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Danhof, P. J.
This cause of action arises out of an automobile accident which occurred on November 1, 1970. As a result of this accident, Betty Liggens allegedly suffered a miscarriage. The fetus was not "viable”. Prior to the trial of this action, defendant brought a motion for summary judgment pursuant to GCR 1963, 117 on the basis that this action was not maintainable as Baby Liggens was not medically viable. On September 24, 1974, the Honorable James N. Canham entered an order granting defendant’s motion for summary judgment. Plaintiff appeals from this order. There was no written opinion.
The decedent was a three-month-old infant en ventre sa mere.
The only issue presented in this case is whether a three-month-old infant en ventre sa mere, not born alive, is a "person” within the wrongful death act. MCLA 600.2922; MSA 27A.2922.
The word person has not previously been interpreted this broadly under this act in Michigan.
MCLA 600.2922(1); MSA 27A.2922(1) reads as follows:
"Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.”
Even though the wrongful death act is for the benefit of certain persons, the cause of action is a derivative one whereby the personal representative of the deceased stands in the latter’s shoes. Maiuri v Sinacola Construction Co, 382 Mich 391, 395-396; 170 NW2d 27 (1969). The suit is brought on behalf of the deceased. The cause of action belongs to the deceased. When an action is brought under the wrongful death act for the death of a fetus, the rights alleged are those of the fetus. It is not a suit for injuries to the mother, either physical or mental, accompanying or resulting from the loss of the fetus. Therefore, the case law discussed will relate to the right of the infant to recover for prenatal injuries.
Womack v Buchhorn, 384 Mich 718, 721-722; 187 NW2d 218 (1971), stated that 27 American jurisdictions allowed recovery for prenatal injury. An examination of those jurisdictions indicated that in each case where recovery was allowed the fetus was either viable or survived birth for at least a short time. Libbee v Permanente Clinic; 268 Or 258; 518 P2d 636, 638 (1974), provides an even more relevant survey of the various jurisdictions. Libbee stated that 19 jurisdictions expressly allowed recovery for the death of a viable unborn infant, while 12 jurisdictions expressly prohibit recovery. The cases reviewed in the Annotation, Liability for Prenatal Injuries, 40 ALR3d 1222, limit recovery for death or injury to either a viable fetus or a child injured before birth but born alive.
None of the cases allowed recovery for the death of a three-month-old nonviable fetus that was not born alive. However, several jurisdictions did expressly prohibit recovery for the death of a nonviable fetus that was not born alive.
O’Neill v Morse, 385 Mich 130; 188 NW2d 785 (1971), has extended the law under Michigan’s wrongful death statute to allow an action on behalf of an eight-month-old viable fetus en ventre sa mere.
The discussion by the O’Neill Court of prenatal life more aptly describes a viable fetus. The Court stated, supra, at 135:
"The instructive dissent of Mr. Justice Boggs, in Allaire v St. Lukes Hospital, 184 Ill 359 (56 NE 638), at 368, was written in 1900. His view has been largely adopted in this country.
"The majority in that case held:
" 'That a child before birth is, in fact, a part of the mother and is only severed from her at birth, cannot, we think, be successfully disputed.’
"Justice Boggs wrote:
" 'Medical science and skill and experience have demonstrated that at a period of gestation in advance of the period of parturition the foetus is capable of independent and separate life, and that though within the body of the mother it is not merely a part of her body, for her body may die in all of its parts and the child remain alive and capable of maintaining life when separated from the dead body of the mother.’ ”
The nonviable fetus by definition is deemed not capable of living outside its mother’s womb. The court further stated at 137:
"A fetus having died within its mother’s womb is dead; it will not come alive when separated from her. A fetus living within the mother’s womb is a living creature; it will not die when separated from her unless the manner, the time or the circumstances of separation constitute a fatal trauma.”
While much of the language in O’Neill is ambigú ous as regards viability, it does tend to exclude the nonviable fetus from its discussion.
O’Neill v Morse, supra, at 133, also discussed the case of Womack v Buchhorn, supra, in connection with the first section of the wrongful death statute:
"In Womack, we overruled, Newman v Detroit, 281 Mich 60 [274 NW 710] (1937), and held that a common-law action does lie in this state for prenatal injuries.
"Womack being the applicable rule of common-law tort liability, we have only to apply the wrongful death statute to the facts of this case.
"The obvious purpose of the statute, originally enacted as 1848 PA 38, is to provide an action for wrongful death whenever, if death had not ensued, there would have been an action for damages. Womack settled the question of whether, if death had not ensued, Baby Boy Pinet would have had an action for damages.”
In Womack an action was brought on behalf of an eight-year-old surviving child for prenatal injuries suffered during the fourth month of pregnancy. However, Womack should not be read out of context to give significant legal existence to a nonviable fetus. As was stated in People v Nixon, 42 Mich App 332, 338, n 13; 201 NW2d 635 (1972):
"The Womack decision is sometimes mistakenly cited for the proposition that the Court recognized the unborn child’s 'right to live’. This is not the case, for as the Court clearly stated: 'The only issue in this case is whether a common-law negligence action can be brought on behalf of a surviving child negligently injured during the fourth month of pregnancy.’ (Emphasis supplied.) Womack, supra, 719-720. Thus the Womack decision would appear to be limited to those cases where there is a live birth. If there is a live birth, then an action may be brought in the name of the child for prenatal injuries.”
While Womack does give a cause of action for prenatal injury, that action is not without limits. Those limits are drawn. The infant must have been born alive as in Womack or have been viable as in O’Neill in order to have an action brought in the infant’s own behalf, whether as a common-law action or as a wrongful death action.
The Womack Court itself failed to point out the key element of survival. The Court attributed the following to a Massachusetts case, supra, at 722, n 4:
’’MASSACHUSETTS allows an action for wrongful death of a non-viable fetus (3-1/2 months), holding that a non-viable fetus is a 'person’ within the meaning of the Massachusetts wrongful death act. Torigian v Watertown News Co, Inc, 352 Mass 446; 225 NE2d 926 (1967).”
However, a later Massachusetts case, Leccese v McDonough, 361 Mass 64; 279 NE2d 339, 341 (1972), stated in regard to a statute similar to the Michigan wrongful death statute:
"The requirement that the foetus be born alive, stated expressly in the Keyes case, 340 Mass 633, 636; [165 NE2d 912 (1960)] lays down a sensible and easily administered rule under our statute. In recognizing the possibility of recovery under c. 229 § 2 (as amended), for a viable foetus born alive in the Keyes case, and for a foetus nonviable at the date of injury but later born alive (see the Torigian case, 352 Mass 446; 225 NE2d 926 [1967]), we went as far in revising the rule in the Dietrich case, 138 Mass 14 [1884], as the statutory language reasonably permits. If a foetus is born alive, it becomes a 'person’ with at least the theoretical possibility of survival and of enduring the consequences of prenatal injury throughout its life. A foetus not born alive seems to us to incur no such risk of continuing injury and also not to be a 'person’ within our interpretation of the legislative intention. If there are to be changes in the bases for recovery in this type of statutory action, we think that they are for legislative rather than judicial determination.” (Footnote omitted.)
Once an infant survives birth and thus becomes a "person,” the infant would have had a cause of action "if death had not resulted”.
Moreover, the O’Neill and Womack cases must be read in light of more recent developments in the case law. Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), has had a considerable impact on the legal status of the fetus. In discussing that legal status, the Roe Court stated, "the unborn have never been recognized in the law as persons in the whole sense”. Roe v Wade, 410 US 113, 162. Yet, the ruling by the Roe Court that the attending physician in consultation with the patient may terminate the pregnancy in the first three months, free of interference by the state, is the crucial point. See Roe v Wade, supra, at 163-164. If the mother can intentionally terminate the pregnancy at three months, without regard to the rights of the fetus, it becomes increasingly difficult to justify holding a third person liable to the fetus for unknowingly and unintentionally, but negligently, causing the pregnancy to end at that same stage. There would be an inherent conflict in giving the mother the right to terminate the pregnancy yet holding that an action may be brought on behalf of the same fetus under the wrongful death act.
Finally, the statute itself, MCLA 600.2922; MSA 27A.2922, should not become the object of judicial legislation. If Michigan is to become the first jurisdiction to allow recovery under the wrongful death act on behalf of an unborn three-month-old nonviable fetus, it is a determination for the Legislature.
"This is a problem for the legislatures of the various states. They must decide the problems in the light of the moral issues, the conflicting rights of the mother and child, the extent of medical knowledge and the interests of the state.”
In view of the aforementioned considerations, we hold a three-month-old infant en ventre sa mere, not born alive, is not a 'person’ within the wrongful death act. MCLA 600.2922; MSA 27A.2922.
Affirmed. Costs to the defendant.
R. B. Burns, J., concurred.
The above facts were stipulated to by the parties and are adopted herein.
Although the complaint indicates the fetus was four months old, the filed deposition of the treating doctor, Samuel E. Strong, M.D., as well as the parties’ briefs, indicates the fetus was actually three months old.
A fetus is "viable” when it is "potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” Roe v Wade, 410 US 113, 160; 93 S Ct 705; 35 L Ed 2d 147 (1973).
The only exception to the above limits in the various jurisdictions is found in a ruling by the Court of Appeals of Georgia in Porter v Lassiter, 91 Ga App 712; 87 SE2d 100 (1955). After looking to decisions of the Supreme Court of Georgia relating to prosecutions for foeticide, the Porter court concluded the mother could maintain a suit for the loss of a 4-1/2 month-old baby dead upon birth. The Porter court further ruled that the child need not be "viable” provided it was "quick” or capable of moving in its mother’s womb. However, the suit was brought under a Georgia statute that appears to give parents a right of recovery for the loss of a child rather than giving the right to recover to the deceased infant.
ALASKA: Mace v Jung, 210 F Supp 706 (D Alas, 1962), ILLINOIS: Rapp v Hiemenz, 107 Ill App 2d 382; 246 NE2d 77 (1969), Chrisafogeorgis v Brandenberg, 55 Ill 2d 368; 304 NE2d 88 (1973), IOWA: McKillip v Zimmerman, 191 NW2d 706 (Iowa, 1971), MASSACHUSETTS: Leccese v McDonough, 361 Mass 64; 279 NE2d 339 (1972), NEW HAMPSHIRE: Poliquin v MacDonald, 101 NH 104; 135 A2d 249 (1957), SOUTH CAROLINA: West v McCoy, 233 SC 369; 105 SE2d 88 (1958) .
The Massachusetts statute reads in relevant part: "Chapter 229, § 2, as amended, reads in part (emphasis supplied): 'A person who (1) by his negligence causes the death of a person in the exercise of due care, or (2) by wilful, wanton or reckless act causes the death of a person under such circumstances that the deceased could have recovered damages for personal injuries if his death had not resulted * * * shall be liable in damages in the sum of not less than five thousand nor more than fifty thousand dollars, to be assessed with reference to the degree of his culpability and distributed as provided in section one; except that * * * [exceptions not relevant].” 279 NE2d at 340, n 1.
Admittedly, the public policy of this state on abortion has been subordinated to the changed circumstances resulting from Roe v Wade. See People v Bricker, 389 Mich 524, 529; 208 NW2d 172 (1973).
Consider the implications of allowing such conflicting rights along with the abolition of intra-family immunity in Plumley v Klein, 388 Mich 1; 199 NW2d 169 (1972). Consider further the precarious position that the physicians of this state would be put in and the subsequent effect on the physician-patient relationship.
McGarvey v Magee-Womens Hospital, 340 F Supp 751, 754 (WD Pa, 1972). | [
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] |
D. E. Holbrook, Jr., J.
The defendant was charged with breaking and entering with the intent to commit a larceny, MCLA 750.110; MSA 28.305. The defendant filed an insanity defense. However, on February 22, 1974, a jury rejected it and he was convicted. Defendant was sentenced to from 6 years 8 months to 10 years in prison. Defendant appeals by leave granted on a motion for a delayed appeal.
The defendant does not dispute the basic facts of the case. During the early morning hours of June 1, 1973, the police were called to a tool and die shop. When they arrived at the scene they discovered a broken window and found the defendant inside the building attempting to leave by the front door. He was carrying a can of beer and a briefcase at the time. In his confession he admitted that he intended to take the briefcase, and a television set and radio that were found nearby, from the building.
On direct examination the prosecutor questioned the police officers who were at the scene how the defendant acted or appeared at the time of his arrest. The first officer testified that the defendant appeared "normal”. Defendant objected to this conclusion. In response, the trial court limited the officer to testifying as to what he observed. When the question was asked of the second police officer defendant again objected for the same reason that the prosecutor was trying to introduce lay opinion testimony concerning defendant’s sanity. At this point the prosecutor countered by arguing that he was attempting to lay the foundation for the introduction of defendant’s confession. It was the prosecutor’s contention that this was necessary, since there had been an indication that the defendant had been drinking, to show that he had the faculties to make a voluntary confession.
To establish the defendant’s insanity, four expert witnesses were called. The first two witnesses testified that they had examined the defendant in 1952 when he was nine years old. They stated that at that time the defendant had shown signs of severe emotional disturbance and that he lived in a fantasy world. Defendant’s third witness was the chief psychologist in the reception diagnostic center at Jackson prison. He stated that he interviewed the defendant in 1968 and that although the defendant knew right from wrong he could not resist the impulse to commit a crime. Defendant’s fourth expert witness was a psychiatrist who briefly examined the defendant before trial six months after the crime had been committed. This doctor testified that in his opinion this breaking and entering was related to defendant’s mental illness and that the defendant could not resist behaving as he did. Each of these witnesses was thoroughly cross-examined by the prosecution. Defendant also introduced, by stipulation of the prosecutor, a list of 52 crimes that the defendant had committed in the past 25 years.
Defendant’s only meritorious issue on appeal concerns the characterization made by the police officers that he was "normal”. He claims that these characterizations were lay opinion testimony on the issue of his sanity without a proper foundation as required by People v Cole, 382 Mich 695; 172 NW2d 354 (1969). However, we do not need to enter the dispute between the various panels of this Court as to the precedential value of People v Cole, supra, since we conclude that the officer’s testimony was not lay opinion testimony concerning the defendant’s sanity. Compare People v Alsteens, 49 Mich App 467; 212 NW2d 243 (1973), with People v Thompson, 30 Mich App 142; 186 NW2d 4 (1971).
From the beginning of the trial and until some evidence is introduced to the contrary, the defendant is presumed to be sane. People v Woody, 380 Mich 332, 338; 157 NW2d 201 (1968), People v Garbutt, 17 Mich 9, 22; 97 Am Dec 162 (1868), People v Livingston, 57 Mich App 726, 732; 226 NW2d 704 (1975). This presumption attaches to the defendant no matter what notice the prosecution has that the defendant will present an insanity defense. Although the prosecution is always required to prove the defendant sane beyond a reasonable doubt, until some evidence is introduced to show that the defendant is insane, the presumption of sanity satisfies the prosecution’s burden of proof. People v Krugman, 377 Mich 559, 563; 141 NW2d 33 (1966), People v Livingston, supra. In fact, the prosecution has a duty not to introduce evidence on the issue of the defendant’s sanity until after the defendant has. People v Williams, 218 Mich 697, 700; 188 NW 413 (1922), People v Plummer, 37 Mich App 657, 659; 195 NW2d 328 (1972).
Since no evidence was introduced during the prosecution’s case-in-chief tending to show that the defendant was insane, the prosecution had no reason to introduce the policemen’s testimony as evidence that the defendant was sane. This is true even though the prosecutor mistakenly argued that since the issue of insanity had been raised, he needed to rebut it. The trial court properly corrected him that the issue was not raised until there was evidence introduced on the subject. Although this mistaken belief might show the intent of the prosecution to use these statements by the police officers as lay opinion testimony, several factors militate against such a reading.
First, the trial court corrected the prosecutor’s mistaken belief during the testimony of the first police officer and the prosecutor continued to ask similar questions. We will not presume that an attorney as an officer of the court will deliberately ask improper questions after he has been corrected by the trial court. Second, when the defendant objected during the questioning of the second police officer, the prosecutor stated that the questions were necessary to establish the voluntariness of the defendant’s confession since there was testimony that the defendant had been drinking.
Furthermore, a fair reading of the objectionable questions asked both officers in the context of their testimony convinces us that the questions did not imply any opinion of the police officers as to the defendant’s sanity. In addition the trial court took pains to insure that the jury would not draw the wrong inferences from the officers’ testimonies following the defendant’s objections. It made the first officer clarify that he was talking about the defendant’s physical appearance when he mentioned the word "normal”. It also made sure that the second officer was referring to the defendant’s sobriety, not sanity.
However, the defendant argues that even if the police officer’s testimony was not an expression of lay opinion concerning the defendant’s sanity, it acquired that character when the prosecutor referred to it as such to "rebut” the testimony of the defendant’s experts. There he said,
"Now match that [the testimony of the defendant’s experts] up against the testimony of police officers who actually observed the defendant on the night and during the commission of the crime. Now these are people that you can see when they testified as to how he acted, you can see for yourself because as I stated earlier, opinion evidence is worth nothing more or nothing less than any other witness who takes the stand.”
We note, however, that no objection was made at that time. Hence, the issue of the statement’s appropriateness is not properly before us. Any error appearing in the statement clearly could have been rectified by the trial court if a timely objection had been made and a curative instruction requested. People v McLendon, 51 Mich App 543; 215 NW2d 742 (1974). Although we do not intimate that it could, this comment by the prose cutor certainly does not make the police officer’s testimony into lay opinion testimony of the defendant’s sanity. It is not necessary to strain to do it either since the prosecution discharged its burden of proving defendant’s sanity beyond a reasonable doubt by its cross-examination of the defendant’s expert witnesses. People v Fisk, 62 Mich App 638; 233 NW2d 684 (1975), cf. People v Finley, 38 Mich 482, 485-486 (1878).
We find no error. Affirmed.
A Walker hearing (People v Walker [On Rehearing], 374 Mich 331; 132 NW2d 87 [1965]) was held at this point. After the hearing the trial court admitted the confession into evidence during the testimony of the officer who secured the confession.
Among these were 36 cases of breaking and entering, 12 escapes from custody, and 4 cases of destruction of property. | [
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] |
V. J. Brennan, J.
Defendants, City of Romulus, County of Wayne, and Romulus Community Schools, (hereinafter defendants) appeal as a matter of right from an order of summary judgment in favor of plaintiff in an action brought to recover taxes paid under protest to defendants.
Plaintiff, Avis Rent-A-Car System, Inc, is a foreign corporation which operates a car rental concession at Metropolitan Airport, located in the City of Romulus, County of Wayne, Michigan. Plaintiff had entered into an agreement dated September 16, 1966 with the Board of County Road Commissioners of the County of Wayne, under the terms of which plaintiff was granted "the right to conduct and operate an exclusive 'drive-it-yourself Automobile Rental Concession, in common with two others, at the Airport, for the convenience of the traveling public”. Pursuant to said agreement, plaintiff constructed four rental counters, two "pick-up” areas on airport property, and a service building on the airport grounds which was, leased fi:om the County Road Commissioners. It is the status of the service building for. tax purposes which has been the subject of continuing litigation between the parties.
In 1966, Romulus Township sought to tax Avis for the "user or lessee portion” of the service building site pursuant to MCLA 211.181; MSA 7.7(5). Avis commenced suit against the Township in 1967 seeking a declaratory judgment that the site was tax exempt under the statute as a "use * * * by way of a concession in or relative to the use of a public Airport, park, market, fairground or similar property which is available to the use of the general public * * * ”.
During the litigation the Michigan Supreme Court decided the case of Kent County v Grand Rapids, 381 Mich 640; 167 NW2d 287 (1969), which construed the statute in question in a manner favorable to plaintiff. Plaintiff thereupon moved for a summary judgment on the ground that there was no genuine issue of material fact and that plaintiff was entitled to relief as a matter of law. On May 12, 1970, the circuit judge filed his opinion granting plaintiffs motion for summary judgment and holding that the service building site was exempt from taxation by virtue of the specific exemption contained in MCLA 211.181; MSA 7.7(5). A judgment was entered accordingly, from which the Township of Romulus perfected an appeal to this Court, but the appeal was later dismissed by stipulation.
Late in 1971, the City (formerly Township) of Romulus sought to levy a tax on plaintiffs service building as "personal property”. Again, plaintiff filed suit and brought a motion for summary judgment, on the ground that the provisions of the general property tax act, upon which Romulus sought to levy a personal property tax on a service building site had been declared unconstitutional by the Michigan Supreme Court in Continental Motors Corp v Muskegon Twp, 376 Mich 170; 135 NW2d 908 (1965). A consent judgment was entered in favor of plaintiff on July 19, 1972.
Meanwhile, efforts by the City of Romulus to persuade the Michigan Legislature to amend the applicable statute proved successful. The amendment, 1970 PA 174, MCLA 211.181(2); MSA 7.7(5)(2), purported to establish new criteria for tax exemption for concessionaires. The amendment added the following language:
"(2) In counties of over 1,000,000 in order to determine whether a lessee or user at an airport is a concessionaire within the provisions of this act, and whether the use of real property used in connection with the concession operation is essential to the concession operation so as to come within the exception contained in this act, it is required that the following basic tests be met:
"(a) It shall have the exclusive right and duty to render a necessary or customary service, based on a contract entered into requiring that it render goods or services either to the grantor or to the general public on behalf of the grantor;
"(b) The service rendered must be available to the general public on a nondiscriminatory basis;
"(c) Use of real property in connection with a service concession must be a necessary and integral part of the concession operation.”
The enactment of 1970 PA 174 resulted in a third suit brought by plaintiff to have the service building site declared tax exempt. In its motion for summary judgment, plaintiff contended that its use of the service building site satisfied the three criteria imposed by 1970 PA 174, that 1970 PA 174 was unconstitutional in that it violated the requirements of Article 9, § 3 of the Michigan Constitution, which requires that property taxes shall be uniform in application, and that 1970 PA 174 is a "local or special act” and is violative of Article 4, § 29 of the Michigan Constitution. The circuit judge agreed with each of plaintiff’s contentions and granted summary judgment accordingly. From this judgment, defendants have perfected the instant appeal.
The Michigan Legislature in 1945 enacted the Michigan Aeronautics Code, MCLA 259.1 et seq.; MSA 10.101 et seq., for the purpose of furthering "the public interest and aeronautical progress”. The act provided for the creation of the Michigan Aeronautics Commission and the Michigan Department of Aeronautics charged with the duty, inter alia, of developing a state-wide system of airports. 1945 PA 329 provided for the creation of the Michigan Aviation Matching Fund, "for the purpose of matching the political subdivisions of the state in the construction and improvement of publicly-owned airports and landing fields, and in assisting the several political subdivisions in matching federal funds, within the State of Michigan». MCLA 259.501.
In 1953 the Michigan Legislature enacted 1953 PA 189, MCLA 211.181; MSA 7.7(5), providing for the taxation of lessees and users of tax-exempt property, "except where the use is by way of a concession in or relative to the use of a public airport * * * ». Finally, as noted, supra, our Legislature passed 1970 PA 174, amending 1953 PA 189 (MCLA 211.181; MSA 7.7[5]), providing for stricter standards in qualifying for concessionaire status and the concomitant tax exemption at a public airport.
From the foregoing excerpts from Michigan statutes, the public policy of this state regarding aeronautics is clear. Since the development of aeronautics is considered to be very much in the public interest, safe and convenient air travel is to be encouraged. Airport development is to be fostered by the use of matching funds and by providing tax incentives to encourage businesses to provide necessary customer services for the convenience and comfort of air travellers. By its most recent act, 1970 PA 174, the Michigan Legislature has apparently determined that at least one airport in the state, Wayne County Metropolitan Airport, has reached such a point of development that tax exemptions previously given to concessionaires may now be restricted without contravening settled state policy. Plaintiff in the instant case is contending, in effect, that the Michigan Legislature has sought to implement this new policy by the enactment of a statute which is constitutionally invalid. The learned circuit judge held that plaintiff was correct. We agree.
Plaintiff argues that 1970 PA 174 contravenes the Michigan Constitution in that it is a local or special act. Article 4, § 29 of the Michigan Constitution provides:
"The Legislature should pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question.”
