,
13,
1,
-54,
-19,
-8,
35,
-19,
-16,
23,
68,
-5,
18,
0,
0,
0,
-24,
7,
-57,
-4,
61,
-16,
18,
-8,
36,
12,
36,
60,
-4,
7,
-36,
14,
49,
36,
10,
-23,
-41,
-8,
14,
6,
0,
-10,
-16,
-33,
-4,
10,
14,
3,
-35,
33,
-38,
14,
20,
-43,
-29,
4,
23,
-55,
-43,
54,
56,
-30,
-19,
-20,
0,
37,
-13,
-3,
-6,
-5,
11,
-34,
12,
27,
3,
78,
3,
0,
18,
25,
17,
22,
11,
-3,
9,
23,
-31,
-11,
9,
-16,
-6,
25,
5,
-40,
6,
-28,
-3,
-21,
-40,
-12,
-27,
-32,
27,
-2,
3,
23,
-12,
-57,
-20,
-11,
19,
4,
4,
-33,
-34,
-11,
8,
46,
-2,
2,
14,
-53,
-61,
-21,
13,
30,
-28,
28,
29,
-23,
-38,
-7,
44,
-11,
20,
-68,
66,
64,
-17,
-17,
-29,
-9,
20,
1,
4,
-20,
-10,
-8,
54,
16,
0,
23,
-3,
-35,
-32,
-53,
-56,
-22,
17,
72,
17,
-40,
40,
-34,
-21,
29,
0,
30,
-56,
-27,
37,
-5,
-46,
-1,
86,
63,
17,
-7,
-13,
-29,
-6,
22,
-15,
7,
0,
-41,
-25,
37,
-41,
24,
32,
9,
10,
-11,
39,
-20,
35,
-10,
0,
51,
42,
13,
-8,
23,
32,
-46,
5,
-22,
39,
12,
73,
-3,
32,
16,
17,
26,
12,
71,
-11,
-26,
4,
39,
-51,
17,
24,
-7,
-4,
4,
-83,
15,
18,
-26,
14,
9,
39,
-42,
50,
29,
35,
23,
-8,
19,
-47,
31,
-10,
-14,
-42,
-33,
-1,
-11,
26,
3,
15,
0,
71,
5,
4,
-35,
-30,
-33,
44,
10,
-39,
-7,
48,
14,
-27,
14,
-34,
69,
24,
-46,
-10,
1,
1,
17,
9,
10,
65,
13,
-22,
38,
-2,
-21,
-1,
-5,
-13,
16,
-4,
41,
-13,
25,
27,
-43,
-6,
17,
22,
-12,
-12,
16,
-38,
5,
2,
-63,
-25,
-17,
20,
-15
] |
Bronson, J.
Plaintiff, Robert A. Beaumont, brought suit against defendants for invasion of privacy. Defendants moved for summary judgment, but the trial judge ruled that the plaintiff raised sufficient issues as to material facts to take the case to the jury. Defendants appeal from that ruling by leave granted.
Robert Beaumont was employed as a labor safety supervisor for the Michigan Department of Labor for a number of years prior to November 20, 1972. Defendant Barry Brown was Director of the Department of Labor at that time, and defendant Arthur Zink was the personnel director. On November 20, 1972, defendant Zink discharged plaintiff upon the recommendation of plaintiff’s immediate supervisor. The reasons given were as follows: (1) that plaintiff was absent from his job for a month of military reserve duty without approval of, or conversation with, his supervisor; (2) that plaintiff made no plans for the continuation of the training of a new employee while he was gone; and (3) that plaintiff made no plans for the supervision of field personnel while he was gone.
Plaintiff appealed his dismissal to the Michigan Civil Service Commission, and hearings were held on January 31 and February 2, 1973. A final hearing was scheduled for March 1, 1973. On February 14, 1973, between the second and final hearings, defendant Zink wrote a letter to the "U. S. Army Reserve Components, Personnel and Administrative Center, St. Louis, MO 63155”, addressed to the attention of a Lt. Col. W. T. Prescott. That letter is the basis for plaintiffs invasion of privacy claim, and is reproduced in the appendix to this opinion.
Further hearings were held on March 1 and 2, 1973, and a reply letter from Lt. Col. Prescott was submitted to the hearing officer on March 10, 1973. That letter described the general activities of plaintiff’s reserve unit, and contained the following information: (1) that plaintiff is required to perform only 12 days of training per year, and Federal statutes would only require his employer to permit him to be absent that number of days; (2) that Army regulations require a reservist to notify his employer of any scheduled military training requiring him to be absent from his job; and (3) that "[t]here is nothing at hand which indicates that Colonel Beaumont has been engaged in any significant duties of a classified nature”. Copies of plaintiffs orders were attached to the letter for comparison with the allegedly altered copies submitted to his employer.
The Civil Service Commission hearings officer upheld the dismissal. He ruled that plaintiff gave insufficient notice to his employer of his upcoming absence due to reserve duty, and that plaintiff failed to make proper provisions for the supervision of his unit while he was gone. The hearings officer also found that there was no valid basis for deletion of part of plaintiff’s orders, and that he did so for the purpose of keeping his employer from knowing his itinerary.
Plaintiff filed a complaint in circuit court alleging that he had incurred damages as a result of the invasion of his privacy by defendants. Specifically, plaintiff claimed that his military records were "flagged” because of the letter, resulting in an investigation of his activities by the Army. Although he was eventually cleared of all charges, plaintiff stated that he was removed from active duty training programs during the time his records were "flagged”, causing him to lose active duty pay and to suffer various financial setbacks. Plaintiff also claimed damages from "embarrassment to his wife and family and the mental anxiety of defending himself as a result of the defendants’ conduct”.
I. Standard of Review
Defendants in their motion for summary judgment alleged that the complaint "fails to state a legally sufficient claim or cause of action upon which relief can be granted”. That language suggests a motion under GCR 1963, 117.2(1). However, the parties submitted affidavits concerning the issues in that motion, and the trial judge made his decision based on factors relevant only to a motion under GCR 1963, 117.2(3). Since we find that there will be no prejudice to either party, we shall treat this as a subsection (3) motion, Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), Birch Run Nursery v Jemal, 52 Mich App 23, 24, fn 1; 216 NW2d 488 (1974), modified, 393 Mich 775; 224 NW2d 282 (1974).
When summary judgment is claimed under GCR 1963, 117.2(3), trial may be avoided only if an essential element of proof of the claim or defense cannot be supplied, Rizzo v Kretchmer, 389 Mich 363; 207 NW2d 316 (1973). The courts are liberal in finding that a genuine issue of material fact does exist, and must give the benefit of any reasonable doubt to the party opposing the motion for summary judgment, Rizzo, supra, 389 Mich at 372. We must decide, therefore, whether on the basis of the pleadings and affidavits, assuming that the facts asserted by plaintiff are true, an element necessary to prove the claim of invasion of privacy is clearly missing and cannot be supplied.
II. Invasion of Privacy in General
Michigan has long recognized that an individual has a right to privacy to be protected by the law of torts. Prosser cites the Michigan case of De May v Roberts, 46 Mich 160; 9 NW 146; 41 ALR 154 (1881), as the first American case to grant relief because of an invasion of such a right. Prosser, Torts (4th ed), § 117, p 802, fn 2. In fact, it was Justice Cooley who first coined the term "the right to be let alone”, Cooley, Torts (2d ed), p 29. We view invasion of privacy claims, then, as being historically recognized as necessary to protect a right of highest importance.
The courts have found it necessary to solidify these early general pronouncements on the right of privacy into specific rules. This movement was particularly in recognition of the fact that the tort of invasion of privacy overlaps with the torts of defamation and intentional infliction of mental distress, without many of the defenses, limitations, and safeguards provided in those other areas. See Prosser, Privacy, 48 Cal L Rev 383, 422-423 (1960). "Invasion of privacy” as it has developed is actually a categorization of four separate causes of action:
"The early cases in all jurisdictions were understandably preoccupied with the question whether the right of privacy existed at all, and gave little or no consideration to what it would amount to if it did. Today, with something over four hundred cases in the books, some rather definite conclusions are possible. What has emerged is no very simple matter. As it has appeared in the cases thus far decided, it is not one tort, but a complex of four. To date the law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff 'to be let alone.’ ” Prosser, Torts (4th ed), § 117, p 804.
Consequently, to recover, a plaintiff must do more than allege generally that his privacy has been invaded — he must show that the invasion complained about fits within one of the four types recognized as justifying redress.
The four types of invasions constituting the tort of invasion of privacy are as follows:
"1. Intrusion upon the plaintiffs seclusion or solitude, or into his private affairs.
"2. Public disclosure of embarrassing private facts about the plaintiff.
"3. Publicity which places the plaintiff in a false light in the public eye.
"4. Appropriation, for the defendant’s advantage, of the plaintiffs name or likeness.”
Prosser, Privacy, supra, at p 389.
Plaintiff does not allege appropriation, and that category is clearly not relevant here. Therefore, we shall consider individually the three other types of invasions of privacy for which a plaintiff may recover damages.
III. Intrusion
Plaintiff alleges that the letter here intruded upon his private affairs. Intrusion as a branch of the right to privacy has three elements: (1) the existence of a secret and private subject matter; (2) a right possessed by plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter by defendant through some method objectionable to the reasonable man. Earp v Detroit, 16 Mich App 271, 276-277; 167 NW2d 841 (1969), Bradshaw v Michigan National Bank, 39 Mich App 354, 356; 197 NW2d 531 (1972).
It is clear that this area of the right to privacy is concerned with the manner of procuring information as well as the nature of the information obtained. Prosser gives these examples of unreasonable intrusions:
"An obviously different form of invasion of privacy consists of intrusion upon the plaintiff’s physical solitude or seclusion, as by invading his home or other quarters, or an illegal search of his shopping bag in a store. The principle has, however, been carried beyond such physical intrusion, and extended to eavesdropping upon private conversations by means of wire tapping and microphones; and there are decisions indicating that it is to be applied to peering into the windows of a home, as well as persistent and unwanted telephone calls.” Prosser, Torts (4th ed), § 117, pp 807-808. (Footnotes omitted.)
Although plaintiff alleges that there has been an intrusion into his private life in a general sense, he does not appear to us to be claiming recovery under this type of invasion of privacy. The facts presented by plaintiff simply fail to show any improperly intrusive means employed by defendants to secure information about plaintiff. The information given to the Army was simply available as part of the employer-employee relationship. The information requested from the Army was secured by merely writing a letter. That method is not of the type covered by this cause of action, for the method itself is commonly used and quite reasonable. Plaintiff in reality objects to the allegedly false and scurrilous comments, an objection not going to the method used to secure information. Summary judgment should have been granted as to this type of invasion of privacy claim.
IV. Public Disclosure of Private Facts
The elements of this second branch of invasion of privacy are obvious from its name — it was developed to avoid disclosure of embarrassing private facts to the public. The publicity requirement has been variously stated as "unnecessary publicity”, Hawley v Professional Credit Bureau, Inc, 345 Mich 500, 507; 76 NW2d 835 (1956), and "communication * * * to the public in general or * * * to a large number of people”, Reed v Ponton, 15 Mich App 423, 426; 166 NW2d 629 (1968). However, all the cases recognize a general requirement of communication to the general public as opposed to a few individuals, with the fine lines to be drawn on a case-by-case basis. The second requirement is satisfied if the publicity "lift[s] the curtain of privacy on a subject matter that a reasonable man of ordinary sensibilities would find offensive and objectionable”, Reed v Ponton, supra, at p 426.
Plaintiff in his affidavit in opposition to summary judgment does not allege disclosure to the public in general. Instead, he states that "there are 'no secrets in State government’ because someone had to type the original letter, handle it, mail it and the same goes for Army employees in the various offices and headquarters receiving the letter”. He goes on to aver that he learned of the letter through rumors, showing that its contents had been "leaked” through lack of security. Finally, plaintiff claims that two unsigned letters distributed to professional colleagues referred to the derogatory material contained in the original letter.
Assuming plaintiff can prove the facts he sets forth in his affidavit, an insufficient showing of public disclosure has been made out by him. Supportive personnel of the sender and receiver of a letter do not constitute the "general public” or a "large number of persons”. If we held otherwise, a cause of action intended to prevent widespread disclosure of private facts could be turned against almost any two members of large organizations writing letters to each other. Proof that information in the letter was leaked to outsiders does not change the result. Plaintiff alleges that only a few persons received the leaked information. More importantly, plaintiff cites no facts which lead to a reasonable inference that defendants knew or had reason to know the letter would be passed on or even read by anyone other than Lt. Col. Prescott. Since plaintiff has failed to allege facts that would satisfy the publicity requirement, summary judgment should have been granted as to this cause of action.
It should also be noted that the facts disclosed to the Army Reserve do not seem to be "private” ones. This branch of invasion of privacy does not look to whether the information conveyed is true or false, but whether it is something an ordinary person has a right to keep private. The clear thrust of the letter is that plaintiff manipulated his reserve duty to his employer’s detriment and submitted false health reports to either the Army or his employer. Those facts relate to job performance, and defendants had a right, if not a duty, to convey them to the Army. If the facts were indeed false, they would still be non-private, although another type of invasion of privacy claim may be available to redress any injuries to plaintiff.
V. False Light in the Public Eye
The final branch of the tort of invasion of privacy of possible relevance here is false light. While the precise elements of this cause of action are unclear, Prosser, Torts (4th ed), § 117, pp 812-814, in general there must be falsity or fiction concerning plaintiff, with the same degree of public disclosure as required for "public disclosure of private facts”. Reed v Ponton, supra, p 426. Commonly, this tort is found where defendants publicly falsely attribute some opinion or statement to plaintiff or use plaintiff’s picture to illustrate some book or article with which he has no reasonable connection. However, it applies to any falsity, which the reasonable man would find objectionable, presented to the general public. Prosser, Torts (4th ed), § 117, p 813.
We have no problems in finding that if the statements in the letter are false they would be objectionable to the reasonable man. However, as discussed under section IV above, there is insuffi-: cient publication. Plaintiff, then, failed to make out a case sufficient to go to the jury on the "false light” theory of invasion of privacy.
VI. Conclusion
We decide only that plaintiff did not allege sufficient facts in his pleadings and affidavits to allow the case to go to the jury on any recognized theory of invasion of privacy. We are not passing on any possible defamation claim arising out of this set of facts. Our opinion simply stands for the proposition that the rather narrow invasion of privacy cause of action cannot be used to right any wrongs plaintiff may have suffered through the acts of these defendants.
We do not reach the two other grounds upon which defendants based their summary judgment motion — governmental immunity and the absolute privilege with respect to statements made by public officials in the performance of their duties. Discussion of those issues are unnecessary to the result here.
Reversed and remanded, with instructions for the trial judge to enter summary judgment under GCR 1963, 117.2(3) in favor of defendants on the invasion of privacy cause of action. Costs of this appeal to defendants.
APPENDIX
STATE OF MICHIGAN
DEPARTMENT OF LABOR
DEPARTMENT OF LABOR BUILDING,
300 EAST MICHIGAN AVENUE
LANSING, MICHIGAN 48913
February 14,1973
AGUC- TAD
U.S. Army Reserve Components
Personnel and Administration Center
St. Louis, MO 63155
Attention Lt. Col. W. T. Prescott
Dear Sir:
The Michigan Department of Labor has for several years been trying to deal with Mr. Robert A. Beaumont, who was considered to be an extremely disloyal and insubordinate employee.
Mr. Beaumont is a Lieutenant Colonel in the Army Reserve, assigned as a mobilization designate to G-3, 5th Army Headquarters, Fort Sam Houston, and has used his reserve status in an abusive and manipulative manner.
Through the years Mr. Beaumont has taken what we consider to be an excessive amount of time off for active duty training. He has withheld information from his employer and when pressed for justification has characterized his military status as highly secret and refused to show orders. In fact, he would not even tell us where he was assigned. It was only recently that we learned that he was assigned to 5th Army at Fort Sam Houston.
The last instance occurred in late October and early November of this last year, when Mr. Beaumont left for a total of one month without proper advance notice to his supervisor and without making any provisions for the supervision of his unit for the period that he was to be gone.
He dropped a one week itinerary on the desk of his supervisor’s secretary on his way out and had his wife bring in additional one week itineraries on the Friday of the subsequent weeks. Mr. Beaumont had told his secretary that he would be gone for a month, back for one week and then gone again for a week on military leave but not to tell his supervisors if they should ask. Upon his return Mr. Beaumont was dismissed because of abandonment of duties and dereliction of supervisory responsibilities with the Michigan Department of Labor.
One week of the month that he was gone involved the National Safety Congress in Chicago, Illinois. Mr. Beaumont had been informed that he was not to attend as a representative of the Department of Labor because frankly his prior conduct had led us to believe that he would not represent the best interests of the department. He went any way and later produced military orders for that week. Attached is a xeroxed copy of the orders that he presented to the department. As you can see dates, order numbers and other information have been blanked out. At the Civil Service hearing regarding his dismissal Mr. Beaumont presented at least two other versions of this order that appeared to have been altered. We now wonder if the orders are official at all and if so to what extent they have been altered by Mr. Beaumont. We would greatly appreciate your verification concerning the authenticity of the orders and if possible providing us with a copy of the original.
In 1972 alone, Mr. Beaumont has claimed a total of 32 days of active duty training. There has been a total of 54 days that we can identify since 1969. There may have been more but we cannot determine because he has on occasion used annual leave days for military purposes. It would, be greatly appreciated if you could verify whether or not he actually had orders for the following dates:
1969— May 5 through 16
1970— May 4 through 15
1971— September 23 and 24
1972— April 12 through 21
July 31 through August 2
September 21 and 22
October 24 through 27
October 30 through November 3
November 6 through 17
Mr. Beaumont made a number of statements concerning military procedures and policies at the Civil Service hearing which I have reason to question. The Civil Service hearing will be continued on March 1, 1973, and because I anticipate that Mr. Beaumont will give further testimony on military policy or may even bring a witness who he may try to characterize as a military expert, we would very much like to receive in writing the official U.S. Army Reserve policy concerning active duty training requirements. Are there minimum or maximum days of training required? Are they scheduled at precise times or is there flexibility in scheduling? What is the reporting responsibility of the reservist to his employer? What is the obligation of the employer in agreeing to precise times and dates requested for required training days? Are we required to approve additional days beyond the annual requirement?
Mr. Beaumont would have us believe that he has no control over the scheduling of his duty training and has no advance notice as in the instance of the last situation of an entire month that he only knew one week at a time that he would be gone.
I think that you can recognize from the above the kind of problem that we have been having with this man and the kind of information that we need in order to defend our action against him. We are not experts on military matters here in the Department of Labor nor do we have any need to be and that is why we are coming to you, the experts, for advice.
The Department of Labor employs many veterans, reservists and members of the National Guards. As part of our personnel philosophy we recognize and safeguard the employment rights of military personnel. We have always tried to be cooperative with the employee and the military in the scheduling of the duty training. We have never had any problem with any other employee except Mr. Beaumont. All of the others seem to have plenty of advance notice and can give us time to adjust schedules and work loads in order to accommodate their training requirements without disrupting the orderly operation of the department. Only Mr. Beaumont disappears for a month at a time and later tells us that he was on military leave and that his duty is so secret and delicate that he cannot discuss it.
One other technique used by Mr. Beaumont when he chooses not to take direction or follow instructions, concerns his health. Although this item has nothing to do with the dismissal I think it significant enough to mention. Mr. Beaumont has presented statements from various doctors to require that he be allowed to travel in his air conditioned Mercedes rather than in a state car. He is unable to fly; he is unable to get up early; he is unable to go into dirty or dusty industrial establishments, etc. We have even received statements that his condition is so delicate that he could keel over at anytime. It would lead us to wonder how an individual with such delicate health could pass any army physical to remain in the reserves.
As I have already mentioned the Civil Service hearing will be continued on March 1, 1973, and I would greatly appreciate receiving your reply prior to that date if at all possible.
Thank you for your assistance.
Sincerely,
s/Arthur J. Zink
Personnel Director | [
25,
-61,
0,
41,
19,
-5,
-38,
-18,
-20,
31,
34,
-19,
55,
2,
-6,
-9,
0,
11,
-1,
-40,
10,
-2,
45,
44,
-2,
-32,
-21,
25,
-63,
4,
-21,
-6,
2,
-46,
31,
-35,
85,
-57,
-2,
44,
11,
4,
17,
-46,
-47,
-47,
18,
37,
6,
2,
59,
63,
-9,
25,
10,
-44,
22,
-35,
72,
-10,
-97,
29,
63,
-41,
19,
-10,
-11,
44,
-25,
4,
-20,
-65,
-48,
-28,
-14,
-63,
-7,
8,
5,
5,
-1,
-31,
-5,
-9,
-10,
23,
39,
13,
-7,
48,
-17,
0,
-48,
-46,
-4,
-4,
-23,
-10,
58,
-11,
-12,
33,
7,
22,
41,
-8,
-18,
-60,
-17,
-52,
64,
1,
21,
10,
-5,
-52,
38,
13,
10,
-47,
-18,
14,
46,
-25,
17,
-14,
7,
-26,
35,
39,
22,
1,
10,
-36,
-53,
-22,
63,
-37,
-5,
-62,
-43,
13,
42,
5,
32,
29,
-33,
7,
58,
-27,
2,
-17,
6,
30,
-13,
31,
-20,
26,
0,
-13,
12,
-23,
-1,
3,
21,
-11,
-19,
45,
9,
-17,
20,
31,
11,
-14,
-15,
13,
24,
62,
24,
-19,
-56,
-51,
-14,
-30,
-23,
-37,
-16,
-7,
-17,
41,
31,
-35,
53,
32,
48,
37,
-24,
47,
12,
-21,
7,
-27,
28,
-4,
5,
-7,
70,
-20,
-21,
30,
6,
25,
28,
-66,
-49,
-27,
8,
-14,
-6,
-8,
-24,
-47,
-39,
-7,
-20,
-7,
-47,
-4,
-15,
13,
44,
-35,
43,
38,
-31,
-36,
66,
-16,
46,
24,
-44,
8,
26,
-48,
16,
-56,
-60,
-25,
26,
-15,
29,
16,
-52,
-19,
-42,
-51,
-48,
8,
23,
52,
-42,
9,
-13,
55,
12,
-2,
3,
17,
4,
-26,
-25,
0,
6,
-48,
-19,
-19,
5,
20,
9,
-1,
-14,
23,
-52,
-8,
-61,
-43,
31,
-36,
4,
-17,
9,
-26,
-34,
-29,
-8,
-10,
34,
61,
16,
43,
3,
3,
-21,
-17,
-51,
-11,
-40,
-61,
21,
9,
15,
36,
36,
-31,
-1,
11,
10,
22,
10,
-54,
-41,
10,
0,
2,
-49,
-17,
0,
7,
9,
-10,
21,
-15,
-24,
68,
-12,
-11,
2,
-38,
28,
21,
8,
9,
25,
-5,
-5,
-15,
12,
6,
28,
-24,
3,
32,
20,
-4,
8,
32,
-16,
-22,
-40,
-16,
20,
-47,
-55,
-8,
-8,
21,
-52,
-34,
77,
1,
-41,
-28,
-10,
-12,
-20,
9,
19,
-65,
25,
49,
-17,
4,
29,
24,
-36,
-26,
-28,
-11,
29,
6,
-44,
-35,
-21,
38,
-24,
2,
74,
43,
27,
12,
5,
16,
-21,
34,
-5,
-9,
-5,
-7,
-10,
10,
-10,
27,
28,
73,
6,
3,
32,
27,
38,
-36,
42,
9,
-25,
-22,
25,
11,
-8,
34,
40,
8,
10,
-26,
-17,
-84,
-58,
2,
-34,
-30,
11,
29,
-45,
13,
-66,
8,
2,
-1,
-35,
49,
47,
-24,
-29,
58,
-24,
8,
-79,
9,
26,
2,
-55,
22,
-19,
-25,
-21,
-62,
-1,
47,
-30,
-9,
14,
9,
32,
-6,
-5,
25,
-55,
-39,
31,
10,
9,
-7,
5,
32,
12,
35,
-43,
10,
15,
-25,
49,
57,
28,
10,
-21,
38,
-1,
43,
-11,
6,
6,
11,
11,
9,
-5,
8,
70,
-12,
11,
-15,
15,
27,
-26,
-29,
2,
22,
-1,
19,
5,
-10,
33,
-6,
22,
-13,
62,
4,
-35,
29,
2,
-8,
-39,
21,
69,
2,
56,
-58,
41,
-27,
16,
-12,
13,
-39,
25,
-17,
13,
60,
32,
-24,
-47,
33,
33,
8,
23,
0,
20,
36,
-13,
18,
28,
3,
12,
0,
-38,
-5,
15,
10,
-12,
8,
-36,
78,
23,
-22,
7,
34,
10,
12,
42,
60,
45,
3,
-65,
-44,
33,
8,
-14,
-19,
-19,
-85,
43,
-22,
-10,
-53,
-25,
-49,
-46,
-22,
42,
24,
1,
-32,
-14,
35,
37,
-43,
-40,
34,
11,
-6,
-11,
51,
28,
-21,
4,
-6,
24,
-26,
-23,
-7,
-11,
-18,
60,
6,
-13,
-1,
-36,
17,
-8,
10,
10,
12,
-5,
-11,
-5,
-11,
43,
-42,
42,
-31,
36,
-4,
-15,
-13,
52,
12,
0,
9,
-45,
-89,
42,
-17,
-4,
17,
3,
28,
62,
38,
22,
-36,
2,
-15,
39,
-6,
-33,
8,
-2,
13,
-6,
-1,
-57,
-50,
9,
-29,
-4,
48,
-23,
68,
-3,
-2,
20,
-34,
-22,
-16,
-11,
-1,
-19,
17,
25,
17,
55,
19,
-14,
-22,
29,
5,
-28,
-13,
-47,
-45,
-34,
-10,
10,
-11,
-55,
-3,
12,
2,
17,
33,
-42,
-19,
-21,
62,
-21,
60,
55,
2,
32,
-36,
-12,
-22,
0,
30,
-24,
34,
4,
1,
0,
-5,
-25,
-6,
-29,
-22,
-10,
86,
-15,
-8,
-19,
-32,
0,
1,
-18,
-11,
27,
-26,
20,
-12,
29,
30,
27,
-3,
-15,
59,
-4,
-6,
-40,
50,
-7,
27,
16,
1,
-47,
31,
40,
10,
20,
-46,
-35,
-34,
-58,
13,
45,
5,
-56,
19,
-15,
-27,
-56,
18,
5,
21,
-14,
22,
3,
32,
-29,
-14,
-10,
11,
-26,
-30,
16,
25,
-42,
-49,
-7,
-28,
-11,
43,
38,
-20,
-13,
-3,
-4,
3,
15,
38,
-5,
-13,
5,
-27,
-12,
5,
-14,
-26,
7,
-25,
-47,
-12,
-26,
2,
-23,
9,
6,
33,
27,
-6,
-34,
13,
7,
-23,
10,
-6,
-2,
5,
18,
13,
-2,
1,
-29,
-34,
8,
19,
7,
11,
1,
8,
17,
11,
-39,
-15,
21,
-13,
6,
-2,
-42,
-5,
29,
5,
20,
-37,
-10,
-48,
-34,
12,
-17,
-18,
-12,
16,
-29,
-34,
53,
35,
7,
10,
40,
20,
-70,
-6,
2,
-13,
22,
4,
15,
-11,
5,
-65,
24,
32,
34,
22,
-7,
-14,
23,
64,
-14,
49,
-11,
29,
42,
29,
-16,
-26,
33,
21,
-4,
-6,
24,
46,
-13,
9,
-18,
33,
-22,
-7,
-58,
10,
5,
45,
-60,
55,
22,
-28,
6,
-16,
7,
-39,
-7,
-7,
-11,
-15,
5,
46,
47,
-72,
-19,
-52,
15,
19,
21,
-32,
1,
33,
-23,
-20,
-33,
20,
-31,
8,
-64,
-2,
14,
16,
-8,
-14,
33,
23,
-49,
19,
-21,
-21,
2,
-42,
-26,
-5,
9,
8,
-14,
18,
-2,
8,
-32,
-38,
46,
-22,
-13,
4,
29,
11,
-39,
74,
-25,
-10,
-14,
-44,
-15,
21,
24,
5,
-42,
-17,
2,
-15,
53,
35,
-18,
31,
0,
8,
-14,
6,
39,
71,
-35,
-44,
-31,
22,
-9,
17,
23,
-29,
-43,
29,
12,
-16,
5,
-10,
-10,
9,
1,
5,
-15,
-30,
-48,
24,
9,
36
] |
T. M. Burns, P. J.
This is what is commonly known as a conflict-of-laws case. Both plaintiffs were granted leave to appeal and the cases were consolidated by order of this Court on March 26, 1975. For purposes of this appeal, we shall set forth the following "Concise Statement of Facts and Proceedings”, certified by the trial court and stipulated to by counsel in the Branyan case as the statement of facts which governs this appeal:
"On August 11, 1970, Alpena Flying Service, Inc., a Michigan corporation, and The Detroit Edison Company, a corporation organized and existing concurrently under the laws of Michigan and New York with its principal office and facilities in Michigan, entered into a contract in Michigan under which Alpena was to provide air passenger service to Edison.
"Alpena was in the business of providing air taxi-charter service primarily to Michigan based companies (e.g., Michigan Bell Telephone, Chrysler Corporation, The Detroit News) and Michigan citizens (e.g., executives of said companies). Alpena flights routinely originated and returned or terminated in Michigan with Michigan residents making up the principal passenger manifest.
"On October 16, 1971, pursuant to said contract, Alpena left Detroit City Airport on a flight to Hot Springs, Virginia. Aboard said plane were four passengers, including plaintiff’s decedent who was employed by an Edison subsidiary in Michigan. The passengers were being flown to Virginia for a meeting with Walker Cisler, Chairman of the Board of Detroit Edison; and the flight was intended to return to Detroit.
"The plane crashed in Hot Springs, while attempting to land, killing all passengers and crew. The crew consisted of a pilot and co-pilot, both Michigan citizens. The pilot is survived by a Michigan widow and children. The co-pilot’s parents and next of kin are Michigan citizens.
"The four passengers were:
"Charles E. Branyan, a Michigan citizen survived by a Michigan widow and two Michigan children.
"Myron Beekman, a Michigan citizen who left a widow and four children, including two minors, all of whom with the exception of the eldest child are Michigan citizens.
"Kozo Odajima, who had resided in Michigan for more than a year immediately preceding his death, with his wife and minor child.
"Yoshimichi Hori, who was aboard the plane by virtue of business he had been and was conducting with Michigan corporations. '
"The accident has resulted in three wrongful death actions in Michigan courts; the instant case, one by the Estate of Hori in Wayne County Circuit Court and one by the Estate of Beekman in Oakland County Circuit Court. Each suit contains counts in negligence and breach of contract.
"At the time of his death, Charles E. Branyan was 46 years old and had annual wage and fringe benefits in excess of $27,000. Myron Beekman was 50 years old at the time of the accident and had annual wages and fringes of approximately $40,000. The Ad Damnum clauses with respect to each count in all suits are in excess of $75,000.
"Virginia statutes Annotated, Sec. 8-363 limits the amount of damages that may be awarded in a wrongful death action to: out-of-pocket expenses for hospital, medical and ambulance service expenses; $500 for funeral expenses; $25,000 for sorrow and mental anguish; and $50,000 for loss of probable earnings, care, attention and society. The Michigan wrongful death statute, MCLA 600.2922 under which this action is brought, contains no limitations on the amount of damages that may be awarded.”
In each case, the defendant’s motion to reduce the plaintiffs’ ad damnum clauses to $75,000 was granted, each trial court holding that the law of Virginia, the place where the accident occurred, controlled the question of limitation of damages.
There is only one question before this Court, namely, whether the limitation on the amount of plaintiffs’ damages should be determined in accordance with Michigan law or Virginia law.
This Court has never been called upon to decide whether to apply another state’s limitation of the amount of recovery in a wrongful death action brought in Michigan in a case where the occurrence causing death was an airplane crash which took place in the other state. However, that Michigan has adhered to the rule of lex loci delicti cannot be denied. Abendschein v Farrell, 382 Mich 510; 170 NW2d 137 (1969). Defendant argues that as an intermediate appellate court, we may neither adopt a conflict-of-laws standard different from that traditionally followed in Michigan nor entertain an invitation to overrule Supreme Court precedent. However, we need not decide whether Abendschein should be overruled in deciding the question before us since the rule enunciated in Abendschein does not apply to this case. The Abendschein Court expressly excluded the lex loci delicti rule from cases involving airplane accidents when it stated at 519; 170 NW2d 140:
"Bearing in constant mind that this case and its issue deals only with actions at law for damages arising out of motorcar (not airplane) accidents”. (Emphasis added.)
Having explained why we cannot, on the authority of Abendschein v Farrell, supra, declare that the plaintiffs are limited in the amount of damages they may recover, we now turn to a disposition of this case which we think both valid and within our authority.
While the general rule is that questions as to the measure, extent, or amount of damages recoverable in a wrongful death action are to be determined by the law of the place where the wrong causing the death occurred, a number of decisions support the view that under certain circumstances the law of the state of the forum may govern these questions, although the wrong causing death occurred in another state. See generally 92 ALR2d 1180, 1193; see also Moats v The Metropolitan Bank of Lima, 40 Ohio St 2d 47; 319 NE2d 603 (1974).
In Reich v Purcell, 67 Cal 2d 551, 555; 63 Cal Rptr 31; 432 P2d 727 (1967), the California Supreme Court rejected the lex loci delicti rule in favor of the more modern approach of most significant relationship. Speaking for the Court, Chief Justice Traynor státed:
"Ease of determining applicable law and uniformity of rules of decision, however, must be subordinated to the objective of proper choice of law in conflict cases, i.e., to determine the law that most appropriately applies to the issue involved. Moreover, as jurisdiction after jurisdiction has departed from the law of the place of the wrong as the controlling law in tort cases, regardless of the issue involved, that law no longer affords even a semblance of the general application that was once thought to be its great virtue. We conclude that the law of the place of the wrong is not necessarily the applicable law for all tort actions brought in the courts of this state.” (Citations omitted.)
Speaking to the question of damages, Chief Justice Traynor noted:
"Limitations of damages * * * have little or nothing to do with conduct. They are concerned not with how people should behave but with how survivors should be compensated. The state of the place of the wrong has little or no interest in such compensation when none of the parties reside there.” 67 Cal 2d 551, 556; 432 P2d 727, 730-731.
See also, Ingersoll v Klein, 106 Ill App 2d 330; 245 NE2d 288 (1969), Fabricius v Horgen, 257 Iowa 268; 132 NW2d 410 (1965), Tramontana v SA Empresa De Viacao Aerea Rio Grandense, 121 US App DC 338; 350 F2d 468 (1965), Griffith v United Air Lines, Inc, 416 Pa 1; 203 A2d 796, 797 (1964).
After carefully reviewing and considering the leading authorities, we conclude that Reich v Purcell, supra, and the other cases cited represent the better view. We agree with this line of authority that the strict lex loci delicti rule should be abandoned in favor of the more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court. More particularly, we think that considerations of public policy and analysis of the respective interests of the jurisdictions involved should accompany the judicial decision-making process in these types of conflict-of-laws cases, and that the rule of lex loci delicti should no longer serve to automatically determine which body of law should govern.
Public Policy
Is it contrary to the public policy of the State of Michigan that damages in a wrongful death action be limited to a specified amount? The public policy of a state is fixed by its constitution, its statutory law, and the decisions of its courts; and when the Legislature enacts a law within the limits of the constitution, the enactment insofar as it bears upon the matter of public policy is conclusive. Lieberthal v Glens Falls Indemnity Co, 316 Mich 37, 40; 24 NW2d 547 (1946). Michigan’s public policy relative to the phase of the law being considered here has been definitely fixed by statute. As to the amount of damages recoverable in wrongful death actions in Michigan, MCLA 600.2922; MSA 27A.2922 provides in pertinent part:
"Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, under all of the circumstances to those persons who may be entitled to such damages when recovered including damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death. The amount of damages recoverable by civil action for death caused by the wrongful act, neglect or fault of another may also include recovery for the loss of the society and companionship of the deceased. ” (Emphasis added.)
In accord with the above provision, we have held that the question of damages in cases of fatal injuries is largely a matter for the discretion of the jury. Hoffman v Rengo Oil Co, 20 Mich App 575; 174 NW2d 155 (1969). The public policy of this state as expressed by the statute and judicial decisions is that a plaintiff in a wrongful death action may recover such damages as a court or jury deems just. The Legislature did not place any limitation on the amount of damages that could be awarded in wrongful death actions, and we are of the opinion that the statute, as a matter of public policy, not only applies to those cases where the death occurred in Michigan, but likewise to those situations where the accident, which caused the death, occurred in another jurisdiction. Had the Legislature intended to limit the amount of damages awardable where the death occurred in another jurisdiction, it would have included such a provision in the statute. Having failed to do so, the inescapable conclusion we must draw is that the trial court, in granting defendant’s motions to reduce the plaintiffs’ ad damnum clauses to $75,000, acted contrary to the public policy of this state and was, therefore, in error.
Interests of Michigan and Virginia
When we weigh all of the relevant factors in this case, including all significant contacts, the scales tip heavily in Michigan’s favor. Virginia, the state in which the accident occurred, has relatively little interest in the measure of damages to be recovered. Michigan’s interest in the amount of recovery, on the other hand, is great. The relationship between the decedents and the defendant was entered into in Michigan. Both dece dents were Michigan residents, the aircraft was owned and operated by a Michigan corporation and was hangared here. Our state, the domicile of decedents and their families, is vitally concerned not only with the lawful administration of decedents’ estates, but also with the interest of fair and adequate compensation for the surviving dependents of Michigan residents killed by accident, to the extent of granting full recovery, including expected earnings. Furthermore, this Court will continue to respect Michigan’s legislative public policy as embodied in MCLA 600.2922; MSA 27A.2922. Finally, as mentioned earlier, the only significant interest of Virginia in this lawsuit is that it is the place where the accident occurred, a factor which we consider to be insufficient to outweigh the above considerations. We find that all governmental interest in this case is in Michigan, and we further find that no Virginia concern is involved or disturbed herein.
Therefore, after examining all the relevant factors in this case, including all significant contacts and the public policy of this state, we find that only one conclusion can be reached, namely, that the limitation of the amount of plaintiffs’ damages should be determined in accordance with Michigan law. Accordingly, the trial court erred reversibly when it granted defendant’s motion to reduce the plaintiffs’ ad damnum clauses.
Reversed and remanded. Costs to plaintiffs.
We acknowledge the "Stipulated Concise Statement of Facts and Proceedings” in the Beekman case but do not set it forth in this opinion since the facts stated therein are not necessary to our disposition of the issue raised on appeal.
See Leflar, Choice-Influencing Considerations In Conflicts Law, 41 NYU L Rev 267, 279-282 (1969). Prof. Leflar cites five choice-influencing considerations to be applied when selecting the proper rule of law in a conflicts of law situation. They are: (a) predictability of results; (b) maintenance of interstate and international order; (c) simplification of the judicial task; (d) advancement of the forum’s governmental interests; and (e) application of the better rule of law.
This is also the rule in the overwhelming majority of states. The number of states limiting damages in wrongful death cases has been steadily dwindling over the years until there are now only seven of them, iSee 5 Martindale-Hubbell Law Digests (1974 ed).
We are aware that the contract to provide air passenger service was entered into between defendant and Edison. For purposes of this discussion only we have listed the decedents as parties to that contract. | [
55,
32,
3,
-3,
60,
-13,
-11,
-38,
43,
-15,
-15,
-11,
28,
-100,
-9,
-30,
27,
41,
-7,
8,
-12,
-34,
21,
7,
23,
-43,
54,
-32,
6,
-26,
-12,
-26,
41,
-45,
3,
50,
-10,
-37,
-31,
19,
-4,
-27,
69,
-77,
0,
29,
73,
6,
30,
-30,
-10,
35,
3,
19,
-27,
-35,
11,
7,
23,
23,
-22,
-34,
18,
4,
16,
4,
26,
100,
15,
45,
-5,
16,
17,
44,
27,
6,
24,
21,
17,
26,
0,
2,
-6,
-63,
-31,
-15,
-6,
9,
-16,
48,
-23,
-6,
-15,
-40,
-9,
25,
-29,
-51,
-42,
-6,
12,
15,
39,
3,
-48,
-20,
13,
-14,
41,
-7,
-57,
56,
10,
-24,
27,
-36,
26,
36,
-15,
56,
-67,
-34,
12,
42,
-1,
-7,
-6,
25,
11,
-14,
29,
-20,
1,
37,
-18,
32,
17,
-42,
-12,
-10,
11,
29,
46,
25,
54,
25,
25,
20,
12,
-54,
-30,
20,
5,
21,
23,
-35,
20,
26,
46,
-24,
15,
-16,
36,
14,
-20,
-8,
9,
61,
5,
-9,
8,
1,
46,
-30,
55,
-9,
7,
-7,
-41,
6,
-52,
-6,
-18,
-69,
-10,
-92,
29,
-13,
0,
-53,
81,
-52,
-23,
24,
-34,
46,
11,
55,
46,
31,
11,
-81,
-21,
31,
-13,
-39,
12,
38,
50,
35,
24,
-9,
25,
-30,
-61,
5,
-6,
-19,
11,
-51,
27,
6,
14,
-30,
-52,
9,
-52,
-8,
-6,
-57,
-11,
-21,
18,
52,
-67,
-30,
-29,
-10,
37,
-59,
-3,
-5,
7,
-21,
2,
-2,
-22,
-19,
-5,
14,
23,
14,
-10,
-9,
-8,
-4,
-11,
-16,
49,
-4,
-36,
-7,
-22,
5,
-1,
32,
-38,
-11,
-1,
-42,
13,
0,
29,
-68,
-55,
-40,
36,
-10,
59,
-3,
0,
9,
10,
29,
39,
47,
-7,
10,
-26,
2,
3,
-16,
-39,
-28,
29,
27,
36,
-32,
-23,
51,
-12,
1,
20,
34,
51,
-31,
-46,
-26,
-1,
44,
-1,
-15,
16,
-17,
74,
-16,
7,
10,
35,
-30,
33,
75,
3,
64,
10,
15,
-18,
8,
50,
0,
-34,
14,
3,
27,
-17,
-62,
26,
2,
1,
-6,
-23,
28,
28,
19,
34,
35,
-6,
-13,
-25,
-63,
-26,
-18,
31,
-17,
-25,
32,
39,
-22,
-58,
24,
26,
-13,
-13,
49,
14,
46,
25,
1,
15,
29,
11,
76,
-52,
3,
-11,
-27,
21,
13,
-50,
29,
-25,
-4,
37,
-18,
1,
9,
-33,
-42,
-47,
-38,
-20,
-44,
-12,
22,
-22,
28,
0,
27,
-3,
-44,
10,
52,
-31,
-6,
-9,
-30,
23,
23,
12,
-22,
-29,
-30,
33,
-16,
29,
0,
25,
9,
-10,
-15,
34,
14,
-24,
-81,
47,
-40,
45,
16,
25,
28,
16,
61,
32,
20,
-11,
-39,
-31,
-11,
4,
-14,
-10,
59,
-13,
1,
-54,
-25,
-32,
42,
1,
-4,
12,
19,
18,
1,
-41,
-25,
-26,
9,
-2,
-21,
-28,
-32,
63,
-53,
-10,
-17,
45,
12,
51,
-25,
-43,
-2,
-72,
44,
-35,
-35,
-12,
10,
-30,
27,
-41,
-7,
-48,
-37,
-37,
-18,
30,
37,
4,
2,
34,
19,
-54,
23,
-49,
13,
-40,
-5,
-12,
-66,
-4,
-48,
42,
53,
14,
-17,
29,
-22,
-33,
37,
-2,
-58,
0,
52,
-17,
12,
18,
29,
-1,
-5,
-38,
62,
4,
3,
7,
-45,
33,
-48,
21,
-21,
9,
-58,
30,
-90,
6,
-8,
-18,
9,
-50,
-6,
41,
-20,
-35,
-29,
-65,
-28,
3,
14,
19,
8,
12,
-47,
-18,
-41,
26,
6,
-6,
30,
-28,
9,
14,
-45,
25,
-31,
10,
-12,
-65,
41,
45,
-14,
-19,
-2,
56,
27,
-3,
9,
40,
26,
-62,
33,
-32,
-28,
-23,
4,
-63,
-51,
-9,
4,
15,
-53,
-48,
-11,
-27,
22,
45,
31,
38,
-23,
4,
4,
-2,
15,
-26,
23,
-9,
44,
-9,
-14,
28,
-64,
-14,
-2,
-52,
-39,
-42,
9,
14,
5,
40,
4,
31,
-28,
31,
46,
-14,
49,
-9,
-22,
-16,
25,
7,
-43,
-81,
-19,
-1,
-42,
78,
9,
-38,
15,
-17,
-13,
0,
-3,
-45,
-65,
-9,
36,
-35,
57,
-14,
24,
21,
-6,
5,
21,
-28,
39,
-46,
-3,
-38,
-12,
21,
-20,
8,
0,
-30,
-38,
55,
-32,
-12,
13,
-15,
25,
7,
13,
-17,
44,
0,
66,
1,
7,
-18,
-68,
17,
50,
-32,
13,
13,
-16,
-43,
14,
-10,
43,
1,
-8,
6,
18,
24,
-19,
-33,
-17,
-57,
48,
-48,
28,
28,
19,
-8,
31,
-22,
31,
40,
41,
-18,
16,
6,
-39,
-20,
0,
-43,
-48,
18,
-56,
-41,
-36,
-29,
-31,
10,
24,
58,
1,
45,
-32,
58,
0,
-16,
-8,
29,
22,
3,
40,
-2,
43,
-59,
-7,
48,
7,
41,
-63,
-40,
52,
28,
72,
-18,
7,
-3,
63,
-60,
-35,
0,
-31,
-6,
-5,
-4,
-2,
25,
-33,
14,
-55,
-33,
65,
-29,
-16,
-39,
17,
-27,
30,
24,
-11,
13,
-13,
-54,
-32,
-15,
-20,
-15,
38,
55,
7,
-10,
-2,
46,
8,
1,
-1,
-16,
3,
24,
27,
18,
1,
-39,
52,
-18,
-38,
-2,
-2,
42,
19,
44,
73,
1,
-38,
16,
45,
42,
-23,
-30,
8,
20,
-45,
-29,
0,
37,
8,
-42,
9,
-9,
-8,
14,
3,
-2,
-6,
-14,
-19,
81,
-32,
-6,
-13,
6,
-18,
-55,
15,
-4,
14,
-33,
15,
-36,
-22,
-9,
-3,
-16,
38,
-26,
-37,
-45,
1,
-25,
-2,
-30,
-22,
-74,
-14,
-30,
17,
21,
20,
-28,
47,
-6,
-26,
20,
45,
-4,
-32,
-1,
-8,
16,
-47,
-2,
-15,
34,
-25,
25,
41,
47,
10,
-14,
24,
52,
25,
-38,
0,
-21,
1,
-19,
28,
30,
-31,
-9,
22,
18,
1,
-22,
13,
-1,
-47,
-25,
37,
4,
10,
-11,
-21,
-2,
59,
-30,
22,
24,
-8,
1,
7,
-1,
-15,
-33,
67,
1,
-2,
13,
32,
-63,
-65,
-35,
-56,
-9,
-52,
21,
-3,
15,
-23,
48,
11,
20,
-1,
15,
-2,
26,
-18,
-18,
9,
37,
23,
-28,
92,
-8,
11,
-45,
7,
22,
-8,
-52,
19,
27,
27,
13,
-34,
-14,
-30,
15,
-27,
0,
32,
35,
0,
-9,
-10,
16,
20,
36,
-46,
21,
8,
9,
55,
20,
-32,
-19,
-46,
-54,
38,
-4,
-7,
-10,
-30,
25,
0,
20,
-36,
-28,
10,
17,
-49,
5,
34,
-3,
-17,
-21,
-7,
29,
60,
36,
60,
-60,
-5,
-48,
28,
6,
-30,
-45,
0,
55,
22,
26,
-54
] |
Bronson, P. J.
Defendant was found guilty by a jury of gross indecency, contrary to MCLA 750.338b; MSA 28.570(2), and rape of a female under the age of 16, contrary to MCLA 750.520; MSA 28.788. He was sentenced to a prison term of from 15 years to 25 years, and appeals by right.
On the first day ,of trial, after defendant had previously filed a notice of alibi, the prosecutor informed the court that she intended to call sev eral witnesses in rebuttal. These witnesses were three young women who were allegedly sexually assaulted by the defendant on other occasions. The prosecutor contended that the manner of those attacks was sufficiently similar to the present circumstances to show a common scheme or plan under the "prior similar acts” statute, MCLA 768.27; MSA 28.1050. Defense counsel objected, but the trial judge cut him off, stating that, "I think at this time she has carried out her responsibilities. She gave you notice”.
At trial, defendant’s alibi was that he was at a lodge meeting at the time of the crime, without access to an automobile. Defendant himself testified, and several other witnesses were called to verify those events. After defendant finished presenting his case, the prosecutor moved to indorse the three rebuttal witnesses upon the information. The trial judge granted that motion over defense counsel’s objection, and the three women were allowed to testify as to the sexual assaults committed upon them by defendant.
Defendant contends here that the trial judge committed reversible error by (1) permitting the prosecutor to indorse the three rebuttal witnesses on the information after defendant had already presented his proofs, and (2) permitting the prosecutor to call the three women as rebuttal witnesses instead of presenting their testimony in the case in chief. Since we hold that the trial judge committed reversible error in allowing the prosecutor to call these witnesses in rebuttal, we do not need to reach defendant’s first objection.
In our system of justice, the prosecutor is required to proceed with all of his proofs before defendant presents his evidence. The prosecutor is not allowed to "sandbag” by presenting a minimal case, allowing defendant to present his story, and then chipping away at that defense with more evidence of the surrounding circumstances of the crime, People v Sacharczyk, 16 Mich App 710; 168 NW2d 639 (1969). As part of defendant’s right to a fair trial, the prosecutor is not allowed that one final play to the jury, People v Rose, 268 Mich 529; 256 NW 536 (1934).
One exception exists to this general rule on the order of proof — evidence denominated as "rebuttal evidence” can be introduced after defendant rests his case. Due to the importance of the normal rule, this exception is very narrowly drawn. The evidence sought to be later added must meet this test:
"Generally, the only type of contradictory evidence that is admissible is that which directly tends to disprove the exact testimony given by a witness.” People v McGillen #1, 392 Mich 251, 268; 220 NW2d 677 (1974). (Emphasis added.)
The prosecutor on appeal argues that proof of a common scheme "rebuts” the alibi defense. It is said that alibi goes to prove misidentification, while the common scheme strengthens the direct identification testimony. We must reject that view.
Identification in general is simply part of the prosecutor’s case in chief. Our Supreme Court has spoken to this issue in People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), where defendant raised the alibi defense that he was at home at the time of the crime. On rebuttal a witness who had spent time with defendant in jail was allowed to testify that defendant told him that he "had another fellow to kill when he get out”. It was unclear whether that was being introduced under a common scheme, as here, or as an admission, but the Court concluded:
"However, under either of these descriptions — that it was an admission or part of a scheme — it would be admissible, only in the people’s case in chief.” Bennett, supra, 449.
Bennett is directly applicable here and requires reversal.
We do not rest our decision on precedent alone, for we feel that the Bennett approach makes good sense. It is true that an alibi defense raises the issue of identification, but the whole of the prosecutor’s case goes to proving defendant’s identification as used in that broad sense. If we accepted the prosecutor’s argument here, the rebuttal rule for all practical purposes would not exist in cases where an alibi defense is raised. Considering the importance of the order of proof in insuring defendant a fair trial, we cannot let that happen.
Our ruling here does not leave the prosecutor powerless to rebut an alibi defense which raises facts outside the circumstances of the crime itself. In fact, the classic rebuttal testimony involves a claim by defendant that he was at a place other than the scene of the crime at the time it occurred. The prosecutor is allowed to show through rebuttal witnesses that others were at the alibi location and did not see defendant. Similarly, witnesses can be called to testify that they saw defendant at a third location during part of the time period involved. See, People v Tocco, 60 Mich App 130; 230 NW2d 341 (1975), People v Smalls, 61 Mich App 53; 232 NW2d 298 (1975). The prosecutor has a wide range of rebuttal testimony available to him to rebut alibi testimony.
It should be noted that this holding does not impose significant burdens on the prosecutor. The defendant is required to give notice to the prosecutor of his intention to assert an alibi defense at least 10 days before trial, MCLA 768.20; MSA 28.1043. The prosecutor is at that time put on notice that the defendant is alleging misidentification through an alibi defense, and that the prosecutor should call his witnesses to show a common scheme. The prosecutor can then simply call these witnesses in his case in chief instead of waiting until after defendant’s proofs.
Reversed and remanded.
D. E. Holbrook, Jr., J., concurred. | [
24,
1,
-4,
6,
25,
-33,
-40,
-2,
-44,
33,
42,
-10,
14,
-16,
-30,
-20,
-26,
-20,
-1,
-93,
-4,
-18,
22,
55,
-25,
-6,
24,
20,
-18,
-41,
4,
23,
17,
-59,
16,
-17,
11,
1,
-41,
25,
61,
-12,
13,
-27,
-68,
-9,
31,
-1,
33,
-6,
28,
27,
-20,
37,
-16,
-11,
13,
7,
31,
-19,
-21,
42,
-40,
-31,
-13,
-56,
1,
0,
-37,
5,
-19,
-51,
24,
-43,
-41,
-12,
-19,
0,
39,
25,
-6,
-6,
14,
42,
33,
-18,
26,
-30,
-9,
24,
-18,
-25,
-29,
-30,
23,
-7,
15,
-73,
49,
-14,
-34,
-33,
11,
12,
-31,
60,
-56,
-25,
-12,
30,
25,
10,
44,
-17,
-33,
-41,
2,
-11,
-5,
-31,
22,
36,
43,
34,
-7,
4,
31,
-15,
10,
-65,
-8,
43,
39,
-48,
1,
-17,
-6,
41,
26,
11,
3,
-21,
14,
79,
36,
8,
0,
9,
31,
83,
-47,
-49,
-4,
26,
49,
-50,
-50,
-76,
6,
-12,
13,
28,
-57,
12,
7,
1,
-39,
-23,
39,
-41,
47,
-21,
64,
34,
33,
-58,
-24,
-22,
0,
-31,
16,
51,
-23,
18,
21,
11,
-11,
-4,
-85,
32,
4,
2,
15,
-8,
105,
10,
-74,
16,
52,
31,
42,
-23,
5,
-9,
1,
-3,
2,
-23,
-15,
1,
-11,
-7,
-54,
-54,
5,
-57,
-27,
12,
-8,
0,
-50,
-37,
28,
-35,
-61,
-13,
-10,
22,
-18,
35,
43,
-18,
-9,
-28,
-65,
-54,
29,
10,
48,
34,
-17,
-14,
8,
-33,
12,
-20,
-9,
-1,
-30,
-31,
44,
-24,
-3,
-4,
-43,
-14,
-13,
-2,
-50,
18,
-11,
-9,
-24,
-10,
-21,
20,
-32,
55,
-38,
-23,
-9,
0,
6,
65,
-14,
1,
-29,
25,
-43,
-2,
21,
41,
24,
6,
-4,
-25,
-28,
58,
60,
-4,
52,
31,
2,
14,
44,
15,
18,
54,
-14,
-18,
8,
-5,
19,
-26,
2,
25,
43,
43,
-17,
19,
0,
-20,
42,
4,
-12,
20,
-71,
0,
20,
-55,
-54,
-46,
-1,
-50,
23,
-24,
29,
-35,
0,
-5,
-43,
7,
-2,
2,
77,
-10,
-28,
32,
-30,
39,
-19,
-17,
-23,
-27,
-26,
21,
9,
28,
2,
16,
7,
-9,
-21,
-1,
-45,
-69,
-44,
-36,
22,
-7,
38,
-23,
-21,
-10,
24,
36,
13,
2,
29,
98,
14,
-24,
-40,
-6,
21,
-37,
35,
-3,
22,
70,
-47,
21,
17,
-61,
-11,
-25,
-8,
-48,
-15,
34,
-43,
36,
-15,
-24,
-7,
20,
-62,
6,
56,
9,
-21,
4,
75,
-31,
-44,
38,
-50,
-13,
-3,
4,
-29,
10,
92,
63,
-37,
-92,
4,
-23,
4,
13,
13,
-10,
79,
5,
1,
-3,
0,
-9,
17,
-34,
-5,
49,
-22,
-58,
10,
19,
-41,
2,
9,
0,
-33,
11,
-60,
8,
4,
7,
60,
-18,
36,
-7,
-1,
58,
9,
-42,
-19,
-7,
-2,
8,
-35,
-18,
8,
-31,
-33,
-26,
52,
-3,
-22,
-22,
-38,
-8,
76,
-14,
21,
70,
-7,
37,
-63,
79,
12,
26,
70,
-9,
10,
-5,
51,
19,
44,
-43,
19,
-43,
0,
26,
-4,
26,
-13,
18,
-23,
11,
-30,
36,
0,
17,
-12,
-10,
16,
19,
83,
11,
1,
23,
-9,
58,
-3,
-12,
-6,
-40,
-36,
-32,
-8,
12,
26,
2,
51,
-2,
-78,
7,
-57,
3,
-69,
20,
60,
-34,
-13,
-4,
18,
34,
-32,
-66,
21,
-11,
-32,
19,
31,
8,
20,
-15,
2,
6,
30,
-13,
55,
43,
29,
-5,
-30,
21,
-2,
-20,
1,
-38,
-14,
1,
41,
0,
21,
13,
-43,
-29,
81,
-15,
45,
15,
-50,
28,
-48,
28,
-13,
58,
-17,
30,
-8,
58,
-30,
-18,
1,
23,
60,
32,
44,
-32,
-58,
31,
24,
-11,
-13,
-57,
2,
-74,
22,
32,
75,
13,
-27,
19,
28,
-60,
46,
49,
3,
-2,
59,
3,
-16,
45,
67,
-14,
-24,
-6,
-53,
22,
-32,
-2,
-16,
-13,
17,
-12,
-50,
-15,
-20,
-29,
-43,
-25,
-23,
0,
10,
-24,
-15,
-10,
3,
19,
25,
5,
-27,
-27,
21,
-6,
-5,
-2,
9,
-49,
0,
-7,
64,
-74,
53,
-79,
-54,
2,
21,
24,
15,
-8,
-17,
-34,
34,
19,
-6,
-48,
4,
-31,
10,
-28,
7,
48,
-3,
29,
1,
-4,
-58,
-19,
8,
-3,
-40,
-15,
-17,
6,
-23,
33,
-6,
-2,
-1,
50,
31,
27,
25,
-24,
48,
-4,
-45,
27,
-27,
-13,
6,
-43,
-15,
-33,
0,
-37,
-7,
9,
-18,
62,
-3,
-9,
29,
-13,
-65,
-29,
-47,
11,
15,
6,
46,
16,
-49,
-1,
49,
36,
48,
-2,
15,
20,
-25,
46,
6,
58,
-32,
-2,
32,
40,
-20,
-1,
10,
-67,
-13,
-1,
-6,
-13,
13,
36,
12,
17,
27,
48,
-47,
87,
62,
-55,
-62,
18,
0,
-10,
-16,
-69,
-23,
6,
27,
0,
35,
0,
-66,
-58,
17,
-4,
-25,
24,
8,
21,
30,
-7,
-3,
48,
-65,
-5,
8,
-18,
-16,
-18,
-8,
3,
33,
32,
-3,
48,
-11,
30,
-43,
-53,
0,
32,
-25,
-8,
-33,
-18,
-42,
6,
-18,
12,
12,
-13,
-5,
22,
12,
-17,
-15,
-1,
-6,
-42,
18,
-38,
-3,
36,
-9,
-10,
-13,
-1,
-8,
-74,
14,
-12,
35,
5,
-25,
39,
6,
39,
-10,
14,
-17,
0,
8,
24,
0,
2,
39,
-10,
27,
-8,
26,
15,
89,
54,
46,
-14,
-34,
0,
-16,
8,
-81,
-5,
5,
15,
-19,
-46,
-40,
24,
17,
-8,
51,
-26,
-28,
25,
23,
23,
-14,
73,
-14,
-9,
-28,
25,
22,
16,
16,
9,
-30,
-50,
-12,
-2,
8,
-11,
18,
48,
33,
-19,
-17,
-4,
17,
-7,
-1,
-49,
19,
-13,
-14,
-19,
61,
-2,
-8,
-8,
-4,
16,
-8,
1,
15,
5,
6,
-13,
-83,
3,
38,
-13,
-40,
16,
25,
20,
4,
0,
-48,
-9,
10,
16,
36,
-17,
-32,
-46,
-17,
8,
16,
-27,
3,
-16,
-26,
5,
-5,
33,
-30,
14,
-82,
17,
-25,
0,
-62,
-1,
18,
21,
-13,
-31,
34,
24,
-7,
25,
3,
58,
28,
17,
20,
8,
33,
24,
-32,
5,
36,
-46,
-29,
-29,
-42,
-12,
1,
-2,
-82,
-12,
-16,
-19,
14,
-17,
-7,
-26,
3,
27,
39,
33,
-7,
9,
-12,
-8,
-19,
-3,
-14,
-98,
-7,
-22,
-13,
19,
38,
33,
-21,
7,
43,
14,
-10,
-4,
17,
7,
46,
0,
-6,
2,
41,
-5,
22,
-29,
-56,
89,
30,
21
] |
V. J. Brennan, J.
On May 10, 1974, a jury convicted defendants Gardner and Sanford of as sault with intent to rob being unarmed, MCLA 750.88; MSA 28.283. Both defendants received prison sentences of 2 to 15 years, and appeal as of right.
At trial, the prosecution contended that the two defendants assaulted one Booker Anderson as Anderson was leaving a drug store. Anderson was struck several times, dragged into an alley and then searched by his assailants. A neighborhood resident frightened off the attackers before they could actually take any of Anderson’s possessions. Defendants were arrested the next day. They contended that Anderson incorrectly identified them as his assailants. The record does not support this contention.
Defendants next contend that the crime they were convicted of, assault with intent to rob being unarmed, is the same offense as attempted unarmed robbery. They contend that since assault with intent to rob being unarmed carries only a 15-year maximum sentence, and attempted unarmed robbery carries only a 5-year maximum, it is a denial of equal protection to have two statutes, with different penalties, prohibiting the same conduct. We disagree with defendants’ theory that the two statutes are aimed at prohibiting the same conduct.
MCLA 750.88; MSA 28.283 makes criminal any assault with intent to rob being unarmed:
"Any person, not being armed with a dangerous weapon, who shall assault another with force and violence, and with intent to rob and steal, shall be guilty of a felony, punishable by imprisonment in the state prison not more than fifteen [15] years.”
The essential elements of this crime are (1) an assault with force and violence; (2) an intent to rob and steal; and, (3) defendant being unarmed. People v Compian, 38 Mich App 289; 196 NW2d 353 (1972). This offense requires an assault and the intent, but not necessarily the taking.
MCLA 750.530; MSA 28.798 makes criminal any unarmed robbery:
"Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than fifteen [15] years.”
The essential elements of an unarmed robbery are (1) felonious taking of property from the person or presence of another; (2) by force and violence, or by assault or putting in fear; and, (3) while not armed with a dangerous weapon. See People v Tolliver, 46 Mich App 34; 207 NW2d 458 (1973).
The elements of an attempted unarmed robbery charge would necessarily be (1) an attempted felonious taking of property from the person or presence of another; (2) by force or violence or by assault or putting in fear; and, (3) while not armed with a dangerous weapon. Under MCLA 750.92; MSA 28.287, any attempted unarmed robbery would constitute a crime punishable by five years imprisonment.
Defendants attempt to show that attempted unarmed robbery and assault with intent to rob unarmed are the same offense by arguing that both statutes require an assault as a necessary element. This, however, is not the case. The assault with intent to rob unarmed statute speaks of "anyone who shall assault”. The unarmed robbery statute speaks of anyone who shall rob "by force and violence, or assault or putting in fear”. (Emphasis added.) Defendants note this distinction, but claim that "force and violence” is merely another way of describing an assault. Michigan criminal law, however, defines a criminal assault as any intentional, unlawful offer of violence to another with the apparent present ability to carry out the offer, creating a reasonable fear of immediate injury. People v Carlson, 160 Mich 426; 125 NW 361 (1910), Tinkler v Richter, 295 Mich 396; 295 NW 201 (1940); but see People v Syakovich, 32 Mich App 356; 188 NW2d 642 (1971). An "assault” requires that the victim be put in reasonable fear of immediate harm; "force and violence” does not. A person may be "forcefully and violently” attacked and robbed while never even seeing his assailant. The same person may not, however, be "assaulted” unless he perceives the danger. Because MCLA 750.88; MSA 28.283 requires an assault as an element, and because MCLA 750.530; MSA 28.798 requires either an assault or force and violence, the two statutes prohibit different crimes. The prosecutor properly has the discretion to charge defendants under either statute. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972).
Defendants further contend that the trial judge’s failure to instruct the jury that their verdict must be unanimous mandates reversal. Defense counsel, who is also counsel on appeal, neither requested such an instruction nor objected to the trial judge’s failure to give it. Under these circumstances, we would reverse only to prevent a miscarriage of justice. See People v Fry, 55 Mich App 18; 222 NW2d 14 (1974); GCR 1963, 516.2. Since the record in this case reveals that the jury was instructed on the unanimity requirement during their orientation, and that all the jurors acknowledged to the trial judge that they agreed on the verdict, we find no miscarriage of justice.
Defendants’ allegation that the trial judge affirmatively excluded lesser included offenses from the jury’s consideration is not supported by the record. The instruction given in this case was approved of in People v Taylor, 44 Mich App 640; 205 NW2d 884 (1973), and People v Goldfarb, 37 Mich App 57; 194 NW2d 535 (1971).
The failure of the trial judge to give defendants’ requested identification instruction was not erroneous, as the judge did give an instruction that was substantially similar to the one requested.
Defendants’ remaining issue has been reviewed and the Court feels discussion is without merit.