The parties agreed that a population classification which limits the present application of a legislative act does not make the act local or special if the population classification bears a reasonable relationship to the purpose of the statute and the statute applies whenever the population classification is met. See Airport Community Schools v State Board of Education, 17 Mich App 574; 170 NW2d 193 (1969), and cases cited therein. The decisive issue in the instant case, therefore, is whether the population classification in 1970 PA 174 has a reasonable relationship to the purpose of the statute. See Monroe v Judge of Police Court of Grand Rapids, 311 Mich 76; 18 NW2d 371 (1945).
We fully agree with the well-reasoned opinion of the circuit judge, and we quote at length and with approval therefrom.
"This Court can see absolutely no reasonable relationship between the population of a county in which an airport is located and the entitlement of a concessionaire in that airport to tax exempt status under Act 189. As this Court stated in its 1970 Opinion, the entire purpose of Act 189 seems to be to encourage the development of airports. Obviously, the Board of County Road Commissioners deemed it essential to have Avis as a concessionaire at the Airport, and this Court earlier observed that, in this day and age, a car rental concession is a necessity for the efficient operation of a large municipal airport.
"The effect of Act 174, however, is to discourage airport development in heavily populated areas, the very areas that most need such development. Compare Wayne Circuit Judges v Wayne County, 383 Mich 10 [172 NW2d 436] (1969), and Wayne County [Board of Review] v Great Lakes [Steel] Corporation, 300 US 29 [57 S Ct 329; 81 L Ed 485] (1937).
"Failing to reply to plaintiff’s argument that state policy is to encourage airport development in the state’s most populated areas, Romulus seeks to justify the exception of Act 174 on an economic basis. In its brief, Romulus cites statistics dealing with airport traffic, and argues that, in airports with substantial traffic, such as Metropolitan Airport, concessionaires will locate with or without tax exemption, whereas in airports of less traffic, the need for a tax exemption is present.
"Whatever the economics of locating at airports may be, it is clear to this Court that Romulus has, by its argument, proved the inherent defect in Act 174. This is made clear by the fact that there is no correlation between the county in which an airport is located and the traffic which passes through the airport. An example suggested by Avis brings the point home. Plaintiff presents an affidavit of the assistant manager of Willow Run Airport, to which is attached a map of the airport itself. The affidavit and map disclose that the terminal facilities at Willow Run Airport (which, of course, was the principal public commercial airport prior to the development of Metropolitan Airport), are located in Washtenaw County, whereas the runways, etc. are located in Wayne County. Since Willow Run was once the busiest airport in this state, it would, under defendant’s theory, attract concessionaires without a tax exemption. But, since its terminal is in a county with under one million people, Act 174 would nevertheless give those concessionaires that very exemption!
"Whereas Romulus tries to justify Act 174 on important differences among airports based on traffic, Act 174 is not at all directed to traffic, but to county population, which is quite another thing.
"The Court is particularly mindful of the decision in Great Lakes Steel Corporation v Lafferty, 12 F Supp 55 (E.D. Mich 1935), where a three-judge federal district court held unconstitutional a state statute abolishing township boards of review, except in counties having a population of more than 500,000. The court there held that the statute was obviously directed only at Wayne County, but that size and population did not present a peculiar need for taxation purposes. Particularly appropriate here is the following quotation from Judge Tuttle, speaking for the court, as follows:
" '[T]he only county in Michigan having a population of more than 500,000 is the defendant county of Wayne, whose population according to the last federal census was 1,888,946; the next most populated county in the state being Kent county, with a population of 240,511. Hence, it is obvious that this statute was intended by the Michigan Legislature to be applicable only to Wayne county, at least for many years to come. The question, therefore, presented in this connection is whether there is such a difference, resulting from population, between Wayne county and the other eighty-two counties in Michigan, as affords a reasonable basis for the difference, prescribed by this statute * * * and after careful consideration of the numerous extensive, and exhaustive briefs of the parties, we are unable to ñnd any such difference, or any reasonable relation between the population of Wayne county, as distinguished from that of the other counties in the state, and the object of this statute. ’(Emphasis added.)
"This Court can see no reasonable relationship between county population and the appropriateness of tax exemption. In keeping with a long line of cases cited above and many others cited in plaintiff’s brief, the Court agrees with the plaintiff here that Act 174 violates Article IV, § 29 of the Michigan Constitution, and is, therefore, invalid.”
Defendant school district argues that the popula tion classification effectively "singles out” Metropolitan Airport for special treatment. We disagree. We take judicial notice of two other municipal airports in Wayne County, neither of which are comparable to Metropolitan Airport. We refer to Detroit City Airport and Grosse lie Municipal Airport. Detroit City Airport serves the needs of the public in small commuter airlines, charter services, flying schools, corporate and business aircraft, and the various other needs of general aviation. Grosse He Municipal Airport, using the facilities of the former Grosse He Naval Air Station, is much smaller, and serves general aviation needs in the Detroit downriver area. We do not think that the legislative purpose of encouraging the development of airports is served by a statute which would tend to discourage the development of Detroit City and Grosse He Municipal Airports or similar airports in counties which in the future exceed 1,000,000 population. We think the Legislature by 1970 PA 174 intended to restrict tax exemptions at airports whose development reaches a stage at which such tax incentives are no longer needed to serve the public interest. This being the case, we fully agree with the circuit judge that there is "no reasonable relationship between county population and the appropriateness of tax exemption”.
Plaintiff further contends that 1970 PA 174 is constitutionally invalid as taxation which is not uniform. Article 9, §3 of the Michigan Constitution provides, in pertinent part: "Every tax other than the general ad valorem property tax shall be uniform upon the class or classes on which it operates.”
Uniformity of taxation as required by the Michigan Constitution means that the Legislature may not treat differently for tax purposes things which are essentially the same. See Teagan Transportation Co v Board of Assessors of Detroit, 139 Mich 1; 102 NW 273 (1905). There must be a reasonable basis for a classification which seeks to treat property differently for tax purposes. The following passage from 1 Cooley, Taxation (4th Ed), § 340, p 723, is instructive:
'"The rule allowing classification for purposes of taxation is always coupled with the proviso 'if all of the same class are taxed alike.’ Discrimination between persons or property in like situation cannot be effected by classification, since there can be no reason therefor. Omissions from a class, of subjects that clearly belong to such class, makes the classification invalid.”
The Michigan Supreme Court has held in substance that legislative classifications must be based upon substantial and natural differences which reasonably suggest the propriety of different treatment. See Palmer Park Theatre Co v City of Highland Park, 362 Mich 326; 106 NW2d 845 (1961), Beauty Built Construction Co v City of Warren, 375 Mich 229; 134 NW2d 214 (1965), Fox v Employment Security Commission, 379 Mich 579; 153 NW2d 644 (1967).
While we do not have a legislative history to assist us in determining legislative intent, it would seem that in drafting 1970 PA 174 the Legislature intended a formula which would distinguish between airports needing the tax exemption and airports not needing the tax exemption. The statute provides that in order to qualify as a concessionaire, a lessee or user must have "the exclusive right and duty to render a necessary or customary service”. We think the Legislature determined that where a second user or lessee could be at tracted to an airport to render a customary service in competition with another service, that this fact alone is a good indication that the tax incentive is no longer needed to attract concessionaires to render necessary customer services. Clearly, since the airport authorities will necessarily control or regulate their concessionaires, to be certain that they render services at reasonable prices so as to encourage the use of the airport, there is little or no public interest to be served by the redundancy of customer services. Assuming without deciding that this was the Legislature’s intent, such would clearly be a reasonable criterion for implementing a legislative policy of removing tax incentives from airport lessees and users when they are no longer needed to encourage airport development and air travel. This being so, however, we are unable to see any reason why the same formula should not apply equally in the other 82 counties in the State of Michigan. Since we are unable to discern real or substantial differences which reasonably suggest the propriety of substantially different treatment as between Wayne County airports and airports in other counties in Michigan, we must hold that 1970 PA 174 is constitutionally invalid as violative of Article 9, § 3 of the Michigan Constitution.
We think that the circuit judge was correct in determining that 1970 PA 174 contravenes Article 4, § 29 and Article 9, § 3 of the Michigan Constitution and is therefore invalid.
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M. F. Cavanagh, J.
Defendant was convicted by a jury of receiving or concealing stolen property, MCLA 750.535; MSA 28.803, was sentenced to 40 months to 5 years in prison, and appeals of right.
A break-in occurred at Eau Claire High School in which typewriters, tape recorders and other items were taken. Several days later at approximately 1 a.m. police officers observed Jarrett Walker on the street carrying a tape recorder. They checked the serial number of the tape recorder and discovered that it was one that had been stolen from the high school. They arrested Walker for breaking and entering.
Walker admitted the break-in and told an officer that part of the property was at his residence, a rented room, and the rest at defendant’s house. The officer testified that Walker stated that he and defendant had broken into the school. Walker testified that he did not tell the officer that defendant had broken into the school.
The police went to Walker’s apartment, where they recovered some of the stolen property. Without an arrest warrant or a search warrant, the police then went to defendant’s residence, where they arrested defendant when he opened his front door. Defendant stepped back into his living room as the officers entered the home. From the living room the officers observed a partially covered typewriter on the kitchen table. They proceeded into the kitchen, removed the cover, and examined the typewriter. A check of its serial number revealed that it had been taken from the school. The officers searched the kitchen, finding other items that also proved to have been taken from the school. The typewriter, however, was the only item introduced into evidence against the defendant.
I.
Defendant raises four issues on appeal. First, defendant challenges his arrest, arguing that it was without probable cause, that there was neither a showing that the informant was credible, nor a showing of underlying circumstances making the information reliable. Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), Draper v United States, 358 US 307; 79 S Ct 329; 3 L Ed 2d 327 (1959), People v James White, 392 Mich 404; 221 NW2d 357 (1974).
According to a police officer’s testimony, Walker said that he and defendant had broken into the school and that part of the property taken was at his residence and part at defendant’s residence. Walker testified that he did not tell the officer that defendant participated in the break-in, but that he did tell the officer that part of the property was at defendant’s residence.
Walker was an admitted participant in the criminal activity, not a third-party informer. Property from the school break-in was found in Walker’s possession at the time of his arrest. Additional property from the school was recovered from Walker’s residence, where Walker had said it was. Additional property taken from the school was still unrecovered. Walker said that the property was at defendant’s home. Under these circumstances, the police had reason to believe that Walker was providing them with reliable information. Although the police had no prior contact with Walker that would have allowed them to assess his reliability, the officers had facts to corroborate part, at least, of Walker’s statement, facts sufficient to justify proceeding to defendant’s home and arresting defendant. Cf. People v White, supra, 418-421. The officers had probable cause to arrest. The facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a reasonable belief that the defendant had committed or was committing an offense. People v Wolfe, 5 Mich App 543; 147 NW2d 447 (1967).
II.
Next, defendant claims that the search without a warrant of defendant’s home and the seizure of the typewriter by police did not fall within any of the exceptions to the warrant requirement and that therefore the typewriter should have been suppressed as evidence. We agree.
A warrantless search and seizure is unreasonable per se and violates both the United States and Michigan Constitutions. US Const Am IV; Const 1963, art 1, § 11. The burden is on the state to show that the warrantless search comes within one of the exceptions to the warrant requirement. People v Reed, 393 Mich 342; 224 NW2d 867 (1975), People v Beavers, 393 Mich 554; 227 NW2d 511 (1975). Where the state fails to meet its burden of justification, the courts have a duty to suppress the admission into evidence of the fruits of the search. People v Beavers, supra, People v White, 392 Mich 404; 221 NW2d 357 (1974).
Plaintiff argues that the plain view exception to the warrant requirement applies here; that is, that the typewriter fell within the plain view of officers who had a right to be in the position to have that view. People v Whalen, 390 Mich 672; 213 NW2d 116 (1973). There are, however, important limitations on the plain view doctrine. Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971). The officer, of course, must be lawfully in the position from which evidence comes within his plain view. There are also further limitations. One, plain view alone is never enough to justify the warrantless seizure of evidence — there must be "exigent circumstances”. Two, the discovery of evidence in plain view must be inadvertent. Coolidge v New Hampshire, supra, People v Harden, 54 Mich App 353; 220 NW2d 785 (1974).
In the instant case the prosecution has failed to carry its burden of showing that the discovery of the typewriter was inadvertent. The police had reliable information that property taken from the high school was in the house, information sufficient to establish probable cause. They had ample opportunity to obtain a valid warrant. They anticipated discovery of the stolen property. They entered the house intending to search for evidence. They entered, stated that they needed no search warrant, and proceeded to search. The circumstances indicate an intent to search for the stolen property from the beginning.
"[W]here the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, * * * [t]he requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as ’per se unreasonable’ in the absence of 'exigent circumstances’.” Coolidge v New Hampshire, supra, 470-471.
If the discovery of the typewriter had been truly inadvertent, then it might be necessary to decide whether "exigent circumstances” justified its seizure. Here, however, the record clearly indicates that the police anticipated stolen property being in defendant’s home and went there, without a search warrant, intending to search for it. We refuse to legitimate a planned warrantless search and seizure. The police should have obtained, or at least sought to obtain, a search warrant.
III.
The third claimed error is that the trial judge abused his discretion by allowing the prosecutor to elicit defendant’s conviction, more than six years previous, for larceny from a building. Whether to allow a defendant to be cross-examined as to a prior conviction is within the discretion of the trial judge. The trial judge, of course, is required to recognize, and exercise that discretion. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). There can be no question that, the trial judge recognized and exercised his discretion in the instant case. The only remaining inquiry is whether he abused it.
Here the trial judge considered the nature of the prior conviction, larceny from a building, and the length of time since the conviction, six years. The judge stated that the question was a close one but he would permit the prosecution to elicit the conviction. The judge made very clear that the inquiry was to be limited to that conviction and only to the fact that defendant had been convicted of the offense. We find no abuse of discretion in these circumstances.
IV.
Lastly, defendant contends that the trial court erred when it did not require the prosecution to endorse Jarrett Walker upon the information as a res gestae witness and to call him to testify as part of the prosecution’s case-in-chief. Walker, however, was an accomplice. People v Phillips, 61 Mich App 138; 232 NW2d 333 (1975), People v Threlkeld, 47 Mich App 691; 209 NW2d 852 (1973). The prosecution is not required to endorse and call a res gestae witness who is an accomplice. People v Raider, 256 Mich 131; 239 NW 387 (1931). Although defendant makes a strong argument that the accomplice exception is unsound and ill-conceived, the argument is more properly addressed to the Supreme Court. Precedent requires this Court to recognize the accomplice exception to the res gestae endorsement rule. People v Irwin, 47 Mich App 608; 209 NW2d 718 (1973), lv den 390 Mich 803 (1973).
Reversed and remanded. | [
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Reid, J.
This is a divorce suit. Tbe parties were married at Detroit on October 18, 1941. Both are residents of Wayne county and have resided there more than 2 years before this suit was begun. Plaintiff does not appeal from that portion of tbe decree wbicb awarded defendant a divorce on ber cross bill but does appeal from tbe award of the property to defendant. Defendant takes a general cross appeal.
At tbe time of tbe bearing tbe parties owned by tbe entireties tbe bouse and lot where they lived, tbe amount still unpaid on tbe land contract for tbe purchase of tbe property being $3,864.67. Tbe parties agreed tbe property is worth $5,300; their interest in tbe property was therefore $1,435.33.
Each of tbe parties bad been married previously. Plaintiff’s former wife died; defendant was divorced from her former husband. Each bad filed two bills of complaint for divorce against tbe other before tbe present suit. Defendant received “a little money” from ber son who was in tbe navy at tbe time of the bearing, and tbe divorce decree from ber former husband awarded ber $4 per week. Defendant testified she suffered from, a nervous breakdown, heart trouble, gallstone difficulty and rheumatism in one leg, wbicb swells up.
Plaintiff earned $280 a month in 1943. However, defendant testified that during-1942 plaintiff .did not earn $540. Defendant testified she worked at Ford’s about six months and that she had about $700 in war bonds, the purchase money being supplied by her son. Defendant testified plaintiff gave his furniture to his daughter and his car to his son and that defendant gave her son her dining room set and sold the front room set for $25.
While defendant said in one part of her testimony, after reciting the purchase of furniture from a furniture company, that “the rest of the furniture is mine,” later on cross-examination she said, “the furniture that I purchased after we were married cost my husband $500.”
It is impossible to determine with precision from the record before us the history of purchase of the furniture of the parties, or to determine its present value. Plaintiff claims that the furniture is worth $1,100 and that he should be awarded a half interest in the furniture and an undivided half interest in the real estate. Defendant claims the total award in the court below amounts in value to $700.
The parties lived together only a short time during the period from their marriage in October, 1941, until the filing of the fifth bill for divorce, the instant suit, on February 4, 1944.
The trial judge awarded defendant the vendees’ interest in the house and lot, all the furniture and household goods in the house, and $1 in lieu of dower, but without any provision for future payments of alimony. This provision for defendant is evidently in lieu of weekly payments of $10 per week for one year, which the court in rendering his opinion stated he had contemplated awarding her, and which amount would be about equal to the value of plaintiff’s half interest in the real estate, after cancellation of claims against the plaintiff for back alimony and unpaid taxes.
In view of the brevity of the marriage and all the circumstances of the parties, we consider the property award, sufficient so far as defendant is concerned. It is of considerable financial benefit to plaintiff to be relieved of all future support of his wife. She is in poor health and may require an operation for gallstones. The award of the furniture and real estate to defendant is just as far as plaintiff is concerned only in consideration of his being permanently relieved of defendant’s future support.
The decree is affirmed, without costs.
Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, North, and Starr, JJ., concurred. . | [
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Boyles, J.
Defendants appeal from an order denying their motion to set aside a default judgment. The only question here is whether the circuit judge was guilty of an abuse of discretion. The default and the judgment which defendants moved to set aside was entered December 29, 1944. The motion to set the same aside was made and filed June 12, 1945.
Plaintiffs started this suit against the defendants by writ of attachment, issued December 7, 1944. Certain 'perishable property was seized by the deputy sheriff, and on December 14th the officer filed in the court a return showing that on December 7th-9th said officer had seized the property itemized in the inventory returned with the writ, duly certified, that two disinterested freeholders after being duly sworn had appraised the property, and the return further certified that on December 13, 1944, said officer had “served upon the defendants, personally a copy of the within attachment and of the said inventory, duly certified by me.”
The return shows that the writ was properly executed, and the return of personal service was in accord with the statutory provisions for proceedings by attachment in courts of record. 3 Comp. Laws 1929, §14770 (Stat. Ann. §27.1768), provides for execution of the writ by seizing property of the defendants, making an inventory, “and serving a copy of such attachment and inventory, certified by him, upon the defendant, if he can be found in his county.”
The perishable property seized under the writ was sold by order of the court, plaintiffs filed a declaration and bill of particulars, and on December 29, 1944^ an order of default of the defendants for nonappearance was entered, testimony was taken in open court, and judgment entered for plaintiffs. Notice of entry of the judgment was served on the defendants and proof of service filed. In January, 1945, on an execution issued on the judgment to collect a balance not recovered by the attachment, a levy was made, sale had, and by order of court the money collected by the officer was turned over to plaintiffs.
The defendants do not deny that personal service of the writ was made on them, or that they had notice of entry of the default and judgment. Their claim is that the default was not regularly entered because the court files did not show proof of service on each one of the two defendants, naming them. Using the language of their brief, appellants say:
“It is true the return has the word ‘personally’ in it, but there is nothing to indicate that it was delivered personally to each of the defendants. The return does not state the names of the defendants as required by law; it does not state that they are the defendants in the cause.”
The return shows that the officer served personally a copy of the attachment and inventory, duly certified, upon the defendants, plainly meaning more than one defendant. There are only two defendants in this case. It is not necessary that the return state “upon each defendant,” naming them.
Counsel for appellants rely largely on Campbell v. Wayne Circuit Judge, 111 Mich. 247. In that case suit was started February 7, 1883, by declaration and rule to plead, against three individuals doing business under a firm name, as copartners. No proof of service of the declaration and notice to appear and plead was filed until four years later, when proof of service was made by affidavit of one Mr. French, who was not an officer. The proof of service stated that service was made “by delivering to said defendants” a true copy of the declaration and notice to appear and plead. In 1895 one of the three defendants moved to set aside the default, and filed an affidavit stating that no process had ever been served on him, and that he did not learn of the entry of judgment against him until quite recently. This court granted mandamus to set aside the default, and in so doing said (p. 250):
“The affidavit of the relator that the declaration was not served upon him was not answered by the respondent in any way except by the return of Mr. French. It was held, in the case of Detroit Free Press Co. v. Bagg, supra (78 Mich. 650), that a return of personal service made by a private person is open to contradiction by the defendant, and he is at liberty to show that no such service was made upon him. Under the showing made with reference to the service, the judgments should have been Vacated. ’ ’
In the case at bar the defendants have not denied that the writ was served personally on each of them; the proof of service was made by an officer; the defendants do not deny having timely knowledge of the attachment, the seizure of their property, the entry of the default and judgment, a subsequent levy on and sale of property on execution, all within the time within which the defendants might properly move to set aside the default. These facts fully distinguish the instant case from Campbell v. Wayne Circuit Judge, supra.
In Dades v. Central Mutual Auto Ins. Co., 263 Mich. 260, relied upon by appellants, the return of the officer showed service of process on the Central Mutual Auto Sales Company. A motion to set aside the default entered on such return of service was made within six months from entry of judgment and denied in the circuit court. This court reversed and granted mandamus to set aside the default, for the following reason (p. 263):
“Here the return of the officer is that he served upon the Central Mutual Auto Sales Company, not upon the Central Mutual Auto Insurance Company. The return in the file at the time defendant’s default was entered negatived service upon it, and instead appeared to disclose service upon some other company. ’ ’
The factual situation distinguishes the above case from the one now before us. In the above case the motion to set aside the default was timely made, the proof of service of process showed service on some other company, and in the case of corporate defendants the correct name is of importance. Conceivably there might have been two different corporations with somewhat similar names, one an auto insurance company and the other an auto sales company.
In McCain v. Wayne Circuit Judge, 187 Mich. 73, also relied upon by appellants, a default was set aside where the return showed service upon KirbySorge-Felske Company, “by serving A. F. Felske,” without showing that A. F. Felske had any connection with the corporate defendant as an officer or agent with authority to receive service of process on the company. The decision does not control the case now before us.
Examination of the decided cases fails to disclose any factual situation comparable to the circum stances of the instant case. We hold that the files of the court at the time the default was entered sufficiently established personal service of the writ on these two defendants. The return was sufficient. 3 Comp. Laws 1929, § 14148 (Stat. Ann. § 27.842).
Court Eule No. 28 (1945), provides for the entering of defaults in circuit courts, and for setting them aside. Section 4 of this rule provides:
“In actions at law, the party desiring to have a default set aside shall, as soon as practicable after he shall know or have reason to believe that the default has been filed or entered, file and serve an affidavit of merits, and make application to the court to have the default set aside. * # * In all cases' where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within 4 months after such default is regularly filed or entered. ’ ’
Personal service of the writ was properly made on the defendants and proper proof of service filed. Defendants’ motion to set aside the default was not made as soon as practicable after they had notice and knowledge that default had been taken and judgment entered, nor within four months after the default was regularly entered and proceedings had been taken after default on the strength thereof. Furthermore, the defendants were given notice of entry of the default and judgment shortly after December 29, 1944. No fraud is claimed or shown. The circuit judge did not abuse his discretion in denying appellants’ motion to set aside the default. See Petley v. Wayne Circuit Judge, 124 Mich. 14.
Affirmed, with costs.
Butzel, C. J., and Caer, Bushnell, Sharpe, Beid, North, and Starr, JJ., concurred. | [
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Boyles, J.
Plaintiff, while a passenger in an automobile- driven by defendant Edward Davis, was injured in a collision between the Davis automobile and one driven by the defendant Samuel Rubin. Plaintiff sued both drivers but at the trial voluntarily dismissed his suit against his driver, Davis, and the jury returned a verdict of “no cause of action” against plaintiff as to Rubin. From the judgment entered thereon plaintiff appeals.
The case stands here on appeal as a suit by plaintiff, as a passenger in the Davis car, against Rubin for damages claimed to result from Rubin’s negligence. . Involved in the case were the usual issues as to negligence and contributory negligence of the drivers.