Affirmed. | [
13,
50,
-4,
31,
-21,
-45,
-21,
21,
-30,
54,
-6,
12,
-10,
-4,
49,
29,
-26,
32,
-13,
-14,
40,
-42,
9,
0,
-20,
-45,
41,
18,
-20,
85,
31,
3,
67,
-44,
28,
-3,
16,
5,
-26,
26,
2,
18,
11,
53,
11,
23,
2,
2,
-16,
-1,
36,
-38,
-13,
47,
-17,
39,
0,
-4,
14,
15,
-4,
-2,
-33,
-3,
-17,
-70,
9,
23,
-25,
-35,
28,
34,
-23,
-37,
25,
15,
34,
11,
14,
-31,
-24,
13,
34,
-5,
8,
-13,
-35,
-67,
-5,
-101,
-3,
48,
-25,
-11,
55,
4,
-21,
-3,
30,
-29,
2,
-20,
-20,
-18,
-65,
4,
-16,
-62,
4,
7,
14,
43,
62,
-1,
-6,
-68,
-37,
17,
23,
49,
-28,
28,
12,
8,
51,
-25,
-3,
-34,
71,
27,
-1,
79,
17,
38,
-39,
15,
7,
66,
39,
4,
-88,
54,
-2,
-10,
-1,
26,
-21,
7,
25,
20,
-37,
-14,
-30,
-8,
-52,
35,
-13,
12,
-54,
-10,
-25,
-40,
3,
11,
47,
0,
-43,
-31,
-2,
19,
-9,
-59,
23,
41,
67,
13,
-20,
9,
49,
-17,
22,
-4,
-26,
58,
-12,
0,
12,
20,
-14,
-12,
27,
12,
-47,
-28,
62,
27,
23,
2,
-41,
-67,
40,
-41,
-3,
-24,
2,
-54,
29,
2,
31,
32,
-1,
17,
1,
-1,
16,
-1,
17,
-5,
-4,
-33,
-80,
-31,
-27,
9,
46,
-85,
8,
4,
-42,
-9,
8,
3,
-7,
-26,
-14,
-52,
-7,
-27,
64,
10,
23,
5,
-4,
-23,
42,
-3,
10,
-2,
24,
41,
-23,
12,
-48,
62,
-31,
-28,
26,
-34,
-35,
33,
-47,
-18,
-21,
-16,
5,
33,
-15,
13,
-112,
28,
17,
-52,
-18,
43,
10,
-25,
-52,
9,
-12,
-16,
55,
23,
19,
-11,
9,
-41,
-30,
57,
9,
-39,
33,
-26,
-3,
24,
31,
3,
72,
-57,
-22,
38,
16,
7,
-37,
-29,
-6,
45,
24,
-69,
-16,
12,
4,
24,
-33,
-9,
6,
-45,
11,
30,
3,
-23,
-25,
-27,
44,
-22,
-6,
-24,
8,
34,
-11,
-9,
34,
-23,
-26,
-15,
-21,
35,
4,
5,
79,
-11,
-34,
-32,
18,
-36,
27,
53,
-47,
39,
-7,
-46,
26,
-15,
1,
-3,
11,
-16,
-53,
12,
29,
0,
58,
-9,
-15,
-8,
27,
6,
4,
-3,
7,
46,
2,
-91,
-3,
3,
-8,
29,
85,
1,
-23,
13,
28,
-18,
48,
-27,
2,
-53,
-7,
-85,
2,
16,
-101,
15,
-14,
-101,
26,
-31,
-22,
15,
49,
-39,
-56,
14,
43,
-22,
-28,
-12,
-65,
29,
11,
-26,
0,
9,
51,
44,
-38,
-11,
-3,
-28,
9,
-10,
39,
13,
10,
16,
-3,
-44,
-37,
-12,
-31,
-53,
41,
37,
35,
-29,
6,
-2,
-14,
-27,
5,
-58,
-23,
-54,
-31,
29,
30,
31,
-24,
-69,
4,
-22,
38,
-13,
4,
-62,
-35,
37,
30,
41,
51,
-29,
3,
-3,
-21,
19,
46,
-27,
-94,
-63,
14,
-68,
52,
-12,
5,
-10,
-6,
22,
13,
30,
35,
-15,
-28,
-9,
11,
-11,
-27,
-59,
-12,
-9,
-3,
-21,
41,
25,
50,
72,
12,
13,
-24,
-25,
3,
-16,
-17,
36,
-55,
20,
33,
5,
73,
26,
-4,
39,
-33,
89,
-32,
-26,
-54,
-58,
-8,
22,
-33,
-9,
-9,
-11,
28,
46,
-24,
35,
0,
-27,
-114,
4,
60,
-80,
8,
-43,
32,
44,
5,
-10,
37,
-64,
31,
13,
4,
52,
6,
-28,
-7,
-14,
52,
-5,
-1,
26,
21,
-40,
0,
-20,
-13,
-2,
-21,
-29,
-19,
18,
67,
41,
-3,
39,
-9,
56,
40,
20,
-12,
22,
-43,
11,
-5,
45,
20,
7,
-26,
61,
13,
50,
-77,
63,
-3,
-16,
14,
0,
0,
-2,
3,
-7,
17,
-27,
22,
22,
-61,
-20,
39,
-19,
36,
13,
-17,
15,
73,
-44,
-13,
-19,
-22,
11,
6,
5,
-22,
13,
-8,
23,
-2,
-10,
-48,
7,
34,
-40,
12,
0,
7,
-30,
-15,
-21,
41,
-41,
-2,
-23,
29,
14,
10,
18,
-1,
16,
-35,
0,
-65,
53,
-18,
7,
45,
73,
-63,
58,
32,
-32,
-32,
13,
-53,
-9,
18,
-14,
-12,
33,
-13,
-11,
18,
75,
-64,
31,
21,
41,
16,
-39,
18,
-5,
32,
-9,
8,
25,
52,
37,
5,
27,
18,
25,
-30,
3,
-1,
-10,
0,
56,
-8,
-19,
-9,
2,
11,
21,
6,
-28,
46,
-31,
41,
19,
-35,
3,
-5,
42,
6,
-48,
-17,
0,
-29,
-31,
5,
14,
-45,
22,
29,
2,
2,
-27,
-56,
-19,
-31,
27,
-35,
-46,
13,
44,
51,
13,
25,
1,
32,
36,
-16,
14,
-8,
6,
52,
42,
-53,
28,
15,
5,
-51,
4,
36,
-8,
6,
-44,
-39,
-82,
40,
-8,
13,
15,
-11,
8,
-30,
-7,
-7,
54,
-45,
-52,
0,
7,
35,
-10,
-35,
-45,
-33,
-37,
34,
-13,
8,
-60,
-30,
33,
-59,
-17,
-2,
-50,
4,
31,
-15,
58,
-34,
-32,
2,
-23,
-23,
-21,
-20,
-28,
-41,
62,
-24,
48,
-32,
31,
20,
25,
65,
-31,
3,
20,
0,
-3,
-1,
6,
6,
3,
-3,
-14,
35,
-4,
-40,
42,
-14,
55,
2,
0,
-11,
-44,
8,
-25,
-18,
-27,
-29,
59,
0,
-56,
-56,
-21,
-11,
43,
11,
11,
-3,
-6,
-48,
-2,
30,
29,
42,
-18,
-5,
34,
38,
8,
11,
-81,
17,
-48,
17,
-48,
-17,
-25,
0,
13,
-26,
58,
-5,
17,
28,
1,
-20,
-23,
-57,
68,
3,
-22,
-13,
72,
-27,
15,
41,
32,
15,
32,
-63,
-3,
-37,
32,
13,
-8,
-26,
-1,
0,
-6,
-38,
-38,
-15,
0,
9,
19,
-6,
21,
-55,
-26,
31,
35,
12,
-63,
46,
8,
-71,
58,
60,
5,
4,
-17,
-31,
8,
37,
-6,
56,
15,
10,
55,
-39,
-29,
55,
-10,
-35,
58,
64,
35,
26,
-47,
-37,
19,
-3,
-15,
-75,
45,
13,
-47,
-16,
31,
37,
-63,
13,
28,
-50,
6,
-33,
33,
-32,
-17,
-23,
0,
-29,
1,
-12,
14,
-18,
13,
-1,
20,
-19,
42,
-20,
11,
-25,
24,
1,
-10,
61,
17,
40,
-41,
-19,
-31,
35,
-71,
7,
2,
50,
-1,
1,
-35,
-51,
-2,
-84,
-31,
-11,
-12,
46,
28,
17,
64,
-35,
-9,
-44,
41,
26,
3,
8,
0,
0,
5,
3,
-33,
-18,
39,
59,
0,
-19,
5,
26,
-8,
32,
-40,
-27,
-40,
55,
-34,
10,
14,
-4,
51,
-62,
40,
-52,
3,
-52,
28
] |
Bronson, J.
Appellant, Board of Education of the Melvindale-Northern Allen Park Public Schools (Board), appeals a judgment of $5,249.23 issued by the Wayne County Circuit Court in favor of plaintiff, a female teacher, as compensation for the violation of her rights under the due process clause. We affirm the judgment.
The controversy arises out of a collective bargaining contract signed by the Board and defendant-appellee, Melvindale Federation of Teachers, Local 1051 AFT, AFL-CIO (Federation), bargaining agent for plaintiff. The contract contained the following provision:
"A teacher will not be permitted to begin a teaching assignment when she is pregnant prior to the commencement of school. Should pregnancy occur after the commencement of school, a teacher will be required to terminate her teaching duties at the end of the fifth calendar month of pregnancy, or as close to the time when the school program is normally interrupted, (ex. Christmas, end of the semester, Easter). A teacher will furnish a written opinion from a medical doctor as evidence of the time that pregnancy has existed. Leave will continue for four months following the date of birth of child and the teacher may return only with her physician’s written permission. The Superintendent will notify the teacher of the first position available after the teacher has terminated her leave. Upon written request, one year’s extension of leave may be granted by the Board. The Board’s decision will be final.” (Emphasis added.)
Plaintiff was employed by appellant for the 1969-1970 school year. She first notified the Board in February, 1970 that she was pregnant, and later wrote the school board, March 11, 1970, when she was five months pregnant, stating her desire to return to her job "as soon as legally possible”. Plaintiff took a maternity leave of absence commencing with the Easter vacation. She gave birth July 15, 1970 and notified the Board August 19, 1970, that she was prepared to return to work for the September term. She delivered a physician’s statement certifying her physical health.
The Board, relying on the maternity leave provisions of the collective bargaining agreement, refused to reinstate her at that time, stating that it had not been four months since she gave birth. She was subsequently offered full-time employment commencing February 1, 1971, which she accepted.
Plaintiff instituted this suit in September, 1971, charging the Board and the Federation with joint liability in having violated, inter alia, the Fourteenth Amendment of the United States Constitution. Following a trial without a jury, the Federation moved for and was granted a directed verdict. The trial judge, relying on Cleveland Board of Education v LaFleur, 414 US 632; 94 S Ct 791; 39 L Ed 2d 52 (1974), declared that the mandatory maternity leave was unconstitutional and awarded plaintiff damages against the Board, based on lost wages, lost salary increments, and lost hospital insurance premiums.
The Board appeals that judgment on several grounds, those most worthy of consideration being (1) plaintiff failed to exhaust the grievance procedures of the collective bargaining agreement, (2) the Federation, as plaintiff’s authorized bargaining representative, waived plaintiff’s constitutional rights, (3) plaintiff was bound by and did not comply with the collective bargaining notice provisions applicable to all leaves of absence, (4) appel lee Federation must be jointly liable for any judgment based on the unconstitutionality of the collective bargaining agreement.
Plaintiff characterizes this appeal as vexatious, averring that the above issues are without merit. She asks that costs and attorney’s fees be imposed on appellant pursuant to GCR 1963, 816.5(2). We will examine the merits of the issues raised by appellant.
I.
As a preliminary matter, we must determine if plaintiffs complaint was properly before the court. Appellant contends that the grievance procedure in the collective bargaining agreement was not exhausted. Exhaustion of contractual grievance procedures is generally necessary to maintain a suit based on a breach of the collective bargaining agreement. Failure to follow the bargained-for grievance mechanisms precludes judicial remedies, except in certain instances. The trial court decreed that plaintiffs complaint came within an exception to the exhaustion doctrine implied by Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974).
We concur in the trial court’s holding on this preliminary issue, and we find that the Alexander analogy makes sense. However, we can dispose of this issue by simple contract interpretation without deciding if we are required to apply Alexander.
The collective bargaining agreement in the present case reads, in pertinent part:
"A grievance is defined as a complaint about an act or condition which a teacher conceives to be contrary to this contract. If a grievance arises * * * such grievance will be processed pursuant to grievance procedures.” Art 12, § A. (Emphasis added.)
The plaintiffs present complaint is that the four-month waiting period, authorized by the contract, is unconstitutional. Her complaint is not that the action of the appellant was "contrary to plaintiffs contract”, for the action taken was pursuant to the contract. Because the claim is not a grievance as defined by the contract, doctrines of exhaustion of the grievance procedures are irrelevant.
Even if the Board’s action could also give rise to a grievance under the contract, the exhaustion doctrine would be inapplicable to her constitutional claim. The mere fact that the same conduct is violative of both the Constitution and the contract should not deny plaintiff immediate access to the court on her constitutional claim. Barry v Flint Fire Department, 44 Mich App 602, 606-607; 205 NW2d 627 (1973).
II.
There is no doubt that if the maternity leave provisions had been unilaterally imposed on the teachers as a school board policy, they would violate due process. Cleveland Board of Education v LaFleur, 414 US 632; 94 S Ct 791; 39 L Ed 2d 52 (1974). Cf., Matter of LaFlure, 48 Mich App 377; 210 NW2d 482 (1973) (rebuttable presumption in custody hearings violates due process clause). LaFleur struck down maternity leave provisions nearly identical to those in question, the Supreme Court concluding that the provisions were based on irrebuttable presumptions that unnecessarily burdened the teacher’s freedom of personal choice in marriage and family matters. 414 US 632, 639-640.
The appellant tries to distinguish LaFleur by arguing that plaintiffs bargaining representative agreed to the maternity provisions in the collective bargaining agreement. We think that the union could not consent to this overburdening of plaintiffs protected freedom of personal choice.
It is true that, under Federal labor law, certain rights may be bargained away by the union, Mastro Plastics Corp v National Labor Relations Board, 350 US 270; 76 S Ct 349; 100 L Ed 2d 309 (1956) (right to strike for economic leverage). However, as was noted in Alexander v Gardner-Denver Co, 415 US 36, 51; 94 S Ct 1011, 1021; 39 L Ed 2d 147, 160 (1974), the rights that may be bargained away are restricted:
"[RJights * * * conferred on employees collectively to foster the processes of bargaining * * * properly may be exercised or relinquished by the union as collective bargaining agent to obtain economic benefits for unit members.” (Emphasis added.)
Alexander went on to hold that Title VII rights are "an individual’s rights to equal employment opportunities” and may not be waived. In the present case, the right to freedom of choice in marriage and family matters is similarly a right of an individual that the union cannot barter or unnecessarily burden. Cf., People v Earegood, 12 Mich App 256, 275; 162 NW2d 802 (1968), rev’d in part on other grounds, 383 Mich 82; 173 NW2d 205 (1970).
This highly personal right is well rooted in the Constitution. Eisenstadt v Baird, 405 US 438; 92 S Ct 1029; 31 L Ed 2d 349 (1972), Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), and LaFleur, supra. Certain statutory rights, of a lesser importance in our scheme of liberty, may not be bargained away by the union. Eg., National Labor Relations Board v The Magnavox Company of Tennessee, 415 US 322; 94 S Ct 1099; 39 L Ed 2d 358 (1974) (employees’ rights under section 7 of National Labor Relations Act, 29 USC 157, to form unions), Lerwill v Inflight Services, Inc, 379 F Supp 690 (ND Cal, 1974) (right to overtime pay guaranteed by Fair Labor Standards Act of 1938, 29 USCA 201 et seq., Employment Security Commission v Vulcan Forging Co, 375 Mich 374; 134 NW2d 749 (1965) (unemployment compensation).
The present agreement, by overburdening a constitutional right, is violative of the public policy of the United States and of Michigan, as manifested in the Constitution; we cannot enforce the agreement. Hurd v Hodge, 334 US 24; 68 S Ct 847; 92 L Ed 1187 (1948), St Helen Shooting Club v Mogle, 234 Mich 60, 70-71; 207 NW 915 (1926). See, also, Botany Industries, Inc v New York Joint Board, Amalgamated Clothing Workers, 375 F Supp 485, 490-491 (SD NY, 1974), vacated on other grounds, 506 F2d 1246 (CA 2, 1974), Riley v Bendix Corp, 330 F Supp 583, 590 (MD Fla, 1971), rev’d on other grounds, 464 F2d 1113 (CA 5, 1972), Dewey v Reynolds Metals Co, 300 F Supp 709, 713 (WD Mich, 1969), rev’d on other grounds, 429 F2d 324 (CA 6, 1970), aff’d by equally divided court, 402 US 689; 91 S Ct 2186; 29 L Ed 2d 267 (1971). Cf. Federoff v Ewing, 386 Mich 474; 192 NW2d 242 (1971).
III.
Appellant contends that even if the clause pertaining to maternity leave is unconstitutional, plaintiff is to be treated as if she were on ordinary leave of absence. Appellant claims that plaintiff failed to comply with the following notice requirement pertaining to a leave of absence:
"[I]f a teacher gives written notice at least sixty (60) days before , the commencement of school that he is returning from a leave at the commencement of school, he will be returned to the position he held at the commencement of the leave”. Art IX, E.
The trial judge found that plaintiffs letter of March 11, 1970, in which she stated that she wished to return to work "as soon as legally possible”, was satisfactory notice. While it would appear that plaintiff’s letter, mailed months prior to giving birth, could not exactly advise the Board of the date of plaintiffs physical ability to return to work after the birth, we are reluctant to overturn the trial court’s finding of adequacy of notice. GCR 1963, 517.1. When the school board received the letter, the probability was that plaintiff would have a normal gestation period and an uncomplicated post-birth recovery. The probability was that plaintiff would be able to return to work in September; this probability, when combined with the letter, satisfied the notice provision of the contract.
IV.
The Board challenges the trial court’s awarding damages of $5,249.23 for two reasons: (a) No damages should have been imposed given appellant’s good faith reliance on existing law, and (b) If damages were properly imposed, the Federation should be jointly liable.
We reject these challenges to the judgment but admit that we are not entirely satisfied in requiring the Board to pay damages. We would, however, be less satisfied in denying plaintiff compensation. Her rights were clearly violated; she suffered economic loss as a result, losses well established in the court below. Even though the constitutional claim may be one of first impression, courts should award compensation where there is an infringement of personal interests in liberty. Cf., Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388; 91 S Ct 1999; 29 L Ed 2d 619 (1971). We cannot honor the Board’s claim of reliance; it had less restrictive means available to it to achieve its purposes of administrative efficiency. The displacement of the relied upon clause will do violence to no interest that is worthy of protection. See Cardozo, Paradoxes of Legal Science (Columbia University Press ed, 1928), p 72.
Appellant’s attempt to impose liability on the Federation is unsuccessful. Appellant failed to file a cross-claim below and we are precluded from considering its arguments, however challenging and attractive they may be. Cf., Magreta v Ambassador Steel Co, 380 Mich 513; 158 NW2d 473 (1968). The fact that plaintiff might have appealed the directed verdict issued in favor of the Federation is no assistance to appellant; one party cannot claim another party’s appellate opportunities. Burke v Gaukler Storage Co, 13 Mich App 536; 164 NW2d 691 (1968), GCR 1963, 806.1.
V.
We affirm the judgment of the trial court. We do not consider this a vexatious appeal under GCR 1963, 816.5(1) because of the nature of the issues involved. We award no costs, a public question being involved.
US Const, Am XIV.
Plaintiffs complaint also alleged violations of the equal protection clause of the Michigan Constitution, Const 1963, art 1, § 2, the State Fair Employment Practices Act, MCLA 423.303a; MSA 17.458(3a), and the collective bargaining agreement’s anti-discrimination clause, Art V, § A. The judgment below and present appeal are not concerned with these allegations; our analysis is limited to the alleged Fourteenth Amendment violation.
Spencer v Wall Wire Products Co, 357 Mich 296; 98 NW2d 615 (1959), Grosse Pointe Farms Police Officers Association v Michigan Employment Relations Commission, 53 Mich App 173; 218 NW2d 801 (1974).
E.g., no exhaustion required if union breaches duty of fair representation. Pompey v General Motors Corp, 385 Mich 537; 189 NW2d 243 (1971); cf., Vaca v Sipes, 386 US 171; 87 S Ct 903; 17 L Ed 2d 842 (1967) (under Federal labor law).
Alexander allowed an employee to bring a claim under Title VII, 42 USC 2000e et seq., in addition to pursuing a contract claim under the collective bargaining agreement. The court stated that the two claims, while based on the same facts, were derived from legally independent origins. In the present case, the trial judge apparently believed that the U. S. Constitution was an origin of a right independent from the collective bargaining rights. Because it was an independent right, the contract grievance machinery was inapplicable.
We note, in passing, that Federal labor law doctrines do not control in cases such as the present, where the employer is a state or any political subdivision thereof. National Labor Relations Act, § 2(5), 29 USCA 152(5). Hence Michigan courts could ordinarily invoke their own exhaustion doctrines in labor disputes involving state or local governmental employers.
However, when local labor disputes also involve rights under the U. S. Constitution, the invocation of an exhaustion requirement to bar immediate access to the courts might run afoul of the U. S. Constitution. Alexander hints at this, 415 US 36, 57. Whether we must follow the logic of Alexander in hybrid questions of local labor law and U. S. constitutional law is an academic point; Michigan courts on their own have decided that exhaustion of grievance procedures is not required where constitutional claims are raised. Barry v Flint Fire Department, 44 Mich App 602, 205 NW2d 627 (1973).
We note that if the same contract were negotiated today, it would presumably be illegal and unenforceable under the present Title VII, 42 USC 2000e et seq., and the United States Equal Employment Opportunity Commission guidelines, 29 CFR 1604.10. See Hutchison v Lake Oswego School District, 374 F Supp 1056 (1974). However, when the present dispute arose, Title VII applied only to private employers. Our scrutiny is restricted to the validity of the contract under the U. S. Constitution. | [
26,
-31,
-42,
31,
25,
38,
31,
11,
-27,
25,
-28,
-1,
57,
27,
18,
-13,
12,
-10,
-1,
-17,
-60,
27,
14,
30,
40,
-31,
4,
-15,
-25,
55,
-51,
-18,
-43,
-38,
15,
28,
55,
40,
13,
-15,
-16,
-18,
-23,
-12,
1,
-25,
38,
61,
20,
11,
16,
31,
-28,
32,
6,
2,
14,
-16,
-66,
0,
-65,
21,
19,
28,
37,
-21,
30,
64,
-3,
-41,
11,
29,
-4,
-32,
-16,
0,
-9,
12,
3,
20,
18,
-36,
-22,
-24,
-8,
12,
-33,
6,
-5,
60,
-4,
12,
-67,
-5,
16,
68,
-13,
-38,
30,
-1,
-12,
-1,
-5,
40,
-26,
-6,
13,
6,
-33,
50,
-18,
58,
38,
-30,
24,
18,
40,
49,
22,
-8,
7,
45,
15,
15,
0,
-15,
-26,
30,
45,
-12,
-26,
-10,
-22,
-32,
26,
12,
23,
0,
66,
-37,
-8,
16,
4,
-20,
31,
3,
17,
-17,
3,
-48,
-28,
3,
39,
38,
3,
-26,
16,
-23,
-9,
-7,
33,
-17,
-10,
0,
-32,
-95,
-5,
29,
36,
-25,
43,
14,
45,
-14,
-15,
-25,
20,
21,
1,
70,
-54,
-64,
-32,
21,
18,
18,
-14,
-25,
6,
-11,
-19,
-72,
-11,
-28,
28,
38,
-45,
29,
-60,
-31,
9,
4,
-19,
27,
-24,
1,
-3,
-9,
-48,
10,
-10,
10,
5,
-40,
-20,
26,
-12,
40,
-20,
27,
-19,
-15,
46,
-15,
-46,
-29,
-8,
21,
73,
-35,
58,
22,
54,
-21,
-16,
10,
-7,
-4,
53,
19,
-29,
-51,
25,
35,
-10,
-21,
-69,
6,
13,
34,
-15,
-13,
14,
-8,
-3,
-20,
11,
66,
-27,
-11,
-51,
31,
1,
17,
19,
2,
-1,
57,
-15,
-37,
6,
34,
25,
-27,
-5,
-50,
-28,
-18,
23,
16,
-36,
22,
-27,
15,
-13,
25,
0,
-2,
24,
23,
-59,
-4,
-2,
-6,
36,
-30,
15,
43,
-28,
20,
-17,
15,
57,
17,
-45,
23,
-49,
-13,
69,
-24,
-7,
-8,
28,
-42,
-36,
-72,
-55,
-14,
1,
-26,
-37,
-6,
29,
58,
-13,
-78,
-7,
-15,
10,
-54,
52,
-19,
-34,
-21,
28,
-1,
-31,
36,
15,
-16,
94,
72,
44,
36,
-16,
-32,
26,
9,
25,
5,
37,
-46,
26,
31,
-67,
21,
5,
-1,
-8,
-7,
-23,
-17,
-24,
-31,
-29,
25,
47,
14,
35,
-13,
15,
-10,
27,
-29,
-32,
1,
-6,
-24,
50,
38,
-17,
-22,
-8,
-24,
-39,
-21,
18,
44,
47,
-50,
-35,
-26,
26,
16,
1,
-61,
33,
51,
13,
-29,
-26,
-45,
-24,
-17,
6,
-11,
-65,
-47,
-18,
16,
-5,
-42,
13,
7,
21,
-1,
31,
-22,
0,
15,
0,
-2,
-6,
-23,
-61,
27,
25,
-34,
32,
-6,
-28,
11,
-30,
-19,
3,
-56,
9,
-38,
17,
-10,
-23,
18,
-45,
-34,
-35,
-16,
8,
49,
14,
-20,
19,
20,
17,
48,
-52,
-2,
-62,
-5,
-52,
-50,
-27,
-23,
56,
-2,
0,
25,
-36,
62,
0,
11,
0,
-26,
20,
14,
30,
-25,
-91,
-16,
35,
-20,
46,
-49,
-21,
-36,
-9,
15,
11,
-44,
-31,
5,
33,
-39,
-36,
9,
32,
-7,
26,
-27,
-16,
34,
2,
15,
0,
-20,
7,
-1,
-67,
-36,
-3,
-30,
-6,
-12,
-8,
49,
34,
-16,
-23,
50,
18,
-20,
24,
29,
-52,
-4,
-23,
-24,
-6,
-9,
-63,
21,
-19,
33,
99,
-13,
38,
19,
-14,
-2,
34,
-38,
2,
30,
-22,
41,
-24,
-35,
-59,
-12,
28,
20,
81,
-42,
-41,
-27,
-17,
28,
-12,
3,
23,
-24,
-12,
44,
19,
-9,
14,
22,
-17,
6,
1,
40,
7,
-10,
1,
17,
-29,
2,
11,
2,
-34,
-23,
0,
14,
-25,
-14,
26,
-11,
68,
-16,
28,
-52,
9,
-29,
-1,
22,
83,
-17,
26,
-7,
9,
35,
5,
12,
-45,
8,
38,
-26,
-38,
5,
32,
-33,
24,
-7,
-3,
-35,
25,
-38,
13,
16,
20,
6,
-47,
10,
9,
-9,
-42,
72,
26,
0,
9,
-11,
20,
0,
-9,
-38,
-11,
-3,
45,
19,
6,
17,
48,
-17,
-13,
40,
-7,
-38,
-46,
-9,
-14,
-25,
1,
-25,
88,
-25,
-37,
0,
-17,
-37,
-59,
-55,
-6,
-35,
-5,
-23,
18,
-5,
-12,
-4,
7,
-16,
-23,
33,
46,
28,
70,
-2,
45,
47,
7,
0,
0,
-7,
-61,
-2,
5,
-19,
5,
-13,
-43,
-43,
48,
2,
22,
57,
-43,
-84,
9,
41,
30,
48,
-24,
40,
-8,
-6,
-18,
23,
-50,
10,
-27,
2,
-41,
-23,
-8,
-6,
-14,
1,
31,
-27,
-22,
6,
26,
67,
-20,
14,
-11,
51,
60,
-16,
28,
-14,
9,
21,
-32,
22,
53,
8,
51,
47,
9,
8,
53,
25,
-59,
-2,
-31,
7,
1,
25,
-32,
38,
-28,
-49,
-33,
-8,
-55,
2,
28,
-49,
-16,
27,
-18,
-10,
12,
19,
12,
-4,
-48,
9,
27,
-18,
19,
60,
4,
0,
35,
11,
-38,
-56,
-102,
-32,
11,
39,
44,
-36,
-2,
-19,
-7,
-3,
44,
21,
-3,
-36,
36,
-57,
15,
46,
0,
3,
-6,
-59,
-20,
11,
5,
61,
-1,
18,
-18,
16,
-1,
0,
-30,
48,
-10,
27,
-31,
30,
-25,
27,
-23,
1,
11,
2,
-34,
-4,
34,
-26,
-6,
10,
14,
14,
48,
12,
14,
-12,
-39,
-23,
-49,
-17,
19,
-15,
35,
-8,
-26,
-55,
-9,
35,
14,
43,
34,
-49,
12,
-52,
-6,
25,
43,
-26,
18,
-19,
-17,
10,
24,
18,
-23,
17,
7,
74,
-42,
13,
40,
23,
-53,
-58,
26,
10,
21,
48,
-32,
-3,
0,
-43,
11,
24,
-21,
-43,
41,
7,
10,
15,
37,
-10,
46,
48,
-41,
-10,
-21,
-4,
-21,
-12,
-51,
-54,
4,
24,
36,
-17,
-47,
10,
9,
-44,
1,
-4,
-46,
-10,
-48,
21,
-32,
8,
-105,
1,
31,
-35,
34,
-51,
17,
-87,
-8,
22,
-21,
31,
-12,
2,
61,
-9,
-11,
-7,
53,
17,
65,
-7,
22,
-44,
-12,
0,
32,
-1,
-1,
6,
-3,
-21,
-21,
-20,
-3,
36,
45,
-7,
-60,
-6,
-8,
24,
22,
23,
5,
-11,
39,
21,
6,
-38,
-28,
21,
-22,
-40,
16,
-16,
-9,
1,
-7,
20,
6,
38,
4,
-10,
-12,
-7,
-15,
22,
-13,
-12,
-8,
-31,
-27,
-2,
-3,
-4,
62,
-53,
-1,
-10,
-13,
-44,
75,
32,
58,
0,
-6,
39,
-16,
-6,
64,
-67,
-1,
72,
18,
33,
33,
-38,
71,
-3,
-17,
-1,
18,
-4,
7,
11,
-9,
4
] |
After Remand
Per Curiam.
By an opinion of August 29, 1975, we remanded this action to the trial court for specific findings of fact pursuant to GCR 1963, 517.1. Allen v Kelley, 64 Mich App 616; 236 NW2d 707 (1975). The trial court made those findings, and we now review them. The pivotal findings made by the trial court were that the disputed trust items were not the conception of the deceased settlor, that the agreement was never explained to the settlor and that the settlor signed the trust instrument without knowledge of its contents. The court found that these facts required its holding that the trust agreement was void.
While we review actions in equity on a de novo basis, we give great weight to the trial court’s findings of fact and will not overturn such findings except where they constitute an abuse of discretion. Cerling v Hedstrom, 51 Mich App 338; 214 NW2d 904 (1974). We find from our review of the record that the trial court was correct in holding the trust instrument void. The facts demonstrated that the settlor did not manifest an intent to create the trust, an element necessary to the validity of the instrument. Osius v Dingell, 375 Mich 605; 134 NW2d 657 (1965).
Affirmed. Costs to defendant. | [
2,
-5,
3,
17,
-22,
47,
43,
-2,
43,
32,
-6,
6,
33,
9,
4,
18,
6,
68,
-10,
-38,
-25,
40,
-12,
-21,
-10,
-15,
0,
10,
55,
-6,
13,
26,
-16,
22,
-22,
-40,
0,
-30,
0,
-16,
-37,
15,
-9,
24,
-32,
-41,
1,
-49,
-2,
-14,
39,
42,
-9,
-48,
60,
-36,
-46,
-39,
-66,
15,
45,
-20,
53,
-1,
11,
-1,
12,
-30,
4,
-46,
-33,
31,
29,
-17,
48,
-25,
23,
31,
-18,
-55,
62,
-25,
5,
-58,
-33,
-29,
-14,
39,
-3,
56,
-15,
-20,
-62,
-20,
-41,
41,
6,
-65,
28,
21,
54,
-20,
-5,
15,
20,
-19,
-17,
-11,
-14,
-40,
33,
21,
17,
15,
-23,
24,
-35,
-12,
0,
-20,
-22,
33,
12,
-27,
5,
0,
17,
6,
27,
64,
-10,
13,
-26,
21,
-9,
-71,
-40,
-18,
-33,
-19,
-10,
39,
-19,
-6,
-22,
53,
-10,
-3,
-4,
-21,
-14,
21,
10,
25,
67,
-57,
-18,
-38,
0,
-16,
1,
38,
-32,
-32,
10,
12,
40,
-9,
12,
3,
-7,
50,
-26,
0,
-24,
13,
26,
-4,
0,
29,
5,
-7,
27,
-15,
44,
20,
-25,
7,
16,
-23,
-28,
15,
-4,
60,
-11,
48,
-11,
27,
14,
3,
-21,
-27,
-26,
-15,
3,
15,
58,
2,
20,
49,
-3,
48,
11,
-27,
0,
7,
9,
-25,
21,
5,
12,
-10,
26,
-5,
-18,
-17,
27,
2,
-65,
-2,
-5,
53,
-55,
-34,
10,
20,
-2,
-1,
47,
18,
31,
-3,
-1,
-12,
17,
-72,
37,
35,
34,
11,
-57,
0,
1,
-1,
37,
-39,
-5,
51,
19,
-35,
11,
37,
-48,
-22,
-41,
-29,
31,
12,
11,
40,
-3,
-1,
15,
-12,
55,
4,
-58,
-17,
0,
-16,
23,
4,
21,
63,
-45,
66,
-32,
61,
-19,
3,
36,
45,
29,
-38,
-8,
24,
-11,
-1,
11,
-5,
38,
14,
4,
86,
-42,
17,
-12,
51,
-75,
-22,
2,
41,
58,
-66,
-29,
14,
-50,
-6,
40,
-42,
-36,
27,
18,
-54,
22,
-12,
26,
-67,
-2,
29,
-11,
32,
31,
24,
-23,
1,
-12,
-34,
-6,
-11,
15,
25,
4,
-52,
-4,
-34,
-6,
20,
-27,
15,
-21,
-15,
-13,
6,
-9,
-4,
39,
-14,
7,
-13,
5,
-28,
8,
-16,
-2,
9,
-35,
-22,
-41,
7,
-6,
11,
-60,
20,
-38,
24,
15,
-1,
9,
14,
-72,
23,
11,
55,
-26,
14,
-11,
45,
-12,
16,
-6,
32,
-6,
36,
-20,
31,
-20,
31,
-53,
16,
-18,
31,
-17,
-9,
-45,
54,
18,
-26,
-1,
34,
0,
35,
-6,
-19,
-8,
-30,
1,
-35,
1,
-4,
21,
-57,
-24,
-11,
-78,
9,
-60,
-5,
-35,
-75,
-62,
6,
1,
-44,
2,
12,
-36,
24,
-13,
34,
-14,
-17,
-5,
22,
-4,
39,
-2,
-45,
59,
33,
5,
-3,
25,
16,
0,
24,
57,
11,
16,
9,
68,
11,
-18,
-7,
20,
-20,
-11,
-25,
35,
-6,
10,
-16,
-17,
24,
-49,
5,
-9,
38,
18,
-8,
19,
23,
-49,
-40,
-27,
40,
-31,
-76,
9,
-9,
21,
-2,
26,
35,
-39,
-39,
-12,
-56,
11,
13,
6,
-25,
-37,
-9,
72,
-3,
18,
-16,
-9,
-7,
33,
-21,
-1,
57,
-46,
-46,
30,
-2,
28,
46,
37,
-24,
-24,
7,
-17,
25,
30,
51,
8,
-12,
50,
52,
-18,
-55,
-22,
24,
8,
-53,
-12,
6,
-12,
59,
9,
25,
-25,
2,
31,
-29,
-43,
40,
-63,
-53,
27,
40,
0,
-31,
56,
-4,
-5,
-34,
24,
25,
2,
33,
15,
-45,
-28,
-59,
21,
1,
20,
-21,
-1,
1,
44,
-32,
34,
62,
-2,
-29,
-41,
7,
-34,
-9,
-66,
3,
17,
19,
-30,
-3,
-9,
-5,
1,
-43,
-26,
-32,
59,
-23,
41,
27,
-10,
-20,
11,
0,
-12,
2,
2,
16,
-8,
-47,
34,
-40,
53,
-5,
13,
13,
26,
23,
-62,
61,
-20,
-2,
-10,
-10,
45,
19,
-8,
9,
-7,
27,
2,
-50,
-4,
11,
-60,
23,
1,
-9,
4,
-39,
-3,
28,
37,
-24,
11,
-22,
-26,
-4,
-12,
4,
-14,
35,
20,
-2,
-12,
-5,
40,
-75,
9,
-35,
43,
-26,
-9,
42,
40,
29,
-12,
27,
28,
29,
-10,
37,
19,
30,
38,
-14,
5,
-16,
24,
11,
-12,
18,
4,
11,
24,
-18,
-6,
-6,
2,
22,
2,
48,
-32,
27,
17,
-25,
69,
32,
-2,
28,
16,
-20,
-17,
0,
4,
-19,
-7,
30,
-12,
-11,
-37,
4,
-8,
-31,
-18,
-11,
18,
10,
-10,
-68,
-47,
-26,
-2,
42,
-22,
11,
21,
16,
10,
-69,
5,
-32,
-18,
38,
15,
27,
10,
14,
-2,
-39,
31,
-35,
-35,
9,
-18,
30,
24,
32,
-18,
21,
40,
30,
1,
38,
-31,
53,
23,
-7,
13,
-69,
-1,
93,
-43,
11,
-8,
-37,
0,
-37,
-3,
8,
0,
1,
-35,
4,
-28,
12,
3,
-28,
15,
-12,
13,
-12,
21,
66,
5,
-73,
4,
-78,
-51,
27,
3,
-24,
32,
3,
42,
22,
48,
-22,
19,
-13,
15,
37,
13,
40,
-4,
8,
-29,
-1,
20,
58,
39,
10,
-15,
-10,
24,
2,
8,
20,
26,
-20,
29,
61,
-6,
-25,
14,
21,
33,
-38,
-41,
-3,
-9,
-7,
-15,
0,
-15,
-54,
-18,
6,
54,
-42,
-42,
-6,
-44,
9,
27,
42,
-17,
-22,
0,
-8,
19,
19,
1,
-39,
-6,
-15,
-40,
22,
15,
7,
-47,
24,
8,
-3,
28,
18,
-57,
-31,
11,
-18,
-23,
24,
-48,
28,
-14,
17,
14,
-16,
-4,
16,
3,
-7,
-49,
-69,
-3,
42,
32,
-45,
-21,
47,
-18,
23,
47,
-30,
-50,
4,
37,
-40,
14,
34,
-86,
20,
-71,
33,
8,
7,
-18,
0,
-11,
44,
15,
11,
-14,
34,
-14,
41,
-10,
-62,
1,
8,
62,
-31,
11,
-29,
-10,
-49,
-12,
41,
-94,
-5,
-14,
29,
-22,
-19,
23,
-22,
-8,
-21,
-31,
26,
17,
-37,
-75,
36,
15,
-45,
-26,
21,
27,
-34,
-12,
-9,
-14,
12,
-75,
-17,
9,
18,
-2,
-50,
-88,
-25,
-28,
4,
81,
-3,
-11,
-35,
-21,
-27,
-17,
-30,
-30,
-26,
-27,
-19,
30,
8,
-20,
-42,
-29,
-42,
-29,
-8,
-7,
-11,
22,
-15,
-19,
-56,
32,
-51,
-19,
26,
-59,
1,
41,
4,
-14,
18,
-5,
25,
56,
-14,
-15,
-20,
34,
20,
-36,
-17,
12,
17,
70,
76,
-3,
14,
-35,
-31,
72,
-18,
-15,
27,
-45,
17
] |
M. F. Cavanagh, J.
Defendant was convicted by a jury of extortion for threatening a witness, MCLA 750.213; MSA 28.410. He was sentenced to 5 to 20 years in prison and appeals of right.
The victim of the extortion was Lois Martin, a 17-year-old girl, who was in the courthouse to testify as a witness in an assault and battery prosecution involving neither defendant Atcher nor his codefendant Fleming. While she sat waiting outside the courtroom, Fleming approached her and asked her whether she was going to testify against Charles Williams, the defendant in the assault and battery prosecution. Fleming then stated, "Somebody needs to beat your butt”, and left. Defendant 'then approached her and, after questioning her whether she was going to testify against Charles Williams, stated, "Somebody needs to beat your butt; you ain’t going to stay in this courthouse forever”, and left. Fleming and defendant later approached her together and Fleming asked her whether she was still going to testify against Williams.
On appeal defendant raises essentially six issues.
I
Defendant first argues that he was denied a fair trial by the prosecutor’s remarks to the jury. In closing argument the prosecutor discoursed on how the "system of justice” itself was at stake in this case. In so doing, defendant argues, the prosecutor improperly injected matters extraneous to the issue before the jury and made dire predictions as to the consequences of an acquittal. People v Farrar, 36 Mich App 294; 193 NW2d 363 (1971). Furthermore, defendant argues, certain other remarks inflamed racial fears.
No objection to these remarks was made at trial. The absence of objection generally precludes appel late review unless failure to consider the issue would result in a miscarriage of justice, People v Pacely, 51 Mich App 67; 214 NW2d 561 (1974), or unless the prejudicial effect of the remarks could not have been eliminated by a prompt objection and curative instruction, People v McLendon, 51 Mich App 543; 215 NW2d 742 (1974). Furthermore, the prosecutor’s closing remarks are read as a whole when the Court attempts to evaluate any potential prejudicial effect. People v Spaulding, 42 Mich App 492; 202 NW2d 450 (1972), lv den, 388 Mich 809 (1972).
When reviewed under these standards, the remarks complained of do not require reversal. The prosecutor was not calling upon the jury to support the system of justice by convicting the defendant. Cf. People v Farrar, supra. He was emphasizing the seriousness of the offense, despite that it had been committed in connection with a misdemeanor assault and battery trial, and the seriousness of refusing to convict if they believed that the defendants did threaten or intimidate the witness. Nor did the prosecutor inject or appeal to the issue of race to inflame the fears or prejudices of the jury. The element of race was adverted to no greater extent than the facts of the case warranted.
II
Next, defendant claims that he was denied effective assistance of counsel in that defense counsel was incompetent. Beasley v United States, 491 F2d 687 (CA 6, 1974). Defendant’s argument is without merit in that he fails to adduce any supportive facts. Defendant argues that trial counsel failed to present a coherent, credible defense theory. Trial counsel’s defense theory, however, emphasized vir tually the same substantive issues as those now argued by appellate counsel: that Lois Martin was an unreliable witness and that any statements made by defendants were not threats.
III
It is further urged that there was insufficient evidence of either an intelligible, substantial threat or an intent to coerce Lois Martin to do an act against her will. This contention is without merit. The threat must be intelligible to be considered a criminal offense. People v Jones, 62 Mich 304; 28 NW 839 (1886). The jury was presented with the words spoken and the context in which they were spoken. Although the words might possibly be construed otherwise than as a threat, there was sufficient evidence to support the finding of the jury. People v Percin, 330 Mich 94; 47 NW2d 29 (1951). As to whether the necessary intent was shown was a question to be decided by the jury from the facts before them. People v Percin, supra.
IV
Defendant also attacks the statute under which he was convicted arguing its inapplicability or, in the alternative, its violation of the title-object clause, Const 1963, art 4, § 24, and its unconstitutionality. The statute proscribes threats made "with intent to compel the person so threatened to do or refrain from doing any act against his will”, MCLA 750.213; MSA 28.410. Although the statute also proscribes threats made "with intent thereby to extort money”, MCLA 750.213; MSA 28.410, and generally is invoked in prosecutions involving the extortion of money, the language of the statute includes the conduct prosecuted in this case. The argument that the statute violates the title-object clause, Const 1963, art 4, §24, is frivolous. The words objected to by defendant are not the title of the act but rather the catch line heading of the section. People v Ferguson, 46 Mich App 331; 208 NW2d 647 (1973).
V
The fifth claimed error is that the trial court allowed the prosecutor to call on rebuttal an unindorsed res gestae witness whose testimony was not proper rebuttal but rather should have been presented in the prosecutor’s case in chief. People v Quick, 58 Mich 321; 25 NW 302 (1885), People v Bennett, 393 Mich 445; 224 NW2d 840 (1975), also, People v Kennedy, 267 Mich 430; 255 NW 405 (1934).
Permitting the prosecution to call an unindorsed res gestae witness on rebuttal does not in every case constitute reversible error, even where the defense timely objects and the rebuttal nature of the testimony is unclear. See People v Massey, 63 Mich App 142; 234 NW2d 432 (1975). The presence or absence of objection is a factor in the review of such claimed error. See People v Bauman, 332 Mich 198; 50 NW2d 757 (1952). Cf. People v McGillen #1, 392 Mich 251; 220 NW2d 677 (1974), People v Bennett, supra, People v Kennedy, supra. Here the defense did not object and the trial court gave a limiting instruction. Furthermore, the witness’s testimony concerned codefendant Fleming and was not prejudicial to defendant.
VI
Lastly, it is claimed that the trial court abused its discretion when it concluded that Lois Martin was competent to testify. At trial defense counsel objected to Martin’s testimony on the basis of her incompetency. The trial court examined her and concluded that she was competent. On appeal this Court remanded to the trial court for an evidentiary hearing on Martin’s competency. At the hearing both prosecution and defense presented expert witnesses.
The determination of the competency of a witness is a matter within the sound discretion of the trial court. Mead v Harris, 101 Mich 585; 60 NW 284 (1894), People v Johnson, 30 Mich App 284; 186 NW2d 94 (1971), lv den 384 Mich 838 (1971). Upon reviewing the record, we find no abuse of discretion by the trial court.
Affirmed. | [
10,
-31,
1,
50,
0,
-32,
-37,
-23,
-77,
-22,
-1,
-29,
-1,
-13,
50,
-29,
-15,
-30,
45,
-32,
-18,
-67,
18,
17,
21,
-1,
48,
36,
-24,
42,
-9,
17,
21,
7,
-4,
-40,
37,
-7,
3,
22,
-2,
-13,
12,
67,
-36,
-15,
-7,
57,
20,
39,
-2,
-12,
16,
38,
1,
17,
31,
5,
-27,
21,
-3,
-23,
-90,
-45,
-10,
-68,
19,
22,
-49,
2,
-20,
-18,
35,
-28,
-4,
1,
-19,
23,
34,
31,
-14,
18,
6,
36,
36,
-36,
-8,
-85,
-13,
-20,
-7,
46,
-104,
-3,
7,
5,
2,
-6,
8,
-21,
25,
-29,
-66,
-22,
-21,
64,
-18,
-19,
-30,
65,
-9,
15,
52,
-48,
-30,
-52,
-38,
-15,
-17,
27,
-8,
33,
-11,
-57,
-7,
20,
2,
-49,
44,
-12,
13,
60,
12,
-21,
-5,
23,
9,
32,
2,
38,
-28,
23,
16,
-26,
34,
19,
-47,
11,
-12,
18,
-24,
1,
2,
0,
22,
-43,
7,
-4,
-29,
-6,
54,
8,
-27,
-19,
-3,
-22,
2,
-42,
29,
-7,
-58,
0,
21,
17,
19,
-22,
-31,
-5,
-1,
-13,
8,
15,
1,
39,
13,
51,
37,
6,
-36,
32,
3,
2,
-2,
-17,
72,
4,
17,
27,
10,
2,
14,
-3,
10,
-4,
-22,
-32,
-21,
-32,
32,
-45,
-10,
16,
-33,
2,
-8,
8,
-14,
0,
4,
30,
-64,
-38,
-29,
-11,
-24,
-31,
-15,
15,
14,
-31,
52,
35,
-28,
12,
-38,
14,
23,
-24,
35,
-17,
-36,
5,
36,
13,
13,
-37,
-28,
7,
18,
13,
0,
-7,
11,
76,
-49,
59,
34,
-27,
-40,
-21,
-28,
21,
-18,
46,
39,
42,
3,
23,
-57,
0,
75,
-56,
9,
9,
-23,
23,
-48,
-31,
13,
-26,
31,
42,
-5,
-7,
14,
-22,
-74,
66,
-15,
-11,
28,
-40,
6,
-18,
82,
-8,
28,
-27,
-5,
43,
6,
-16,
17,
-20,
29,
8,
36,
-1,
-18,
-15,
55,
-10,
10,
-19,
45,
-5,
-2,
17,
34,
-29,
-21,
-28,
11,
-20,
51,
-3,
5,
-19,
12,
-9,
44,
18,
2,
19,
-8,
-28,
-20,
34,
38,
25,
-45,
-21,
-1,
-43,
-14,
43,
-58,
29,
-7,
-55,
31,
-17,
13,
16,
6,
-1,
-31,
-18,
23,
-28,
-21,
-22,
-27,
-21,
4,
-14,
2,
-41,
-33,
58,
33,
-36,
-29,
-23,
2,
-6,
85,
-4,
9,
17,
24,
-24,
23,
-13,
19,
-55,
-37,
-24,
-1,
-11,
-27,
0,
-7,
-30,
-15,
-53,
-58,
19,
58,
17,
-38,
-23,
-3,
13,
-53,
5,
-74,
-28,
3,
-25,
19,
36,
18,
59,
3,
-47,
29,
-32,
34,
-15,
-12,
-2,
120,
51,
-11,
-31,
4,
-45,
44,
-38,
-20,
-2,
4,
-30,
2,
17,
-33,
0,
9,
-5,
-8,
-6,
53,
-4,
45,
20,
-3,
-23,
-15,
-47,
-28,
-34,
17,
-55,
-20,
30,
20,
-14,
22,
18,
5,
-16,
-34,
35,
74,
-48,
-27,
-23,
24,
-43,
72,
-8,
2,
31,
3,
9,
21,
7,
-3,
-14,
47,
48,
-24,
-64,
6,
-15,
-1,
-71,
11,
-52,
-8,
-8,
12,
-8,
14,
65,
38,
0,
-41,
13,
-24,
12,
24,
12,
21,
-34,
39,
2,
17,
49,
20,
20,
-56,
15,
-18,
3,
-32,
29,
-18,
-1,
29,
-29,
14,
4,
-12,
-10,
-3,
-40,
-46,
-1,
54,
-8,
20,
-10,
49,
49,
-43,
-42,
-7,
-17,
-15,
29,
-3,
-16,
-9,
-57,
-26,
-5,
9,
56,
46,
-14,
13,
-51,
-4,
-5,
-21,
-12,
5,
-8,
-29,
36,
31,
29,
30,
0,
3,
12,
62,
-10,
17,
36,
-7,
19,
-35,
-27,
16,
2,
-15,
53,
21,
-18,
-20,
4,
-56,
-10,
45,
23,
0,
-2,
-55,
16,
28,
-1,
-7,
-26,
-10,
-30,
13,
-20,
66,
-24,
-8,
-16,
17,
-20,
38,
-5,
14,
-4,
1,
-2,
-55,
26,
-1,
43,
-31,
12,
-11,
-4,
48,
0,
3,
12,
-26,
-43,
-37,
-55,
-18,
-39,
-42,
-37,
-18,
52,
-26,
15,
-45,
16,
-16,
-6,
-40,
24,
3,
-24,
54,
4,
-10,
-21,
-24,
-47,
3,
-15,
-18,
-24,
-37,
-23,
-23,
34,
4,
-4,
29,
50,
-32,
-47,
-47,
7,
14,
-2,
22,
-5,
-20,
-4,
41,
2,
24,
29,
32,
-35,
34,
-3,
-3,
-14,
23,
28,
-13,
6,
-35,
42,
-22,
28,
22,
-17,
32,
71,
29,
-22,
38,
13,
-28,
38,
-27,
-25,
-20,
-33,
18,
47,
17,
-5,
66,
-34,
-6,
43,
-6,
70,
19,
-6,
-31,
-38,
-20,
45,
16,
6,
47,
12,
19,
17,
60,
-6,
44,
11,
15,
11,
-11,
23,
5,
27,
-44,
11,
-10,
13,
-28,
16,
-44,
-55,
12,
-25,
6,
-61,
23,
20,
33,
5,
36,
21,
-27,
14,
32,
39,
-45,
8,
-19,
2,
-16,
-74,
-15,
31,
15,
-31,
84,
-23,
-53,
-53,
-10,
16,
-45,
30,
17,
27,
-41,
28,
4,
16,
-33,
17,
-57,
-37,
21,
21,
-21,
16,
0,
3,
-66,
36,
-42,
-9,
-7,
-62,
30,
1,
7,
26,
26,
-32,
-18,
-4,
30,
-42,
-10,
9,
-59,
26,
-48,
7,
-29,
30,
-26,
18,
-41,
0,
22,
30,
29,
-2,
10,
-15,
-12,
-2,
-32,
-53,
2,
29,
-13,
12,
-34,
4,
11,
31,
10,
18,
64,
-26,
32,
13,
44,
-23,
16,
-5,
-13,
29,
20,
24,
-52,
-17,
-65,
-1,
-9,
16,
-8,
4,
-8,
8,
-77,
-10,
10,
14,
6,
-54,
51,
-4,
27,
22,
55,
7,
-26,
31,
-34,
-31,
-39,
51,
27,
-13,
-18,
-1,
-6,
-10,
15,
-9,
-38,
-26,
14,
12,
40,
-10,
-41,
-26,
76,
-2,
21,
-42,
19,
-19,
-12,
27,
-3,
-26,
3,
29,
11,
17,
14,
-2,
55,
18,
-18,
41,
26,
19,
53,
-19,
-8,
16,
25,
34,
0,
-25,
8,
-54,
-43,
39,
-34,
-46,
-31,
-41,
-56,
9,
24,
-37,
22,
31,
29,
28,
-11,
32,
17,
5,
-37,
-12,
-16,
27,
-35,
9,
30,
-11,
-25,
21,
-12,
35,
-16,
-14,
-4,
53,
-42,
-18,
90,
44,
-6,
-16,
-28,
26,
46,
2,
-10,
-22,
-5,
-54,
16,
-20,
-2,
-58,
-10,
-37,
7,
-16,
-48,
2,
-9,
33,
-17,
-15,
-26,
-2,
-25,
35,
35,
32,
30,
-1,
-34,
-33,
-50,
23,
-3,
0,
-24,
0,
13,
-7,
25,
-13,
12,
-21,
9,
-13,
33,
27,
-15,
-26,
-6,
41,
-9,
49,
5,
39
] |
D. E. Holbrook, Jr., J.
June 10, 1968, Donald Anderson, aged 14, and a group of friends went swimming in the lake of a gravel pit adjacent to the City of Lansing’s Scott Woods Park. When they arrived at the lake there were approximately 50 or 60 people swimming and diving around the lake. They noticed there was a diving board and a raft in the lake. From appearances, they assumed it was part of the park since trails led from the park to the lake and they did not notice any fence or warning signs.
After swimming and diving in one part of the lake for awhile, Donald Anderson and his friends moved to a new area approximately 25 feet away when the area of the lake they were swimming in became crowded. At that point the bank rose approximately 10 feet out of the water. First, they checked the water depth around the bank at which they intended to dive to make sure that it was safe for diving. Discovering that the bottom dropped off sharply about four feet from the bank, Donald Anderson asked one of his friends to mark the drop-off by standing at the edge. He then climbed the bank in preparation for a dive. As he began his dive the bank crumbled beneath him causing him to lose the spring in his jump, and he fell head first into the shallow water.
As a result, Donald Anderson fractured several vertebrae and is almost totally paralyzed from the neck down. He suffers nearly constant physical distress but with the assistance of his family and friends he has been able to attend some college classes although he is virtually helpless as far as taking care of his personal needs.
Construction of the lake began in 1966 when Cheney and Rahfeldt, then owners of the property in question, contracted with Brown Brothers for the removal of gravel. The City of Lansing sought an injunction claiming injury to a public street. By a court order dated December 6, 1966, Cheney and Rahfeldt conveyed the property to the city. The order granted Cheney and Rahfeldt the right to contract for the removal of gravel from the property and to create a man-made lake for the City of Lansing within five years. Paragraph 8 of that order provided:
"IT IS FURTHER ORDERED, that Glen T. Cheney and Albert W. Rahfeldt and their contractor shall erect and maintain a farm type fence of a type to make climbing difficult around the excavation and to erect a gate, all under specifications determined by the Parks Department of the City of Lansing. This fence shall be completed and installed before excavation is done below water level at any point or any water collects in any excavated point on the property.”
The fence was erected but according to testi mony, by June, 1968, the fence had broken down. There was also testimony that the gate was not always kept closed, even when there was no excavation work being done. Neighbors testified that they had complained to all the defendants concerning the use of the lake as a swimming area. However, no remedial action was taken before the accident.
The plaintiffs filed a three count complaint against the defendants. Count one alleged nuisance; count two alleged gross negligence or wilful and wanton misconduct; and count three alleged simple negligence. The City of Lansing and Brown Brothers, Inc., moved for summary judgment on counts one and three on the authority of MCLA 300.201; MSA 13.1485. The City of Lansing also moved for summary judgment on count two on the grounds of governmental immunity. The trial court granted the motion on counts one and three as to all defendants, but denied the City of Lansing’s motion for summary judgment on count two because of Maki v East Tawas, 18 Mich App 109; 170 NW2d 530 (1969), affirmed, 385 Mich 151; 188 NW2d 593 (1971).
The parties proceeded to trial on the gross negligence or wilful and wanton misconduct count in September, 1973, after waiving jury trial. At the close of plaintiff’s proofs the trial court granted defendants’ motion for a judgment of no cause of action on count two. The trial court found no evidence of gross negligence or wilful and wanton misconduct. It concluded that defendants were not required to foresee that Donald Anderson would attempt to dive off a bank that would crumble underneath him. It also found that failure by the defendants to keep others out of the gravel pit was not so reckless as to constitute wilful and wanton misconduct. Plaintiffs appeal as of right.
Plaintiffs argue that the trial court erred in granting defendants’ motion for summary judgment on the básis of MCLA 300.201; MSA 13.1485, as the statute was not intended to apply to this type of case. Alternatively, plaintiffs argue that the statute is unconstitutional as a violation of due process, equal protection, and article 4, § 24 of the Michigan Constitution. Given our disposition of the first issue we do not reach this issue.
Plaintiffs also argue that the trial court erred in awarding defendants a judgment of no cause of action on the gross negligence count. From my review of the record, however, I cannot say that the trial judge’s findings of fact and conclusions of law were clearly erroneous. I therefore would affirm the judgment of no cause of action on the gross negligence count. GCR 1963, 517.1. Ruemenapp v National Food Stores, Inc, 385 Mich 648; 189 NW2d 330 (1971).
I.
Plaintiffs first argue that they are not within the recreational property owners immunity statute, MCLA 300.201; MSA 13.1485, as the acts that caused the injury, i.e., diving and swimming, are not within the statute. In Taylor v Mathews, 40 Mich App 74; 198 NW2d 843 (1972), it was merely assumed that diving was within the statute since they affirmed the trial court’s application of the statute. The trial court, however, in its opinion granting the motions for summary judgment in the present case, very logically stated the reason for including "swimming” and "diving” within the words "similar outdoor recreational use”.
"It is the opinion of this court that swimming is the type of recreation that is a natural extension of many of the activities specifically enumerated in the statute and, in the absence of any reason to the contrary, should fall into the category of a 'similar outdoor recreational’ activity. To construe the statute otherwise would be to say that a man who wades out in another’s lake to fish has no cause of action for injuries, but he is not barred from suit if he changes his mind and goes swimming, and is injured. Equally untenable would be to bar from recovery a person who sustains injuries while he is merely sightseeing or hiking across the land of another and yet to allow the same trespasser to get into court if he should, in the course of his hike, pause for a swim, or if he should purposely go onto Defendants’ property and go swimming, and sustain injuries.” (Citation omitted.)
However, to say that the activity of Donald Anderson is within the statute does not necessarily make the statute applicable. Defendants also must come within the statute.
II.
It is undisputed that the City of Lansing is the legal owner of the land on which the gravel pit is located. While MCLA 691.1407; MSA 3.996(107) (1964 PA 170, § 7), gave the City of Lansing complete immunity from its negligence in governmental functions, such was declared unconstitutional in Maki v East Tawas, supra, because of a violation of article 4, §24, of the Michigan Constitution.
Because Maki v East Tawas, supra, eliminated the defense of governmental immunity, the City of Lansing must rely on the recreational property owners immunity statute. Because both statutes deal with a similar subject matter, i.e., immunity from tort liability, it is the duty of this Court to read these two statutes together to reach a consistent result. Rathbun v Michigan, 284 Mich 521, 545; 280 NW 35 (1938), People v Martin, 59 Mich App 471; 229 NW2d 809 (1975). In reading statutes together, as a general rule, it is necessary to look at the state of the law when the second statute was enacted. Lakehead Pipeline Co v Dehn, 340 Mich 25, 134; 64 NW2d 903 (1954), Brown v Department of State, 45 Mich App 322, 325; 206 NW2d 481 (1973). However, in this case it is necessary to look to the state of the law when the first statute was passed since the second statute, the governmental immunity statute, was enacted as a response to the overruling of common law governmental immunity. See Brown v Department of State, supra.
When the recreational property owners immunity statute was passed in 1953, there was still common law immunity for municipal corporations from tort liability. Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961). Although the doctrine was under attack at the time in academic and judicial circles, the doctrine had continued vitality in 1953. Martinson v Alpena, 328 Mich 595; 44 NW2d 148 (1950).
It is also a rule of statutory construction that this Court will not presume that the Legislature intended to do a useless act. Klopfenstein v Rohlfing, 356 Mich 197, 202; 96 NW2d 782 (1959), Davis v Imlay Township Board, 7 Mich App 231, 236; 151 NW2d 370 (1967). The recreational property owners immunity statute grants an exception for gross negligence or wilful and wanton misconduct. However, both the common law and the governmental immunity statute recognize no exceptions as regards outdoor recreational areas. Because governmental immunity is more inclusive than the recreational property owners immunity we hold that the Legislature intended that only governmental immunity apply to property owned by a municipal corporation used in a governmental function.
Shortly before the Legislature amended the recreational property owners immunity statute to put it in the form that is relevant to this case, the Legislature enacted the 1964 governmental immu nity statute. Thus at both times before this case arose that the Legislature considered the recreational property owners immunity statute there was governmental immunity. The Legislature did not consider the recreational property owners immunity statute as a back-up for governmental immunity. In 1953 the common law rule of governmental immunity was still alive and in 1964 there was a new statute on the subject. It was not within the power of the Legislature to foresee the 1969 and 1971 Maki v East Tawas, supra, decisions holding the governmental immunity law unconstitutional since it is presumed that the Legislature passes only constitutional acts. Clarence Township v Dickinson, 151 Mich 270, 272; 115 NW 57 (1908). It is a mere fortuity that the City of Lansing cannot invoke governmental immunity in this case.
III.
Since the recreational property owners immunity statute was not designed or intended to apply to lands of a municipality while the municipality is engaged in a governmental function I conceive no valid reason why a tenant or lessee of lands owned by a municipality should enjoy any greater benefits from the statute than those enjoyed by the municipality.
Hence, I would hold that a tenant or lessee of lands owned and used by a municipality while engaged in a governmental function enjoys no greater protection from the recreational property owners immunity statute than that enjoyed by the municipality, which is none.
It therefore becomes unnecessary to determine whether the remaining parties defendant are in fact tenants or lessees since, under the circum stances, they do not fall within the protection afforded by the statute. The court therefore erred in granting summary judgment on the nuisance and negligence counts as to all defendants.
I would affirm in part and reverse in part. I would remand for trial on plaintiffs’ counts one and three as to all defendants. I vote to award no costs since neither plaintiffs or defendants have prevailed in full. Further, a public question and interpretation of a statute are involved.
MCLA 300.201; MSA 13.1485 provided before a 1974 amendment: "No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, or other similar outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee.” (Emphasis supplied.)
A valid governmental immunity statute was enacted in 1970, This does not affect the outcome of this litigation however. Campbell v Detroit, 51 Mich App 34; 214 NW2d 337 (1973).
While Williams r Detroit, supra, voided common law governmental immunity, it did state that the Legislature had the right to enact an immunity statute. This the Legislature did with 1964 PA 170. The amendment to the recreational property owners immunity statute was 1964 PA 199. Donellon v County of Wayne, 2 Mich App 576, 579, n 2; 141 NW2d 387 (1966).
Smith, Municipal Tort Liability, 48 Mich L Rev 41 (1949), Seasongood, Municipal Corporations: Objections to the Governmental or Proprietary Tests, 22 Va L Rev 910 (1936), see, Anderson, Claims Against States, 7 Vand L Rev 234 (1954), Synposium, Governmental Tort Liability, 9 Law & Contemp Prob 179-370 (1942), Borchard, Governmental Responsibility in Tort, 36 Yale L J 1039 (1927).
Although judges had not in 1953 made a frontal assault on governmental immunity, the proprietary-governmental function dichotomy, was in full flower. Judges tended to stretch definition of what a proprietary function was in order to allow defendants to recover. Accord, Matthews v Detroit, 291 Mich 161; 289 NW 115 (1939).
I do not express an opinion on whether the Legislature intended MCLA 300.201; MSA 13.1485 to apply when a municipal corporation is a defendant over land on which it is exercising a proprietary function. | [
-17,
32,
-1,
-23,
43,
7,
-19,
52,
44,
5,
-63,
-45,
30,
16,
-34,
17,
-32,
-28,
-70,
19,
12,
-20,
0,
-16,
-74,
6,
43,
-37,
-11,
-45,
25,
-23,
26,
-22,
16,
91,
25,
7,
4,
38,
-72,
-27,
9,
-23,
19,
74,
50,
7,
-30,
-39,
-29,
48,
60,
29,
2,
-3,
-9,
34,
-37,
31,
-59,
0,
62,
31,
34,
38,
24,
16,
51,
18,
-9,
65,
-24,
52,
25,
66,
15,
34,
-4,
18,
-29,
38,
9,
1,
-61,
-27,
-48,
50,
42,
-27,
-12,
15,
17,
-23,
-2,
-40,
-25,
-34,
-9,
-10,
-12,
12,
42,
-21,
11,
-17,
0,
-24,
39,
-29,
23,
13,
15,
-4,
2,
-41,
61,
-20,
13,
30,
15,
10,
-13,
-23,
-7,
-16,
19,
-32,
-39,
44,
-35,
16,
-32,
-1,
-7,
18,
-4,
-39,
-40,
-26,
50,
84,
0,
0,
-17,
-13,
39,
35,
17,
35,
-100,
-29,
17,
-18,
-19,
4,
-31,
44,
21,
29,
-5,
3,
-20,
31,
-8,
15,
23,
20,
49,
39,
24,
50,
2,
-36,
41,
32,
36,
-39,
-9,
42,
16,
-13,
27,
41,
-77,
-82,
7,
-39,
-32,
21,
39,
-46,
-43,
-1,
35,
44,
-8,
-20,
-88,
35,
66,
-26,
-22,
0,
-8,
-3,
32,
66,
54,
81,
37,
33,
26,
18,
11,
-39,
23,
42,
37,
-19,
26,
48,
25,
51,
-11,
10,
21,
3,
-30,
-43,
29,
-26,
69,
31,
17,
-27,
-29,
85,
21,
-10,
52,
23,
-22,
-3,
0,
-25,
-5,
-55,
-21,
-26,
-63,
-11,
-50,
-53,
-17,
69,
10,
8,
19,
-20,
50,
-3,
6,
-5,
-9,
25,
-69,
31,
2,
-42,
-1,
-34,
-34,
-32,
-69,
6,
-17,
43,
14,
35,
-27,
-77,
26,
0,
9,
-72,
-9,
4,
-44,
1,
0,
51,
-13,
-57,
9,
-24,
53,
-85,
5,
-2,
-32,
39,
-21,
-2,
12,
55,
-31,
63,
-17,
33,
78,
50,
-52,
-8,
-5,
19,
25,
18,
31,
18,
44,
48,
-39,
19,
-74,
32,
26,
1,
-16,
-21,
22,
43,
-25,
-68,
59,
7,
18,
-93,
-32,
8,
-13,
-32,
-21,
25,
-14,
-43,
5,
-7,
26,
13,
-2,
11,
-34,
-22,
7,
11,
-50,
0,
11,
28,
24,
0,
-7,
-2,
-38,
-34,
2,
-8,
80,
62,
-5,
-34,
-36,
27,
58,
8,
38,
4,
-9,
24,
34,
69,
62,
34,
-4,
-27,
-9,
-49,
-33,
17,
-42,
-17,
-20,
-8,
-34,
11,
-12,
5,
-9,
-23,
3,
37,
-48,
7,
42,
16,
0,
-54,
91,
-45,
-38,
-11,
49,
-23,
-49,
3,
20,
12,
-35,
-5,
3,
33,
-6,
-61,
-2,
-12,
9,
12,
34,
20,
13,
33,
36,
-10,
22,
-2,
-37,
-50,
-42,
-31,
-34,
-60,
58,
-30,
-5,
-11,
-30,
5,
0,
-18,
49,
47,
-42,
-24,
-40,
7,
-13,
5,
9,
-11,
-73,
0,
12,
45,
-63,
32,
-53,
-7,
-26,
45,
28,
47,
21,
-48,
-56,
-59,
12,
12,
13,
3,
-25,
-14,
-25,
9,
-58,
-29,
39,
-33,
45,
-33,
52,
47,
-65,
8,
79,
64,
2,
3,
12,
-24,
13,
-31,
-56,
9,
33,
10,
28,
-27,
-42,
19,
7,
-36,
-6,
28,
10,
10,
-14,
-44,
-36,
6,
23,
39,
-36,
87,
-3,
23,
-30,
2,
13,
6,
9,
-65,
-46,
34,
-19,
-65,
-89,
47,
-49,
34,
48,
-34,
45,
26,
-17,
-18,
2,
-29,
26,
-47,
-9,
-4,
-16,
9,
-38,
5,
3,
-33,
16,
-23,
9,
18,
15,
-13,
-7,
39,
32,
15,
16,
-15,
2,
43,
-13,
-64,
-16,
7,
3,
45,
-5,
98,
-54,
-22,
-21,
34,
-49,
-7,
39,
-6,
-12,
-7,
-19,
-25,
-39,
2,
-20,
42,
-3,
-1,
30,
-26,
-8,
-36,
22,
19,
107,
-8,
-8,
-50,
-9,
-27,
-6,
-28,
11,
-3,
11,
18,
11,
-36,
23,
-11,
2,
-44,
39,
7,
-14,
16,
-7,
43,
-50,
-11,
0,
-1,
-25,
13,
46,
7,
9,
19,
24,
32,
-36,
-3,
-43,
-28,
-2,
4,
-9,
-42,
-65,
31,
-42,
19,
-5,
56,
0,
-8,
-32,
37,
23,
-12,
-21,
43,
-22,
-62,
-50,
9,
-55,
8,
34,
-32,
-5,
21,
-29,
-11,
-25,
-20,
24,
59,
-17,
-34,
32,
20,
-34,
-65,
3,
31,
-41,
-15,
-7,
6,
3,
8,
17,
-75,
48,
16,
-13,
15,
-22,
28,
-24,
30,
-3,
-30,
-47,
-1,
-16,
-64,
-76,
-6,
-26,
42,
-4,
-2,
-18,
67,
0,
-27,
-37,
16,
-4,
-17,
-78,
1,
-2,
-13,
-31,
28,
-15,
11,
-19,
-11,
43,
-8,
26,
64,
-53,
20,
-19,
-22,
29,
-39,
-23,
-20,
-61,
-31,
-19,
-25,
-1,
-30,
-19,
-4,
31,
16,
-2,
-21,
3,
80,
-11,
52,
-39,
3,
-2,
-2,
-47,
-9,
43,
46,
18,
9,
37,
12,
6,
15,
-28,
-66,
-10,
-31,
18,
63,
-49,
0,
-11,
-6,
-33,
-83,
32,
19,
17,
-38,
-25,
-69,
-12,
37,
21,
36,
93,
27,
10,
-10,
-78,
10,
16,
47,
-14,
-3,
5,
-20,
-12,
11,
-14,
21,
0,
-20,
22,
18,
27,
54,
-28,
39,
-7,
12,
-10,
-18,
-9,
51,
18,
-85,
24,
-50,
17,
26,
37,
5,
66,
-42,
-8,
-4,
26,
9,
-63,
0,
35,
-25,
-47,
-53,
5,
-9,
2,
-14,
-14,
-58,
-51,
-21,
-33,
48,
-39,
-95,
8,
-79,
38,
-22,
-17,
34,
-22,
36,
14,
-14,
-43,
15,
43,
-6,
-40,
44,
-12,
35,
-14,
-70,
-39,
-4,
37,
-35,
-45,
-11,
-37,
42,
-29,
-23,
73,
41,
-13,
20,
3,
-44,
-42,
-18,
-11,
79,
-59,
-37,
39,
-20,
-25,
-60,
-44,
-21,
-7,
12,
43,
37,
-21,
15,
-16,
2,
0,
-16,
-56,
20,
-32,
5,
4,
-32,
-1,
-12,
-9,
-31,
-21,
8,
-70,
72,
-7,
49,
-8,
-2,
-12,
12,
51,
-61,
-5,
25,
25,
-24,
-5,
45,
12,
-57,
26,
12,
-2,
19,
28,
32,
-2,
45,
11,
-6,
-42,
37,
50,
-21,
12,
-7,
40,
55,
22,
-20,
39,
-26,
33,
18,
-24,
15,
-23,
-44,
7,
34,
-30,
-28,
-5,
-60,
33,
-18,
0,
0,
47,
7,
1,
21,
66,
57,
-5,
-3,
35,
22,
3,
-15,
5,
-12,
-57,
-6,
15,
29,
-43,
78,
-35,
0,
19,
-1,
35,
-11,
-20,
65,
12,
0,
-12,
33,
-8,
12,
-30,
-20,
16,
-22,
-37,
63
] |
Per Curiam.
On April 30, 1973 defendant was found guilty by a jury in Jackson County Circuit Court of manslaughter, MCLA 750.321; MSA 28.553. On May 30, 1973 she was sentenced to a term of from 5 to 15 years in prison.
At trial there was ample evidence introduced showing that defendant fired the shotgun blast which resulted in the victim’s death. That evidence was not contested. Defendant entered a defense of insanity, and one of self-defense. Defendant’s brief on appeal raises several issues which we now proceed to consider.
I
Was defendant denied a fair trial because of prosecutorial misconduct, namely alleged attempts to elicit inadmissible testimony during the trial, and prejudicial remarks concerning the facts and law of the case made during closing argument?
Upon an examination of the record we find that defendant was not denied a fair trial because of claimed prosecutorial misconduct. The questions asked by the prosecutor of the psychiatrist were not to elicit evidence of guilt, but to examine the basis of defendant’s sanity. They were therefore admissible under People v Stevens, 386 Mich 579; 194 NW2d 370 (1972). Even though the psychiatrist was not asked to testify as to any actual statements made by the accused concerning the crime, we note that even these may be admissible under certain circumstances. People v Schrantz, 50 Mich App 227; 213 NW2d 257 (1973). The questions asked by the prosecutor in this case were well within the scope of admissibility. As to the prosecutor’s closing argument, we hold that any statements made therein were related to the evidence in the case and therefore proper. People v Berthiaume, 59 Mich App 451; 229 NW2d 497 (1975).
II
Were the trial judge’s instructions on intent, malice, provocation, insanity, and self-defense erroneous and misleading?
No objection was made to the instructions as given by the trial judge. In the absence of objection, an instruction will not be subject to appellate review, unless a miscarriage of justice occurs. People v McGuire, 39 Mich App 308; 197 NW2d 469 (1972), People v Miller, 35 Mich App 627; 192 NW2d 517 (1971). We find no miscarriage of justice in the record, and decline further comment upon the objection that defendant’s appellate counsel raises for the first time on appeal.
III
Was it error to permit a lay witness to make certain observations concerning defendant’s sanity?
The admissibility of the testimony complained of is governed by People v Wright, 58 Mich App 735; 228 NW2d 807 (1975), People v Alsteens, 49 Mich App 467; 212 NW2d 243 (1973). The record discloses no error, especially in view of the fact that, in addition to the testimony of the lay witness in question, both sides introduced expert testimony on the issue of sanity. The witness in question was sufficiently acquainted with defendant and had an adequate opportunity to observe her. We also point out that his testimony was effectively limited by cross-examination.
IV
Was there sufficient evidence regardingpremedi tation to bind defendant over for trial on ñrstdegree murder?
Unless a clear abuse of discretion has been demonstrated, neither the trial court nor an appellate court should substitute its judgment for the judgment of an examining magistrate. People v Stinson, 58 Mich App 243; 227 NW2d 303 (1975). In the absence of a motion to quash the information prior to arraignment or prior to impanelling the jury, a claim of legally insufficient evidence is not preserved for appellate review. People v Keshishian, 45 Mich App 51; 205 NW2d 818 (1973). Nevertheless, we rule that there was sufficient evidence before the examining magistrate from which premeditation could be inferred. We also rule that there was sufficient evidence of premeditation to submit the question to the jury. People v Meier, 47 Mich App 179; 209 NW2d 311 (1973).
V
Was defendant denied effective assistance of counsel at trial?
This issue, as raised in this case, is totally frivolous. We mention it only to discourage its overuse. A close examination of the record reveals no mistake of any import by defense counsel. Defendant received an excellent defense below. Perhaps appellate counsel may have done certain things differently had she represented defendant at trial, but that is not grounds for reversal.
We have examined defendant’s other allegations of error and find them to be without merit.
Affirmed. | [
17,
23,
-6,
-1,
-49,
-23,
-60,
34,
-78,
23,
-46,
-21,
-1,
-27,
-2,
14,
8,
4,
5,
-44,
-25,
2,
-31,
19,
-13,
-44,
9,
28,
-28,
-8,
17,
40,
-16,
-58,
22,
-37,
68,
-15,
-3,
59,
-18,
0,
10,
-4,
-39,
-17,
-2,
19,
1,
39,
51,
17,
-5,
-29,
-34,
-11,
36,
0,
-50,
-30,
16,
42,
-71,
-33,
18,
5,
8,
13,
-32,
-38,
-43,
10,
-5,
-12,
3,
-28,
25,
8,
37,
-9,
-13,
11,
29,
-3,
5,
-22,
-22,
-48,
18,
36,
38,
-6,
-36,
-39,
34,
18,
36,
-41,
62,
-47,
-10,
8,
1,
0,
-9,
33,
-40,
28,
-12,
16,
38,
11,
23,
23,
-17,
4,
15,
6,
-31,
15,
-11,
34,
17,
-4,
41,
-16,
5,
10,
29,
-48,
-1,
31,
53,
-5,
6,
-12,
-16,
-22,
0,
18,
-12,
12,
13,
9,
32,
29,
-33,
2,
0,
9,
-51,
-3,
-15,
-21,
43,
-42,
-1,
-38,
2,
9,
12,
25,
-44,
-10,
11,
-36,
-15,
-9,
9,
-65,
11,
-25,
60,
21,
52,
-6,
16,
-19,
32,
51,
7,
0,
8,
13,
8,
12,
-17,
0,
-13,
-27,
23,
20,
0,
-57,
105,
54,
11,
50,
37,
-6,
28,
-21,
6,
-25,
20,
-3,
-39,
-38,
67,
-6,
17,
7,
28,
-38,
11,
-40,
-35,
-23,
-26,
39,
-21,
-12,
3,
-12,
-16,
-20,
-18,
-10,
-20,
-12,
52,
-10,
-8,
29,
-2,
-1,
58,
-18,
34,
-18,
-28,
8,
54,
15,
7,
33,
-33,
-18,
-5,
-13,
17,
-32,
14,
35,
-49,
-17,
7,
-19,
-38,
-3,
-24,
12,
7,
18,
-45,
39,
-9,
18,
-42,
-21,
22,
-2,
29,
19,
10,
-30,
-13,
-3,
-14,
-25,
51,
3,
9,
-19,
-24,
-4,
-65,
31,
-37,
7,
57,
-24,
-50,
-63,
32,
14,
17,
-26,
-13,
0,
37,
16,
14,
-27,
-28,
16,
32,
38,
-24,
12,
8,
56,
29,
21,
28,
36,
-23,
-33,
3,
-7,
-16,
6,
-19,
-51,
6,
-5,
3,
-33,
-18,
-4,
-23,
58,
18,
24,
5,
-9,
-61,
11,
31,
0,
17,
-8,
-59,
-1,
1,
47,
-21,
38,
-16,
-70,
14,
-15,
24,
7,
9,
-44,
-28,
-6,
36,
-28,
-6,
-9,
-11,
10,
-7,
-21,
0,
-36,
21,
31,
-3,
-51,
-13,
4,
-5,
5,
86,
-12,
24,
30,
-27,
24,
27,
-24,
-7,
24,
14,
-10,
0,
40,
-15,
-28,
-24,
-39,
-3,
-44,
-41,
52,
38,
-16,
-54,
-2,
0,
6,
-5,
27,
-80,
9,
2,
28,
-18,
48,
39,
90,
1,
-22,
7,
-17,
37,
-26,
19,
0,
77,
32,
-25,
-1,
-14,
-8,
12,
-45,
9,
26,
-14,
4,
-21,
10,
-20,
11,
32,
-11,
-41,
-15,
-17,
4,
-3,
41,
4,
-27,
4,
-17,
-43,
-18,
-12,
-37,
-26,
11,
-2,
-13,
25,
-7,
-19,
-27,
-21,
-52,
65,
-7,
-54,
-30,
20,
-40,
77,
-9,
11,
49,
-28,
6,
14,
37,
5,
-26,
24,
4,
-29,
-23,
-35,
20,
-55,
-46,
38,
-11,
3,
-31,
0,
5,
-36,
-24,
58,
-7,
-28,
8,
-31,
-25,
-15,
-19,
26,
-40,
53,
-26,
44,
15,
4,
25,
-32,
38,
-42,
-8,
37,
0,
0,
32,
27,
-47,
28,
-13,
-16,
-35,
-13,
-60,
-56,
-2,
69,
63,
-35,
-27,
93,
22,
-27,
-35,
-32,
-5,
25,
-9,
5,
-7,
-11,
-13,
-18,
-3,
26,
43,
2,
-11,
-23,
-41,
24,
-19,
13,
-6,
-16,
-23,
-38,
0,
24,
36,
3,
-20,
-36,
-27,
34,
-4,
23,
53,
-3,
0,
-37,
9,
18,
38,
9,
25,
4,
-26,
-22,
-1,
-52,
-42,
39,
11,
8,
18,
-35,
12,
45,
-59,
-20,
-35,
-22,
-18,
-7,
16,
25,
-5,
2,
-4,
21,
25,
3,
-11,
31,
-44,
44,
4,
-25,
-13,
-39,
5,
-4,
-30,
-14,
-8,
19,
-11,
-18,
-20,
-36,
3,
-43,
-3,
-4,
-12,
-52,
-15,
17,
11,
-7,
23,
21,
-14,
-36,
-19,
5,
42,
13,
-5,
11,
8,
8,
-12,
-6,
-34,
-10,
-7,
28,
-36,
10,
-28,
-14,
-13,
16,
-7,
11,
61,
-18,
-52,
-3,
23,
41,
-29,
-6,
13,
0,
29,
-6,
-7,
-38,
37,
22,
19,
11,
26,
-29,
-60,
-1,
9,
28,
40,
-28,
44,
9,
37,
-20,
5,
49,
8,
26,
-31,
25,
49,
-35,
-26,
11,
31,
-7,
-26,
25,
10,
56,
-73,
17,
22,
-79,
39,
3,
22,
-3,
-18,
-9,
-24,
-20,
29,
-20,
0,
12,
25,
4,
24,
64,
-16,
52,
34,
27,
0,
23,
23,
9,
27,
-12,
-20,
-17,
-5,
-30,
-22,
1,
-13,
-38,
13,
34,
-58,
-13,
6,
29,
19,
66,
7,
-61,
22,
61,
-2,
-32,
4,
2,
13,
-45,
-53,
-46,
-1,
-1,
20,
13,
4,
-58,
-28,
12,
-11,
-39,
19,
-42,
-5,
-3,
0,
33,
13,
-43,
1,
26,
-31,
1,
6,
-3,
-28,
5,
25,
-27,
50,
26,
18,
6,
-9,
7,
35,
33,
38,
24,
-6,
1,
-38,
-39,
17,
9,
60,
46,
24,
-37,
-9,
-37,
7,
9,
-39,
-25,
-4,
31,
40,
3,
-29,
-19,
-37,
37,
-40,
11,
-25,
-4,
9,
14,
50,
7,
-14,
38,
46,
-6,
-7,
42,
20,
10,
29,
2,
7,
47,
-34,
23,
54,
13,
5,
13,
5,
-23,
-17,
-4,
20,
-13,
21,
14,
35,
-48,
-39,
20,
61,
3,
-52,
60,
-3,
-26,
15,
25,
22,
-1,
74,
-41,
-23,
-25,
23,
34,
-15,
17,
12,
-19,
-13,
-4,
-40,
-71,
-13,
30,
39,
21,
-30,
-61,
-8,
16,
-19,
0,
-2,
4,
-49,
-3,
18,
30,
-2,
21,
-18,
4,
43,
-24,
21,
30,
0,
4,
15,
-53,
-14,
0,
-48,
-40,
74,
37,
5,
-1,
-53,
-8,
-45,
-45,
2,
5,
-52,
23,
-60,
3,
7,
-31,
-52,
-1,
-4,
-26,
6,
-46,
40,
-9,
63,
-20,
4,
0,
39,
3,
-12,
20,
26,
9,
15,
20,
23,
-39,
9,
-30,
-9,
9,
11,
69,
43,
-24,
17,
31,
30,
-3,
-25,
-23,
-19,
12,
-24,
9,
-16,
-7,
-15,
-11,
-46,
21,
-24,
22,
-12,
9,
53,
-7,
-43,
-36,
7,
16,
21,
4,
46,
1,
-3,
-14,
-38,
-30,
23,
17,
12,
26,
13,
-15,
0,
-34,
5,
2,
-16,
5,
-48,
-16,
5,
-35,
-36,
2,
-3,
-53,
60,
-23,
4
] |
Butzel, C. J.
(dissenting). Plaintiff claims that while working’ for defendant in July, 1944, as he lifted a box of scrap he experienced a pain in bis right side. He immediately told his foreman he had “hurt” his right side by lifting. The foreman told plaintiff he was going to give him a “pass” to go to the hospital where it would be ascertained what the trouble was. He received no pass or further directions from the employer. During the same month in which he claims he was injured he went to a physician of his own choosing. He was told he had a hernia. He continued to work until the end of September, 1944. He first notified defendant in November, 1944, that he had a hernia as a result of the injury in July, 1944. He was unable to get his job back on account of lack of seniority with defendant, or obtain a job elsewhere because of age.
The case presents a simple question. If plaintiff was bound to notify defendant within a reasonable time after he found that the injury had caused a hernia and he waited over three months, he cannot recover. If, however, the report of the injury immediately after it happened is sufficient notice, plaintiff may recover notwithstanding that the injury resulted in a hernia which was not promptly reported to the employer. The workmen’s compensation act, as amended, provides in section 1 (c), part 7, as follows:
“That a hernia to be compensable must be clearly recent in origin and result from a strain arising out of and in the course of the employment and promptly reported to the employer.” As added by Act No. 61, Pub. Acts 1937, and amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8485-1, Stat. Ann. 1945 Cum. Supp. § 17.220').
One of the purposes' of promptly reporting an injury to the employer is to enable him in turn to make an investigation promptly. On the other hand, there might be good reason to report the hernia promptly so that if possible it could be repaired at once with a comparatively small loss of time on the part of the employee for which the employer might be called upon to pay. .
Inasmuch as the plaintiff immediately reported the injury to the defendant, we believe he is entitled to compensation under the statute. It became the duty of the employer to investigate the seriousness of the injury and by so doing it could have amply protected itself. If the strain were not so serious or if the employee did not consider it serious, his failure to report would not have precluded him from claiming compensation because of the hernia, provided upon discovery he promptly reported the existence of the hernia. Under the circumstances, the employer is liable.
The department made the award “that plaintiff sustained an injury arising out of and in the course of his employment by the defendant resulting in hernia but plaintiff is not entitled to compensation for the reason that he has not suffered any disability as the result of such injury.”
The award for plaintiff should be affirmed, with costs,
Sharpe, J., concurred with Butzel, C. J.
North, J.
As I construe the department’s finding and award, the holding is that plaintiff suffered a personal injury which would have entitled him to compensation except “for the reason that he has not suffered any disability as the result of such injury.” Obviously the purpose of the department’s determination is to enable plaintiff to be later awarded compensation in event his injury results in disability. Otherwise there was no need for the department to modify the award of the deputy who denied compensation, one of the reasons being that “prompt notice of said hernia was not given to the employer.”
Review of the record discloses that without any fortuitous circumstance, plaintiff in the regular course of his employment in July, 1944, when lifting a box of scrap experienced a pain in his right side. He at once told his foreman he had a “hurt” in his right side by lifting. Plaintiff was not taken to the employer’s first aid department nor given a pass to enable him to go there. However, as plaintiff testified “right after” he experienced the pain, and definitely in the same month he went to his own doctor who then told plaintiff he had a hernia. Notwithstanding plaintiff continued his employment until the last day of September, 1944, when he was laid off because of lack of seniority, he in no way informed his employer that he had a hernia until some time in November, 1944. Under such circumstances, the deputy commissioner correctly held that plaintiff was not entitled to compensation because his hernia was not “promptly reported to the employer,” as provided in the statute. Act No. 10, pt. 7, §1, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937, and amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8485-1, Stat. Ann. 1945 Cum. Supp. § 17.220).
No claim is made that plaintiff did not have the same knowledge as to his having a hernia in July, 1944, as he had when he reported it the following November. No excuse for or explanation of plaintiff’s delay in giving notice to bis employer appears in this record. I cannot escape the conclusion that decision in the instant case is controlled by our former decisions in Riley v. Berry Brothers Paint Co., 293 Mich. 500; Barclay v. General Motors Corp., 309 Mich. 534; and Caufield v. Ford Motor Co., 310 Mich. 555. In the latter case we said that the statutory provision as to prompt reporting “must be held not only to refer to tbe happening of the hernia, rather than to the happening of subsequent disability, but it must also be held to be a mandatory provision.” The department’s award is vacated, with costs to appellant.
Carr, Boyles, Reid, and Starr, JJ., concurred with North, J.
Bushnell, J., took no part in the decision of this case.
Aet No. 10, Puls. Acts 1912 (1st Ex. Sess.). — Reporter. | [
-6,
-21,
-32,
10,
0,
10,
16,
-10,
-7,
55,
-11,
3,
65,
-26,
-28,
-10,
39,
-55,
-51,
12,
8,
1,
-2,
41,
-9,
-10,
-49,
-9,
-31,
15,
-23,
20,
10,
16,
0,
57,
51,
-36,
36,
18,
-3,
74,
19,
-61,
29,
10,
13,
39,
46,
-3,
57,
8,
6,
-56,
82,
-33,
6,
10,
-37,
11,
-22,
-21,
67,
-47,
21,
4,
-7,
2,
21,
-25,
-36,
17,
-5,
-35,
-36,
-50,
9,
83,
-18,
-53,
9,
-86,
21,
-76,
-16,
30,
-11,
29,
-6,
12,
24,
-39,
13,
13,
-14,
5,
-75,
16,
-26,
33,
9,
27,
7,
-38,
24,
-37,
-5,
-17,
-19,
36,
-35,
8,
5,
-11,
44,
-47,
41,
37,
-3,
18,
28,
22,
16,
-23,
-26,
88,
40,
-15,
-44,
6,
-13,
-10,
-35,
-19,
-13,
41,
-29,
-20,
31,
9,
-28,
8,
10,
-17,
1,
18,
3,
-14,
19,
30,
9,
35,
-7,
-38,
-34,
13,
-28,
-3,
29,
11,
10,
18,
36,
7,
22,
14,
3,
-8,
29,
16,
2,
9,
72,
7,
3,
36,
36,
-18,
-26,
55,
-47,
-30,
34,
-11,
0,
19,
17,
32,
13,
0,
4,
27,
-27,
62,
-19,
-24,
-8,
25,
56,
-53,
17,
-1,
-19,
20,
-41,
37,
0,
21,
8,
9,
-27,
-31,
-23,
-40,
4,
7,
23,
-7,
17,
-21,
-44,
44,
-7,
-59,
-51,
14,
0,
18,
30,
-7,
-22,
7,
4,
18,
31,
-43,
54,
-41,
48,
-3,
-10,
-10,
-51,
-12,
-26,
-25,
9,
-2,
-12,
3,
-3,
27,
10,
-25,
-67,
-34,
-20,
30,
-33,
-20,
-21,
45,
36,
88,
23,
-61,
34,
49,
-7,
-25,
13,
22,
41,
-86,
-55,
-40,
-12,
-5,
42,
-24,
-49,
-21,
-10,
42,
-78,
-39,
6,
-36,
-35,
-12,
-3,
-52,
-16,
-15,
55,
41,
30,
12,
-10,
13,
0,
-24,
15,
-1,
6,
11,
-57,
6,
43,
-54,
8,
-38,
17,
-71,
-13,
-10,
10,
43,
-18,
-50,
-34,
10,
28,
-1,
-30,
-31,
-40,
-25,
-2,
-20,
13,
33,
-19,
87,
25,
8,
4,
32,
6,
-9,
11,
37,
6,
-33,
-46,
22,
16,
8,
30,
30,
41,
0,
53,
12,
14,
82,
-3,
5,
-19,
22,
57,
-36,
-11,
0,
-61,
-44,
-27,
21,
11,
55,
-10,
-7,
26,
-39,
-64,
-14,
-2,
-21,
3,
52,
50,
9,
-6,
-55,
-30,
-10,
0,
-13,
55,
11,
-50,
3,
52,
70,
-49,
0,
3,
-28,
-1,
31,
-37,
-49,
-10,
38,
43,
-36,
32,
-27,
32,
35,
7,
-11,
26,
-5,
32,
-41,
25,
26,
22,
-39,
79,
-26,
-5,
-13,
9,
-1,
-15,
10,
-55,
-35,
7,
-44,
-5,
-22,
-14,
1,
-22,
-3,
0,
-23,
-49,
-16,
0,
16,
-18,
100,
20,
68,
49,
-51,
5,
-2,
23,
34,
46,
-8,
-6,
26,
-17,
9,
-52,
-33,
-18,
2,
19,
-12,
-9,
-32,
33,
9,
61,
-43,
25,
2,
10,
6,
-5,
-5,
41,
2,
-3,
17,
2,
-49,
-61,
26,
25,
-12,
13,
48,
27,
-37,
-53,
-28,
-33,
25,
-38,
27,
15,
45,
-42,
1,
-1,
20,
72,
-35,
36,
-46,
51,
-14,
-89,
-17,
-18,
-9,
52,
23,
-48,
12,
-47,
-10,
-3,
-15,
-7,
-7,
-58,
-17,
-32,
-17,
-9,
-83,
66,
-34,
41,
19,
5,
2,
24,
-29,
-51,
-59,
-44,
14,
30,
12,
34,
-39,
-25,
40,
31,
65,
-13,
-12,
28,
27,
11,
-33,
52,
21,
16,
-29,
-4,
44,
-8,
64,
7,
-4,
4,
23,
-3,
-6,
6,
38,
8,
16,
0,
-37,
2,
-6,
13,
-46,
-6,
-36,
-18,
19,
-19,
-6,
-21,
-80,
7,
-37,
-43,
-29,
-3,
30,
52,
1,
15,
-4,
27,
17,
23,
-31,
-65,
-43,
0,
26,
3,
48,
9,
-12,
-48,
20,
30,
-40,
-56,
-60,
-38,
27,
0,
76,
20,
31,
12,
4,
-23,
-1,
23,
31,
-48,
-64,
-32,
23,
-25,
-67,
26,
39,
10,
52,
0,
15,
31,
-57,
2,
29,
3,
-72,
33,
38,
2,
-18,
11,
-8,
-21,
35,
-29,
0,
-31,
0,
-33,
9,
-17,
-14,
16,
-75,
35,
5,
-36,
-20,
-32,
-37,
27,
10,
13,
1,
9,
-3,
-9,
6,
26,
7,
12,
-34,
51,
23,
-36,
-15,
6,
8,
10,
-60,
-44,
-12,
53,
27,
-26,
27,
44,
-12,
52,
7,
-34,
13,
-45,
11,
58,
4,
2,
-2,
-12,
33,
12,
-1,
-9,
-16,
54,
21,
25,
-49,
-27,
-27,
-25,
-35,
22,
-33,
54,
35,
10,
30,
32,
-12,
11,
-16,
-13,
6,
-7,
5,
-7,
1,
2,
18,
26,
16,
-19,
-28,
10,
-16,
24,
28,
2,
37,
-34,
7,
-20,
-27,
35,
-41,
10,
-38,
-37,
18,
5,
12,
60,
-37,
8,
8,
-44,
-49,
-13,
-19,
4,
20,
40,
-37,
-13,
42,
-31,
-62,
12,
17,
-5,
-46,
28,
17,
-38,
-32,
13,
-15,
45,
-12,
6,
-21,
17,
-71,
25,
-3,
35,
-41,
-43,
8,
3,
-7,
-31,
48,
-8,
-58,
52,
21,
19,
2,
9,
-42,
7,
65,
-21,
-62,
-13,
32,
19,
30,
-43,
34,
-9,
-53,
44,
-32,
-29,
-21,
50,
-15,
11,
-11,
-30,
42,
21,
1,
8,
-8,
-80,
-15,
45,
-10,
21,
44,
30,
-67,
-40,
54,
-6,
28,
-19,
-42,
36,
7,
0,
9,
-7,
-84,
21,
-33,
-33,
-14,
-21,
-5,
10,
-27,
-24,
48,
47,
-75,
58,
15,
-12,
-53,
-51,
16,
-54,
3,
56,
-30,
-40,
-21,
-3,
-15,
-22,
-3,
-28,
-6,
-29,
11,
4,
60,
-32,
8,
-29,
-6,
6,
31,
5,
5,
3,
37,
5,
49,
16,
0,
-33,
-58,
-42,
57,
-34,
-40,
-24,
-27,
28,
-10,
-1,
38,
16,
-14,
-7,
-58,
27,
24,
8,
-1,
-10,
20,
-6,
15,
0,
-2,
-40,
6,
49,
2,
49,
-62,
3,
-17,
49,
-12,
1,
43,
-18,
-36,
-36,
-4,
19,
-13,
17,
63,
23,
-56,
-27,
-18,
-3,
30,
6,
-5,
2,
4,
-13,
9,
42,
35,
18,
-28,
-99,
-86,
42,
-22,
-27,
-5,
1,
10,
14,
4,
20,
30,
32,
7,
-27,
17,
-10,
-9,
-7,
-73,
2,
-34,
5,
8,
38,
56,
-37,
-93,
18,
-41,
54,
21,
29,
1,
14,
30,
4,
5,
67,
5,
33,
-2,
32,
21,
2,
-88,
-16,
21,
-45,
6,
26,
4,
20,
21,
40,
5
] |
Reid, J.
This action is brought to recover for damage to plaintiff’s car and for personal injuries sustained by plaintiff in a collision which occurred at the intersection of Elmhurst and Turner avenues in the city of Detroit at 3:06 p.m. on November 14, 1942, between the automobile owned and driven by plaintiff, and a bus operated by the defendant department of street railways of the city of Detroit. Trial was had by a jury and the verdict was for the plaintiff in the sum of $1,000. Decision on a motion for a directed verdict having been reserved under the Empson act, the trial judge entered a judgment of no cause of action notwithstanding the verdict. Plaintiff appeals.
Plaintiff, a resident of the city of Jackson, was on the occasion in question driving northerly on Turner avenue. Plaintiff’s testimony is not entirely consistent. On direct examination, he testified that as he approached a point about 50 feet southerly from the intersection with Elmhurst avenue, he noticed the bus in question approaching going west on Elmhurst, and that the bus was then between 200 and 300 feet from him, that he was driving about 15 to 18 miles an hour, that when the front of his car was in the intersection he observed the bus seemed to be gaining speed, that he, plaintiff, was closer to the intersection, that he stepped on the accelerator to get ahead, knowing that if he attempted to stop he would perhaps stop right in front of the bus, that as lie had practically cleared the intersection the bus hit the rear end of his car just back of the rear wheel and turned the car three-quarters of the way around, that he was rendered unconscious and was taken to the Receiving hospital, and that he suffered pain in his shoulders and neck and in his side and has some pain yet. He also testified to the repair bill for his car, to his inability to work for 21 or 22 days, and as to his earnings and medical expenses.
Later on cross-examination plaintiff admitted signing a statement taken November 18,1942, at 1:36 p.m., concerning which statement he testified:
“The information contained in these sheets, is whát I gave the investigator, to the best of my knowledge now, the best I remember. At that time, to the best of my knowledge, that was the truth of the circumstances concerning this accident.”
He further testified:
“I believe that my recollection of the circumstances concerning this accident is much clearer three days after the accident than it is today.”
In the written statement he says that when he first noticed the coach (the bus) it was about 100 feet east of Turner going about 20 miles per hour when plaintiff was 30 feet south of Elmhurst going 15 miles per hour, that the bus was traveling in the second lane of traffic south of the north curb of Elmhurst, that plaintiff was traveling in the second lane west of the east curb of Turner, and further,
“I proceeded north to cross Elmhurst. I had decided I had time to cross Elmhurst, then when the front wheels of my auto were directly in front of the coach I noticed that the coach was going faster than I had thought. The coach was then about 20 feet to my right. It appeared to be going at a fast rate of speed. I attempted to speed up my car by stepping on the gas. My car did speed np some and I swerved a little to the west, bnt the right front corner of the coach struck my right rear fender, my car came to rest with the front wheels over the curb on the northwest corner and the rear wheels on Turner.”
At the time of the accident neither of the streets in question was a stop street and there was no operating traffic light to control traffic passing through the intersection.
Appellant raises no question concerning rulings admitting testimony or concerning the charge to the jury. It is the claim of appellant, as indicated in the questions involved, and answers thereto as submitted by him, that the question of plaintiff’s contributory negligence was a question for the jury to determine, that the defendant was guilty of subsequent negligence which was the proximate cause of the accident, that the judgment in favor of defendant was against the great weight of the evidence and contrary to law, and that the trial court for the purpose of defendant’s motion for judgment non obstante veredicto did not view the testimony in the light most favorable to plaintiff.
We will first consider the question whether plaintiff was guilty of contributory negligence as a matter of law. We consider the following’ cases, among others, as being of value in determining this question : Geeck v. Luckenbill, 215 Mich. 288; Hutton v. Railway Co., 220 Mich. 1, 8, and cases there cited; Koehler v. Thom, 285 Mich. 593, 599, and cases there cited.
The bus driver testified that the bus in question was a 27-passenger bus but that it was carrying about 35 passengers. The bus driver admits that he did not see plaintiff’s car until it was about 10 feet from the bus and in front of the bus. The pavement on the day in question was dry. The bus driver testified that he was going about 22 miles an hour and that at that speed he could not stop the bus in less than 50 feet, “with a big load,” on dry pavement.
Plaintiff’s signed statement recited, “There is nothing at this corner to obstruct the view of either driver.” Each driver could have seen the other motor vehicle in an abundance of time to stop and avoid the collision. Plaintiff testified that he could have stopped his car in 10 or 15 feet when traveling at the rate of speed that he says he was traveling. Plaintiff testified that when he first saw the bus he could not determine the speed of the bus but estimated it to be around 20 miles an hour. He further testified:
“Q. Do you know where the bus was when the front of your automobile got at the southerly side of the intersection?
“A. The bus was about 50 feet from the intersection. That was my judgment.
“ Q. The bus was about 50 feet from the intersection?
“A. Yes.
“Q. When you reached the south side of the intersection?
“A. That’s right. As I entered the intersection. ’ ’
Evidently a collision was imminent if plaintiff continued into the intersection when the bus was about 50 feet from the intersection. Plaintiff further testified,
“ Q. So you never made another observation until you got your automobile down the center of the intersection for the bus which you saw the first time when your automobile was 50 feet south of the intersection?
“A, No, not of the bus.”
Under all the circumstances of this case, plaintiff was guilty of contributory negligence as a matter of law in not stopping his car on seeing the near approach of the bus when plaintiff was about to enter the intersection.
Although the driver of the bus was plainly guilty of negligence, still there is nothing about his negligence that falls within the rule as to subsequent negligence. Even if the driver of the bus had acted as a reasonably prudent driver would act, there was still no opportunity for him to prevent the collision after plaintiff’s car had progressed so far that the bus driver could have discovered plaintiff in a position of peril. Rosenfeld v. City of Detroit, 274 Mich. 650; Cline v. Killingbeck, 288 Mich. 126. See, also, Hickey v. Smith, 277 Mich. 123 (1 N. C. C. A. [N. S.] 167).
Viewing the testimony in the light most favorable to plaintiff, the plaintiff is to be considered guilty of contributory negligence as a matter of law and we determine that as a matter of law the defendant bus driver was not guilty of subsequent negligence.
Judgment was properly entered for the defendant. The judgment is affirmed. Costs to defendant.
Btttzel, C. J., and Carr, Btjshnell, Sharpe, Boyles, North, and Starr, JJ., concurred.
3 Comp. Laws 1929, § 14531 et seq., as amended by Aet No. 44, Pub. Acts 1939 (Oomp. Laws Supp. 1940, § 14531, Stat. Ann. and Stat. Ann. 1945 Cum. Supp. § 27.1461 et seq.). — Bepoktee. | [
-53,
35,
-6,
28,
18,
-58,
12,
-32,
0,
14,
-53,
-17,
3,
-12,
-20,
-4,
44,
0,
19,
-26,
-43,
-16,
-8,
-21,
-14,
-3,
28,
-47,
-62,
-14,
11,
-28,
37,
5,
-12,
17,
24,
18,
15,
14,
-6,
20,
-26,
19,
11,
-16,
11,
0,
49,
6,
-7,
-8,
0,
-30,
-16,
-48,
24,
58,
-41,
1,
1,
-6,
24,
11,
-28,
-26,
-5,
13,
-34,
31,
-52,
3,
17,
-32,
-66,
1,
-19,
17,
7,
-25,
-43,
2,
88,
-29,
-26,
16,
-18,
-44,
-55,
-22,
3,
8,
4,
28,
20,
27,
-9,
-12,
2,
-23,
-50,
33,
-16,
-11,
21,
-2,
-47,
-64,
-4,
23,
-2,
45,
51,
13,
15,
-30,
13,
11,
30,
29,
8,
-10,
20,
-8,
-9,
30,
-7,
-23,
-12,
-5,
19,
26,
26,
66,
-15,
-12,
-33,
-14,
-6,
61,
-7,
6,
7,
25,
-4,
37,
13,
13,
-12,
-33,
-29,
-11,
5,
-1,
-8,
-53,
-9,
-21,
35,
0,
23,
-10,
18,
8,
1,
15,
-32,
18,
22,
-7,
0,
-30,
59,
-27,
36,
66,
-25,
1,
-53,
-44,
-18,
20,
15,
-37,
-17,
-63,
40,
8,
3,
-10,
56,
3,
-53,
1,
-11,
50,
0,
-39,
11,
8,
27,
-68,
-14,
-16,
-38,
40,
15,
-27,
26,
18,
34,
-45,
10,
-35,
24,
6,
35,
-46,
10,
-31,
21,
-9,
-2,
-9,
-25,
-1,
-29,
-54,
32,
40,
17,
-3,
-12,
33,
-12,
-30,
-52,
-21,
30,
13,
18,
9,
4,
-19,
-3,
-1,
-37,
-29,
-13,
2,
-4,
5,
-2,
-26,
14,
-9,
21,
4,
3,
39,
31,
75,
15,
30,
10,
14,
5,
-3,
10,
-52,
-26,
-1,
0,
49,
-56,
-52,
0,
-11,
57,
-29,
-34,
-29,
-56,
12,
19,
12,
-21,
4,
-4,
-39,
36,
-60,
-11,
-6,
5,
-36,
45,
43,
-32,
21,
24,
20,
-15,
34,
8,
-11,
-13,
-14,
-2,
16,
2,
-24,
38,
12,
86,
-18,
17,
-6,
4,
-10,
-2,
64,
-47,
-1,
-4,
44,
19,
5,
-31,
-12,
32,
44,
10,
64,
7,
-24,
1,
15,
9,
-30,
2,
17,
-9,
-7,
5,
-13,
49,
0,
-19,
15,
-42,
-54,
25,
-23,
-40,
46,
41,
-1,
-23,
1,
58,
-1,
-7,
32,
6,
-55,
-2,
9,
-59,
89,
17,
-15,
-27,
18,
-17,
-64,
37,
-21,
-9,
71,
28,
-22,
-25,
-42,
0,
43,
-3,
-62,
9,
4,
-36,
19,
29,
-29,
-16,
-30,
7,
32,
-45,
4,
-24,
13,
30,
13,
-47,
-30,
0,
-2,
24,
-5,
-71,
-14,
37,
-5,
-27,
1,
46,
31,
-49,
-22,
22,
56,
27,
-83,
53,
-20,
5,
1,
-1,
-4,
23,
-32,
31,
4,
-10,
2,
-13,
-37,
-8,
-23,
-18,
-9,
-17,
45,
-2,
-1,
2,
-2,
13,
9,
67,
8,
38,
-16,
-20,
21,
8,
-2,
40,
10,
-29,
-59,
-36,
11,
28,
-4,
-16,
-16,
23,
-36,
23,
45,
-40,
-1,
13,
-1,
-1,
-63,
22,
-15,
-53,
-12,
-17,
-3,
-42,
-9,
-22,
16,
3,
27,
38,
17,
-33,
20,
-29,
38,
-7,
52,
2,
-36,
-50,
29,
-50,
-18,
21,
0,
0,
-36,
-31,
-44,
-29,
37,
-10,
12,
-20,
5,
-29,
25,
35,
-12,
16,
38,
34,
-7,
-32,
-37,
21,
1,
-25,
-37,
78,
-17,
10,
31,
-50,
-17,
1,
6,
-7,
-27,
-4,
32,
-20,
-36,
0,
-49,
-15,
26,
9,
45,
59,
-8,
18,
6,
-4,
-22,
51,
-31,
-18,
-22,
12,
-7,
19,
49,
30,
11,
-10,
0,
46,
-30,
-56,
13,
19,
-63,
-1,
-3,
-22,
-18,
-45,
4,
-6,
-5,
0,
25,
-46,
-19,
40,
-22,
5,
-8,
3,
2,
-32,
15,
43,
-4,
-12,
14,
-16,
-29,
45,
-42,
-42,
13,
54,
18,
-41,
-4,
-5,
-44,
23,
0,
-19,
-15,
-59,
-5,
-29,
27,
8,
21,
40,
-10,
7,
5,
8,
-17,
2,
-30,
-53,
-53,
-16,
23,
-38,
14,
-5,
9,
17,
29,
9,
-35,
1,
28,
61,
-18,
-30,
-33,
-58,
-1,
-75,
-7,
-30,
21,
-4,
-38,
0,
42,
25,
-9,
-37,
-12,
-2,
-7,
-41,
-27,
-40,
-16,
-1,
-30,
-3,
16,
0,
-9,
59,
-20,
40,
6,
-49,
7,
20,
6,
-16,
-18,
29,
-4,
16,
1,
-31,
29,
22,
4,
-24,
-1,
-25,
-11,
12,
33,
46,
5,
-17,
-8,
-16,
-18,
-8,
9,
-28,
24,
23,
42,
34,
12,
1,
12,
5,
-23,
-26,
52,
32,
0,
-31,
-26,
2,
-12,
1,
-95,
24,
5,
22,
-35,
35,
-9,
35,
-24,
15,
-32,
-9,
-21,
41,
14,
1,
-20,
-3,
20,
37,
4,
-31,
-61,
-43,
8,
27,
25,
-22,
-21,
58,
-5,
10,
17,
35,
3,
-9,
6,
-2,
14,
43,
-8,
1,
18,
-22,
-7,
-12,
19,
-31,
-1,
-15,
-60,
-77,
56,
-60,
-50,
4,
0,
5,
10,
2,
17,
-9,
-12,
-12,
9,
30,
27,
34,
-4,
24,
-30,
-13,
14,
34,
-49,
6,
9,
4,
33,
-13,
2,
11,
-28,
-10,
68,
29,
16,
0,
47,
23,
-49,
-9,
-3,
7,
18,
-30,
26,
25,
47,
-32,
-29,
1,
0,
-40,
-8,
0,
-13,
49,
-40,
-15,
60,
-32,
82,
66,
-21,
-18,
2,
30,
25,
-51,
21,
12,
-30,
-12,
33,
-2,
-26,
-46,
23,
-1,
-25,
-33,
15,
26,
-39,
14,
-25,
-15,
1,
-57,
-34,
15,
10,
-23,
-13,
21,
25,
45,
46,
-30,
-1,
-35,
4,
28,
-30,
48,
-6,
13,
-42,
22,
40,
-49,
-26,
10,
-69,
-52,
31,
16,
56,
19,
-80,
-44,
13,
-43,
50,
43,
-36,
20,
28,
12,
43,
-8,
-16,
2,
-5,
-25,
-8,
-4,
-18,
18,
-1,
-2,
33,
-43,
2,
42,
27,
29,
17,
-10,
-5,
42,
-8,
-41,
10,
-22,
44,
7,
0,
-4,
-2,
35,
-8,
6,
-59,
-16,
-14,
59,
-7,
-11,
26,
9,
-42,
6,
3,
-26,
25,
8,
-10,
-19,
42,
21,
-28,
-42,
19,
-9,
-18,
63,
14,
-1,
-33,
42,
-34,
-23,
-4,
-1,
5,
-19,
58,
-13,
-10,
17,
-21,
38,
-8,
-38,
-58,
46,
-26,
-22,
44,
26,
-33,
16,
-15,
-17,
40,
-28,
22,
26,
21,
-31,
-30,
35,
13,
61,
-5,
4,
-23,
49,
32,
10,
-39,
27,
12,
30,
49,
0,
49,
-5,
-26,
29,
60,
-33,
-42,
-9,
3,
5,
45,
29,
2
] |
Sharpe, J.
This is a suit by Stephen Jakobowski, Sr.,.-executor of the estate of Steve Jakobowski, deceased, and Clare A. English, next friend of Stephen Jakobowski, Jr., against Anthony Bacalia and Bernice Bacalia, his wife, and the Manufacturers National Bank of Detroit, a Federal banking’ corporation, defendants, for a return to the estate of Steve Jakobowski, deceased, of certain real estate and personal property.
Steve Jakobowski never married. He lived in Detroit with his mother, his brother John and ■John’s wife. In 1913 they moved to Inkster where John and Steve bought a farm. All of these parties lived and died in this homestead. Steve was the last survivor. John died in 1937 and thereafter Steve continued to live in the same house with John’s widow. In the spring of 1940, John’s widow died. Steve then asked his nephew Stephen Jakobowski, Sr., to come and live with him. The nephew, plaintiff executor herein, and his wife moved in with Steve in April, 1940. Shortly thereafter Steve was taken to attorney Bollinger who prepared a will for him in which he left all of his property to Stephen Jakobowski, Jr., then three years of age and the son of Stephen Jakobowski, Sr. The will was dated May 2, 19401, and was offered for probate on August 12, 1943.
Plaintiff executor and wife lived with Steve for a period of seven months when he asked them to move. After plaintiff and wife moved from Steve’s home, he lived there alone for a period of approximately one year. During this time, Bernice Bacalia, one of the defendants, took care of his home, did his washing, cooking and cleaning without compensation. While Steve lived alone Bernice Bacalia asked him to move out of the old homestead and to come and live with her family in their brick, steam-heated home. He refused to move from, his old .homestead. On February 10, 1941, Steve and defendant Bernice Bacalia went to the Manufac turers National Bank of Detroit in Dearborn where he had his bank account changed to a joint account with Bernice Bacalia with the right to make deposits and withdrawals and right of survivorship.
On January 2, 1942, defendants Bernice Bacalia and her husband purchased the homestead of deceased for the sum of $800. On January 17, 1942, defendants moved into the homestead. Later they installed a furnace and made other improvements at a cost of approximately $2,000. Steve lived there until his death.
The bill of complaint filed by plaintiffs charges that deceased at the time of his death was 77 years old; that for a long time prior to his death he was in a feeble and helpless condition and unable to attend to his business affairs; that at the time deceased entered into an arrangement for a■ joint bank account with Bernice Bacalia the defendants Anthony Bacalia and Bernice Bacalia, his wife, were in a confidential relationship with deceased who was persuaded by defendants to enter into such an arrangement for the sole purpose of enabling defendant Bernice Bacalia to pay obligations of deceased during his lifetime and not to obtain any rights to the fund after the.death of deceased; that deceased by false and fraudulent means was persuaded to deed the real estate to defendants Anthony Bacalia and Bernice Bacalia, his wife; and that such conveyance was without consideration.
Defendants Anthony Bacalia. and Bernice Bacalia filed an answer to the bill of complaint in which it is alleged that said defendants entered into an agreement with deceased whereby in consideration that defendants would care for deceased' for the remainder of his life, said deceased would open up a joint bank account with rights of survivorship with Bernice Bacalia; that on January 12, 1942, deceased deeded to defendants certain real estate for a cash consideration of $800 and the further consideration that defendants would care for deceased during his lifetime.
The cause came on for trial and the trial court made the following finding of facts:
“The disputed question, so far as this title to the property contained in this bank account deposit, is whether there was proof of fraud or undue influence. Upon the record here and the proofs, independent of the testimony of the three witnesses, who in this trial were permitted to testify to facts, some of which may have been equally within the knowledge of the deceased — I say, independent of that, the court has no difficulty in finding from these proofs that there was no fraud nor undue influence established. The court is impressed from these proofs, and from all the circumstances in this case, that it was the intent of both the deceased and of Bernice Bacalla (Bacalia), when this bank account was opened, it was the intent and purpose of the deceased at that time that Bernice Bacalla should have whatever was in that bank deposit under that registration at the time of the death of the deceased. & * *
“Now the other piece of property consists of the home where this man had lived all his life and around which there is for this whole family apparently, considerable sentiment, and upon the pleadings here, this court is asked to set aside this deed on the ground that it was obtained without consideration and by fraud and undue influence. There isn’t any proof whatsoever upon which the court could make any such finding. On the other hand it appears undisputed that the defendants paid as at least a part of tbe consideration for this place — that is the home and the lot or lots, which are included in the deed to that home — they paid $800. * * *
“It is my opinion and decision that by virtue of this statute, the title to that property contained in that bank account on the death of the deceased, was vested in the survivor, Bernice Bacalla, and it is my opinion, also, that the title to the home property, as evidenced by the warranty deed from Steve Jacobowski, an unmarried man, to Anthony Bacalla and Bernice Bacalla, his wife, dated the 12th day of January, 1942 — it is my opinion that the title to that property was properly and legally vested in Anthony Bacalla and Bernice Bacalla, his wife.”
It is also to be noted that prior to the death of deceased he was the owner of three school bonds of the city of Pontiac school district of the valu!e of $3,000. The trial court found that these bonds were the property of deceased’s estate.
Plaintiffs appeal and urge that the burden is upon defendants to show that the bank account, bonds and real estate are their property by virtue of an express contract; that a confidential relationship existed between defendants and deceased and they have the burden of showing that they took no advantage and did not exert undue influence against the deceased; and that the defendants were guilty of fraud in purchasing the real estate for less than one half of its value.
We shall first discuss the issues involved in the sale of the real estate. Defendants claim they purchased this real estate on or about January 2, 1942, while plaintiffs claim this transfer came about by reason of fraud and for an inadequate consideration. We have examined the record carefully and are in accord with the finding of the trial court that there was no fraud or undue influence established. The burden of establishing fraud or undue influence in this case rests upon plaintiffs. The price paid for this piece of real estate was not the only consideration. Defendants gave up their own home and moved into the old homestead and spent upwards of $2,000 on repairs and enabled deceased to live and die in the place where he wanted to live and die.
In Pritchard v. Hutton, 187 Mich. 346, 355, we said:
££ Courts are not permitted to make equitable distribution of estates, but are concerned only in giving effect to the legal acts of decedents.”
In the case at bar, deceased had the right to dispose of his property as he saw fit. He knew what he wanted to do and accomplished it in a legal manner. In such cases courts do not interfere.
It is also urged that when defendant Bernice Bacalia claims right to the joint bank account as a survivor by reason of an express contract, the burden rests upon her to establish such contract.
Where a joint bank account with right of survivorship is created, there is a statutory presumption of ownership in the survivor. 3 Comp. Laws 1929, § 12063, as amended by Act No. 286, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 12063, Stat. Ann. 1943 Rev. §23.303).
In Lau v. Lau, 304 Mich. 218, we said:
“Plaintiff failed to prove that Charles Lau did not intend to vest title to the joint deposits in Martha Lau (his daughter-in-law) as his survivor. The defendants, having the benefit of the statutory presumption (3 Comp. Laws 1929, § 12063, as amended by Act No. 286, Pub. Acts 1937), must prevail. * * *
“Reasonably clear and persuasive proof, stronger than appears in this record, is required to overcome the statutory provision that deposits of the character here involved ‘become the property of’ the survivor of the joint depositors. Otherwise there would be no security or certainty as to the rights of such surviving depositors.”
See, also, Meigs v. Thayer, 289 Mich. 680; Maahs v. Maahs, 307 Mich. 549.
In the case at bar the record convincingly sustains defendants’ position that the bank account was intended by deceased to be a joint account with rights to survivor. Plaintiff has not overcome the burden of establishing otherwise, nor does the fact that defendant in her answer gave the reason for establishing such an account lessen the burden placed upon plaintiffs of establishing that the account was not intended to be a survivorship account.
Defendants Anthony Bacalia and Bernice Bacalia filed a cross appeal from that part of the decree awarding the school bonds to the estate and urge that at the time of the creation of the joint bank account it was agreed between defendant Bernice Bacalia and decedent that said bonds would be owned by said parties with the right of survivor-ship and that the proceeds from the coupons of said bonds would be deposited in the joint bank account. We have examined the record carefully and find that the only material evidence relating to the transfer of the bonds to Bernice Bacalia is that the interest received from the coupons was placed in the joint bank account. We find no evidence to .sustain the claim that at the time the joint bank account was created there was any agreement between decedent and Bernice Bacalia that the bonds were to be jointly owned. In the absence of evidence upon this issue we are constrained to hold that the bonds are the property of decedent’s estate.
The decree of the trial court is affirmed, with the exception of that part of the decree regarding costs. Defendants may recover costs of both courts.
Butzel, C. J., and Carr, Boyles, Reid, North, and Starr, J J., concurred. Bushnell, J., took no part in the decision of this case. | [
0,
49,
-18,
17,
30,
-41,
-13,
8,
35,
-47,
-27,
-43,
-5,
70,
14,
-7,
22,
-4,
-14,
-17,
10,
-56,
-29,
-30,
-55,
23,
-42,
-13,
-51,
-49,
-7,
-30,
-3,
-74,
6,
-4,
39,
-38,
-28,
-19,
-33,
-16,
7,
21,
10,
5,
31,
-1,
-9,
-34,
41,
2,
52,
10,
14,
-17,
-13,
16,
-26,
-22,
-9,
-16,
16,
-6,
1,
37,
64,
0,
2,
37,
23,
-27,
8,
33,
4,
-30,
35,
23,
4,
-43,
10,
-43,
35,
-12,
-61,
-45,
-28,
12,
-60,
17,
-19,
34,
-27,
35,
34,
41,
-27,
32,
-21,
33,
35,
-14,
27,
26,
17,
27,
32,
-40,
-26,
10,
30,
10,
82,
43,
-29,
34,
-10,
-27,
-33,
14,
-59,
-1,
9,
-42,
-1,
25,
-24,
20,
70,
4,
27,
23,
-20,
-24,
-53,
13,
-25,
-73,
-5,
-15,
63,
26,
4,
-6,
78,
-16,
12,
0,
3,
-3,
-53,
0,
0,
11,
42,
45,
-8,
-24,
14,
29,
-33,
-11,
41,
25,
-30,
30,
29,
22,
16,
-12,
4,
-12,
0,
-18,
37,
35,
18,
26,
-45,
-4,
13,
-1,
-2,
-1,
-49,
-91,
-3,
-34,
22,
-40,
22,
-19,
33,
19,
-8,
45,
6,
-9,
-5,
-15,
-17,
-18,
12,
-32,
6,
-32,
43,
-3,
34,
-7,
9,
-32,
2,
-27,
-39,
-29,
-25,
-38,
-16,
2,
43,
-19,
6,
9,
-52,
21,
5,
-45,
27,
-38,
23,
-34,
26,
21,
-22,
-2,
12,
5,
-23,
26,
-11,
-8,
4,
50,
4,
61,
-6,
21,
-10,
-9,
-32,
-4,
-49,
20,
34,
-13,
-37,
-11,
4,
-1,
-79,
9,
-26,
49,
6,
0,
-10,
-24,
-10,
47,
-25,
17,
38,
-21,
-12,
-13,
-18,
18,
-16,
4,
14,
-22,
-26,
-19,
8,
47,
-19,
-20,
-77,
5,
-19,
16,
32,
-59,
5,
-17,
-7,
-64,
-7,
13,
-21,
4,
-31,
-22,
46,
-29,
-24,
-34,
37,
-11,
51,
13,
3,
39,
13,
39,
-8,
34,
-4,
11,
10,
2,
-25,
-1,
-40,
-1,
6,
-1,
4,
51,
-40,
-6,
28,
55,
-20,
-29,
21,
-3,
-47,
-29,
13,
11,
37,
-8,
-1,
-9,
23,
58,
-9,
3,
-23,
0,
33,
-4,
-19,
14,
2,
33,
-10,
51,
53,
-1,
-21,
38,
-34,
-9,
-30,
-37,
44,
21,
6,
32,
-51,
33,
-1,
29,
-18,
21,
-2,
60,
-40,
-12,
34,
32,
-15,
34,
23,
-14,
-24,
40,
-11,
-22,
43,
7,
-13,
-12,
-36,
11,
-17,
-24,
-8,
28,
-22,
39,
-18,
30,
-12,
-24,
48,
5,
-29,
-12,
63,
5,
30,
-10,
31,
-24,
-43,
32,
-62,
30,
-29,
27,
15,
-13,
-28,
42,
65,
20,
15,
63,
16,
29,
53,
8,
-41,
-1,
-15,
41,
-4,
-32,
45,
21,
0,
5,
-57,
-22,
28,
-14,
17,
45,
-46,
-29,
35,
-29,
31,
7,
11,
-11,
-5,
-37,
48,
-37,
-2,
66,
-16,
-5,
26,
23,
16,
33,
-35,
-13,
9,
-7,
-17,
9,
37,
2,
10,
-1,
1,
10,
-24,
-34,
-28,
-36,
-31,
-25,
-2,
-21,
47,
46,
-2,
-23,
-26,
-14,
-17,
-38,
-8,
5,
46,
28,
26,
-1,
-8,
-52,
-6,
-14,
37,
-25,
-31,
-15,
-33,
11,
54,
22,
30,
30,
1,
3,
59,
45,
22,
17,
45,
31,
25,
-24,
-15,
-30,
-22,
9,
-12,
-14,
22,
13,
7,
13,
-15,
-7,
-8,
4,
-50,
-28,
-41,
19,
0,
2,
15,
-68,
-45,
-15,
23,
-28,
19,
-18,
-34,
-12,
17,
-22,
67,
-26,
20,
-57,
-44,
34,
-20,
-26,
-27,
-28,
62,
-5,
7,
26,
-18,
0,
-75,
0,
20,
43,
3,
-44,
4,
19,
-19,
5,
-10,
48,
2,
39,
-19,
-3,
-10,
-49,
-11,
9,
11,
-49,
1,
-24,
-27,
-26,
-5,
-14,
-43,
32,
29,
-54,
7,
-4,
0,
-38,
-22,
36,
59,
-26,
20,
0,
23,
16,
-2,
-33,
6,
-23,
47,
-19,
-41,
68,
22,
-40,
15,
25,
21,
-13,
28,
9,
-5,
5,
-16,
-27,
5,
19,
-23,
-54,
3,
-38,
-57,
-29,
-24,
-10,
21,
28,
18,
-43,
36,
-27,
-26,
-7,
-8,
2,
-56,
19,
2,
-9,
23,
-34,
35,
10,
-4,
4,
-9,
0,
-57,
18,
-10,
-8,
49,
72,
-3,
-28,
0,
16,
5,
-57,
54,
-14,
-16,
-39,
-39,
-20,
-9,
21,
-44,
17,
-1,
-2,
19,
-14,
21,
0,
28,
11,
-17,
6,
9,
-11,
-27,
-3,
-20,
36,
6,
-50,
-24,
55,
5,
-28,
28,
4,
-28,
-74,
1,
-48,
-34,
-7,
15,
-18,
-17,
11,
30,
12,
20,
-25,
-5,
4,
0,
-71,
-44,
11,
-3,
-54,
-21,
18,
-6,
-48,
-34,
19,
33,
8,
-18,
37,
11,
35,
42,
-20,
27,
8,
-44,
-7,
-30,
39,
-2,
4,
28,
2,
59,
-24,
14,
-46,
-47,
48,
-36,
21,
5,
-9,
-3,
-7,
46,
-10,
-36,
22,
16,
-1,
32,
5,
27,
31,
22,
0,
-4,
-30,
20,
-22,
2,
-10,
49,
31,
58,
13,
53,
9,
15,
54,
46,
-37,
-23,
-3,
-10,
26,
25,
-5,
34,
-50,
-40,
-5,
-6,
5,
-17,
47,
27,
21,
-8,
27,
-21,
31,
-34,
9,
-25,
-21,
14,
-37,
-10,
39,
-29,
-23,
34,
62,
28,
4,
6,
-24,
-7,
30,
14,
22,
-14,
-11,
-13,
-23,
21,
-21,
32,
-16,
-1,
-22,
-8,
13,
-8,
-27,
2,
-13,
-20,
-36,
-11,
-20,
23,
13,
0,
50,
7,
17,
-16,
-22,
7,
8,
18,
8,
13,
-29,
-37,
30,
-45,
-12,
-57,
21,
51,
-25,
-36,
6,
36,
-1,
-11,
-46,
-18,
14,
-17,
-12,
51,
-31,
9,
-10,
5,
-12,
-57,
-5,
59,
53,
-28,
-5,
10,
-52,
-16,
-29,
-18,
-20,
-42,
37,
-21,
-22,
-53,
-53,
14,
2,
20,
-35,
0,
17,
-19,
26,
61,
26,
-48,
-43,
-23,
-13,
14,
-42,
22,
1,
9,
-3,
35,
20,
7,
24,
26,
-49,
-12,
-6,
38,
-24,
13,
100,
12,
-21,
13,
-29,
-35,
36,
57,
17,
-8,
15,
33,
-51,
-2,
15,
26,
-42,
-12,
-1,
-10,
-72,
-42,
-40,
54,
12,
-2,
-46,
5,
-18,
7,
25,
28,
-38,
35,
-46,
-52,
14,
10,
8,
-5,
18,
28,
-2,
4,
-56,
-52,
18,
25,
3,
53,
55,
43,
-6,
12,
15,
-22,
-12,
-52,
-1,
20,
8,
0,
4,
-10,
14,
27,
-34,
-17,
-5,
62,
11
] |
Sharpe, J.
This is a suit for specific performance of an agreement made by defendant Sco'tt Lemley to sell plaintiff, Dewey Lamberts, a certain home owned by Scott Lemley and wife, or in lieu thereof for an award of damages for the breach of the agreement.
The material facts are not in dispute. The real estate in question is the homestead of defendants which they are purchasing under land contract. On the 14th day of April, 1945, defendant Scott Lemley agreed to sell the premises for $3,500 and accepted $25 as a down payment. Mrs. Lemley did not sign the agreement and refuses to enter into any contract for the sale of said premises. The cause came on for trial and the trial court denied plaintiff any relief and dismissed his bill of complaint.
Plaintiff appeals and urges that the inability to convey a homestead which the husband agrees to sell because of refusal of wife to join in deed does not constitute a valid defense in an action for damages for breach of contract against the husband. When this cause was argued in the Supreme Court, the attorney for plaintiff acknowledged that his client was not entitled to a decree for specific per formance, hence there will be no discussion upon this issue. Because no equitable relief is asked for we shall treat this case as a law case.
The question before us is, .whether a contract to sell homestead property, which exceeds in value the homestead exemption and is not signed by the vendor’s wife, can be the basis of an action for damages against the husband-vendor for failure to perform his contract.
A somewhat similar question arose in Dikeman v. Arnold, 78 Mich. 455. In that case an action at law was brought to recover damages for refusal to convey lands, including a homestead, under a written agreement not signed by the wife. The wife refused to convey. Other lands were included in the husband’s agreement. We there said (p. 469):
“But the contract was not void as far as the land was concerned not embraced within the homestead; and, if he had deeded in conformity with it, such deed would have conveyed his title to the excess over and above the homestead. * * * ■
“We think the contract was good between Arnold and the plaintiffs. He knew when he made it that he could not perform it without the signature of his wife to the deed. He, in effect, bound himself to procure such signature. It in nowise differs in this respect from a contract to sell lands which one does not own at the time he makes such contract. The fact that one did not have legal title at the time he made the contract, and could not procure it after-wards, has never been recognized as a legal defense to an action for breach of contract.”
The precise question we have for decision was before this court in Lawrence v. Vinkemulder, 157 Mich. 294. In that case defendant Vinkemulder entered into an agreement with plaintiff Lawrence to sell defendant’s homestead consisting of a house and lot in the city of Grand Rapids for a price of $7,500. The value of the property was between $8,000 and $9,000. The contract was not signed by defendant’s wife and she refused to join in a deed. Plaintiff brought action in assumpsit for damages for breach of contract. The trial court directed a verdict in favor of defendant and upon appeal the judgment of the circuit court was affirmed by an equally divided court.
Mr. Justice McAlvay wrote for reversal and said:
“It is agreed that the case presents but one question: Can damages in an action at law be recovered against one who has agreed in writing to sell and convey certain real estate by warranty deed, at a future time, for his refusal to perform on the ground that the property was his homestead, and that the agreement was not signed by his wife? The defense relies upon the prohibition of section 2, article 16, of our State Constitution (1850), and the decisions of this! court, which it is claimed hold that such an agreement is absolutely void for all purposes. * * *
“An examination of the case of Dikeman v. Arnold, 78 Mich. 455, shows that the question has been once before considered by this court. * * * This action at law was brought to recover damages for a refusal to convey lands, including a homestead, under a written agreement not signed by the wife. ■ Prom the original record in the ease, reported in 78 Mich. 455, it appears that the defense was the same as in the case at bar.' In that case other lands were included in the' agreement. # # #
“Coming back to defendant’s claim that the contracts were absolutely void, the court said Arnold’s contracts could not be considered absolutely void; that they must be held good to the extent of lands not embraced in the homestead (citing Michigan cases), and then proceeding:
“ ‘In Phillips v. Stauch, 20 Mich. 369, where a specific performance was denied in a case where a portion of the premises was a homestead, and the wife did not join in the bond for a deed given by the husband, the bill was dismissed without prejudice to any proceeding at law which the complainant might “be advised to institute upon the bond for a deed mentioned in the pleadings.” See pages 381, 384. This, in view of the reasoning of the opinion in the case, is an intimation that the complainant could sue upon the bond at law for damages. We think the contract was good as between Arnold and the plaintiffs. He knew when he made it that he could not perform it without the signature of his wife to the deed. He, in effect, bound himself to procure such signature. It in no wise differs in this respect from a contract, to sell lands which one does not own at the time he makes such contract. The fact that one did not have the legal title at the time he made the contract, and could not procure it afterwards, has never been recognized as a legal defense to an action for breach of contract. The rule of damages was the proper one under the declaration in this case and the theory of the plaintiffs. ’
“Considerable time has been devoted to the consideration of the above case because of the claim that the question in the case at bar has never been before the court.
“Not only in Phillips v. Stauch, referred to in the above opinion, but also in Hall v. Loomis, 63 Mich. 709, was the bill of complaint dismissed without prejudice to proceedings at law. In both cases the bills were filed to enforce specific performance of the contracts. It is well settled in this State that such contracts will not be specifically enforced. The numerous Michigan cases cited and relied upon by defendant are all cases brought to enforce specific performance. As there is no dispute as to what question of law was involved in those cases, it will be unnecessary to give the citations. The statements of the court in these cases that such contracts were ‘wholly invalid/ ‘a nullity/ ‘absolutely void/ et cetera, must be considered as made with reference to the question involved, and, when applied to the question now under discussion, or any other questions, are mere dicta.”
Chief Justice Blair, writing for affirmance, said:
“It being settled that a contract to sell and convey the homestead, signed by the husband only, is a mere nullity, it logically follows that no rights whatever can be predicated upon it. Ex nihilo nihil. * * *
“Clearly, what was meant in saying that ‘the contract was good between Arnold and the plaintiffs’ was that it was good as to the excess, just as it had been said that a deed ‘would have conveyed his title to the excess over and above the homestead.’ ”
In Way v. Root, 174 Mich. 418, defendant entered into a contract with plaintiff’s son to convey a tract of land owned by defendant and wife as tenants by entirety, which was not embraced within a homestead. Mrs. Root refused to join in the conveyance. The contract was assigned by the son to plaintiff who brought an action against defendant to recover damages for breach of a land contract. We there said (p. 425):
“In the case at bar none of the land covered by the contract was embraced within a homestead.
• “There is no limit on the amount or value of the realty which husband and wife may hold as tenants by entirety as in case of a homestead, and they are not therefore analogous. Such a holding is not protected by any constitutional provision, and is not regarded by the courts with the same tender consideration as homestead rights, involving a home and shelter for the family. It is a species of title which may, and sometimes does, afford opportunity to sequester substantial assets from just liabilities. When land is so held, neither can affect the other’s or his or her own rights in the property by a separate transfer. An agreement to convey, though invalid to affect the title to real estate, in whole or in part, may yet be valid between the parties as a basis for the recovery of damages by reason of its breach. ’ ’
In Droppers v. Marshall, 203 Mich. 173 (4 A. L. R. 1266), defendant contracted with plaintiff for the sale of 119 acres of land, which included the homestead of defendant and wife. Defendant’s wife refused to convey. Plaintiff brought action for damages. We there said:
“I have been unable to find that the law as announced in Dikeman v. Arnold has ever been overruled, nor is there any reason in equity and good conscience why it should be overruled. So long as the wife is not disturbed in her homestead rights why should not the contracting husband be made to answer for his default in failing to perform his contract?”