At the trial the court and jury were called upon to consider whether plaintiff was a passenger for hire, in the Davis automobile. If he was, under our decisions the contributory negligence of Davis, if any, would not be imputed to his passenger. Lachow v. Kimmich, 263 Mich. 1 (90 A. L. R. 626, 32 N. C. C. A. 579). The court instructed the jury that there was no proof in the case that plaintiff was a passenger for hire, and further charged that if the jury found that plaintiff’s driver, Davis, was guilty of any negligence which contributed to the accident it would be imputed to plaintiff and he could not recover.
This was a correct statement of the law at the time the case was tried. The doctrine of imputed negligence has since been repudiated by this court. Bricker v. Green, 313 Mich. 218 (163 A. L. R. 697). Under that and subsequent decisions we reverse and grant a new trial.
Consequently, in the instant case it matters not whether plaintiff was a passenger for hire. If he was, any negligence of his driver would not be imputed to him, under former decisions. If he was not, still any negligence of his driver would not be imputed to him, under the Bricker Case.
The judgment must be set aside on the ground that it was error to charge the jury that the plaintiff may not recover if the driver of the car in which the plaintiff was riding was guilty of negligence which contributed to the accident.
In view of the above conclusion, it is not necessary to consider the other questions urged by appellant for reversal.
Beversed and new trial granted, with costs to abide the result.
Butzel, C. J., and Care, Bushnell, Sharpe, Beid, North, and Starr, JJ., concurred. | [
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Graves, J.
Some account of the origin of this controversy and of its character, is necessary at the outset. The plaintiffs were wholesale grocers at Detroit and in January, 1871, they hired the defendant, Gilman, as an agent to travel for them and make sales and collections. He was to-receive a salary and have his expenses borne. He continued until the year 1878 but the terms underwent variation. The-particulars are not now important. The course pursued by mutual acquiescence and assent was for the defendant to-make trips occupying a few days and on his return report a gross sum as paid for expenses and hand over the remainder. About the middle of 1875 the plaintiffs informed him that his expenses were regarded as too large,' and in the next year they footed up a little less. The course pursued amounted to a practical liquidation of the accounts front time to time and their accuracy was not disputed during the employment. The plaintiffs neither called for any revision of the charges nor suggested the least suspicion against their integrity. The ground of complaint in 1875 was that the expense actually incurred was higher than the plaintiffs-were willing to bear and not that it was being, or had been, falsely represented above the true amount. If the objection-at that time had been for the reason last mentioned the-plaintiffs would have dismissed the defendant at once instead of retaining him as they did in the same place of trust and confidence.
In 1879 and after the employment was ended the plaintiffs set up a claim. It was not put on the ground of mistake, nor on the ground that the real expense had been grossly extravagant and unreasonable. It was not pretended that, the cause of what was complained of was high and reckless-living or wanton failure to scale down and correct the bills at public houses and elsewhere. But the precise foundation of the claim was that in giving in his several reports of trip expenses the defendant had falsely and fraudulently swelled the amounts by fictitious additions to the actual expenditures —that he had obtained credit for moneys on the pretence of having expended them for traveling purposes, whereas he well knew he had not expended them at all.
To enforce this claim, to establish this fraud and recover its alleged fruits, the plaintiffs brought this action. The- defendant pleaded the general issue with notice of set-off, and the plaintiffs filed a bill of particulars apparently covering all the debit items of whatever nature against the defendant and amounting in the aggregate to nearly $20,000.
The trial came on and the record states that ■“ to maintain the plaintiffs’ case the defendant’s counsel admitted the items charged in the bill of particulars, reserving the right to cross-examine the plaintiff as to them, and for that purpose William F. Linn, one of the plaintiffs, was called and testified as follows” — and succeeding this statement, the record shows an elaborate examination of this witness by questions and answers, many of the questions being by plaintiffs’ counsel. Still pursuing the record, the next proceedings are as follows:
“The plaintiffs’ counsel then produced as witnesses a number of persons engaged as traveling men, upon the route mentioned, and proposed to show by said witnesses, what the actual expenses in traveling that route are, for the different years in question in this suit,” and the proposition was rejected. “Plaintiffs’ counsel proposed to show by several merchants, whom he produced as witnesses, that they' were well acquainted^with the expenses of traveling men over the route traveled by the defendant, and for the years in question, and that the expenses of traveling men are much less than the expenses charged by the defendant,” and this was refused. “ Plaintiffs’ counsel then produced witnesses by whom he proposed to show that the defendant had, during all these years, earned about twelve thousand dollars, and that he had made investments, and paid for property about fourteen thousand dollars, besides supporting his family. That he had no other source of revenue,” and the court excluded it. “ Plaintiffs’ counsel then produced witnesses who had estimated the cost of railroad fare, hotel bills, ’bus fare, livery bills and other expenses on the route traveled by the defendant, and proposed to show by them that the expenses charged by the defendant could not possibly have been legitimately expended,” and this was likewise denied. No other witnesses were called and the court ordered a verdict for the defendant.
The point to be first noticed is the allegation that error was committed in directing a verdict against the plaintiffs. It is said that in the actual state of the evidence they were entitled to recover on the admission made by defendant of the items in the bill of particulars. This position is not tenable. The admissions by the plaintiff when on the stand were conclusive against him and his brother in this action, that the matters in the bill to which the admission of defendant referred had gone into accounts stated: White v. Ga/m/p-bell 25 Mich. 463, and on the plaintiffs’ theory that the vice in the transactions consisted of the false pretences that the money had been paid for expenses when in truth it had not been, there was no case for the jury. The allegation of the fraud was without legal evidence to countenance it.
The next question is whether the court erred in denying the offer to show what the actual expenses of other traveling men had been over the same route, in the same years, and that they were much less than were charged by defendant. The purpose and only purpose of the proposed evidence, must have been to induce the jury to accept the difference between the defendant’s expense-account and the expenses of third persons going as agents along the same general route and in the same years, as a fact tending to show that the defendant wilfully inflamed his own statements of expense by adding sums as expended which were not expended at all.
That collateral facts are often relevant and proper will not be denied. But it is always necessary to regard their relation to the question to be settled. There .must always be some known and ordinary connection between the facts proposed and the facts to be proved, and the former must have some fair tendency to establish the truth of the latter, and when the collateral facts consist of the conduct of strangers the law usually applies the maxim of res imter aUos aeta, because there is no such general connection between such acts and the matters to be established as will justify an inference such as may properly be relied on in judicial investigations.
But whether these foreign facts are or are not the acts of strangers, if they are incapable of affording any reasonable presumption or inference as to the final subject, they ought not to be admitted. They are likely to lead to the multiplication of issues and to cause confusion and misjudgment. 1 G-reenl. Ev. § 52; 1 Starkie pp. Y9, 80, 81, 82; Stephen art. 10.
Illustrations of the doctrine referred to are numerous. The following citations are among them: Holcombe v. Hewson 2 Campb. 391; Jackson v. Smith 7 Cow. 717; Wilmot v. Richardson 6 Duer 328; Murray v. Smith 1 Duer 412; Lewis v. Smith 107 Mass. 334; Aldrich v. Inhabitants of Pelham 1 Gray 510; Collins v. Inhabitants of Dorchester 6 Cush. 396; Lincoln v. Taunton Manuf'g Co. 9 Allen 181; Gouge v. Roberts 53 N. Y. 619; Lake v. Clark 97 Mass. 346; Odiorne v. Winkley 2 Gall. 51-53; Brewster v. Dennis 21 Pick. 237; Ferneaux v. Hutchins Cowper 807.
In the present case the offer of evidence was open to all the objections alluded to. It came within the description of res inter alios acta, and was also subject to the exception that the facts proposed would not possess the properties in reason to generate the inference called for. The proposition was to compare one state of things with another and to prove thereby that a feature in one was false; but unless they were agreed in those points constituting the premises the comparison would be futile. If the circumstances were not substantially the same the experience of others in regard to the expense of traveling would be a fallacious test of the expense the defendant made, and the establishment of this needed •similarity was not provided for nor even possible. It is too plain to be questioned that no such similarity of conditions was to be developed or could be, as would afford any reasonable basis for inferring or contending that the alleged overcharges were false, and that they represented expenditures which were never made. The offer did not and could not contemplate such a generalization of incidents, including carriage hire and extra excursions however prudent or imprudent; a style of living however frugal or extravagant; and a degree of personal care or indifference in regard to the size of bills rendered, as would afford a jury any just-criterion whatever.
' The identity of circumstances to make the analogy valid was impossible of proof, and the points of agreement were not such as to authorize any valid inference in respect to the point of supposed disagreement.
The last question arises on the refusal of the plaintiffs’ offer to show that during the years in question the defendant-earned only about $12,000 and had no other source of revenue, but invested and paid for property about $14,000 besides supporting his family. This proposition was made of course upon the theory that the facts proposed to be-proved would tend to show if established that the defendant swindled the plaintiffs by falsifying his account of expenses-as alleged, and unless in view of the state of facts at the time the offer was denied, such must have been the legal tendency, the ruling was correct. The description given in an offer of testimony of what is proposed to be shown is-assumed to include all that is intended to be shown in addition to what has been already submitted, and when what is-offered, though viewed in connection with the evidence previously given, is incompetent to establish the main fact, it is-correct practice to exclude it. The court is not bound to-spend its time in an inquiry which on the tacit admission of the party can produce no reasonable result.
The offer in question must stand as made. Nothing can be supplied. No incidents can be added. No facts affirmative or negative which are not expressed or clearly implied can be intended. Suppose the facts to have been proved,, what were they? That the defendant earned $12,000, and invested $14,000 besides supporting his family. That he-had no other source of reverme. There was no offer to-show that his property was limited to his earnings, and it would be absurd to say that because a man’s revenue is con- ■flared to Ms earnings it follows or is to be infei’red that he-has no other lawful possessions.
For aught that was shown or offered it may be supposed that the defendant was provided lawfully with sufficient' means to anake up all he used over and above his eai’nings, and such would be the presumption of law until the appearance of a state of facts inconsistent with it. It would be very irrational to conclude that because a man was found to-have invested an amount beyond his income, he probably obtained the excess in an illegitimate way, not to say one-tainted with criminality.
Then as to the expense of his family. There was no offer to show the size of his family, or the expenditure on account of it, and much less what it cost him. No facts were-adduced t-0 establish that any portion of the weight of family support finally fell aapon Mm, or if it did that as a legal probability the amount or any portion of it was drawn from the plaintiffs. The premises contained in the offer were-wholly insufficient to lead to any relevant inference. Im~ poi’tant conditions were wanting. The proposed facts, then,, could have availed nothing had they been proved. They would have afforded no legitimate basis for any inference in, favor of the plaintiffs’ case.
It is proper to add that we wish it not to be implied from this criticism that the offer would have been good if it had contained all necessary requirements of form. On the contrary we regard it as far from cei’tain that it would have-been, but no decision on the subject is now called for.
We are of opinion that no ei’ror was committed, and that, the judgment should be affirmed with costs.
The other Justices concurred. | [
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Kuhn, J.
The claimant, William McCoy, was employed by the contestant and appellant as an operator on a lathe machine. On February 1, 1913, several small pieces of steel from the machine on which he was working lodged in his eye. This, it is claimed, caused an irritation and caused him to rub his eye. At the time, claimant was being treated by Dr. A. M. Campbell for gonorrhea. On February 7th he went to Dr. Cochrane, who removed four pieces of steel from the eye. The next day the doctor removed another piece of steel and discovered that the eye had become infected with gonorrhea. He was then sent to a hospital and subsequently lost the sight of the eye. The industrial accident board affirmed an award made claimant by an arbitration committee of $6.49 per week for 100 weeks.
It is the claim of contestant and appellant that the loss of the eye was not the result of a personal injury arising out of and in the course of claimant’s employment, but was the direct result of a disease unconnected in any way with his employment. At the hearing before the industrial accident board, four physicians were sworn, who testified as to the effect upon the eye of gonorrheal infection.
Claimant contends that the germs would not have entered the eye had not the steel caused “(a) an inclination to rub — the inciting cause — (b) inflamed condition which made the eye susceptible to the entry of the germs, as in the case ,of blood poison and erysipelas.”
A careful reading of the testimony of the physicians shows that the infection can easily be caused to a normal eye by rubbing the eye with a hand infected with the gonorrheal germ. Dr. Bret Nottingham testified:
“Mr. Mason: And will you say as an expert how gonorrhea can be communicated to the eye? Is it by germ or otherwise?
“A. Yes; it is a contagious disease of course, produced by this germ, and a person, in caring for themselves as they have to, get some of this pus on their finger containing the germs, and of course, the eye being irritable, would rub the eye with the finger containing this pus.
“Mr. Mason: No doubt that infection of the eye was caused by the entering of gonorrhea germs. Could that infection occur if there was no injury in the eye?
“A. Yes.
“Mr. Mason: Therefore, if a perfectly normal eye will be rubbed by a hand infected with the germ, it will infect the eye.
“A. It might be very easily infected; a normal eye can be infected in this same manner.
“Mr. Mason: Suppose this boy had not had any
injury to his eye, and had rubbed his eye; would it be possible that he could have lost his eye?
“A. Yes; the same result might have been obtained.”
Dr. Cushman testified:
“Gonorrhea is one of the most common conditions that there is perhaps, and it is an admitted fact, without any argument upon what we are supposed to know, that the gonorrhea germ will attack and penetrate the unaffected covering of the eye. I have heard it said on reasonably good authority that it is perhaps the only germ that will attack an uninjured eye; but the fact of there having been this injury to the eye from the steel, without any question in my mind, has lowered the resistance of the eye, that is, weakened it, and made it less resistant to the infection. With the inflammation, it was much more probable that the eye become affected. Now, if the infection of gonorrhea was easier transmitted to the eye, there would be probably about 50 per cent, of us running around blind. That is, gonorrhea is common, and you don’t see many blind. I have heard that 90 per cent, of the men in a certain town either have or have had gonorrhea, and 90 per cent, of the men haven’t got ba,d eyes, and probably have been careless about their fingers. The presence of an injury to the eye makes it far more probable that the eye will become diseased.”
Dr. Cochrane testified:
“Mr. Mason: Dr. Cochrane, did you examine this William McCoy; on what date?
“A. February 7th.
“Mr. Mason: He came to you for what trouble?
“A. He complained of steel in his eye.
“Mr. Mason: Did you take the foreign bodies?
“A. Yes.
“Mr. Mason: Where were they in the eye?
“A. On the upper lid on the under side.
“Mr. Mason: Were they in a place where they would have been apt to give very serious injury to the eye?
“A. Not serious injury; they would produce irritation.
“Mr. Mason: Does the present loss of the eye result from these cinders having been in or from another cause?
“A. The direct cause is from the gonorrhea infection.
“Mr. Mason: Therefore the loss of the eye is the direct result of disease, and not of accident.
“A. The immediate cause is the disease.
“Mr. Mason: In other words, what we call the resulting cause is the disease.
“A. The immediate or. direct cause.
“Mr. Mason: How did that gonorrhea get into his eye?
“A. Probably from rubbing with his fingers.
“Mr. Mason: He had gonorrhea before that?
“A. I understand so.
“Mr. Mason: At the time you examined him did he have gonorrhea?
“A. I understand so.
“Mr. Reaves: You say, Doctor, that that was the approximate cause of the loss of his eye — the imme diate cause — what would you say if he had not have had the steel in his eye?
“A. If he had not had the steel in his eye, he might not have rubbed his eye, at least not as vigorously as he did, and so he might not have infected the eye.”
Dr. Campbell testified:
“Mr. Atkins: How much more chance would there be for his losing his eye after having the piece of steel in there, and the inflammation with it, how much more chance would there be to lose the eye ?
“A. Just as soon as the infection gets in there I don’t think it would make a great deal of difference. You are just as liable to lose the eye as soon as your infection gets there, whether you had anything in there or not. The point is here, your steel would be an inciting cause, and get infection on that account; but, once you get the infection, you are liable to lose the eye one way or the other. The point is here, there is an inciting cause from rubbing the eye; the effect of the steel being there, a man would be more liable to get infection of the eye, but, once your infection is in there, you will lose the eye from the gonorrhea infection. It does not make any difference how it gets in there, you will lose the sight partially or complete.”
The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose “out of and in the course of his employment” rests upon the claimant. Bryant v. Fissell, 84 N. J. Law, 72 (86 Atl. 458) ; 8 Negligence & Compensation Cases Annotated, p. 585. Ruegg on Employers’ Liability and Workmen’s Compensation, p. 343, says:
“If an inference favorable to the applicant can only be arrived at by a guess the applicant fails. The same thing happens where two or more inferences equally consistent with the facts arise from them.”
Boyd on Workmen’s Compensation, § 559, says:
“The workman carries the burden of proving that his injury was caused by the accident and where he fails to do so, and where the evidence as to the cause of the injury is equally consistent with an accident, and with no accident, compensation may not be awarded him.”
In the instant case it is not reasonable to say that he would not have rubbed his eye if the steel had not lodged there. He might not have rubbed his eye, it is true; but it is just as reasonable to suppose that he might have had occasion to rub his eye without this particular inciting cause. By the medical testimony it conclusively appears that the infection could have taken place if the steel had not been there. It must be said, from this record, that the loss of the eye was directly and immediately due to the infection caused by the gonorrhea,, which it cannot be claimed is a risk incident to the employment. We are of the opinion that the facts are not capable of supporting the inference that the injury arose out of and in the course of the employment.
The decision of the industrial accident board is reversed.
McAlvay, C. J.,' and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Moore, J.
The plaintiff sued the defendant for the conversion of two certificates of deposit, one for the sum of $1,000 and one for the sum of $50. The case was tried before a jury. From a judgment in favor of the plaintiff, the case is brought here by writ of error.
The family of Charles Jennings, Sr., consisted of himself and wife, his daughter Ella, and two sons Charles, Jr., and Abner. In 1875 Abner bought a farm of 40 acres near his father. The father and two sons worked both farms, and from the proceeds the 40 acres was paid for; the final payment being made about the year 1882. From then on the defendant worked his farm. Charles, Sr., and Charles, Jr., worked the home farm, which was the home of both of them. In 1888 Charles, Sr., made a will giving to Ella $600, Abner $100, and to Charles, Jr., his personal property and the home farm, subject to the life use of the widow, Rhoda Jennings. Between the time of making the will in 1888 and his death, Charles, Sr., accumulated upwards of $1,000 which he put in the bank, receiving therefor certificates of deposit payable to Charles Jennings, Sr. Charles Jennings, Jr., died in February, 1910, leaving a widow, Carrie Jennings, and four daughters.
In the spring of 1910, but after the death of Charles, Jr., Charles, Sr., went alone, using the horse and buggy of Abner, to the residence of John Mercer, and had him draw a will giving the west 18 acres of the home farm to Abner. He executed this will and left it with Mr. Mercer. On the 7th of June following he wrote Mr. Mercer and requested a return of both wills. Later the will of 1888 was delivered for safe-keeping to a Mr. Whitaker. Charles, Sr., died in April, 1911. The will of 1888 has been probated. After the death of Charles, Sr., the defendant presented to the bank issuing them the certificates of deposit in controversy here, and claiming to be the owner of them, had new certificates made, first to himself and wife, and later to himself alone. As before stated, this suit was brought for their conversion.
The first group of assignments of error relate to the admission of testimony. It is said the court erred in allowing Supervisor North to testify as to what defendant told him in the spring of 1911 about his personal property. The witness stated he was a supervisor; that he did not ask Mr. Jennings to fill out and sign a blank statement; that he did not require him to, but made it out himself.
“Q. When was it that you were there at his house to take this assessment?
“A. Now, I can’t tell the exact day, but it was in the first of May, from the 4th to the 8th, anyway.
“Q. Now, I ask you to tell what conversation and talk you had with him there, what questions you asked him, and what were his answers, as near as you can remember, as to his owning any personal property?
“Mr. Fellows: That we object to because it is privileged.
“The Court: Well, you may take the answer, and I will control it later.
“Mr. Fellows: Exception.
“A. Well, I asked him the usual question. Now, on the farms in the townships, we ask them in regard to their horses and cattle, and such things as is around on the farm, and then it’s on the statement, ‘Have you any bank stocks, mortgages, notes, credits?’ and so on. I read that over to the person I am assessing, and I did that to him. He replied to these questions that he had nothing only the personal property on the farm, the horses and cows. He told me about the team and the cows, and I assessed them at $300; $200 of this was exempt, and I put him on the roll in personal at $100. All I assessed was the stock and stuff on the farm, and he gave in no money or credits.
“Mr. Fellows: Your assessment is of the 1st of April; that is what property he had the 1st of April?
“A. Yes.”
It is insisted this is error, citing section 3846, 1 Comp. Laws (1 How. Stat. [2d Ed.] §1791), and Williams v. Brown, 137 Mich. 569 (100 N. W. 786).• Section 3842 requires:
“Every owner of property liable to taxation * * * shall make out and deliver to the supervisor or assessor on demand, a sworn statement of all the property owned or held by him.”
Section 3846 provides what shall be done with “all the statements herein required to be made and received by the supervisor or assessor,” and has this provision:
“But no such statement shall be used for any other purpose except the making of an assessment for taxes as herein provided, or for enforcing the provisions of this act.”
The case of Williams v. Brown, supra, construed that provision. In that case the tax statement required by law was, in fact, made by the taxpayer. The taxpayer was a witness, the tax statement was put in his hands, and he was cross-examined about it. In the instant case no such statement was made by the taxpayer. The witness was not the taxpayer, and we think the cases are distinguishable, and that the provision of the statute quoted does not apply.
The next group of assignments of error relates to the admission of testimony. We quote from the brief:
“Under the will of the decedent, his farm and personal property were given to his son, Charles, Jr. (the father of witnesses Lulu Hudnut, Lena Giddings, and Lila Jennings, and the husband of the witness Carrie Jennings), and to his heirs forever. It was urged by the plaintiff in the court below that, under the statute designed to prevent the lapsing of legacies (section 9288, 3 Comp. Laws), this property went to the issue of Charles, Jr. This, however, only becomes important in considering the testimony of Carrie Jennings, as it is conceded and insisted by the plaintiff that the children of Charles, Jr., take the property which is involved in this case, provided there is a recovery here. * * * If the plaintiff is correct, and this money is recovered, it will be paid into the hands of plaintiff as administrator, and will go to the four daughters of Charles under this will. Such being the case, we * * * urge upon this court that the case of Peirson v. McNeal, 137 Mich. 158 (100 N. W. 458), is upon all fours with the case at bar.”
Counsel also cite section 10212, 3 Comp. Laws. Ripley v. Seligman, 88 Mich. 177 (50 N. W. 143) ; O’Neil v. Greenwood, 106 Mich. 572 (64 N. W. 511); and Shepard v. Shepard, 164 Mich. 183 (129 N. W. 201).
It was not insisted very strongly in the oral argument, nor is it in the brief, that Carrie Jennings, the widow of Charles, Jr., is incompetent, and we will concern ourselves only with the claim that the testimony of the children of Charles, Jr., was incompetent.
Section 10212, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12856), reads as follows:
“When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased person. * * * Provided, that whenever the words, ‘the opposite party’ occur in this section it shall be deemed to include the assignors or assignees of the claim or any part thereof in controversy.”
Counsel for appellee contend (we quote sufficiently from the brief to indicate the argument):
“We have always supposed, and do now, that it was the purpose of this statute to protect estates; to keep them from being depleted by those who pretend to have had dealings with deceased which had not been closed up before his death. * * * To state it in other words: We have always understood this to be a statute which was designed to put the living and the dead upon the same legal footing; death having closed the mouth of one, precluding him from giving his version of a controversy, the law benignly and justly closes the mouth of the other, so no advantage can accrue to him by the misfortune of the decease of the first. We have always understood that this statute closes the mouth of the one who is endeavoring to get something out of a dead man’s estate; to lessen it; to deplete it. We supposed that it applied to one who had a claim against an estate which we were seeking to establish as a debt against the estate, and thereby take from the property of the man who was dead and could not appear to meet his antagonist face to face. * * * The view we take of this situation is that the estate of Charles Jennings, Sr., is one party, and that the defendant here, Abner D. Jennings, is the other party; or it might, without any fear of confusion, be stated that the defendant here is arrayed against the estate and is the 'opposite party’ to the estate and to the deceased. * * *
“These heirs whose testimony is claimed to be incompetent, under this statute, are giving evidence in favor of the estate, and are not 'opposite parties’ to the estate. Their testimony is not incompetent as to matters equally within the knowledge of the deceased; for they are not seeking to deplete the estate, take something from it, to lessen it, but their testimony tends to preserve it, and keep it from being depleted. The incidental fact, if it be a fact, that, if the plaintiff •is successful here, they may or may not benefit from the judgment does not make them 'opposite parties’ within the meaning of the statute.”