The law is well settled that a contract to sell a homestead, not signed by the wife, is void in so far as specific performance is concerned; and that such a contract to sell land, including a homestead, but which exceeds in quantity the amount allowed as homestead exemption can be the basis for an action for damages, see Droppers v. Marshall, supra.
From the cases cited in this opinion, we conclude that an action for damages lies against the husband when he agrees to sell lands which include his homestead and are in excess thereof and his wife refuses to join in the conveyance. The measure of damages for the breach of such contract is the difference between the price fixed by the contract and the market value of the land at the time of the breach of the contract, see Allen v. Atkinson, 21 Mich. 351; and that the damages are based upon the entire quantity of land covered by the contract even though it includes homestead land, see Dikeman v. Arnold, supra, and Droppers v. Marshall, supra.
In our opinion there, is no difference in principle between a contract which covers land in excess of' the quantity allowed as a homestead and a contract which covers land the value of which is in excess of the amount allowed for homestead purposes. In the former ease an action for damages lies upon refusal to convey. The same rule should apply to the latter situation.
The decree of the trial court is reversed, but the bill of complaint against Mrs. Scott Lemley is dismissed, with costs. The relief for specific performance having been abandoned by plaintiff and a motion being before us on behalf of plaintiff, the purport of which is to transfer the cause to the law side of the court, such motion is granted and the cause of action against Scott Lemley is remanded to the circuit court of Kent county to be transferred from the chancery to the law side of the court for a finding of fact as to the amount.of damages, if any, and a judgment entered therein in accordance with such finding of fact. Costs to await result of the case.
Butzel, C. J., and Care, Bushnell, Boyles, Reid, North, and Starr, JJ., concurred.
See 3 Oomp. Laws 1929, § 14008 (Stat. Ann. § 27.652). — Reporter, | [
18,
29,
-18,
34,
28,
-45,
22,
68,
17,
59,
-43,
1,
45,
60,
-57,
-6,
31,
-16,
3,
10,
-55,
-72,
-35,
17,
7,
-8,
-9,
-32,
19,
23,
-16,
27,
-81,
10,
-43,
19,
25,
2,
-24,
-9,
-3,
-16,
9,
1,
-15,
20,
5,
-20,
-7,
-3,
1,
17,
49,
-24,
-32,
0,
-38,
81,
0,
-38,
-42,
-20,
-28,
44,
-38,
27,
48,
9,
14,
11,
-67,
16,
2,
-32,
25,
0,
-4,
55,
5,
-19,
25,
20,
37,
-27,
-6,
36,
5,
-11,
-8,
30,
-31,
3,
14,
22,
-21,
31,
-6,
22,
26,
47,
-35,
24,
30,
11,
-29,
-12,
-55,
-20,
0,
25,
32,
-17,
3,
-5,
0,
-21,
22,
-24,
-37,
-26,
3,
25,
34,
-22,
24,
-39,
23,
-46,
33,
-1,
37,
24,
-6,
24,
-23,
-26,
32,
7,
11,
-23,
-16,
12,
-2,
-32,
21,
-15,
25,
-46,
-67,
-28,
-9,
11,
-32,
43,
51,
-53,
6,
27,
-1,
-1,
13,
9,
-26,
-2,
22,
-2,
-9,
1,
-12,
6,
71,
40,
2,
-27,
3,
-18,
68,
19,
-48,
-16,
35,
-8,
-2,
-15,
-29,
-5,
-7,
20,
-53,
-13,
-18,
-41,
20,
30,
-1,
27,
-92,
31,
-44,
-2,
2,
3,
-21,
0,
0,
-15,
14,
35,
-3,
36,
-34,
11,
-37,
-47,
-7,
37,
66,
-22,
-31,
13,
30,
6,
-28,
-3,
-35,
-36,
27,
-22,
-23,
6,
-2,
-14,
31,
-12,
-19,
-28,
-14,
2,
36,
11,
-5,
-22,
-5,
6,
-34,
-73,
-27,
35,
-11,
20,
-42,
-42,
-18,
34,
44,
21,
9,
5,
-26,
36,
13,
63,
-18,
-3,
-9,
20,
-9,
-16,
-20,
34,
-17,
-7,
-13,
90,
-27,
-1,
-81,
21,
-20,
-44,
30,
-2,
-5,
-46,
-21,
15,
13,
58,
-27,
-13,
46,
-20,
-26,
-26,
-8,
24,
4,
-26,
19,
32,
1,
-28,
53,
35,
-14,
-1,
-39,
-19,
-15,
-32,
-13,
0,
0,
-66,
-44,
-18,
-16,
-19,
-28,
-62,
59,
35,
16,
53,
49,
-22,
30,
-52,
-9,
50,
37,
20,
-28,
-38,
22,
18,
22,
-36,
-63,
4,
28,
39,
-16,
0,
39,
49,
26,
12,
-25,
-14,
-25,
-41,
-62,
23,
0,
-28,
-6,
-1,
-8,
34,
-1,
21,
-28,
-18,
-48,
55,
-2,
-15,
28,
3,
29,
21,
-2,
-22,
-55,
15,
-3,
-30,
-44,
46,
6,
5,
45,
37,
-17,
-19,
-26,
-18,
-16,
-16,
-29,
-18,
22,
-14,
-24,
4,
18,
-58,
-15,
-53,
67,
12,
-35,
-26,
-48,
0,
-1,
-49,
-68,
15,
-4,
-34,
33,
-1,
3,
14,
63,
-19,
-2,
29,
-7,
-8,
-16,
43,
16,
-28,
-42,
-1,
-34,
0,
2,
44,
72,
-42,
53,
1,
-15,
16,
-23,
34,
-13,
5,
0,
21,
7,
7,
21,
-27,
5,
-10,
-29,
5,
-18,
45,
23,
-27,
46,
5,
4,
-49,
24,
-14,
39,
-65,
26,
-24,
-16,
2,
-17,
-18,
9,
51,
63,
-21,
-17,
37,
-29,
16,
23,
10,
-41,
40,
18,
-27,
37,
-9,
-91,
-14,
6,
-30,
40,
-15,
53,
16,
-29,
-81,
54,
-3,
-16,
38,
40,
60,
43,
31,
24,
-6,
-11,
23,
35,
49,
-12,
-40,
54,
-2,
52,
-12,
8,
-26,
0,
1,
-7,
4,
-18,
-14,
20,
-24,
24,
89,
-21,
0,
2,
2,
23,
17,
-15,
-25,
-1,
-1,
51,
-21,
-76,
41,
-15,
13,
-13,
79,
8,
-2,
9,
-3,
-37,
-55,
39,
12,
7,
-9,
36,
3,
34,
3,
12,
17,
34,
-1,
26,
-23,
19,
-30,
0,
76,
-30,
-16,
-22,
4,
-8,
-14,
-36,
10,
10,
-4,
-51,
-1,
41,
-53,
-12,
18,
-7,
20,
-2,
7,
-28,
50,
35,
-68,
-71,
-2,
-11,
-55,
25,
33,
-36,
42,
-44,
-23,
16,
-44,
-65,
8,
-12,
-6,
6,
-1,
-15,
45,
36,
10,
84,
-21,
0,
28,
40,
6,
-10,
-6,
0,
0,
22,
72,
-28,
-4,
-27,
-24,
18,
-29,
-8,
19,
15,
-16,
-35,
-65,
-48,
1,
-33,
24,
18,
-46,
-16,
-16,
8,
1,
-30,
15,
0,
-26,
58,
-34,
-3,
-22,
-18,
-15,
14,
-46,
-33,
19,
25,
12,
46,
3,
-51,
14,
30,
16,
-8,
38,
-16,
23,
51,
57,
34,
20,
37,
-53,
31,
-37,
-13,
-12,
15,
-69,
15,
45,
-16,
37,
-13,
-38,
-24,
-36,
-26,
55,
17,
30,
57,
-8,
9,
17,
4,
4,
-64,
-30,
-50,
-5,
28,
59,
-6,
-1,
-19,
37,
-17,
10,
-23,
-5,
-8,
1,
14,
-112,
-7,
-12,
31,
-1,
66,
13,
23,
39,
15,
-5,
-19,
0,
28,
-8,
-18,
-62,
-7,
-25,
38,
-3,
5,
1,
12,
3,
-24,
-40,
26,
-9,
3,
21,
-2,
-22,
-26,
34,
-44,
8,
-15,
-2,
-33,
23,
0,
18,
-19,
-47,
-1,
-36,
14,
35,
-9,
21,
-14,
-79,
27,
8,
64,
-6,
-15,
-10,
24,
-24,
-49,
-33,
18,
16,
55,
11,
13,
-48,
-33,
-8,
-33,
-36,
70,
28,
-7,
-42,
10,
-5,
3,
11,
25,
17,
-40,
44,
3,
30,
17,
-7,
-34,
-7,
-26,
16,
28,
61,
-5,
31,
39,
-39,
-49,
-2,
-23,
24,
38,
-6,
-50,
13,
53,
-44,
2,
54,
-26,
-2,
31,
9,
-18,
-12,
-11,
-15,
-12,
24,
68,
3,
-14,
-7,
22,
-61,
0,
-32,
41,
-22,
-25,
-50,
-36,
-4,
-39,
-29,
25,
-27,
-14,
14,
29,
36,
-1,
10,
54,
57,
18,
9,
-5,
-6,
65,
43,
-8,
0,
33,
53,
9,
-2,
-69,
41,
-50,
0,
15,
10,
-20,
29,
20,
-9,
-22,
42,
-46,
-14,
-33,
-80,
24,
-57,
-28,
-26,
-36,
-13,
-24,
-17,
-2,
63,
16,
21,
27,
-53,
-46,
-29,
-39,
38,
-55,
-27,
0,
70,
29,
10,
-55,
-44,
6,
-22,
-2,
-19,
26,
21,
0,
4,
-23,
28,
21,
-32,
40,
-19,
-45,
-62,
13,
-15,
5,
-37,
-32,
4,
16,
-2,
-2,
58,
-27,
57,
17,
50,
-13,
8,
-48,
-26,
19,
-22,
7,
31,
-28,
-81,
-1,
-35,
43,
9,
-66,
-41,
36,
2,
4,
-24,
22,
27,
45,
23,
-31,
-59,
-21,
-56,
-6,
22,
32,
-17,
15,
-6,
-33,
-59,
-7,
20,
25,
7,
3,
24,
-13,
-6,
8,
5,
-48,
-7,
-5,
27,
18,
-5,
57,
12,
18,
-71,
-13,
-25,
83,
23,
-67,
18,
-8,
22,
-25,
-38,
42,
-13,
-43,
71
] |
Boyles, J.
Plaintiffs brought this action in ejectment in the circuit court for Marquette county to try title to a strip of land three feet wide along the boundary line between lots 5 and 6, block 7, John Burt’s Addition to the city of Marquette. The case was tried before the circuit judge without a jury resulting in a finding by the court that the defendants were guilty of unlawfully withholding said strip of land from the plaintiffs. Judgment for plaintiffs was entered accordingly and defendants appeal. The location of lots 5 and 6 and of the disputed strip is shown on the following map:
The only ground urged for reversal by appellants in their brief is that there was no evidence to support the court’s .finding and judgment that title to the strip of land in question had been acquired by plaintiffs and their grantors by adverse possession. However, this was not the only ground on which plaintiffs based their claim of title, nor was it the only ground on which the court found that plaintiffs held title and right to possession. In their declaration plaintiffs claimed title both by adverse possession and as grantees in regular chain of title, and the circuit judge found that “the plaintiffs have title to the strip of land in question (1) by construction of their deeds, (2) by adverse possession, (3) by acquiescence, and (4) by the general policy of the law to refuse to disturb long-established boundaries, though not on the true line and not included in the description of the property in their deed of purchase. ’ ’
The record title to these two lots is not in dispute. Plaintiffs are the owners of record of lot 6 and defendants John and Jane DeMerse are land-contract vendees of Louis Blair, owner of lot 5. Plaintiffs’ lot 6 is the westerly one of the two lots — defendants ’ lot 5 adjoins lot 6 on the east. These lands were platted in 1860, since which time lots 5 and 6 have been conveyed by the numbers 5 and 6 shown on the recorded plat. The present dispute arises out of a difference of opinion between these parties as to the boundary libe between these two lots.
Plaintiffs’ immediate grantor, one Mrs. Mc-Kinnon, acquired her title to lot 6 in 1910 and held title continuously until 1930 at which time she conveyed her title to Elizabeth Rublein and Jeanette Beauchamp, reserving a life estate. In 1941 Mrs. McKinnon (thereby releasing her life estate) joined with Elizabeth Rublein and Jeanette Beauchamp in conveying lot 6 to plaintiffs. The principal question hére is whether plaintiffs thus acquired title to the three-foot strip which is here in dispute.
As to defendants’ lot 5, title was held by one Rots-child in 1907, conveyed to William C. Weber in 1914, by him conveyed to the Bendings in 1918, then conveyed by them to Schmidt and wife in 1925, conveyed by them to Margaret and Lulu Probst in 1928, then conveyed to Louis Blair in 1940. Blair gave the defendants DeMerse in 1940 the land contract under which they now hold possession of lot 5.
In 1940-1941, when the parties to this litigation acquired their respective interests in lots 5 and 6, there was a concrete driveway along the west side of defendants’ house on lot 5. There was evidence that this driveway had been built more than 20 years. The west edge of this driveway was 11 feet 9 inches east of plaintiffs’ house on lot 6, and this unpaved strip of land was used by the successive owners of lot 6 as a driveway. The line between .lots 5 and 6 was never fenced or staked, and there was never any question raised between the successive owners of lots 5 and 6 as to the location of the lot line, until the present dispute arose. Plaintiffs claim title to the west edge of the old concrete driveway on lot 5.
In 1943 the defendants had a survey made by adopting the width of the lots as shown on the original plat) measured from the southeast comer of the block. This survey showed that the line between lots 5 and 6 was three feet west of the west edge of the old concrete driveway on lot 5. Defendants’ surveyor did not examine the original plat, and started his survey by taking the southeast corner of lot 5, block 7, as a starting point, at a point where he found an old stake in the ground. The record is barren of any testimony as to whether this stake is a monument fixed by the original survey. Based on their survey the defendants covered the three-foot strip in question with new concrete. This new con crete effectively prevented plaintiffs from continuing to use the space between it and their house as a driveway.
Plaintiffs also had a survey made'. It showed that a survey running from the west beginning at a recognized starting point placed a different boundary line between lots 5 and 6 than one starting at the same point and approaching these lots from the east, both using the courses and distances as shown on the plat. Furthermore, neither one of the two boundary lines thus indicated agreed with the line established by the defendants as being 129 feet west of the southeast corner of said block 7. Also, none of these three so-called surveys agreed with the established west line of lot 6. The circuit judge commented:
“This is not an unusual situation as regards lots and lot lines in old plats. ”,
The court received considerable testimony from former owners and others, to aid in determining as to which of these litigants had the correct idea as to the boundary line between their lots. There was evidence to support defendants’ theory, consisting of an old fence on the south side of lot 4, the'remains of an old post at the southwest corner of lot 4, which is the southeast corner of lot 5, and some trees set along the south line of lot 7. Mrs. McKinnon, who had owned lot 6 from 1910 to 1936, and occupied it (partly under life lease) for about 33 years previous to 1941, corroborated by her daughter Mrs. Rublein, testified as to the location of the boundary line. They testified that lot 6 extended to the west line of the old concrete, that they occupied it, mowed the grass in the summer, shoveled snow on it in the winter, the owners of lot 5 never claimed it or paid any attention to it; that at the rear was an old barn, that when it was removed they placed stones on the lot line, lined np with the west edge of the old concrete, which are still there. This boundary (claimed by plaintiffs) lines up with an old cedar fence post in the southeast corner of lot 4, block 12, across the street, directly south of lot 6 here involved.
The court had before it for decision the question of fact as to whether plaintiffs’ deed of lot 6 conveyed title to the west line of the old cement, which would include the three-foot strip in dispute. The court concluded that plaintiffs had title to this three-foot strip. We cannot find from the record before us that the evidence clearly preponderates in the opposite direction. The court properly held that the west edge of the old concrete driveway established the line.
Mrs. McKinnon, plaintiffs’ predecessor in chain of title, had undisturbed use and possession of this three-foot strip for upwards of 25 years. This distinguishes the case at bar from Stewart v. Hunt, 303 Mich. 161. The boundary claimed by plaintiffs had been defined and established for more than 25 years, accompanied by harmonious occupancy. The parties concerned had acquiesced in the boundary thus established.
“In defense to an action of ejectment based upon an alleged mistake in the original survey, evidence is admissible that the existing boundaries had been defined for more than 20 years by buildings, fences, and harmonious occupancy.
“Long practical acquiescence in a boundary, between the parties concerned, may constitute such an agreement on it as to be conclusive, even if it had been erroneously located.” Diehl v. Zanger (syllabi), 39 Mich. 601.
‘ ‘ One may gain title to property by adverse possession even though through an innocent mistake in setting out the boundaries.
“A boundary line, long treated and acquiesced in as the true line, ought not to be disturbed on new surveys, 15 years’ recognition and acquiescence being ample for purpose of establishing the boundary.
“In action of ejectment between owners of two adjacent city lots, evidence that defendants’ grantor planted hedge within one foot of what both he and plaintiffs’ then predecessor in title believed to be the boundary line and such line was acquiesced in for more than 15 years held, sufficient to establish title in defendants to seven-foot strip of land in dispute notwithstanding deed to defendants was given less than 15 years prior to commencement of action and did not include such land in description.” Gregory v. Thorrez (syllabi), 277 Mich. 197.
Judgment affirmed. Costs to appellees. •
Butzel, C. J., and Carr, Sharpe, Reid, North, and Starr, JJ., concurred. Bxjshnell, J., took no part in the decision of this case. | [
-41,
61,
4,
-22,
19,
17,
71,
26,
-13,
31,
-5,
-30,
20,
16,
22,
-51,
-40,
25,
9,
-5,
-9,
-41,
-47,
0,
58,
3,
70,
-17,
-1,
-4,
4,
-5,
-33,
14,
44,
-4,
-4,
10,
2,
0,
-29,
16,
-10,
6,
14,
35,
-9,
-2,
24,
5,
23,
-11,
3,
25,
-44,
18,
-28,
-15,
-17,
-13,
13,
-4,
-1,
20,
42,
37,
8,
-30,
13,
-98,
-1,
-15,
-49,
-23,
-9,
11,
-6,
21,
-72,
-24,
8,
4,
59,
47,
-35,
-18,
-22,
-77,
1,
-7,
-48,
-7,
-33,
13,
20,
0,
26,
-17,
-22,
-43,
22,
51,
-30,
47,
2,
-7,
-32,
-31,
4,
-27,
-41,
-13,
25,
24,
26,
-30,
22,
-4,
22,
36,
-11,
-55,
23,
16,
-26,
22,
-20,
23,
-12,
-7,
-12,
-15,
4,
-41,
-4,
-2,
-22,
-14,
1,
24,
8,
-28,
-49,
-22,
-17,
-60,
16,
-60,
26,
-24,
-41,
1,
7,
46,
23,
7,
57,
0,
-6,
10,
34,
0,
42,
-58,
-45,
9,
22,
-2,
-11,
-34,
60,
-16,
-3,
-21,
6,
-12,
44,
44,
-40,
21,
64,
-6,
33,
-19,
-74,
-25,
-15,
-5,
-48,
-7,
-5,
1,
46,
-65,
-38,
61,
0,
20,
-27,
-3,
3,
-11,
-11,
-40,
-23,
29,
29,
1,
-5,
-26,
-18,
18,
-28,
-8,
6,
7,
5,
-20,
-15,
-69,
12,
28,
6,
43,
13,
24,
17,
-5,
24,
25,
-8,
-22,
2,
13,
-65,
-5,
19,
-9,
27,
4,
25,
-4,
22,
9,
-35,
28,
-7,
-36,
-35,
54,
-20,
-56,
-55,
-4,
-57,
-28,
6,
4,
-25,
26,
-20,
17,
-38,
-2,
-25,
5,
-52,
16,
-30,
-5,
-38,
33,
33,
27,
-43,
-12,
13,
-16,
22,
17,
16,
5,
6,
21,
-24,
30,
-16,
12,
27,
95,
-41,
51,
-60,
-28,
17,
-31,
7,
-2,
25,
24,
-74,
1,
-2,
-10,
-5,
-28,
-2,
5,
79,
30,
21,
33,
-4,
-30,
30,
-11,
8,
3,
30,
-2,
-4,
-18,
11,
19,
-5,
59,
15,
0,
7,
30,
17,
-4,
28,
7,
12,
-45,
0,
0,
48,
-11,
21,
15,
-6,
4,
56,
-6,
-29,
-14,
36,
-9,
8,
-27,
-8,
16,
-39,
-25,
45,
-4,
-30,
16,
40,
47,
62,
-5,
-16,
-2,
-29,
-51,
41,
0,
0,
38,
45,
9,
-21,
-67,
24,
-8,
-32,
58,
-15,
-26,
23,
28,
49,
-13,
3,
-9,
-21,
-23,
-16,
-35,
-2,
60,
22,
59,
-3,
0,
-12,
-62,
8,
29,
28,
-5,
-48,
6,
-21,
-36,
34,
8,
29,
-12,
72,
0,
20,
-2,
36,
38,
24,
23,
0,
-5,
4,
-61,
-11,
-21,
19,
27,
-44,
27,
-25,
33,
21,
-3,
43,
7,
-36,
-7,
-27,
-2,
-7,
41,
-17,
22,
-20,
-12,
-7,
10,
-12,
12,
-40,
92,
-17,
-7,
-53,
12,
64,
-23,
34,
-36,
2,
17,
0,
30,
21,
-36,
-29,
-22,
14,
9,
-5,
71,
30,
23,
-20,
19,
15,
9,
-52,
-14,
-2,
-12,
-28,
-23,
-13,
2,
-37,
41,
-9,
28,
22,
7,
40,
-10,
35,
-89,
-34,
21,
47,
22,
-53,
10,
40,
-3,
-8,
34,
0,
-33,
-9,
44,
11,
-30,
33,
-13,
-7,
6,
-10,
-20,
-3,
11,
-10,
0,
-27,
-1,
28,
-17,
12,
-24,
25,
11,
-13,
-16,
8,
-6,
-44,
1,
16,
-3,
1,
32,
-6,
10,
-2,
24,
-42,
9,
-25,
-35,
1,
-4,
-29,
4,
-1,
44,
-9,
5,
-46,
-63,
10,
-32,
-10,
0,
0,
-48,
27,
-18,
9,
-44,
-12,
38,
-27,
33,
48,
-45,
-33,
-1,
-18,
-7,
3,
18,
-23,
-9,
-21,
-89,
52,
60,
29,
1,
-3,
-8,
-20,
-38,
-55,
-5,
39,
-13,
-4,
54,
52,
-20,
4,
-24,
-47,
-9,
-5,
-56,
24,
-35,
57,
-9,
26,
18,
-34,
37,
33,
51,
34,
-24,
24,
-26,
0,
21,
17,
2,
-6,
-18,
-37,
7,
-67,
-47,
33,
-13,
-8,
11,
13,
-23,
-12,
0,
22,
-21,
11,
-33,
-77,
16,
-32,
-50,
-13,
-9,
8,
-40,
-29,
56,
27,
-12,
40,
-23,
0,
4,
39,
-16,
49,
-14,
-6,
-24,
-16,
-44,
6,
-25,
16,
51,
38,
3,
-3,
10,
-56,
-10,
28,
48,
37,
18,
36,
-1,
-5,
15,
30,
-2,
-20,
0,
9,
42,
14,
22,
28,
-37,
14,
-52,
-23,
-7,
-4,
19,
8,
53,
49,
27,
36,
1,
58,
-27,
-13,
-7,
0,
-6,
12,
28,
0,
44,
-12,
0,
23,
7,
26,
-28,
-22,
-105,
23,
-1,
28,
-36,
-16,
5,
9,
41,
14,
17,
-7,
19,
25,
-3,
-1,
12,
-19,
-28,
-22,
8,
20,
-17,
22,
11,
-10,
1,
-35,
-4,
-3,
36,
-15,
-54,
-18,
24,
-5,
-33,
0,
25,
-61,
-35,
-30,
-35,
-31,
-49,
9,
9,
-55,
-4,
-30,
-56,
-10,
18,
-45,
22,
16,
-25,
-14,
-21,
39,
-37,
-6,
-1,
-1,
-31,
-5,
19,
-26,
-86,
-35,
-14,
-51,
-13,
-34,
-28,
-14,
-2,
-37,
27,
-56,
-6,
-23,
15,
-59,
32,
11,
47,
-34,
-33,
-31,
-61,
-58,
27,
-48,
37,
-18,
-11,
27,
-31,
8,
10,
40,
-5,
41,
-22,
-9,
3,
41,
-22,
13,
53,
51,
-38,
-10,
-4,
-24,
2,
3,
-32,
-19,
-17,
-25,
3,
-8,
-2,
1,
25,
-46,
0,
11,
72,
-36,
-53,
-32,
14,
-3,
43,
59,
8,
-26,
-12,
9,
43,
17,
-20,
31,
38,
19,
-1,
-36,
12,
33,
-14,
-15,
-23,
9,
-14,
-48,
27,
-15,
7,
-56,
-36,
38,
34,
-11,
27,
31,
6,
-10,
-2,
-40,
4,
50,
-21,
-16,
-18,
-18,
13,
37,
0,
31,
-28,
27,
23,
69,
-16,
-8,
-34,
-51,
-20,
-18,
-39,
-40,
-13,
-17,
45,
-3,
25,
-59,
-45,
-49,
-18,
-3,
37,
-7,
42,
-42,
60,
-1,
-72,
41,
21,
19,
-16,
6,
-30,
-24,
-1,
17,
14,
-26,
23,
45,
29,
-16,
79,
-27,
15,
44,
52,
-8,
30,
-47,
-24,
-32,
-40,
22,
-8,
4,
20,
36,
-39,
3,
24,
25,
1,
-36,
-3,
-16,
-10,
16,
-11,
5,
69,
28,
9,
26,
-29,
-8,
34,
-2,
22,
0,
2,
-39,
-5,
17,
16,
29,
-27,
-4,
29,
0,
16,
-24,
-20,
29,
6,
29,
-6,
6,
-1,
62,
26,
30,
-15,
-29,
-18,
48,
-4,
24,
57,
-19,
13,
9,
10,
21,
-35,
-1,
35
] |
Reid, J.
Plaintiff wife filed the bill of complaint and from the decree of divorce for the plaintiff, defendant appeals.
The parties were married in the city of Detroit on October 31,1938. They have two children, Lincolna Summers, 4 years of age at the time of the hearing, and Chittle Dallas Summers, 3 years of age at the time of the hearing. Plaintiff is a resident of the city of Cadillac, and has resided in the State of Michigan for upwards of 10 years.
The parties separated about August 16,1944. According to defendant’s claim, plaintiff and defendant lived happily together until about May 15, 1944. Defendant testified that at that time:
“She criticized me openly and intimated by a series of statements that she was going to leave me. She stated to me that those children were not my children, they were God’s children, that the woman always gained custody of the children, and that the Jehovah Witness had never lost a court case. * * * I told her the morning that she left that due to this intense unsettlement physically that I was undergoing that I felt food was not doing me any good, only making me sick, and I was going to fast temporarily until such time as she would promise we would have a united home for our children. She made one attempt to have me join this movement * * * and because I didn’t react favorable, she called me ‘full of the devil.’ That is the occasion that she testified to that I struck her. I never struck her at any other occasion.”
The striking thus referred to by the defendant is described by plaintiff in her testimony as follows:
“He struck me in the face very hard when I reprimanded him for filling a trench around tho foundation of the house with manure and leaving it uncov ered to call the flies. It didn’t knock me over but I saw stars. I cannot remember that he ever repente'd for it.”
Plaintiff testified to one other occasion as follows:
“I reprimanded him for having to wash by hand .with a washing machine standing in the house, and he picked up the tub of warm soapy and very dirty water and threw it all over me and I had to change my clothes. The children were very upset by this. He laughed and made fun of me and walked away.”
Defendant claims that his improper treatment of his wife on the two occasions just referred to was provoked by her. On the whole, his conduct toward her cannot otherwise be condemned or criticized. Plaintiff complains of want of agreement concerning the children and a want of unified control. We find her complaints in that particular to be without merit.
Unanticipated by defendant, plaintiff took the children from the home of the parties in Belleville to Cadillac on August 11, 1944. The defendant followed her and there arranged with her to have a meeting with the Methodist preacher, in whose presence and at whose solicitation they had a reconciliation. The preacher testified:
“It was evident that there had been tension between the two but, as against that, they still loved each other and loved their children. They agreed to the 'need of children for both parents to bring them up. * # # There was a fine. spirit of understanding, seemingly, on the part of both, and we had prayer about it and fine spirit. ’ ’
The parties intended to leave Cadillac and return to their home in Belleville. Plaintiff testified:
“I guess I led him to believe I was going back with him. Then my mother and sister came back that night from a trip and after I had talked the matter over with them I told him I was not going to go with him until I had more time to think it over. * * * My intention to leave my husband was developed after my visit home.” (Italics supplied.)
There are cogent reasons appearing in the testimony in this case for the conclusion that the entire trouble between these parties grows out of the fact that plaintiff is a member of and is greatly influenced by the Jehovah Witness sect, and is also much influenced by her mother, whose home is the meeting place in Cadillac for Jehovah Witnesses. Defendant testified:
“Mr. Chittel tried to persuade Dorothy to go home with me but he was immediately silenced by Mrs. Chittel (plaintiff’s mother). I was severely lectured to during the evening of the 16th by Mrs. Chittel, telling me how I should regulate my life.”
It is the manner in which the influence of the Jehovah Witness .sect reacts upon plaintiff that really causes the difference between the parties. It is evident that the defendant does not desire to affiliate with the Jehovah Witness sect or cult. The plaintiff has a right to her religious views and the defendant has a right to his religious views, but the plaintiff on account of religious differences is not authorized to break up the home, to take the children away from the home, and to refuse the defendant a right to visit with his children. Plaintiff took the children without right from the home at Belleville to Cadillac. It is plaintiff’s duty to permit defendant to take the children back to the home from which she wrongfully took them.
The circuit judge found:
“In the judgment of the court, these young people would have made a ‘go’ of the marriage relation, if they had been left to themselves.”
We do not consider that the testimony sustains plaintiff’s claim. The decree is reversed and the hill of complaint dismissed. No costs are allowed.
A decree may he entered in this court in accordance with this opinion.
Butzel, C. J.,. and Carr, Bushnell, Sharpe, Boyles, North, and Starr, JJ., concurred. | [
-31,
19,
19,
8,
-30,
-52,
-29,
33,
2,
-21,
-72,
-13,
25,
13,
-19,
-24,
-3,
-19,
-14,
-27,
0,
-46,
-3,
21,
24,
32,
3,
-46,
-33,
-21,
-18,
-15,
5,
-73,
-11,
-55,
43,
-27,
-9,
24,
0,
-50,
29,
-16,
-28,
5,
19,
40,
-30,
46,
12,
-28,
16,
21,
-13,
2,
-3,
26,
-20,
-22,
-20,
15,
-9,
13,
-32,
-46,
35,
60,
2,
31,
35,
-49,
-20,
-50,
-43,
-21,
-18,
-21,
-1,
0,
-36,
-10,
78,
2,
-11,
-9,
-14,
10,
-44,
34,
34,
51,
-35,
-7,
50,
-30,
-9,
48,
20,
-10,
-13,
-13,
-11,
5,
-11,
42,
19,
-36,
-6,
-10,
50,
0,
64,
32,
13,
-18,
15,
-15,
-30,
-62,
6,
34,
4,
-56,
40,
-3,
-17,
-55,
55,
30,
2,
35,
33,
-14,
8,
-60,
54,
-58,
-18,
-20,
-2,
39,
16,
0,
13,
19,
-35,
15,
-37,
-23,
-34,
-36,
35,
26,
58,
-9,
-23,
-18,
9,
-12,
31,
-34,
-38,
-36,
-24,
-44,
-1,
21,
31,
-33,
38,
-4,
-33,
-1,
25,
27,
-10,
7,
-41,
22,
-11,
11,
-9,
-46,
42,
-50,
33,
-26,
-24,
6,
20,
7,
-5,
1,
28,
53,
1,
24,
19,
32,
2,
-5,
5,
-9,
16,
-49,
39,
-2,
-17,
-28,
8,
-10,
28,
-49,
-37,
-23,
31,
-2,
-91,
21,
30,
-73,
24,
45,
-55,
-50,
12,
-52,
28,
-14,
12,
0,
45,
3,
-34,
5,
0,
28,
-2,
21,
-45,
-43,
6,
-11,
-2,
24,
-68,
18,
15,
6,
-16,
25,
13,
16,
-4,
-10,
-13,
4,
4,
30,
-33,
5,
-3,
5,
28,
23,
-13,
-24,
32,
-53,
48,
-8,
24,
9,
-19,
-8,
-21,
50,
24,
-7,
-33,
18,
-8,
-28,
34,
-6,
13,
3,
-13,
-12,
43,
-39,
3,
-52,
42,
13,
1,
0,
-3,
17,
25,
-21,
-36,
0,
-22,
-18,
-13,
-29,
6,
20,
38,
-18,
23,
-5,
29,
-5,
-3,
34,
10,
5,
-16,
19,
-36,
3,
-71,
49,
-11,
1,
-28,
20,
-33,
25,
5,
5,
18,
-6,
-23,
-27,
4,
-9,
12,
10,
-15,
0,
-20,
-4,
42,
43,
0,
8,
-37,
-70,
17,
-13,
-80,
42,
12,
-48,
-2,
-7,
36,
-3,
-75,
1,
-10,
-6,
5,
-57,
-7,
67,
3,
-11,
-13,
35,
12,
4,
10,
14,
27,
64,
-14,
-50,
23,
63,
1,
77,
-50,
-63,
3,
2,
-31,
27,
52,
-27,
33,
-7,
7,
24,
-22,
35,
-38,
6,
-11,
41,
11,
24,
-9,
-9,
0,
-12,
-15,
12,
10,
13,
30,
22,
8,
31,
9,
-5,
-10,
27,
29,
-30,
12,
-17,
18,
-76,
45,
12,
22,
3,
2,
28,
18,
-16,
-13,
41,
-42,
28,
-3,
17,
-6,
24,
21,
16,
-31,
-19,
26,
-31,
33,
-55,
-14,
-32,
-22,
12,
7,
39,
40,
-23,
-41,
-8,
-12,
9,
51,
-21,
-10,
-11,
-17,
24,
41,
12,
-12,
32,
8,
14,
18,
-12,
19,
-48,
-9,
38,
-29,
5,
-3,
-8,
-6,
-54,
15,
0,
14,
1,
-28,
69,
-2,
0,
5,
-12,
-44,
-11,
-22,
11,
4,
-12,
50,
15,
-10,
26,
12,
-11,
-2,
11,
-9,
-14,
-40,
-25,
54,
22,
-11,
-12,
-25,
50,
58,
-31,
-28,
-28,
37,
-9,
-54,
14,
48,
20,
5,
53,
34,
31,
16,
-11,
-11,
-39,
29,
19,
64,
-56,
25,
-47,
-42,
-68,
-33,
50,
16,
-31,
-12,
-2,
29,
-5,
-2,
11,
-63,
3,
37,
-25,
57,
-13,
0,
-53,
30,
52,
18,
-7,
-35,
51,
30,
-27,
22,
53,
-21,
-18,
-51,
6,
63,
-17,
14,
53,
-19,
-29,
20,
18,
-12,
4,
5,
-16,
-28,
-15,
24,
-19,
-24,
-5,
5,
-9,
27,
-72,
18,
18,
22,
37,
-39,
13,
-7,
-12,
33,
24,
-56,
-51,
-19,
50,
-4,
-20,
-9,
6,
20,
-11,
5,
-3,
-7,
-39,
35,
-14,
18,
-15,
-15,
3,
35,
22,
51,
-1,
33,
-10,
-16,
-15,
-23,
35,
-11,
33,
-21,
32,
-18,
-39,
-24,
-16,
6,
17,
-6,
21,
41,
-63,
34,
-33,
-21,
-9,
-40,
-30,
-19,
27,
-31,
-12,
22,
23,
-20,
-3,
-22,
-4,
40,
33,
27,
25,
-40,
13,
58,
40,
-12,
-3,
33,
2,
33,
-18,
61,
-23,
-19,
-44,
-12,
-33,
44,
-13,
-19,
17,
-9,
24,
2,
-1,
-45,
3,
12,
-32,
32,
3,
8,
14,
54,
-3,
0,
8,
41,
-2,
-55,
56,
36,
-26,
-20,
17,
-32,
48,
-3,
-21,
46,
-4,
42,
-8,
18,
-17,
49,
64,
20,
-11,
-22,
36,
-13,
17,
-5,
23,
20,
-30,
-60,
19,
-4,
-48,
4,
-40,
13,
9,
0,
-13,
6,
-12,
-6,
-8,
24,
-50,
-46,
3,
1,
20,
20,
-29,
-29,
1,
20,
-23,
14,
-5,
-52,
27,
-36,
-45,
-43,
11,
-56,
-32,
5,
-23,
-16,
-11,
-5,
-17,
-16,
-13,
95,
7,
37,
-4,
-20,
-46,
20,
-54,
-4,
0,
8,
-36,
35,
-15,
8,
7,
27,
-8,
-13,
-25,
-36,
-27,
-34,
38,
-3,
49,
9,
-42,
-40,
45,
-22,
-5,
17,
31,
35,
9,
-6,
4,
2,
-12,
0,
1,
-36,
-10,
14,
-38,
68,
82,
-76,
-6,
47,
14,
-11,
13,
41,
29,
-13,
2,
26,
27,
40,
3,
37,
-22,
52,
-41,
-21,
-15,
-18,
-55,
-50,
-1,
-2,
-17,
-32,
-13,
-44,
-83,
2,
17,
16,
-16,
40,
6,
11,
-33,
-33,
23,
-34,
-41,
21,
-16,
24,
8,
3,
-53,
20,
-5,
-10,
19,
48,
10,
-59,
-10,
18,
16,
33,
-34,
-43,
15,
35,
5,
-34,
-43,
0,
3,
-27,
14,
42,
-68,
-4,
4,
-13,
-48,
-1,
-39,
-3,
51,
22,
45,
-2,
33,
-14,
-19,
-12,
-12,
13,
-7,
11,
4,
-36,
0,
-33,
55,
43,
-12,
-56,
-42,
-7,
4,
-14,
-28,
54,
-12,
8,
-2,
-36,
15,
-3,
10,
3,
-17,
-31,
2,
-11,
20,
4,
40,
8,
32,
1,
10,
-17,
36,
27,
40,
-33,
-3,
13,
-43,
32,
80,
-12,
-19,
22,
1,
-25,
-8,
11,
4,
31,
29,
-12,
-29,
-15,
-4,
-30,
29,
8,
-26,
-3,
-49,
-86,
-16,
11,
56,
19,
16,
14,
1,
-1,
-25,
16,
16,
-39,
-21,
6,
37,
-38,
3,
-13,
45,
-18,
-35,
15,
2,
1,
4,
-17,
39,
-59,
0,
-24,
-3,
-29,
-15,
30,
38
] |
Sharpe, J.
This is a suit to set aside a deed executed by plaintiff, Pearl D. Kelley, to Lillian Fletcher on the 29th day of May, 1931.
The title of this property was originally in Edgar S. Miller, who in 1924 executed a deed to Charles B. Kelley, deceased husband of plaintiff. Plaintiff obtained title to the premises through an assignment of the residue of the estate of her deceased husband. Sometime prior to November 6, 1930, Lillian Fletcher commenced a suit against Jacob Morlock, Jr., and Katherine Morlock to quiet title to certain premises. The case eventually was appealed to the Supreme Court and decided June 2, 1930. Following the filing of the decree in the Morlock Case, Francis L. Williams, the attorney for defendants in the case at bar, who was the attorney for Lillian Fletcher, plaintiff in the Morlock Case wrote a letter to plaintiff, the following of which is a copy:
“April 15, 1931
“Mrs. Pearl Kelley,
“Whittaker, Michigan
“Dear Mrs. Kelley:
“Mrs. Lillian Fletcher, whose title in the Chippewa Lake property formerly owned by Edgar S. Miller has been confirmed by the Supreme Court, has requested me to notify you that she desires you to remove from this property and have you execute a quitclaim deed to her. The description which was deeded to you is as follows:
“Com. at intersection of high water mark of Chippewa Lake & the one-eighth line running east and west through S % of sec. 21, Chippewa township, thence E. 232 feet and 6 inches, along said one-eighth line, thence due N 250 feet, thence due W to high water mark of said' lake, thence along said high water mark to place of beginning, in the county of Mecosta and State of Michigan.
“If you care to make a quitclaim deed of this we will send you the same and $1 to have the matter disposed of amicably.
“Thanking you for your prompt attention, I am
“Very truly yours,
“Francis L. Williams.”
Shortly thereafter Lillian Fletcher also wrote plaintiff a letter a copy of which reads:
“May 25, 1931.
“Dear Mrs. Kelley:
“My attorney informs me that he has sent you the quitclaim deed for the property on Chippewa lake heretofore owned by Edgar S. Miller, hie has requested that I authorize him to proceed in court to recover this property and before authorizing that action to be taken, I thought I would write to you and see if you were not willing to turn over this property without any further trouble as the matter has already been litigated in court.
“Very truly
“Mrs. Lillian Fletcher.”
In 1941, Mentó Everitt Gordinier, plaintiff’s niece, consulted the records in the office of the register of deeds in Mecosta county and discovered that the Supreme Court decision in the Morlock Case excepted the premises involved in this case. Mentó Everitt Gordinier consulted two or three attorneys and endeavored to effect an amicable settlement, but failing to get a return of the property brought the instant suit as attorney in fact of plaintiff.
The cause came on for trial and in an opinion the trial court stated:
“It conclusively appears that the first paragraph of Mr. Williams’ letter to the'plaintiff was false, and misleading, because the title to the land which had been deeded to Mr. Kelley was not litigated in the Supreme Court decision referred to in that letter. # # #
‘ ‘ The facts remain, however, under the undisputed record, both that this letter and that of Mrs. Fletcher, dated May 25, 1931, before quoted, were relied upon by plaintiff. There is also a failure of proof that there was any consideration paid by Lil lían Fletcher to the plaintiff for the deed assailed in these proceedings. * * *
“It cannot be said that the delay has not changed the status of the defendants, because Mrs. Fletcher has been dead since 1942. No one knows what changes might be made in the record or the findings of facts to be made if she were alive to testify. It is hard to conceive of a more radical change in the status of the parties than that occasioned through the death of one of them. # *
‘ ‘ The delay in bringing this suit for rescission for approximately three years after discovery of the fraud with the intervening death of Mrs. Fletcher is fatal to an action for rescission.”
A decree was entered dismissing plaintiff’s bill of complaint. Plaintiff appeals and urges that she was not guilty of laches, under the circumstances in this case, in waiting from the summer of 1941 until June, 1944, before commencing suit; and that there was no material change in the status of the parties involved in this case.
It appears that from the summer of 1941 until the commencement of suit Mentó Everitt G-ordinier, plaintiff’s niece and the person who had charge of plaintiff’s business affairs in Michigan, did not live in Michigan except for short periods during the summer when she lived in her cottage at Chippewa Lake; that subsequent to Auigust, 1941, she consulted attorneys in Chicago and in Stanton, Michigan, in an endeavor to recover the property for plaintiff. It also appears that plaintiff has lived in California for a period of about six years prior to the trial of the instant suit. She testified:
“I have never had any other conversation with Mrs. Fletcher. I never have had any conversation with Mr. Francis L. Williams in regard to this property, and my dealings with them with regard to this property was limited to those two letters. I did not have any independent information as to whether or not the statements made in this letter from Mrs. Fletcher and the letter from Mr. Williams, which have been introduced here as exhibits, with regard to the recovery of this property by Mrs. Fletcher were correct. I relied upon the statements made in those two letters at the time that I made the quitclaim deed to this property, which I wouldn’t have made the deed if I had known that they had not recovered. I would not have made the quitclaim deed to Mrs. Fletcher if I had not relied on representations in those two letters. I supposed the Court had included that in her recovery. The suit that I referred to in my testimony brought by Mrs. Fletcher against Mrs. Morlock, the former wife of Edgar S. Miller, I supposed was for the recovery of the.property belonging to Mrs. Morlock and also to me. I was never notified regarding the suit or anything ,and I was not a party to that suit, but it was my belief that the property was included and my belief in that regard was confirmed in my mind by the two letters which have been introduced in connection with this deposition.”
The record sustains the' trial court’s conclusion that Mr. Williams’ letter was false and misleading and that the letters of Mrs. Fletcher and Mr. Williams were relied upon by plaintiff and were material factors in inducing her to transfer the property to Mrs. Fletcher.
The only remaining question may be stated, Was plaintiff guilty of laches in delaying the filing of her bill of complaint from 1941 to 1944? The answer to this question may be found in an analysis of previous opinions of this court. In Chamski v. Wayne County Board of Auditors, 288 Mich. 238, 252, we said: “Laches is an affirmative defense” and “mere lapse of time, without a showing of prejudice, will not constitute laches. Cudahy Brothers Co. v. West Michigan Dock & Market Corp., 285 Mich. 18.”
In Smith v. Sprague, 244 Mich. 577, we said:
“But it is urged that plaintiff has been guilty of laches. There was a lapse of several years between the furnishing of the money and the commencement of this suit. Lapse of time alone is not generally sufficient to sustain the defense of laches. Walker v. Schultz, 175 Mich. 280. The evidence of lapse of time should be considered With other facts and circumstances of the case in determining the question. Laches will not be permitted to defeat subrogation where it would be inequitable to deny it. Heth v. Oxendale, 238 Mich. 236. The record is convincing that plaintiff furnished the money in the circumstances testified to by her. It is equitable that she be paid. ” •
In Walker v. Schultz, 175 Mich. 280, this court quoted with approval the following rule from Sanborn v. Eads, 38 Minn. 211 (36 N. W. 338):
“The mere lapse of time does not constitute' laches, unless the circumstances were such as to make the delay blamable. Whether the delay has been culpable or not may obviously depend upon many facts and considerations, such as the length of time (which cannot be fixed by any definite rule, this being a subject of discretion under the circumstances of each case), the knowledge of the facts, actual or imputable, the consequences as respects others than the plaintiff, and perhaps other things.”
In Grix v. Liquor Control Commission, 304 Mich. 269, plaintiff filed a claim before the court of claims, for salary approximately two years after he had béen illegally discharged by the commission. After his discharge he protested his dismissal to the civil service commission. W’e there said:
“In the case at bar defendants rely upon two facts to show laches: namely, that suit was not brought until nearly two years after plaintiff was discharged and that in the meantime another person was hired and paid for the work that was formerly done by plaintiff. In onr opinion the reasons stated do not bring the facts of this case within the exception mentioned in the Chamski Case, supra (288 Mich. 238).
“Nor do we think the facts show that plaintiff abandoned his claim. Immediately following his discharge, plaintiff protested his dismissal to the civil service commission.”
In Seymour v. Detroit Copper & Brass Rolling Mills, 56 Mich. 117, it appears that plaintiff was hired by defendant company at a salary of $3,000 per year, was to be made superintendent of defendant’s plant, was to be elected a member of the board of directors and was to purchase $5,000 to $10,000 of company stock. Plaintiff made the stock purchase, but was never made superintendent or elected to the board of directors. Plaintiff came to Detroit and entered the services of the company July 1,1881, and remained until July 10, 1882. Plaintiff paid $1,000 on the, stock purchase. He brought an action to surrender his stock, he demanded his note given as payment for the stock and the $1,000 paid thereon. We there said (p. 122):
“It is claimed by defendant’s counsel that upon the testimony of Mr. G-illett the plaintiff waived Ms election as director of the company, but tMs was of no account, as we shall presently see. The undisputed testimony shows no laches on the part of plaintiff. It appears from the correspondence of the parties that the claim made by the plaintiff was more or less under consideration for adjustment by the defendant most of the time before suit and before formal rescission was made.- I think it was made within a reasonable time.”
During the period of approximately three years before suit was commenced, plaintiff endeavored to secure a deed from Mrs. Fletcher by avoiding the expense and trouble of a law suit. When all of the circumstances are taken into consideration we do not think such delay was fatal to a suit for rescission. It is urged that the death of Lillian Fletcher, two years prior to the commencement of the present suit, constitutes such a change in the status of ihe parties that plaintiff should be adjudged guilty of laches. Defendant relies upon Evans v. Linck, 280 Mich. 278, where we said:
“He invokes the familiar principle that one who waits until the death of a witness has prevented denial of his claim or disclosure of the truth is guilty of laches and may not maintain a suit in chancery.”
We note that in the Evans Case, supra, the principles of law relied upon by defendant availed him nothing and did not prevent a suit in chancery.
In the case at bar it is undisputed that the two letters hereinbefore referred to were an inducement to plaintiff to deed the property to defendant. We note that efforts were made by plaintiff during the lifetime of Lillian Fletcher to secure an amicable settlement of the controversy. The death of Lillian Fletcher prior to the trial of the suit, under the circumstances of this suit, was not such a change in the status of the parties as would prevent granting to plaintiff the relief she is entitled to.
The decree of the trial court is reversed and a decree will be entered herein in harmony with this opinion. Plaintiff may recover costs.
Butzel, C. J., and Carr, Bushnell, Boyles, Reid, North, and Starr, JJ., concurred.
Fletcher v. Morlock, 251 Mich. 96.—Reporter. | [
-42,
44,
-6,
-48,
-1,
-18,
-2,
34,
1,
-28,
-26,
-19,
5,
3,
-16,
38,
5,
24,
16,
-2,
20,
-21,
-38,
-35,
14,
26,
5,
-47,
-8,
-8,
-25,
42,
-46,
47,
15,
-44,
-5,
-1,
-70,
-32,
-48,
-9,
9,
1,
23,
-16,
-14,
-2,
28,
-27,
-24,
11,
32,
-10,
-39,
11,
-20,
-11,
-4,
16,
-24,
-12,
-31,
41,
8,
37,
31,
33,
34,
-66,
16,
-32,
6,
33,
18,
10,
-13,
-8,
-14,
1,
-31,
36,
0,
-14,
-71,
-68,
-28,
21,
28,
24,
-63,
22,
-32,
44,
64,
-6,
9,
-14,
-24,
19,
-11,
21,
46,
46,
29,
-45,
-21,
-17,
-49,
36,
-44,
-4,
28,
6,
40,
-8,
10,
2,
82,
15,
10,
-26,
-27,
16,
44,
19,
-75,
13,
61,
46,
14,
-30,
23,
-42,
0,
26,
-12,
-15,
-7,
-33,
42,
37,
-3,
9,
-14,
8,
7,
-15,
18,
-7,
-45,
3,
49,
35,
33,
10,
48,
0,
34,
-9,
31,
-21,
25,
-13,
-72,
-38,
41,
-12,
-17,
23,
56,
-15,
-17,
39,
4,
20,
13,
14,
8,
25,
8,
9,
-4,
-32,
-31,
-37,
81,
-28,
-33,
68,
47,
-43,
19,
9,
-17,
76,
-36,
-1,
-40,
44,
57,
-60,
-10,
-23,
1,
-35,
36,
34,
-3,
3,
-44,
6,
1,
-12,
0,
29,
33,
-16,
29,
-30,
55,
40,
42,
29,
-62,
-32,
-7,
-18,
54,
1,
18,
-27,
22,
11,
-73,
47,
-13,
44,
-8,
-37,
-26,
-25,
9,
20,
-29,
-38,
18,
7,
-62,
55,
-37,
-55,
-3,
13,
70,
33,
28,
5,
7,
6,
-30,
-7,
8,
-6,
25,
-24,
32,
-30,
2,
13,
12,
5,
58,
12,
-67,
-46,
-35,
-37,
39,
-24,
55,
-24,
-41,
40,
3,
-3,
-14,
11,
-25,
-7,
-34,
38,
4,
-21,
-9,
44,
-3,
-74,
8,
-5,
-7,
3,
2,
-12,
-14,
0,
-34,
20,
-2,
-10,
-48,
0,
-25,
1,
-12,
1,
0,
26,
-3,
6,
8,
51,
-27,
42,
-33,
33,
24,
-27,
-18,
52,
-11,
0,
-20,
30,
7,
24,
39,
-7,
-34,
-3,
12,
52,
13,
22,
-14,
12,
8,
36,
13,
-46,
-12,
-6,
0,
24,
-48,
-17,
6,
14,
10,
31,
-4,
-6,
4,
26,
40,
-53,
-18,
-12,
35,
2,
7,
83,
3,
16,
27,
-6,
9,
-20,
-8,
24,
-36,
-2,
31,
42,
44,
-7,
-13,
-8,
-29,
4,
-40,
-18,
23,
-7,
-5,
-29,
42,
0,
-42,
-51,
38,
23,
25,
39,
-49,
8,
4,
0,
2,
21,
25,
-17,
33,
-28,
16,
-50,
5,
10,
-5,
35,
-73,
29,
-32,
-70,
-11,
5,
4,
-25,
-8,
-28,
-3,
85,
22,
-21,
51,
42,
-77,
48,
-22,
20,
51,
7,
53,
-8,
-31,
-32,
-7,
22,
17,
-53,
25,
39,
4,
12,
23,
-12,
18,
-3,
-1,
-35,
-21,
-23,
19,
-49,
-70,
-20,
-17,
-24,
36,
25,
-22,
36,
-15,
-63,
-13,
3,
59,
26,
-20,
-31,
19,
-49,
19,
-17,
2,
1,
11,
-46,
50,
-16,
61,
-91,
-2,
24,
9,
-37,
-23,
10,
5,
12,
21,
0,
16,
-18,
-10,
6,
-44,
6,
9,
27,
7,
-80,
19,
7,
-12,
43,
77,
-16,
50,
-24,
22,
13,
12,
-17,
-6,
-11,
19,
-22,
0,
-4,
1,
0,
-54,
-13,
-18,
-12,
13,
-10,
8,
4,
-14,
-17,
44,
6,
-49,
-22,
-9,
-46,
23,
-1,
-40,
-23,
-25,
11,
-13,
-2,
15,
-45,
-9,
11,
-10,
-36,
-14,
-38,
-23,
-35,
-2,
-61,
-49,
18,
-53,
22,
30,
-74,
-4,
29,
9,
-41,
-30,
18,
2,
-19,
-18,
-9,
-19,
16,
-4,
8,
-45,
32,
-6,
-55,
-36,
-11,
9,
10,
49,
70,
5,
-40,
-14,
42,
5,
-40,
-26,
-18,
-15,
21,
24,
-8,
0,
-14,
8,
13,
-4,
33,
35,
-63,
11,
2,
49,
27,
17,
-21,
-28,
19,
47,
20,
-53,
-7,
-48,
6,
15,
13,
20,
-19,
-15,
31,
-6,
-4,
-69,
5,
-25,
16,
-5,
23,
-6,
-58,
-7,
-57,
-17,
0,
39,
-14,
20,
1,
29,
9,
45,
7,
2,
2,
5,
-9,
0,
3,
41,
7,
54,
-22,
32,
15,
-16,
-1,
-48,
-6,
15,
41,
23,
58,
22,
9,
28,
12,
35,
18,
21,
24,
-12,
3,
-5,
43,
7,
3,
-26,
10,
0,
29,
78,
-9,
42,
17,
17,
6,
-39,
0,
-21,
-15,
-61,
9,
-29,
29,
21,
-37,
-35,
72,
-5,
12,
4,
4,
1,
-51,
-17,
-19,
30,
0,
-35,
-22,
-17,
1,
61,
8,
15,
-44,
33,
-4,
-40,
40,
-55,
-25,
22,
-36,
-71,
21,
-26,
-11,
39,
5,
-3,
-25,
-36,
41,
54,
74,
18,
-42,
15,
-14,
-31,
-12,
-6,
48,
-29,
7,
-11,
-36,
-1,
-67,
-16,
-25,
3,
50,
-16,
-17,
-18,
-54,
-2,
-5,
13,
-10,
-18,
-10,
-11,
-78,
20,
-41,
43,
0,
11,
15,
-14,
-1,
-39,
-4,
-25,
-5,
54,
1,
-14,
-24,
10,
41,
17,
14,
-27,
-15,
-64,
14,
-21,
51,
-16,
-24,
4,
-18,
-26,
-18,
-33,
92,
2,
8,
-18,
0,
8,
-6,
35,
0,
6,
9,
-97,
-4,
34,
30,
49,
31,
14,
-31,
43,
-1,
-6,
-37,
-62,
-34,
-12,
-27,
-26,
11,
42,
-6,
2,
6,
-10,
-2,
14,
33,
-54,
26,
-34,
-19,
-33,
-7,
10,
-34,
-36,
-67,
41,
4,
23,
-53,
-22,
23,
27,
-70,
-57,
53,
0,
33,
-30,
-42,
24,
20,
-23,
-12,
10,
-26,
-80,
18,
26,
-41,
28,
33,
-52,
22,
45,
1,
-23,
8,
-9,
-53,
-38,
-5,
13,
-12,
-23,
10,
-36,
-6,
32,
26,
62,
-2,
10,
-3,
-44,
-26,
-49,
-25,
-38,
-27,
3,
33,
0,
-38,
-11,
-27,
-29,
42,
40,
25,
8,
21,
-6,
0,
-37,
-54,
28,
-37,
49,
1,
-16,
-6,
39,
49,
-10,
65,
-23,
44,
77,
-46,
35,
16,
55,
-46,
32,
43,
-35,
-1,
17,
0,
-16,
-22,
-20,
28,
-25,
-18,
37,
-25,
2,
17,
19,
-18,
-14,
0,
22,
-29,
19,
6,
37,
28,
-12,
-33,
16,
-11,
-1,
32,
14,
0,
-1,
-31,
-23,
-24,
1,
9,
-27,
-20,
32,
-13,
7,
6,
-77,
12,
31,
19,
12,
48,
36,
15,
17,
46,
-3,
22,
-55,
-3,
29,
12,
-30,
7,
16,
37,
21,
-6,
38,
-20,
-8,
12
] |
Steere, J.
The writ of error herein brings before the court for review proceedings had in the circuit court of Shiawassee county in contesting the validity of the will of Bridget Quinn, who died in the city of Owosso November 28, 1911, at the age of 84 years, leaving an instrument as her last will and testament, executed November 16, 1911. Said instrument was duly probated in the probate court for Shiawassee county, and contestant Margaret Saul, a sister of deceased, appealed to the circuit court, where trial by jury was had resulting in verdict and judgment sustaining her contention and adjudicating said instrument invalid. The validity of said instrument was contested on the grounds that, at the time of its execution, deceased was “mentally incompetent to make the will, and was unduly influenced and coerced to sign (if she did so sign) said alleged will.”
The amount of deceased’s estate is not definitely disclosed, but sufficient appears in'the record to indicate it was of considerable proportions and adequate to develop a bitter and exhausting contest over it amongst her numerous surviving relatives. By the terms of the instrument in controversy, which contained 14 bequests and devises, she gave an adopted son named W. W. Quinn, of Battle Creek, certain real estate in Owosso; to two nieces, Mrs. McCartney and Mrs. Cunningham, certain real estate in Owosso, with a proviso that the latter, upon payment to her of $1,000, should deed her interest therein to the former, and to the same parties also other described real estate with her household effects; to a young woman, Esther Lyke, who had lived with her many years, $200; to two of her nephews, and her four brothers and sisters, including said contestant Margaret Saul, $5 each; $30 for five low masses for certain named relatives; and the balance of her estate in trust to Frank McCartney, husband of a niece, to be used for the benefit of the Catholic schools of Owosso. She had made two previous wills of similar import, but designating different executors; the second will having been executed May 20, 1911, about six months prior to the one in question.
The scrivener, á reputable attorney of Owosso, who drafted those wills and also the one in question, testified that he had no knowledge of what property she owned, or of the relatives whom she made objects of her charity, other than that shown by the wills; that he received suggestions for their contents only from her, and the occasion of the last one was her desire to make some changes relative to disposition of the residue of her estate and the amount given to certain beneficiaries, one of which was a reduction of the bequest to Margaret Saul, the contestant. Said attorney, who was later one of the attorneys for proponents, and deceased’s family physician were the subscribing witnesses, and both testified that, at the time of the execution of her will on November 16, 1911, her mental condition was good; that in their opinion she was capable of understanding the provisions of the will, knew what property she possessed and who were the objects of her bounty. Various relatives and other witnesses also testified that she was then possessed of all her faculties, of good understanding, bright, and mentally sound.
To the contrary it was claimed, and testimony was produced tending to show, that she was then hopelessly of weak and unsound mind, childish, forgetful, possessed of hallucinations, incoherent in her talk, and often during that summer and fall lapsed into a comatose condition from which it was difficult to arouse her, and that she was mentally incapable of understanding or executing the instrument in question, or any other matter of importance and was hopelessly stricken with arterio sclerosis, which an expert, of 18 years’ general practice of medicine, defines as a hardening of the arteries, usually expected to be found in people above 60 years of age, progressive in its nature, and by reason of which, in his opinion, the average person of 70 years of age would be partially incompetent to make a will, and would require some assistance “to get it clear, concise, and make it legal” (although a less degree of mental capacity is requisite for the execution of a will than for making a contract) . Upon this paramount issue of deceased’s mental capacity when the instrument in question was executed, as well as that of undue influence exerted over her by certain relatives, a volume of testimony of wide scope was introduced, professional and nonprofessional, covering her life habits and history, ranging through her likes and dislikes, pursuits, associations, quarrels, language, appearance, and state of health, as well as her mental and physical condition at or about the time of executing the contested will. For the present disposition of this case it is not deemed essential to consider this voluminous testimony at length upon all the many questions raised by the numerous alleged errors assigned by appellants.
When trial of this case was entered upon, after the jury was selected and sworn, the court, in the presence of counsel, very properly took pains to instruct the jury in a preliminary way as to their duties and deportment during the progress of the trial, cautioning them to avoid any conduct which might possibly give rise to suspicion of outside influence, saying, amongst other things:
“This is a case of interest to both parties, and both parties have a right to a fair and impartial verdict at your hands, and so, in order to accomplish that, I desire you to be careful and not talk with any one, witnesses or attorneys, who have anything to do with this case,” etc.
Under this very proper rule of conduct, so clearly stated, and in view of the rather unusual and delicate situation which presented itself in the particular that three of the attorneys in the case were also important witnesses, one for proponents and two for contestant, testifying positively and at length in favor of their respective clients upon the controlling issue of deceased’s mental competency, we are impressed that the following circumstance of familiar intercourse in violation of the mandate of the court should not be lightly disregarded. It was shown that a juror who sat in the case was, during the progress of the trial, entertained at the home of one of the witnesses and attorney of record for the successful litigant, inadvertently and innocently it is claimed, and may be conceded, but nevertheless an undisputed fact. This was learned by appellant’s counsel after the trial was concluded and presented to the court by affidavits, as one of the grounds of a motion for a new trial. Counter affidavits were filed, not denying the essential facts as above stated, but in explanation and extenuation of them. This case was tried in November, and, ■ while it was in progress, Thanksgiving day intervened. On that day the attorney and his wife entertained'at their home and served refréshments to the members of the Maple River Farmers’ Club. The juror in question, not a member of .that club but of a kindred organization, was present on that occasion and partook of the hospitalities. It is stated in the counter showing that he was there by reason of an invitation extended to him and his wife, before com-r mencement of the trial in question, in connection with other members of the kindred club to which the juror belonged, the invitation not having been participated in or known to the attorney; that the trial was not mentioned or in the minds of either of the parties, and no special attention or favors were shown the juror beyond the usual courtesies of hospitality extended to all present; that the attorney, though his firm was of record as attorneys in the case for contestant, had no interest in the result, had withdrawn from participation in the trial, owing to his being a witness, and had when on the witness stand so stated; that the whole transaction complained of was a mere innocent incident of ordinary hospitality which had its inception before it was known the guest might be a juror in the case, devoid of suspicious circumstances, was not designed to, could not, and did not, exert the slightest influence on the juror, who was a reputable farmer of strict integrity, nor bias him in performing his duties as a juror. It is also shown, and urged' by appellants as directly prejudicial, that on the occasion of this social function, in a general discussion of the welfare of the Maple River Club, the attorney emphasized his kindly disposition towards such organizations by stating that, if the club felt too poor to pay the State dues of 20 cents per family, he would pay them while he lived, and arrange in his will for them to be paid as long as the club existed, and, in response to an expression by the juror or “wonder” if he would make such a promise to his club, made some facetious reply indicating a friendly inclination, hampered by the results of a recent campaign. It is urged that “no man, be he ever so honest, could feel otherwise than touched by the munificent offer” to pay the dues for those who were or felt too poor to pay them and to perpetuate such payments by will after the donor had joined the silent majority, followed by expressions of regret that his limit of financial resources only prevented extending the aid to other kindred organizations.
It was the opinion of the trial court that sufficient facts were not shown to demand granting a new trial, referring to the high character and integrity of the parties involved, and the fact that, after the selection of a jury, the attorney withdrew and took no further part in the trial of the case except as a witness.
Conceding that the juror knew or believed that the attorney had retired as such from the case and was not interested in the result, he yet knew that the attorney was a witness and that the court had emphatically instructed the jurors not to even “converse with any one connected with the trial of the case,” saying, “That means the witnesses, the parties, and the attorneys.”
It is undisputed that the juror violated the plain and positive instructions of the court, thus giving occasion for the imputations which he was cautioned to avoid, and affording special opportunity for the exercise over him of improper influences, was either party so disposed. The gracious hospitality and pleasant entertainment extended on that occasion to the juror and other guests, by the host and hostess in their own home, with congenial conversation on a subject in which the juror was interested, disclosing on the part of the host a generosity and good will towards organizations with which the juror was affiliated, would naturally give rise to an especially kindly and fraternal feeling between them. Just to what extent the attorney was connected with the case is not the controlling question. He was an important witness. The record shows that he was present at the beginning of the trial, sat by and consulted with attorneys for contestant until half an hour after the jury was selected, and while on the witness stand testified on cross-examination that his firm was employed by contestant. The juror whom he helped select, and whom he entertained as an invited guest at his home during the progress of the trial, unknown to opposing counsel, participated in a verdict in this case supported by his testimony and favorable to his firm. On this question it is not necessary that it be shown a bad motive or intent existed in the conduct of counsel or juror, or that the impropriety complained of did in fact exert an influence resulting unfavorably to the party defeated.
As was said in Solomon v. Loud, 173 Mich. 233 (140 N. W. 651):
“The effect of the misconduct upon the determination of the particular case is not apparent. But when misconduct, calculated, if not intended, to have a generally pernicious effect upon legal proceedings, is traceable to the prevailing party in such proceedings, we are of opinion that reason appears for treating the trial as a mistrial and for setting aside the judgment.”
In 2 Thompson on Trials, § 2564, it is said:
“Where a juror has been treated, fed, or entertained by the successful party, or his counsel, or at the expense of either, a new trial will, in nearly all cases, be granted. This rule is, by most courts, deemed indispensably necessary to preserve the. integrity of juries. It being, as already stated, a rule of public policy, it will be enforced without reference to the question whether or not the verdict was right.”
This general rule is further sustained and elaborated by apt language in People v. Montague, 71 Mich. 447 (39 N. W. 585) ; Churchill v. Alpena Circuit Judge, 56 Mich. 536 (23 N. W. 211) ; People v. Hull, 86 Mich. 449 (49 N. W. 288) ; Cooper v. Carr, 161 Mich. 405 (126 N. W. 468) ; State v. Hartmann, 46 Wis. 248 (50 N. W. 193); Knight v. Inhabitants of Freeport, 13 Mass. 218; Commonwealth v. Roby, 12 Pick. (Mass.) 496.
We are impelled to conclude that the conduct complained of, though perhaps inadvertent, is of such a nature as to require the application of that rule.
Another assignment of error calling for serious consideration is the refusal of the court to permit answers to certain questions asked in cross-examination of one of contestant’s attorneys, who was also an important witness to facts bearing on deceased’s mental competency. He testified to having visited deceased’s home on three different occasions during the month the will in controversy is claimed to have been executed, at which times he saw but was unable to converse with her owing to her condition; that on the first occasion she was lying on a couch with her eyes closed, and Margaret McCartney, who was apparently in charge of the household, was unable to arouse her, although she took hold of and shook her, without any apparent effect; that on the two subsequent visits her physical and mental condition were apparently the same; that witness observed her lower jaw somewhat dropped, muscles of her face apparently relaxed, her complexion of extreme pallor, “and with every appearance of a person knowing nothing of her surroundings.” Objection was sustained to the following questions asked by appellants’ counsel:
“Q. At that time [referring to the second visit] you went there for the purpose, did you not, of making a demand for retraction of an alleged slander by Mrs. Quinn, and for the purpose of securing from her a money settlement?
“Q. Did you not go to the house of Bridget Quinn after this occasion that you talked with Dr. Willson, on business matters, in relation to a suit you proposed to start against Mrs. Quinn?”
The witness should have been permitted to answer these questions. The fact that witness visited her to negotiate in regard to an important business matter relating to a proposed lawsuit, and contemplated settlement involving a substantial sum of money, and having on the first visit ascertained her condition, as testified to, returned a second and third time on the same mission, was clearly competent as bearing on the weight of his testimony touching her mental condition.
The competency and bearing of this inquiry is more clearly disclosed, we think, in connection with a later ruling, refusing counsel permission to show by Margaret McCartney more fully what was said and done on the occasion of such visits. Counsel for proponents, after an adverse ruling, being permitted to state privately the purpose of the proposed testimony, said:
“We expect to show by this witness that Mr. Pardee, representing the McNamaras, called there and told the witness that he represented the McNamaras in a proposed slander suit, and that Mrs. Saul was their witness in that respect to prove the fact; that upon all of the visits he made there it was for the same purpose, and the facts communicated by Mr. Pardee to Mrs. McCartney were communicated by her to Mrs. Quinn, and it had the effect of showing her that Mrs. Saul was taking steps adverse to Mrs. Quinn desiring to collect the sum of $500 in said slander action, and therefore was made the basis for the change in the will which was subsequently made.”
We think, under the circumstances disclosed, full latitude should have been given to the proposed line of cross-examination of the attorney, and that, as bearing upon deceased’s mental attitude and reason for changing her will, the offered testimony of Mrs. McCartney was competent.
For the reasons stated, the judgment must be reversed, and a new trial granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
-19,
28,
5,
-6,
-11,
51,
59,
52,
9,
30,
-8,
-27,
36,
16,
4,
17,
-27,
-25,
-19,
-38,
34,
-34,
-39,
-35,
-17,
-26,
12,
-37,
-17,
-33,
27,
-43,
-18,
3,
-24,
-22,
64,
13,
-40,
-24,
-11,
-28,
-9,
53,
-20,
-24,
-8,
-58,
13,
35,
-38,
-45,
-1,
-2,
-40,
27,
42,
-7,
-28,
-21,
1,
-54,
42,
14,
-54,
27,
21,
3,
-26,
-31,
31,
17,
-14,
-25,
-68,
-16,
10,
14,
-54,
43,
-19,
-21,
-9,
39,
14,
-30,
-21,
-6,
21,
-19,
-8,
-7,
-59,
12,
-3,
2,
3,
-26,
14,
-23,
-13,
16,
-2,
32,
-16,
19,
-24,
3,
-26,
-29,
2,
-19,
40,
23,
-9,
-17,
3,
8,
-1,
-18,
-33,
21,
-8,
-41,
45,
-4,
12,
-2,
19,
12,
34,
38,
9,
11,
-9,
19,
-30,
-24,
-47,
-54,
68,
3,
-3,
-26,
-62,
-39,
-9,
-11,
-20,
0,
-34,
-14,
13,
50,
12,
17,
12,
12,
40,
45,
-13,
45,
14,
-37,
-43,
-70,
28,
8,
52,
24,
-11,
17,
-57,
-58,
15,
87,
13,
-46,
-28,
-9,
0,
74,
-6,
18,
-20,
-39,
38,
-44,
-13,
36,
-25,
6,
32,
-11,
-11,
12,
12,
-15,
-16,
-15,
15,
-28,
25,
-22,
2,
-28,
9,
-58,
-20,
17,
-4,
0,
-43,
29,
-23,
0,
6,
-30,
-3,
38,
-13,
43,
41,
27,
-42,
-47,
41,
6,
-68,
3,
5,
-9,
1,
-14,
1,
-15,
0,
-11,
-10,
-7,
-30,
18,
20,
65,
-33,
-20,
-40,
-20,
-12,
48,
-8,
38,
2,
31,
37,
33,
-8,
31,
-66,
4,
36,
4,
-78,
6,
-1,
-4,
45,
-10,
23,
-48,
29,
12,
0,
50,
60,
36,
32,
-27,
8,
-71,
37,
0,
-39,
-6,
24,
13,
-68,
-28,
-7,
10,
0,
44,
8,
-4,
25,
9,
10,
-14,
-22,
-17,
-5,
-26,
20,
7,
6,
31,
13,
-34,
3,
8,
-5,
32,
-60,
7,
40,
26,
-39,
-43,
-5,
7,
-6,
11,
1,
-20,
-45,
40,
-7,
-7,
26,
40,
30,
23,
2,
-48,
39,
1,
65,
3,
-51,
-33,
24,
-14,
8,
0,
-32,
-28,
13,
18,
-14,
-22,
-24,
44,
-26,
23,
-15,
-24,
54,
23,
-21,
72,
-15,
7,
14,
40,
1,
-1,
-7,
16,
7,
6,
12,
-7,
28,
-31,
19,
24,
19,
5,
10,
51,
-32,
0,
41,
30,
-7,
-57,
30,
-19,
-5,
8,
-24,
5,
-43,
-51,
-14,
-6,
-24,
-1,
-49,
-41,
-22,
61,
-1,
-39,
-66,
60,
-103,
-20,
8,
-18,
8,
-31,
86,
-9,
29,
-14,
12,
-3,
30,
3,
-35,
14,
41,
-11,
-21,
-18,
2,
-26,
32,
11,
-10,
65,
62,
18,
33,
0,
1,
35,
-19,
24,
46,
32,
3,
-9,
-26,
-19,
13,
-54,
-13,
-16,
57,
33,
-10,
0,
-1,
-48,
45,
17,
-10,
1,
-10,
-28,
44,
16,
6,
38,
-17,
25,
9,
-12,
-20,
20,
16,
-18,
15,
6,
28,
-40,
22,
-29,
11,
21,
17,
-38,
25,
2,
1,
-19,
-43,
-72,
23,
13,
0,
24,
10,
-55,
-11,
-2,
-8,
4,
-44,
45,
15,
-62,
17,
-42,
19,
-34,
-22,
4,
7,
0,
57,
24,
-38,
4,
81,
-3,
-21,
-2,
0,
-37,
-21,
9,
-28,
15,
0,
7,
-11,
-27,
-30,
39,
15,
-4,
-42,
-47,
-39,
-36,
-20,
-15,
-17,
39,
57,
68,
-7,
34,
-9,
4,
-3,
29,
-24,
-40,
-18,
-35,
-42,
3,
20,
-42,
18,
-18,
32,
11,
-25,
-30,
43,
-39,
47,
5,
9,
-7,
21,
-19,
63,
-36,
-3,
15,
29,
-13,
5,
-18,
-21,
27,
0,
-17,
66,
19,
-1,
9,
-27,
38,
9,
10,
-23,
0,
-4,
-35,
8,
-4,
36,
-9,
-5,
-20,
-15,
42,
-16,
12,
-26,
-1,
31,
24,
31,
-2,
-3,
2,
-8,
39,
41,
-41,
-22,
-21,
53,
65,
38,
-16,
-7,
-58,
10,
-12,
7,
-40,
10,
11,
10,
39,
-41,
22,
-72,
43,
-10,
-24,
-3,
-23,
-21,
-58,
-2,
-30,
0,
-64,
-8,
9,
-2,
-15,
-8,
-28,
-10,
-32,
27,
5,
-20,
-3,
9,
34,
-10,
29,
-44,
40,
61,
-5,
5,
34,
13,
-3,
28,
-44,
-11,
0,
17,
33,
17,
-3,
28,
25,
25,
17,
27,
-41,
-26,
8,
-12,
-3,
-24,
-21,
-7,
13,
-22,
12,
25,
41,
25,
-10,
1,
7,
49,
75,
-38,
-27,
52,
-1,
-3,
9,
-16,
15,
25,
7,
10,
-10,
52,
7,
9,
-23,
-8,
-20,
-14,
-6,
-9,
1,
20,
12,
22,
6,
-4,
10,
-5,
39,
41,
10,
0,
-8,
-42,
34,
-33,
-28,
-32,
-21,
-44,
20,
30,
-1,
-5,
-24,
-2,
22,
42,
-27,
5,
-14,
21,
62,
18,
-30,
0,
21,
37,
-14,
-13,
57,
34,
29,
-6,
34,
21,
-13,
-7,
-3,
-48,
49,
-20,
-30,
-9,
-28,
0,
-27,
-49,
-32,
50,
-33,
0,
-19,
-11,
12,
-47,
-32,
-30,
38,
-21,
-20,
-3,
-1,
-32,
-22,
-5,
-7,
9,
24,
-17,
19,
-46,
-29,
-64,
29,
-31,
21,
5,
-40,
-28,
-37,
11,
-5,
-41,
-28,
7,
-10,
22,
83,
-20,
7,
-21,
5,
-34,
-9,
-17,
34,
18,
-21,
6,
-12,
24,
27,
0,
9,
20,
-25,
-36,
19,
-12,
25,
3,
10,
-24,
0,
-8,
-14,
29,
16,
-49,
-15,
-44,
-19,
6,
12,
4,
-15,
-10,
-52,
-28,
21,
67,
-50,
41,
-10,
-58,
-44,
-75,
23,
-2,
24,
29,
-42,
1,
8,
52,
12,
-43,
24,
-27,
-2,
29,
-3,
17,
7,
30,
17,
57,
-59,
-40,
25,
8,
-84,
-22,
1,
-13,
-5,
3,
-31,
-4,
-97,
0,
1,
15,
22,
21,
-29,
5,
-32,
6,
-1,
-19,
-11,
-43,
-24,
8,
2,
11,
29,
-9,
49,
5,
-8,
-42,
58,
-34,
14,
-40,
-26,
-12,
-14,
4,
-11,
14,
38,
15,
9,
-3,
-2,
20,
11,
2,
29,
0,
27,
-3,
-25,
-9,
75,
-26,
27,
-7,
12,
-36,
32,
14,
36,
21,
-2,
71,
-5,
-43,
14,
5,
44,
-31,
-40,
-1,
-50,
-33,
-23,
75,
18,
-20,
-36,
-10,
30,
-22,
30,
34,
-25,
-14,
-50,
-43,
24,
0,
-23,
35,
0,
14,
23,
-21,
3,
-63,
6,
9,
-9,
24,
30,
2,
-38,
25,
14,
-36,
16,
-18,
-6,
31,
58,
0,
45,
-19,
-42,
11,
33,
17,
8,
28,
26
] |
McAlvay, C. J.
Complainant filed its bill of complaint in the circuit court for the county of Montcalm, in chancery, against defendants, to foreclose a certaih mortgage for the sum of $1,500, dated March 10,1905, executed by defendants Egbert G. and Mary E. Stevens, upon certain property in the city of Greenville belonging to them and occupied as a homestead. This was the usual long-form mortgage, and contained the following express condition:
“Provided always, and these presents are upon the express condition, that if the said party of the first part shall and do well and truly pay, or cause to be paid, to the said party of the second part any and all sums of money that may at any time be due to the party of the second part, its successors and assigns, from either the party of the first part, or the firm of G. W. Stevens and Son, whether such obligation now exists or is hereafter created, whether the same consists of notes, endorsements, guaranties or overdraft, according to the terms and tenor of such obligations, as therein expressed, with interest as therein provided. But when the obligation of said E. G. Stevens and George Stevens & Son is reduced to thirty five hundred dollars and does not exceed that amount, this mortgage shall be deemed satisfied and shall be discharged.”
The bill of complaint avers that the firm of G. W. Stevens & Son, at the time such mortgage was executed, were indebted to complainant in the sum of $5,000, upon notes, indorsements, guaranties, and overdrafts, and that this indebtedness was increased from time to time, and finally, on May 24, 1912, when said firm became insolvent and were adjudged bankrupts, amounted to $7,000; that many of their obligations and interest thereon, together with taxes on land mortgaged, are past due and unpaid. The bill prays for a determination of the amount due and for a sale of the premises. Defendant James Gracey is their trustee in bankruptcy. Defendants Egbert G. and Mary E. Stevens answered this bill of complaint, admitting the execution and delivery of the mortgage as alleged, but averring that after the execution of said mortgage during the year 1908, the indebtedness
of Egbert G. and G. W. Stevens & Son to the complainant was reduced to less than $3,500, and thereby the mortgage by its own terms was fully satisfied and discharged; that if such indebtedness had never been so reduced, the mortgage could not be enforced as security for any sum of such indebtedness, except for the excess over $3,500. These defendants prayed in their answer, which was in the nature of a cross-bill, that the mortgage be declared fully paid and discharged, and that in case of a decree favorable to defendants, the mortgage be declared to be security only for amounts, if any, of indebtedness in excess of $3,500. A hearing was had before the court on the issue joined between complainant and defendants Egbert G. and Mary E. Stevens, which resulted in a decree in favor of complainant and against defendants, for the sum of $1,500 and interest from the date of such decree at the rate of 6 per cent, per annum. From this decree these defendants have appealed to this court.
The record shows that the firm of G. W. Stevens & Son, was composed of George W. Stevens and defendant Egbert G. Stevens, engaged in the hardware business at Greenville, Mich., and were the parties whose indebtedness was secured by the mortgage in question, and at the time it was given they were indebted to complainant upon notes, to the amount of several thousand dollars, which was represented by their several promissory notes, and by their indorsements and guaranties upon notes of their customers taken by them upon sales of hardware and discounted for them at complainant bank. At about the time of giving this mortgage defendant Egbert G. Stevens, as further security, assigned to complainant a life insurance policy, then estimated to have a surrender value of $500. It appears that G. W. Stevens & Son, after these securities were given, continued to do business with the bank in the same manner as before, and from that time up to April 20, 1908, their indebtedness to complainant, although fluctuating in amount from time to time, gradually increased until it amounted to the sum of $4,500, and at about this time a representative of the bank interviewed both members of the firm relative to further securities, and as a result, on April 20,1908, George W. Stevens, the senior member of the firm, to further secure the firm indebtedness, executed and delivered to complainant a mortgage of $2,000 on his individual real estate, and also assigned to complainant a certificate of telephone stock of $500. On the same date, and as part of the same transaction, complainant and the firm of G. W. Stevens & Son made and entered into the following written agreement relative to this indebtedness to complainant, which on the part of the said firm was signed by Egbert G. Stevens:
“Articles of agreement made and entered into by and between the Commercial State Savings Bank, a banking corporation organized and existing under the laws of this State and having its place of business at the city of Greenville, county of Montcalm, and State of Michigan, party of the first part, and George W. Stevens and Egbert G. Stevens, copartners doing business under the firm name and style of G. W. Stevens & Son, of 'said city of Greenville, Michigan, parties of the second part, witnesseth as follows:
“Whereas said parties of the second part are indebted unto said party of the first part in the sum of two thousand (2,000.00) dollars or thereabouts upon their several promissory notes and the payment of which is already secured by mortgage and which is hereinafter referred to as the original individual indebtedness of said second parties and are also indebted to said first party as indorsers or guarantor of payment or collection in the sum of two thousand and five hundred ($2,500.00) dollars upon certain promissory notes or contracts of purchase taken by said second parties of third persons and sold and transferred by said second parties to said first party and which still remain unpaid and which are hereinafter referred to as commercial or collateral indebtedness and whereas said second parties have this day secured to the satisfaction of said first party the eventual payment and satisfaction of said commercial or collateral indebtedness, now therefore in consideration thereof said first party hath agreed and doth hereby agree to and with said second party as follows
“First: That said first party shall from time to time as the same or any part thereof shall fall due extend or renew the said original or individual indebtedness of said second parties or such part thereof as they may desire for such term or terms as they may desire and not exceeding the period of three months.
“Second: That said first party shall from time to time as the same or any part thereof shall fall due extend or renew the several notes or obligations constituting the said commercial or collateral indebtedness for such term or terms as said second parties may desire and not exceeding the period of three months.
“Third: That said first party shall from time to time as said second parties may desire make loans necessary in the conduct of their business but not exceeding the sum of three hundred dollars in the aggregate and not for term to exceed ninety days at any one time.
“It is hereby understood and agreed by and between parties hereunto aforesaid that the said first party shall give said second party three months’ notice whenever they see fit to have any or all of said second parties’ obligation paid.
“Witness our hands the 20th day of April, A. D. 1908.
“Commercial State Savings Bank,
“By Charles M. Miller, Second Vice President. “Geo. W. Stevens & Son,
“By E. G. Stevens.”
Defendants and appellants contend that by the condition of the mortgage, already quoted, complainant acquired security only for so much of Egbert G. Stevens’ and G. W. Stevens & Son’s indebtedness to it in excess of the amount of $3,500 to the extent of $1,500 above such sum. A careful reading of this condition does not indicate to us that complainant was accepting security for anything less than the amount of $1,500 expressed in the mortgage. It is an express agreement on the part of the mortgagors to pay to complainant any and all sums of indebtedness, of the character described, that might be due to it at any time from defendant Stevens or his firm during the life of the mortgage. The last sentence of the condition which defendants rely upon to sustain their construction reads:
“But when the obligation of said E. G. Stevens and Geo. Stevens & Son is reduced to thirty-five hundred dollars and does not exceed that amount, this mortgage shall be deemed satisfied and shall be discharged.”
It is clear that the intention of the parties as here expressed was that when these obligations were reduced to the amount named, the mortgage would be fully satisfied and should be discharged, but we do not find the expression of any intent that the operation of this mortgage as a security for the $1,500 was in any respect to be affected until that time.
The principal contention of defendants is that the record shows twice during the year 1908 the indebtedness of E. G. Stevens and George Stevens & Son to complainant, being the indebtedness mentioned and described in this mortgage, the payment of which was secured by it, was reduced to the sum of $3,500. The determination of the correctness of this contention requires a careful examination of all of the evidence in the record bearing upon this proposition. Upon the hearing of this cause neither these defendants nor George W. Stevens, the senior member of the firm, were sworn as witnesses. The only testimony introduced by them in the case was that of the son of defendants Stevens, who testified that the property covered by the mortgage in suit was the homestead of said defendants. Defendants, therefore, rely entirely upon the testimony on the part of complainant to support their contention above stated. The only witness in the case who gave any testimony relative to the con tention that in 1908 this indebtedness was reduced below $3,500 was Mr. Miller, the vice president of complainant bank. He testified that the bank did not keep a liability register; that from the discount register he had found that in December, 1908, upon notes and discounts their liability was just a few dollars under $3,500, but that this computation was upon the face of the notes, and did not include interest on notes that had not matured, and did not take into account any overdraft; that he could not tell the exact overdraft at that time; that the books would not show it for the reason that part of it was very frequently kept as a cash item, and there usually was an overdraft. This is all the direct testimony in the case upon the subject.
Reliance appears to be placed by defendants upon the opening statement- of counsel for complainant to the court as admissions that the amount of loans and discounts upon which defendants were liable during these transactions had,- in 1908, fallen below the sum of $3,500. This statement was not unequivocal, but in terms was given “so far as can be gathered today from the discount register,” and with the positive statement that it did not include overdrafts. It was not intended, and cannot be construed, as contended by defendants, as an admission that the amount of this indebtedness was reduced to $3,500. As bearing upon this question we find from the record that these personal notes of different dates and amounts were renewed from time to time, and consequently did not all become due at one time; also that during these transactions the notes and contracts turned over to complainant by these parties with their indorsements were small notes and numerous; that they arose from sales of hardware to customers in the course of trade; that from time to time,they were paid; that sometimes they were renewed, and during all the time new notes were continually being indorsed and put into the bank and credited to G. W. Stevens & Son. It appears, also, that all of these were interest-bearing obligations. The record further shows that at no time before the commencement of suit was any claim made by these defendants that this mortgage was satisfied, and should be discharged.
The contract made between complainant and G. W. Stevens & Son April 20, 1908, which already appears in this record, and under which the parties acted from that date until the failure of the firm, is an admission in writing that this indebtedness at the time amounted to $4,500, and in terms recognizes the mortgage in question as in full force and effect. It appears in evidence that Mrs. Stevens, who was employed in the store of G. W. Stevens & Son much of the time during these transactions with complainant, and frequently did its banking, knew of and recognized that this mortgage was in force in October, 1911; that during that month she personally brought and delivered to complainant an insurance policy dated October 11, 1908, placed by defendant Egbert G. Stevens on these premises pursuant to the terms of the mortgage. Our conclusion from all of the evidence in the case is that it appears that the amount of the indebtedness secured by this mortgage was not at any time reduced to the sum of $3,500.
It appears from the record that beside the mortgage in suit of $1,500 and the life insurance policy of $500, complainant in 1908 required further security, and received a mortgage from G. W. Stevens of $2,000, and his telephone stock of $500, making all these securities $4,500. After the bill was filed, and up to December 20, 1912, there had been collected by complainant upon these securities, and upon some of the collateral notes, $1,452.72. Upon that date, which was but three days before the hearing, the entire amount of the balance due complainant upon personal and collateral indebtedness was the sum of $4,122.41. The trial court held that the mortgage in suit remained in force as a security for the full amount of $1,500, and granted complainant a decree for that amount, with interest at 6 per cent, per annum after the decree, together with costs to be taxed. A decree in the usual form, providing for a sale of said premises in case of default in payment of that amount, was duly entered. We agree with the learned trial judge in his construction of the condition of the mortgage, and also upon his findings upon the evidence.
It will not be necessary to discuss other questions presented.
The decree of the circuit court is affirmed, with costs.
. Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
-9,
18,
18,
61,
31,
-12,
57,
-7,
7,
-4,
-25,
-44,
-11,
-2,
-21,
-4,
21,
-66,
10,
6,
-17,
-21,
-34,
10,
-3,
25,
54,
-16,
14,
24,
8,
-23,
-48,
55,
10,
-14,
15,
-43,
11,
-8,
-23,
-22,
-9,
12,
-18,
38,
-22,
-6,
21,
6,
-21,
-49,
22,
-17,
-45,
-1,
-7,
32,
-78,
-20,
-3,
3,
0,
-44,
-11,
-5,
-15,
-2,
46,
-27,
35,
-1,
8,
-5,
33,
-5,
-45,
-33,
-15,
-23,
-49,
-33,
35,
-16,
-66,
-4,
-20,
-41,
-26,
70,
-40,
68,
0,
12,
2,
-15,
30,
48,
3,
21,
-31,
-19,
-15,
0,
21,
32,
-11,
-38,
-47,
63,
-39,
-28,
56,
-45,
10,
12,
-3,
7,
-26,
4,
-31,
65,
-26,
-77,
-68,
7,
-7,
0,
-51,
5,
-1,
-27,
-106,
-12,
2,
-11,
11,
15,
-9,
-2,
63,
-21,
-38,
-70,
-59,
8,
-4,
-31,
14,
-8,
0,
31,
-11,
8,
25,
-42,
-3,
-12,
14,
-48,
21,
-13,
22,
-98,
-30,
5,
-19,
25,
-19,
0,
35,
49,
-30,
27,
32,
-14,
41,
-55,
26,
21,
8,
-13,
33,
-7,
40,
20,
-13,
2,
-28,
-25,
2,
-11,
-3,
-10,
-36,
-21,
60,
-48,
-3,
0,
-29,
7,
-5,
-49,
-26,
-43,
3,
-17,
-7,
-21,
-1,
-10,
-70,
22,
-31,
20,
3,
-28,
2,
8,
-2,
60,
-11,
20,
-25,
-60,
53,
-17,
-10,
-14,
8,
-22,
-3,
1,
0,
27,
26,
5,
-23,
1,
-68,
59,
4,
-52,
-52,
62,
-53,
-17,
-4,
15,
3,
27,
-13,
35,
0,
18,
-3,
-4,
-18,
8,
9,
-22,
-37,
-20,
15,
-24,
8,
-8,
31,
-13,
72,
-19,
29,
77,
-10,
2,
-52,
33,
-42,
21,
46,
-13,
-44,
13,
4,
-21,
12,
19,
-26,
-5,
-20,
-5,
35,
13,
29,
26,
-18,
-2,
-5,
-31,
-74,
-10,
8,
-24,
-25,
12,
-38,
0,
15,
-13,
22,
-5,
-5,
-49,
44,
-36,
-5,
40,
-8,
10,
49,
-10,
-6,
-6,
40,
26,
60,
-41,
20,
46,
4,
-91,
6,
-33,
-1,
21,
54,
19,
31,
-6,
53,
12,
-43,
12,
2,
11,
-23,
9,
-33,
22,
-42,
8,
15,
61,
18,
-39,
5,
44,
-36,
0,
41,
1,
-10,
7,
-1,
27,
-36,
-24,
-22,
25,
22,
-25,
-32,
-5,
-22,
58,
-71,
9,
-19,
40,
49,
-37,
-32,
35,
25,
3,
-25,
18,
-66,
-25,
-41,
28,
3,
-35,
1,
-60,
-11,
-30,
-47,
12,
-5,
33,
-39,
9,
-32,
19,
-12,
-42,
14,
-17,
-8,
-13,
11,
17,
-10,
23,
-15,
-15,
31,
10,
-7,
20,
25,
-7,
-31,
-9,
29,
14,
-14,
-35,
-2,
-13,
2,
2,
41,
34,
-24,
25,
14,
16,
31,
-15,
48,
17,
78,
18,
13,
-32,
21,
-19,
4,
-34,
18,
-2,
21,
4,
9,
-12,
35,
0,
72,
-16,
0,
57,
32,
18,
-25,
-8,
27,
-11,
-20,
0,
-15,
3,
-75,
-10,
37,
-8,
-10,
11,
-35,
12,
9,
15,
-23,
-27,
-104,
-45,
12,
-24,
19,
-43,
42,
34,
-9,
-14,
6,
-46,
-27,
-12,
-22,
0,
-3,
42,
22,
-37,
-74,
40,
31,
68,
-30,
-36,
31,
-11,
-53,
35,
20,
-12,
8,
32,
40,
-18,
-76,
25,
-49,
-10,
16,
70,
8,
14,
-18,
21,
-35,
21,
-34,
49,
5,
59,
28,
-5,
0,
51,
8,
42,
-15,
30,
-18,
20,
-3,
57,
2,
-13,
63,
39,
-18,
49,
-16,
-4,
28,
17,
4,
-10,
-6,
-30,
29,
-1,
42,
10,
-29,
-20,
-23,
18,
61,
14,
-32,
-26,
-67,
-17,
17,
-1,
4,
-55,
20,
-40,
10,
35,
19,
30,
-12,
50,
34,
-13,
-1,
-18,
10,
-20,
36,
5,
24,
-22,
-59,
-24,
9,
-8,
2,
-6,
-47,
52,
-34,
8,
20,
30,
27,
28,
-12,
-43,
25,
-60,
-12,
-29,
39,
37,
4,
10,
-62,
20,
34,
12,
13,
66,
-5,
-3,
-1,
-18,
-30,
45,
-58,
-8,
-4,
6,
-84,
26,
-49,
0,
-17,
23,
-9,
2,
20,
2,
-9,
28,
27,
80,
2,
-43,
51,
-13,
24,
-25,
57,
-32,
38,
65,
22,
-12,
36,
56,
8,
64,
2,
-23,
18,
8,
-18,
20,
-19,
50,
57,
-37,
25,
-42,
30,
3,
-7,
-17,
19,
-14,
-8,
12,
13,
-77,
13,
-39,
0,
23,
31,
24,
-44,
14,
24,
13,
-1,
-9,
-15,
13,
-13,
-31,
5,
-16,
-11,
15,
31,
-30,
54,
31,
36,
4,
9,
-13,
16,
-4,
21,
-54,
-8,
-10,
12,
-81,
-40,
62,
-2,
23,
-19,
11,
-37,
39,
-17,
-13,
-38,
-20,
-22,
-38,
-12,
23,
21,
-29,
-43,
30,
-44,
-21,
25,
-8,
-39,
-23,
-2,
-9,
-45,
4,
24,
-7,
-26,
26,
59,
-3,
-16,
15,
-21,
-13,
-27,
0,
-9,
36,
0,
-32,
3,
-15,
2,
-49,
10,
-10,
34,
-31,
37,
0,
23,
-29,
42,
17,
53,
-5,
23,
-2,
7,
-26,
-50,
5,
-12,
-23,
-50,
-37,
-42,
21,
-61,
-13,
21,
0,
-14,
49,
-20,
49,
-63,
-37,
-32,
-41,
-28,
31,
4,
10,
-48,
8,
-27,
39,
32,
-13,
7,
28,
12,
42,
-44,
-19,
15,
-31,
9,
35,
51,
-36,
7,
13,
11,
-19,
-22,
-26,
1,
13,
-15,
14,
11,
38,
7,
-19,
7,
13,
-5,
0,
-18,
-80,
-37,
-5,
-15,
-28,
32,
21,
-26,
-40,
-9,
21,
25,
4,
23,
-8,
-9,
17,
-54,
-1,
30,
-14,
43,
-49,
-12,
30,
-10,
-19,
-44,
47,
-4,
26,
22,
-10,
-2,
24,
-28,
29,
-10,
-8,
-3,
3,
30,
-34,
23,
7,
-20,
-20,
-26,
-33,
-13,
-15,
-6,
10,
-10,
25,
21,
41,
-36,
-18,
-74,
29,
23,
16,
-28,
16,
4,
-19,
-16,
24,
26,
-38,
52,
2,
-27,
40,
55,
59,
32,
58,
-20,
-60,
5,
-5,
-2,
-11,
63,
-31,
60,
-3,
-27,
15,
49,
-20,
7,
44,
-29,
-19,
50,
12,
55,
34,
-53,
-38,
-42,
-15,
-52,
-26,
14,
-56,
35,
7,
27,
-15,
-40,
-1,
16,
26,
-29,
-13,
-22,
21,
17,
-5,
56,
-10,
35,
-11,
12,
65,
-34,
-16,
-5,
-19,
16,
-16,
73,
20,
70,
16,
-3,
-35,
17,
-35,
-51,
26,
45,
-21,
17,
-39,
18,
-35,
24,
3,
35,
-18,
-29,
40,
41,
-2,
-40,
-15,
16,
8,
27,
-25,
37,
1,
0,
57
] |
Kuhn, J.
This case is brought here by certiorari to the industrial accident board. Adelbert Rayner, the applicant’s husband, was injured while in respondent’s factory in the city of Grand Rapids. About 100 carvers and cabinet workers were employed on the third floor of the factory, and, on the blowing of the noon whistle, each workman was required to proceed to the end of the room and punch the time clock before leaving for dinner. Mr. Rayner, who was working on this floor, about 150 feet from the time clock, on November 5, 1912, when the whistle blew at noon, started on a run from his bench to the clock to punch it. After proceeding about 30 feet, he collided with Martin De Vos, a fellow employee, whom he could not see because of drawers which were piled up on the floor. This resulted in Rayner fracturing or injuring one or more of his ribs. The injury to his side and ribs affected the pleura of his lungs, and from the inflammation or irritation which followed • the lungs became affected, resulting in Mr. Rayner’s death.
There had been no general notice printed or posted of a rule against running to the time clock, but, about a year previous to the accident, Rayner had been told by his foreman, Hicks, not to run to the clock. There was testimony that the rule against running had not been enforced, and no employee had been discharged because of doing so. An award to claimant, who was left as his dependent, was made by a committee on arbitration, and upon review was affirmed by the industrial accident board.
It is the contention of the respondent and appellant that the facts indicate that the accident and the resulting injury arose out of an act independent of the employment, in direct violation of a rule of the company, and solely for his own pleasure or convenience. With reference to the rule, the commission made a finding that such a rule had not been enforced, and its general violation had been acquiesced in by the' employer. There being evidence to support this finding of fact, by the terms of the act (part 3, § 12. Act No. 10, Public Acts, Extra Session 1912) it becomes conclusive, and as a result eliminates the consideration of the question as to whether the injury arose by reason of the intentional and willful misconduct of Rayner. Rumboll v. Colliery Co., 80 L. T. 42, 1 W. C. C. 28.
At the time of the accident, Rayner was in the performance of a duty imposed upon him by his employer. When the noon whistle blew, it was obligatory upon him, before leaving the place of his employment, to punch the time clock. The performance of this duty, if not the proximate cause, was a concurring cause of his injury. In Fitzgerald v. Clarke & Son (1908), 99 L. T. 101, 1 B. W. C. C. 197, Buckley, L. J., stated the rule as follows:
"The words ‘out of and in the course of the employment’ are used conjunctively, not disjunctively; and upon ordinary principles of construction are not to be read as meaning ‘out of,’ that is to say, ‘in the course of.’ The former words must mean something different from the latter words. The workman must satisfy both the one and the other. The words ‘out of’ point, I think, to the origin or cause of the accident; the words ‘in the course of’ to the time, place, and circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words ‘out of’ involves, I think, the idea that the accident is in some sense due to the employment.”
We are well satisfied that the accident was an industrial accident within the meaning of the compen sation act, and arose “out of and in the course of his employment.” Whitehead v. Reader, 2 K. B. 48 (1901).
The judgment and decision of the industrial accident board is affirmed, with costs against appellant.
Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred with Kuhn, J.
McAlvay, C. J. I do not think that this was an industrial accident within the statute.
2 How. Stat. [2d Ed.] § 3939 et seq. | [
4,
-30,
-8,
-31,
25,
19,
-10,
-28,
-9,
42,
-73,
6,
47,
-21,
25,
-17,
40,
-22,
-38,
36,
60,
-32,
-16,
-29,
-28,
-29,
-27,
-37,
-42,
103,
-4,
-29,
15,
-20,
-8,
25,
-1,
-26,
17,
19,
-26,
-40,
33,
-83,
66,
8,
13,
41,
44,
-1,
34,
46,
-12,
10,
27,
2,
27,
38,
-8,
38,
-3,
-55,
38,
-38,
60,
17,
44,
19,
-30,
-1,
-4,
-11,
20,
-4,
-15,
22,
18,
78,
-64,
4,
-28,
0,
3,
-31,
-19,
25,
-30,
52,
-11,
-30,
20,
-16,
3,
24,
-25,
-3,
-29,
1,
-42,
-19,
8,
-4,
-18,
-17,
-39,
16,
0,
26,
10,
38,
24,
22,
-32,
43,
20,
-41,
69,
-7,
21,
62,
80,
-19,
50,
11,
-10,
42,
-11,
-26,
-8,
27,
-29,
-3,
-24,
-34,
25,
15,
20,
-11,
-5,
5,
-34,
20,
-21,
18,
-35,
-21,
-9,
84,
18,
-69,
-16,
24,
28,
-38,
-27,
1,
-11,
-5,
11,
30,
-3,
-32,
27,
47,
-32,
-8,
-3,
-32,
-36,
-28,
-3,
20,
43,
-37,
62,
26,
40,
-32,
-45,
58,
16,
-40,
6,
28,
-5,
-11,
-27,
-7,
-6,
-18,
8,
-35,
-12,
26,
8,
-36,
26,
24,
54,
-20,
58,
2,
-7,
9,
-15,
44,
16,
33,
-11,
20,
-21,
19,
-48,
7,
-39,
9,
-42,
-74,
4,
-49,
-69,
-6,
30,
9,
5,
-81,
-13,
-36,
64,
-9,
-15,
-28,
62,
-24,
28,
-11,
37,
-44,
96,
8,
-8,
-24,
0,
38,
-22,
-17,
24,
-41,
31,
11,
0,
-1,
33,
-13,
-11,
39,
-35,
-2,
5,
-16,
24,
32,
12,
13,
45,
-11,
-11,
30,
-14,
-10,
-7,
-5,
53,
-17,
-59,
-49,
31,
-8,
44,
-36,
-18,
23,
-40,
28,
-91,
37,
-33,
-33,
-82,
-53,
50,
-21,
-5,
-19,
40,
0,
52,
12,
-25,
-26,
12,
13,
4,
-42,
9,
24,
-76,
6,
-10,
-22,
-21,
-30,
-13,
63,
22,
-24,
20,
18,
35,
-2,
-53,
-33,
-3,
-21,
-98,
-44,
10,
20,
14,
-7,
12,
45,
4,
60,
7,
-46,
29,
49,
51,
0,
-65,
74,
23,
11,
-70,
46,
-6,
1,
1,
-65,
39,
-37,
47,
-24,
0,
22,
27,
-6,
-21,
56,
28,
-39,
-7,
40,
-51,
-24,
-20,
-30,
8,
26,
20,
-27,
13,
-37,
-13,
21,
18,
42,
4,
45,
44,
0,
12,
-102,
-7,
8,
11,
-11,
-33,
-9,
-60,
-27,
-3,
-2,
-22,
15,
-5,
-5,
29,
7,
11,
-16,
-44,
-18,
18,
-6,
-18,
-45,
-5,
-5,
-5,
25,
9,
-34,
19,
-98,
-3,
13,
37,
-57,
44,
-38,
69,
-27,
4,
-39,
-17,
26,
-40,
-10,
11,
-32,
-46,
-35,
-22,
-45,
-14,
5,
-6,
-19,
-74,
-30,
15,
2,
17,
12,
-27,
27,
76,
-68,
27,
3,
-18,
29,
12,
-10,
-30,
18,
15,
54,
-71,
8,
23,
41,
-13,
17,
-5,
-37,
42,
1,
-18,
-85,
1,
31,
0,
-37,
11,
20,
12,
-11,
-7,
25,
-22,
-29,
-45,
-17,
-26,
-32,
30,
30,
29,
13,
-3,
-24,
-27,
38,
-57,
43,
1,
50,
-92,
-35,
8,
-20,
48,
-13,
60,
-25,
39,
-11,
-62,
-1,
0,
44,
37,
11,
-61,
15,
-5,
9,
-3,
-18,
-53,
37,
-15,
-16,
-31,
-31,
-30,
-26,
61,
-2,
17,
16,
26,
-3,
-23,
-15,
-98,
-34,
10,
25,
35,
58,
15,
-6,
8,
-4,
33,
11,
22,
26,
-3,
-51,
24,
3,
25,
50,
5,
30,
0,
17,
8,
20,
-4,
-12,
-14,
29,
27,
-22,
5,
54,
18,
-29,
-23,
14,
7,
31,
-3,
-49,
26,
-13,
47,
24,
-28,
-32,
32,
-24,
32,
-5,
-17,
-12,
-5,
50,
-9,
-19,
14,
40,
65,
-10,
-13,
-31,
-52,
-23,
9,
23,
-14,
-15,
69,
-16,
-4,
1,
-56,
-18,
-46,
2,
-7,
-12,
82,
1,
-43,
-18,
-38,
1,
-10,
18,
15,
12,
-19,
-30,
-70,
31,
-13,
-21,
-12,
11,
26,
15,
-54,
5,
3,
-24,
47,
-1,
-30,
-24,
6,
24,
3,
29,
50,
-9,
-26,
-1,
-45,
-17,
34,
10,
-62,
-34,
-17,
17,
8,
-8,
-2,
12,
-6,
-35,
-8,
-20,
18,
57,
26,
-12,
0,
8,
-14,
-24,
-7,
18,
-5,
-44,
53,
-18,
0,
11,
54,
5,
1,
-63,
-20,
43,
8,
-2,
15,
71,
56,
-22,
28,
4,
-22,
21,
-16,
53,
17,
-21,
0,
-49,
49,
-36,
-21,
-46,
27,
-17,
59,
4,
-15,
-24,
-11,
-26,
15,
-40,
14,
22,
-9,
29,
6,
19,
21,
7,
-8,
-50,
-69,
-27,
48,
-3,
15,
14,
-70,
20,
18,
13,
2,
9,
-15,
-19,
9,
-8,
47,
37,
-9,
88,
-1,
-53,
48,
-15,
-21,
2,
-36,
-13,
32,
-7,
17,
-4,
-1,
-12,
-45,
-45,
23,
-43,
61,
28,
-8,
-1,
0,
15,
-77,
-60,
16,
5,
68,
-44,
17,
-13,
-53,
-24,
-19,
0,
14,
-1,
-38,
13,
-5,
-45,
-12,
19,
-40,
-45,
5,
1,
-2,
-15,
-24,
45,
22,
-33,
51,
5,
22,
-17,
9,
16,
-18,
25,
13,
70,
53,
52,
-27,
45,
-38,
34,
10,
-34,
2,
-2,
-10,
-41,
59,
10,
27,
-5,
6,
25,
16,
-39,
0,
5,
-27,
-13,
7,
12,
16,
23,
4,
-37,
-11,
55,
-5,
43,
-20,
24,
-36,
-3,
37,
6,
0,
-67,
-1,
52,
34,
-36,
-84,
35,
-17,
14,
-91,
24,
-9,
-29,
6,
-28,
21,
-23,
-102,
-16,
-51,
-53,
21,
26,
-25,
-72,
34,
-7,
18,
22,
-23,
-4,
-8,
13,
-8,
43,
6,
58,
18,
0,
35,
-18,
22,
3,
9,
36,
37,
18,
-28,
41,
-47,
-46,
-27,
30,
2,
6,
-24,
-19,
1,
26,
-49,
32,
43,
0,
-17,
-1,
27,
-12,
-23,
33,
8,
-54,
-36,
48,
-8,
-32,
72,
-6,
64,
-18,
2,
-55,
18,
-4,
-6,
27,
-75,
38,
-24,
-18,
14,
-24,
6,
85,
-4,
60,
26,
-2,
-14,
-8,
14,
-31,
-28,
-7,
19,
-17,
44,
43,
17,
-13,
18,
-43,
-12,
-50,
-4,
-17,
-31,
22,
20,
28,
-34,
29,
11,
25,
26,
-10,
46,
10,
-11,
-17,
-4,
-42,
21,
6,
-46,
14,
17,
29,
10,
-39,
-60,
-13,
72,
4,
14,
-44,
-7,
22,
29,
30,
35,
-41,
-33,
11,
-34,
81,
-9,
13,
27,
11,
-43,
-18,
-11,
-58,
48,
53,
-58,
13
] |
Brooke, J.
(after stating the fact). Considering the history of legislation under the Constitution of 1850, it is apparent that there had grown up a pernicious practice on the part of the legislature in passing local acts. The practice was bad in two very important particulars. In the first place, much of the legislation thus enacted constituted a direct and unwarranted interference in purely local affairs and an invasion of the principles of local self-government. In the second place, such legislation affecting as it did certain limited localities in the State, the senators and representatives from unaffected districts were usually complaisant, and agreed to its enactment without the exercise of that intelligence and judgment which all legislation is entitled to receive from all the members of the legislature. This course led to many abuses (principally in amendments to city charters), some of which found their way into the courts, and were there redressed so far as the Constitution then in force would permit.
With these evils in mind, the Constitution of 1909 was formulated and adopted by the people. From a reading of the provisions above quoted and others of a similar character, it is, we think, entirely clear that it was the settled purpose of the framers of the new instrument and of the people who adopted it to forever insure to the people the right to control their affairs purely local, and to secure for all general legislation grave attention and the application of the collective wisdom of the legislators.
Assuming that we are correct in this premise, it is pertinent to inquire whether the object has been achieved. Based upon a classification by population, we find that the legislature of 1909 passed two acts purely local in application. In 1911 five such acts were passed, and in 1913 there were thirteen. Some of these may be justified under the new Constitution; but, regarding them as a whole, it is evident that, if classification by population is broadly sustained, local legislation may now be as freely enacted as before the adoption of the new Constitution, thus evading and avoiding the salutary check which that instrument sought to impose.
We take it to be conceded by counsel for respondent that the court of domestic relations is a new or “other” court within the meaning of article 7, § 1, of the Constitution, and that to be valid it must be established by “general law.”
We note, but disagree with the contention of one of respondent’s counsel (Mr. Gates), that there is nothing in section 1, art. 7, which, either expressly or by implication, prohibits the legislature from establishing “other courts of civil and criminal jurisdiction inferior to the Supreme Court by a local law.” The section in question authorizes the establishment of such courts by general law. If the contention is sound, the use of the word “general” was wholly superfluous. The language' is unambiguous, and by necessary implication prevents the establishment of such courts by local laws.
It is, however, contended that the act in question is valid as a general law. The act is limited in its operation by its title to “each county of this State which has a population of upwards of two hundred fifty thousand.” It is conceded that Wayne county is the only county having the requisite population. It is said that, if the normal increase in Kent county continues, that county will come under the operation of the act between 20 and 30 years hence. It is certain .that the law can never become operative in a vast majority of the counties of the'State. Personally, I am of the opinion that under the new Constitution all general legislation based upon classification of population, except such as is therein specifically authorized, is forbidden. Some of my associates, however, do not agree with me in this view. For the purposes of this case, therefore, I will assume that some general legislation based upon such classification may be valid. Under this assumption, is the act in question a valid general law?
Dillon, in his work on Municipal Corporations, vol. 1, § 151, says:
“But classification by population cannot be made arbitrarily and without reason. There must be some reason, in the nature of things, for the distinctions adopted. The size of the municipality as evidenced by its population must have a reasonable relation to the subject-matter of the legislation, and must furnish some fairly apparent reason for legislation differing from that applicable to other municipalities having a substantial difference in population.”
The cases where such classification has been sustained are collected in note 5 to the section. There are many cases where classification by population has been held invalid, among them the following: People v. Election Commissioners, 221 Ill. 9 (77 N. E. 321, 5 Am. & Eng. Ann. Cas. 562) ; State v. City of Des Moines, 96 Iowa, 521 (65 N, W. 818, 31 L. R. A. 186, 59 Am. St. Rep. 381); State v. Downs, 60 Kan. 788 (57 Pac. 962) ; St. Louis v. Dorr, 145 Mo. 466 (41 S. W. 1094, 46 S. W. 976, 42 L. R. A. 686, 68 Am. St. Rep. 575); Wanser v. Hoos, 60 N. J. Law, 482 (38 Atl. 449, 64 Am. St. Rep. 600) ; Bauer v. Williams, 118 Cal. 401 (50 Pac. 691).
In the Henneberger Case, 155 N. Y. 420 (50 N. E. 61, 42 L. R. A. 132), the court said:
“Although this act is drawn in general terms, if its provisions are such in number and character as unduly, with reference to the constitutional purpose, to restrict its operation, and, to all intents, to confine it to a particular locality, then, I think it comes as much under condemnation as though it designated the locality by name. While an act might be general, if it affected all towns of a class and that class was based on population, or some other condition, which might be recognized as possibly common to a class, or which might permit of classification, if it contain such added limitations as to restrict its operation to what must always be, in the nature of the case, a very limited number of specified localities, if not, in fact, one, then it is local within the constitutional sense.”
Later, in the case of People v. Dunn, 157 N. Y. 528 (52 N. E. 572, 43 L. R. A. 247), the same court sustained the statute authorizing a special jury in certain cases in each county of the State having a population of 500,000 or more. After distinguishing the case from the Henneberger Case, supra, the court said:
“There is nothing in this act to limit its general application in all cases where the population of the county has attained a certain size, and such a condition might reasonably be considered as possible generally.”
A consideration of all the eases cited, as well as many others, convinces us that a classification by population can never be sustained where it is, as in the case at bar, a manifest subterfuge. The act under consideration might with equal propriety have been limited in its operation by its title to the county of Wayne. Its “general” character is not established by the use of other words which mean the same thing. The clássification attempted cannot find excuse in necessity. Under the Constitution, additional circuit judges may be created as necessity requires. If changing social conditions require a broadening of their powers, that may be readily supplied through suitable legislation.
The domestic relations of the inhabitants of the counties of Wayne, Jackson, or Ogemaw are essentially the same. The same problems touching these relations are presented in every community, though with a frequency varying with the population. There is no reason, founded in logic, why the residents of Wayne county should be subjected to regulations in their domestic relations which are not applicable to residents in all other parts of the State.
The act is clearly unconstitutional, because it in terms (section 10) deprives the probate court of jurisdiction in certain cases of juvenile delinquents and dependents, which jurisdiction is expressly conferred upon the probate courts by section 13, art. 7, of the Constitution.
The act (section 4) is plainly in conflict with the last-named section, in that it deprives the circuit court of the county of Wayne, or at least the other judges thereof, of appellate jurisdiction in certain enumerated cases. This the legislature may not do. People, ex rel. Allen, v. Kent Circuit Judge, 37 Mich. 474; People, ex rel. Heath, v. Kent Circuit Judge, '37 Mich. 372. Circuit courts are constitutional courts, and the jurisdiction conferred by the Constitution cannot be diminished by legislative enactment. Nichols v. Judge of Superior Court, 130 Mich. 187 (89 N. W. 691), and cases cited.
The court of domestic relations is created by legislative enactment. A judge of that court cannot lawfully be clothed with a jurisdiction conferred by the Constitution upon a constitutional officer. State v. Hastings, 10 Wis. 525; Ex parte Corliss, 16 N. D. 470 (114 N. W. 962). See, also, People, ex rel. Allen, v. Kent Circuit Judge, supra; Allor v. Wayne County Auditors, 43 Mich. 76 (4 N. W. 492).
Inasmuch as respondent, under the authority of a legislative enactment, assumed to exercise a portion of the jurisdiction of the circuit court, which is a constitutional court, we are of opinion that such of his judicial acts as are within the jurisdiction of the circuit court should be considered as those of a de facto judge, not open to question upon jurisdictional grounds.
For the reasons assigned, we feel constrained to overrule respondent’s demurrer, and direct a judgment of ouster.
McAlvay, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., concurred in the result. | [
66,
33,
36,
4,
-22,
40,
34,
11,
8,
27,
2,
-12,
-24,
7,
28,
21,
1,
-1,
-22,
78,
7,
29,
-20,
-44,
-5,
18,
33,
-12,
-59,
-12,
28,
8,
-19,
58,
-41,
-29,
0,
24,
68,
-16,
22,
-5,
14,
-34,
-39,
77,
31,
-29,
-23,
0,
-57,
-20,
-43,
35,
33,
14,
12,
-25,
-29,
12,
-44,
-3,
-16,
-41,
-17,
-41,
8,
11,
22,
-89,
6,
-35,
-24,
-64,
34,
24,
0,
-9,
-67,
-1,
-30,
22,
-19,
-42,
-25,
-19,
-69,
5,
-40,
28,
30,
16,
0,
-1,
18,
1,
17,
-6,
38,
-29,
36,
-35,
7,
7,
-4,
-10,
-54,
-6,
47,
-5,
-52,
22,
-21,
-9,
22,
3,
2,
57,
-40,
6,
20,
34,
11,
31,
-44,
-1,
-47,
-7,
-20,
-8,
-30,
-14,
31,
-20,
24,
14,
-48,
-51,
43,
-55,
-35,
-7,
22,
-51,
0,
0,
6,
37,
-6,
-53,
22,
14,
13,
0,
-51,
-34,
-16,
-22,
45,
-6,
-17,
0,
43,
-38,
-23,
40,
-51,
-48,
-5,
43,
-13,
46,
-23,
20,
72,
4,
-33,
-15,
-40,
42,
-19,
6,
-42,
-16,
23,
-17,
-10,
-5,
21,
-58,
32,
39,
-30,
-35,
21,
-6,
34,
-18,
-11,
-58,
-24,
12,
-27,
-61,
1,
6,
-21,
56,
-36,
69,
-49,
-48,
-21,
44,
-18,
4,
2,
-47,
29,
27,
6,
17,
7,
8,
-46,
-34,
13,
27,
-3,
33,
35,
7,
2,
-23,
45,
48,
-56,
18,
11,
26,
-28,
62,
-5,
16,
13,
-4,
22,
5,
-11,
27,
38,
8,
70,
36,
7,
32,
23,
25,
-15,
-87,
64,
27,
11,
-81,
-13,
-18,
43,
28,
-15,
1,
-16,
9,
20,
-11,
-32,
4,
6,
-49,
0,
-8,
-9,
-3,
36,
13,
17,
-36,
-26,
18,
38,
-40,
4,
-27,
-17,
53,
37,
62,
38,
27,
21,
-22,
-4,
0,
-14,
11,
10,
-34,
-39,
-3,
-41,
-24,
-1,
33,
-83,
-9,
3,
-40,
15,
36,
-4,
2,
-11,
-30,
49,
-16,
-30,
-52,
63,
-36,
3,
-35,
22,
-18,
1,
-49,
33,
-44,
45,
-3,
-26,
-34,
34,
-35,
68,
-22,
15,
8,
-55,
-12,
6,
-16,
1,
54,
-12,
42,
-29,
-14,
-24,
-42,
-2,
-67,
6,
37,
10,
17,
-7,
8,
-29,
-42,
28,
9,
27,
-29,
15,
22,
15,
50,
40,
69,
-24,
3,
-39,
9,
17,
8,
37,
9,
12,
-6,
-35,
-46,
5,
30,
-76,
-4,
14,
-3,
16,
1,
-37,
0,
-36,
32,
-28,
-4,
-5,
-18,
-24,
16,
15,
26,
0,
-6,
62,
-18,
-7,
50,
11,
-40,
63,
-5,
15,
17,
4,
34,
-31,
-33,
-26,
22,
7,
53,
-11,
-46,
26,
8,
-27,
-40,
22,
2,
13,
-55,
-4,
1,
22,
50,
-34,
-37,
-19,
26,
-28,
6,
70,
45,
-37,
23,
-49,
8,
22,
-10,
12,
-21,
-24,
16,
10,
41,
-14,
-4,
-89,
-5,
38,
-10,
24,
-32,
-22,
-6,
-4,
28,
9,
69,
29,
-48,
12,
-25,
-6,
-18,
-43,
-20,
-8,
32,
17,
-29,
16,
45,
-20,
-5,
23,
18,
36,
-59,
-35,
41,
55,
76,
-18,
-68,
7,
7,
8,
44,
30,
56,
-13,
-31,
56,
70,
6,
-10,
25,
-16,
-71,
-9,
5,
-52,
-76,
-28,
-23,
-27,
11,
-2,
0,
-59,
-16,
-4,
-5,
37,
-6,
58,
-61,
3,
7,
-60,
-4,
-5,
59,
51,
45,
-42,
-6,
-31,
17,
-11,
-35,
-11,
-23,
-39,
6,
-14,
-59,
19,
-38,
60,
3,
-48,
22,
-16,
8,
38,
-7,
-11,
-13,
-33,
17,
-31,
0,
46,
-24,
-7,
47,
-10,
21,
-14,
10,
19,
-60,
-13,
42,
-29,
-48,
-2,
26,
-2,
-7,
19,
-35,
30,
0,
-12,
14,
-4,
11,
25,
-54,
-22,
13,
20,
-16,
49,
-21,
-17,
-19,
-34,
7,
-26,
25,
45,
11,
27,
-12,
5,
46,
-65,
-37,
8,
21,
-49,
23,
-46,
11,
44,
-23,
-16,
-18,
0,
-30,
-2,
-86,
-20,
18,
40,
54,
42,
-15,
-9,
-56,
-17,
6,
95,
-87,
95,
-15,
37,
-50,
8,
-19,
-39,
-4,
-9,
-5,
-6,
-11,
9,
57,
-3,
30,
31,
21,
30,
18,
-37,
-28,
-75,
20,
-40,
60,
-17,
11,
11,
-11,
-5,
14,
10,
4,
-15,
9,
8,
-27,
26,
11,
16,
-16,
4,
59,
-61,
60,
-2,
18,
-9,
-5,
-2,
28,
38,
16,
-12,
20,
-13,
-52,
-13,
20,
0,
51,
-63,
1,
-63,
14,
-38,
12,
-33,
75,
22,
27,
33,
8,
-21,
-12,
-41,
-3,
27,
-19,
-35,
6,
-6,
-29,
-31,
-16,
-37,
27,
40,
-17,
35,
84,
-70,
9,
19,
5,
25,
-40,
24,
-1,
-31,
0,
77,
0,
-26,
47,
-46,
-56,
-7,
-43,
47,
-9,
-26,
-15,
22,
-16,
21,
-30,
-32,
-8,
-17,
-38,
-41,
58,
-60,
-17,
-29,
5,
5,
-8,
-30,
-7,
-2,
-1,
-49,
3,
-41,
2,
-61,
51,
63,
19,
2,
9,
80,
26,
8,
10,
22,
0,
-68,
22,
0,
4,
2,
-27,
-17,
-8,
30,
-37,
16,
-36,
3,
-16,
-3,
-43,
-32,
-6,
-19,
2,
6,
-38,
-49,
35,
-2,
62,
32,
8,
29,
4,
-8,
11,
-16,
18,
55,
-30,
-26,
9,
-2,
-35,
-41,
12,
22,
-37,
51,
-1,
26,
-21,
40,
-16,
5,
-22,
30,
-9,
43,
9,
11,
30,
-14,
-4,
26,
13,
31,
-36,
29,
62,
-41,
-52,
-28,
23,
18,
35,
45,
-55,
-25,
89,
-40,
25,
-6,
10,
7,
-17,
-8,
-9,
34,
-44,
-4,
18,
68,
-13,
-31,
32,
-13,
79,
-47,
14,
59,
39,
20,
-5,
-52,
-26,
-29,
-33,
14,
19,
-8,
-7,
5,
2,
-41,
3,
25,
48,
12,
-14,
-51,
-16,
20,
-15,
-36,
30,
11,
42,
-5,
30,
-11,
-33,
5,
-35,
-14,
4,
30,
-3,
-10,
-2,
17,
-12,
13,
6,
31,
52,
-32,
-17,
-12,
11,
-31,
-33,
43,
-44,
11,
-16,
-16,
-23,
41,
9,
12,
7,
48,
-59,
14,
0,
-16,
-24,
20,
30,
-39,
-55,
-24,
-24,
-30,
-12,
-15,
22,
14,
-9,
28,
37,
48,
17,
3,
22,
0,
-37,
12,
50,
69,
1,
13,
36,
-8,
-51,
40,
-1,
10,
-29,
2,
-63,
-36,
-33,
2,
6,
8,
61,
-7,
-23,
9,
26,
-47,
61,
-50,
-11,
-11,
-65,
13,
24,
19,
-10,
14,
35,
-15,
-14,
-25,
16,
39,
-37,
-1
] |
Kuhn, J.
The bill of complaint in this cause was filed to establish and enforce a trust in favor of the minor children of the complainant and of Lillie Lerche, his wife. Charlotte M. L. Still, who lived in the village of Gaines, Genesee county, Mich., died intestate on September 11, 1912, and left surviving her a daughter, Rose Kishpaugh, and two brothers, Gustave and Henry Lerche. Gustave Lerche died on November 3, 1912. The claims of the parties are concisely stated by counsel for appellant, as follows:
“It is the claim of complainant in the original bill that said sum of $3,000 was delivered by Charlotte M. L. Still, who is conceded to have been the owner of said money, during her lifetime, to her brother Gustave E. Lerche, with oral instructions to hold said sum and pay the interest therefrom to Lillie Lerche, wife of complainant, for a period of 24 years, at the end of which period, he was to divide said money equally between the children of said complainant. It is the contention of defendant Kishpaugh, administrator of the estate of said Charlotte M. L. Still, that said money was never delivered by said Charlotte M. L. Still to said Gustave E. Lerche; that there is no evidence in the record showing any knowledge on her part that said money was being taken, or was to be, or had been taken by said Lerche, and that there is no evidence showing that she ever instructed or directed said Lerche to take said money for the purposes of the alleged trust or any other purpose; and finally, that the alleged trust, resting entirely in parol, is void under the statute of frauds.”
The administrator of the estate of Gustave E. Lerche in his answer makes no claim to said money as a part of the assets of the estate, and was subsequently ordered by the decree of the court to pay the money to the register of the court.
The only question, therefore, in the case is whether . the money in question belongs to the complainant as next friend of his minor children and to Lillie Lerche, or to the estate of Charlotte M. L. Still. The learned chancellor who heard the case sustained the contention of the complainant, and from a decree in his favor the defendant Kishpaugh, administrator of the estate of Charlotte M. L. Still, has appealed.
The only person who testified as to the taking of the money by Gustave E. Lerche was George W. Chase, whose testimony is as follows:
“Q. During the time you were there, did she say anything to you in regard to not wanting her daughter, Mrs. Kishpaugh, to have her property?
“Mr. Terry: I object to that as incompetent and immaterial.
“The Court: Taken subject to the objection.
“A. Yes, I have heard her say that she didn’t want the daughter to have the property. She said if the papers were drawn she wouldn’t allow her one dollar.
“Q. Did she want you at any time to get anybody to draw papers, make her will?
“A. She requested me one morning to get a person —to get McCann, she said.
“Q. You didn’t get him at that time?
“A. No.
“Q. How long was that before her death?
“A. About a week; I suppose, a little better than a week.
“Q. Had she her mental faculties all right up to the time of her death?
A. I believe so.
“Q. Do you remember her brother Henry Lerche being there?
“A. Yes.
“Mr. Terry: All this testimony is taken subject to our objection.
“The Court: Yes.
“A. I remember her brother Gustave Lerche coming there twice before her death. The last time he was there was on Sunday. He came on Sunday morning before she died. I can’t say what morning she died on. •
“Q. Did Mrs. Still say anything to you about wanting him to stay all night?
“A. She did.
“Q. What did she say? What reason did she give you for not wanting him to go?
“A. She said she didn’t want to think of his being on the road; afraid he was going to—
“Q. Did she tell you what he was going to do?
“A. She did not.
“Q. In the morning did you have any conversation with Gustave E. Lerche?
“A. Yes; I did. He wanted me to come in the house. He was going to take something.
“Q. Where did you go then?
“A. We went into her bedroom.
“Q. What was done after you got into her bedroom?
“A. He went in the closet and got a small hand bag or satchel and says: ‘This is the valuables. I won’t say what they are, but they are valuables.’
“Q. How far away was she at that time?
“A. About four feet, I should judge.
“Q. What did he do then?
“A. He stooped down and kissed her good-bye. He left the house at that time. She died the next morning.”
Cross-examination by Mr. Terry:
“Q. To whom were these remarks addressed: ‘These are valuables. I won’t say what they are?’
“A. I don’t know whether they were addressed to me or to her, but he was looking at me.
“Q. You supposed he was speaking to you?
“A. Yes; after Mrs. Still was buried he told Mr. and Mrs. Kishpaugh and myself that he had taken and carried away $3,000. I think he said he put it in the banks at Bay City.
“Q. What did you observe him carrying away from there that morning when he said, ‘This contains valuables?’ What did he have; what were they in? Doné up in a paper or what?
“A. I can’t say; they were in this little red satchel or hand bag, whatever you call it.
“Q. What he had was a little red satchel in his hand?
“A. Yes.
“Q. Did he have anything else in his hand, in any way, except the little red satchel?
“A. No; I don’t think so.
“Q. What he referred to in speaking of valuables, was that this little satchel contained valuables?
“A. Yes, sir.
“Q. You didn’t know what was in that satchel?
“A. No.
“Q. You didn’t know whether these valuables were his or hers or whose valuables they were?
“A. I couldn’t say.”
On the 10th day of September, 1912, the day the money was taken, Gustave E. Lerche deposited $1,000 in the First National Bank of Bay City, taking a certificate of deposit payable to G. E. Lerche or Mrs. George Still, who, it is conceded, is the same person as Charlotte M. L. Still. He also, on the same day, deposited $1,000 in the Bay City Bank of Bay City, in the savings department. The books of the bank show the following entry relative to the transaction:
“Account opened by G. E. Lerche and/or Charlotte Still. She is ill and cannot write, but has an equal interest in monéy. She is sixty-seven years old. Charlotte Still also to draw. Address, Akron, Mich. R. F. D. number 3.”
On the same day Gustave E. Lerche, who was also known as G. A. Lark, deposited $1,000 in his own name in the savings department of the Old Second National Bank of Bay City.
Complainant seeks to establish the gift and the trust by the declarations of said Gustave E. Lerche made to Frederick Kishpaugh and others and by a letter written by Gustave E. Lerche to Frederick Kishpaugh, which reads as follows:
“WlSNER, September 10, ’12.
“I have thought over the matter of this money and have come to the decision that I have no authority to pay any of this money over to anybody, only as Charlotte told me in plain words the money was left with me in trust to put on interest, the interest to go yearly to Lillie, for a period of twenty-four years, after that the money is to be divided between Henry’s children. I promised Charlotte on her deathbed to do this much for her and I am going to keep my word to her.
“Yours truly,
“G. A. Lark.”
Without these declarations and the testimony of witness Chase, the record is absolutely barren to show any evidence that Charlotte M. L. Still intended to give the money in question as claimed by complainant. At the time the money was taken, 24 hours before her death, it does not appear whether she was awake or asleep, or was conscious of what was taking place. The mere taking of the money as testified to by the witness Chase does not show a delivery of the money, and, in our opinion, is not sufficient to sustain the gift. Casserly v. Casserly, 123 Mich. 44 (81 N. W. 930). Gifts of this character, under the authorities, must be consummated by a delivery, either actual or ■ constructive, and the intention of the donor to place the property beyond his or her control must be clear. The way in which Gustave E. Lerche deposited the money in the banks is convincing to our minds that he fully recognized at the time the right of Charlotte M. L. Still to the money, and is entirely inconsistent with complainant’s claim that the money had been absolutely turned over to him in trust.
In the case of Campbell v. Sech, 155 Mich. 634 (119 N. W. 922), this court said that evidence of declarations and admissions of the donor are not sufficient to establish a gift, and are only admissible as corroborative of other testimony, citing 20 Cyc. p. 1225. The case of Kremer v. Mette, 148 Mich. 376 (111 N. W. 1086), is relied upon to sustain the proposition that the letter above set forth is sufficient to constitute a declaration of trust. It is true that, under this .authority, the letter might be used to bind the estate of Gustave E. Lerche, but, not being the writing of the conceded owner of the property, as was the case in Kremer v. Mette, supra, it is not binding upon the estate of Charlotte M. L. Still.
We are of the opinion that the proofs were insufficient to establish the gift and trust, and that the conclusion of the chancellor was erroneous.