We think it is within the principles stated in Pendill v. Neuberger, 64 Mich. 220 (31 N. W. 177); Hillman v. Schwenck, 68 Mich. 293 (36 N. W. 77); Latourette v. McKeon, 104 Mich. 156 (62 N. W. 153) ; and Tabor v. Tabor, 136 Mich. 255 (99 N. W. 4) ; and that the court did not err in its ruling.
" The next assignment of error relates to the testimony of D. H. Carney who said (we quote from the brief):
“He [decedent] seemed to be rather bitter towards Abner in that respect. To use his conversation, he says: ‘We sent Ab $75 when he was West, and,’ he says, ‘by God, he has never paid it back, and I haven’t forgot it.’ He says ‘He has got all he will ever get’— is the conversation that he used.”
“This testimony was in the absence of the defendant, and was as to him pure hearsay. It is self-serving in character, and inadmissible. * * * ” Counsel citing Van Fleet v. Van Fleet, 50 Mich. 1 (14 N. W. 671), and several other cases.
In allowing this testimony to come in, the court limited its use to showing the relations of the parties. There are many authorities sustaining the view presented by appellant, but it must be remembered that he is claiming these certificates were given to him. It is the common experience that gifts are ordinarily made only to those for whom the donor has a greater or less regard.
In Whitney v. Wheeler, 116 Mass. 490, it is said:'
“Gifts mortis cama, like testamentary gifts, express the state of mind and disposition of the donor towards the donee, and his purpose in regard to the bestowal of his estate. When there is any ground for doubt as to the intent with which a delivery of property was made,'or whether in fact its possession was obtained by delivery as a voluntary gift or in some other mode, evidence tending to show a continuous and apparently fixed state of mind and purpose, inconsistent with such alleged gift, existing previously thereto, may have a legitimate bearing upon the case to affect the inferences to be drawn from the facts and circumstances attending the transaction.”
In Whitwell v. Winslow, 132 Mass. 307, it is said:
“On the issue whether the gift of a promissory note was made, statements of the alleged donor, who died before the trial of an action on the note, at different times before and after the alleged gift and inconsistent therewith, are admissible to contradict the testimony of the donee, although not made in the donee’s presence.”
In Thornton on Gifts, § 222, it is said:
“So prior declarations of the donor in his favor are admissible if they tend to show a continuous and apparently fixed state of mind and purpose in him, inconsistent with the alleged gift to contradict the testi mony of the donee.” Citing Sherman v. Sherman, 75 Iowa, 136 (39 N. W. 232), which case supports the text.
We think the situation disclosed by the record distinguishes the instant case from those cited by appellant. This brings us to the question of whether there should have been a directed verdict.
The judge charged, in part, as follows:
“The sole question for you to determine from all the evidence in this case is whether or not these certificates were the property of Charles Jennings, Sr., at the time of his death, or whether they were the property of Abner Jennings at the time Charles Jennings, Sr., died.
“And in this case, gentlemen, you are not to determine the question of whether Charles Jennings, Sr., was mentally competent or not, or the question of undue influence; for, under the evidence in this case, you are instructed that the evidence does not show mental incompetency or undue influence.
“Now, regarding the possession of these certificates by the defendant, if you find from the evidence that these certificates were indorsed by Charles Jennings, Sr., then the possession of these certificates by Abner Jennings is prima facie evidence of title in him (Abner), and creates the presumption that they were delivered to him, and that his possession is lawful; delivered to him in the lifetime of Charles Jennings, Sr. You are, however, to determine the question of whether or not his possession is lawful from all the evidence in the case, and find whether or not this presumption and this prima facie evidence is met and overcome by the testimony in the case bearing on the question of whether or not these certificates were given by Charles Jennings, Sr., to the defendant before the death of Charles Jennings, Sr., on April 18, 1911.
“The burden of proof, gentlemen, is upon the plaintiff in this case; that is, the burden of proving that these certificates were the property of Charles Jennings, Sr., at the time of his death is upon the plaintiff. It is his duty to prove this fact by a preponderance of the testimony; that is, there must be more evidence in favor of this claim that he asserts than "there is against it. This does not necessarily mean numbers of witnesses, but it means that testimony which carries conviction to your judgment.”
In view of the fact that decedent left a will giving to Charles, Jr., his personal property, the testimony of the supervisor which we have already quoted, what occurred on the visit of the judge of probate in the presence of the defendant, we do not think the trial judge would have been justified in directing a verdict.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
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Kuhn, J.
This cause has been before this court before and is reported in 165 Mich. 535 (131 N. W. 66), where the facts are sufficiently stated for a proper understanding of the issues involved. Being sent back for a new trial, it again resulted in a verdict and judgment for the defendant. The plaintiff brings the cause to this court by writ of error and claims that the testimony was insufficient to show adverse possession and that in the submission of the case to the jury and in the rulings and charge of the court there were material and prejudicial errors.
The first five assignments of error relate to the claimed legal proposition that, when a party claims an entry upon land on a date certain and under color of title, it is not competent to prove adverse possession after the expiration of limitation provided by the statute. The first alleged possession dated back to 1881, when S. W. Fowler, a lawyer, under color of a tax deed, put a tenant in possession. The circuit judge submitted the case to the jury both upon a claim of ten years’ possession under color of title of the tax deed and also under claimed possession for fifteen years. With reference to this, he charged the jury, in part, as follows:
“It must be a continuous possession. And that, gentlemen, is the crucial question in this case I think, the closest question in the case on the testimony. It must be a continuous possession, in this case, for at least 10 years. Mr. Fowler owned these tax titles. If he went into possession of this land through Mr. Hull, claiming to own the land under his tax titles, and possession of the character which I am describing to you for 10 years consecutively would create a valid paramount title by adverse possession. If he did not go in claiming title under the tax deeds, then his possession must be of the same character for a period of 15 years before title by adverse possession will ripen and defeat the other title. The fact that these tax titles and tax claims were found after-wards to be void and worthless and of no force as deeds would cut no figure in this case. You may lay that question aside and not discuss it nor refer to it, because the law provides that when a man receives a deed of land from the State and goes into possession claiming to own it under that deed, and stays there and is adversely possessed of it in the way which I have described for 10 years, his title is good against everybody. And it does not make any difference that the deed is afterwards found to be void. But if he did not enter claiming under these tax deeds, but just entered without right and without claim of right, through Mr. Hull, then his possession, adverse possession, with all its constituent elements, must obtain for 15 years instead of 10 in order to make this title paramount and defeat the other title.”
It is appellant’s claim that there is only one theory in this case, viz., that the entry was under the tax deed as color of title, and that under this claim there was but one period of limitation, 10 years, by virtue of the statute. Section 9714, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14119). The court permitted the defendant to offer testimony as to possession 18 years after the entry. It is claimed that, if the color of title is abandoned, then the defendant could claim only that part of the tract actually occupied, and there is nothing to extend the occupancy to the boundary of the land described in the deed. The so-called Richardson lease, dated January 26, 1889, it is claimed, limited the occupation to the house and garden. It reads as follows:
“Manistee, Jan. 26, ’89.
“Be it remembered that George Richardson has rented the house and garden on place Richmeyer had on section seven, twenty-two, fourteen, for the improvements he made on the house- and place, to live in until May, 1890, subject to sale by said Fowler. That he is to leave his improvements and they do and are to belong to the premises, but in case of sale, and he has to move and before time, he is to have his proportion of lumber paid back by purchaser, and he will
permit no trespass nor cut any green or valuable trees or timber.
“George Richardson.
“He may cut the maple tree, one tree back of the house if he sees fit to do.”
On the back of this lease there is indorsed in the handwriting of Mr. Fowler:
“Leased to George Richardson, house on Sec. 7, 89.”
This question was discussed in the briefs filed in the case when it was here before, and it seems to have had the consideration of the court, as the opinion says, page 537 of 165 Mich. (131 N. W. 66):
“We think, also, that there was testimony justifying an inference that these descriptions were occupied and used as one parcel, and that occupation extended to all of the land.”
By the terms of the lease, while he only occupied the house and garden, as to all but Fowler he was in possession of the entire premises, as by its terms it was his duty to “permit no trespass,” and this must be construed to refer to the Richmeyer place, which, it is conceded, is the land here in controversy. The actual occupation of the house and garden together with his duty to prevent trespassing was sufficient to fully apprise the original owners, had they been in view of the premises, that adverse claims were being asserted to the entire tract. The occupancy in the instant case comes within the rule announced in Murray v. Hudson, 65 Mich. 670, 673 (32 N. W. 889), where it was held that:
“It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as are consistent with the character of the premises in question.”
In Whitaker v. Shooting Club, 102 Mich. 454, 459 (60 N. W. 983), this court said:
“The occupation need not be such as to inform a passing stranger that some one is asserting title. If it be such as to notify and warn the owner, should he visit the premises, that a person is in possession under a hostile claim, it is sufficient.”
We cannot therefore see how it was prejudicial to the plaintiff to have submitted to the jury the question of adverse possession for the period of 15 years. Cook v. Clinton, 64 Mich. 309 (31 N. W. 317, 8 Am. St. Rep. 816). An examination of the testimony in this case as to adverse possession shows that it was substantially of the same character as on the previous trial. We would not be warranted, therefore, in coming to a different conclusion than was had in that case, viz., that it was not error to submit the question of adverse possession to the jury. Merritt v. Westerman, supra, and cases cited.
The lands were conveyed to the defendant by Isaac N. Hilliard on April 8, 1907. On April 10, 1907, Hilliard and the defendant entered into a contract which provided that as the parties had theretofore entered into a contract for the sale of the land and the remaining 40 acres of the same quarter section, and that as an interest in said lands was claimed by the plaintiff herein, as agent for another person, $500 of the purchase money was to be deposited in a bank, to remain there for a period of five years unless the cloud upon the title was removed before that period. This contract was admitted in evidence to show the interest of the witness Hilliard in the subject-matter of the litigation. He was asked on cross-examination why the period of five years was mentioned in the contract, and the court did not permit an answer. It is urged that this was error, as it was proper to show this as bearing upon the question of the defendant’s good faith. The title of the defendant, if perfected at all, was completed in 1891, under the ten-year period, and in 1896, under the fifteen-year period and the contract in question was entered into several years later. The contract does not disclose any waiver or nonclaim of his own title by adverse possession on the part of Hilliard or on the part of Westerman. We do not think that limiting the cross-examination was prejudicial error under the circumstances of this case.
We are satisfied that the case was fairly tried and submitted to the jury with a proper charge, and the judgment is therefore affirmed.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
McAlvay, C. J.
Relator asks for a writ of mandamus to be issued against respondent to compel him to set aside a certain order made by him as such circuit judge in a cause pending in said court, wherein relator is plaintiff and Fred A. Herreman is defend ant, quashing the proceedings had upon a certain writ of capias ad respondendum, discharging defendant from bail and his sureties upon the bail bond.
This action by relator is brought against defendant to recover damages arising from fraud. The answer of respondent and the brief of his counsel in these mandamus proceedings admit that the statement of facts in relator’s brief is substantially correct. The charges of fraudulent misrepresentations made by defendant to relator in connection with the transactions hereinafter detailed are not contradicted. Counsel for respondent contend that the truth or falsity of such representations is absolutely immaterial. Under these circumstances, it will be necessary to state only such facts as may be required to show the fraudulent statements, to properly understand the questions involved, as follows: From the affidavits presented upon the application for the writ, and upon which it was allowed, it appears that relator was the owner of a house and lot in the city of Kalamazoo, of the value of $2,500defendant claimed to own and, as the records in the office of the register of deeds also show, did own, a farm of 80 acres in Portage township, Kalamazoo county. A short time before May 13, 1913, he came to relator, whose property he had theretofore examined, and negotiations began between them as to an exchange of these properties. She charges that he fraudulently and falsely represented to her he had just purchased this farm and paid for it the sum of $4,000; that the property was well worth that amount; that there were situate upon said premises a good house, barn, and other outbuildings; that the soil was good and productive; that there was a man, or family, living upon said farm and working it — all of which representations as to the value of said farm, the amount he paid for it, the quality of the land, that it was being occupied and cultivated, were false and fraudulent. During these negotiations he further stated to her that he had recently sold this farm on a contract for $4,000, upon which he had received $1,500, and that there was upon it a mortgage given to the original owner for the purchase price, for the sum of $600. Defendant then and there offered relator to deed to her said’ farm, subject to the mortgage of $600, to assign to her the said land contract, and to pay her $200 in cash, in exchange for her Kalamazoo property.
Relator believed such statements, and, relying implicitly and fully upon such false and fraudulent statements and representations so made by defendant to her, did not go ‘to the said premises or make any inquiry or investigation concerning them, or the value and condition of the same, then and there accepted his offer to exchange properties, being induced to do so by such false and fraudulent representations, which she believed to be true, and on May 13, 1913, she executed and delivered to him'a warranty deed of her premises, and on the same date, his wife joining him, defendant executed and delivered' to her a warranty deed of this farm, subject to a mortgage of $600, and also subject to the land contract of $4,000, less $1,500 paid thereon, assigned the said land contract to her, and paid her $200. She states that had she known the true condition of the farm, and that the statements and representations of defendant were false and fraudulent, she would not have made the exchange* of properties with defendant, received what he deeded to her, or deeded her property to him.
In support of her affidavit, made upon her own knowledge, the substance of which has been given, relator, upon her application for a writ of capias, to show the falsity of defendant’s statements to her, presented the affidavit of the original owner of the farm, showing that he sold it to defendant for the sum of $1,000, and no more, of which $400 was paid in cash, and the balance secured by mortgage on the farm for $600. Also the affidavits of Mr. Titus and Mr. Miller, which show that there were no good buildings upon this land; that the soil was poor and run out; that the farm was largely marsh land; that there was nobody working the land; and that the same had not been occupied and cultivated for seven years previous thereto. Upon this showing a writ of capias ad respondendum was issued, and an order was indorsed thereon by respondent that defendant be held to bail in the sum of $1,000. Defendant was arrested upon such writ and gave bail to the officer in the sum required. Later defendant made a motion to quash the proceedings under such writ and to be discharged from such bail and for the discharge of his sureties. This motion was granted upon a hearing, and respondent ordered “that all proceedings had on said affidavit are hereby quashed, the above-named defendant discharged from bail, and said bail bond held for naught and the sureties thereon discharged.” The writ of mandamus in these proceedings is sought to compel respondent to vacate and set aside this order.
The record presents but one question to be determined, and that is whether the shoeing made by the affidavit of relator, and the affidavits annexed to and made a part of it, stated a cause of action and entitled her to this writ of capias. Respondent determined the matter upon the sole ground that there had been no forfeiture of this contract, and relator had not been damnified. The truth of the statements contained in relator’s showing made upon the application for the writ are not questioned in these proceedings. Is a cause of action for fraud stated?
By these false and fraudulent statements made by defendant to relator that he had paid $4,000 for the land he desired to exchange for her property, and that his land was worth it, that there were on said premises a good house, barn, and other outbuildings, that the soil was good and productive, that there was a man or family living upon the' farm and working it, upon the truth of which statements she absolutely relied, she, without viewing the premises and without inquiry, was induced to and did deed her Kalamazoo property to him. She swears that, by means of these false and fraudulent statements, she has been damaged and defrauded. Relator, by her affidavit and the supporting affidavits, has stated a good cause of action for fraud. Pratt v. Allegan Circuit Judge, 177 Mich. 558 (143 N. W. 890).
Attorneys for respondent contend that relator received, as a consideration for her premises, the land contract for $4,000, upon which $1,500 had been paid, and $200 in cash, and the argument is made that this was a valuable consideration upon the face of the papers, and, no default having been made in the payments on this contract, she has not been damaged or defrauded and has no right of action against defendant. There is no force in this contention, as far as these proceedings are concerned. It might possibly be material upon the trial of the case as bearing upon the measure of damages.
In view of the proof presented, showing the true condition and actual value of the premises for which defendant by fraud induced relator to exchange her property, this contract to sell these premises for nearly three times the actual value might well be considered as tending to support relator’s contention that she had been defrauded. It was not necessary that default should occur in this contract as a condition precedent to bringing suit for fraud.
It is intimated by counsel that relator has not rescinded the contract and offered to restore what she received. Upon this proposition it need only be said that it is well-settled law that no rescission or restitution is -necessary as a condition precedent to maintaining an action for damages arising from false representations and deceit. 20 • Cyc. p. 91, and cases cited; Wegner v. Herkimer, 167 Mich. 587 (133 N. W. 623). The fraud in this case was completed when defendant, by his false representations, induced relator to deed her property to him, and a right of action then accrued. Petitioner had been fraudulently induced by defendant to part with her property. Briggs v. Brushaber, 43 Mich. 330 (5 N. W. 383, 38 Am. Rep. 187). The value and condition of this farm was falsely represented by defendant. Relator having parted with her property, relying upon such representation, a right of action accrued immediately upon .ascertaining its falsity. Short v. Cure, 100 Mich. 418 (59 N. W. 173); First Nat. Bank of Ovid v. .Steel, 146 Mich. 308 (109 N. W. 423). None of these .authorities are disputed, and counsel for respondent ■cite no authorities supporting their contentions. The :motion to quash the proceedings should have been denied.
A peremptory writ of mandamus will issue against respondent to compel him forthwith to set aside the order made and entered by him quashing the proceedings and discharging defendant from bail in the cause pending in the circuit court, Kalamazoo county, wherein relator is plaintiff and Fred Herreman is defendant, and to proceed in due course to hear said cause upon its merits. Relator will recover costs of these proceedings against Fred A. Herreman.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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North, J.
In this divorce case plaintiff has appealed from a provision in an amended decree which on her petition fixed the property rights of the parties in real estate jointly owned before the divorce; and also from the order of the trial court dismissing plaintiff’s subsequent petition for a modification of the amended decree.
In the original decree of divorce, entered June 20, 1935, the court for reasons stated reserved the right to determine the respective interests of these parties in their jointly-owned home. The assessed valuation of this property was $700, but there is testimony indicating it was of the approximate value of $1,600. The purchasing of the lot and the subsequent construction of the four-room house was the result of the joint effort of the husband and wife. The proceedings hereinafter noted were heard and determined by the same judge who decided the divorce case.
More than six years after the original decree plaintiff filed a petition to amend the original divorce decree in so far as it affected property rights, seeking thereby to have property rights adjudicated. Prior to the filing of this petition the property, being in default in payment of taxes, was sold at a scavenger sale; but defendant matched the bid of $175 made by a third party and obtained from the State land office board a contract to purchase in his individual name with a down payment of $25 and the balance payable in $5 monthly instalments. On September 8, 1942, upon hearing plaintiff’s petition the original decree was amended and adjudicated the property rights of the parties by providing that defendant should pay to plaintiff $250 “for her half undivided interest in the said premises, payable at the rate of $5 each and every week, from the date of this decree, payable in advance. And further, that after the payment of such amount to the said plaintiff, that the said defendant herein is to have the said premises wholly in his own right and name.” And the decree further provided: “That after the sale of said property under the so-called scavenger act, the title of the said property reverted back to the said parties hereto, in both names. ’ ’
Plaintiff promptly petitioned for á rehearing and on April 16,1943, the trial judge again amended the decree, thereby modifying the amount defendant was to pay plaintiff and the manner of payment. This amended decree of April, 1943, provided: “That defendant pay unto the said plaintiff herein, the sum of $300, as her share and property rights in the said real estate of the said parties hereto, payable at the rate of $10, each and every month from the date of this decree until the said sum $300 has been fully paid.” We are advised by defendant’s brief: “The entire sum ($300), upon court leave, has been duly paid into court for plaintiff.”
Prom the amended decree of April 16th plaintiff filed the claim of appeal in the matter now pending in this Court. But before the record on the appeal was settled the defendant died. Without causing a suggestion of death to be made of record, plaintiff after defendant’s death and on January 31, 1944, filed in the trial court another petition to amend the decree. In this petition plaintiff makes the contention that at the time of defendant’s death he and she were still joint tenants with right of survivor-ship in the property, and in consequence thereof she asserts the decree should, he so modified as to provide “that the entire real estate be given unto this said plaintiff, and in her name alone, in accordance with the laws of this State.” The trial court dismissed plaintiff’s January 31st petition and denied the relief therein sought. Appellant asserts that the trial court erred in so doing and seeks review on this appeal.
It is not essential that we should attempt a detailed recital of all the facts and circumstances bearing upon the issue of whether the trial court in its amended decree of April 16, 1943, made a fair and equitable property division. We deem it sufficient to note that plaintiff as well as defendant neglected to pay the taxes which resulted in the scavenger sale, that the defendant procured the money with which to make the initial payment and the subsequent instalments as they have accrued under his contract to purchase from the State land office board, that he has paid out quite a substantial sum of money in repairing or reconditioning the property, and especially it was made to appear to the trial court that unless defendant was given a major interest in the property he would in all probability become a public charge on account of his impaired physical condition and earning capacity. On the other hand, it appears that plaintiff has been steadily employed, and was remarried at the time of the hearing. We are of the opinion that the disposition of the property rights of these par ties made by the amended decree of the court in April, 1943, was proper.
There is no merit to appellant’s contention that her petition, made in January, 1944, for a further amendment o^ the decree which would provide that as a survivor of her former husband, who in the meantime had died, she was entitled to all of the property, was erroneously dismissed. After the 1943 amendment of the decree wherein the property rights of the parties were fixed, plaintiff was no longer a joint tenant with her former husband with a right of survivorship. See 3 Comp. Laws Í929, §12767 (Stat. Ann. § 25.132), and Sullivan v. Sullivan, 300 Mich. 640. As it is unnecessary, we forego commenting on the irregularity in the instant case of plaintiff’s attempted proceedings to have the trial court adjudicate property rights of the parties after the death of the defendant. ■
The decree entered in the circuit court is affirmed, without costs.
Btjtzel, C. J., and Carr, Bushnell, Sharpe, Boyles, Reed, and Starr, JJ., concurred.
See Act No. 155, Pub. Acts 1937, as amended (Oomp. Laws Supp. 1940, 1942, § 3723-1 et seq., Stat. Aun. 1942 Cum. Supp. § 7.951 et seq.). — Reporter. | [
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Sharpe, J.
(dissenting). The facts in this case have been stipulated. On August 30, 1940, defendant Preferred Automobile Insurance Company issued to plaintiff Anne Badakovitz, now Kosanic, a policy of automobile insurance. The coverage provided included among Others, retention collision; personal liability for injury to one person up to $5,000, and, subject to the limit for each person, personal liability to all persons injured in one accident up to $10,000; and an obligation to defend any suit arising from the ownership of the insured vehicle.
On November 24, 1940, plaintiff’s automobile, insured under the mentioned policy, collided ;with another automobile in which one Feigh Hatfield was a passenger. As a result of this collision, Feigh Hatfield was injured and the insured automobile was damaged to the extent of $510.95.
Feigh Hatfield brought action against Mrs. Kosanic, plaintiff in the ease at bar. Mrs. Kosanic notified defendant insurance company of the impending action and demanded that it defend her in accordance with the terms of the policy. The insurance company declined to defend the action, claiming that the policy was not in force at the time of the collision. Mrs. Kosanic then engaged the services of Noel Fox, a Muskegon attorney, to conduct her defense at an expense to her of $275. The action was tried and resulted in a judgment for Feigh Hatfield for damages and costs of $8,072.30. On September 18, 1942, Feigh Hatfield caused a writ of garnishment to be issued which was served on defendant insurance company. Defendant disclosed that it was not indebted to Anne Radakovitz-(Kosanic) in any amount. The trial resulted in a judgment in favor of Feigh Hatfield as against defendant insurance company in the sum of $5,276.56 damages and $68.60 costs. Defendant insurance company paid this judgment December 14, 1942.