His decree is therefore reversed, and a decree will be entered in this court directing the payment of the money here involved to Frederick Kishpaugh, administrator of the estate of Charlotte M. L. Still, deceased, but, in view of all the circumstances of this case, without costs.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
-8,
9,
42,
7,
-15,
23,
37,
-1,
1,
0,
-15,
-8,
27,
-11,
-73,
-5,
-17,
-11,
0,
-39,
37,
-47,
-11,
-3,
-18,
-8,
8,
-41,
-6,
-6,
-14,
-4,
-2,
20,
-12,
-31,
37,
-39,
13,
-10,
-27,
-19,
59,
15,
20,
53,
-19,
-15,
34,
-2,
9,
6,
-9,
-3,
-1,
9,
0,
-12,
36,
4,
-22,
-41,
62,
-41,
16,
24,
19,
0,
-6,
-42,
-3,
27,
-12,
-41,
-22,
-29,
-14,
1,
-44,
5,
6,
-57,
38,
-22,
-14,
-33,
-61,
11,
-6,
19,
21,
16,
-17,
-22,
7,
3,
43,
36,
-1,
18,
27,
-17,
-34,
32,
36,
27,
19,
47,
-1,
14,
-37,
-36,
8,
21,
-19,
-12,
-36,
-33,
-42,
-18,
26,
15,
41,
-2,
-15,
68,
-18,
-22,
15,
29,
28,
-2,
-10,
-27,
6,
-20,
-49,
-44,
17,
-40,
7,
0,
-45,
-37,
-27,
29,
-29,
-23,
63,
-13,
-51,
21,
18,
37,
15,
-34,
-14,
-34,
17,
-21,
27,
12,
16,
-66,
-6,
-21,
14,
-18,
6,
12,
-9,
55,
-70,
-24,
-6,
29,
11,
-53,
-63,
13,
38,
39,
25,
-11,
-1,
-32,
-6,
17,
-32,
3,
-62,
9,
-2,
18,
-27,
-4,
30,
-19,
40,
-7,
0,
17,
-12,
-6,
34,
-15,
7,
-15,
-28,
43,
19,
14,
-11,
27,
-79,
2,
-35,
-46,
-64,
9,
26,
26,
-12,
53,
-14,
-5,
45,
-10,
-32,
4,
-43,
-18,
10,
30,
-38,
45,
34,
-10,
11,
8,
-70,
-5,
6,
-30,
20,
-14,
12,
-4,
-31,
36,
-51,
0,
-23,
55,
24,
-11,
-30,
-11,
18,
-34,
30,
-25,
-17,
53,
-8,
-25,
0,
21,
-29,
-48,
31,
-23,
27,
-39,
5,
-56,
17,
17,
18,
36,
-2,
12,
-36,
8,
-9,
13,
-38,
-5,
14,
43,
11,
34,
61,
-42,
56,
54,
-22,
0,
0,
-21,
17,
30,
39,
29,
3,
25,
-28,
20,
-31,
-10,
-8,
10,
6,
-5,
30,
20,
-16,
-14,
-16,
3,
15,
-66,
-11,
-21,
-45,
16,
7,
-17,
4,
38,
-34,
40,
13,
-20,
-30,
-20,
37,
6,
-6,
-12,
55,
38,
6,
-15,
3,
18,
5,
-22,
-32,
-6,
-2,
-22,
21,
47,
-23,
10,
51,
-5,
18,
105,
-20,
34,
14,
25,
-19,
-5,
-56,
-7,
12,
26,
-21,
-32,
-44,
16,
-22,
-1,
-62,
73,
17,
3,
-22,
-5,
-1,
69,
3,
-13,
-31,
13,
17,
73,
20,
52,
-22,
6,
-5,
-51,
-31,
-21,
-32,
5,
-10,
38,
43,
-16,
-35,
47,
-50,
-5,
-7,
41,
42,
-7,
51,
-24,
39,
-25,
25,
-21,
25,
16,
0,
12,
2,
2,
17,
-35,
38,
50,
-20,
-68,
0,
65,
31,
10,
33,
-79,
0,
22,
-4,
-15,
25,
48,
37,
43,
-2,
29,
-16,
-25,
59,
-26,
29,
-1,
24,
46,
41,
-29,
52,
-11,
6,
6,
-13,
-16,
15,
13,
16,
10,
4,
34,
36,
24,
-11,
0,
-34,
-6,
9,
11,
41,
-14,
41,
32,
-5,
4,
13,
-4,
-8,
15,
-18,
-15,
-34,
18,
66,
-3,
-57,
21,
-37,
-14,
-35,
-52,
11,
24,
-17,
20,
48,
21,
1,
4,
-63,
-25,
1,
3,
6,
-44,
18,
-4,
0,
-21,
34,
0,
2,
43,
41,
27,
-68,
28,
-12,
-11,
37,
56,
9,
-16,
9,
-30,
23,
-28,
-5,
-38,
34,
-18,
-42,
-32,
-15,
9,
44,
30,
-41,
23,
-7,
-28,
-4,
-49,
-34,
-28,
6,
-14,
-10,
-19,
43,
-43,
-27,
-17,
-18,
-12,
-14,
-54,
21,
-54,
11,
-16,
-2,
-4,
35,
-6,
18,
-27,
-3,
7,
-11,
1,
-25,
-13,
9,
-2,
21,
-48,
-22,
42,
-20,
37,
-32,
-2,
-5,
31,
-37,
-30,
34,
-7,
33,
-25,
20,
29,
-18,
0,
-23,
8,
1,
-27,
-36,
54,
27,
-32,
38,
-18,
14,
1,
11,
14,
7,
-21,
1,
2,
0,
9,
28,
-11,
19,
2,
0,
30,
-2,
-6,
15,
-49,
3,
31,
-42,
16,
-9,
30,
-6,
-35,
-26,
-6,
-51,
-5,
-40,
-13,
16,
15,
-11,
-6,
-15,
-6,
47,
30,
-37,
-42,
19,
-49,
-28,
-13,
34,
-27,
-15,
93,
-3,
5,
26,
21,
-5,
17,
30,
-50,
-27,
14,
-19,
10,
-44,
33,
11,
6,
5,
12,
19,
7,
-3,
-17,
-4,
18,
1,
2,
4,
-17,
-31,
42,
27,
38,
6,
26,
26,
-17,
-18,
2,
-3,
7,
-33,
-62,
11,
-14,
-8,
2,
56,
-15,
3,
-39,
-29,
-12,
-10,
0,
14,
-8,
-41,
-17,
26,
-30,
-21,
14,
63,
-36,
-12,
-29,
-2,
19,
-16,
15,
-11,
36,
-43,
2,
-46,
-9,
8,
22,
-33,
-2,
0,
19,
25,
26,
33,
1,
43,
26,
15,
-17,
30,
-41,
-7,
3,
-14,
-41,
-17,
86,
-9,
-35,
15,
42,
-45,
-19,
-27,
-22,
-10,
21,
-53,
-34,
5,
-3,
-19,
-8,
41,
-13,
49,
-16,
1,
-29,
9,
-24,
39,
-39,
-8,
64,
-35,
-62,
11,
35,
-30,
19,
3,
-23,
-14,
-28,
14,
28,
13,
57,
-26,
23,
-45,
10,
-58,
41,
2,
13,
-34,
-52,
-31,
-11,
-16,
29,
4,
-31,
7,
-33,
23,
-8,
9,
34,
15,
7,
-46,
8,
-12,
-47,
-46,
-21,
14,
-2,
-2,
20,
-34,
-18,
15,
1,
-43,
33,
30,
20,
7,
-2,
9,
35,
4,
-20,
-10,
-15,
12,
-62,
-9,
14,
4,
33,
-4,
7,
-10,
-57,
-2,
-10,
44,
16,
4,
-19,
-53,
-16,
-54,
1,
-3,
13,
47,
9,
33,
30,
-27,
-3,
-10,
1,
15,
66,
40,
23,
14,
-13,
-37,
24,
-4,
-23,
-26,
13,
22,
-66,
23,
5,
-55,
7,
0,
-21,
16,
-56,
21,
35,
-9,
37,
32,
9,
-47,
-14,
-38,
5,
-4,
26,
-19,
-16,
39,
-26,
-6,
-7,
-23,
9,
36,
8,
-48,
14,
-11,
-7,
-31,
40,
48,
0,
0,
-6,
5,
-22,
20,
-7,
-18,
7,
-7,
26,
57,
-33,
-23,
40,
14,
-3,
28,
10,
-31,
-33,
-56,
-3,
-69,
25,
-12,
-18,
44,
25,
27,
-19,
33,
-29,
14,
-4,
-22,
62,
-53,
-2,
-9,
-17,
32,
21,
-4,
-5,
16,
-16,
8,
-17,
11,
64,
-33,
18,
-33,
-69,
78,
24,
17,
11,
-5,
0,
2,
11,
-11,
-34,
4,
-63,
6,
19,
-16,
-62,
33,
13,
-5,
-43,
-46,
1,
42,
43,
4,
37,
-25,
-17,
16,
-35,
26,
-4,
1,
71
] |
Bird, J.
The board of education of Bay City consists of nine members, who were all elected in October, 1912, for a term of two years. At their first meeting they elected relator president of the board. At the beginning of the present year, they fell into serious disagreement over a resolution to re-employ their present superintendent, and, at a meeting held on the 13th day of February, the following resolution was offered by Trustee Ribble:
“Whereas, the interests of education, the good government and prosperity of the schools of Bay City, and the welfare of the public concerning the same, require the election of a new president of this board, therefore resolved, that the said office of president be and the same is hereby declared vacant and that trustee J. W. Coles be and he is hereby elected president of this board.”
The resolution was declared out of order by the president, and neither he nor the clerk would put it to a vote. Trustee Ribble then proceeded to call the roll himself, but, before it was concluded, a motion to adjourn was declared carried by the president, whereupon four members left the meeting. The other five remained until the roll call was finished, after which Trustee Coles took the chair and declared the resolution adopted. Thereafter both Lichtig and Coles claimed to be president of the board. On March 14th the relator Lichtig applied to and secured a temporary injunction from the circuit court in chancery, addressed to Coles, inhibiting him from attempting to exercise the duties of president and from interfering with the relator in the discharge of his duties as president. An answer was filed to the bill of complaint, and a motion to dissolve followed, which was granted by the trial court. We are now asked for a writ of mandamus to compel the circuit judge to set aside his order dissolving the injunction. The principal questions raised are:
(1) Had the board the power to remove the president?
(2) If they had such power, were the proceedings taken effective to accomplish that end?
Inasmuch as a solution of the second question will determine the case, we will refrain from discussing the first question.
2. The board of education at Bay City was created by Act No. 514 of the Local Acts of 1903. That act provides that at the first meeting after the members are elected in October, they shall elect a president and vice president. Section 256 of the act confers on the president the veto power in the following language:
“The president, or vice president, when acting as president, may file with the clerk of the board his objections in writing, to any by-law, ordinance, resolution, motion or order of the board within five days after the passage or adoption of the same, setting forth reasons for his disapproval thereof, and in such case such by-law, ordinance, resolution, motion or order shall not become operative or take effect unless again passed or adopted by a two-thirds vote of all the members elect.”
Within the five days allowed by this section, the relator, as president, exercised the power therein conferred, and vetoed the resolution. The parties are in direct conflict as to the force of the veto. The respondent insists that the veto power conferred by this act is effective only against legislative acts, and that the appointment to office is not a legislative act, but an administrative one. The question as to whether the veto power extends to administrative as well as legislative acts is one which must, in the last analysis, be decided from the language of the act conferring it. 28 Cyc. p. 356. It will be noted that the language of this act is very broad, and appears to confer the power upon the president to veto any act, legislative or administrative, that does not meet with his approval. Had the legislature intended he should have this power, it is difficult to conceive how it could have been more aptly expressed than by the use of the terms which were employed. There is no official action (at least of any consequence) which the board could transact, which, would not involve, in making it effective, one of the enumerated forms.
In the case of People v. Schroeder, 76 N. Y. 160, this question was before the 'court of appeals upon a legislative act, which provided:
“That every ordinance or resolution of the board of aldermen shall, before it takes effect, be presented and certified to the mayor, and, if he approves of it, he shall sign it and, if not, shall return it with his objections, when it may be passed by a vote of two-thirds of the members.”
The court, in passing upon the question, said in part:
“The resolution of the common council confirming the appointment of the relator, which was transmitted to the mayor, and which he returned without his approval, comes directly within the terms of the provision last cited; and it follows that without such approval, the relator failed to receive a legal appointment as clerk. The object of the provision evidently was to give the mayor the power to' veto all acts of the common council which did not meet his approval, and in this form to restrict improvident action by that body. It is no answer to this construction, I think, to say thht the act of the common council was neither a legislative act, nor an ordinance, nor a resolution, because it was an act confirming an appointment, for its confirmation was not only in the form of a resolution, but that body had no authority to make the appointment valid without the approval of the mayor.”
A similar question arose in Baar v. Kirby, 118 Mich. 392 (76 N. W. 754), over the veto by the mayor of the resolution of the council, transferring certain moneys from one fund to another. The power to veto was that conferred on mayors of fourth-class cities, and provided that:
“No ordinance or resolution passed by the council shall have any force or effect if, on the day of its passage, or on the next day thereafter, the mayor, or other officer or person legally discharging the duties of mayor, shall lodge in the office of the clerk a notice in writing suspending the immediate operation of such ordinance or resolution. * * * ”
The same point was made in that case as is made in this that it was an administrative act, but the court held that the veto power extended to and covered the case. It was therein said:
“The claim that it was not a resolution which, under the statute, the mayor had the power to veto has no force. The statute provides that no ordinance or resolution passed by the council shall have any force or effect if the notice is given, and such ordinance or resolution shall not go into effect when the veto message is interposed within the time prescribed, unless the same is passed over the veto by a two-thirds vote of all the aldermen-elect.”
We are cited to three cases in which a contrary holding is made: Erwin v. Jersey City, 60 N. J. Law, 141 (37 Atl. 732, 64 Am. St. Rep. 584) ; State, ex rel. Haight, v. Love, 39 N. J. Law, 14; State v. Wagner, 170 Ind. 144 (82 N. E. 466, 15 Am. & Eng, Ann. Cas. 1063). It will be found, upon examination of‘these cases, that the language of the several acts conferring the veto power differ materially from the one in question. In the first case cited, the mayor was given authority to veto the acts of any board of the city. In the second case, the mayor was given the power to veto the action of any municipal board. In the last case cited, the mayor was given the power to veto any ordinance, order or resolution of the council. There is no language in the act under consideration which would justify us in restricting its operation to legislative acts. To hold that it covers all acts involving the exercise of any discretion of the board will lead to no absurd results. To so hold would say in effect to the board: If you have the power of removal, it must be exercised by a two-thirds vote, if the resolution adopted by a majority vote is vetoed. This would furnish a reasonable check in such cases on hasty action, and at the same time would not deprive the board from exercising the power. We are therefore of the opinion that the resolution of the board, which removed the president and substituted another in his stead was of no force after the veto was filed.
It is contrary to the practice of this court to determine the right to an office in a mandamus proceeding, but by reason of the pressing nature of the matters now before the board, and the further fact that the record fairly shows that the relator is both president de jure and de facto, we make an exception to the rule. Lawrence v. Hanley, 84 Mich. 399 (47 N. W. 753).
If there appears to be any necessity for the issuance of the writ after claimant Coles is advised of the action of this court, the writ will issue as prayed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
11,
-50,
70,
-15,
8,
40,
-3,
24,
-7,
-51,
-37,
-63,
18,
48,
-1,
-7,
17,
-1,
30,
-55,
24,
-19,
-4,
0,
-8,
-23,
34,
-30,
-40,
9,
20,
-83,
-13,
-10,
15,
34,
0,
-24,
6,
-29,
-7,
-2,
13,
-46,
5,
1,
10,
-4,
-31,
2,
-39,
10,
17,
43,
3,
-17,
-49,
20,
38,
-2,
-15,
73,
13,
-17,
37,
13,
-6,
3,
40,
-6,
-15,
29,
4,
-54,
-22,
35,
26,
-33,
-10,
35,
-34,
46,
-14,
-21,
41,
-29,
-39,
25,
-51,
9,
-35,
21,
-39,
55,
44,
-38,
19,
-69,
48,
0,
27,
21,
-39,
23,
-50,
-24,
-18,
24,
63,
-43,
-22,
73,
18,
-13,
5,
-6,
12,
26,
-14,
0,
22,
17,
-5,
-7,
-31,
80,
-6,
19,
7,
9,
-66,
60,
-17,
35,
32,
31,
-22,
4,
26,
-5,
80,
18,
-25,
22,
-69,
-11,
-41,
37,
36,
-23,
10,
53,
-13,
38,
-39,
42,
31,
18,
-1,
-12,
-41,
13,
26,
-11,
-36,
-16,
6,
13,
20,
40,
-2,
35,
7,
16,
-23,
-10,
-65,
36,
-1,
-3,
-7,
-14,
43,
-4,
-49,
-29,
-18,
4,
4,
-1,
21,
-31,
-31,
-71,
2,
-15,
-22,
33,
-23,
12,
30,
0,
3,
46,
4,
0,
-4,
-1,
-12,
11,
-24,
28,
0,
66,
48,
-30,
-14,
-35,
85,
-15,
23,
14,
46,
66,
-6,
-8,
27,
32,
14,
26,
35,
-2,
-1,
-75,
42,
45,
-85,
45,
36,
-38,
-6,
2,
16,
73,
-31,
-53,
-27,
-45,
-10,
29,
34,
47,
29,
-4,
-8,
69,
27,
-25,
-43,
-36,
10,
-22,
18,
-17,
-30,
5,
37,
32,
-9,
-15,
3,
24,
37,
-15,
-10,
16,
15,
-74,
29,
-23,
-6,
2,
0,
44,
-57,
33,
-12,
-29,
18,
-75,
-41,
31,
18,
12,
53,
-22,
33,
68,
-22,
-91,
-52,
39,
18,
25,
33,
41,
-33,
-69,
17,
-52,
2,
-10,
-28,
-3,
27,
-53,
-13,
60,
-11,
-11,
-44,
-30,
-26,
-9,
-28,
-29,
24,
28,
-10,
-35,
36,
-55,
-36,
38,
72,
-2,
73,
14,
47,
-25,
3,
69,
65,
14,
-21,
-71,
-68,
-42,
-45,
-46,
29,
-66,
-37,
-29,
-72,
1,
-36,
18,
2,
19,
-16,
39,
-9,
6,
26,
4,
-2,
59,
-26,
-1,
23,
-48,
15,
20,
7,
4,
25,
7,
-17,
45,
-14,
0,
43,
-63,
78,
-26,
28,
24,
26,
-33,
7,
-10,
-34,
-10,
19,
11,
46,
8,
-19,
-15,
-19,
8,
-25,
27,
-61,
39,
-14,
-95,
3,
28,
42,
20,
27,
-28,
48,
-42,
30,
-10,
51,
-23,
-34,
-18,
-7,
-23,
-2,
-16,
-19,
-15,
41,
-32,
-25,
5,
31,
-14,
-7,
-42,
-22,
-34,
-36,
-27,
18,
1,
3,
26,
-46,
-8,
30,
58,
-9,
54,
-19,
64,
-43,
23,
-19,
0,
-67,
15,
37,
-21,
-35,
-59,
-18,
51,
-54,
27,
-10,
67,
-3,
46,
-50,
-31,
-42,
6,
-18,
-34,
19,
10,
-47,
-21,
-5,
-9,
-2,
-20,
-19,
19,
24,
-23,
-19,
-33,
0,
48,
-59,
49,
-8,
46,
22,
-29,
-19,
8,
35,
24,
-22,
-92,
-4,
-24,
-11,
-53,
-34,
-31,
2,
-63,
10,
57,
44,
-20,
-47,
-32,
-53,
-14,
21,
46,
-52,
-10,
-28,
58,
-16,
-24,
26,
4,
-34,
27,
-10,
63,
3,
47,
-49,
26,
53,
25,
8,
-19,
69,
2,
11,
6,
-17,
-6,
7,
-3,
0,
12,
-50,
-95,
-14,
19,
-41,
21,
73,
42,
-12,
-13,
22,
-43,
-30,
9,
-22,
-6,
2,
46,
54,
-86,
-9,
61,
-14,
36,
43,
38,
18,
-22,
60,
-31,
-14,
18,
-22,
9,
55,
-36,
-18,
12,
12,
-24,
-74,
2,
-3,
58,
35,
73,
39,
-32,
19,
-11,
-21,
36,
1,
-34,
-20,
2,
-3,
-20,
-30,
-80,
53,
59,
-5,
53,
-13,
51,
40,
-20,
-73,
-26,
57,
-41,
21,
-9,
7,
-48,
51,
-19,
3,
-6,
-58,
29,
-56,
-40,
-39,
-18,
38,
-6,
27,
-10,
3,
-60,
-28,
21,
-34,
45,
14,
1,
-42,
-19,
-5,
18,
-52,
18,
-14,
28,
41,
-41,
6,
-5,
-7,
-21,
-36,
17,
39,
8,
15,
-23,
53,
6,
18,
-4,
-3,
35,
25,
-7,
26,
13,
24,
38,
-77,
35,
2,
3,
65,
40,
-56,
-39,
62,
-37,
21,
0,
96,
23,
10,
-19,
-32,
1,
-43,
-40,
-66,
33,
-75,
-37,
-18,
38,
-6,
-47,
-2,
-13,
-52,
40,
-7,
-6,
92,
-25,
-7,
40,
-19,
20,
-59,
1,
47,
30,
65,
-35,
22,
-43,
8,
-9,
-20,
-79,
-37,
44,
40,
39,
27,
-4,
-15,
-4,
-51,
-53,
-25,
32,
-16,
25,
-61,
-42,
26,
-66,
14,
-21,
-2,
-7,
-34,
24,
13,
32,
-23,
-1,
9,
-7,
-49,
27,
18,
48,
-21,
-2,
79,
-54,
-53,
-1,
5,
-47,
57,
-50,
-10,
-49,
63,
-14,
-33,
-15,
70,
-32,
11,
41,
-28,
10,
-5,
-8,
38,
13,
-3,
59,
44,
-45,
22,
-11,
-14,
11,
1,
-9,
-33,
19,
-37,
54,
-15,
25,
-24,
-48,
-52,
-52,
52,
-15,
-12,
12,
-56,
1,
-44,
-47,
8,
-27,
-16,
13,
20,
66,
-1,
44,
21,
35,
3,
0,
-15,
-72,
-41,
14,
17,
32,
-11,
1,
-14,
-71,
-53,
-37,
0,
12,
-28,
-25,
-6,
30,
-41,
-4,
14,
-61,
39,
-40,
39,
61,
-6,
28,
-16,
-21,
-3,
31,
-10,
-9,
37,
71,
-38,
-66,
52,
-51,
-1,
0,
19,
13,
-82,
-3,
-60,
-13,
7,
6,
27,
52,
14,
-63,
66,
53,
-12,
-14,
12,
39,
-10,
-8,
-22,
-21,
-43,
51,
-26,
-8,
31,
-47,
-125,
-42,
50,
-20,
8,
52,
-27,
30,
-14,
-33,
-35,
28,
28,
-50,
31,
27,
47,
-3,
-48,
-2,
-22,
25,
-7,
-32,
2,
65,
53,
7,
-8,
-19,
22,
33,
3,
16,
0,
40,
-15,
50,
-13,
-9,
2,
47,
42,
-3,
22,
9,
-72,
28,
21,
27,
7,
-30,
10,
-6,
-18,
-30,
17,
-44,
29,
24,
34,
0,
-62,
-72,
5,
9,
-8,
6,
-23,
39,
-6,
-8,
5,
-12,
30,
23,
-1,
-74,
25,
81,
-15,
-11,
57,
-28,
-12,
4,
-13,
-34,
37,
-41,
-37,
2,
2,
7,
3,
-21,
24,
-19,
-27,
9,
-12,
-52,
36,
10,
67,
50,
16,
-9,
33,
22,
20,
39,
36,
-26,
35,
-9,
21,
-36,
-75,
10
] |
Steere, J.
This action is brought by the administrators of John L. Woods, deceased, upon a promissory note given to him by the Muskegon Improvement Company, having been executed by G. L. Mason, as president, and George L. Erwin, as secretary, and indorsed by George L. Erwin, G. L. Mason, F. L. Holbrook, David D. Erwin, and F. A. Nims..
Defendants interposed a plea of the statute of limitations which was sustained on a former trial in the circuit court, and on review reversed by a decision of this court reported in 169 Mich. 689 (135 N. W. 949), to which reference is made for a statement of the case and questions then passed upon.
Following the former decision by this court, application was made for a rehearing; one of the grounds urged being that certain facts were found and stated as a basis of the opinion which were not supported by the record. The application was denied. It is again urged that the evidence in this case does not sustain certain of the material facts found, and, if there is any testimony in the record so tending, there was also testimony to the contrary presenting disputed questions of fact; and on the second trial, in which a jury was demanded, those questions were for the jury.
On a retrial at circuit before a jury, the learned circuit judge directed a verdict for plaintiff, saying, after reviewing the testimony:
“Now, what I have said shows you that here is the same case, it is the same facts, and there is nothing left for the court or jury to do excepting to follow the law of that case, and that was * * * that the statute of limitations did not operate to bar the claim of the plaintiff.”
The evidence is the same here as on the former trial, with the addition of the testimony of George L. Erwin, who is the only appealing defendant. He was not a witness upon the first trial.
Much of defendant’s brief is devoted to a reargu ment of the questions raised and argued in the case when here for review of the first trial, had before the court without a jury. The conclusions reached on the record then made and then before this court cannot now be reconsidered nor disturbed. Then all questions of fact as well as of law were before the court, and it was determined that the record contained evidence, though upon some points perhaps but inferential, to sustain and justify the result arrived at.
It is undisputed that the statute of limitations had run against this note, unless it is relieved from the force of said statute by one or more of the last three payments, discussed in the former opinion, and those payments would not stop the statute running in favor of appellant unless she is shown, either by inferential or direct evidence, to have consented to or authorized the same. A new promise will not be implied from a partial payment made by another under such circumstances as will preclude such inference.
The records of both cases show that, though he was a payor, the business of collecting and remitting payments, collected from collateral given to secure this note, was. attended to chiefly by David D. Erwin, of the law firm of Nims, Hoyt, Erwin, Sessions & Vanderwerp. The payment of $82.23 was remitted by said firm, as shown by its letter dated February 20, 1904, sent with the remittance to plaintiffs. F. A. Nims, of said law firm, in seeking to avoid the effect of said payments, testified that he knew nothing about the collateral given with, nor of the payment made upon, such note. It was the opinion of this court when reviewing the first trial that, upon the record then made and considered in its entirety, Nims should be held to have known of and authorized such payments. On the second trial, by jury, the trial court held, as a matter of law, that appellant, “who testifies to the same facts, that he knew nothing about the payments that are indorsed upon the note and which it was alleged by the plaintiff in this case took it out of the statute of limitations,” could not escape liability inasmuch as this court had previously held that a new promise should be implied by reason of such payments as to all defendants, including Nims.
Appellant, George L. Erwin, who was not a witness nor present at the former trial, here testified that he was never a member of nor connected with the law firm of which David D. Erwin and F. A. Nims were members and knew nothing about their transactions with John L. Woods, whom witness had never seen and did not know personally; that the Muskegon Improvement Company failed, turned over all its remaining property to trustees, held no more meetings, and went out of business in 1894, at which time he severed his connection with the concern; that he had been absent from Muskegon most of the time for 12 or 13 years and supposed the improvement company’s matters were all closed up; that he had no interest in the collateral given to secure the note in question nor in any surplus which might arise therefrom after such note was paid; that he had no knowledge David D. Erwin made any collections on such collateral or any payments on said note subsequent to 1894, and had never, directly or indirectly, authorized or consented to the payments in question.
These were statements of fact not in the previous record. If they are true, the payments in question made by David D. Erwin without appellant’s knowledge or consent would not deprive the latter of claiming the benefit of the statute of limitations which by his plea he has sought refuge under. Section 9745, 3 Comp. Laws (5 How. Stat. [2d. Ed.] § 14152); Rogers v. Anderson, 40 Mich. 290; Gates v. Fisk, 45 Mich. 522 (8 N. W. 558) ; Borden v. Fletcher’s Estate, 131 Mich. 220 (91 N. W. 145).
There is evidence in this record, some of it documentary, tending to negative appellant’s testimony, but the conflicting.testimony raised issues of fact in the case which were not for the court to decide in a jury trial, and which should have been submitted to the jury under appropriate instructions as to their legal significance and directions as to what verdict should be rendered according as the jury might determine the facts.
The judgment is reversed, and a new trial granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
24,
16,
16,
1,
-1,
50,
-40,
3,
12,
1,
-13,
-32,
-17,
-5,
49,
-10,
-10,
21,
9,
-21,
2,
-3,
1,
-1,
-37,
-18,
-3,
23,
-13,
-52,
47,
1,
-17,
16,
-23,
-10,
46,
9,
-6,
-4,
-26,
7,
11,
-12,
-19,
-19,
18,
-12,
21,
-14,
45,
11,
-14,
3,
-21,
-7,
21,
20,
23,
9,
10,
-4,
4,
0,
36,
10,
38,
-10,
9,
-48,
0,
-9,
23,
37,
30,
3,
-21,
0,
-11,
12,
-4,
2,
2,
21,
-33,
-56,
1,
-18,
-20,
7,
-23,
-34,
-11,
33,
47,
-5,
6,
-24,
8,
15,
2,
24,
-9,
9,
9,
-3,
7,
-16,
-32,
-35,
1,
1,
12,
-2,
-7,
-45,
6,
-25,
16,
0,
18,
5,
4,
36,
35,
18,
-18,
-16,
9,
0,
-2,
44,
46,
-5,
73,
1,
40,
-16,
-6,
-19,
37,
11,
-2,
26,
-7,
20,
-10,
20,
1,
5,
-34,
-9,
-3,
13,
56,
47,
28,
-23,
20,
-5,
32,
21,
6,
-23,
-28,
-27,
6,
30,
1,
27,
-24,
51,
27,
-19,
9,
13,
-2,
16,
-3,
43,
1,
13,
12,
-21,
-11,
-43,
19,
-5,
-4,
-28,
17,
-19,
-30,
-25,
5,
44,
-7,
7,
-37,
33,
5,
-47,
31,
2,
2,
25,
40,
-11,
4,
50,
-14,
10,
15,
-1,
0,
33,
24,
39,
6,
60,
31,
31,
1,
-1,
20,
35,
38,
31,
-6,
-9,
-51,
-15,
17,
19,
-61,
3,
-28,
25,
33,
-16,
-7,
-30,
19,
5,
5,
-18,
-20,
-16,
12,
31,
-13,
41,
-25,
-21,
-26,
-41,
2,
-42,
-46,
-28,
48,
27,
-51,
14,
-41,
7,
33,
58,
-28,
17,
-17,
-27,
33,
7,
-9,
-14,
30,
11,
-3,
-20,
-1,
-37,
37,
-22,
-41,
0,
25,
25,
-10,
18,
0,
50,
-37,
-11,
29,
4,
-16,
28,
17,
10,
4,
-40,
-5,
-39,
8,
14,
-23,
0,
-21,
22,
9,
16,
29,
0,
16,
41,
9,
12,
29,
-36,
-31,
9,
-14,
-33,
30,
-13,
12,
-10,
12,
12,
9,
6,
18,
5,
-27,
-20,
45,
-15,
23,
5,
10,
17,
-15,
20,
-21,
-11,
-14,
-9,
13,
8,
13,
-1,
-2,
-6,
-31,
3,
42,
-38,
10,
37,
-28,
1,
17,
13,
21,
-37,
-46,
-51,
15,
-6,
18,
-33,
-3,
-19,
3,
-23,
-10,
-8,
-13,
32,
-26,
23,
20,
-15,
3,
-36,
25,
-10,
0,
24,
-46,
13,
22,
-16,
-54,
16,
2,
1,
-46,
-42,
-65,
7,
15,
37,
-5,
33,
-41,
0,
28,
28,
20,
2,
30,
2,
20,
-32,
-9,
-3,
2,
-15,
26,
12,
17,
14,
9,
-32,
7,
13,
36,
-24,
-11,
39,
25,
-40,
13,
44,
-23,
-14,
0,
-16,
-66,
38,
0,
-36,
-21,
-12,
-6,
-18,
52,
29,
4,
-9,
-6,
-44,
-54,
35,
60,
-43,
34,
0,
42,
-39,
-44,
52,
18,
52,
-22,
-18,
-19,
21,
-11,
41,
31,
-28,
-22,
-27,
32,
-37,
-2,
-23,
20,
0,
-6,
42,
-9,
-6,
-29,
-42,
17,
-45,
3,
29,
-34,
27,
-33,
2,
-68,
-6,
33,
40,
-47,
8,
2,
-57,
13,
20,
37,
-53,
-49,
73,
22,
21,
28,
22,
24,
44,
40,
-7,
-14,
-11,
52,
22,
10,
10,
-9,
20,
4,
-23,
7,
-29,
12,
12,
5,
-42,
32,
-7,
-37,
19,
-45,
-21,
-11,
22,
22,
32,
-62,
-37,
-44,
-14,
6,
-6,
-17,
-22,
-7,
-9,
-23,
-18,
-4,
-30,
-8,
6,
41,
-39,
10,
-45,
32,
39,
-21,
-34,
17,
18,
25,
37,
-13,
-5,
0,
38,
0,
-5,
-11,
-5,
-24,
5,
-12,
-56,
19,
10,
15,
12,
-20,
16,
-25,
-34,
-48,
-28,
17,
-6,
-21,
2,
49,
17,
19,
17,
-20,
38,
-9,
-5,
3,
4,
24,
25,
42,
-93,
-63,
0,
-35,
28,
8,
-27,
-35,
40,
-17,
0,
-13,
-6,
28,
19,
-1,
8,
-12,
29,
7,
19,
-41,
30,
1,
-23,
10,
11,
-3,
-11,
-14,
-14,
26,
-21,
-33,
-34,
-48,
-3,
-34,
-9,
-13,
10,
50,
-5,
-17,
20,
30,
18,
26,
-43,
4,
-7,
-46,
49,
-18,
-2,
7,
-31,
-17,
6,
46,
-4,
-1,
44,
6,
-65,
-31,
40,
65,
-9,
-2,
-11,
29,
-13,
9,
5,
-19,
63,
-9,
14,
11,
22,
-52,
1,
-45,
18,
8,
25,
49,
-21,
-6,
22,
-5,
45,
-72,
13,
-22,
-25,
5,
6,
-30,
-1,
8,
17,
-20,
53,
23,
-37,
16,
-30,
-29,
-44,
-10,
-7,
-25,
0,
49,
-1,
-4,
-58,
-3,
20,
-32,
13,
-10,
-5,
-4,
-13,
-20,
19,
18,
-15,
14,
-27,
6,
-28,
42,
12,
-46,
-6,
41,
34,
28,
30,
16,
37,
7,
5,
-81,
-21,
26,
-11,
6,
-37,
-56,
-5,
15,
-41,
10,
-4,
-26,
-8,
-20,
33,
-28,
12,
-32,
40,
14,
-29,
12,
-33,
-89,
6,
13,
-52,
9,
-20,
-33,
32,
-13,
-86,
-22,
24,
16,
28,
33,
-25,
-9,
-9,
-2,
13,
10,
30,
-18,
26,
0,
-23,
15,
9,
10,
20,
-49,
-45,
-18,
-1,
-30,
1,
0,
-12,
-12,
29,
-13,
12,
-40,
6,
9,
-33,
6,
22,
15,
-37,
-53,
3,
13,
-56,
17,
34,
-14,
7,
0,
-15,
2,
12,
-47,
12,
4,
30,
-26,
5,
-30,
29,
-32,
-2,
-28,
-10,
18,
-8,
3,
0,
20,
-4,
-45,
-14,
0,
14,
-19,
-51,
28,
2,
-8,
-9,
-55,
-6,
14,
-22,
17,
-15,
3,
26,
-53,
-27,
39,
-6,
-37,
-5,
15,
-45,
26,
19,
-28,
33,
6,
15,
-13,
-27,
-7,
0,
-19,
23,
-16,
-19,
32,
-16,
-1,
-16,
-18,
16,
-12,
29,
-18,
-11,
-26,
-22,
-14,
-6,
-34,
-2,
41,
-25,
25,
15,
9,
32,
-10,
-18,
23,
7,
-46,
44,
45,
12,
21,
-52,
30,
-2,
13,
-62,
30,
23,
-14,
-38,
-32,
10,
-5,
-19,
-1,
11,
1,
48,
-32,
-16,
26,
79,
-20,
4,
1,
8,
22,
-4,
29,
13,
32,
1,
0,
11,
-24,
-5,
-5,
12,
-1,
-58,
22,
-34,
-17,
9,
15,
10,
-19,
-3,
8,
-23,
-50,
26,
-13,
18,
9,
-13,
-19,
17,
20,
-5,
35,
-17,
-9,
33,
-12,
-18,
-16,
-16,
1,
-4,
-6,
35,
16,
-16,
14,
47,
-17,
-2,
-46,
25,
35,
-2,
-5,
22,
-24,
-72,
-28,
-11,
-15,
1,
-28,
22
] |
Ostrander, J.
Complainant claims title to lots 3 and 4, section 18, town 8 N., of range 16 W. His evidence of title is a quitclaim deed from the owner of the original title, dated March 5, 1913, and recorded. He filed the bill of complaint in this cause March 24, 1913, setting up his title and the defendants’ title, and praying that defendants may be decreed to convey to him all right, title, and interest in the land claimed by them, or either of them. Defendants answered the bill, and in their answer claim the benefit of a cross-bill, and as affirmative relief ask that a decree be entered that the complainant’s deed is void, and requiring complainant to convey to defendants all his right, title, and interest in the lands. The cross-bill was answered, and, the cause being at issue, it came on for hearing in open court in September, 1913, and certain testimony was offered and received. The court below found and decreed:
“I. That the bill of complaint was filed in this cause to quiet the title to the following described real estate, viz.: Lots 3 and 4 of section 18, town 8 north, range 16 west, Ottawa county, Michigan.
“II. That the complainant claims title through a quitclaim deed obtained from the person to whom the fee vested through a regular chain of title from the original purchaser.
“HI. That the cloud upon the title which the complainant seeks to have removed are a tax deed given by the auditor general to Edward S. Craw, a deed given by Edward S. Craw to Charles E. Soule, a deed for one-half interest given by Charles E. Soule and wife to Wm. N. Angel, and a deed given by Wm. N. Angel to Daniel W. Andrews, Anna Angel Andrews, George E. Angel, Clara M. Angel, Henry A. Angel, and Edith Angel.
“IV. That at the tax salé the lots were sold separately, being so assessed. The aggregate purchase price paid was $228.89, being the taxes upon both lots from the year 1888 to 1901. Both lots were included in one deed, and the notice given to perfect the tax title gave the total amount paid for both lots, but did not specify the amount paid for each. That such notice did not comply with the law.
“V. That said notice as above described was served upon complainant’s grantor on the 8th day of December, 1902, and was actual notice of the sale of the lots for delinquent taxes, although the notice was not in legal form to cut off redemption, or upon which a writ of assistance could be based.
“VI. The complainant, holding by quitclaim deed, has imputed to him the delinquencies of his grantor. The lots had been returned delinquent for taxes since 1888, and since 1902 the defendant had paid the taxes. That no attempt or offer was ever made since 1888 by the complainant or his grantor to pay these taxes.
“VII. The claim of laches urged by the defendant under and by virtue of the decision of the case of Clothier v. Miller [173 Mich. 530 (139 N. W. 253)], is conclusive in this case.
“VIII. It is therefore adjudged and decreed that the bill of complainant be and the same is hereby dismissed, without prejudice, with costs to the defendant, to be taxed, and that they have execution therefor.”
All parties have appealed. It should be stated as a fact relied upon by complainant that no attack is made by the bill upon the tax proceedings or the sale of the land for taxes. The contrary is expressly charged in the bill.
The real contentions of parties may be briefly stated. Complainant claims that, because no valid notice to redeem was given to his grantor within five years after the purchase of the tax title, defendants are barred from asserting the title, and from claiming a lien upon the land by virtue thereof. Act No. 58, Pub. Acts 1907 (1 How. Stat. [2d Ed.] § 1843). Defendants say this act cannot have a retroactive effect. They also claim that their grantor gave a notice, imperfect it is true, which the original owner admitted receiving, and before receiving, expressly, and thereafter, by conduct, refused to redeem the land; that after six months after giving said notice defendants’ grantor entered into possession of the premises, claiming them by virtue of his tax title, and peaceably occupied them until this suit was begun, paying the taxes. The laches of complainant’s grantor, and his practical abandonment of the premises in 1902, is asserted as a bar to any equitable relief favoring complainant, and all the circumstances are relied upon as entitling defendants to a decree quieting their title.
Befqre investigating the claim of either party to equitable relief, it is well enough to see where the law leaves them. Complainant is in no better position than his grantor was, but, for convenience of statement, may be said to have the original, or government, title to the land. Assuming, as we must, that the tax titles are valid, the original or government title is extinguished (Griffin v. Kennedy, 148 Mich. 583 [112 N. W. 756] ; Embury v. Goodenough, 157 Mich. 140 [121 N. W. 744] ; Haney v. Miller, 154 Mich. 337 [117 N. W. 71, 745] ; Horton v. Helmholtz, 149 Mich. 227 [112 N. W. 930]), saving only the right, given by the statute, to redeem the land by paying the taxes and a penalty. No other or additional right accrued to him by virtue of Act No. 58, Pub. Acts 1907, because the act has no application. In the first place, the intention of the legislature that the act passed in 1907 shall have retroactive effect is not clear, and, in the second place, the tax deeds established between the purchaser and the State contract relations which it will not be presumed the State intended to violate or to change. A third reason may be stated, which is that a general statute of limitations must operate uniformly, and the statute invoked would not do so if it were applied to titles acquired before the law was passed.
Defendants own the tax title and the land, subject to the right of complainant to redeem — a right which in law has not been extinguished because no proper notice to redeem has ever been given. Defendants are not aided, in law, by having occupied the land, if in fact they have occupied it (a fact not found by the trial court, and of which the testimony is not convincing), because they had no right to its possession. Corrigan v. Hinkley, 125 Mich. 125 (83 N. W. 1020) ; Huron Land Co. v. Robarge, 128 Mich. 686 (87 N. W. 1032) ; Holmes v. Loud, 149 Mich. 410 (112 N. W. 1109); Cook Land, etc., Co. v. McDonald, 155 Mich. 175 (118 N. W. 959); Morrison v. Semer, 164 Mich. 208 (129 N. W. 1) ; White v. Dunsmore, 167 Mich. 542 (133 N. W. 523) ; Powell v. Pierce, 168 Mich. 427 (134 N. W. 447) ; McRae v. Barber, 171 Mich. 111 (136 N. W. 1118). In Huron Land Co. v. Robarge, it was said that service of a notice is a condition precedent to vesting title in the tax title purchaser. In Morrison v. Semer, White v. Dunsmore, and Powell v. Pierce, imperfect notices had been given. In White v. Dunsmore, the lands in question were wild and uncultivated, and it was held that the owner of the record title could not maintain trespass for the wrongful entry of the holder of the tax title before tendering the amount required to be paid for a reconveyance. In Adkin v. Pillen, 136 Mich. 682 (100 N. W. 176), the land was occupied by the owner of the original record title, and we said:
“Notwithstanding the fact that the State had acquired the absolute ownership of this land, and notwithstanding the language above quoted, the title acquired by defendant was, by Act No. 229 of the Public Acts of 1897, subject to redemption for a period of six. months, and during this time defendant was not entitled to possession of the land. We have recently held (see Auditor General v. Sherman, 136 Mich. 157 [98 N. W. 995]) that, notwithstanding the language of section 72, above quoted, the title thereby conveyed is subject to sale for prior taxes under certain conditions, by virtue of Act No. 169 of the Public Acts of 1899. It is equally clear that we are bound to hold that, by Act No. 229 of the Public Acts of 1897, said title acquired under section 72 did not become absolute — and this is true whether that title had or had not become absolute in the State before sale — until the period for redemption had expired. Until the expiration of this period, during which the original owner has the sole right of possession and the right to redeem from outstanding tax titles, such owner, and not the owner of said tax titles, which may or may not become absolute, is the owner of the property.”
Section 73 of the tax law (Act No. 206, Pub. Acts 1893 [1 How. Stat. (2d Ed.) §1842]), relied on by defendants, was, as applied to a case like this, held repealed by implication in Cook Land, etc., Co. v. McDonald, supra.. Proceeding no further, it would appear that, when this suit was begun, the parties in interest were in no better nor worse position, relatively, than when the defendant’s grantor acquired the tax titles.
Complainant, in a court of equity, admits that the tax title purchaser served a notice upon his grantor December 8, 1902, and charges, what is admitted to be true, that the notice was defective because, in advising his grantor of the sale of both parcels and of the amount required to redeem both, it did not specify nor disclose what amount could be paid to secure a reconveyance of either parcel. Jackson v. Mason, 143 Mich. 355 (106 N. W. 1112). He asks the court to apply in his behalf the statute which has been referred to. No other ground of relief being asserted, and complainant not having offered to now redeem the land, nor asked for permission to do so, no equitable relief can be granted to him.
Neither party having been in possession of the land, there is no controlling statute of limitations. Defendants and their grantor have done nothing in reliance upon the silence of complainant’s grantor. They have paid the taxes, which they were obliged to do to protect their interest. Laches implies negligence — a neglect or failusf to do what ought to be done under the circumstances to protect the rights of the parties to whom it is imputed, or involving injury to the opposite party through neglect to assert rights within a reasonable time. Usually one having an interest in land which is not in the actual possession of another is under no obligation to assert his interest until it is attacked, and there seems to be no good reason for saying that one having such a right as the complainant claims may not remain silent until his right is questioned. In any event there is no apparent reason for holding that the right is cut off and lost in favor of another who has taken ineffectual proceedings to divest it. The case presented is not like Bending v. Auditor General, 137 Mich. 500 (100 N. W. 777), Beuthien v. Dillon, 160 Mich. 396 (125 N. W. 363), McFarlane v. Simpson, 153 Mich. 193 (116 N. W. 982), Owens v. Auditor General, 147 Mich. 683 (111 N. W. 354), Clothier v. Miller, 173 Mich. 530 (139 N. W. 253), and similar cases, in which, because of laches, relief is denied to a complainant. Nor is it like Aztec Copper Co. v. Auditor General, 128 Mich. 615 (87 N. W. 985), Croskery v. Busch, 116 Mich. 288 (74 N. W. 464), Horton v. Salling, 155 Mich. 502 (119 N. W. 912), Morrison v. Semer, 164 Mich. 208 (129 N. W. 1), and Backus v. Hoyt, 164 Mich. 407 (129 N. W. 693), where equitable relief was granted upon condition that the complainant do equity.
I am of opinion that the parties must be remitted to enforcement of their legal rights — a conclusion which requires the affirmance of the decree, without costs of this court to either party.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, and Steere, JJ., concurred. Moore, J., did not sit. | [
-60,
-1,
51,
-5,
20,
-6,
60,
7,
0,
49,
16,
-31,
0,
-6,
28,
-6,
-19,
-26,
-14,
-10,
-48,
-41,
-19,
-4,
5,
-42,
56,
-51,
-49,
-24,
1,
6,
-40,
46,
45,
-4,
-7,
-17,
7,
-8,
-13,
8,
5,
-110,
3,
23,
-11,
0,
52,
-22,
0,
-34,
-5,
-8,
1,
-15,
-26,
-2,
29,
-3,
26,
-40,
-30,
-43,
-8,
-8,
19,
-1,
26,
-34,
-8,
1,
21,
-34,
24,
16,
-23,
-5,
-32,
19,
-11,
-30,
28,
4,
-8,
-34,
10,
-21,
17,
0,
-40,
-11,
1,
4,
45,
-26,
42,
52,
-23,
-7,
-1,
49,
-10,
2,
21,
-18,
-21,
-34,
-2,
-39,
-7,
-8,
72,
-11,
14,
10,
20,
-28,
15,
35,
15,
-44,
3,
-3,
-37,
45,
-58,
11,
-22,
26,
34,
-17,
-56,
8,
26,
-13,
22,
-27,
-21,
16,
14,
5,
6,
-70,
-50,
6,
-18,
-12,
13,
-55,
-71,
49,
33,
23,
-29,
10,
30,
-12,
11,
-47,
72,
-2,
-10,
-51,
-32,
22,
43,
-15,
-22,
5,
26,
-18,
-4,
-14,
-9,
-19,
36,
13,
12,
24,
33,
-3,
19,
-34,
12,
-65,
-19,
-42,
-19,
5,
57,
-17,
10,
-20,
-28,
27,
9,
0,
-7,
0,
-21,
-81,
12,
1,
-30,
-11,
55,
-22,
-19,
14,
-15,
-13,
-28,
13,
-41,
19,
21,
-24,
13,
-19,
-10,
33,
-7,
-13,
-24,
-37,
37,
-4,
25,
52,
-10,
-10,
30,
22,
-34,
-33,
43,
-5,
11,
19,
-37,
-26,
-2,
-30,
-10,
40,
-22,
-15,
16,
61,
9,
0,
-101,
-26,
-4,
-17,
-1,
0,
-35,
-32,
9,
-15,
19,
-4,
-8,
-25,
-16,
-10,
20,
0,
17,
22,
18,
9,
-47,
-35,
10,
-20,
2,
14,
51,
-42,
14,
35,
-21,
46,
15,
53,
-22,
-38,
-51,
-1,
-14,
-41,
-8,
41,
-35,
-14,
65,
-14,
-64,
-6,
-43,
-28,
-2,
-48,
28,
3,
48,
16,
-5,
-29,
35,
-13,
39,
-9,
14,
27,
48,
19,
16,
17,
-20,
37,
-27,
63,
15,
-14,
8,
10,
-30,
2,
7,
-6,
1,
-5,
5,
-49,
10,
-47,
67,
21,
25,
0,
42,
27,
-25,
3,
13,
38,
5,
-16,
-11,
30,
-21,
-28,
32,
10,
-30,
51,
45,
41,
-18,
-20,
-1,
-14,
-40,
-36,
49,
15,
-17,
-8,
2,
44,
11,
-14,
4,
-21,
-9,
58,
7,
29,
-2,
24,
47,
13,
0,
-49,
20,
9,
-21,
32,
33,
24,
61,
-33,
11,
-28,
-70,
32,
-19,
37,
19,
23,
-53,
2,
41,
-9,
-5,
34,
34,
-35,
-16,
-26,
11,
12,
-19,
2,
13,
0,
52,
15,
-18,
-3,
35,
-21,
39,
6,
36,
19,
11,
12,
32,
-9,
40,
0,
-24,
1,
-21,
2,
15,
19,
10,
15,
-14,
-23,
-41,
14,
44,
-11,
14,
48,
-3,
0,
-11,
39,
68,
18,
5,
-34,
22,
-51,
-14,
-12,
-16,
-22,
0,
-12,
12,
22,
0,
9,
-21,
-9,
-34,
13,
36,
-43,
-8,
-6,
-15,
-1,
-17,
-10,
-12,
-55,
-17,
0,
0,
-19,
32,
-33,
2,
39,
-9,
-33,
-57,
-21,
35,
8,
9,
14,
-14,
34,
12,
21,
-33,
19,
58,
45,
-36,
-23,
-12,
0,
-5,
50,
19,
-54,
21,
-7,
-7,
-11,
-22,
-43,
21,
-2,
47,
-5,
31,
29,
-37,
-15,
-6,
30,
-46,
14,
24,
45,
-27,
0,
5,
16,
43,
25,
-18,
19,
-27,
-48,
-3,
-10,
-16,
-11,
8,
0,
-47,
13,
6,
-60,
-16,
-14,
-8,
-18,
17,
-41,
0,
-24,
9,
-4,
-78,
16,
-51,
-36,
65,
-22,
16,
3,
-50,
-31,
41,
-5,
-57,
-48,
15,
-22,
38,
7,
14,
5,
-2,
43,
-3,
2,
-41,
29,
-1,
-22,
22,
62,
45,
12,
-18,
-42,
-13,
-27,
16,
-6,
-27,
23,
39,
-13,
16,
40,
44,
39,
-9,
39,
1,
-94,
48,
34,
53,
-10,
54,
22,
-20,
-32,
37,
-21,
-21,
26,
-1,
-13,
-14,
-24,
34,
36,
-11,
-10,
-13,
-11,
-15,
-30,
-60,
4,
-26,
-19,
-26,
11,
11,
-36,
-59,
18,
9,
12,
10,
5,
-7,
-18,
37,
-14,
50,
-39,
3,
36,
44,
-44,
40,
-4,
49,
23,
32,
-30,
-25,
-19,
-12,
-27,
-18,
50,
37,
44,
45,
13,
25,
24,
37,
-28,
18,
30,
25,
-7,
4,
-12,
0,
62,
-57,
4,
-9,
-2,
47,
-17,
9,
38,
31,
7,
-26,
2,
20,
6,
11,
-36,
10,
-9,
30,
6,
-1,
50,
49,
15,
-24,
6,
16,
-16,
1,
-41,
48,
-41,
27,
-52,
-24,
22,
20,
51,
40,
-27,
-69,
26,
-19,
9,
-31,
15,
-32,
-54,
-39,
-8,
17,
-7,
12,
-29,
-14,
-36,
16,
7,
35,
20,
38,
-64,
-44,
0,
-20,
-35,
23,
23,
-6,
-5,
-51,
-23,
-12,
-28,
10,
-3,
-27,
29,
-28,
-85,
21,
-10,
3,
-13,
83,
-23,
22,
-67,
-36,
-17,
11,
12,
12,
-36,
7,
-22,
-12,
-16,
17,
-62,
-40,
-29,
25,
-9,
-14,
-30,
-18,
7,
-28,
37,
-20,
33,
-41,
61,
-26,
37,
6,
-25,
-32,
-68,
-5,
-20,
5,
63,
13,
9,
-54,
12,
29,
3,
-26,
24,
0,
15,
-15,
4,
72,
-26,
-22,
18,
40,
-60,
-6,
-43,
-32,
0,
-1,
-6,
-15,
28,
-29,
-24,
0,
23,
25,
-29,
-39,
1,
20,
21,
-35,
-27,
18,
-18,
-26,
12,
44,
-21,
-34,
-40,
27,
14,
24,
33,
0,
8,
23,
-12,
-43,
10,
52,
-21,
-7,
-33,
14,
-10,
6,
-42,
-30,
9,
-10,
21,
83,
-3,
22,
6,
-38,
9,
0,
-15,
16,
-26,
6,
-28,
-12,
12,
-2,
5,
22,
-20,
-50,
2,
-11,
-10,
10,
25,
11,
-8,
-14,
-1,
-79,
-38,
20,
-19,
-14,
33,
2,
-25,
-45,
7,
-52,
-14,
42,
1,
-6,
42,
-51,
26,
-37,
20,
20,
-14,
23,
-34,
11,
44,
25,
-5,
4,
17,
-2,
2,
58,
-2,
13,
40,
-30,
4,
54,
49,
-3,
9,
-19,
-85,
-20,
-4,
23,
-34,
-15,
-37,
4,
-15,
19,
53,
28,
17,
-47,
-2,
-30,
10,
-4,
-1,
25,
48,
4,
9,
28,
-23,
-1,
39,
-1,
27,
12,
0,
-28,
20,
-30,
46,
7,
-2,
-10,
-51,
11,
17,
-30,
-27,
17,
-44,
16,
13,
42,
-2,
50,
-11,
17,
-20,
-69,
1,
42,
7,
14,
51,
36,
9,
23,
-5,
23,
12,
-21,
35
] |
Brooke, J.
(after stating the facts). We have set out somewhat at large the testimony relating to the custom of defendant in giving notice when about to back in cars upon the side track for the reason that the sole negligence of defendant is predicated upon its failure to observe an alleged custom to send a man in over the track in advance of the train to warn plain tiff of its approach. In our view of the case it becomes unnecessary to consider the question of plaintiff’s contributory negligence upon which much could be said even if plaintiff’s statement be taken ás absolutely true. Nor is it necessary to determine his status as a licensee or otherwise. He relies for recovery upon the establishment of a custom, the breach of that custom by defendant, and his injury in consequence thereof. A careful reading of all the testimony offered on behalf of plaintiff convinces us that no such custom as he testified to obtained in the yard where he was injured. His observation covered a period of but ten days, while that of his witness Kelley covered a period of five or six campaigns, of his witness Le Mere, from the time the sugar company started operations, and his other two witnesses an indefinite but apparently extended period.
It is unnecessary to consider defendant’s evidence upon the point which was to the effect that, after the original warning, a man was never sent in ahead of a train being backed in on an empty track. A brakeman was always placed upon the front end of the forward car to see that the track was clear. The most that can be said of plaintiff’s evidence, taken as a whole, is that sometimes the defendant sent a man in advance of a train being backed in and sometimes stationed a brakeman upon the front end of the forward car. This situation was not such a one as would warrant plaintiff in the belief that he would be personally notified of the approach of an oncoming train by a man sent in advance. It is undisputed that an effort was made by the brakeman to warn him. This warning proved abortive either because of plaintiff’s deafness or because of the noise caused by dumping stone into the lime kiln.
A custom must be certain, uniform, and invariable. It must also be notorious; that is, known to all persons of intelligence having to do with the subject to which it relates. Ledyard v. Hibbard, 48 Mich. 421 (12 N. W. 637, 42 Am. Rep. 474); Black v. Ashley, 80 Mich. 90 (44 N. W. 1120); Chicago, etc., R. Co. v. Lindeman, 143 Fed. 946, 75 C. C. A. 18.
As defendant’s negligence rested alone in a breach of an alleged custom which plaintiff failed to establish, we must hold that he failed to introduce any evidence tending to establish negligence on the part of defendant, and that therefore a verdict should have been directed in defendant’s favor.
Judgment is reversed, and there will be no new trial.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
-28,
-13,
14,
-2,
-15,
5,
4,
-24,
4,
48,
35,
-19,
14,
17,
-31,
-20,
-1,
-35,
-72,
-23,
7,
-10,
-5,
-36,
-9,
-12,
-43,
-18,
-1,
30,
49,
14,
17,
-39,
-11,
43,
57,
-15,
49,
35,
47,
52,
-16,
-51,
2,
10,
12,
5,
4,
-19,
48,
19,
16,
-16,
28,
24,
3,
31,
16,
6,
-5,
-30,
32,
-29,
-26,
29,
37,
24,
-71,
-18,
-76,
22,
4,
5,
15,
-21,
-3,
55,
-15,
-21,
1,
0,
10,
-70,
8,
17,
-31,
-36,
-33,
-27,
27,
17,
-52,
-9,
-6,
37,
1,
25,
-4,
-9,
-8,
31,
-14,
-22,
-30,
-18,
-15,
-28,
-9,
9,
32,
24,
0,
-19,
-13,
-11,
14,
-36,
-2,
37,
59,
-40,
31,
-6,
-14,
-6,
65,
7,
-60,
19,
46,
-6,
-17,
7,
40,
-31,
8,
-48,
4,
-2,
-11,
45,
29,
-14,
-19,
-32,
7,
62,
-11,
-24,
46,
19,
-10,
-113,
-9,
-29,
6,
-38,
38,
4,
49,
41,
2,
28,
-46,
18,
-17,
6,
-3,
4,
-2,
0,
64,
-34,
35,
15,
4,
-22,
-58,
-26,
-4,
5,
48,
-31,
-35,
-31,
-21,
-15,
-33,
-6,
2,
34,
12,
-10,
0,
-2,
0,
-37,
19,
5,
28,
10,
-40,
22,
-67,
13,
0,
8,
-2,
26,
-27,
22,
-48,
-16,
-18,
-33,
-2,
-7,
4,
-2,
5,
-30,
18,
-36,
-14,
-22,
-61,
-29,
13,
36,
-2,
-16,
23,
19,
-7,
-33,
17,
-27,
40,
10,
71,
-22,
4,
-36,
2,
-8,
10,
-14,
-20,
-25,
-7,
5,
-10,
-31,
2,
-23,
24,
26,
-48,
-37,
39,
60,
-26,
35,
41,
6,
24,
19,
11,
-6,
-22,
-14,
45,
2,
-26,
-17,
0,
2,
3,
46,
-4,
33,
-13,
25,
-44,
-19,
-20,
17,
7,
26,
68,
-59,
-24,
55,
25,
81,
35,
19,
-61,
-19,
72,
-21,
-7,
20,
-10,
28,
-63,
12,
-46,
43,
-14,
-13,
-1,
-12,
44,
25,
-9,
0,
14,
-44,
-85,
24,
5,
-32,
-10,
21,
23,
-46,
11,
-24,
27,
29,
-2,
20,
52,
-4,
18,
2,
-3,
2,
-25,
43,
19,
-5,
-9,
7,
30,
5,
-31,
-14,
24,
8,
49,
-61,
-10,
7,
-16,
-84,
3,
23,
38,
-71,
0,
35,
0,
-22,
-20,
0,
-50,
38,
48,
-67,
-1,
-32,
-32,
-32,
29,
31,
-1,
55,
-21,
-23,
9,
-59,
-33,
-19,
-80,
-27,
-46,
62,
-35,
-22,
38,
13,
-58,
11,
-6,
54,
-12,
-3,
-29,
11,
-41,
-28,
20,
7,
0,
-40,
-18,
-1,
-62,
42,
18,
12,
8,
-25,
28,
-3,
-10,
-16,
18,
9,
38,
14,
-1,
21,
-11,
9,
6,
0,
30,
-48,
46,
-16,
-39,
-6,
20,
-67,
-11,
-20,
-49,
-42,
-4,
1,
-11,
39,
-34,
-4,
23,
-5,
64,
-28,
28,
0,
14,
13,
13,
-14,
-14,
26,
19,
-1,
-5,
44,
-2,
-41,
0,
-55,
34,
-14,
21,
4,
0,
31,
-31,
-12,
-15,
51,
-20,
-3,
-42,
3,
7,
-29,
-36,
-43,
-22,
-46,
66,
40,
41,
58,
-50,
-33,
-13,
-33,
-45,
-31,
-24,
42,
-15,
-1,
13,
-20,
61,
-1,
18,
-22,
0,
20,
-6,
14,
21,
0,
2,
-8,
-48,
-12,
-32,
-5,
31,
-29,
-24,
-20,
-42,
-1,
-10,
-35,
6,
-50,
41,
23,
58,
16,
43,
38,
-14,
-33,
-6,
-33,
-5,
46,
-17,
-40,
39,
-34,
7,
3,
25,
-25,
14,
34,
-5,
-20,
17,
-28,
-12,
33,
-5,
0,
25,
24,
44,
7,
58,
16,
-12,
21,
63,
-37,
-34,
25,
2,
-22,
-50,
56,
5,
18,
-53,
-40,
3,
17,
-4,
-20,
-8,
-10,
5,
-28,
10,
-35,
-15,
6,
19,
9,
26,
-25,
20,
8,
16,
35,
18,
-37,
-30,
8,
29,
8,
-23,
3,
4,
5,
-7,
-16,
-22,
19,
-11,
-11,
-20,
0,
51,
-19,
-33,
-15,
-35,
26,
20,
-22,
-17,
60,
-10,
-43,
-48,
27,
-68,
11,
-8,
37,
3,
-6,
-5,
8,
29,
-4,
40,
-33,
34,
-64,
-59,
24,
-15,
28,
-30,
38,
9,
-13,
-14,
12,
13,
32,
-69,
-28,
-25,
-25,
-3,
-16,
-42,
-17,
-28,
-21,
16,
3,
29,
-14,
8,
52,
7,
-10,
-7,
-1,
-17,
1,
1,
-24,
18,
-72,
-25,
-13,
-27,
26,
57,
-37,
-27,
-4,
20,
8,
12,
5,
52,
-18,
4,
15,
-31,
-37,
26,
11,
-22,
-13,
9,
-10,
33,
56,
19,
59,
19,
-7,
32,
31,
12,
0,
-56,
-25,
39,
-14,
12,
-11,
82,
29,
47,
-18,
3,
-19,
22,
31,
-27,
3,
-9,
-8,
63,
-31,
-19,
13,
6,
22,
34,
1,
-3,
21,
13,
12,
8,
54,
11,
-29,
21,
-6,
45,
20,
-16,
14,
-5,
-44,
20,
-29,
-12,
-26,
2,
26,
-28,
11,
9,
-45,
-12,
-29,
-3,
-31,
-28,
64,
24,
-23,
15,
45,
-3,
14,
-21,
35,
-4,
-25,
-13,
25,
20,
8,
19,
11,
3,
0,
23,
-16,
-29,
-45,
7,
11,
-22,
-29,
1,
42,
8,
-14,
44,
37,
34,
-38,
17,
-11,
-41,
0,
-31,
7,
11,
38,
-16,
40,
-7,
98,
10,
-29,
-10,
1,
8,
-67,
34,
-17,
17,
-23,
0,
61,
-48,
11,
25,
0,
-11,
-8,
42,
26,
-11,
2,
34,
-3,
-24,
30,
35,
23,
-13,
23,
-29,
-30,
-5,
-22,
-2,
-32,
-17,
50,
-50,
-24,
-56,
-17,
-9,
-74,
-58,
16,
4,
-43,
24,
52,
7,
3,
-49,
-13,
7,
-31,
1,
16,
22,
-54,
34,
70,
-15,
-39,
-42,
-33,
32,
-15,
-13,
16,
-11,
19,
-29,
-38,
-14,
23,
2,
14,
-18,
17,
-44,
11,
4,
-31,
-15,
10,
-70,
27,
4,
17,
-16,
-26,
20,
58,
-37,
2,
22,
-1,
39,
35,
0,
0,
-9,
50,
-2,
6,
12,
43,
5,
-38,
23,
-12,
52,
0,
-10,
-52,
5,
-15,
-26,
1,
-62,
51,
10,
-26,
-21,
41,
-22,
16,
0,
28,
-27,
22,
14,
-16,
-26,
2,
-26,
28,
-5,
19,
35,
1,
54,
-6,
7,
-13,
-28,
10,
17,
-14,
12,
-29,
50,
16,
7,
3,
-40,
25,
28,
-1,
15,
36,
16,
-40,
-11,
-27,
-44,
14,
-9,
2,
-35,
27,
-35,
-27,
-39,
-2,
11,
-1,
-2,
-24,
-18,
10,
27,
-10,
27,
69,
-65,
-3,
-51,
60,
14,
37,
19,
28,
-34,
-36,
-32,
-30,
22,
67,
56,
10
] |
Kuhn, J.
The defendant operates an iron mine at Ironwood, Mich., with the customary shafts, drifts, levels, sublevels, chutes and raises. From one of the main drifts, or levels, known as the fifteenth level, a perpendicular shaft, or raise, had been constructed, reaching upward to a drift 47 feet above, which was known as the forty-seventh sublevel. Mining operations were going on in this sublevel, and the raise in question had been constructed as a chute through which ore was dropped to the level below. It was divided by a partition into two perpendicular compartments, and, when the ore clogged in one of these compartments, a workman might be let down into the other to loosen the ore by pounding on the partition between.
At the time of the accident, the plaintiff, who had worked in mining operations for about two years, was employed as a marker on the top of this raise on the-forty-seventh sublevel. It was his duty to mark how much ore the miners brought in and help the trammers turn the car on the turntable, keep the table free of dirt, and open the door of the car. He had been at this work one day, and was told by the shift boss to continue the work on the second day. The chute became clogged, and it is the claim of the plaintiff that the shift boss ordered him to go down the chute and loosen the ore, and that a rope was tied around his body and he was lowered down the larger side of the raise; that he was given a four or five pound hammer with which he was instructed to pound upon the dividers; that he had never done this work before; that no warning of the danger was given him; and that, while engaged in this work and suspended about ten feet from the bottom of the raise, the clogged ore started to run in the opposite compartment, and some of the dividers near the middle of the ore chute broke through, and ore, together with some of the dividers, fell, through the opening thus made, upon the plaintiff and caused the injuries of which he complains, and for which the jury awarded him damages in the sum of $5,000.
One of the grounds of negligence which were submitted to the jury was the claimed defective construction of the raise in question. Plaintiffs declaration describes the construction as it was, and as it is claim- • ed it should have been, as follows:
“That said raise was of great size, to wit, 4 feet wide by 7 feet in length on the inside, and extending, to wit, from said fifteenth level, a distance of, to wit, 50 feet, upward to a certain sublevel therein, and was made and constructed by making an excavation or hole upwards from, to wit, said fifteenth level, and placing timbering, called cribbing, inside of said hole, to wit, 8 feet in length lengthwise, and 4 feet, in length crosswise, which cribbing was and is from 6 to 12 inches in diameter, and for the purpose of dividing said raise into two compartments, or holes, the defendant undertook to make a dividing or partition wall within the rectangular space formed by the inside of said cribbing, so constructed therein, as aforesaid. That defendant constructed said partition or dividing wall in said raise in the following manner, to wit: By nailing or spiking cleats of, to wit, two pieces of plank and lagging, about 4 or 5 inches apart, upward and downward on the inside of the timber or cribbing in said raise, and on opposite sides thereof, and then placing across said raise, so that the ends thereof would come within the said 4 or 5 inch space between said cleats of plank and lagging, certain lagging, to wit, cedar and other lagging, from the top to the bottom of said raise, and in this manner: Divided said inside space into two holes or compartments — and at the top of said raise, to wit, on said sublevel, defendant so built, constructed, and arranged tracks, platforms, and turntables that cars used for transporting or tramming ore in said mine could be conveyed to, and their contents dumped in, said raise, and so built and constructed an opening at the bottom of said raise, known in mining parlance as á ‘chute,’ that ore dumped in said raise, in said sublevel, could be taken, therefrom through said chute at the bottom thereof. That, in the use of such raises in like mines as said Newport mine, ore is qt times dumped therein in such quantities as to fill,, or partially fill, such raises, and at times such ore becomes clogged therein at divers points above the bottom thereof, while that part near the bottom thereof runs, and is taken out, through the chute at the bottom thereof, and there remains in the bottom of such raise a vacant space in one of the chambers of such raises, and it becomes necessary in order to loosen such ore, so clogged, as aforesaid, and to cause it to pass through such raise, for some person to descend into one hole or chamber of such raise and loosen such clogged ore and matter in the opposite chamber by striking upon the dividing or partition wall, producing a vibration, and thereby loosening and liberating the ore and matter in the opposite chamber, and causing it to fall to the bottom thereof, so that it can be taken therefrom through the chute therein; and that the work and operation of so descending into such chute and loosening and liberating such clogged ore is of an unusual and exceptional nature, and highly dangerous and perilous to the person performing the same, and great skill and experience is required in such person in order that he may escape injury while so doing. That the proper and safe way to build and construct such raises, and to place such partitions or dividing walls therein, is to build and construct the outside wall of such raise with good, strong, sound, and heavy timber, and to place crosspieces of like timber, securely set and placed into notches, grooves, or pockets made on the inside of such outside timbers, at distances of from 3 to 4 feet apart, and then to strongly and securely spike strong, sound, and heavy timber upward and downward at right angles with such crosspieces, on the side (or sides) of such raise, which is to be used as an ore compartment therein, but the plan and manner under which said 15 raise was constructed was and is of an unsafe, insecure, and dangerous kind and character, and it was and is extraordinarily dangerous and hazardous for any person (and especially an unskilled person) to descend therein and perform the work and operation of loosening and dislodging ore, as aforesaid, and such operation in such raise as said 15 raise was and is of a much more highly dangerous, perilous, and hazardous nature than to perform a like operation in a raise properly built, as aforesaid; and the timbers (both outside timbers and cross timbers) in said 15 raise were not of a sound, strong, secure, and proper kind, or of sufficient size and strength for use in such a raise, being, to wit, too small, weak, rotten, unsound, defective, and unrealiable for such use, which greatly increased such danger to such person so descending therein — all of which was at and at all times prior to the time of the occurrence of said injuries well known to the defendant, but unknown to the plaintiff, as the defendant well knew, or should have known.”
Counsel for appellant has grouped the legal questions raised by proper assignments of error as follows:
(1) Admission of expert testimony relative to the method of constructing raises.
(2) The admission in evidence of the table of mortality.
(3) Instructions in reference to future suffering, future expenses, and future loss of time and earnings.
(4) Excessiveness of verdict.
(5) Improper assumption in the judge’s charge of a fact which is contradicted by the testimony and the pleadings.
(6) Verdict contrary to evidence.
(7) Question of fellow-servants and safe place to work.
The first question relates to the qualifications of witnesses Kilponen and Koski to testify-' as experts as to the proper construction of raises in mines. Kilponen had worked as a miner for oven ten years, and his work had been building raises. He illustrated how the raise should be properly constructed by drawing a diagram on a blackboard. No question was asked him on cross-examination as to his qualifications, and the objection chiefly urged against his testimony is that he was allowed to testify as follows:
“Q. Have dividers been customarily put in in that way for the past six years in this vicinity, with the joggle in?
“Mr. Norris: That is objected to as incompetent, irrelevant, and immaterial and not a subject of expert testimony.
“Mr. Driscoll: I think he can testify as to the custom.
“The Court: Take the answer.
“Mr. Norris: Exception.
“The Witness: A. Yes, in all the mines; in all the Oliver Company mines. The reason that the joggles are put in that way is because it makes it more solid and strong and won’t-slip off.”
No suggestion was made in the objection of counsel that witness had not sufficient knowledge of the custom to answer the question. The question called for competent, relevant, and material testimony, and no error was committed in permitting the answer. He further testified:
“It is necessary to have them strong and solid because lots of fellows have to be around there. Pipes run through, and there are pipe gang men. They have to be strong so that nobody won’t get hurt.
“Q. How would they get hurt if they were not strong?
“A. If the raise gets blocked up with ore and then loosened, its heavy weight will break it or push them out, if the chute is blocked up.
“Q. What I want to know is whether it will do that with a chute that is properly built?
“Mr. Norris: The last objection is renewed.
“The Court: Answer the question.
“Mr. Norris: Exception.
“The Witness: A. No, sir; it won’t if it is correctly built. Where dry, soft ore is being run through a raise, and the raise has not been used to exceed about a month, the timbers would not rot within that time.”
We cannot see how allowing the answers was prejudicial to the defendant, as both the defendant’s mine captain and shift boss testified that, in order to withstand the strain, it was necessary to have the dividers strong and of proper length and firmly set against the opposite sides of the raise.
The witness Koski testified that he had worked in at least five different mines in the vicinity of defendant’s mine; that he had built and helped build raises, but not before 1909; that he knew how raises were customarily built before that time, as he had been going through such raises three or four years before and had examined them to see how they were built. The testimony which gave rise to the objection was as follows:
“Mr. Driscoll: Q. Do you know how raises were built in 1909 and prior thereto?
“A. I have not been building them myself, but I have seen.
“Q. Then do you know how they were built?
“A. I saw it that they were built the same way as—
“Mr. Norris: Wait a minute; I object to that, if the court please. That question only calls for yes or no.
“The Witness: A. Yes.
“Mr. Driscoll: Q. Now, I ask you how they were built at that time?
“Mr. Norris: I object to that, if the court please, because the only evidence of this man himself as to his observation is simply that he went through them.
“The Court: You may take the answer.”
The witness thereupon made a drawing on the blackboard and described the construction.
“Q. Why are joggles put in those dividers?
“Mr. Norris: I object to that because he has not shown himself competent to testify as to those things in 1909 or prior thereto.
“The Court: Take the answer.
“Mr. Norris: Exception.
“The Witness: A. Because it is more solid and stronger.”
Both Kilponen and Koski qualified themselves to the satisfaction of the trial judge to testify as to this construction, and, as both of these witnesses were miners of practical experience, we are of the opinion that no prejudicial error was committed in allowing the questions and answers objected to. 17 Cyc. p. 239; Bettys v. Denver Township, 115 Mich. 228 (73 N. W. 138).
The objection to the admission of the mortality tables is based on the claim that there was no. evidence to show permanent disability. At the time of the accident, plaintiff was 23 years of age, sound physically, and in good health. As a result of the accident, his right leg was broken, there has been a shortening of about three-quarters of an inch, and also a limitation in the movement of his knee joint, which the physician testified will be permanent to some extent. Plaintiff also claimed that his face was swollen, his lips smashed, so that he could not eat solid food for weeks, and still show a scar about an inch long; that he was in the hospital five months lacking two days; that since the injury he has headaches, stomach and bowel trouble, and suffers pain, not only in the broken limb, but in his side; that he is unable to do hard work, such as mining, and the work that he does is attended with pain. There can be no question from this record that his leg is permanently injured, and it was therefore not error to introduce the mortality tables in evidence. Haines v. Railway Co., 129 Mich. 475, 479 (89 N. W. 349).
We are also satisfied that the testimony offered to show the injuries was sufficient to support the in structions of the trial judge with reference to future suffering, future expenses, and- future loss of time and earnings. Kuney v. Butcher, 56 Mich. 308 (22 N. W. 866) ; Olson v. Village of Manistique, 110 Mich. 656 (68 N. W. 986) ; Styles v. Village of Decatur, 131 Mich. 443 (91 N. W. 622).
The part of the judge’s charge which is criticised as assuming a fact which is contradicted by the testimony and the pleadings is the part in which the court stated to the jury the claim of the plaintiff, which it was proper for the court to do, as the claim stated was supported by evidence. Schweyer v. Jones, 152 Mich. 241 (115 N. W. 974).
We are also of the opinion that the doctrine of safe place applies in the instant case. The plaintiff had nothing to do with the building, inspecting, or repairing of the raise, and he claims he was ordered to do this work by the shift boss, without any warning of the danger, and that he did not know of any danger. The duty to furnish a safe place was a duty which could not be delegated by the master; nor can it be said that the plaintiff assumed the risk. See Orso v. Engineering Works, 164 Mich. 568, 571 (129 N. W. 673), and cases therein cited.
The trial judge properly denied the motion for a new trial. We are satisfied that the evidence was sufficient to sustain the verdict and the amount thereof.
Judgment affirmed.
McAlvay, C. J., and Brooke, Stone, Bird, Moore, and Steere, JJ., concurred with Kuhn, J.
Ostrander, J.
In my opinion the testimony of the witness Kilponen as to the custom of using or putting dividers in Oliver Company mines was incompetent. | [
7,
9,
-21,
-38,
21,
18,
6,
15,
-4,
51,
14,
31,
45,
-45,
12,
-24,
-18,
-66,
-47,
27,
-10,
-55,
15,
25,
-27,
-13,
-12,
-45,
-29,
52,
-50,
14,
-17,
11,
-37,
23,
2,
2,
-22,
-52,
-6,
21,
13,
-9,
12,
33,
37,
-19,
17,
13,
66,
22,
29,
-7,
-4,
9,
0,
13,
18,
20,
11,
-30,
3,
12,
61,
42,
21,
-8,
-25,
-10,
-64,
61,
-18,
18,
-19,
-11,
-34,
54,
-41,
16,
-42,
-4,
25,
-17,
-7,
40,
-36,
16,
-31,
13,
26,
-32,
-25,
12,
-9,
32,
-21,
30,
-85,
31,
22,
70,
2,
-17,
6,
-9,
46,
0,
36,
0,
-25,
16,
23,
-2,
-12,
-27,
16,
-26,
-8,
43,
30,
-37,
40,
8,
-34,
-45,
-21,
-24,
-19,
1,
3,
3,
-52,
23,
-35,
-2,
7,
-35,
6,
11,
-27,
9,
0,
-3,
-13,
-6,
-28,
9,
29,
-17,
-59,
-18,
13,
5,
7,
-19,
-42,
6,
17,
20,
42,
4,
52,
15,
-53,
-37,
2,
-74,
-12,
-21,
6,
45,
10,
-55,
68,
26,
33,
0,
-41,
-10,
-17,
-7,
24,
26,
-50,
-21,
2,
-8,
37,
16,
6,
-35,
-27,
34,
-37,
1,
27,
-1,
47,
-18,
58,
-20,
-25,
13,
-12,
42,
-23,
13,
-9,
-6,
22,
51,
-33,
-2,
-60,
25,
-34,
-23,
26,
-64,
-22,
-22,
8,
0,
-20,
-3,
-25,
29,
79,
-34,
10,
-38,
68,
-2,
-4,
-54,
58,
-18,
63,
-62,
0,
-31,
-54,
-41,
-26,
-11,
-24,
-45,
-18,
29,
-5,
2,
-27,
-16,
-32,
-30,
-41,
25,
-35,
-28,
23,
13,
18,
69,
39,
29,
-55,
47,
-56,
-73,
25,
16,
70,
-15,
-58,
-18,
17,
69,
23,
18,
10,
38,
-27,
10,
-40,
35,
-48,
-9,
-53,
-17,
18,
-22,
14,
-34,
38,
29,
24,
-3,
-4,
11,
1,
-17,
-25,
-46,
24,
83,
-31,
-16,
16,
10,
20,
-37,
12,
38,
28,
28,
24,
-6,
-30,
-21,
-9,
-4,
-23,
-2,
-15,
-23,
9,
8,
52,
15,
-24,
-9,
28,
5,
-12,
-69,
7,
36,
-14,
-15,
-7,
21,
16,
-11,
-28,
-11,
1,
15,
22,
-46,
30,
-4,
39,
-13,
48,
11,
27,
-23,
22,
39,
6,
-32,
3,
19,
-28,
-73,
-32,
-56,
19,
46,
-38,
11,
33,
-1,
19,
-53,
-24,
55,
-12,
58,
5,
75,
86,
-36,
-13,
16,
22,
13,
-52,
9,
-43,
-12,
41,
36,
3,
9,
9,
-14,
11,
-5,
4,
-4,
14,
-32,
2,
-19,
-6,
-28,
33,
-32,
-23,
38,
16,
-20,
-7,
-33,
81,
30,
-20,
64,
68,
-25,
11,
-28,
24,
-30,
8,
-19,
3,
-8,
-25,
18,
39,
-39,
12,
-58,
-6,
20,
-34,
-16,
-77,
-45,
21,
-28,
25,
-13,
-43,
17,
48,
-65,
-51,
-1,
19,
4,
2,
18,
1,
-21,
19,
28,
-45,
-12,
8,
-6,
13,
-59,
21,
-8,
48,
31,
-1,
0,
8,
15,
40,
-21,
32,
1,
7,
-13,
36,
87,
11,
-21,
-49,
-56,
52,
17,
23,
62,
25,
44,
-22,
-68,
11,
26,
-48,
51,
33,
5,
-74,
-16,
14,
-21,
38,
37,
18,
-14,
-46,
29,
-31,
4,
33,
35,
0,
21,
-20,
21,
-16,
3,
-6,
-9,
-20,
60,
0,
-25,
-60,
-27,
1,
-38,
44,
-62,
38,
7,
25,
-6,
-14,
-40,
-62,
-19,
-2,
-33,
49,
11,
-16,
3,
-13,
-26,
21,
33,
26,
-16,
35,
28,
-8,
2,
0,
-21,
-17,
-107,
-24,
26,
-25,
7,
35,
15,
2,
-6,
37,
-35,
-24,
47,
15,
20,
-20,
-37,
-21,
52,
-24,
32,
8,
-27,
27,
5,
-55,
-6,
9,
-7,
24,
15,
-10,
-22,
27,
39,
27,
-30,
-14,
51,
56,
-26,
-2,
-38,
-39,
-11,
35,
-15,
6,
0,
11,
5,
15,
-47,
-18,
-17,
-27,
3,
-24,
-14,
59,
23,
25,
8,
-32,
-4,
-19,
7,
5,
-2,
-47,
-62,
-28,
-10,
-47,
2,
-4,
-22,
26,
60,
0,
21,
31,
-20,
20,
-11,
-53,
-67,
19,
34,
-38,
9,
-19,
30,
25,
1,
46,
-13,
-40,
-14,
-43,
-69,
-5,
66,
-11,
31,
-60,
28,
-40,
-36,
24,
-42,
2,
25,
0,
-2,
-5,
-17,
22,
2,
-38,
-61,
-29,
0,
48,
-7,
-17,
11,
9,
57,
-7,
-54,
-19,
61,
4,
21,
-18,
42,
52,
-4,
10,
-62,
-66,
9,
34,
14,
7,
-9,
23,
-40,
-15,
11,
-4,
12,
27,
21,
20,
11,
-39,
-34,
-31,
-40,
39,
-56,
45,
-12,
16,
24,
27,
38,
-9,
28,
-13,
-12,
-25,
16,
32,
0,
-32,
35,
-25,
8,
52,
-28,
-15,
-1,
22,
18,
79,
7,
-31,
-24,
-8,
42,
-41,
-14,
2,
-71,
25,
9,
-28,
6,
22,
-3,
12,
-49,
-14,
-33,
-24,
-36,
28,
-26,
-29,
38,
-3,
18,
24,
21,
-33,
-23,
15,
25,
30,
-2,
57,
-31,
-40,
-19,
27,
4,
43,
30,
-29,
-24,
-2,
16,
0,
-14,
-19,
0,
-3,
8,
21,
-13,
-8,
20,
37,
-1,
64,
-39,
3,
-32,
35,
17,
-17,
4,
9,
13,
-7,
23,
-38,
41,
-24,
35,
-24,
-72,
-27,
-21,
1,
-36,
29,
-1,
23,
8,
-20,
-11,
59,
-32,
12,
-39,
-41,
8,
45,
-5,
2,
6,
40,
-49,
-38,
12,
-13,
44,
-46,
-30,
13,
-28,
0,
20,
7,
13,
-13,
7,
12,
-16,
-82,
37,
-5,
-32,
-40,
58,
-33,
-16,
45,
-1,
-12,
19,
-44,
25,
-54,
-33,
-2,
3,
-24,
7,
33,
3,
16,
-48,
9,
-36,
22,
43,
-51,
23,
13,
-14,
3,
-17,
0,
0,
-49,
-26,
22,
82,
10,
38,
31,
-46,
-26,
-44,
-38,
17,
-28,
-5,
3,
19,
-14,
69,
-27,
43,
-2,
39,
-8,
7,
55,
-6,
12,
-4,
19,
16,
-37,
54,
-13,
-25,
85,
-38,
40,
51,
-7,
-76,
-62,
36,
-4,
-13,
-34,
29,
1,
-39,
21,
-50,
18,
39,
17,
10,
32,
6,
15,
-69,
-17,
-25,
-11,
-52,
11,
14,
47,
33,
19,
-27,
17,
-40,
-24,
-64,
31,
6,
-33,
-31,
42,
-6,
-1,
18,
4,
-36,
13,
-62,
30,
-9,
35,
-42,
-39,
-26,
44,
42,
-26,
13,
-21,
54,
3,
2,
10,
-15,
0,
15,
10,
-20,
-14,
13,
14,
72,
30,
7,
-9,
16,
-26,
-10,
-20,
31,
27,
78,
-69,
-51,
40,
-54,
90,
18,
-9,
25
] |
Kuhn, J.
The plaintiff was employed as a common laborer by the city of Boyne City to work in the construction of sewers, and on August 30, 1910, he was injured by the caving in of the earth while engaged in this work. The defendant, a regularly licensed physician and surgeon in the general practice of medicine and surgery in Boyne City, was called to the plaintiff’s residence, and found him suffering from an oblique fracture of the left clavicle. It is the claim of the plaintiff that the defendant did not reduce the fracture properly; that there has been no proper union of the bone; that there has been a shortening of the bone; and that, as a result, the use of his arm is greatly impaired. A suit for malpractice was brought, and a verdict and judgment for $1,080 was had. Defendant brings the case to this court by writ of error.
The first contention argued by defendant’s counsel in his brief is that the court erred in overruling defendant’s motion for a directed verdict, and it is insisted that there was no question of fact to submit to the jury. The plaintiff’s claim'is, and he supported it by his own testimony and that of two others who were present, that when the defendant came to the house all he did was to pick up plaintiff’s arm and place it diagonally across plaintiff’s breast so that the points'of the fingers of the left hand were against the lower part of the right shoulder, above the armpit and below the top of the shoulder; that thereupon he applied bandages, which the defendant claims was done in the approved method known as Sayre’s dressing, but, it is claimed by plaintiff, was not done as Sayre’s method requires. Whether the defendant was negligent in that he did not use a proper method in reducing the fracture presents the question in issue in this case.
The following hypothetical question was asked of Dr. Shaver, a witness produced on behalf of the plaintiff:
“If a man 52 years of age was injured by the caving in for a sewer in which he was working, and taken directly to his home and within an hour from the time of the injury a doctor was called and diagnosed the injury as a broken clavicle of the left shoulder, and thereupon proceeded to reduce the fracture by placing the left forearm diagonally across the breast in such position that the ends of the fingers of the left hand reached the front of the right shoulder between the armpit and the top of the shoulder, the ends of the fingers reaching the shoulder joint, and securing the arm by means of bandages, would this treatment properly reduce the fracture and secure a union of the fractured ends of the clavicle, in your opinion?
“A. In my opinion, no.”
This hypothetical question is based upon what the lay witnesses testified was done by the defendant when he put on the bandages. It is urged that the question is incomplete, and so insufficient as to have no value in assisting the jury in determining the defendant’s responsibility. The question does not contain what the defendant claims he did in reducing the fracture, but does state substantially what plaintiff claims he did, as testified to by the witnesses present. Dr. Marshall described the proper method to be used in reducing such a fracture, as follows:
“In reducing the fracture and overcoming the deformity present in the case of a fractured clavicle, we have the shoulder pulling the outer fragment down and the muscles of the chest pulling it in. These two forces must be overcome by some method of lifting up the shoulder and pulling it outward to overcome the muscles in the chest that are bringing it in. The particular method may vary. Personally, I have them sit in a chair and have an assistant pull back the shoulder while I put on the dressing, or some form of retentive apparatus is usually applied, and that varies with the particular surgeon’s wishes. Some use one form and some another. No matter what method is employed, the object to be attained in order to get the bones in apposition is to overcome the tendency of the muscles to draw the shoulder inward and the weight of the shoulder to hold it down. It is necessary, in order to get the bones in apposition, that the tendency of the muscles to draw the shoulder inward and the weight of the shoulder to hold it down be overcome. The clavicle acts as a brace, and when the brace is broken the shoulder swings forward. The ends then override or pass each other, if it is a complete fracture. It is necessary to get the ends of the bone together, and to do that, the shoulder must be put back there. And no matter what system is used, all systems must get the ends of these bones together, and under the circumstances, they can’t come together unless the shoulder is held back or put back. When the shoulder is placed back and the bones are nearly in apposition as the physician can get them, then the immediate problem is to hold the shoulder there. In order to do that some kind of retentive apparatus is used. In Sayre’s method the idea is to fasten the arm back and lift the elbow. One strip is put on the arm and attached to the back, and then, using that as a fulcrum, the point of the elbow is brought forward by another piece of plaster and passed over the shoulder.”
The testimony of the experts being based on the testimony of plaintiff’s witnesses, it was proper to have their answers stand. The question of the value of their evidence and that of the other witnesses for plaintiff was for the jury, and was properly submitted by the trial court. Fye v. Chapin, 121 Mich. 675 (80 N. W. 797).
It is contended that there is a fatal variance between the declaration and the attempted proof of a want of proper union of the broken ends of the plaintiff’s clavicle. The declaration charges:
“The said defendant then and there so negligently, carelessly, and unskillfully behaved and governed himself, in and about the care of said plaintiff, and in and about the setting, treatment and care of said collar bone or clavicle, disrupted, fractured, wounded, and bruised, in not properly setting the same, and not using the proper care, attention, medicaments, appliances, and skill in the treatment of said collar bone or clavicle, that by and through neglect, carelessness, default, and the unskillfulness of said defendant, as such physician and surgeon, the said plaintiff was, and still is, caused to suffer great and excruciating pain in his shoulder, and his said shoulder was caused to become greatly swollen, inflamed, and .diseased, to an unnecessary extent, and the bones so disrupted, broken, fractured, wounded, and bruised, were caused and allowed to override and overlap, and the said shoulder to become greatly deformed and diseased, and does still so remain, and the general health of the said plaintiff greatly impaired, weakened, and ruined; * * * yet the said defendant did so negligently, unskillfully, and carelessly treat the said plaintiff that by reason of his neglect, unskillfulness, and carelessness, and by reason of his failure to put the bone or bones of said shoulder properly in apposition, and to use the proper means for so placing and keeping said bones in apposition, and by reason of his failure to use the proper appliances, at the proper time, in the treatment of said shoulder, and also by reason of the gross neglect and inattention of the said defendant in not thoroughly examining and properly treating the shoulder of said plaintiff, his said shoulder became useless and diseased, and is left uncured,” etc.
It is the plaintiff’s contention that the false or fibrous union shown by the proofs is the natural result of imperfect apposition, as set forth in the declaration, and that it was therefore not necessary to specifically allege it. This is supported by the testimony of the physicians, who testified that the first step in the treatment of such a fracture is to get the ends of the bone together and keep them there, if possible, and, unless this is done, no perfect union results. We think the declaration was sufficient to warrant receiving this evidence, under authority of Groat v. Railway, 158 Mich. 165 (116 N. W. 1081), and cases cited therein.
Complaint is made that the court erred in submitting to the jury the question of compensation for extra pain and suffering. With reference thereto the court said:
“For the pain and suffering which the plaintiff would have actually sustained by reason of this broken clavicle and its treatment, if properly treated, he cannot recover in this case, because the defendant is not responsible for that; that he had to sustain anyway. But for the pain and suffering which was extra, if any, which was caused by the defendant, plaintiff can recover, and only so much as was caused by defendant, that which has already been sustained by him, and that which he will sustain in the future, if you find that he will sustain pain in the future. You will see that it is any extra pain and suffering which he would not have sustained had it been correctly treated for which he can recover.”
Under the issue in this ease, it was entirely proper to submit this question to the jury.
We have examined the other assignments of error, but find them without merit. The learned trial judge submitted the case to the jury in a careful charge, and, finding no prejudicial error in the record, the judgment of the trial court is affirmed.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
-13,
44,
-4,
35,
-47,
12,
-4,
-9,
9,
19,
-23,
-3,
72,
-29,
-17,
-10,
-15,
-48,
-6,
16,
0,
-48,
0,
60,
-8,
-30,
8,
-47,
-12,
17,
9,
8,
26,
14,
-43,
46,
35,
0,
17,
5,
33,
21,
-22,
-8,
33,
11,
29,
-7,
-3,
25,
42,
-12,
19,
-30,
-51,
9,
74,
40,
-18,
-44,
-16,
-34,
-11,
-10,
65,
7,
-29,
23,
42,
-10,
-66,
45,
11,
-46,
-23,
-21,
-26,
13,
-1,
-9,
0,
27,
54,
-1,
-39,
57,
-60,
22,
3,
-28,
47,
-14,
48,
-11,
-19,
22,
-24,
47,
12,
1,
32,
13,
-61,
-17,
2,
18,
0,
-58,
66,
-4,
-29,
21,
3,
-7,
-6,
-104,
31,
-12,
9,
36,
-6,
29,
47,
-40,
21,
-1,
-7,
-59,
-30,
-46,
-9,
-19,
-36,
-2,
-2,
12,
-61,
7,
-15,
30,
-18,
-12,
-9,
16,
-9,
24,
-34,
-13,
21,
24,
-28,
22,
-17,
17,
-14,
41,
-69,
5,
14,
26,
22,
8,
42,
0,
-6,
5,
-59,
22,
16,
28,
22,
34,
32,
-63,
4,
9,
38,
-29,
-43,
8,
-8,
-24,
40,
10,
-13,
-11,
-14,
34,
49,
18,
-5,
11,
-72,
7,
-4,
8,
29,
-19,
49,
-33,
16,
4,
-1,
-5,
17,
-6,
7,
-14,
12,
33,
27,
13,
-28,
10,
7,
12,
44,
-22,
-68,
-34,
-14,
13,
-4,
-9,
-39,
16,
18,
14,
20,
-72,
22,
-14,
38,
15,
25,
28,
41,
-17,
57,
-14,
-30,
15,
-3,
-29,
-52,
-27,
-22,
-9,
-39,
-21,
-11,
0,
9,
29,
-71,
11,
-21,
37,
-59,
0,
23,
42,
-11,
88,
72,
2,
-26,
27,
-1,
-22,
-27,
-20,
63,
-15,
-56,
-39,
2,
10,
9,
28,
-44,
-12,
-25,
-9,
-20,
14,
-6,
10,
-29,
-5,
20,
-33,
2,
-53,
53,
0,
50,
0,
-50,
-39,
32,
-40,
-18,
-13,
48,
35,
-50,
26,
3,
-21,
-2,
-15,
-7,
14,
17,
21,
21,
26,
-6,
-16,
-37,
-24,
-42,
-11,
-69,
-17,
9,
-9,
-37,
1,
0,
20,
-4,
32,
-41,
-46,
21,
66,
-6,
-16,
1,
3,
25,
-27,
-45,
39,
10,
-9,
31,
-41,
10,
-9,
22,
7,
-3,
13,
20,
-25,
-4,
2,
40,
27,
8,
0,
-11,
-53,
-48,
40,
-38,
51,
-28,
6,
20,
-21,
11,
-37,
0,
41,
-57,
40,
-6,
10,
35,
-39,
-19,
29,
-19,
7,
-18,
-5,
-42,
-43,
61,
-7,
-15,
8,
-25,
-33,
-24,
-62,
-37,
-3,
15,
8,
-14,
23,
-24,
-40,
48,
-10,
13,
45,
41,
-3,
3,
-5,
57,
12,
-16,
0,
52,
0,
-2,
-26,
42,
8,
-13,
-30,
-12,
-71,
19,
17,
17,
-43,
48,
-29,
-27,
43,
-17,
-41,
-73,
-39,
17,
14,
26,
41,
22,
37,
49,
-47,
27,
20,
49,
43,
6,
10,
-40,
-33,
51,
-1,
-45,
-15,
-29,
-41,
47,
39,
-18,
-23,
1,
-8,
38,
-10,
38,
14,
25,
-12,
31,
18,
9,
22,
0,
-72,
-5,
-37,
-7,
-16,
15,
-10,
-21,
-42,
10,
15,
11,
-77,
-6,
9,
-75,
13,
2,
14,
-67,
-7,
-46,
-22,
34,
-49,
42,
-37,
-3,
23,
-88,
40,
-5,
-5,
-22,
-19,
43,
35,
-42,
34,
-16,
-34,
-49,
20,
-34,
-5,
-33,
35,
0,
-61,
48,
-47,
-57,
40,
2,
-35,
12,
-32,
-47,
-69,
-13,
-19,
83,
3,
29,
-50,
-10,
42,
-8,
15,
-15,
-8,
57,
-3,
31,
-28,
-8,
-18,
-12,
-34,
8,
17,
-6,
12,
54,
24,
52,
-4,
-17,
-27,
-33,
43,
5,
5,
-19,
-21,
-34,
32,
-23,
11,
5,
-30,
34,
24,
-66,
-16,
40,
-49,
24,
10,
-27,
20,
-43,
24,
-16,
-33,
-9,
12,
24,
3,
-38,
5,
-18,
33,
66,
-2,
-18,
40,
11,
0,
21,
-23,
-31,
-38,
-18,
-38,
-6,
12,
32,
37,
-28,
10,
-6,
33,
-13,
15,
-8,
-1,
-42,
-13,
22,
13,
-7,
-25,
-6,
-10,
0,
76,
20,
23,
8,
-12,
-37,
-4,
-71,
12,
57,
40,
-11,
-25,
-8,
16,
-7,
37,
0,
-23,
-13,
-21,
-48,
-16,
-35,
1,
-16,
-35,
-11,
55,
22,
25,
-7,
-43,
31,
47,
41,
-47,
28,
-22,
-17,
54,
32,
5,
11,
-34,
111,
4,
8,
-13,
9,
4,
17,
-9,
-23,
17,
40,
10,
38,
52,
21,
48,
-3,
-32,
-39,
9,
33,
36,
35,
-21,
24,
-21,
14,
-30,
53,
-45,
-52,
-1,
55,
11,
-11,
-11,
-7,
-17,
23,
-16,
22,
-10,
28,
7,
-14,
29,
-13,
3,
-35,
-45,
66,
5,
-12,
26,
-51,
25,
-35,
-53,
11,
-20,
-45,
-9,
18,
4,
2,
6,
-48,
26,
-26,
38,
-16,
-76,
1,
-55,
32,
-30,
-32,
20,
-11,
-18,
38,
-41,
-45,
-16,
11,
-17,
-64,
24,
15,
-2,
18,
-8,
28,
1,
-50,
-49,
-17,
19,
19,
-42,
45,
-8,
-86,
-19,
32,
12,
-8,
-19,
-8,
8,
-41,
-12,
24,
-12,
-54,
-14,
-7,
-36,
49,
37,
3,
16,
13,
-22,
13,
-13,
-14,
13,
18,
27,
5,
-1,
-11,
-40,
14,
-10,
-23,
25,
-10,
32,
-49,
-28,
31,
22,
-30,
-54,
21,
-24,
-8,
-33,
-12,
25,
80,
12,
-6,
55,
-63,
-8,
27,
37,
44,
13,
44,
-39,
-19,
8,
-29,
31,
-9,
-35,
14,
26,
41,
-13,
10,
5,
-9,
-27,
21,
-5,
-40,
0,
19,
39,
0,
0,
23,
-46,
19,
-8,
-11,
-69,
-38,
35,
-41,
-46,
100,
-3,
-46,
23,
5,
-4,
-3,
-21,
0,
-22,
5,
33,
6,
54,
6,
-3,
-7,
24,
-41,
46,
-11,
20,
3,
47,
37,
45,
20,
-16,
4,
2,
-73,
20,
1,
-4,
-19,
11,
16,
28,
19,
40,
-30,
29,
-15,
9,
49,
19,
-31,
0,
39,
0,
-40,
36,
44,
-27,
22,
-28,
84,
7,
16,
-50,
-18,
-22,
39,
45,
-38,
61,
-39,
-10,
0,
-50,
28,
58,
7,
49,
-16,
-6,
-6,
-31,
25,
22,
-6,
12,
53,
3,
-6,
38,
0,
53,
16,
-34,
-31,
-49,
16,
17,
-58,
-28,
0,
0,
-24,
12,
-1,
-3,
-26,
-51,
-10,
21,
-59,
-3,
-5,
-1,
-4,
-3,
-20,
17,
-27,
49,
-13,
-8,
-20,
-22,
9,
-4,
-24,
-8,
8,
69,
15,
-8,
48,
-39,
18,
-32,
23,
62,
30,
-34,
-1,
14,
-68,
5,
37,
17,
18,
-23,
9,
18
] |
Kuhn, J.
From a judgment entered on a directed verdict for the defendant, the plaintiff appeals. The plaintiff, 26 years of age, was a molder’s helper in the foundry department of defendant’s plant. While operating a circular ripsaw in the wood-working department, his left thumb and first and second fingers were severed at the knuckles. He had been employed about one year and nine months before the injury, and during the last nine months had frequently used the ripsaw, and occasionally during the first year. The plaintiff described the way in which the accident occurred as follows:
“I took a piece of plank, and I wanted to cut it in half, in one strip. Then I cut through half, and when I cut through about a half the plank started to jump. And when it began to jump then I held it down with my hand, so that it would not jump. And when I began to press down on the plank to hold it down it flew up, and as it flew up my hand came in contact with the saw and cut my fingers.
“Q. How long was it from the time the plank began to jump to the time you got your fingers cut?
“A. Not long. It began to jump, and right after it flew up.
“Q. Was it a minute, a second, or two minutes or three minutes?
“A. It was not even a minute.”
On cross-examination he stated that the saw had worked well, and that he did not know why the piece flew up, as it had never done so before. There had been a fire in the plant, which necessitated the purchase of a new ripsaw, and the saw on which the plaintiff was injured was installed in December, 1910; the injury occurring on July 24, 1911. Several other molders were sworn, who testified that while operating this saw at various times boards had jumped from the table. Plaintiff’s counsel state their position in this court as follows:
“First. That plaintiff should have been warned as to the erratic action of the saw, and that failure so to warn is evidence of negligence.
“Second. That the defendant should have provided the saw with a splitter or spreader in conformity to the general custom, and that failure so to do was evidence of negligence.”
It appears from this record that plaintiff had more knowledge of this saw than any other person who worked on it. For nineteen months he had used such a saw, and this particular saw for seven months of that time. He knew how to operate the saw, and knew of the dangers in connection with it. When he had operated it the saw had always worked well, and there had never been any trouble with it. He can give no reason why it did not work well when he was injured. The case comes within the ruling of the court in Berlin v. Mershon & Co., 132 Mich. 183 (93 N. W. 248). See, also, Bauer v. Foundry Co., 132 Mich. 537 (94 N. W. 9); Mushinski v. Vincent, 135 Mich. 26 (97 N. W. 43); Fryezynski v. Leather Co., 171 Mich. 113 (137 N. W. 56).
In his denial of a motion for a new trial, the learned circuit judge said:
“Now, what caused the jumping of this wood? Under the testimony this would come from a dull saw, a saw improperly ‘set,’ or not ‘set’ at all; from the wet condition of the wood; from a peculiar grain in the wood; and after the wood passed the saw from a lack of ‘spreader.’ Plaintiff showed there was no ‘spreader.’ But this device had not been ordered installed by the factory inspector, and it was not shown that its use was so general that its absence would be deemed negligence. As to the other possible causes of the ‘jump,’ there was no testimony at all, except of the one witness who expressed an opinion that the saw was dull. He did not say, nor was he asked, how he knew this, or when it was that he made the inspection which led to the opinion given. Plaintiff had no theory of how or what was the moving cause of the accident. He did not make out a case of negligence on the part of the defendant, unless it is to be assumed that the happening of an accident, coupled with testimony that machinery does not at all times work with perfect smoothness, is sufficient to justify the plaintiff in going to the jury.”
From the testimony of experts sworn by the plaintiff, it appears that “spreaders” are used to prevent what is known as a fly-back, or kick-back, caused by the binding of the wood back of the saw, which revolves towards the operator. As a result, the board comes straight back, and is liable to strike the operator. Mr. Cuyler, a witness for plaintiff, on cross-examination, explained this as follows:
“The Court: What do you call it when it only jumps from an inch to three inches? The testimony in this case is that the board only jumped up three inches; never got any higher.
“A. Must have been something wrong, because any man that has worked in a sawmill or around a mill of any kind, around a saw of any description, knows very well that a saw will naturally throw a board back.
“The Court: There isn’t any evidence in this case that the board was ever thrown back. The board jumped. The highest it ever jumped was three inches.
“A. Did not go back?
“The Court: No. There isn’t any evidence of any throw-back or fly-back, whatever you call it. The highest it ever jumped was three inches. What do you call that?
“A. I don’t know what to think about it. That is something new to me. I have been around saws all my lifetime.
“The Court: Have I misstated the testimony in that respect?
“Mr. Oxtoby: No, your Honor.
“Mr. Wilson: Except the plaintiff, who said it jumped up on top of the saw, as I understand.
“Mr. Oxtoby: No.
“The Court: If the plaintiff said that, I want to hear the testimony.
“Mr. Oxtoby: So do I.
“The Court: I have no recollection of that, and I paid pretty close attention.
“A. Yes; they certainly did.
“Q. But other than the three factories that you have been in, where you have seen spreaders, you cannot say of your own knowledge whether the thousand and three factories in the city of Detroit use spreaders or not? Do you understand my question?
“A. I would not tell you a thing here that I don’t know.
“Q. You don’t know it?
“A. I don’t know it.
“By the Court: Q. You don’t know what would cause that?
“A. Cause what?
“Q. This jumping of an inch or inch and a half or three inches?
“A. I will tell you. Whenever a board gets on top of a saw, it goes. It don’t stop and jump up and down on the table at all.
“Q. That is not exactly what I asked you.
“A. I got as near as I could to your idea.
“Q. The testimony, as I understand it, is that as this piece was being sawed, for instance, that these boards here would jump; this end of them would jump an inch, inch and a half; one witness testified to three inches, but there was never any fly-back.
“A. Well, there was something wrong there, because I will tell you. Any man that knows anything about a saw—
“Mr. Wilson: Do you mean there is something wrong with the saw?
“A. There is something wrong in the testimony there about it jumping two or three inches or an inch and a half, because when a board raises on a saw it is going to come back. It ain’t going to stay right there, jumping two or three inches high. It is going to go. Isn’t that right?”
It does not appear that there was a fly-back, or kickback, at the time plaintiff was injured, and as a result it follows that the absence of a spreader could not have had anything to do with the accident.
We are of the opinion that no negligence was shown on the part of the defendant, and that the trial judge reached a proper conclusion in directing a verdict in its favor.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
-3,
13,
-13,
20,
20,
-18,
-23,
1,
25,
55,
15,
-15,
29,
3,
35,
-7,
15,
-29,
-22,
0,
70,
-49,
9,
2,
-42,
-66,
-9,
-50,
15,
55,
-31,
-16,
23,
-4,
-49,
57,
43,
30,
-12,
-8,
0,
25,
60,
-39,
51,
24,
51,
-11,
18,
32,
39,
25,
16,
-48,
-19,
2,
21,
26,
-23,
25,
29,
-38,
-33,
-31,
14,
15,
-1,
19,
-10,
0,
-39,
27,
-21,
28,
-51,
-8,
-29,
57,
-49,
27,
-21,
34,
14,
0,
-18,
4,
-6,
12,
-1,
-30,
26,
-14,
-7,
-38,
-17,
6,
-35,
46,
-17,
33,
42,
37,
-5,
-22,
-43,
-10,
45,
-27,
30,
-38,
21,
38,
-13,
48,
11,
-81,
40,
6,
18,
40,
-3,
43,
46,
-39,
36,
17,
3,
-6,
24,
23,
16,
21,
-20,
-4,
6,
-26,
-32,
-10,
3,
-21,
-21,
34,
-21,
24,
-19,
-7,
-5,
8,
-12,
12,
-46,
37,
-43,
-32,
-20,
3,
-52,
3,
11,
11,
72,
-3,
12,
-21,
3,
5,
-25,
-28,
15,
12,
6,
31,
20,
-69,
55,
36,
43,
-49,
-25,
9,
-4,
-1,
44,
19,
-17,
5,
-52,
46,
50,
21,
-16,
8,
-65,
2,
-14,
-30,
-10,
31,
62,
-3,
44,
-12,
18,
-26,
9,
-19,
4,
-10,
22,
7,
-3,
22,
-34,
-27,
-56,
-17,
0,
-12,
-20,
-32,
-51,
8,
0,
-50,
-43,
-23,
-24,
65,
74,
-9,
-45,
-16,
47,
9,
45,
-25,
47,
-36,
62,
-52,
-21,
47,
-21,
-5,
-12,
-20,
-31,
-25,
20,
-39,
-43,
48,
-1,
10,
-24,
24,
-33,
6,
-39,
-17,
16,
20,
9,
14,
24,
22,
-3,
39,
-39,
0,
-13,
-30,
50,
-6,
-45,
-34,
-9,
34,
44,
21,
-4,
-12,
-18,
4,
-56,
-14,
22,
9,
-42,
1,
27,
-7,
27,
-49,
72,
33,
31,
-44,
-5,
-24,
-44,
-39,
-34,
-33,
-1,
16,
-13,
8,
-7,
12,
-7,
-39,
8,
-10,
37,
0,
-23,
15,
-46,
14,
-3,
-1,
-43,
-9,
-49,
-17,
-23,
27,
7,
56,
5,
20,
-28,
43,
-5,
-43,
-19,
4,
-4,
30,
11,
22,
14,
-19,
-20,
0,
21,
-6,
50,
-36,
25,
-56,
18,
-26,
42,
25,
-9,
-12,
-13,
47,
50,
18,
22,
17,
-7,
-16,
-5,
0,
-37,
20,
-68,
-25,
30,
-24,
12,
-41,
-83,
0,
-44,
59,
8,
39,
54,
-14,
2,
12,
-3,
-38,
15,
-8,
-14,
-51,
19,
21,
-40,
17,
-55,
-39,
-17,
-22,
-13,
-2,
14,
-37,
-10,
30,
-43,
12,
31,
-26,
28,
30,
43,
-4,
4,
-30,
36,
0,
21,
-3,
76,
-9,
-6,
-14,
23,
-22,
4,
-18,
-3,
-40,
-5,
35,
16,
-29,
-5,
-9,
-24,
24,
4,
-23,
-58,
-69,
-46,
-56,
54,
50,
-9,
4,
51,
-46,
-8,
3,
32,
40,
36,
-30,
-1,
-5,
60,
1,
-20,
-6,
-23,
18,
26,
-7,
23,
-33,
27,
-4,
37,
-34,
26,
-1,
-7,
2,
30,
39,
13,
-6,
-23,
27,
8,
-23,
-38,
0,
6,
-3,
7,
-30,
54,
66,
23,
-65,
-35,
12,
-65,
26,
-4,
51,
-74,
-56,
-25,
-27,
35,
-52,
62,
11,
20,
22,
-76,
-1,
19,
-14,
-9,
-6,
-7,
61,
-3,
30,
-16,
-41,
-28,
88,
-65,
-46,
-24,
-2,
-26,
-56,
59,
-34,
27,
38,
60,
9,
0,
-69,
-19,
-30,
-26,
-23,
56,
24,
14,
1,
-10,
-15,
11,
45,
10,
-57,
42,
-37,
32,
-9,
13,
-2,
-45,
-36,
28,
28,
-11,
3,
47,
-21,
0,
4,
6,
-31,
6,
33,
7,
19,
-54,
-17,
-5,
43,
-22,
-39,
-8,
-23,
-15,
-12,
-74,
-44,
38,
12,
21,
4,
-33,
4,
-14,
-39,
10,
12,
-29,
12,
27,
-8,
-38,
15,
-37,
7,
29,
1,
36,
68,
47,
10,
19,
-15,
-20,
-27,
-18,
-30,
9,
13,
63,
41,
30,
10,
-45,
65,
-35,
48,
-25,
-5,
10,
-54,
-62,
6,
-14,
-14,
-11,
-12,
13,
23,
-24,
5,
27,
-44,
-7,
-32,
-74,
-27,
17,
34,
-41,
4,
-9,
-29,
34,
47,
9,
-9,
16,
-8,
-21,
-10,
-26,
-6,
0,
-6,
-30,
44,
-37,
-30,
-48,
28,
56,
39,
32,
-7,
10,
7,
-35,
42,
4,
3,
21,
-60,
72,
-20,
-13,
-3,
30,
-12,
14,
-16,
-25,
48,
101,
28,
-2,
32,
13,
13,
15,
-53,
-46,
0,
33,
51,
1,
29,
42,
-30,
43,
13,
37,
30,
-51,
10,
33,
0,
11,
-84,
-6,
-8,
-26,
-2,
41,
-7,
36,
34,
0,
51,
-7,
-14,
-15,
0,
-1,
16,
-28,
-3,
-9,
-4,
-2,
-8,
20,
-13,
3,
-57,
-26,
-4,
15,
-5,
-4,
-43,
-14,
3,
39,
-75,
-33,
-59,
35,
-27,
-48,
14,
27,
-12,
39,
-45,
-2,
4,
14,
-32,
0,
-41,
-19,
-5,
18,
-8,
26,
41,
-7,
-63,
-2,
36,
33,
-43,
5,
-18,
-39,
-36,
10,
30,
10,
0,
2,
-18,
-46,
38,
0,
-25,
-29,
-3,
16,
-38,
14,
0,
-1,
7,
0,
1,
45,
-1,
-2,
-41,
-3,
28,
-26,
3,
-17,
23,
28,
-15,
-12,
35,
-11,
41,
-42,
-57,
19,
-3,
12,
-29,
-4,
23,
-6,
-56,
21,
44,
70,
-40,
-14,
23,
-12,
14,
22,
10,
18,
59,
54,
-60,
22,
-11,
-57,
-13,
-3,
-53,
9,
17,
14,
-46,
-7,
44,
-7,
-4,
-5,
-26,
-44,
-9,
-5,
5,
-29,
46,
2,
-20,
25,
-43,
16,
-30,
-63,
5,
-53,
-31,
66,
38,
10,
-23,
10,
-8,
6,
-42,
-40,
-9,
6,
34,
-28,
16,
77,
5,
-2,
3,
-21,
21,
12,
-8,
0,
47,
48,
28,
53,
-47,
-22,
-26,
-42,
5,
18,
-2,
7,
-33,
15,
36,
-13,
-4,
-8,
-17,
-50,
-46,
44,
2,
22,
-38,
21,
-12,
-19,
47,
0,
-35,
39,
-3,
29,
2,
-11,
-75,
-45,
0,
21,
24,
-4,
25,
-29,
-51,
-7,
2,
-57,
85,
11,
59,
1,
-8,
5,
-5,
-7,
30,
-36,
23,
36,
-7,
15,
75,
33,
48,
10,
-6,
-20,
-30,
33,
-31,
25,
-34,
11,
41,
-28,
26,
-31,
15,
-35,
-20,
25,
6,
26,
-62,
15,
-8,
-8,
-14,
-34,
18,
-14,
29,
-35,
0,
-22,
-13,
0,
11,
-8,
-15,
-13,
53,
42,
-10,
15,
23,
-38,
-15,
-54,
38,
12,
-49,
9,
50,
-68,
-1,
1,
-31,
55,
21,
3,
63
] |
Bronson, P. J.
In February, 1972, plaintiff applied for the positions of probationary fireman and probationary patrolman with the City of Hamtramck. He did so by filing an application with the Hamtramck Civil Service Commission. At that time, the Civil Service Commission was required to hold a competitive examination, and did so by devising a test consisting of four different parts: (1) a written I.Q. and aptitude test; (2) a physical agility test; (3) an oral examination; and (4) a medical examination. In June and July of 1972, plaintiff passed the written test and the physical agility test.
Plaintiff submitted himself for a physical examination on August 3, 1972. The doctor appointed by the commission found that plaintiff failed to meet the required medical standards for probationary patrolmen and firemen. Specifically, the doctor determined that: (1) plaintiff was 24 pounds over the maximum weight allowed for his height by commission standards; (2) plaintiff had unaided vision of 20/100 in his right eye; and (3) plaintiff required root canal work in his mouth. The Civil Service Commission refused to give plaintiff the oral examination on grounds that he had already failed the medical examination. Plaintiff was notified by a letter from the personnel director on October 5, 1972, that he had failed to meet the Hamtramck Civil Service requirements.
Plaintiff requested and received a hearing before the Hamtramck Civil Service Commission on December 7, 1972. At that hearing, plaintiff submitted evidence which he contends showed that the commission’s weight requirement schedule did not take into consideration the anatomical man concept and ignored plaintiff’s exceptional body frame and physique. Plaintiff also introduced certain medical records from the Air Force Reserve which he contends refuted the commission finding that he was visually deficient. Plaintiff was represented by legal counsel at that hearing.
On December 10, 1972, the Hamtramck Civil Service Commission adopted a resolution upholding plaintiff’s prior medical ineligibility. Plaintiff requested and was granted a rehearing before the commission. At a meeting on May 21, 1974, plaintiff introduced evidence in an attempt to show that other applicants for the positions involved here were given preferential treatment, as the standards imposed upon plaintiff were waived or not fully enforced as to other applicants. On that date, the Civil Service Commission reaffirmed its adverse decision.
Plaintiff filed a complaint for an order of superintending control or, in the alternative, an order granting leave to appeal. Plaintiff alleged that the decision of the Hamtramck Civil Service Commission was "arbitrary, capricious and illegal” on the following grounds: (1) various sections of the Hamtramck City Charter were not followed; (2) the rules of the commission itself were not followed; (3) the findings of the commission were unsupported by competent, material, and substantial evidence; and (4) plaintiff was denied due process and equal protection of the law. Part of the relief requested was to require the commission to certify to the court its entire record of the proceedings.
On June 10, 1974, the trial judge ordered the commission to show cause why their two prior resolutions should not be set aside. The commission was directed to provide the court with all documents requested by plaintiff, including a transcript of proceedings. On July 8, 1974, the Civil Service Commission filed a series of documents entitled "Transcript of Proceedings of Civil Service Commission”. Included were only (1) plaintiff’s application, (2) a copy of the commission’s mandatory medical standards for probationary firemen and patrolmen, (3) the results of the medical examination of plaintiff by the commission doctor, and (4) correspondence to plaintiff by the commission. No transcripts for either the December 7, 1972 hearing or the May 21, 1974 hearing were provided.
A show cause hearing was held on August 29, 1974. Plaintiffs counsel requested an adjournment on grounds that the records supplied by the commission were not sufficient. The trial judge denied that request, stating that the medical examiner could have been subpoenaed, and that plaintiff "had since June to do something about it”. The court added, "You had an opportunity to have this hearing before the Commission at any time. I cannot endlessly carry on these cases”. The trial judge then ruled on the merits. He stated:
"There was no discriminatory action at all on the part of the Commission because they were going according to the rules of the Charter and the findings of the physician indicated that the plaintiff was not qualified to be a police officer in the City of Hamtramck. * * * There is nothing discriminatory about it. It’s just a matter of failing to pass a medical examination to be a member of the Hamtramck Police Department.”
An order denying superintending control and leave to appeal was entered on October 4, 1974, and plaintiff appeals by right.
The procedural history of this case, as related above, is long and involved, but the result is clear. Plaintiff has the constitutional right to judicial review of this adverse administrative decision:
"All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and or ders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. Findings of fact in workmen’s compensation proceedings shall be conclusive in the absence of fraud unless otherwise provided by law.” (Const 1963, art 6, § 28.)
That right must be viewed as a right to a meaningful review by the courts. We hold that plaintiff was denied such when the trial judge ruled with an insufficient factual record before him.
The only evidence examined by the trial judge was the report of the commission doctor and the medical standards promulgated by the commission. The issues raised by plaintiff could not be resolved by looking to that evidence alone. Plaintiff argued that the standards were not being applied uniformly to all applicants. That the standards were being applied to this applicant does not answer the question as to whether they were being applied to all applicants. The trial judge needed to review plaintiff’s evidence presented at the May 21, 1974 hearing to properly resolve this issue. Plaintiff also urged that the medical standards were not in compliance with the mandate of the Hamtramck City Charter to set up relevant qualifications for civil service positions. The trial judge could not fully review that claim without the evidence presented at the December 7, 1972 meeting. A full and fair review of the decision of the Hamtramck Civil Service Commission was impossible on the evidence available below.
We hold that the Hamtramck Civil Service Commission has the burden of producing the transcripts necessary for insuring meaningful judicial review. In so holding, we look to the Administrative Procedures Act (APA), MCLA 24.201 et seq.; MSA 3.560(101) et seq. Although that legislation is not directly applicable to local civil service commission proceedings, Righter v Adrian Civil Service Commission, 1 Mich App 468; 136 NW2d 718 (1965), it will be applied by analogy in certain cases, Montiy v Civil Service Board of East Detroit, 54 Mich App 510, 514; 221 NW2d 248 (1974). Under the APA, an agency is required to prepare and submit to the court an official record of the proceedings, including the evidence presented at any hearings, MCLA 24.286(1); MSA 3.560(186)(1), MCLA 24.304(2); MSA 3.560(204X2). We feel that such a rule should be applied to local administrative bodies, for the means of securing such evidence are more readily available to them than to the aggrieved individuals.
To implement our ruling, we reverse the decision below and remand this case to the trial court, with instructions that the trial judge order the Hamtramck Civil Service Commission to provide a certified transcript of the hearings held on December 7, 1972 and May 21, 1974. If they are unable to do so for any reason, the commission shall be ordered to hold a new hearing at which plaintiff can present his proofs and to supply the trial court with a transcript of that new hearing.
Costs of this appeal are hereby awarded to plaintiff.
Section 26 of Chapter IX-A of the Hamtramck City Charter provides that any person whose application was rejected by the personnel director may appeal that decision to the Civil Service Commission. | [
68,
-42,
-1,
63,
-3,
20,
-14,
-9,
-16,
23,
10,
-10,
28,
-8,
37,
14,
-49,
2,
-29,
-102,
-50,
-16,
37,
59,
-26,
-35,
-9,
33,
-48,
8,
23,
16,
-5,
-46,
-31,
31,
36,
-11,
32,
28,
48,
-27,
-14,
-40,
-36,
-27,
9,
19,
-10,
-6,
-8,
74,
30,
31,
-56,
30,
39,
-12,
22,
-4,
-42,
31,
9,
-7,
29,
11,
-16,
71,
34,
25,
-17,
6,
21,
-8,
0,
-2,
-5,
-22,
26,
23,
15,
28,
32,
10,
-3,
77,
13,
21,
14,
-24,
11,
21,
-34,
-7,
-59,
-5,
-45,
-54,
12,
-6,
-36,
-1,
18,
6,
-40,
39,
-62,
-21,
-23,
-26,
32,
11,
16,
13,
-17,
-14,
14,
38,
14,
37,
10,
-2,
56,
-41,
0,
4,
-32,
-10,
-9,
-3,
-5,
23,
31,
3,
-34,
-25,
7,
41,
-15,
21,
-44,
55,
-30,
-15,
-23,
-24,
-20,
-24,
4,
-38,
-13,
-45,
0,
11,
-12,
26,
1,
-33,
36,
-31,
7,
-27,
8,
-2,
41,
1,
-42,
38,
22,
32,
15,
15,
35,
-54,
-5,
-10,
54,
7,
-32,
-28,
5,
-44,
-2,
0,
-12,
-19,
-25,
-26,
-9,
15,
-11,
-68,
-21,
27,
12,
-10,
-44,
9,
-15,
-14,
-10,
9,
-31,
-28,
-10,
38,
12,
-28,
-23,
36,
20,
-1,
47,
-12,
-28,
20,
-6,
-4,
11,
-2,
-33,
-55,
18,
-24,
18,
-6,
-31,
45,
-30,
-38,
10,
16,
13,
18,
-3,
-56,
53,
38,
77,
53,
-16,
50,
14,
31,
-21,
-18,
-70,
-34,
0,
12,
25,
8,
-24,
-7,
-38,
-5,
-8,
1,
40,
5,
23,
-21,
15,
-1,
25,
3,
12,
46,
39,
-17,
-30,
10,
-17,
-77,
-10,
9,
-35,
-78,
29,
14,
-12,
-15,
-1,
31,
-10,
7,
35,
9,
-27,
-46,
-4,
-6,
5,
7,
17,
-51,
21,
63,
23,
-33,
29,
-15,
-5,
-7,
-6,
-17,
29,
-13,
43,
34,
49,
-51,
58,
16,
-10,
-6,
-8,
-9,
-16,
-58,
-21,
-2,
-28,
17,
-25,
-42,
-50,
48,
9,
-40,
13,
-20,
-48,
-2,
29,
0,
-5,
38,
17,
12,
-35,
35,
-16,
43,
43,
11,
-12,
13,
33,
-15,
10,
17,
43,
14,
-26,
11,
35,
-28,
3,
39,
6,
-34,
-31,
-8,
-26,
-52,
23,
17,
19,
14,
30,
-25,
9,
-16,
34,
-3,
7,
58,
13,
41,
-3,
-15,
10,
-10,
-35,
-49,
6,
-17,
25,
-10,
-32,
86,
-23,
27,
0,
31,
-5,
46,
37,
-7,
20,
-40,
-48,
34,
-53,
9,
-52,
-4,
-14,
13,
-8,
-3,
41,
-35,
26,
-31,
26,
5,
-61,
-1,
-30,
19,
12,
-3,
6,
-10,
-7,
18,
-1,
19,
-15,
-43,
7,
-51,
-5,
-49,
-20,
-59,
42,
24,
-89,
0,
1,
-16,
0,
11,
20,
28,
-1,
12,
5,
11,
16,
34,
-44,
-16,
-30,
19,
-23,
26,
-54,
-31,
-11,
-47,
-20,
48,
-70,
35,
-10,
-3,
13,
-23,
-54,
-42,
-15,
-3,
-51,
-31,
6,
-57,
15,
-19,
11,
-18,
-38,
-62,
8,
-15,
7,
9,
12,
16,
-26,
-8,
1,
30,
13,
-4,
-27,
-5,
-8,
-6,
-11,
32,
16,
-54,
19,
0,
-23,
-7,
-40,
28,
-13,
69,
56,
24,
-23,
30,
-26,
-14,
-19,
50,
-29,
9,
13,
4,
-43,
11,
-9,
-5,
51,
5,
3,
-39,
6,
52,
22,
-9,
-6,
-46,
9,
13,
26,
1,
14,
6,
1,
49,
8,
-7,
40,
1,
29,
17,
-18,
-30,
29,
-3,
6,
37,
40,
26,
53,
38,
-11,
13,
8,
11,
30,
-10,
-14,
25,
-4,
33,
30,
-13,
6,
31,
-26,
-3,
5,
14,
22,
-7,
-24,
-36,
61,
-12,
-1,
-33,
-16,
-35,
-23,
3,
14,
-6,
13,
3,
23,
16,
-12,
20,
-49,
46,
-2,
2,
30,
-1,
41,
-18,
-3,
-25,
-2,
-35,
-53,
-29,
6,
27,
51,
-12,
-63,
0,
48,
1,
-37,
-49,
-4,
-47,
9,
-18,
34,
-35,
-34,
-55,
29,
8,
-32,
45,
-8,
-26,
44,
-44,
-8,
-6,
22,
-32,
-11,
22,
-42,
5,
-15,
8,
-12,
-9,
13,
-8,
-40,
-6,
-10,
-25,
-22,
5,
-21,
20,
22,
12,
44,
-22,
-11,
-11,
3,
12,
8,
17,
1,
-36,
-11,
3,
-6,
-5,
25,
3,
1,
22,
15,
-17,
-12,
31,
50,
-49,
-18,
43,
16,
18,
48,
-12,
-35,
5,
5,
10,
-36,
-4,
-39,
19,
-9,
44,
-16,
0,
-18,
6,
-69,
65,
-34,
53,
30,
-22,
-13,
7,
17,
29,
15,
18,
-3,
34,
55,
29,
-7,
23,
-36,
-73,
-2,
46,
11,
-11,
-9,
10,
4,
34,
7,
18,
23,
-35,
39,
6,
-2,
-21,
48,
-10,
-30,
36,
-39,
-4,
-58,
-63,
53,
36,
11,
14,
-10,
73,
6,
12,
-6,
-34,
-11,
-60,
54,
-16,
-25,
32,
-14,
1,
0,
-47,
-7,
-36,
-13,
-38,
-9,
-11,
-26,
10,
19,
21,
-26,
0,
-31,
-4,
-4,
-56,
-19,
-16,
1,
2,
1,
39,
27,
16,
10,
-32,
11,
33,
-12,
32,
-28,
31,
-30,
14,
2,
32,
-46,
32,
-28,
-8,
-7,
-21,
49,
-21,
5,
2,
28,
40,
40,
-21,
-29,
-10,
-4,
-14,
41,
-36,
-40,
35,
21,
7,
-13,
-4,
-5,
9,
39,
96,
55,
38,
-12,
0,
12,
-15,
-40,
-24,
20,
-18,
-5,
-17,
-8,
21,
13,
-7,
60,
-4,
-19,
-52,
41,
3,
-38,
-46,
-26,
27,
-68,
-68,
22,
-5,
9,
9,
-44,
-51,
16,
20,
-4,
0,
45,
-55,
-18,
-41,
-2,
-63,
28,
15,
7,
-5,
18,
17,
35,
45,
20,
53,
-3,
11,
-26,
48,
-2,
0,
-9,
17,
10,
-22,
-28,
-60,
7,
-39,
-48,
29,
-19,
-38,
23,
-42,
-7,
-19,
-54,
-15,
11,
-65,
-17,
-16,
17,
-16,
-40,
3,
9,
33,
-4,
40,
36,
-65,
3,
35,
69,
18,
17,
-6,
-7,
-2,
13,
-20,
-24,
42,
-52,
-20,
-54,
5,
-14,
5,
-10,
-12,
17,
60,
-33,
26,
-47,
-17,
-18,
34,
32,
-43,
12,
47,
26,
72,
40,
-43,
-34,
-16,
48,
26,
-31,
-36,
-10,
-18,
-38,
6,
-16,
24,
-21,
-27,
31,
-5,
-39,
-79,
12,
11,
-6,
21,
-5,
-32,
-14,
-5,
37,
-26,
-18,
9,
-3,
11,
37,
-1,
-7,
63,
29,
-21,
48,
-41,
-44,
-12,
65,
66,
20,
4,
14,
10,
50,
-44,
-7,
7,
34,
-13,
-2,
-40
] |
Per Curiam.
Defendant was charged with the offense of breaking and entering an occupied dwelling house with intent to commit larceny therein, contrary to MCLA 750.110; MSA 28.305. He was convicted by a jury of the lesser included offense of entering without breaking a dwelling house with intent to commit a felony therein, contrary to MCLA 750.111; MSA 28.306. The trial judge sentenced defendant to a term of from three to five years in prison, and defendant appeals by right.
Defendant first contends that he was convicted of a nonexistent crime when the jury returned a verdict of guilty of "entering without breaking”. His argument is that only entering without breaking with intent to commit a felony is a crime punishable under Michigan law, and that the jury must specifically state the complete name of the felony when returning its verdict. In People v Clyburn, 55 Mich App 454; 222 NW2d 775 (1974), we rejected a similar argument as to a jury verdict of guilty of "breaking and entering a business place”. We stated therein:
"The language used by the jury can only be interpreted to mean that they found the defendant guilty of breaking and entering with intent to commit larceny as charged. The jury was not required to restate all of the statutory language when rendering the verdict. People v Levey, 206 Mich 129; 172 NW 427 (1919). Although given an opportunity, defendant did not question the nature or the form of the verdict at trial. He cannot do so now.” 55 Mich App at 461.
That reasoning applies here, and we find no error.
Defendant also argues that the trial judge’s final instructions coerced the jury into giving undue weight to the major offense and the more serious of the lesser included offenses. The pertinent portion of those instructions provided as follows:
"Then when you start considering the testimony you consider the first charge, that is breaking and entering with the intent to commit a larceny. You have to find the defendants guilty or not guilty of that offense and if you do then you stop right there because you have reached a verdict and your verdict has to be unanimous.
"If you can’t agree on that one and you feel that you have reached a deadlock then you drop down to the second one which is entering without breaking and then you deliberate on that one. If you find the defendants guilty of entering without breaking or not guilty then you stop there when you have reached a unanimous verdict.
"If you feel that you are deadlocked on that one then you drop down to the third one entering without the owner’s permission and you find the defendants guilty of that one or not guilty.”
Defendant did not object to these instructions, and we find no reversible error.
The instructions given here merely indicate that the jury should deliberate initially on the major charge, then weigh the lesser included offenses, and finally consider an acquittal. Such an instruction merely indicates a logical method of considering the various possible verdicts, People v James, 51 Mich App 777; 216 NW2d 473 (1974), People v Bates, 55 Mich App 1; 222 NW2d 6 (1974), People v Szymarek, 57 Mich App 354; 225 NW2d 765 (1975), People v Walker, 58 Mich App 519; 228 NW2d 443 (1975). These instructions are reversibly erroneous only where they additionally require the jury to unanimously agree that defendant is innocent of the charged crime before any lesser included offenses can be considered, People v Ray, 43 Mich App 45; 204 NW2d 38 (1972). Since the trial judge here specifically told the jury to go on to lesser offenses if they were "deadlocked”, this instruction does not suffer from that infirmity. The giving of this instruction did not constitute reversible error.
Affirmed.
An instruction virtually identical to those upheld in the ahovecited cases were found to be improper in People v Harmon, 54 Mich App 393; 221 NW2d 176 (1974). The cases have variously distinguished or ignored Harmon. However, one panel of this Court has finally recognized the irreconcilability of these cases. See, People v Bankston, 61 Mich App 275; 232 NW2d 381 (1975). We agree with the reasoning found therein, and specifically decline to follow the view of the Harmon panel. | [
5,
55,
-10,
-66,
-74,
-34,
11,
45,
-61,
82,
38,
32,
-16,
-44,
0,
-55,
-9,
14,
-4,
36,
1,
-26,
-12,
56,
-25,
-12,
13,
93,
-6,
59,
3,
14,
23,
31,
-31,
-19,
10,
6,
0,
21,
10,
1,
8,
-5,
-56,
-35,
13,
14,
19,
-18,
22,
-11,
2,
-10,
44,
30,
-1,
62,
10,
28,
38,
23,
-50,
-13,
1,
-50,
12,
9,
-25,
-25,
-10,
0,
-27,
-26,
-31,
13,
35,
44,
-51,
20,
-10,
-3,
46,
-5,
14,
-86,
2,
-76,
-17,
-79,
-30,
13,
-5,
14,
25,
-39,
29,
-5,
38,
-40,
-58,
8,
-6,
3,
-31,
-46,
-44,
-17,
-48,
-6,
-28,
-16,
-14,
-22,
-34,
8,
-4,
62,
-19,
-21,
-2,
15,
10,
11,
4,
-33,
-10,
-51,
52,
-37,
21,
78,
-32,
-10,
-60,
13,
-17,
67,
45,
25,
18,
-10,
71,
-11,
25,
-20,
-20,
-3,
31,
-11,
-27,
11,
8,
11,
-9,
21,
-67,
-17,
-19,
-16,
-2,
24,
-18,
-9,
14,
-24,
-21,
-8,
25,
-16,
-29,
-34,
60,
-14,
60,
-6,
-28,
-5,
18,
-14,
-5,
51,
-5,
23,
-8,
-7,
21,
3,
-36,
-56,
16,
44,
-46,
-5,
50,
11,
-30,
88,
44,
2,
-31,
-36,
25,
30,
-5,
-26,
0,
7,
-5,
-22,
-15,
-24,
-64,
-18,
-12,
7,
-17,
-24,
10,
-60,
-49,
-32,
-24,
-9,
24,
-35,
13,
-23,
11,
29,
14,
-8,
42,
-20,
15,
-22,
-11,
-24,
31,
36,
-22,
-31,
-11,
-3,
54,
-10,
-22,
5,
12,
-19,
25,
-24,
-5,
22,
-43,
15,
51,
-51,
-52,
11,
-38,
15,
-27,
-13,
-49,
20,
14,
2,
-120,
-3,
22,
33,
-30,
39,
-26,
12,
-40,
38,
13,
-36,
10,
22,
81,
49,
-47,
20,
-42,
24,
21,
12,
33,
-39,
-40,
25,
38,
34,
54,
-11,
-60,
31,
-1,
-5,
0,
31,
40,
-6,
-5,
11,
-24,
-3,
7,
-4,
-12,
78,
-11,
-7,
1,
0,
5,
6,
-21,
-44,
3,
-35,
-42,
-50,
30,
-51,
11,
16,
25,
21,
0,
54,
-16,
6,
36,
-29,
-12,
17,
17,
-58,
20,
-70,
31,
26,
-37,
-36,
-46,
-10,
44,
1,
-14,
29,
10,
-77,
-51,
1,
-2,
-36,
33,
9,
-7,
19,
-14,
10,
-2,
-21,
18,
92,
-3,
-54,
-29,
65,
-22,
-38,
44,
-52,
-32,
59,
16,
22,
19,
-6,
12,
13,
-34,
-71,
-12,
30,
-69,
-8,
19,
-65,
5,
25,
20,
3,
-4,
-33,
-19,
-1,
40,
4,
-24,
6,
-20,
8,
-28,
25,
-12,
1,
36,
19,
-13,
4,
21,
-7,
21,
0,
-21,
3,
24,
-6,
0,
-14,
-28,
22,
-12,
-47,
55,
60,
29,
-80,
31,
33,
-39,
17,
37,
33,
-38,
23,
-27,
5,
37,
15,
-24,
9,
25,
-21,
14,
-9,
-25,
-67,
52,
61,
12,
0,
-2,
-60,
9,
-57,
-45,
-24,
33,
-32,
-64,
-58,
38,
0,
-22,
-9,
34,
28,
18,
25,
12,
47,
13,
12,
-13,
29,
17,
10,
-32,
-61,
-9,
-48,
-10,
-11,
6,
27,
23,
10,
-10,
9,
9,
23,
35,
41,
-6,
6,
-37,
-14,
40,
-14,
43,
-36,
32,
18,
13,
75,
2,
13,
-8,
-42,
0,
-53,
-2,
11,
-52,
-63,
-10,
18,
-46,
31,
-27,
-30,
-62,
14,
65,
-3,
-3,
16,
38,
14,
-1,
-51,
-10,
-36,
25,
57,
21,
39,
-17,
5,
-25,
-44,
20,
-3,
-8,
2,
-18,
13,
-37,
-33,
-1,
31,
7,
-11,
-9,
-53,
55,
0,
-20,
-17,
-32,
34,
34,
-9,
-18,
7,
-53,
22,
-42,
7,
25,
32,
-22,
-4,
20,
74,
-47,
10,
4,
42,
-28,
16,
3,
-7,
-46,
3,
8,
-58,
-41,
-15,
-54,
-17,
25,
33,
18,
25,
-19,
0,
59,
-19,
24,
11,
-1,
-11,
67,
-18,
-39,
-27,
26,
42,
14,
-45,
-43,
49,
50,
-6,
14,
-6,
-45,
-6,
29,
1,
-36,
-54,
-15,
30,
15,
-22,
-6,
40,
28,
21,
-31,
-54,
-11,
21,
-1,
-9,
47,
19,
14,
1,
18,
-13,
-7,
5,
-8,
-43,
90,
0,
-13,
35,
18,
-52,
20,
54,
-15,
52,
8,
36,
0,
-33,
58,
16,
13,
-1,
-10,
30,
7,
40,
6,
-17,
10,
-25,
-34,
-29,
19,
-53,
11,
-52,
-19,
5,
26,
-19,
-27,
42,
3,
12,
49,
8,
62,
51,
-56,
-27,
29,
-15,
12,
-6,
-28,
30,
20,
-26,
-20,
-12,
-21,
18,
4,
35,
-28,
5,
-82,
-34,
-38,
45,
-44,
-39,
25,
-6,
-2,
-8,
24,
-2,
45,
20,
31,
-47,
5,
15,
36,
36,
-35,
33,
19,
22,
-18,
27,
-49,
-29,
3,
-22,
25,
0,
16,
-26,
34,
45,
39,
42,
-38,
50,
50,
-16,
-46,
5,
-11,
29,
-36,
1,
-13,
8,
8,
-23,
0,
-1,
-27,
-12,
-9,
45,
-26,
32,
0,
-2,
27,
-17,
16,
20,
13,
-21,
-12,
-10,
5,
-27,
17,
13,
20,
55,
-37,
45,
5,
-3,
35,
-19,
26,
5,
39,
16,
62,
-2,
-56,
27,
-35,
6,
28,
22,
50,
-37,
-36,
-13,
11,
-2,
-5,
6,
29,
-4,
14,
32,
-24,
-93,
-20,
11,
20,
-48,
-2,
7,
42,
25,
20,
21,
8,
-11,
0,
32,
-34,
28,
26,
-50,
15,
29,
2,
16,
3,
-36,
5,
-17,
2,
-17,
28,
-58,
-20,
24,
3,
60,
43,
-15,
6,
28,
-35,
-14,
27,
-10,
-19,
13,
-11,
0,
-7,
1,
36,
12,
19,
35,
-27,
1,
-33,
31,
-2,
-10,
-5,
34,
20,
7,
-35,
-48,
-28,
45,
-47,
65,
-5,
10,
-17,
-12,
37,
-47,
16,
-20,
43,
1,
-61,
37,
32,
7,
19,
7,
-20,
10,
9,
0,
19,
30,
0,
30,
-41,
-2,
-2,
-39,
-42,
56,
20,
11,
-3,
-25,
-22,
-11,
-31,
-5,
-48,
-5,
-15,
-36,
-39,
-56,
15,
-40,
18,
-6,
-40,
11,
-9,
14,
-38,
7,
5,
-6,
-13,
-29,
10,
17,
3,
-32,
22,
-14,
41,
-38,
9,
-14,
-11,
14,
55,
-58,
28,
13,
20,
-37,
-10,
-4,
26,
-21,
-2,
-10,
32,
-36,
32,
38,
-9,
-11,
0,
-56,
-11,
-12,
-15,
-30,
-19,
24,
-9,
-25,
-4,
-37,
19,
19,
-18,
-12,
2,
-52,
-1,
-3,
-6,
-1,
32,
0,
-5,
-37,
-13,
35,
0,
-12,
-41,
-84,
36,
0,
-59,
30,
-21,
1,
-60,
42,
-23,
66,
-18,
45
] |
Quinn, P. J.