On November 29, 1943, the instant ease was brought by Mrs. Kosanic to recover under the mentioned policy for damages to plaintiff’s automobile in the sum of $510.95 and the $275 paid to defend the Feigh Hatfield action and another arising out of the same accident. Defendant insurance company filed an answer to plaintiff’s declaration and set up as an affirmative defense that the judgment in the garnishment action is a final and conclusive adjudication of the indebtedness of defendant insurance company to plaintiff as it existed on the date that the writ of garnishment was served on it.
The issue thus framed came on for trial before the court without a jury. On December 2, 1944, a judgment for plaintiff in the sum of $785.95 was entered. Defendant appeals and urges that the two items of damages were owing by defendant to plaintiff herein when the writ of garnishment was served; that the indebtedness due plaintiff arose from a single breach of contract; that the 'cause of action cannot be split and a portion assigned to Mrs. Kosanic either by direct assignment or failure to recover the full amount due; and that the question of defendant’s liability to plaintiff herein as well as the amount thereof was in issue and adjudicated by the garnishment trial and judgment.
In coming to our conclusion in this case we have in mind that at the time the garnishment proceedings were instituted and the writ served, the garnishee defendant was indebted tó plaintiff in the instant case for an attorney fee which was ascertainable and later determined to be $275 and for damage to her automobile, subsequently proven to be $510.95 as well as the sum of $5,000 provided for in the insurance policy (see 3 Comp. Laws 1929, § 14858, as amended by Act No. 182, Pub. Acts 1937 [Comp. Laws Supp. 1940, § 14858, Stat. Ann. 1945 Cum. Supp. § 27.1856]); that when a judgment was rendered against the garnishee . defendant in the garnishment proceedings the items of attorney fee and car damage were not included in said judgment; and that these items could have been recovered by plaintiff in the garnishment proceedings.
We shall first discuss the claim made by defendant that the action by Feigh Hatfield in the garnishment case and action by plaintiff in the instant case result in a splitting of plaintiff’s original cause of action. The rule against splitting causes of action and the reasons for such rnle are well set forth in the following' cases.
“It is a well-settled rule that an entire claim or demand arising out of a single transaction, whether in the nature of a contract or tort, cannot be divided into separate and distinct claims, and the same form of action brought for each, or two suits maintained, without defendant’s consent.” Continental Insurance Co. v. H. M. Loud & Sons Lumber Co., 93 Mich. 139 (32 Am. St. Rep. 494).
In Jensen v. Gamble, 191 Mich. 233, 238, we said:
“There can be no doubt that the rule of law against the splitting of a single cause of action into several actions is founded upon the plainest and most substantial justice; that is, that litigation should have an end, and that no person should be unnecessarily harassed with a multiplicity of suits.
“The rule that a single cause of action cannot be split and made the subject of several actions applies, as a rule, where the cause is in favor of several persons jointly or against several persons jointly, and since a plaintiff having an entire indivisible demand cannot divide it into distinct parts, and maintain separate actions on it, so he cannot accomplish the same result by an assignment of a part of his demand, thereby enabling others to do what he could not do. 1 R. C. L. p. 341, and cases cited; 23 Cyc. p. 439 et seq.”
In Kruce v. Lakeside Biscuit Co., 198 Mich. 736, 742, we said:
“We conclude that, where several claims are involved, or due and payable under one and the same contract at the time of bringing suit, such claims must be brought in one action in order that the defendant may not be harassed by a multiplicity of suits.”
In A. Krolik & Co. v. Ossowski, 213 Mich. 1, 7, we said:
“The law abhors multiplicity of suits. Attempts to split a claim into separate causes of action have often met with disfavor.”
In Ginsburg v. McBride, 248 Mich. 221, we said:
“The rule is well established that, in the absence of an agreement to the contrary, a plaintiff cannot divide a claim against another and make it the subject of several actions. Should he do so, the judgment first recovered is. a bar to a second or subsequent action for the residue of the claim. ’ ’
In Loud v. General Builders Supply Co., 249 Mich. 331, we quoted the following with approval:
‘ ‘ ‘ There is nq, principle of law which prohibits a person who has a claim against another from taking a part in satisfaction of the whole, and therefore he may maintain an action for a part only of the claim. But the rule is fully established that in the absence of an agreement to the contrary he cannot divide his claim and make it the subject of several actions. Hence if he sues for a part only of his claim a judgment obtained by him in the action is a bar to1 a second action for the residue of the claim, be it much or little, and irrespective of the question whether the second form of action was or was not identical with the first. The rule of law against the splitting of a single cause of action into several actions is founded upon the plainest and most substantial justice, that is, that litigation should have an end and that no person should be unnecessarily harassed with a multiplicity of suits. It is the right of every litigant to have his cause once submitted to the arbitrament of the law; when it .is there decided the peace of society demands that it should be at rest forever. It is a principle on which the repose of communities depends.? 1 R. C. L. pp. 341, 342, citing many authorities from various jurisdictions.”
In the case at bar defendant insurance company, by issuing its policy of insurance to plaintiff, contracted with plaintiff to do three things in the event that plaintiff had an automobile collision, i.e., to pay the cost of repairing plaintiff’s car, to defend her in a suit by a third party, and to pay for any judgment up to $5,000 that might be rendered against plaintiff.
Under the garnishment proceedings Feigh Hatfield, plaintiff therein, was entitled to and could have recovered all moneys that the insurance company owed Anne Radakovitz Kosanie, but for reasons unknown she chose to omit the items heretofore mentioned and took a judgment for the claim for personal injuries. Under the cited cases Feigh Hatfield could not have successfully brought a second action against the insurance company for the omitted items, nor can plaintiff in the case at bar successfully bring a second action against the insurance company to recover for claims growing out of the insurance policy.
Under the authority of the Jensen Case, supra, Mrs. Kosanie could not assign a part of her claim to Feigh Hatfield and each bring action for their interest in the cause of action. In the case at bar, Mrs. Kosanie had three items of damages against the insurance company by virtue of her insurance policy. Under the authority of the Kruce Case, supra, such damages must be recovered in one action against the insurance company. The action of Feigh Hatfield in bringing the garnishment action against the insurance company for one of the items owing by the insurance company and the action by Mrs. Kosanie in bringing another action against the same defendant for the omitted items results in a splitting of Anne Radakovitz Kosanie’s original cause of action against the insurance company and is contrary to the well-established law in this State. The judgment in the garnishment proceedings is a bar to further recovery by Mrs. Kosanic against defendant.
The judgment should be reversed, with costs to defendant. | [
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] |
Butzel, C. J.
Mary Ellen Kenyon is the widow of Bertrand P. Kenyon, who on May 25, 1937, was proprietor of a small company known as the Adjustable Table Company, which owned the tools, patterns, jigs and other assets valued at $1,020 and used to manufacture an adjustable table. Kenyon entered into a partnership agreement with Charles H. Tidey, Sr., one of the defendants herein, who in turn furnished machinery, equipment, shafts, belting, pulleys and motors to equip a factory to manufacture adjustable tables and such other articles as the partnership might decide to manufacture. The assets contributed by Tidey, Sr., were also valued at $1,020. Both Mr. Kenyon and his wife, plaintiff herein, were deep in the seventies when the written contract was made, and their life expectancies necessarily were not long. The written partnership contract dated May 25, 1937, contained some unusual but not illegal provisions. It provided:
“It is agreed that should Charley H. Tidey, Sr., die before B. P. Kenyon, Sr., dies that said B. P. Kenyon, Sr., has the right or privilege to purchase the interest of Charles H. Tidey, Sr., in the Adjustable Table Company for the sum of $1. This will give the heirs the authority to turn this business over to B. P. Kenyon, Sr., said B. P. Kenyon, to pay all bills against the partnership. It is further agreed that if B. P. Kenyon, Sr., dies before said Charles H. Tidey, Sr., that Charles H. Tidey, Sr., shall pay or cause to be paid to Mary E. Kenyon, widow of B. P. Kenyon, the minimum sum of $15 per week during her life and more if the earnings of the business warrant it, but in- no event not more than one-half of the net earnings of said business, and at her déath the said Charles H. Tidey, Sr., shall have the privilege of purchasing all that part of the business owned and controlled by said B. P. Kenyon deceased for the sum of $1 paid to his heirs.”
The testimony shows that the written partnership agreement though dated 1937 was not executed until 1939. Kenyon, Sr., died shortly after the execution of the agreement. Mr. Tidey made many payments to Mrs. Kenyon according to the contract, sometimes regularly at $15 per week or $30 every two weeks, and at other times, by charging her with bills paid for her. However, he did not keep up the $15 a week payments with any degree of regularity.
On February 1, 1943, Charles H. Tidey, Sr., entered into a written agreement by which he turned over certain assets including those of the Adjustable Table Company to Charles H. Tidey, Jr., and Ora M. Kenyon, copartners doing business as the Kenyon-Tidey Machine Company, and the latter specifically agreed to pay Mary E. Kenyon the snm of $15 a week as long as she should live and thus relieve Tidey, Sr., from the obligation of making such payments; the first payment to be made February 1, 1943. It was agreed that the title to the property thus transferred to the copartnership should remain in Tidey, Sr., until the obligation to pay $15 a week to Mary E. Kenyon during her lifetime had been discharged in accordance with the provisions of the written agreement thaf had been made by Tidey, Sr., with Bertrand P. Kenyon; that upon the death of Mary E. Kenyon, if all weekly payments had been paid to her as provided in the agreement, the title to all assets turned over by Tidey, Sr., to the Kenyon-Tidey Machine Company should become fully vested in the latter. After Mrs. Kenyon failed to receive the $15 per week from the defendant for a considerable period, she brought the instant suit as third-party beneficiary under both agreements. The trial court entered judgment for the full balance due Mrs. Kenyon up to March 29, 1944; The judge found that $1,399.39 was due plaintiff from Charles II. Tidey, Sr., and that Charles H. Tidey, Jr., and Ora M. Kenyon were liable for $691.90 as part of and included in the sum of $1,399.39. He entered judgment accordingly. Defendants appeal.
In the main defense that was properly pleaded in the case attention is called to the contract entered into between Kenyon and Tidey, Sr., which provided that the latter was obliged to pay Mrs. Kenyon'the “minimum” sum of $15 during her lifetime and more if the earnings of the business warrant it, but in no event more than one-half of the net earnings of said business. Defendants contend here, as well as in the lower court, that this provi sion means that in no event was she entitled to more than one-half of the net earnings of- said business, and that, inasmuch as the business was run at a loss, she was overpaid and nothing is due her. Under Mr. Tidey’s agreement with the Kenyon-Tidey Machine Company payments of $15 a week were made to Mrs. Kenyon by defendants Tidey, Jr., and Ora M. Kenyon until the middle of March, 1944. The judge properly held that in order to accept defendants ’ view as to the agreement to pay Mrs. Kenyon the “minimum” sum of $15 per week during her lifetime, the word “minimum” would have to be read out of the contract. We believe that under a reasonable construction of the contract a “minimum” sum of $15 a week must be paid, and, if the business made large profits, then plaintiff might be entitled to one-half of them, if the earnings of the business warranted it, but in no event more than one-half of said earnings. The judge further stated that were there any doubt about this construction, it was largely resolved by the practical construction of the'parties themselves. Tidey, Sr., and later Tidey, Jr., and Ora M. Kenyon for a long period paid Mrs. Kenyon $15 per week or its equivalent during a time when they claim the business was run at a loss. The judge was correct in his conclusions. *
Defendants contend that the judge erred in excluding an answer to the question asked of Tidey, Jr., as to whether he and Ora M. Kenyon and Tidey, Sr., came to any agreement with relation to the payments to plaintiff. This question was propounded immediately after Tidey, Jr., had testified that there was a discussion at the time the payments were stopped. An unsuccessful effort also was made by defendants to introduce testimony that adjustable tables could not be manufactured on account of in ability to secure materials and because of “frustration by war.”' Neither an abrogation of the assumption of agreement by Tidey, Jr., and Ora M. Kenyon, nor the defense of frustration by war were pleaded. These were affirmative defenses which defendants attempted to raise for the first time at the trial. The testimony in regard to them was properly excluded. For this reason, we need not discuss them.
Judgment for plaintiff is affirmed, with costs.
Carr, Bitshnell, Sharpe, Boyles, Reid, North, and Starr, JJ., concurred. | [
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Bushnell, J.
(dissenting). This is an appeal by plaintiff from an order granting defendant’s motion to dismiss count 1 of his declaration, on the ground that the separate cause of action as therein pleaded is unenforceable under the provisions of the statute of frauds, 3 Comp. Laws 1929, § 13417 (Stat. Ann. § 26.922), and that such defect appears on the face of the declaration.
In count 1 of his declaration, plaintiff, Dr. Elek K. Benedek, a resident of Chicago, Illinois, .who describes himself as an experienced mechanical and consulting engineer and a specialist in fluid pressure variable speed pumps and transmissions, states that he is the original and sole inventor of various inventions and improvements in that field. After listing 16 letters patent by number, date, and subject matter, and three applications for patents, Benedek claims that on or about November 29, 1943, he granted to defendant Mechanical Products, Inc., a Michigan corporation, the license and privilege to manufacture and sell such devices, and that Mechanical Products, Inc., agreed to pay him a royalty of five per cent, on the selling price of such manufactured product sold by it, with a guaranteed minimum annual royalty of $10,000 per year. He avers that he performed his portion of the obligation, but that, although defendant performed its obligation for about three months, it then breached its contract and agreement and refused to pay the accrued royalties, et cetera. Counts 2 and 3 of the declaration, which are not here involved, have to do with compensation for personal services and labor rendered by plaintiff to defendant, recited in detail in count 2, and are based on the common counts in count 3.
There is attached to the declaration an exhibit referred to in count 1, which is a letter directed to the United States Selective Service System in Chicago, and signed, Mechanical Products, Inc., A. D. Knapp, president, requesting deferment of one Chester Alfred Czohara, which states in part:
“Recently our company secured the exclusive manufacturing rights of a complete line of industrial and aeronautical high pressure hydraulic pumps from Dr. Elek K. Benedek, consulting engineer, who is a specialist in fluid pressure variable speed pumps and transmissions. Dr. Benedek’s office and laboratory is located at 9243 South Oakley Ave., Chicago, 111.
“In connection with the above, the company has secured the services of Chester Alfred Czohara because of his design and development experience in aircraft hydraulic control apparatus in which he has irreplaceable skill and it is our understanding that his prior deferment was based on that skill.
“Our company have been requested by the Air Corps at Wright Field, to make certain changes in these hydraulic pumps for their application, and it constitutes the work that Mr. Czohara is doing for us at the present time. We might add that these high pressure variable speed pumps are very desirable to the Army Air Corps and Naval Air Corps and the writer feels that we are using Mr. Czohara's experience to the very best' possible advantage. ’ ’
The decisive question is whether this letter, addressed to one not a party to the claimed contract, is sufficient to satisfy the requirements of the statute that the license agreement relied upon is void, “unless such agreement, contract or promise, or some note or meniorandum thereof be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized.” (3 Comp. Laws 1929, §13417 [Stat. Ann. §26.922]).
Because of the provisions of 3 Comp. Laws 1929, § 13420 (Stat. Ann. §26.925), the consideration “need not be expressed in the written contract, agreement or promise, or in any note or memo randum thereof, hut may he proved by any other legal evidence.”
As stated in 112 A. L. R. p. 491:
“Letters, telegrams, or other written communications by a party to a contract to one who is not a party thereto, which sufficiently disclose the terms of the agreement and admit it or affirm it, are, according to the great weight of authority, valid memoranda thereof within the requirements of the statute of frauds.”
See authorities therein annotated from 22 States, not including Michigan, England, and Canada.
In Cochran v. Staman, 201 Mich. 630, Mr. Justice Kuhn, in a dissenting opinion, agreed with counsel’s statement “that the memorandum, to be sufficient under the statute of frauds, must be complete in itself, and leave nothing to rest in parol.” The majority, however, speaking through Chief Justice Ostrander, had this to say:
“The writing relied upon, in my opinion, is a promise to pay a commission for or upon a sale of real estate. So far as the statute of frauds is concerned, no more is required. Suppose that the seller, in this case, and the proposing buyer, produced by plaintiff, had agreed upon terms of payment and completed a sale and conveyance of the premises for $100 an acre. In an action for the commission, could the seller defend upon the ground that the promise to pay the commission was not in writing? I think not. And this, I think, is the test to apply, and not the one whether the written agreement or promise contains also, — has incorporated therein, — all of the details necessary to be stated in an agreement to sell and convey real estate. In Paul v. Graham, 193 Mich. 447, it was decided that a particular writing did not satisfy the statute. But a written promise to pay a stated commission for the sale of described property, both of which elements, as the opinion points ont, were lacking in the writing relied upon in that case, are present in the writing in this case. See Toomy v. Dunphy, 86 Cal. 639 (25 Pac. 130).
“ 'Every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate,’ is the language of the statute.”
Thereafter the court unanimously held in Badger v. Finlayson, 219 Mich. 660, that an agreement, in writing, to pay a broker a commission for the sale of real estate is sufficient to satisfy the statute even though it failed to state the price, terms of sale, et cetera, as required in case of a sale of real estate. In the Badger Case the court, after referring to the case of Cochran v. Staman, supra, said:
“The majority opinion in the case cited holds this is unnecessary. That if the agreement shows a promise to pay a commission upon the sale of real estate the statute is satisfied. Defendant insists that the case of Paul v. Graham, 193 Mich. 447, supports his contention. If counsel are right in their contention, the holding in Paul v. Graham must give way in so far as it is in conflict with the Cochran Case. Undoubtedly, the controlling thought in the mind of the legislature in adding section 5 to the statute (3 Comp. Laws 1915, §11981 ) was to put an end to controversies arising over parol agreements for the sale of real estate. In order to correct this it was provided that the agreement should be in writing. I£ this is the correct view the legislature had in the matter it may be reasonable to say that when a written agreement to pay a commission for the sale of real estate is shown it complies with the demand of the statute without any further proof as to the details of the sale. This was the controversy in the Cochran Case and was what caused a division of the court.”
In considering the propriety of the order dismissing count 1 of plaintiff’s declaration, as was said in Dodge v. Blood, 299 Mich. 364, 378 (138 A. L. R. 322):
“Upon demurrer, every inference must be indulged in favor of the pleader, and against the demurrant. This means that in order to justify dismissal of the bill upon the ground that it and its exhibits» state no contract, we must be prepared to hold that, as a matter of law, there is no explanation that can be placed upon the pleading that is consistent with a contract.”
We are not required to determine whether or not the agreement can be proven, but rather whether or not the inability to prove the contract because of the requirements of the statute of frauds appears upon the face of the declaration. Because of the overwhelming weight of authority as to communications to third parties, stated in 112 A. L. R. 490, 491, and the holdings in Cochran v. Staman, supra; and Badger v. Finlayson, supra, it cannot be said that this defect, if any, appears upon the face of the pleadings.
The order dismissing count 1 should be vacated and the cause should be remanded for further proceedings; Costs to appellant.
Boyles, J.
The order dismissing count 1 of the declaration should be affirmed. In count 1 plaintiff declares on an oral agreement not to be performed within a year and relies on a casual reference to it in a letter to the selective service board, as being a sufficient memorandum to satisfy the statute of frauds. As stated by Mr Justice Bushnell, this is the controlling question in the case. I hold that the memorandum is not sufficient.
There is no dispute but that the oral agreement was not to be performed within a year. This brings to bear 3 Comp. Laws 1929, §13417 (Stat. Ann. §26.922), the applicable part of which provides as follows:
“In the following cases specified in this section, every agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that is to say:
111. Every agreement that, by its term's, is not to be performed in one year from the making thereof.”
The memorandum on which plaintiff relies is a statement in a letter signed by the defendant’s president and sent to the selective service board, as follows :
“Becently our company secured the exclusive manufacturing rights of a complete line of industrial and aeronautical high pressure hydraulic pumps from Dr. Elek K. Benedek, consulting engineer, who is a specialist in fluid pressure variable speed pumps and transmissions. Dr. Benedek’s office and laboratory is located at 9243 South Oakley Ave., Chicago, 111.”
If this statement does not sufficiently disclose the terms of the alleged agreement, plaintiff cannot recover under count 1. In that event it matters not, for the purposes of this case, that the letter was sent to a third party, not a party in interest. Under the authority quoted by Mr. Justice Bushnell from 112 A.L.B.491:
“Letters, telegrams, or other written communications by a party to a contract to one who is not a party thereto, which sufficiently disclose the terms of the agreement and admit it or affirm it, are, ae cording to the great weight of authority, valid memoranda thereof within the requirements of the statute of frauds. ’ ’
Does such statement in this letter “sufficiently disclose the terms of the agreement” to satisfy the statute? Naturally, we look to plaintiff’s allegations in count 1, which under the circumstances of the case are accepted as true, to ascertain what' are claimed to be the terms of the alleged agreement.
Count 1 alleges that plaintiff is an experienced engineer, that he was the inventor of various improvements in fluid pressure variable speed pumps and transmissions, pitch propeller hubs and accessories and had various patents in relation thereto; that the defendant had a manufacturing plant; that plaintiff on November 29, 1943, .granted the defendant a license to manufacture and sell the aforesaid devices, that the defendant agreed to manufacture and sell said pumps and devices and to pay plaintiff certain royalties with a minimum annual royalty of $10,000 during the life of the patents; that at defendant’s request plaintiff gave the defendant an option to purchase all of said patents and pending applications;' that the defendant carried out its agreement for only about three months, breached its alleged agreement, wherefore plaintiff claimed $10,000 per year royalties and other damages amounting to $45,000.
The only “memorandum thereof” relied on by plaintiff is the statement in defendant’s letter to the selective service board that it (the defendant) had “recently * * * secured the exclusive manufacturing rights of a complete line of industrial and aeronautical high pressure hydraulic pumps” from the plaintiff. No mention is made in the memorandum of defendant’s agreement to sell, to pay royalties, the option to purchase patent rights, the .length of term of the alleged agreement, that it covered transmissions and hydraulic pitch propeller hubs and accessories as well as high pressure hydraulic pumps. The memorandum is silent as to all the essential terms of the alleged contract claimed by plaintiff in count 1, on which plaintiff relies for recovery under that count.
The identical language now found in the statute of frauds above referred to (3 Comp. Laws 1929', § 13417 [Stat. Ann. § 26.922]) has been in the statute law of this State since 1846 (Rev. Stat. 1846, chap. 81, §2). It has remained unchanged in so far as it applies to this case. The court has frequently held that. a memorandum such as relied upon by the plaintiff in this case is not sufficient to validate an oral agreement which would otherwise be void under the statute.
In Hall v. Soule (1863), 11 Mich. 494, a letter relied upon as the memorandum in writing to validate an otherwise void promise to' pay stated (p. 496):
“I think, on the whole, that you will have to rely on my pledge already made, that as soon and fast as I can, I will see that $500 of the demand you hold against Harry is paid; beyond that I do not think myself under obligation.”
In holding that this letter was not a sufficient memorandum, the court said (p. 496):
“It is entirely clear from the tenor of this letter that it does not undertake to set forth the terms or conditions of any previous contract, but refers to it as a matter understood.”
In Whipple v. Parker (1874), 29 Mich. 369, the verbal agreement was one not to be performed within one year. The court held that the plaintiff, having fully performed his part, could recover under the common counts (which is not a question raised in the instant appeal). The court said (pp. 374, 375):
“It has sometimes been said that if the unwritten contract was to be performed on one side within the year, especially if it were even in fact so performed, this takes the contract out of the statute as to both, though the other party was not to perform his part till after that period.—Donellan v. Read, 3 Barn. & Adol. 899 (110 Eng. Rep. 330); and this has been followed by several cases, both in England and some of the United States, in which it seems to have been intimated that, if the consideration was actually paid by one party, he might maintain an action upon the verbal contract or undertaking of the other party, though that was not to be performed till after the expiration of the year. But I confess my inability to see hów the fact of the consideration having been paid down, or within the year, or yet to be paid, affects at all the question whether the'defendant’s undertaking, contract or promise sued upon, was to be performed within or after the year; or if only to be performed after the expiration of the year, how the action can be maintained against the ‘party charged thereby;’ or, under our statute, how the contract can be valid and the defendant be ‘ charged therewith,’ unless that portion of the contract, at least, upon which his obligation arises, is in writing. To hold otherwise, would, it seems to me, be a direct and palpable violation of both the letter and purpose of the statute, and a clear disregard of the considerations and policy which led to its enactment. Nor can I see what bearing the question of consideration has upon this particular point, whether the action can be maintained upon the special contract itself.
“But if the contract has been executed by the other party, and he has received the consideration, and accepted its benefit, an action may be main tained against him for the benefit thus conferred, the money, property or value thus accepted and appropriated by him; not, however, upon the contract, but upon the appropriate common counts in assumpsit, and upon the duty, promise or obligation springing from the property, money or benefit thus conferred by the plaintiff and received and appropriated by the defendant. * * *
“It is, I think, entirely clear, that as the contract, agreement or promise of the defendant on which he is sought to be charged, was not to be performed till the expiration of the three years, it was void by our statute of frauds, and no action can be maintained upon it.”
“In Palmer v. Marquette & Pacific Rolling Mill Co. (1875), 32 Mich. 274, plaintiff counted upon an oral contract not to be performed within a year and to validate the same relied upon a telegram from the defendants as follows (j). 275):
11 To Dwight Palmer: You may come on at once at salary of two thousand, conditional only upon satisfactory discharge of business.
(Signed) “H. A. Burt, Agent.”
The court said (p. 275):
“It was this telegram, with the previous negotiations, that the plaintiff relied upon to make out the contract.
“As he had counted upon a contract not to be performed within a year from the time it was made, it was incumbent on the plaintiff to show that the contract, or a memorandum thereof, was reduced to writing and signed by or on behalf of the defendants. And a memorandum, when the contract is not written out, must embrace all its substantial terms (except the consideration. 2 Comp. Laws 1871, §4702), and cannot be aided by parol evidence when essentially defective. Hall v. Soule, 11 Mich. 494; Abell v. Munson, 18 Mich. 306 (100 Am. Dec. 165). It is, impossible to say that the telegram contains all the essential terms of a contract.”
In Fuller v. Rice (1884), 52 Mich. 435, the court again held that plaintiff might recover under the common counts for valuable services performed for the defendant of which the defendant had reaped the advantage, but indicated that plaintiff could not recover under the agreement itself void under the statute of frauds. The court said (p. 436);
‘ ‘ Special counts in the case were entirely unnecessary, and if the contract was void the plaintiff must recover, if at all, on the common counts. ’ ’
Mr. Justice Bushnell quotes from and relies on Cochran v. Staman, 201 Mich. 630, and Badger v. Finlayson, 219 Mich. 660. Both cases arose under No. 5 of the section of the statute of frauds here under consideration, * referring to “every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate.”
The distinction between this requirement (No. 5) and the one here involved is plainly pointed out in these two opinions. In the Cochran Case the court said (pp. 639, 640):
“The writing relied upon, in my opinion, is a promise to pay a commission for or upon a sale of real estate. So far as the statute of frauds is concerned, no more is required. * * *
“ ‘Every agreement, promise or contract to pay any commission for or upon the sale of any interest in real estate, ’ is the language of the statute. There need be no resort to parol evidence in this case to add to what the words of the promise import, if only we confine our attention to what it is that must be in writing in order to satisfy the law.”
In the Badger Case, supra, the agreement was in the following form (p. 661):
“February 9,1916.
“I do hereby agree to pay to Joseph B. Grow, agent, a commission of 21%% for services in disposing of my farm of 80 acres.
“D. G. Finlayson.”
The court said (pp. 661, 662):
“In the case of Cochran v. Staman, supra, the majority opinion held that the writing relied upon was a promise to pay a commission for or upon a sale of real estate, and so far as the statute of frauds was concerned no more was required. Defendant’s counsel argue that the agreement should be as definite and certain as though the agreement had been one to purchase real estate. The majority opinion in the case cited holds this is unnecessary. That if the agreement shows a promise to pay a commission upon the sale of real estate the statute is satisfied. * * # It may be reasonable to say that when a written agreement to pay a commission for the sale of real estate is shown, it complies with the demand of the statute without any further proof as to the details of the sale.”
See, also, Jaynes v. Petoskey, 309 Mich. 32.
These cases arose under No. 5 of the act, which only requires that the agreement or promise to pay the commission be in writing. The distinction between the requirements of No. 5, and other parts of the act, is apparent from the above cases.
The instant case comes within the language used by the court in Wagner-White Co. v. Holland Cooperative Ass’n (1923), 222 Mich. 58. In that case the memorandum relied upon by the plaintiff to validate the previous oral agreement was even more specific than the one in the case now before us. It was (p. 60):
“Please cancel onr order dated July 21st for two 30-ton cars, 36 fo cottonseed meal.”
TMs ease arose under the provision in the statute of frauds that a contract to sell goods or «hoses in action of the value of $100 or upwards shall not be enforceable unless there is part acceptance, part payment, or “unless some note or memorandum in writing of the contract or sale be signed by the party to be charged, or his agent in that behalf.” 2 Comp. Laws 1929, § 9443 (Stat. Ann. § 19.244).
In holding that the memorandum was not sufficient to validate the oral order for the two cars of cottonseed meal, the court said (pp. 60-62):
“The sole question is whether the note or memorandum is sufficient to satisfy the statute. TMs court, quite early in its history, declared that a memorandum to be sufficient under the statute of’ frauds must be complete in itself and leave nothing to rest in parol. Hall v. Soule, 11 Mich. 494; James v. Muir, 33 Mich. 223; McElroy v. Buck, 35 Mich. 434; Gault v. Stormont, 51 Mich. 636; Paul v. Graham, 193 Mich. 447; Sheley v. Whitman, 67 Mich. 397.
“In the last case cited the situation appears to be quite similar to that in the present case. * * * .CMef Justice Campbell, in considering the case, said in part:
“ ‘If a verbal contract was valid defendant made one. But hero the purchaser never accepted or received any article. lie never paid anything. The letter, which is the only writing, does not show what the contract was. It conveys no information except by reference to the verbal agreement, and has none of the requisites of a definite agreement. It comes within the principle of James v. Muir, 33 Mich. 223, and of cases decided since, some of which are referred to in the notes of the last edition. The case is so plain that it need not be dwelled upon. The judgment must be reversed.’
“This holding is in accord with the rule of construction stated in Cyc.:
“ ‘Accordingly if an oral contract falling within the scope of the statute has terms not stated in the memorandum, or if the memorandum contains a reference to such terms or imports their existence by fair inference without clearly stating them, or if the memorandum merely refers to the contract without stating its terms, the case falls within the statute.’ 20 Cyc. p. 258.”
In the case now before us, the reference in the letter of the defendant company to the selective service board, thatit had secured fromDr. Benedekthe exclusive manufacturing rights of a complete line of high pressure hydraulic pumps, indicates a completed contract. There is no indication that the defendant company had secured such manufacturing rights by an agreement to manufacture and sell, and a promise to pay annual royalties for the use of certain .patents. The letter does not even indicate that the defendant company had agreed to manufacture and sell such devices. It merely stated that the defendant had secured manufacturing rights.
In Dodge v. Blood, 299 Mich. 364 (138 A. L. R. 322), the court said (pp. 369, 370):
“Plaintiff relies on exhibit ‘A’ as a sufficient memorandum signed by First of Michigan Corporation, as agent for defendant Blood, the party herein sought to be charged, to take the contract evidenced thereby out of the statute. * * *
“Defendant contends that exhibit ‘A’ is insufficient as a memorandum because it does not identify him as the vendor. It is well settled that a memorandum is insufficient if it fails to state any element essential to the contract it purports to evidence, and concededly a vendor is indispensable in a contract of sale.”
In the instant ease no reference is made in the memorandum to consideration for the claimed oral agreement. Appellant argues that no consideration need be expressed in the memorandum, and in that contention he is correct. If this were’ the only deficiency in the memorandum, and if it otherwise sufficiently expressed the essential elements and terms of the contract, the omission of a reference to the consideration would not destroy its effect. Section 6 of chapter 81 of the Revised Statutes of 1846, continued in effect in the law to the present time (3 Comp. Laws 1929, §13420 [Stat. Ann. §26.925]), expressly provides that the consideration need not be expressed in the written agreement, or in any note or memorandum thereof. However, the failure to express consideration, in the memorandum here in question, is only one of many omissions in the memorandum, referring to essential terms of the oral contract which are requisite to the validity of effectiveness of the memorandum.
In connection with the above reference to consideration, some confusion seems to result from the fact that the provision of the statute last above referred to (3 Comp. Laws 1929, § 13420 [Stat. Add. § 26.925]) also is expressed in 3 Comp. Laws 1929, §13414 (Stat. Ann. §26.909). Examination'of the statute law readily dispels the confusion. This provision (referring to consideration) has been carried down through the years since 1846 as a part of chapter 80, Revised Statutes 1846, which chapter applies to fraudulent conveyances and contracts relative to lands (3 Comp. Laws 1929, §§ 13406— 13415 [Stat. Ann. §§26.901-26.910]). Likewise, this provision has been carried down as a part of chapter 81, Revised Statutes 1846, which chapter applies to fraudulent conveyances and contracts relative to goods, chattels and things in action (3 Comp. Laws 1929, §§13416-13430 [Stat. Ann. §§26.921-26.935]). In the decided cases referred to by counsel in their briefs, it is apparent that these decisions are equally applicable to both sections of the statute law brought down from chapter 80 and chapter 81 of the Revised Statutes of 1846.
Similarly, corresponding provisions are found in both chapter 80 and chapter 81 of the Revised Statutes of 1846, with reference to the requirement that the contract, or some note or memorandum thereof, be in writing and signed by the party to be charged, or by some person thereunto by him lawfully authorized in writing. The provision in section 8, chapter 80, referring to contracts and conveyances relative to sale of lands or leasing for longer than one year, is found in 3 Comp. Laws 1929, § 13413 (Stat. Ann. § 26.908). A similar provision in section 2, chapter 81, Revised Statutes 1846, in regard to conveyances and contracts relative to goods, chattels and things in action, is now found in 3 Comp. Laws 1929, §13417 (Stat. Ann. §26.922). While it is the latter provision that is directly applicable to the instant case, both sections are substantially the same, and decisions under one section apply equally to a similar question arising under the other. The material part of 3 Comp. Laws 1929, §13413 (Stat. Ann. §26.908), reads as follows:
“Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized in writing.”
For comparison, we again,quote the applicable part of the provision in 3 Comp. Laws 1929, § 13417 (Stat. Ann. §26.922), which is as follows:
“In the following cases specified in this section, every agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that is to say:
“1. Every agreement that, by its terms, is not to be performed in one year from the making thereof. ’ ’
Under the first of the aboye-quoted provisions, the court has said:
" There wag not enough of this agreement to constitute a contract for the sale of lands. It was insufficient to answer the requirements of the statute of frauds. It did not specify the purchase price, and failed to express the time or times of payment. Under the decisions of this court, such a contract must be complete in itself, and leave nothing to rest in parol. Hall v. Soule, 11 Mich. 494; James v. Muir, 33 Mich. 223; McElroy v. Buck, 35 Mich. 434; Gault v. Stormont, 51 Mich. 636.” Webster v. Brown, 67 Mich. 328, 331.
4 ‘ Complainants filed their bill of complaint to enforce the specific performance of the following written option:
“ ‘Pontiac, Mich., Apr. 21, 1910.
“ ‘For and in consideration of the, sum of one dollar, I hereby give to Hilberg & Doerr an option on building and lot known as No. 20 South Saginaw St., Pontiac, Mich., for a period of sixty days. Pur chase price to be five thousand five hundred dollars. Int. 5% easy terms.
“ ‘Charles H. Greer.’ * * *
‘ ‘ The only question in the case to be determined is whether this option given by defendant Greer is sufficient to satisfy the requirements of the statute of frauds. * * *
“The infirmity of the writing, if any, depends upon its construction as to the time and terms of payment of the purchase price of the premises. The statute provides:
“ ‘Every contract * * * for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized by writing.’ 3 Comp. Laws [1897],_ § 9511.
‘ ‘ The question of 'the sufficiency of such writings has been frequently before this court. * * *
“As to the length of time and the amounts of the payments — whether in one sum or in different amounts — the writing is absolutely silent. The words ‘easy terms’ have no well-defined and accepted meaning, but are absolutely indefinite. # * *
“The decree of the circuit court (sustaining the demurrer to the bill of complaint) is affirmed, with costs.” Hilberg v. Greer, 172 Mich. 505-508.
“It has been held by thi§ court that a memorandum, to be sufficient under the section involved (3 Comp. Laws 1915, § 11975 ), must be complete ■in itself, and leave nothing to rest in parol. Gault v. Stormont, 51 Mich. 636. And that it must be certain and definite as to the parties, property, consideration, premises, and time of performance. Rosenbaum v. Tyszka, 192 Mich. 457. The present option ¿ppears to be sufficiently certain and definite as to the parties, consideration, terms and time of performance, but not as to the property which was to be conveyed. * * * We must, therefore, conclude that the option, considered by itself, was not sufficiently definite and certain to satisfy the statute. Droppers v. Marshall, 206 Mich. 560.” Cooper v. Pierson, 212 Mich. 657, 660.
“A memorandum of agreement for the sale of a lot, in the form of a receipt, in which no State, county, city, or village is given, in describing the lot, is insufficient, under the statute of frauds.” Klasky v. Burkheiser (syllabus), 225 Mich. 121.
In Windiate v. Leland, 246 Mich. 659, one John Windiate gave a receipt to one Frank Tyack as follows (p. 661): '
“$200.00
“Pontiac, Michigan,
“July 21,1920.
“Received from Frank Tyack, two hundred and no-100 dollars to apply on the purchase price of land at Silver Lake, payment to begin November 1, 1920; purchase price agreed on eight thousand dollars.
“John Windiate,
“Per L. M. Eaton.”
The court said (p. 666):
“In order to satisfy the statute of frauds, the memorandum must be complete in itself and leave nothing to rest in parol. The receipt given by John Windiate to Tyack does not comply with this requirement. Gault v. Stormont, 51 Mich. 636; Webster v. Brown, 67 Mich. 328; Hilberg v. Greer, 172 Mich. 505; Ebert v. Cullen, 165 Mich. 75 (33 L.R.A. [N.S.] 84); Rosenbaum v. Tyszka, 192 Mich. 457; Holland v. Holland, 195 Mich. 513.”
Count 1 of the declaration in the instant case relies solely on the memorandum in question, at tached to it as exhibit A, to satisfy the requirement of the statute of frauds, and to allow plaintiff to recover royalties and other damages under the claimed oral agreement. The memorandum, exhibit A, does not satisfy the statute, the defect is apparent on the face of the declaration, and count 1 does not state a cause of action. As hereinbefore stated, this does not affect plaintiff’s rights under the second and third counts, under which plaintiff claims the right to recover for having performed his part of the oral contract.
Affirmed, with costs.
Butzel, C. J., and Carr, Sharpe, Reid, North, and Starr, JJ., concurred with BoVles, J.
See 3 Comp, Laws 1929, §13417 (Stat. Ann. § 26,922), — [Reporter.
The amendments by Act No. 238, Pub. Acts 1913, adding No. 5 relative to commissions upon sale of real estate, and by Act No. 261, Pub. Acts 1945 (Comp. Laws Supp. 1945, § 13417, Stat. Ann. 1945 Cum. Supp. § 26.922), adding No. 6 relative to assignments of things in action, have no application to the ease at bar.
Rev. Stat. 1846, chap. 81, §2; 2 Comp. Laws 1857, §3183; 2 Comp. Laws 1871, § 4698; 2 How. (1882), §6185; 3 Comp. Laws 1897, §9515; 3 Comp. Laws 1915, §11981; 3 Comp. Laws 1929, § 13417.
Rev. Stat. 1846, chap. 80, § 8; 2 Comp. Laws 1857, §3179; 2 Comp. Laws 1871, § 4694; 2 How. (1882) § 6181; 3 Comp. Laws 1897, §9511; 3 Comp. Laws 1915, § 11977; 3 Comp. Laws 1929, § 13413.
See 3 Comp. Laws 1929, § 13411 (Stat. Ann. § 26.906). — Reporter. | [
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Starr, J.
Defendants appeal from an order of the department of labor and industry awarding .plaintiff compensation for total disability under the occupational disease amendment of the workmen’s compensation law.
Plaintiff, who was about 30 years old, was employed by defendant Bendix Aviation Corporation from September 7, 1942, until July 8, 1943, when he was obliged to quit work because of disability from a respiratory disease. He worked in defendant’s chrome-plating room, where he was exposed to chromic-acid fumes and direct contact with chromicacid flakes, until March, 1943, when he developed a skin irritation on the exposed parts of his body, which was diagnosed as “acute dermatitis venenata due to chromic acid.” On the advice of defendant’s doctor who examined him, he was transferred to the heat-treat department, where his work was the immersing of airplane parts in a pot of molten lead. During his employment by defendant, plaintiff also developed a severe bronchial irritation, at times expectorated blood, lost considerable weight, and declined in health. On June 12th, while pushing a truck in defendant’s plant, he slipped and fell, injuring his chest. He was treated by a doctor and returned to work. On July 8th he was unable to continue work, and defendant’s doctor sent him to a hospital for clinical examination. His condition was diagnosed as “bronchiectasis with associated interstitial pneumonitis and a left lower pleurisy.”
Thereafter plaintiff was unable to return to work and on August 27,1943, filed claim for compensation for accidental injury described as “fracture to rib bones, internal injuries and aggravation of preexisting lung condition. ’ ’ On tbe same date he also filed claim for compensation under tbe occupational disease amendment, in whicb be alleged that be was suffering from “tbe disease known as lead poisoning or its sequelae; * * * cbrome ulceration or its sequelae or cbrome poisoning, ’ ■ that be bad been exposed to cbrome and lead compounds, and that tbe date of bis last injurious exposure was July 8, 1943. At this point it should be noted that Act No. 245, Pub. Acts 1943, wbicb amended tbe occupational disease statute, did not become effective until July 30th, wbicb was subsequent to plaintiff’s disability on July 8th. Defendant Bendix Corporation answered, denying that plaintiff bad sustained an accidental injury and also denying that be bad been exposed to chromic-acid fumes or that be bad contracted an occupational disease. A medical commission was appointed, and during tbe period from Noveiúber 3 to 18, 1943, plaintiff was examined at tbe University hospital in Ann Arbor. In its report tbe commission stated that plaintiff was “not suffering from lead poisoning or its sequelae ; * * * cbrome ulceration or its sequelae or cbrome poisoning.” Tbe report further stated, “We cannot exclude the possibility that the bronchiectasis, which he is demonstrated to have, may be related to inhalation of irritant fumes.”
It was in effect agreed that plaintiff’s two claims would be consolidated for bearing before tbe deputy commissioner. Tbe deputy denied compensation for bis alleged chest injury, but awarded him compensation for total disability from an “occupational disease listed as No. 2, lead poisoning or its sequelae and/or No. 14 chrome ulceration or its sequelae or chrome poisoning and which resulted in bronchiectasis.” On review, the department affirmed the deputy’s finding that plaintiff’s disability was not related to his accidental injury of June 12th. It also affirmed the deputy’s award of compensation for total disability under the occupational disease amendment, with the exception that the department found that his disability was due to “chrome ulceration or its sequelae or chrome poisoning” and was not due to lead poisoning or its sequelae.
Plaintiff did not appeal from the order denying him compensation for his alleged chest injury. Having obtained leave, defendants appeal from the order awarding him compensation for total disability resulting from an occupational disease. They contend that he was not disabled by a disease compensable under the above-cited occupational disease amendment, which provided in part:
“Section 1. * * * (c) The term ‘occupational disease’ means a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment.
“Sec. 2. The disablement of an employee resulting from an occupational disease or condition described in the following schedule shall be treated as the happening of a personal injury by accident within the meaning of this act and the procedure and practice provided in this act shall apply to all proceedings under this part, except where specifically otherwise provided herein:
“Disabilities arising from # * * 14. Chrome ulceration or its sequelae or chrome poisoning * * * caused by * * * any process involving the use of or direct contact with chromic acid or bichromate of ammonium, potassium, or sodium or their preparations.”
Section 6 of the occupational disease amendment provides that the report of the medical commission ‘ ‘ shall be final and conclusive as to the condition of said employee with respect to the alleged disease or diseases.” Defendants claim that the department erred in awarding plaintiff compensation for an occupational disease, because the medical commission determined-that he was not'suffering from “chrome ulceration or its sequelae or chrome poisoning,” which are the compensable diseases specified in the above statute. However, the commission’s report must be considered in its entirety, including its statement that, “We cannot exclude the possibility that the bronchiectasis, which he is demonstrated to have, may be related to inhalation of irritant fumes.” The evidence supports the following finding of fact by the department:
“He (plaintiff) was first employed by the defendant in its chrome plating room where he was exposed to the fumes of chromic acid and had direct contact with chromic acid flakes. On occasions he spit up blood because of irritation from the chromic acid fumes. He developed a chrome dermatitis and was removed from the chrome plating department to the heat treat department in April, 1943. ‘ He was losing weight during all of this period. * * * On July 8, 1943, he was examined by Dr. Burke who found him suffering from a bronchiectasis. He has not worked since and has been disabled by reason of such bronchiectasis.
“Chromic acid is a powerful irritant and has an affinity for mucous membrane which includes the linings of the lungs. Exposure to chromic acid fumes could irritate the bronchial mucous membrane placing it open to secondary infection and thereby set up a bronchiectasis. There is no ques tion in onr minds but that this is what happened in this ease. We find that the plaintiff’s disabling bronchiectasis is dne to irritation of his bronchial mucons membrane as a result of exposure to chromic acid fumes in his employment.”
In its opinion the department further stated:
“The medical commission’s report recognizes the possibility which we have found to be the fact that the plaintiff’s disability is due to irritation of his bronchial mucous membrane by chromic acid fumes. Its report is consistent, therefore, only if it conceives that disability resulting from such irritation is something different than ‘chrome ulceration or its sequelae or chrome poisoning.’ It is our opinion, however, that whatever may be the niceties of medical expression the question of whether or not disability arising from such irritation is a scheduled occupational disease within the meaning of the language used by the legislature is a legal question for this commission to determine. The law provides that ‘chrome ulceration or its sequelae or chrome poisoning’ is compensable when it is caused by ‘any process involving the use of or direct contact with chromic acid.’ It is obvious that the intention of the legislature was to protect workers in the event of disability arising from any process involving the use of or direct contact with chromic acid. Insofar as this problem is concerned, the distinction between the sequelae of chromic irritation as we have it in this case, and ‘chrome ulceration or its sequelae or chrome poisoning,’ the language of the statute, is not a distinction that anyone other than a medical man, well versed in medical terminology, would be likely to make. * * * We believe that the disability which the plaintiff has is one which the legislature intended to include when it used' the words ‘chrome ulceration or its sequelae or chrome poisoning.’
“We, therefore, conclude that the plaintiff’s disability resulting from irritation by chromic acid fumes was a scheduled occupational disease. # # #
“The award granting compensation under the occupational disease amendment is affirmed with the exception that we find that plaintiff’s disability was due to ‘chrome ulceration or its sequelae or chrome poisoning’ and was not due in any way to lead poisoning or its sequelae.”
Plaintiff, who had been in good health, had been a truck driver in Arkansas and had never worked in a factory until he came to Detroit and entered the employ of defendant Bendix Corporation. The testimony clearly indicates that his disablement resulted from his exposure to chromic-acid fumes and direct contact with chromic-acid flakes. He testified in part:
“The chromic acid was eating my soles up in my-hose, and I had my face all broken out, eyelids were real thick, * * * and I was spitting up blood from the fumes of the acid. # * *
“When they would come down and check the acids to see how weak it was, I would fill the tanks up; sometimes I would have to put 500 pounds of chromic acid in, sometimes two, three, sometimes 900, * * * according to how much the acid was weak, and when I would fill that up with the raw flakes, the flakes would get inside, I would inhale them. I had to take a scoop and scoop it up, and the fumes would go down in my nose, and my nose would start bleeding * * * sometimes, and that night when I would go home I would * * * cough up blood.”