Plaintiffs action for declaratory judgment resulted in a judgment holding defend ant primarily liable for payments of benefits to Bonnie Donlin, a passenger injured in a motor vehicle accident. Defendant appeals.
November 13, 1973, Bonnie Donlin was a passenger in a car driven by her brother, Fred Jay, Jr. An accident with an uninsured motorist occurred and Bonnie was injured. Fred Jay, Jr., was insured by plaintiff which paid insurance benefits to Bonnie Donlin prior to beginning this action.
Bonnie Donlin was married in Michigan to James Donlin June 29, 1968, but they soon became residents of Ohio. Bonnie separated from James in January 1973 and she filed an action for divorce in Ohio March 6, 1973. Although Bonnie believed that she was divorced from James, on the date of the accident she was still his wife, and he was insured with defendant.
Defendant has succinctly stated the issue: do personal protection insurance benefits of a Michigan no-fault automobile insurance policy extend to the estranged wife of a named insured not domiciled in his household?
The issue arises from MCLA 500.3114; MSA 24.13114:
"Except as provided in subsections (2) and (3), a personal protection insurance policy applies to accidental bodily injury to the person named in the policy, his spouse and any relative of either domiciled in the same household.”
Defendant contends that the limiting phrase "domiciled in the same household” applies to "spouse” as well as to "any relative of either”. Hence, Bonnie, not being domiciled in the same household as James at the time of the accident, was ineligible for benefits under defendant’s policy with James.
We recognize that the structure of the sentence above quoted from the statute permits the argument advanced by defendant to be made, but we find that argument untenable. While it might be preferable to place a comma before "and any relative”, the absence of that comma does not necessarily mean that "spouse” and "relative” are both modified by the limiting phrase "domiciled in the same household”.
It could as well be argued that since the modifier "of either” following "relative” plainly indicates that "person named in the policy” and "his spouse” are independent items of á series, the modifier "domiciled in the same household” applies to each. This would lead to the ridiculous result that the person named in the policy must be domiciled with the person named in the policy.
What the Legislature meant by the language employed and the structure of the sentence must be determined with some degree of reason. There is reason for limiting insurance benefits to any relative of the insured or his spouse to those relatives domiciled in the insured’s household. It creates a definite limit to the exposure of the insurer, an essential factor in determining the insurance premium.
Affirmed but without costs, a public question being involved. | [
-42,
-30,
-12,
-9,
0,
-40,
-3,
-14,
6,
-1,
-28,
16,
11,
41,
-64,
-11,
-19,
11,
14,
13,
-10,
8,
-88,
108,
-15,
0,
61,
-40,
-7,
12,
-18,
-40,
-4,
-20,
-63,
12,
26,
-18,
-29,
41,
41,
-79,
78,
-9,
-53,
0,
-4,
8,
-26,
-17,
-11,
-66,
-3,
16,
10,
25,
33,
77,
-1,
-3,
-66,
-10,
-3,
-5,
-17,
-14,
77,
42,
25,
16,
44,
-6,
-24,
-19,
-60,
22,
5,
13,
-38,
9,
23,
-19,
27,
-32,
-7,
-11,
-15,
25,
-25,
12,
-85,
20,
-4,
15,
-28,
32,
-16,
13,
15,
12,
27,
-12,
37,
-7,
-12,
69,
5,
-28,
28,
30,
-1,
-3,
-5,
13,
0,
3,
-30,
20,
-6,
17,
28,
-21,
24,
-15,
6,
4,
-2,
-37,
9,
-12,
10,
39,
31,
-23,
-4,
40,
25,
14,
6,
-59,
81,
-18,
-9,
5,
56,
6,
14,
-52,
-12,
-25,
-5,
44,
6,
25,
14,
-2,
11,
-3,
29,
-40,
-19,
-37,
11,
91,
-9,
-29,
-37,
59,
16,
13,
5,
-10,
-5,
-14,
8,
67,
46,
-36,
-22,
5,
-18,
67,
-28,
-24,
-16,
-42,
-11,
-11,
-84,
-3,
19,
-43,
16,
0,
-7,
57,
38,
39,
-12,
-8,
27,
-28,
10,
11,
4,
-28,
22,
2,
3,
-49,
-7,
-44,
-62,
-31,
-9,
12,
21,
0,
-75,
-15,
8,
20,
-5,
-15,
-37,
-48,
-38,
-66,
-37,
8,
-5,
-38,
35,
11,
-61,
31,
0,
-25,
38,
33,
56,
-7,
10,
-27,
40,
-26,
20,
37,
-27,
0,
8,
-24,
31,
5,
7,
-8,
8,
8,
-8,
48,
-10,
18,
-30,
25,
20,
-7,
28,
-39,
-6,
-39,
30,
-8,
30,
-16,
-15,
-25,
25,
13,
4,
-11,
19,
71,
-74,
-33,
-24,
-24,
34,
-6,
28,
54,
13,
-71,
22,
-22,
-2,
6,
59,
-51,
-63,
15,
11,
2,
35,
40,
1,
-57,
-15,
-18,
0,
37,
-22,
-34,
24,
-18,
10,
-16,
-2,
31,
-45,
-5,
-4,
12,
21,
19,
-46,
-7,
13,
-43,
-7,
3,
-38,
12,
15,
10,
39,
-51,
-11,
6,
4,
-9,
-25,
-25,
10,
7,
3,
2,
46,
-9,
-9,
10,
-16,
30,
29,
-13,
-21,
12,
1,
-35,
-12,
11,
18,
21,
-63,
-10,
-23,
18,
49,
-18,
5,
67,
32,
-13,
-5,
-23,
-25,
-22,
37,
50,
14,
51,
4,
-12,
18,
-20,
5,
7,
-76,
-67,
-3,
5,
-63,
-48,
43,
-2,
-18,
25,
7,
0,
-23,
31,
1,
38,
2,
-28,
6,
17,
-12,
-62,
-50,
-8,
-34,
-6,
-22,
10,
44,
51,
47,
-42,
-44,
-6,
-32,
28,
17,
-66,
-9,
-27,
-10,
7,
25,
6,
34,
12,
24,
-13,
37,
-5,
-27,
-35,
5,
13,
-2,
7,
-18,
36,
-13,
25,
-60,
5,
28,
-56,
45,
45,
-16,
-18,
-43,
-23,
15,
8,
-88,
-66,
15,
-35,
51,
19,
17,
-66,
-30,
-37,
39,
-19,
14,
-43,
20,
39,
-2,
18,
-43,
-45,
-33,
-29,
-82,
-32,
28,
-51,
-6,
-32,
11,
0,
13,
6,
-17,
-27,
15,
-15,
1,
-23,
-38,
3,
-10,
-33,
19,
54,
45,
65,
67,
-49,
-27,
0,
-19,
-18,
10,
-1,
-14,
25,
12,
-7,
-3,
17,
63,
8,
24,
-10,
20,
10,
31,
-19,
-2,
22,
-28,
36,
23,
39,
23,
-5,
22,
14,
14,
-1,
-48,
-45,
7,
72,
-26,
5,
-41,
-14,
5,
-16,
-18,
-36,
11,
-27,
0,
-37,
23,
1,
17,
29,
44,
-13,
-1,
15,
-7,
4,
-10,
11,
-12,
2,
16,
-43,
-94,
-4,
-1,
-23,
31,
24,
12,
12,
-60,
-11,
-33,
47,
-7,
-10,
-1,
-41,
-30,
21,
74,
-28,
-29,
18,
-3,
12,
24,
-31,
-39,
-39,
-25,
-53,
-14,
17,
-24,
-6,
41,
4,
31,
28,
27,
-18,
7,
86,
-59,
-12,
31,
0,
0,
1,
-13,
-5,
1,
44,
-26,
-33,
-26,
51,
-3,
22,
-12,
-48,
80,
-30,
-6,
-43,
5,
25,
-15,
28,
-11,
-4,
2,
25,
50,
66,
0,
11,
38,
-59,
17,
-44,
-28,
30,
-59,
-15,
29,
1,
-25,
-7,
1,
17,
-42,
-18,
39,
35,
-29,
37,
4,
-22,
34,
16,
-1,
0,
54,
74,
30,
53,
-12,
48,
-3,
16,
11,
-27,
54,
-17,
-3,
15,
-58,
-32,
0,
-20,
-10,
-10,
-39,
-32,
9,
-19,
-18,
37,
-15,
32,
-16,
21,
-21,
-28,
-37,
-4,
-5,
-21,
29,
34,
23,
13,
13,
-49,
-7,
5,
28,
-42,
-53,
-14,
-23,
10,
-29,
-75,
-27,
20,
26,
-14,
6,
45,
19,
4,
-28,
-10,
-2,
61,
8,
-26,
-1,
39,
0,
36,
49,
22,
31,
-10,
-49,
21,
50,
36,
-45,
25,
26,
4,
16,
20,
21,
24,
4,
-11,
11,
-15,
16,
-7,
-38,
4,
-25,
9,
30,
-26,
-21,
4,
18,
-29,
-37,
22,
31,
-67,
-55,
-39,
17,
25,
1,
-31,
-24,
-18,
42,
-28,
-14,
-10,
32,
31,
7,
-56,
17,
9,
5,
9,
-1,
11,
0,
31,
-7,
3,
35,
7,
4,
29,
23,
11,
21,
-31,
0,
8,
-58,
50,
2,
50,
-42,
-4,
42,
3,
-32,
5,
40,
45,
2,
-8,
11,
-5,
-8,
-1,
10,
-4,
-14,
33,
0,
23,
-56,
-52,
36,
-4,
-38,
0,
57,
72,
-19,
-15,
44,
-28,
14,
-51,
0,
37,
-26,
-60,
-36,
1,
-38,
-13,
-7,
-48,
6,
-24,
-25,
9,
48,
25,
10,
6,
-4,
41,
-30,
20,
-9,
11,
20,
-35,
16,
16,
15,
13,
-37,
42,
-35,
31,
22,
12,
-25,
-13,
50,
48,
1,
-62,
-65,
-14,
20,
27,
-14,
-75,
-44,
11,
-46,
38,
-1,
29,
15,
49,
-28,
-57,
50,
-8,
2,
6,
5,
15,
27,
58,
-11,
49,
-5,
-48,
-9,
-59,
-31,
-9,
-3,
25,
-4,
12,
48,
25,
-7,
33,
58,
-89,
-5,
10,
-35,
-11,
-9,
21,
2,
14,
-39,
0,
43,
-53,
1,
1,
0,
5,
3,
-1,
20,
-21,
20,
-15,
-20,
36,
-20,
87,
4,
-3,
16,
-87,
17,
-2,
-8,
-18,
56,
-21,
1,
-59,
-37,
-37,
55,
4,
-13,
-19,
-17,
-17,
-45,
34,
0,
-38,
-62,
-25,
-26,
-24,
-9,
0,
-3,
55,
56,
15,
19,
20,
-7,
-4,
31,
0,
17,
8,
-39,
-34,
-49,
26,
69,
9,
3,
46,
-4,
4,
7,
55,
-3,
4,
-38,
-7,
55,
-5,
-17,
0
] |
Per Curiam.
During the course of defendant’s jury trial on a charge of first-degree murder, the prosecutor sought to introduce tape-recorded statements by defendant made at the police station shortly after the alleged homicide. Defense counsel agreed to the admissibility of the entire tape recording, and stipulated that defendant had been given Miranda warnings. While part of the tape recording was received into evidence, the remainder was excluded by the trial court as self-serving. Defendant was convicted of second-degree murder, MCLA 750.317; MSA 28.549, and sentenced to 15 to 40 years in prison.
Defendant filed an appeal of right, maintaining, among other things, that the trial court committed reversible error in failing to admit the entire tape-recorded conversation into evidence. Owing to mechanical difficulty in the tape, this Court was unsuccessful in its endeavor to listen to the excluded portion of the tape recording, and remanded the case back to the trial court for a complete record. The malfunction has been corrected, our examination of the tape recording indicates defendant’s statements are audible, and we reverse. The rule of completeness entitled defendant to have the entire recorded communication admitted into evidence, and the trial court reversibly erred in excluding portions thereof, on the grounds they were self-serving. .
One finds at 7 Wigmore, Evidence (3d ed), § 2115, p 529, the following relevant proposition:
" * * * [W]hen any part of an oral argument has been put in evidence by one party, the opponent may afterwards (on cross-examination or re-examination) put in the remainder of what was said on the same subject at the same time. ”
Where the prosecutor seeks to introduce inculpatory statements of a criminal defendant the principle is a fortiori compelling:
"Clearly, an accused in a criminal prosecution is entitled to the benefit of the entire conversation in which an admission introduced in evidence against him was made, notwithstanding a part of the conversation is self-serving as to him.” 29 Am Jur 2d, Evidence, § 622, p 676.
The Michigan Supreme Court, moreover, early recognized this principle of completeness:
"And, where admissions of the accused are offered, he has a right to have the whole conversation admitted, whether the same consists of self-serving statements or not; the test being whether they form part of the conversation proved by the people.” People v Bowen, 170 Mich 129, 136; 135 NW 824 (1912).
Also see People v Shepard, 70 Mich 132; 37 NW 925 (1888). People v Hepner, 285 Mich 631; 281 NW 384 (1938). Cf. People v Macklin, 46 Mich App 297, 302; 208 NW2d 62 (1973).
Although resolution of the above question effectively disposes of this appeal, we address certain raised issues which might otherwise lead to a misunderstanding at defendant’s new trial.
While the trial court did not err in its charge to the jury on reckless use of firearms when it quoted the statute, including language that violation was a misdemeanor, People v Nichols, 391 Mich 813 (1974), People v Tillman, 59 Mich App 768, 774; 229 NW2d 922 (1975), the instruction ought not be given upon retrial, since reckless use of a firearm is not a lesser included offense of murder. People v Knott, 59 Mich App 105, 112; 228 NW2d 838 (1975) : "A firearm is not a necessary element of the crime of murder or manslaughter, although it is often the tool used”.
Should evidence be introduced upon retrial supporting defendant’s theory that the killing was accidental, a request for an instruction on manslaughter will necessitate a charge distinguishing voluntary and involuntary manslaughter. People v Townes, 391 Mich 578; 218 NW2d 136 (1974).
We discern no abuse of discretion by the trial court in admitting a photograph of the victim into evidence. People v Ranes, 63 Mich App 498; 234 NW2d 673 (1975).
As to the allegations of prosecutorial misconduct, we note that no objections were voiced by defense counsel. The Court agrees that the prosecutor misstated that witness Gamble testified she observed the gun at the time of the shooting, and erroneously pointed out that defendant "hinted maybe that cops put” the cartridge belt on the davenport. We are confidant that these misstatements will not be repeated. Moreover, the Court finds little substance to the argument that defend ant was prejudiced by erroneous statements of law by the prosecutor. The court instructed the jury to disregard the statements of law by counsel in their closing argument. A close scrutiny of the prosecutor’s closing argument indicates that he did not impermissibly express his personal belief in the defendant’s guilt, but, statements that he was biased and could not believe that certain prosecution witnesses would lie border on the line between permissible argument and vouching for the witnesses’ credibility. Compare People v Davis, 57 Mich App 505; 226 NW2d 540 (1975), with People v Erb, 48 Mich App 622; 211 NW2d 51 (1973). We urge restraint in the use of such argument on remand.
The remaining assignments of error do not require discussion.
Reversed and remanded.
Labeling the statements as spontaneous or excited utterances cannot excuse the trial court’s action: " « * * the fact that a declaration is self-serving does not exclude it from the spontaneous or excited utterance exception.” Browning v Spiech, 63 Mich App 271; 234 NW2d 479 (1975). Indeed, as far as the doctrine of completeness is concerned, the reason for admissibility should normally have no bearing on whether the entire conversation should be let into evidence.
In People v Knott, 59 Mich App 105, 115-116; 228 NW2d 838 (1975), a panel of this Court recognized that " ** * * differentiating definitions of voluntary and involuntary manslaughter are necessary to properly present to a jury the degree of homicide 'so that they may have a clear and correct understanding of what it is they are to decide’. [People v Townes, 391 Mich 578, 587; 218 NW2d 136 (1974)] * * * [T]he distinction becomes particularly critical when the jury has a choice between murder and manslaughter. * * * We agree that had defendant produced evidence of accident as an alternative theory he could have asked for and received a charge distinguishing voluntary and involuntary manslaughter.” See also People v Livingston, 63 Mich App 129, 135; 234 NW2d 176 (1975).
The prosecutor stated that "Frankly, I watched them, and I will confess I am biased about it. I cannot believe that they lied. I cannot believe, when Mr. Carter said he saw that gun sticking through the door, that he lied, * * * .” | [
-11,
0,
29,
-2,
4,
-23,
-31,
-7,
-19,
15,
37,
-10,
46,
-40,
13,
11,
-42,
-49,
-15,
-52,
8,
-52,
6,
-8,
-37,
-19,
-15,
56,
9,
-8,
21,
3,
-25,
-88,
44,
-62,
73,
40,
-1,
68,
26,
-1,
84,
-45,
-57,
-11,
30,
-14,
-4,
18,
48,
28,
-5,
3,
18,
-1,
-2,
16,
-12,
-59,
-6,
34,
-33,
-10,
-22,
43,
5,
27,
-33,
-32,
-42,
6,
2,
-32,
5,
-53,
-33,
0,
49,
12,
19,
54,
41,
-3,
-12,
-39,
0,
-48,
20,
-15,
-18,
-10,
-49,
-6,
-23,
-28,
63,
-58,
29,
5,
-37,
24,
10,
0,
-5,
-18,
-82,
-11,
7,
23,
17,
26,
29,
-51,
-38,
1,
12,
-14,
-56,
0,
0,
-11,
10,
-16,
20,
-5,
25,
-37,
40,
-44,
-7,
48,
49,
-23,
2,
-17,
-2,
33,
18,
7,
-13,
29,
39,
-26,
78,
10,
-57,
28,
53,
20,
15,
-7,
1,
-17,
-11,
-23,
-7,
-53,
-21,
23,
26,
21,
-77,
-16,
-38,
16,
-14,
-11,
14,
-30,
-23,
-24,
43,
-8,
-5,
-39,
-2,
-25,
29,
-22,
1,
35,
27,
-24,
7,
-12,
-24,
2,
-29,
1,
7,
33,
-33,
4,
39,
33,
2,
52,
5,
-3,
-22,
40,
4,
-10,
10,
13,
18,
49,
31,
7,
-26,
38,
-56,
-30,
-24,
-98,
4,
-3,
28,
54,
-59,
14,
37,
-31,
-30,
11,
-32,
18,
-3,
13,
33,
39,
-32,
-31,
-41,
45,
20,
20,
39,
-26,
-24,
-24,
68,
-32,
49,
-1,
3,
-7,
-34,
-53,
27,
23,
39,
0,
-52,
-60,
38,
38,
-56,
-18,
34,
29,
-7,
5,
-53,
-4,
-14,
5,
-39,
2,
-53,
-54,
9,
56,
18,
-30,
11,
-2,
-20,
0,
29,
18,
2,
-53,
-16,
-58,
-59,
45,
43,
57,
74,
-5,
-25,
-12,
31,
42,
-10,
13,
-21,
22,
77,
6,
-29,
-24,
-2,
-44,
18,
19,
-2,
14,
13,
46,
-2,
84,
45,
-2,
-5,
5,
14,
-1,
-46,
-16,
-33,
-1,
23,
-51,
15,
-63,
11,
-39,
-74,
14,
24,
-18,
30,
-20,
-55,
-10,
-18,
31,
-11,
-6,
-56,
-22,
-11,
26,
-8,
14,
-41,
-9,
11,
24,
2,
-23,
15,
-27,
-43,
-3,
72,
9,
39,
-32,
12,
31,
9,
48,
25,
-19,
3,
64,
0,
-63,
-28,
25,
-59,
-27,
59,
-47,
-31,
10,
-14,
17,
3,
-12,
19,
23,
-19,
0,
11,
19,
-18,
0,
-22,
-38,
-23,
-31,
-53,
16,
20,
8,
6,
-9,
32,
-1,
-22,
-14,
-44,
20,
-9,
52,
12,
20,
-11,
18,
-22,
-47,
1,
-17,
28,
-40,
-19,
6,
63,
-1,
-6,
-27,
0,
42,
-15,
-41,
38,
-2,
-10,
-30,
8,
49,
-45,
4,
62,
-20,
-36,
-7,
-59,
-2,
17,
38,
-12,
26,
13,
-82,
-16,
15,
-3,
-54,
-27,
22,
1,
-6,
22,
13,
-14,
-50,
-21,
14,
28,
-22,
-12,
-87,
6,
37,
38,
-34,
15,
37,
-35,
-7,
-12,
46,
-13,
-28,
41,
24,
55,
-26,
-20,
8,
-28,
-23,
60,
1,
-22,
20,
-20,
-18,
-46,
3,
0,
-24,
0,
-19,
10,
-4,
28,
5,
30,
-14,
35,
-30,
13,
15,
0,
42,
5,
0,
-28,
10,
3,
-39,
-2,
19,
-9,
-7,
5,
11,
-75,
-21,
1,
7,
-36,
24,
101,
41,
-28,
-56,
19,
-10,
-30,
-22,
8,
-28,
-3,
22,
-6,
-16,
-18,
40,
1,
17,
38,
5,
-5,
-14,
-13,
-13,
-4,
5,
37,
0,
30,
0,
-17,
-26,
23,
20,
14,
13,
-33,
13,
85,
-38,
-9,
38,
-33,
26,
-24,
0,
41,
36,
5,
-5,
-13,
5,
20,
27,
-14,
23,
42,
18,
45,
-47,
-22,
50,
11,
-41,
-45,
-47,
-21,
-34,
-9,
-5,
66,
-27,
-17,
-7,
5,
59,
-6,
-24,
3,
-36,
32,
-20,
-11,
-12,
-5,
-7,
7,
-1,
-5,
27,
6,
2,
0,
-27,
-6,
-28,
-43,
-13,
-53,
-24,
-8,
0,
-29,
2,
-13,
-36,
39,
-12,
-21,
-6,
38,
25,
5,
-16,
20,
0,
32,
-7,
20,
-8,
-24,
19,
12,
-29,
24,
-33,
-71,
33,
57,
-9,
6,
8,
-66,
-31,
-33,
30,
24,
-39,
30,
-4,
30,
-21,
-9,
0,
0,
44,
-19,
-26,
-8,
-8,
-14,
-31,
27,
-16,
53,
24,
-15,
-11,
2,
40,
-9,
22,
91,
-47,
54,
-11,
78,
56,
-9,
0,
-7,
-9,
-14,
-24,
-8,
-21,
-7,
-18,
-1,
28,
-5,
9,
8,
-3,
-12,
0,
-29,
16,
0,
28,
31,
-38,
56,
-3,
-8,
4,
7,
10,
2,
22,
19,
-32,
-5,
-13,
-12,
-5,
3,
-7,
-13,
72,
-12,
43,
-15,
-31,
-15,
-41,
24,
4,
7,
15,
37,
27,
57,
4,
-44,
77,
59,
-15,
-40,
-11,
-21,
29,
-5,
-66,
-4,
28,
12,
36,
37,
-13,
-51,
-68,
70,
21,
-25,
50,
-10,
43,
-28,
3,
55,
32,
-58,
-22,
61,
-1,
-4,
-38,
-39,
11,
9,
3,
-28,
77,
21,
0,
42,
-24,
-19,
57,
-4,
-5,
14,
-20,
38,
-7,
-28,
29,
22,
16,
60,
14,
-8,
-21,
-2,
-48,
20,
-19,
10,
-33,
13,
24,
10,
-37,
-9,
33,
26,
-43,
-35,
-26,
-1,
11,
-25,
32,
-3,
-14,
10,
-13,
-39,
28,
6,
1,
0,
19,
23,
1,
-25,
-15,
26,
54,
8,
52,
-5,
-17,
-45,
-13,
-17,
38,
1,
13,
-24,
34,
-57,
-42,
40,
7,
-36,
9,
14,
-57,
-16,
21,
8,
-9,
7,
23,
-44,
11,
-67,
7,
-9,
-32,
0,
23,
3,
-57,
-45,
-67,
-11,
19,
-15,
13,
6,
9,
12,
-22,
32,
49,
-36,
-17,
-2,
-41,
10,
55,
4,
34,
54,
-4,
26,
41,
-26,
-9,
4,
-48,
5,
29,
-57,
3,
57,
-15,
8,
39,
16,
-4,
9,
-45,
28,
-33,
-37,
2,
8,
10,
11,
-54,
47,
-2,
5,
-41,
-14,
-15,
-16,
-4,
-10,
29,
-28,
57,
-18,
19,
-16,
8,
-42,
-8,
-27,
16,
-10,
23,
37,
-15,
-51,
-3,
-45,
20,
-25,
11,
35,
3,
-10,
1,
13,
73,
49,
-19,
-37,
-33,
9,
1,
36,
36,
-28,
16,
-10,
-24,
-35,
10,
-32,
8,
12,
-12,
9,
-43,
3,
42,
-14,
-3,
-29,
0,
-3,
-23,
-9,
-40,
-7,
9,
1,
8,
1,
-4,
25,
39,
-9,
-11,
2,
38,
-13,
-13,
7,
-4,
22,
-6,
-13,
-31,
-8,
78,
-14,
11
] |
Per Curiam.
Defendant was convicted in a jury trial of assault with intent to do great bodily harm less than murder, MCLA 750.84; MSA 28.279. He was sentenced to 5 to 10 years in prison. After his motion for a new trial was denied, he appealed.
The sole issue raised on appeal is whether the prosecution submitted sufficient evidence of due diligence to permit the use at trial of the preliminary examination testimony of a res gestae witness who was not produced at trial.
Preliminary examination testimony of a res gestae witness not produced at trial may be used at trial where the prosecution shows due diligence in its efforts to produce the witness. People v McIntosh, 389 Mich 82; 204 NW2d 135 (1973), People v Hunter, 48 Mich App 497; 210 NW2d 884 (1973). As with the prosecution’s duty to produce res gestae witnesses at trial generally (see e.g. People v Smith, 59 Mich App 25; 228 NW2d 826 [1975]), the question of due diligence is a matter within the discretion of the trial court and will be overturned on appeal only where an abuse of discretion is found. People v McIntosh, supra, People v Hunter, supra.
In the present case Linda Hamel was subpoenaed and produced at preliminary examination, where she testified. She was subpoenaed and produced at trial on a Friday morning. The trial, however, was adjourned until the following Tuesday, due to a death in the family of one of the jurors. The prosecution moved that the court find Hamel to be a material witness and require her to post bail or be held in jail, pursuant to MCLA 767.35; MSA 28.975, because she had no permanent place of residence and because she had received certain threatening phone calls. The trial court at first granted the motion. After allowing Ms. Hamel an opportunity to be heard, however, the court changed its decision and denied the motion. Hamel stated that she was living at the Gold Star Motel in Berrien Springs and that she had two small children sick with chicken pox. The court reminded Hamel that she was still under subpoena and received her assurance that she would be in court to testify on Tuesday.
On Tuesday morning Hamel did not show in court. The prosecution moved to read into evidence her testimony at preliminary examination. MCLA 768.26; MSA 28.1049. Before ruling on the motion, the court required the prosecution to present testimony as to what efforts were made to locate Hamel that morning. A deputy sheriff testified that he had served Hamel with a subpoena the previous Friday and that she had said she would be in court on Tuesday. He had given her telephone numbers where he could be reached. She had given him her address at the motel and also gave him a telephone number where she could be reached if she was not at the motel. On Tuesday morning the motel was contacted by telephone. The owner stated that Hamel had departed Sun day evening, leaving some clothes behind. The deputy called the telephone number Hamel had given him but there was no answer. The court then allowed the prosecution to use Hamel’s preliminary examination testimony.
Under these circumstances, we find that it was not an abuse of discretion for the trial court to find due diligence on the part of the prosecution in the efforts that were made to produce Hamel. People v McIntosh, supra. Furthermore, we note that defense counsel did not object to the admission of the preliminary examination testimony, that defense counsel had the opportunity to cross-examine Hamel at preliminary examination, and that Hamel’s testimony with regard to defendant was only that he was present and that he had a gun. She left the room before the assault for which the defendant was convicted took place.
Affirmed. | [
42,
26,
-11,
-1,
-33,
-28,
-32,
-1,
-52,
11,
-9,
-29,
26,
-4,
27,
24,
20,
-35,
41,
-72,
-44,
14,
9,
51,
-53,
-24,
-1,
20,
-12,
-2,
2,
33,
4,
-32,
-1,
-56,
44,
-5,
0,
54,
14,
11,
29,
13,
-35,
-4,
40,
18,
36,
40,
49,
17,
-61,
-21,
-1,
-31,
26,
-19,
-8,
16,
1,
41,
-50,
-32,
-10,
-41,
29,
-30,
-32,
-26,
4,
-8,
-12,
35,
20,
-37,
-25,
-1,
32,
13,
17,
-12,
21,
-14,
25,
13,
-49,
-82,
15,
61,
-9,
2,
-76,
-37,
-12,
0,
58,
-63,
35,
22,
-25,
26,
64,
-3,
-78,
1,
5,
-7,
46,
-14,
54,
-17,
-20,
-17,
26,
-38,
-8,
24,
-42,
-11,
0,
2,
41,
17,
12,
-3,
65,
-47,
6,
-15,
9,
0,
-10,
14,
35,
8,
28,
20,
39,
19,
-44,
34,
14,
-7,
30,
-14,
-33,
3,
-15,
37,
-20,
-17,
3,
34,
31,
-67,
-38,
-4,
5,
47,
1,
31,
-53,
-41,
30,
-15,
-6,
9,
13,
-45,
26,
34,
24,
2,
2,
-5,
40,
-27,
8,
-1,
-13,
61,
28,
10,
38,
12,
-59,
-10,
38,
-54,
-14,
27,
16,
-10,
23,
44,
-21,
11,
26,
9,
-5,
-20,
-7,
-8,
12,
-46,
-11,
-54,
34,
-33,
5,
4,
-35,
-30,
-4,
-43,
0,
-13,
-23,
27,
-41,
-40,
53,
-30,
-33,
52,
10,
-12,
-23,
-41,
63,
21,
3,
-48,
-30,
4,
6,
-61,
56,
-20,
-14,
-46,
48,
7,
17,
21,
-1,
25,
21,
-21,
9,
-22,
12,
19,
0,
-20,
-10,
-15,
-24,
23,
-16,
54,
-27,
25,
-20,
19,
40,
31,
-34,
-32,
17,
7,
10,
6,
-2,
-12,
-20,
16,
20,
5,
15,
10,
-27,
4,
-49,
0,
-59,
25,
7,
0,
22,
-11,
-48,
3,
49,
8,
-2,
21,
-28,
15,
75,
10,
-38,
-1,
-13,
-5,
0,
44,
-29,
-33,
51,
29,
-27,
-29,
-2,
-31,
-19,
-72,
44,
0,
-22,
-55,
-16,
-10,
15,
5,
-6,
-55,
6,
35,
-19,
25,
14,
11,
5,
6,
-47,
7,
-8,
-11,
-7,
-14,
-39,
-16,
-12,
39,
18,
-6,
-8,
-14,
50,
0,
24,
10,
-13,
-36,
-13,
-32,
20,
-2,
20,
1,
11,
0,
17,
-23,
9,
-22,
17,
35,
-18,
-102,
11,
-61,
-29,
-30,
-3,
-36,
10,
47,
3,
-42,
16,
4,
-63,
36,
12,
14,
-14,
2,
-12,
-46,
27,
-27,
-3,
14,
-30,
38,
27,
-13,
8,
3,
13,
20,
-39,
-37,
-43,
32,
27,
50,
28,
72,
-4,
28,
28,
-64,
8,
-31,
-15,
-20,
13,
-5,
18,
-4,
-9,
-1,
-26,
-6,
36,
-33,
2,
6,
45,
-19,
58,
29,
0,
34,
-2,
-2,
-34,
-29,
-35,
37,
34,
55,
23,
-49,
-6,
-33,
-12,
7,
24,
-36,
4,
16,
33,
30,
-3,
37,
-17,
-13,
12,
17,
78,
20,
-45,
-21,
1,
11,
78,
9,
14,
-2,
-70,
23,
-34,
49,
19,
39,
18,
13,
-27,
-17,
-9,
-6,
-17,
-31,
17,
64,
1,
-21,
-19,
81,
-57,
7,
-16,
-23,
22,
-1,
-2,
-27,
9,
9,
23,
-37,
46,
-16,
-13,
-36,
-17,
-5,
0,
-21,
-30,
-55,
36,
-16,
12,
30,
6,
-23,
-27,
-3,
-55,
-36,
-24,
-19,
2,
3,
47,
26,
-14,
-6,
17,
-11,
-46,
-31,
-36,
5,
-28,
54,
17,
-35,
27,
-20,
21,
-44,
-1,
26,
25,
12,
8,
-2,
3,
7,
-2,
9,
24,
-41,
-19,
44,
32,
57,
35,
-41,
-40,
-11,
61,
3,
15,
84,
-13,
25,
-18,
40,
35,
88,
24,
21,
-17,
31,
5,
0,
-49,
10,
41,
0,
45,
5,
-57,
-30,
24,
-41,
-43,
-18,
-14,
-63,
27,
13,
10,
16,
-41,
7,
4,
6,
-14,
21,
42,
-42,
39,
-22,
-54,
10,
-16,
-40,
-28,
-14,
-32,
48,
10,
-8,
-20,
9,
-42,
-21,
-29,
33,
-14,
-30,
-48,
-16,
-15,
-19,
-23,
10,
-36,
-21,
-33,
-23,
0,
13,
-25,
-1,
-1,
-41,
-15,
-13,
-33,
-33,
45,
20,
30,
-30,
34,
10,
19,
16,
50,
-6,
28,
-13,
-70,
-18,
27,
24,
2,
19,
15,
18,
11,
4,
4,
17,
-40,
-7,
18,
-10,
13,
6,
-12,
4,
38,
-11,
8,
5,
-60,
16,
23,
-22,
8,
23,
13,
-9,
3,
-45,
15,
40,
8,
0,
-26,
7,
-14,
11,
38,
19,
-20,
-52,
6,
17,
-36,
53,
30,
2,
11,
-23,
-74,
19,
83,
1,
10,
30,
0,
38,
13,
24,
38,
31,
47,
-8,
16,
38,
20,
-21,
6,
2,
40,
20,
-24,
25,
-13,
11,
11,
-56,
-28,
-6,
16,
-18,
11,
-15,
40,
41,
48,
47,
-42,
19,
34,
-39,
-14,
-21,
14,
32,
-54,
-84,
-21,
-20,
-16,
-18,
43,
30,
-51,
-12,
39,
-9,
-46,
0,
-40,
-2,
68,
4,
46,
-21,
0,
-14,
39,
-30,
15,
0,
1,
-31,
9,
-35,
-35,
20,
27,
5,
13,
-19,
9,
53,
16,
-18,
14,
-11,
-16,
-5,
-40,
0,
16,
-33,
41,
-5,
-67,
-1,
0,
3,
33,
-48,
53,
0,
-5,
3,
-9,
-23,
3,
2,
3,
-44,
-26,
-32,
1,
2,
27,
28,
-1,
-56,
-21,
77,
-13,
18,
25,
16,
-33,
36,
38,
-10,
3,
10,
33,
24,
22,
18,
44,
-23,
-40,
-33,
-16,
-11,
0,
2,
-13,
19,
-37,
-41,
-37,
31,
-32,
-4,
48,
-29,
10,
27,
-7,
76,
-13,
27,
-34,
17,
-20,
80,
20,
-13,
2,
8,
-16,
-22,
47,
-27,
-11,
-18,
-5,
60,
7,
-11,
-11,
-35,
76,
-47,
-23,
16,
-43,
-17,
-16,
46,
60,
-13,
10,
-41,
-51,
10,
-43,
36,
3,
9,
12,
-11,
-18,
-33,
37,
-5,
0,
47,
-40,
1,
-8,
-47,
-7,
-31,
-38,
39,
23,
24,
-27,
-38,
8,
-50,
11,
-94,
-21,
7,
0,
28,
-99,
31,
-27,
-23,
-31,
-16,
3,
29,
-46,
-89,
-50,
10,
-5,
0,
17,
-4,
-8,
4,
-8,
9,
-16,
-23,
27,
10,
-43,
-45,
16,
37,
29,
-26,
2,
-59,
8,
-34,
0,
23,
-18,
0,
-15,
-53,
40,
-47,
-6,
-38,
-13,
12,
-16,
-36,
12,
3,
26,
33,
-11,
43,
-7,
-25,
1,
40,
11,
55,
13,
39,
4,
-15,
6,
-14,
-42,
37,
13,
-5,
37,
-21,
-6,
22,
-50,
-29,
-26,
-34,
3,
54,
4,
33
] |
Danhof, J.
On September 23, 1974, defendant Willie Lee Dockery entered a plea of guilty to the charge of attempted use of a credit card known to be held or obtained without the consent of the cardholder. MCLA 750.157q; MSA 28.354(16), and MCLA 750.92; MSA 28.287. The defendant was sentenced to a term of a minimum of one year to a maximum of two years in prison on January 7, 1975. The defendant now appeals from the sentence.
In providing a factual basis for his plea of guilty, the defendant informed the trial court that he had pulled up to a Sears gas station and was getting a fill-up of gas, which he attempted to pay for by using the stolen credit card. He stated that he knew such use and possession of the credit card, which had another person’s name on it, was without the consent of the cardholder. The defendant further indicated he had found the credit card near a highway intersection in Flint, Michigan.
The sentencing in this matter was originally set to occur on October 29, 1974. On that date, the trial court questioned the defendant about the circumstances surrounding his use and possession of the credit card. The trial court stated:
"The Court: Well, I think there are some things that I should inquire about. The presentence report advises me that the credit card that you were using on the day that you were apprehended belonged to a Harold Light, a grocer. It was taken from him when his grocery was robbed, and prior to the time that you were apprehended with that card in your possession, a number of charges had been made against it totaling one-thousand, three-hundred and seventy-three dollars and twenty-one cents.”
The defendant stated that he had no knowledge of the robbery and he denied using the credit card for the additional charges. The defendant did admit pasting his own picture on the driver’s license found with the credit card. He further responded that he had found the credit card two or three days prior to his attempted use of it at the gas station. The trial court then stated:
’’The Court: Well, Mr. Dockery, it would seem to me to be a very perverse twist of fate for a person with your substantial felony record to have found this wallet just a couple of days before you are arrested and have you paste over his driver’s license your own picture when someone else, before that credit card and his license were on the ground, had charged up some thirteen-hundred dollars worth of fraudulent charges, and I do not believe you.
"I am therefore faced with a problem. If I am going to impose sentence upon you at this moment, I am going to sentence you on the assumption that your limited contacts with that credit card, that you admit here today, is untrue, but I would give you the opportunity to take a lie detector test with respect to these questions that I have asked you, and if you want to have an adjournment of this sentence so that you can have a lie detector test with respect to whether indeed you did find that wallet, his driver’s license and credit card just a couple or three days before, and I will grant the adjournment. What do you want to do?”
The defendant stated that he would take the lie detector test and the sentence was adjourned.
On the date the defendant was sentenced, the trial court read the following polygraph test results, which were attached to the presentence report:
"Physiological reactions given on the examination of Willie Dockery were sufficient to indicate deception, and it is the opinion of the polygraphist that he did not find the stolen credit card near the expressway that he did have it more than three or four days, and that he did use the card prior to July thirtieth to obtain merchandise from Sears.”
The defense attorney then objected to the use of the polygraph examination against the defendant. In sentencing the defendant, the court stated:
"The Court: Well, with respect to Mr. Yuille’s [defense attorney] remarks, I am not going to say anything except to refer to the transcript that will be in the file concerning the occasion when on October the twenty-ninth, 1974, if my recollection is correct, you indicated a desire to have a polygraph examination, and it seems to me that in this case, all things taken into consideration, that the sentence that I should impose is one of imprisonment. ”
The issue raised on appeal is whether the trial court erred by imposing a polygraph examination on the defendant and then using the results of that examination to determine the sentence.
MCLA 771.14; MSA 28.1144 reads in relevant part:
"Sec. 14. Before sentencing any person charged with a felony, and, if directed by the court, in any other case where any person is charged with a misdemeanor within the jurisdiction of the court, the probation officer shall inquire into the antecedents, character and circumstances of such person or persons, and shall report thereon in writing to such court or magistrate.”
As to the above statute, People v Lee, 391 Mich 618, 636; 218 NW2d 655 (1974) stated:
"Under the statutory language, providing for inquiry into the defendant’s 'antecedents, character, and circumstances’, there are no formal limitations on the contents of the presentence report, but there are limitations dictated by due process.”
In discussing the due process limitations on the presentence report, the court in People v Lee, supra, 638, ruled:
"We will not sanction a judge’s making an assumption of guilt of other crimes on the basis of the presentence report. This is why courts reserve the authority to modify sentences where inappropriate considerations appear to have improperly affected the sentence.”
Thus, the sentencing court may not assume the defendant is guilty of other crimes based on the presentence report.
Another limit imposed by due process is set forth by the court in People v Hildabridle, 45 Mich App 93, 95; 206 NW2d 216 (1973):
"Due process requires that a sentence not be based upon inaccurate information. When imposing sentence a judge may consider alleged criminal conduct which has not resulted in conviction. However, once a defendant has denied such allegations, the sentencing judge may consider such other criminal conduct only if presented with information establishing the validity of the other charges. People v Zachery Davis, 41 Mich App 683; 200 NW2d 779 (1972).”
People v Davis, 343 Mich 348, 371; 72 NW2d 269 (1955), found that according to various authorities the percentage of error in polygraph examination results was between 10% and 25%. People v Levelston, 54 Mich App 477, 479; 221 NW2d 235 (1974), stated the expert testimony in that case indicated a 10% error factor in polygraph examinations. As related to the admissibility of such tests in the determination of a sentence, People v Allen, 49 Mich App 148, 152; 211 NW2d 533 (1973), stated:
"Until polygraph tests become scientifically more reliable they must not become a part of a defendant’s presentence report unless he consents to their inclusion.”
The Allen court found it improper for the trial court to even ask the defendant if he were willing to take a polygraph examination.
Therefore, in light of the present state of the case law, a polygraph examination is not sufficiently accurate under due process to allow it to be imposed upon the defendant during sentencing in order to determine whether he is guilty of other criminal conduct.
In the present case, the trial court expressly assumed the defendant was lying as to his limited use of the credit card. It is apparent from the record of October 29, 1974 that the trial court implied the defendant was guilty of further misuse of the credit card in connection with an additional $1,300 in charges since the card was stolen. In line with People v Lee, supra, it was error for the trial court to assume such guilt based solely upon the presentence report indicated on the record.
Within this context, the defendant was asked if he would take a polygraph examination. Faced with an adverse result otherwise, the defendant stated he would take the test. This did not constitute a voluntary consent. Upon receiving the polygraph examination results, which apparently confirmed its earlier assumption of guilt, the trial court gave the sentence. Based upon the aforementioned authority concerning the inaccuracy of polygraph tests, the trial court erred in basing its sentence on the information so derived.
Under the principles of due process, we hold the defendant’s present sentence cannot stand. The defendant must now be resentenced before a different judge.
Remanded for proceedings consistent with this opinion. We do not retain further jurisdiction. | [
15,
-2,
22,
30,
-57,
-45,
12,
-20,
-13,
51,
52,
-23,
-17,
-4,
0,
11,
56,
0,
-17,
-38,
17,
-59,
59,
29,
-8,
19,
7,
42,
-12,
50,
-11,
11,
0,
-37,
-33,
1,
10,
-11,
53,
49,
-29,
-6,
38,
0,
9,
-21,
0,
-36,
-7,
-39,
28,
-23,
34,
14,
23,
2,
6,
-35,
6,
1,
-22,
-14,
29,
-4,
-10,
-45,
-12,
13,
-46,
22,
18,
-29,
-10,
29,
23,
-26,
-4,
13,
13,
-12,
-35,
-4,
11,
-18,
-17,
-11,
12,
-32,
32,
-59,
-29,
-6,
-8,
0,
48,
-41,
36,
-28,
20,
-30,
-17,
-30,
-46,
14,
-8,
5,
27,
-49,
-76,
-7,
-2,
-9,
27,
-45,
-17,
-36,
-39,
24,
48,
-6,
-20,
-14,
19,
14,
5,
-3,
-37,
-25,
-15,
38,
-6,
13,
-41,
15,
-32,
24,
-1,
22,
50,
-16,
-31,
25,
8,
-4,
10,
-3,
-9,
8,
-24,
34,
-18,
-14,
1,
19,
-16,
39,
-8,
-33,
-23,
-66,
-28,
-29,
39,
-12,
21,
-16,
1,
-18,
-12,
-28,
1,
-14,
19,
24,
33,
-1,
36,
39,
34,
-45,
-19,
22,
-51,
30,
-37,
17,
9,
-12,
-44,
-4,
-8,
-3,
-26,
9,
19,
34,
-20,
19,
57,
-20,
-55,
-59,
54,
11,
39,
-40,
17,
-53,
19,
-32,
-25,
-35,
57,
-34,
7,
27,
44,
-48,
43,
0,
-21,
-12,
19,
24,
-50,
0,
-12,
52,
-12,
18,
3,
-10,
-12,
39,
4,
17,
22,
-51,
18,
42,
-1,
-33,
30,
0,
64,
21,
-46,
11,
-25,
5,
-50,
-21,
-56,
26,
-68,
26,
25,
-29,
-1,
63,
-49,
2,
23,
29,
-27,
6,
11,
5,
-80,
-21,
3,
-34,
0,
-17,
30,
-11,
-50,
18,
11,
-40,
26,
-51,
23,
25,
34,
-28,
-32,
48,
41,
-1,
20,
-19,
35,
3,
29,
-23,
17,
-28,
-45,
-26,
-11,
-31,
-73,
-32,
-6,
-8,
70,
1,
-22,
0,
2,
-17,
15,
-23,
49,
-13,
42,
-39,
37,
61,
5,
-17,
12,
-7,
-29,
5,
27,
39,
-8,
-13,
0,
43,
-14,
-10,
-24,
-4,
-3,
-16,
-21,
27,
-26,
-51,
-16,
3,
26,
10,
0,
-12,
-59,
-58,
4,
-30,
-4,
22,
16,
17,
-9,
-10,
-2,
5,
38,
16,
-64,
-68,
84,
-36,
-8,
27,
32,
64,
18,
-29,
-42,
9,
15,
-20,
-23,
-70,
-17,
12,
19,
-23,
50,
-16,
25,
-59,
-61,
-99,
-20,
53,
-21,
10,
-5,
-35,
10,
-21,
18,
-11,
19,
-47,
6,
21,
43,
38,
-30,
-2,
-39,
19,
11,
-58,
8,
-17,
-23,
61,
5,
3,
71,
-20,
14,
-52,
40,
38,
-31,
-71,
51,
-10,
-1,
33,
-17,
-28,
61,
44,
-6,
-19,
16,
13,
-39,
14,
0,
-28,
21,
-49,
10,
22,
36,
-7,
-49,
-47,
24,
-35,
-2,
36,
-20,
32,
20,
115,
-12,
12,
-64,
-56,
23,
10,
-17,
-11,
22,
-20,
-13,
0,
42,
11,
-10,
44,
0,
8,
-17,
-6,
31,
-2,
-34,
28,
-38,
34,
-32,
-3,
-6,
-26,
-13,
-44,
-31,
77,
-3,
-6,
-33,
25,
33,
24,
-37,
24,
-10,
-1,
-59,
-46,
0,
30,
32,
-4,
29,
-2,
9,
-7,
-35,
35,
-17,
-23,
9,
-24,
4,
16,
-6,
34,
14,
-19,
-6,
24,
-36,
16,
-1,
-25,
-42,
-1,
8,
-10,
17,
-60,
0,
-6,
19,
-12,
-26,
-26,
35,
29,
37,
-21,
-23,
-20,
15,
-33,
-22,
-3,
-15,
46,
72,
16,
-32,
-20,
-30,
-5,
-27,
-16,
-104,
65,
31,
-7,
-19,
19,
9,
-14,
0,
-15,
-34,
15,
7,
23,
-26,
63,
-8,
-7,
-3,
41,
36,
40,
-24,
-25,
-50,
57,
1,
-4,
27,
-5,
11,
12,
46,
-27,
34,
20,
-76,
-76,
21,
-11,
22,
21,
-29,
39,
64,
-53,
-29,
57,
-16,
-10,
28,
46,
1,
-11,
3,
-17,
11,
-42,
-52,
2,
70,
-18,
16,
13,
-22,
-3,
-54,
-56,
-21,
-6,
-24,
26,
49,
16,
-24,
-30,
-13,
41,
-35,
-6,
14,
35,
-35,
29,
21,
40,
16,
-21,
5,
-87,
-67,
14,
13,
28,
31,
22,
-38,
30,
12,
2,
-47,
28,
-43,
25,
12,
33,
8,
-10,
54,
-44,
12,
-73,
-9,
-10,
0,
9,
-40,
-20,
32,
-25,
-36,
22,
-2,
-37,
-14,
58,
-4,
13,
40,
3,
-17,
-10,
-41,
28,
66,
-9,
36,
23,
-40,
-23,
25,
-21,
-63,
28,
-11,
-3,
3,
-23,
-35,
42,
4,
44,
-13,
5,
3,
-39,
-15,
5,
-58,
69,
-61,
-45,
9,
3,
-19,
12,
-22,
2,
-18,
-23,
24,
-10,
-13,
-14,
2,
23,
-25,
-4,
-6,
35,
-34,
14,
15,
-8,
-8,
-29,
-34,
-10,
67,
-8,
25,
9,
-21,
19,
3,
37,
21,
-18,
-30,
-39,
-39,
26,
-4,
-4,
0,
31,
34,
-34,
61,
-40,
-53,
-53,
-32,
41,
-48,
49,
26,
-66,
72,
33,
-19,
32,
3,
0,
62,
6,
-55,
20,
38,
16,
25,
-39,
-35,
0,
-27,
48,
-16,
14,
65,
-12,
15,
31,
30,
21,
-30,
-10,
26,
14,
-25,
-32,
8,
-4,
6,
15,
31,
19,
12,
-24,
-6,
12,
19,
9,
-42,
-46,
-19,
44,
14,
2,
-18,
29,
-33,
18,
61,
17,
-10,
22,
-22,
13,
-10,
0,
14,
-30,
21,
35,
-4,
-15,
51,
8,
58,
19,
51,
-27,
-36,
-14,
-24,
-10,
-3,
58,
46,
-35,
0,
-2,
-31,
-1,
21,
7,
5,
-9,
2,
6,
21,
51,
42,
28,
8,
34,
12,
0,
-29,
-42,
-37,
-29,
84,
28,
43,
-24,
11,
15,
-40,
-17,
-33,
73,
-54,
-22,
-31,
-19,
22,
-17,
43,
-27,
74,
19,
-30,
-29,
13,
15,
7,
-12,
-42,
30,
23,
-15,
7,
45,
-9,
-14,
18,
52,
37,
-31,
10,
47,
64,
34,
31,
-24,
32,
-27,
-4,
34,
-69,
53,
0,
6,
-34,
6,
0,
-40,
-2,
39,
-45,
-7,
-34,
9,
-48,
50,
31,
-43,
2,
-11,
-8,
-4,
-76,
3,
10,
-29,
-11,
-25,
-8,
28,
-27,
80,
-10,
-22,
46,
58,
-3,
-37,
-29,
9,
-34,
-34,
-9,
-29,
42,
-26,
1,
-13,
10,
-5,
0,
8,
-52,
0,
25,
18,
-6,
13,
16,
-7,
-5,
-16,
-17,
52,
53,
22,
38,
42,
-23,
-2,
-1,
21,
-16,
11,
-51,
-27,
32,
52,
7,
-29,
-10,
-60,
35,
9,
23,
0,
-25,
3,
-14,
51,
-45,
-27,
-19,
66
] |
Per Curiam.
On April 18, 1974, Henry Lee Scott was found guilty by a jury of armed robbery. MCLA 750.529; MSA 28.797. He was sentenced to a term of a minimum of 10 years to a maximum of 20 years in prison on June 17,1974.
The first issue raised on appeal is whether certain comments by the prosecutor in his closing argument amounted to reversible error by denying the defendant a fair trial.
The defendant did not object at the trial to the comments made by the prosecutor in his closing argument.
People v McLendon, 51 Mich App 543, 547; 215 NW2d 742 (1974), states the applicable standard of review:
"The general rule in Michigan is that a defendant’s failure to object to allegedly improper remarks made by the prosecutor during closing argument precludes appellate review unless it can be said that an objection and the appropriate curative instruction could not have eliminated the prejudice arising from the prosecutor’s statements. People v Tarpley, 41 Mich App 227; 199 NW2d 839 (1972), People v Humphreys, 24 Mich App 411; 180 NW2d 328 (1970).”
Further, a prosecutor’s remarks must be read in the context in which they are made, including his closing argument as a whole and the evidence admitted at trial. People v Cowell, 44 Mich App 623, 627; 205 NW2d 600 (1973).
If there was any prejudice to the defendant left uncorrected, it is apparent from the record that a timely objection and an appropriate instruction could have cured it. However, a review of the record indicates that the prejudicial remarks of the prosecutor, if any, were not such as to deny the defendant a fair trial. When read in context, some of the claimed prejudicial remarks amounted to no more than an unfortunate choice of words. Other remarks were counterbalanced by the cautionary statements of the trial court and the prosecutor not to consider the arguments of attorneys as evidence. Finally, there was strong direct and circumstantial evidence against the defendant. Under these facts and the applicable standard set forth above, no reversible error occurred in the instant case.
The next issue raised is whether it was reversible error to introduce evidence of the defendant’s association with another man identified as one of the robbers.
The defendant did object to admission of such evidence at trial on the grounds of relevancy but the evidence was admitted over objection.
Absent a countervailing policy, association may have sufficient probative value to allow its admission to prove identity. People v Bailey, 36 Mich App 272, 277-278; 193 NW2d 405. (1971). Association is especially probative where it is "interconnected” with other proofs. See dissent by Levin, J., supra, at 285.
In the present case, evidence of the defendant’s association with another man is interconnected with other proofs. The police picked up the defendant a short time after the robbery in a car driven by the other man. There was evidence that a description of that car and its license number had been given to the police by one of the eyewitnesses to the robbery before the defendant was picked up. Coats identified as those worn by the robbers, which were found in the car with the defendant and the other man, were also admitted into evidence. Testimony showing travel time from the site of the robbery to where the defendant was arrested further linked the defendant and the other man to the crime. In this framework, admission of evidence that the other man was identified as one of the robbers was highly relevant. The fact of association with an identified robber combined with the other circumstantial proofs made the inference more than reasonable that the defendant was also one of the robbers and not a mere friend who had a coincidental meeting with the other man. No reversible error occurred with admission of such evidence.
The third issue raised on appeal is whether the trial court committed reversible error by improperly instructing the jury on the intent element of armed robbery.
No objection was made to the trial court’s instructions.
While this alleged error is not properly before the Court, the instructions of the trial court, reviewed as a whole, were sufficient and "not inconsistent with substantial justice”. People v Fry, 55 Mich App 18, 26; 222 NW2d 14 (1974). The weight of the evidence against the defendant was sufficient to offset an incomplete, though not misleading, definition of the intent element of the crime.
Affirmed.
In the future, the suggestion of the Supreme Court should be followed "that the prosecutor take pains to avoid even the appearance of improper argument”. People v Bennett, 393 Mich 445, 451; 224 NW2d 840 (1975). | [
-17,
14,
11,
-24,
-24,
-17,
-26,
-43,
-63,
38,
-23,
-4,
-17,
2,
15,
-29,
-36,
-17,
-16,
-38,
19,
5,
34,
18,
-31,
-22,
-4,
53,
56,
-10,
-2,
21,
15,
-19,
36,
-46,
53,
-1,
-23,
41,
15,
-13,
25,
-22,
-57,
-1,
29,
-6,
-6,
8,
15,
-19,
42,
28,
-8,
29,
0,
27,
-8,
-4,
11,
28,
-46,
-19,
21,
-33,
7,
22,
20,
-17,
-30,
66,
42,
-12,
-21,
-48,
33,
-19,
1,
-26,
-44,
-5,
48,
-29,
6,
-38,
37,
-14,
-18,
-11,
-10,
24,
24,
-27,
47,
18,
22,
-36,
20,
-44,
-47,
0,
-10,
-1,
-45,
-1,
-64,
-24,
-31,
46,
26,
42,
29,
-36,
-56,
-63,
18,
11,
26,
-4,
18,
14,
44,
-2,
30,
14,
24,
-49,
36,
-41,
41,
46,
17,
-12,
7,
11,
20,
11,
-44,
18,
-10,
14,
11,
-67,
52,
22,
-62,
22,
33,
-5,
-44,
53,
-12,
2,
-13,
-55,
-27,
-53,
-13,
-14,
9,
12,
-47,
13,
22,
-12,
-29,
-23,
40,
-18,
4,
-1,
48,
39,
20,
-38,
22,
-31,
-30,
12,
11,
15,
27,
-6,
-39,
-9,
13,
-1,
-86,
-27,
26,
32,
-11,
3,
47,
5,
-29,
29,
26,
40,
-34,
-25,
0,
45,
-31,
-2,
7,
-11,
32,
41,
-17,
0,
5,
5,
30,
-60,
-26,
35,
-1,
43,
-12,
-40,
6,
-2,
33,
0,
11,
2,
-9,
-1,
21,
55,
-2,
-79,
-42,
19,
24,
30,
40,
-11,
1,
-15,
38,
-21,
-11,
-11,
13,
17,
14,
14,
18,
-2,
33,
4,
-71,
13,
5,
-25,
-40,
19,
-29,
-1,
-5,
-33,
-24,
77,
-29,
27,
-35,
-22,
59,
-53,
30,
61,
9,
-11,
-43,
-7,
-3,
-25,
7,
26,
34,
5,
7,
-5,
-37,
38,
26,
-13,
71,
14,
-31,
-22,
63,
4,
0,
23,
-50,
-4,
29,
-6,
-16,
-32,
15,
-2,
0,
17,
-22,
-10,
32,
-15,
11,
52,
1,
18,
-21,
-24,
34,
15,
-30,
-8,
-24,
-72,
1,
13,
15,
-27,
-52,
-57,
9,
28,
23,
30,
24,
17,
17,
17,
21,
9,
-13,
-28,
-42,
-18,
16,
36,
-12,
18,
-59,
-9,
-2,
37,
9,
-5,
0,
-31,
-48,
-26,
37,
-6,
15,
-32,
-5,
-16,
-6,
39,
-29,
-44,
7,
52,
-2,
-12,
-8,
-7,
-29,
17,
91,
-17,
-27,
15,
-21,
48,
6,
-34,
-32,
8,
-27,
-5,
-23,
27,
-46,
-26,
-11,
-12,
-33,
13,
-23,
28,
32,
-33,
-31,
-1,
10,
7,
-4,
47,
-68,
-25,
9,
0,
-29,
48,
43,
46,
-19,
-55,
42,
-51,
34,
-43,
9,
-6,
46,
0,
-11,
-6,
-12,
0,
15,
-33,
37,
50,
3,
-46,
-10,
60,
-45,
12,
24,
-13,
-87,
-14,
8,
21,
15,
2,
0,
-8,
17,
10,
7,
5,
-2,
-64,
-14,
26,
-21,
-50,
22,
34,
7,
-54,
-20,
-15,
7,
-44,
-24,
-38,
15,
-5,
41,
12,
35,
46,
-31,
-18,
24,
8,
14,
12,
52,
20,
17,
-22,
-18,
-20,
-49,
-29,
2,
-42,
-6,
46,
-16,
-3,
-23,
4,
-14,
-10,
-7,
-54,
-26,
-5,
20,
-38,
53,
-15,
-1,
-58,
28,
47,
15,
57,
-20,
26,
2,
2,
26,
-10,
-1,
12,
-5,
-22,
-10,
32,
-33,
-7,
-75,
-14,
-19,
4,
37,
26,
-35,
-1,
69,
53,
-5,
-51,
-21,
-1,
-15,
-23,
34,
36,
-2,
-11,
0,
-50,
73,
31,
48,
9,
5,
-36,
-17,
-7,
-5,
-8,
22,
-27,
-22,
28,
14,
51,
-2,
6,
-14,
-35,
57,
-5,
29,
24,
-12,
4,
-49,
10,
31,
-3,
23,
35,
2,
35,
-33,
11,
-11,
-31,
10,
7,
5,
2,
-37,
39,
30,
-11,
-83,
22,
-63,
-56,
46,
11,
53,
31,
10,
22,
71,
29,
0,
-20,
-28,
-13,
38,
-11,
-56,
22,
-13,
21,
-23,
43,
-34,
51,
-1,
-1,
-2,
-14,
8,
-10,
-48,
-31,
-9,
-5,
25,
-9,
-30,
-13,
-41,
5,
-2,
-8,
-18,
9,
0,
44,
19,
0,
26,
13,
-48,
50,
33,
-12,
-20,
23,
5,
-55,
6,
-11,
-25,
-4,
18,
-22,
-9,
21,
-78,
-26,
-11,
14,
-13,
-9,
51,
0,
18,
15,
-22,
35,
13,
35,
-8,
5,
10,
-1,
-12,
-19,
-5,
-36,
-1,
8,
-55,
36,
15,
54,
-30,
72,
0,
-28,
54,
-8,
41,
79,
-44,
0,
27,
-36,
6,
-44,
33,
-13,
-11,
-64,
46,
-28,
-10,
41,
-17,
18,
6,
11,
-63,
-14,
-24,
32,
-33,
-17,
12,
-27,
2,
-27,
24,
-1,
43,
44,
1,
19,
45,
13,
11,
30,
-4,
6,
-34,
-12,
-17,
18,
7,
-55,
-9,
-7,
13,
13,
-30,
18,
58,
37,
40,
-1,
-66,
36,
43,
2,
-41,
13,
-23,
0,
-46,
-54,
-28,
16,
26,
0,
59,
0,
-30,
-74,
-19,
56,
-18,
16,
6,
-2,
22,
-12,
7,
52,
0,
10,
15,
9,
16,
-22,
-37,
-59,
-17,
-15,
-52,
46,
-7,
-11,
42,
-26,
-9,
7,
-21,
-29,
35,
-33,
-18,
-25,
22,
27,
12,
16,
29,
10,
-31,
-15,
-16,
-15,
8,
18,
27,
-19,
6,
40,
51,
-45,
-23,
38,
-3,
-27,
-9,
-23,
36,
5,
-37,
72,
34,
-19,
31,
52,
17,
4,
30,
19,
-24,
11,
51,
14,
15,
-53,
24,
-28,
16,
-17,
-13,
0,
-15,
31,
29,
-68,
23,
-27,
21,
21,
-39,
-6,
-28,
50,
14,
-23,
3,
17,
-34,
3,
5,
-20,
-20,
56,
-32,
8,
-47,
11,
-3,
-82,
40,
35,
-4,
-73,
-24,
-53,
-37,
-18,
-27,
13,
17,
-13,
-14,
-17,
31,
-7,
-4,
-7,
15,
-11,
-35,
10,
22,
1,
24,
1,
-34,
23,
-49,
-29,
25,
11,
-18,
17,
-53,
-31,
39,
-39,
-23,
54,
-2,
19,
9,
-46,
11,
-21,
-16,
16,
-20,
52,
-1,
-52,
-47,
-24,
-27,
-46,
11,
-13,
-40,
2,
-20,
19,
-43,
-4,
-33,
29,
-19,
35,
-45,
10,
-7,
41,
28,
-12,
3,
-18,
-21,
-6,
-16,
30,
-35,
-14,
30,
29,
1,
-18,
18,
27,
27,
-54,
-14,
-38,
22,
-11,
18,
-20,
-22,
-1,
0,
-27,
-4,
0,
18,
-85,
11,
39,
6,
-5,
24,
2,
0,
-5,
32,
9,
30,
-20,
-30,
3,
-13,
21,
29,
18,
-19,
26,
-24,
30,
-4,
-4,
19,
-8,
-2,
35,
-4,
11,
19,
5,
-21,
6,
-54,
71,
-39,
29
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.