In March, 1943, plaintiff developed an acute skin irritation, and defendant’s first-aid department referred him to Dr. Cobane, a specialist in dermatology, who diagnosed his condition as follows:
“All surfaces of his face, ears, all surfaces of his neck, * * * dorsal surfaces of all fingers, dorsal surfaces of both hands, and all surfaces of both forearms to the rolled-sleeve level, are involved with erythematous, excoriated, pruritic, occasionally ulcerating, dermatitis. The clinical picture presented on his fingers, hands and forearms is a classical picture of chromic-acid dermatitis. There was no other dermopathology.
“The diagnosis in this case is acute dermatitis venenata due to chromic acid. Careful questioning concerning other irritants encountered while working and outside working hours elicited no other possible etiology. This is an occupational dermatitis and this man is entitled to medical care. It is absolutely necessary that his job be changed immediately, far away from any contact whatsoever with chromic acid fumes or parts that have been dipped in chromic acid.”
Under Dr. Cobane’s treatment plaintiff’s dermatitis apparently cleared up. He was transferred to the heat-treat department and continued working there until July 8, 1943. His bronchial condition had become worse, and on that date defendant’s first-aid department sent him to a doctor, who hospitalized him for examination. His condition was diagnosed as “bronchiectasis with associated interstitial pneumonitis and a left lower pleurisy.” Plaintiff stated that when he attempted to return to work in defendant’s plant subsequent to this examination, he was advised by the personnel manager that “the doctor told us you can’t work now, and you never can. * * * We will try to fix up some kind of compensation.”
In August, 1943, plaintiff was examined by Dr. Davis, who had made a special study of the effects of the inhalation of chromic-acid fumes. Dr. Davis testified in part:
“My interpretation at the time I examined the man, and confirmed by my examinations of subsequent consultations was that he had a chronic type of irritation of the bronchi and of some portions of the left part of the lung, * * * I think the pathology was actually an inflammatory, local inflammatory, type of effect, which is ordinarily designated as a pneumonitis, which rendered part of the lung tissue incapable of functioning normally and accentuated the already existing bronchial inflammatory condition. * * *
“Q. * * # Now, doctor, in your opinion could there be any relationship between the fact that this man worked in the chrome plating department, coming in contact with chromic acid and compounds of chromic acid, any relation between that and the situation in. his lungs or the condition you found in his lungs and chest?
“A. 'Yes. * * #
“At the time of my examination, I considered the man was incapacitated for work. * * *
“He was underweight 25 pounds, had low blood pressure, had upper respiratory tract irritation, had large bronchial tubes, stasis in the bronchial tubes, a chronic bronchitis, leukocytosis of 12,000, low basal metabolism rate; he had, general disability.
“X-ray examination showed peribronchiolar inflammation, chronic bronchitis, a bronchiectasis. * * *
“When examined there was found common symptoms of irritation from inhalation of irritating substances or fumes.
“Q. Bronchiectasis is not chrome poisoning in itself, is it doctor?
“A. May he a result of chrome poisoning.
“ Q. Bronchiectasis is not a chrome ulceration in itself, is it?
“A. No.
“Q. May it he a result of chrome ulceration?
“A. Yes.
“Q. If it is shown that the plaintiff, Virgil Ramsey, was treated for chrome dermatitis, chrome acid dermatitis, would that then strengthen or weaken your opinion?
“A. Strengthen it. * * *
“Q. Doctor, if it will be shown that following removal from the chrome plating department he came in contact with fumes from a lead pot, would; these fumes from the lead pot act as a continued irritant? * * *
“A. Yes, they could.”
Dr. Weiser, who was called as a witness by defendants, testified in part:
“Q. Doctor, what is bronchiectasis?
“A. Bronchiectasis is a sacculation of a bronchus.
“Q. Will you explain that a little simpler, a sacculation?
“A. Well, it’s a condition where the wall of the bronchus is broken down and dilates, and with it pushes aside the lung cells and generally makes a pocket which cannot be drained because the fluid lies in the bottom of the pocket somewhat immobile. # * #
“Q. * * * Could a bronchiectasis * * * be in any way associated with exposure to acid fumes ?
“A. Yes, it could.
“Q. In what way?
“A. In this way: that the acid fumes could irritate the bronchial mucous membrane and put it open to secondáry infection. * * *
“Q. * * * What value would you place upon a man’s exposure to chromic acid and the part it could play in the production of bronchiectasis or in pneumonitis?
“A. If the chromic acid exposure is sufficiently strong to produce changes in the bronchial tube, if he gave histories in the skin where he developed ulcerations, then his bronchial tube is then open to secondary infection. The chromic acid, per se, will do nothing other than produce the ulceration at first. It is a superimposition of the infection on that ulcerated area where the chromic acid could play a part.
“Q. In other words, the chromic acid is sort of the spearhead and leaves the way open for the secondary infection!
“A. It is an escharotic (caustic), it is an irritant.
“Q. Are you familiar with the fact, as testified to by Dr. Cobane, * * * that chromic acid is one of the most powerful irritants!
“A. That is correct.
“Q. Even in low concentrations it might act quite decisively on the lung tissue, is that correct!
“A. That is correct.’!
The record of the University hospital relative to the examination of plaintiff stated in part:
“Final diagnosis: tubular bronchiectasis with chronic in[ter]stitial pneumonitis of left upper lobe (base) possibly on an initiative basis of chromicacid fumes. * # *
“The bronchoscopic studies are compatible with bronchiectasis although it could be due to local injury of the bronchial mucosae by irritating fumes.”
The statute hereinbefore quoted provides for compensation for the occupational diseases scheduled as “Chrome ulceration or its sequelae or chrome poisoning * * # caused by * * * any process involving the use of or direct contact with chromic acid.” The medical commission’s report that plaintiff was not suffering from the compensable disease of “chrome ulceration or its se quelae or chrome poisoning” cannot be considered as final and conclusive in view of its further statement that “we cannot exclude the possibility that the bronchiectasis, which he is demonstrated to have, may be related to inhalation of irritant fumes.” In any event, the commission’s report would be conclusive only as to plaintiff’s condition at the time of the examination in November, 1943. He was disabled on July 8, 1943, and the liability of defendants should be determined as of that date. Smith v. Wilson Foundry & Machine Co., 296 Mich. 484.
The evidence shows that chromic acid is a “powerful irritant” and particularly irritating and damaging to mucous membrane. The chromic acid apparently created an irritated or ulcerated condition of the mucous membrane of plaintiff’s bronchial tubes, and the resulting secondary infection constituted the bronchiectasis and interstitial pneumonitis with which he was suffering. The statute indicates a legislative intent to provide compensation for disabilities “caused by * * * any process involving the use of or direct contact with chromic acid.” The record is convincing that plaintiff’s disablement resulted from his work in defendant’s plant, which involved the use of or direct contact with chromic acid. Whether he was suffering from the scheduled disease of “chrome ulceration or its sequelae or chrome poisoning1,” or suffering from bronchiectasis with interstitial pneumonitis, appears to be largely a question as to what particular terms different members of the medical profession might apply to the diseased condition of his respiratory tract.
As a result of his contact with chromic acid, plaintiff’s bronchial tubes became irritated or ul cerated, and, had that condition remained constant, the diagnosis would undoubtedly have been the compensable disease of chrome ulceration or its sequelae or chrome poisoning. However, the irritation or ulceration apparently created a fertile field for secondary infection, which resulted in a condition diagnosed a,s .bronchiectasis with associated interstitial pneumonitis. Dr. Davis testified that while bronchiectasis is not chrome poisoning, it may be a result of chrome poisoning. He further said that bronchiectasis is not a chrome ulceration, but may be the result of chrome ulceration. Dr. Weiser said that chromic-acid fumes could irritate the bronchial mucous membrane and leave it open to secondary infection.
In any event, plaintiff’s disablement was caused by chromic-acid fumes or contact with chromic-acid flakes, and whether the resultant condition of his bronchial tubes was called chrome ulceration or its sequelae or chrome poisoning, or whether it was called bronchiectasis with associated interstitial pneumonitis, would seem to be quite immaterial. There was a direct causal connection between the primary irritation or ulceration of his bronchial tract and his resulting disability. The record supports the department’s award of compensation. The award is affirmed with costs to plaintiff.
It should be noted that this opinion is not in conflict with our decision in Dation v. Ford Motor Co., ante, 152, because in that case the plaintiff terminated his employment subsequent to the effective date of Act No. 245, Pub. Acts 1943, which amended the occupational disease statute, while in the present case plaintiff’s disability occurred prior to the effective date of this amendment.
Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, Reid, and North, JJ., concurred.
Act No. 10, pt. 7, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 8485-1 et seq., Stat. Ann. 1942 Gum. Supp. § 17.220 et seq.). (Later amended by Act No. 245, Pub. Acts 1943, and Act No. 318, Pub. Acts 1945 [Comp. Laws Supp. 1945, § 8485-1 et seq., Stat. Ann. 1945 C?um. Supp. § 17,220 et seep].)
Act No. 10, pt. 7, § 6, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937 (Comp. Laws Supp. 1940; § 8485-6, Stat, Ann. 1945 Cum. Supp. § 17.225).
See Act No. 10, pt. 7, § 7, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 61, Pub. Acts 1937 (Comp. Laws Supp. 1940, §8485-7, Stat. Aun. 1945 Cum. Supp. § 27.226). — Befobteb. | [
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Butzel, C. J.
The city commission of the city of Battle Creek determined that a revaluation and reappraisal for assessment purposes of the property in the city should be made. On March 27, 1945, Cole-Layer Company of Dayton, Ohio, a copartnership, consisting of John D. Cole, Harold F. Layer and Melvin J. Trumble, herein for brevity called the company, made two written propositions addressed to the city assessor of Battle Creek in which the company offered to furnish the services of experienced and qualified appraisers to appraise and revalue for assessment purposes all of the land and buildings and the public-utility properties in the city of Battle Creek. The propositions provided for' the development of analyzed unit costs for various materials, erected in place, which would include the cost of all the elements and services entering into construction of buildings. The company was to make a plat plan drawn to scale of each industrial plant, carefully describing thereon the buildings, which were to lie valued according to their component parts and also depreciated according to their age, condition and degree of utility. The total valué of industrial plants was to represent the sound utility value of the property for which-it was or might be used. These industrial plant appraisals were to be summarized, typed and bound and delivered to the city assessor. Appraisals of all the residences and the current residential costs in Battle Creek were to be investigated and analyzed. The unit costs were to form the basis for the residential appraisal schedules to be utilized in the appraisals of residential properties in Battle Creek. The schedules were to show the basic price per square foot of various types of houses of various construction and quality. The schedules were to be completed for various story heights of dwellings and to cover a range adequate for all types of houses. The various elements comprising cost were to be set forth with particularity; depreciation allowances were to be established and functional depreciation applied for obsolescence, design, lack of utility, local and other factors affecting the market value of each parcel of property. Record cards were to be made of the residential property and submitted to the city assessor to form the basis for the final assessed valuation.' In the same manner commercial properties were to be valued, and all factors affecting the market value of parcels of land such as location, size and shape of parcels, and other factors were to be carefully considered. Depth tables and corner influence tables were to be developed for the valuation of lots. These tables were to be in accordance with the best practices of land valuation and were to be subject to the approval of the city assessor; the company to furnish him with an outline block map of the properties with unit land values clearly indicated. The company was likewise to furnish property record cards. The company also proposed the making of an appraisal of public utility properties, and an inventory of all physical equipment including appraisal of the component parts of electric distribution systems; all property to be inventoried, priced in detail and depreciated. In short, the city was to receive in detail a complete reappraisal and revaluation of all the property hereinbefore described in the city of Battle Creek, and to receive a system with proper cards, maps, et cetera, so that a modern current system could be established for proper assessments and future guidance. The result to be attained would be a uniform system of valuation for assessment purposes.
These propositions were accepted, and two months later a final written agreement was entered into embodying most of the provisions and proposals, but also omitting some of the features to which possible objection might be made. The written contract was executed by the company and the officers of the city in accordance with a resolution of the commission made on July 9,1945. It provided for the appraisal of all industrial, commercial and residential properties in the city of Battle Creek, as well as' the gas and electrical public utility systems consisting of their lands, buildings, machinery, equipment and distribution systems in the city of Battle Creek. It also included the valuation of all land in the city. It distinctly provided that in the reappraisal and revaluation for assessment purposes of the properties, the Battle Creek city assessor was to act and .serve as appraiser in chief, and he was to make final decisions as to valuations, procedures and forms used in revaluation. Material and labor costs were to be determined as of such date as designated by the city assessor. The appraisals of all kinds were to be summarized, typed, bound and delivered to the city assessor of the city of Battle Creek. The company was to furnish him with an outline block map with unit land values clearly indicated. The depth tables, corner influence tables and valuation rules as developed by the company for the pricing of all lands in accordance with the best practices of land valuation were to be subject to the approval of the city assessor. The company was further, upon request, after it had completed its studies of land values, to attend any meetings of local realtors and land authorities in order to defend the unit front-foot acreage value established by the company, should such values be reviewed. Upon the approval of the unit values they were to form the basis for individual appraisal values by the company staff. The company further agreed to have its responsible head of the field organization present at the Battle Creek city board of review following the completion of the work in order to assist in the settlement of complaints and to defend the values placed upon the various properties by the city assessor. The city agreed to pay for this appraisal of the commercial, residential and industrial properties the sum of $33,800, and for the public utility properties $3,800, the amounts to be payable in monthly instalments at the rate of 90 per cent, of the estimated proportion of the work completed each month, and the balance of 10 per cent, to be paid upon tbe completion of tbe appraisal, but upon tbe election of tbe city of Battle Creek it might defer tbe payment of one-tbird of tbe contract price until one year after tbe date of tbe contract.
We have not set forth all tbe other details of tbe contract, but tbe contract as a whole provided for a scientific reappraisal of all tbe real property in tbe city and tbe property of tbe public utility corporations. Tbe dominant and outstanding feature of tbe contract was that tbe revaluation was to be that of tbe city assessor.. Tbe company was to make tbe expert investigation and furnish him with tbe necessary expert information, records, and all other information as developed by scientific rules in order to give tbe city a complete reappraisal and revaluation compiled in a form easily kept current. Tbe commission subsequently appointed four nonresidents of tbe city, evidently nominees and employees of tbe company, as assistant assessors without salary in order to assist in obtaining tbe necessary information.
John Conroy, a resident taxpayer, filed a bill of complaint in which be sought to have tbe contract set aside as ultra vires, illegal and as an unlawful usurpation of tbe powers of tbe city not permitted by law. He named tbe city, its mayor, its commissioners and tbe company as defendants. His main contention is that tbe contract is %dtra vires and an unlawful delegation of a municipal power to a stranger.
The city of Battle Creek is incorporated under Act No. 279, Pub. Acts 1909, as amended, commonly known as the home-rule act. This act was adopted under the broad provisions of the Constitution of 1908, art. 8, §§20, 21. Common Council of City of Jackson v. Harrington, 160 Mich. 550. The home-rule act in granting power to cities coming under the act, in subdivision 3 of section F-j (1 Comp. Laws 1929, §2240 [Stat. Ann. §5.2083]), states as follows: '
“Each city may in its charter provide: * * *
“(3) For the exercise of all municipal powers in the management and control of municipal property and in the administration of the municipal government, whether such powers be expressly enumerated or not; for any act to advance the interests of the city, the good government and prosperity of the municipality and its inhabitants and through its regularly constituted authority to pass all laws and ordinances relating tq its municipal concerns subject to the Constitution and general laws of the State.”
In pursuance of the above, chapter 1, § 1, par. (f), of the city charter grants to the municipal corporation the following powers:
“To exercise all municipal powers in the management and control of municipal property, and in the administration of the municipal government, whether such powers be expressly enumerated or not.”
Paragraph (g) of the same section of chapter 1 further gives the city power to do any and all acts to advance the interests of good government and prosperity of the municipality and its inhabitants, et cetera. In chapter 8, § 1, all the corporate powers of the city are' vested in the city commission designated as a commission, consisting of a mayor and four commissioners. Under the charter the right of the commission to determine that a revaluation and reappraisal of the property in the city should be made is, a proper function of municipal power vested in the commission. Further, as to the duties of the city assessor, the charter provides as follows:
Chapter 13, § 2. “ The assessor is hereby authorized and required to perform the same duties that the supervisors of townships under the general laws of the State are required to perform in relation to the assessing of property and levying of taxes for State, county, school and city purposes.”
It might be said at the outset that the valuation and appraisal of urban properties has become almost an engineering science in itself. The duty of a township supervisor in making an assessment as a rule was comparatively simple. It was not difficult to assess farm lands or those of villages and small cities. The correct value of the land could be easily ascertained. The market value could be readily obtained from recent sales and there was no difficulty in making a rather complete and fairly accurate valuation, appraisal and assessment. However, with the growth of cities, valuations became more complicated and a branch of engineering science gradually developed so that it required some engineering science as well as an understanding of the factors entering into an appraisal in order to determine correct values. Proper percentages for depreciation, careful study of local values as affected by costs, recent cash sales, as well as all other elements must be considered. The valuation of real estate and improvements has always been difficult and presents many problems, and even with the applied science for valuation and appraisal, the true value cannot be obtained with mathematical exactitude, but by the application of these modern rules as developed, a much fairer degree of ac curacy is arrived at than existed theretofore. There is no vice in seeking expert information from others than residents of the city itself. It seems almost impossible for one assessor in the city of the size of Battle Creek to obtain all this correct information and to know without assistance the correct factors and rules in order to arrive at a fair valuation. It is an implied power of the commission to obtain such expert knowledge from what in good faith it evidently must have believed a reliable source. It must be assumed that the company will make a, very careful study of local conditions including costs by gathering all information as to past sales and all other local data. There even might be some advantage in obtaining such information through persons free from all local influences whatsoever. We again repeat that the contract provided that the city assessor was to have the last word and final decision, although assisted by experts. There was no delegation of power whatsoever, and it was not ultra vires for the city to obtain this expert information. In Village of Kingsford v. Cudlip, 258 Mich. 144, in discussing the home rule act, we held that the purpose of the act was to secure to cities and villages a greater degree of home rule than they formerly possessed and to confer upon them exclusive rights in the conduct of their affairs not in conflict with the Constitution or general laws applicable thereto.
In City Commission of Jackson v. Hirschman, 253 Mich. 596, we held that the home-rule act not only states what the city may do but leaves many things to be implied from the powers conferred; that considering the purpose of the act, it should be construed liberally and in the home-rule spirit. In City of Pontiac v. Ducharme, 278 Mich. 474, we-quoted with approval from Gallup v. City of Saginaw, 170 Mich. 195, stating in regard to the home-rule act:
‘ ‘ The new system is one of general grant of rights and powers, subject only to certain enumerated restrictions, instead of the former method of only granting enumerated rights and powers definitely specified. We must assume the act was passed with that intent and construe it accordingly.”
We find no provision either in the charter or the statutes that prohibits the. commission from providing the assessor with such assistance in making the assessment as the commission deems necessary. Chapter 13, § 1, of the charter provides that the commission may appoint such assistant assessors as it may deem necessary to perform the work of the office. In chapter 1, § 1, of the charter, the city is empowered:
“(e) To exercise and enjoy all such corporate powers as are hereinafter conferred by this charter, together with such implied and incidental powers as are possessed by municipal corporations of this State;
“(f) To exercise all municipal powers in the management and control of municipal property and in the administration of municipal government, whether such powers be expressly enumerated or not;
“(g) To do any and all acts, to advance the interest of the city, the good government and prosperity of the municipality and its inhabitants,” et cetera.
There is no provision whatsoever prohibiting the city commission from making a contract for the appraisal of all properties in the city so as to assist the assessor in exercising all the duties required of him by the charter and statutes of the State in an equitable manner.
In McGaughan v. West Bloomfield Township, 268 Mich. 553, we upheld the right of the township to employ a surveyor to determine correct boundary lines for assessment purposes notwithstanding the statutory power to accomplish such result was in the township highway commissioner.
The validity of a contract similar to the one involved here was upheld in Tietjen v. Mayor and Aldermen of Savannah, 161 Ga. 125 (129 S. E. 653). While ordinarily there might be some merit in plaintiff ’s claim when applied to nonexpert undertakings, under the circumstances of the instant case, there was nothing ultra vires or illegal in the employment of experts to make a reappraisal and revaluation of all of the property. A proper uniform system would lead to the uniformity which is highly necessary for assessments.
It is stipulated in the facts that the valuation of labor and material should be taken as of the year 1940. There is no vice in using the year 1940 as the year in which to make determinations. It aided in uniformity and inasmuch as depreciation would be considered, there was nothing illegal or improper in selecting the year. This particular year was not mentioned in the contract, but the commission evidently agreed that it was proper as it antedated the war and any inflation caused thereby. Undoubtedly adjustments would have to be made in some particular cases, but the city assessor who was to use these schedules as the basis for his determination of values could make proper adjustments if it was found advisable, and after he made such decision any aggrieved taxpayer has Ms right of review.
After the plaintiff had filed his bill of complaint, in order to make an immediate and proper determination of the motions for injunction, et cetera, it appears from the record presented to us that no answer was filed but a motion to dismiss was made by defendants. In lieu thereof it was agreed by the parties that the case be heard immediately on a stipulation as to facts. It will be noted that while the word “fraud” was used in the bill of complaint, no specific acts of fraud of any kind whatsoever were mentioned and there is nothing in the stipulation of facts which even intimates that there was any fraud on the part of the commission. Facts showing fraud, not conclusions, must be pleaded. Spelman v. Addison, 300 Mich. 690.
Other minor issues are raised by plaintiff. He does not believe it proper for the commission to subsequently appoint employees of the company as assistant assessors. There is no stipulation in the contract requiring the commission to do so. This was done only as a matter of convenience so as to facilitate the collecting of the necessary data by enabling these persons, approved by the commission, to go upon the various properties to make the necessary measurements and inspect the construction and material. The commission was acting in pursuance of chapter 13, § 1, of the charter, which provides:
“The assessor’s office is hereby declared to be under the department of accounts and finance. The commission may appoint such assistant assessors as it may deem necessary to perform the work of the office.”
Nowhere is it provided that the assistant assessors mnst be residents of the city of Battle Creek, nor is there any prohibition restricting the right of the commission to appoint them without compensation from the city. There is a serious question whether plaintiff can raise the issue as to the propriety of these appointments in the present proceedings. See Marian v. Beard, 259 Mich. 183.
Plaintiff further claims that he was entitled to an injunction restraining defendants from making any payments on the contract until a proper appropriation had been made. No appropriation had been made when the contract was entered into, but under the stipulation of facts agreed upon by the parties to the litigation, it was agreed that there was no evidence of any intent to pay any sums until an appropriation had been made. The judge stated in his Opinion that all parties agreed in the stipulation that no appropriation had been made and that payments could not be made until a fund had been made available for that purpose. The judge also found that neither the statute nor the charter of the city of Battle Creek forbade the making of a contract without prior appropriation. It has been held that even under a charter that does contain such a provision, a contract for future services is not incurring an indebtedness within the charter limitations. Bacon v. City of Detroit, 282 Mich. 150.
The contract with defendant further provides that the company will upon request, after it has completed its studies of land values, arrange and attend meetings with a committee of local realtors and land authorities in order that unit front-foot and acreage values established by the company might be re viewed and considered. This is purely advisory. The assessor is not bound by either the conclusions of the company or the committee of realtors and others. Plaintiff or no one else can be harmed by this proceeding. It is only an indication of the fairness of defendants and their desire to obtain correct .results. In the last analysis, the city assessor has the final word. No authority is taken from him, but he is given much needed assistance. The contract aims to assist in bringing fair, uniform and equitable assessments. It does not take away the right of taxpayers; if they are not satisfied with the assessment they can appeal to the board of review and to the State tax commission. In addition, the board of supervisors in each county have a duty to examine the assessment rolls of the several townships and wards of cities to ascertain if the respective properties of these units have been equally and uniformly assessed at true cash value, and they have a further power to equalize the assessments by adding to or deducting from the valuation such amount as in their judgment will produce a sum which represents the true cash value thereof. 1 Comp. Laws 1929, §3422 (Stat. Ann. §7.52). The constitutional requirement of a “uniform rule of taxation” can be satisfactorily effected through the process of equalization. Waterford Township v. Oakland County Tax Allocation Board, 312 Mich. 556.
While plaintiff raises many questions in his brief, we have answered all of any merit in our discussion of the facts and law in the case.
The contract calls for expert assistance of a peculiar nature and does not take away the power of the assessor or the right to review and appeal by taxpayers under the particular facts of the ease. The judge was correct in dismissing plaintiff’s bill of complaint. A public question being involved, no costs are allowed.
Carr, Bushnell, Sharpe, -Boyles, Reid, North, and Starr, JJ., concurred.
Soe 1 Comp. Laws 1929, § 2228 et seq. (Comp. Laws Supp. 1940, 1945, § 2228-1 et seq., Stat. Ann. and Stat. Ann. 1945 Cum. Supp. § 5.2071 et seq.). — Reporter.
The record does not show that there now exists a very large and constantly growing bibliography relating to the determination of the valuation of buildings and lands, and that a new terminology is now being applied in the application of the various rules and systems. We shall not discuss the “Somers,” “Bernhard,” “Harper,” “Hoffman,” and the “Hoffman-Neill” systems and rules and the many other terms used in assessment terminology, as they are not set forth in the record. We only mention them to show the growth of the science used in assessment of real estate, a subject on which many textbooks have been written. There are recognized and tested rules, formulae, tables and systems that improve assessment procedures and produce equitable assessments. We mention these facts solely because so much stress is placed by plaintiff upon the fact that expert advice of others has been sought by the city commission in order to secure the correct information.
The population of the city of Battle Creek, according to the 1940 census, was 43,453. — Reporter.
See Const. 1908, art. 10, § 3. — Reporter. | [
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Carr, J.
This case arises out of the breach of an agreement for the purchase of an apartment building at 12760 Appoline avenue, in the city of Detroit. On September 29, 1944, plaintiffs submitted to defendant, who was then receiver of Michigan Associates, Incorporated, owner of the building, an offer to purchase said property for the sum of $50,000, subject to plaintiffs being able to obtain a mortgage in the sum of $30,000. The offer further provided for delivery to plaintiffs, for examination, of an abstract of title and tax history of the premises or, in lieu thereof, a policy of title insurance and stipulated that if a marketable title could be conveyed the sale should be consummated within 30 days after delivery of the abstract, or policy. With said offer, plaintiffs made a deposit in the sum of $1,000, subject to the following provision: “If the offer is accepted by owner, the undersigned agrees to complete the purchase of said property within the time as above set forth, after delivery of abstract or title insurance policy, or forfeit to the owner the deposit made herein as liquidated damages. ’ ’
On October 2d, following the making of the offer to purchase, plaintiffs went to the office of defendant and the parties discussed the transaction. The offer as made referred to a conveyance by warranty deed. Defendant claims that at the interview on October 2d, he explained to plaintiffs that he could not execute any conveyance except a receiver’s deed. Defendant testified in the trial court that plaintiffs agreed to the modification of the written offer in this regard. Plaintiff Fay B. Wilkinson testified in substance that he had no recollection of any such conversation between plaintiffs and defendant on October 2d. However, it is conceded that on the following day Mr. Wilkinson was in defendant’s office again; that the subject was discussed; and in the presence of Mr. Wilkinson the change was made. Thereupon defendant, having received authority from the court to make the sale, signed the acceptance of the offer and delivered duplicates thereof to plaintiff Fay B. Wilkinson. Thereafter plaintiffs proceeded to obtain a commitment for the mortgage loan, as contemplated by their offer. The abstract of title was also delivered to them for examination. Early in November defendant claims that .he communicated with plaintiff Fay B. Wilkinson with reference to closing the deal and was assured that plaintiffs would be ready within a few days.
November 24, 1944, plaintiffs wrote to defendant withdrawing their offer of September 29th, and demanding the return of the deposit. Defendant acknowledged receipt of the letter but refused to return the money, claiming the right to hold it as liquidated damages for breach of the agreement. Thereupon plaintiffs brought suit in the comníonpleas court of the city of Detroit to recover the amount of the deposit and obtained judgment therefor, Defendant appealed to the circuit court where the case was tried before the court without a jury and judgment rendered for defendant. Plaintiffs have appealed.
In his statement of reasons and grounds of appeal counsel for appellants claims that ‘ ‘ The court erred in holding that plaintiffs * * * consented to changes made in their offer to purchase.” In substance he renews the claim here in his statement of questions involved as set forth in his brief. However, the point is not argued. Based on a colloquy between counsel and the court the latter' stated in his opinion: “Both counsel agree that the case turns upon the question of whether the deposit of $1,000 and the stipulation in the contract that it can be forfeited to the owner as liquidated damages is in fact a good agreement on the part of both plaintiff and defendant for liquidated damages or whether it amounts to a penalty.”
The record before us indicates that on the trial plaintiffs did not press their claim that the substitution of the expression “receiver’s deed” for “warranty deed” in the offer to purchase, under the circumstances as above stated, precluded the making of a binding contract. Failure to argue the point in their brief leads to the conclusion that it is not relied on in this court. In any event the record fully justifies the conclusion that plaintiffs consented to the change, their action in receiving and retaining defendant’s acceptance of the offer following the making of the alteration, together with their conduct in obtaining the mortgage commitment, accepting delivery of the abstract for examination, and giving assurances to defendant that they would go through with the deal, indicating conclusively that they consented to the change with reference to the character of conveyance to be given by defendant. Such consent was clearly indicated by plaintiffs’ conduct.
The case of Rupright v. Heyman, 67 Ohio App. 355 (36 N. E. [2d] 902), involved a situation analogous to the case at bar. The holding of the eourt appears from the syllabus which reads as follows:
“A person offering to purchase real estate is not entitled to the return of money placed in escrow under a written offer to purchase containing all the necessary terms of a contract to purchase and providing that the offeror place an amount of money in escrow to be returned ‘ only in case this offer is not accepted, ’ to- which offer the owner adds in writing; ‘owner will accept offer if bank or purchaser will finance balance,’ where, by arranging with a bank for financing the balance, such offeror accepts the condition attached to the acceptance of the offer.”
Of like import are Robertson v. Tapley, 48 Mo. App. 239; Walter Wallingford Coal Co. v. Cuyahoga Builders Supply Co., 18 Ohio App. 488; Klamut v. Cleveland Provision Co., 16 Ohio C. C. 475. Mere silence may not, under ordinary circumstances at least, be construed as indicating consent, but under circumstances of the character here involved the doing of affirmative acts may properly be regarded as evidencing such consent, and the opposite party to the agreement is entitled to rely thereon.
The principal issue in the case is whether the provision of the contract with reference to forfeiture of the deposit, in the event of failure on the part of plaintiff to go through with the transaction, is valid as an agreement to pay liquidated damages, or void as an attempt to create a penalty for default on the part of the purchasers. In stating his conclusions on the issue the trial court said in part:
“This question must be determined not on the basis of what transpired subsequently, but upon the basis of the conditions which existed at the time the parties made the agreement. When they entered into the agreement in September of 1944, it seems to me that it cannot be said that $1,000 deposited on that occasion was an exorbitant or unreasonable amount to be agreed upon as stipulated damages where the sale itself involved $50,000. It was two per cent, of this amount, and in the same agreement, had the deal been consummated, the brokers would have received a commission of five per cent. As it is, the brokers, under the agreement, for their services, get one-half of the $1,000 stipulated to be the damages.
“When the parties were agreeing to this amount as stipulated damages in September, 1944 they could not foresee that the property itself would be subsequently resold for exactly $50,000. Neither could they anticipate the time, trouble, and expense which might be incurred in an endeavor to resell the property. Under such circumstances, it seems to me the court must hold that it was a reasonable agreement covering the subject of damages to stipulate that the $1,000 would be considered as the damages in case of a breach on the part of the purchaser.”
In construing a contract provision of the character here involved the actual intent of the parties is immaterial. It is, in other words, a question of what was actually done in the making of such a stipulation rather than what was intended. The basic test to be applied was indicated by this court in the early case of Jaquith v. Hudson, 5 Mich. 123, 133. Speaking for the court in that case Justice Christiancy said:
“This principle may be stated, in other words, to be, that courts of justice will not recognize or enforce a contract, or any stipulation of a contract, clearly unjust and unconscionable. * * *
“But the court will apply this principle, and disregard the express stipulation of parties, only in those cases where it is obvious from the contract before them, and the whole subject matter, that the principle of compensation has been disregarded, and that to carry out the express stipulation of the parties, would violate this principle, which alone the court recognizes as the law of the contract.”
The rule as stated has been repeatedly recognized and applied in subsequent decisions of this court, including Ross v. Loescher, 152 Mich. 386 (125 Am. St. Rep. 418); Central Trust Co. v. Wolf, 255 Mich. 8 (78 A. L. R. 843); Hall v. Gargaro, 310 Mich. 693. In the case last cited it was said, “A test as to whether a provision for stipulated damages is enforceable is the reasonableness of the amount. ”
In the instant case the amount which the parties stipulated should be regarded as liquidated damages is certainly not unreasonable in view of the nature of the undertaking and the total consideration to be paid for the property. As the trial court pointed out in his opinion, the broker who handled the negotiations between the parties was to receive as compensation for services performed, under the express terms of defendant’s acceptance, one-half of said deposit in the event that plaintiffs refused to consummate the purchase. The property was an asset of an estate in receivership and the making of the contract between the parties, and the refusal of plaintiffs to carry out their agreement, would tend to delay the ultimate sale of the property and to cause additional work and expense in connection with the receivership.
The conclusion of the trial court that the question at issue is to be determined “upon the basis of the conditions which existed at the time the parties made the agreement,” finds support in the opinion of this court in Central Trust Co. v. Wolf, supra. Stating the rule above quoted from Jaquith v. Hud son, supra, it was held that a deposit in the snm of $3,000 under a lease agreement, to be paid to the lessor in the event the lessee failed to perform conditions and covenants of the lease, resulting in a legal termination thereof, was stipulated damages rather than in the nature of a penalty. The court referred to the fact that in many cases the actual resulting damages have been considered in determining the question at issue, and said:
“Our own cases are chiefly to the effect that the fact situation on the question above stated should be developed as of the time of making the contract, not as of the.time of breach.”
See, also, 25 O. J. S. 661.
In the case at bar the property was sold by defendant in January, 1945, for $50,000. It does not appear, however, that the parties in making their agreement, over four months prior to such sale, had any information or knowledge that the property could be disposed of for that sum if plaintiffs breached the contract. The fact that the property was finally sold for the same price that plaintiffs agreed to pay cannot be regarded as establishing that the parties overlooked “the principle of compensation” in making their agreement. In view of the comparatively small amount of the deposit, and all the facts and circumstances attending the making of the contract, a finding that the principle referred to was disregarded is not justified.
In the case of Biddle v. Biddle, 202 Mich. 160, on which appellants rely, the sum of $15,000, which the agreement provided should be retained by way of liquidated damages in the event of 'breach, was determined to be a penalty. However, said sum was approximately five per cent, of the total consideration for the purchase. In Fisher v. Wadell, 227 Mich. 339, the parties undertook to provide for the forfeiture of the sum of $1,000 as ■ damages for failure to carry out an agreement for the purchase of property having a total value less than $5,000. The amount of the damages sought to be stipulated was clearly out of proportion to the aggregate amount involved in the transaction. As above pointed out, however, such is not the situation in the case at bar. On the record before us, we think that the trial court reached the correct conclusion.
The judgment is affirmed, with costs to appellee.
Butzbl, O. J., and Bushnell, Sharpe, Boyles, Reid, North, and Starr, JJ., concurred. | [
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Carr, J.
Plaintiff entered the employ of defendant, in its millwright department, in April, 1923. He continued in such employment until August 11, 1943, when he quit working because of his physical condition. During the three-year period immediately preceding the latter date plaintiff suffered from a chest condition which required him to take leaves of absence, for periods of approximately four weeks, in the summer of .1940 and again in 1941. In December, 1942, he was classified as a chipper and grinder and so continued until his employment terminated.
Claiming that his disability was due to an occupational disease within the meaning of, and that he was entitled to compensation under, the provisions of the workmen’s compensation act (Act No. 10, Pub. Acts 1912 [1st Ex. Sess.], as amended [see 2 Comp. Laws 1929, § 8407 et seq. (Comp. Laws Supp. 1940, 1943, § 8408 et seq., Stat. Ann. § 17.141 et seq., Stat. Ann. 1943 Cum. Supp. § 17.142 et seq.)]), plaintiff filed his application with the department of labor and industry for hearing and' adjustment of claim. The application was denied and plaintiff has appealed. The departmental procedure, and the reasons for denying the claim are concisely set forth in the following excerpt from the department’s opinion:
“The plaintiff’s petition alleged that he had been employed as a foundryman for 24 years and that as such he was exposed to the hazards of employment including dusts and that he had become disabled by reason of ‘pneumoconiosis, possibly complicated by sequelae such as tuberculosis.’ The matter was referred to a medical commission appointed pursuant to section 6 of part 7 of the workmen’s compensation act and the medical commission found that the plaintiff did not have pneumoconiosis but that he did have X-ray and clinical evidence of tuberculosis. The medical commission’s report was based on an examination given the plaintiff on January 3, 1945. ^ The plaintiff’s lung condition which he alleges is disabling has not changed in nature or character during the period of his disability. Inasmuch as this condition was not pneumoconiosis on January 3,1945, it follows that it has not been pneumoconiosis during- any of the rest of such period. There is no claim that tuberculosis is compensable except as a sequelae of pneumoconiosis, which we and the medical commission have found the plaintiff does not and has not had. The award of the deputy commissioner is affirmed.”
The action of the department in appointing a medical commission was taken at defendant’s request under the provisions of part 7, § 6, of the workmen’s compensation law, which part was added by Act No. 61, Pub. Acts 1937. The section in question (Comp. Laws Supp. 1940, §8485-6, Stat. Ann. 1945 Cum. Supp. §17.225), reads as follows:
“Sec. 6. In case the employee is alleged to be suffering from an occupational disease and there shall be a dispute with respect thereto, the said board, or any member thereof, shall appoint a commission of three qualified impartial physicians to examine the injured employee and to report. The report, when signed by at least two of the members of said commission, shall be final and conclusive as to the condition of said employee with respect to the alleged disease or diseases. Members of the commission shall receive such compensation for their services as shall be fixed by the board, * to be paid from the appropriation to the department of labor and industry. ’ ’
In construing the language of the section this court has held that the report of the medical commission is to be regarded as final only as to the condition existing' at the time of the examination. Smith v. Wilson Foundry & Machine Co., 296 Mich. 484; Flanigan v. Reo Motors, Inc., 300 Mich. 359; Nicholas v. St. Johns Table Co., 302 Mich. 503; Walker v. LoSelle Construction Co., 305 Mich. 121. In holding that plaintiff was not entitled to compensation the department obviously had this construction in mind but came to the conclusion on the record before it that plaintiff’s ailment, as found by the medical commission at the examination held on January 3, 1945, had not changed during the period of his disability.
On behalf of plaintiff it is claimed that section 6, above quoted, is unconstitutional in that it violates the “due process of law” clause of the Michigan Constitution 1908, art. 2, § 16, and the Fourteenth Amendment to the Federal Constitution. Emphasis is placed on the failure of the statute to give to the parties in interest the right to appear before the medical commission and present evidence. It is insisted that such failure deprives the parties of a right to a full and fair hearing and operates to prevent the introduction of rebuttal proofs. Attention is called to the requirement that the department of labor and industry accept the report as final as to the condition of the employee on the date of the examination, without opportunity to consider the proofs presented to the medical commission; and to the fact that the court, in reviewing the departmental action, cannot have such proofs before it. Counsel for plaintiff in their brief summarize their position as follows:
“We maintain that the appointment of a medical commission in this State is unconstitutional because it deprives the litigant of a right to a proper hearing of the issues in his case and of judicial review of the reasonableness of tbe determination by an administrative board.”
On bebalf of defendant it is insisted that plaintiff is not entitled to raise tbe constitutional question in this court because be failed to do so in tbe course of tbe proceeding before tbe department of labor and industry. 'Attention is called to McLean v. Eaton Manfg. Co., 286 Mich. 285; Rickard v. Bridgeman-Russell Co., 288 Mich. 175; Rajkovich v. Oliver Iron Mining Co., 292 Mich. 162, and earlier cases of like import, in which this court followed tbe general rule of practice that a point not raised in tbe proceeding prior to appeal will be disregarded. In each of these decisions, however, tbe question sought to be raised on appeal involved tbe determination of issues of fact rather than tbe constitutionality of a statutory provision directly involved in tbe controversy.
In functioning under tbe workmen’s compensation law tbe department of labor and industry acts in a fact-finding capacity. Its powers and duties are not judicial in character but rather are merely quasi judicial. Generally speaking, an administrative board, commission or department possessing powers of such character does not undertake to determine constitutional questions. In Flanigan v. Reo Motors, Inc., supra, counsel sought to raise before tbe department the constitutionality of tbe section here involved. Tbe department, however, declined to pass on tbe matter indicating its view of tbe situation, and its general policy, in tbe following statement:
‘ * Tbe department of labor and industry is a fact-finding commission and in view of the fact that this is a constitutional question under tbe law, it comes within tbe province of tbe judicial tribunal provided by law.”
Counsel for defendant also cite part 3, § 16 (2 Comp. Laws 1929, § 8455), of the workmen’s compensation law as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8455, Stat. Ann. 1945 Cum. Supp. §17.190), which in terms requires that all questions raised under the act shall be determined by the department. It is argued that the language used is sufficiently comprehensive to include a question of the character involved in the case at bar. With such claim we are unable to agree. Commenting on the statute, it was said by this court in Michigan Mutual Liability Co. v. Baker, 295 Mich. 237:
“While the department has jurisdiction to determine ‘all questions’ .(2 Comp. Laws 1929, § 8455 [Stat. Ann. §17.190]) arising under the compensation law, it must be borne in mind that it is an administrative tribunal only and not a court possessing general equitable and legal powers. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8.”
Reference in the statute cited to “All questions arising under this act, ’ ’ must be given an interpretation consistent with the powers vested in the department. It was unquestionably the intention of the legislature that the department in its fact-finding capacity should pass on factual issues presented in proceedings brought under the workmen’s compensation law. The limitations on the power of the department, under the section cited by defendant, are clearly indicated by the language above quoted from Michigan Mutual Liability Co. v. Baker, supra, cited with approval in Stuart v. Spencer Coal Co., 307 Mich. 685.
The general rule that a question ..may not be raised for the first time on appeal to this court is not inflexible. When consideration of a claim sought to be raised is necessary to a proper deter mination of a case, such rule will not be applied. Thus in Thomas v. Morton Salt Co., 258 Mich. 231, it was held that the question of estoppel to deny the constitutionality of a statute, was properly subject to consideration by this court in order to avoid conflict with a prior decision, although the question had not been raised in the circuit court. See, also, Auditor General v. Bolt, 147 Mich. 283; Mitchell v. Reolds Farms Co., 255 Mich. 240; Meek v. Wilson, 283 Mich. 679. Under the circumstances involved in the case at bar and since the question is one involving the administration of the workmen’s compensation act, we think the issue raised is one that should be determined by this court.
The constitutionality of section 6, above quoted, has been questioned in several eases coming before this court since the enactment of Act No. 61, Pub. Acts 1937. In each instance, however, it appeared that the party seeking to raise the issue was subject to the provisions of the workmen’s compensation law, including the amendments thereto, by voluntary acceptance thereof. See Flanigan v. Reo Motors, Inc., supra, and cases there cited. It was accordingly held in each instance that such party was estopped to question the validity of the section. It was said in the case last cited:
“If the question of constitutionality was available to this defendant in the case at bar, it would be considered.”
On behalf of plaintiff attention is called to Act No. 245, Pub. Acts 1943, which amended Comp. Laws 1929, § 8408 (Comp. Laws Supp. 1945, § 8408, Stat. Ann. 1945 Cum. Supp. § 17.142), and other sections of the workmen’s compensation law, and also added several new sections. By virtue of said amendment the acceptance of the provisions of the workmen’s compensation law ceased to be voluntary and became compulsory as to both plaintiff and defendant. Said amendment was in force and effect at the time plaintiff terminated Ms employment on August 11, 1943. In consequence plaintiff is not estopped to challenge the validity of the provision of the statute providing for the appointment of a medical commission. We are not here concerned with the right of a party subject to the workmen’s compensation act by voluntary election, to raise the issue.
At the request of the court the attorney general has filed a carefully prepared and helpful brief on the constitutional question. He agrees with the claim of plaintiff that the procedure with reference to the medical commission is not in accord with fundamental principles of “due process of law.” In support of such view counsel for plaintiff, and the attorney general as well, call attention to the recent decision of the supreme court of Minnesota in Hunter v. Zenith Dredge Co., 220 Minn. 318 (19 N. W. [2d] 795). There a provision of the Minnesota workmen’s compensation act, analogous to the section of the Michigan act involved in this controversy, was held unconstitutional. Said section (Minn. Laws 1943, c. 633, § 11) gave to the medical board,' provided for by the act, the right to examine witnesses and required that it file its findings with the commission, including therein the names of doctors appearing and, also, medical reports and exhibits considered. No provision was made, however, for filing a transcript of the evidence upon which the board based its determination. The court in discussing the constitutional question said (pp. 799-800):
“Due process requires that the evidence on which an agency, board, or commission bases its findings be ascertainable. This court must have the neces sary data on which to determine the correctness thereof. A claimant for workmen’s compensation, under Minn. St. 1941, § 176.61 (Mason’s Minn. St. 1927, §4320), is guaranteed a right of review by the supreme court, which may examine findings of fact and determine whether they have a sufficient foundation in the evidence. Since no transcript of the evidence is required to be filed by the medical board under Minn. Laws 1943, c. 633, § 11, it is apparent that claimant’s right of appeal or review is effectively denied thereby.
“The words ‘due process of law’ when applied to judicial proceedings mean a course of legal conduct consonant with rules and principles established in our system of jurisprudence for the protection and enforcement of private rights. Due process requires notice before judgment and an opportunity to be heard in an orderly proceeding adapted to the nature of the case, and the right of appeal from or review of a decision regarded by a litigant as unjust. Here, the provisions of the statute creating the medical board and defining its duties require the board to determine questions of occupational disease and to hear the evidence and report findings thereon to the industrial commission. Such findings are made binding upon the commission. Therefore, the only review thereof to which a claimant is entitled is a review by this court pursuant to Minn. St. 1941, §176.61 (Mason’s Minn. St. 1927, §4320). Our power to review findings of the medical board and to determine whether they are supported by sufficient foundation in fact is accordingly frustrated, because such findings are binding on the commission and the board is not required, under the statute, to file with its report a transcript of the evidence, testimony, or exhibits upon which such findings are based. Thus a claimant is denied the right of review guaranteed him by the workmen’s compensation law, Minn. St. 1941, § 176.61 (Mason’s Minn. St. 1927, § 4320), and by the due process clauses of both the State and Federal con stitutions. Const. Minn. art. 1, § 2; Const. XT. S. Amend. 14. # * *
“It is our opinion that because the delegation of power to the medical board here in effect denied relator and other claimants under the occupational-disease provisions of the workmen’s compensation law an effective right of review or appeal as prescribed by said workmen’s compensation act, as well as under the due process guaranties of both the State and Federal Constitutions, the statute insofar as it creates said medical board and sets forth its functions constitutes an invasion of rights protected and guaranteed by said Constitutions, and is therefore null and void.”
In support of its opinion the court cited prior Minnesota decisions and, also, Ohio Bell Tel. Co. v. Public Utilities Comm., 301 U. S. 292, 303 (57 Sup. Ct. 724, 81 L. Ed. 1093). There the question involved concerned the validity of rates ordered to be refunded on the basis of evidence not appearing in the record. In discussing the situation it was said by the court, speaking through Justice Cardozo:
“To put the problem more concretely: how was it possible for the appellate court to review the law and the facts and intelligently decide that the findings of the commission were supported by the evidence when the evidence that it approved was unknown and unknowable ? ’ ’
In Carter v. Kubler, 320 U. S. 243 (64 Sup. Ct. 1, 88 L. Ed. 26), the action of a conciliation commissioner under the bankruptcy act in fixing a valuation, in part, on the basis of a personal investigation was questioned. In discussing the situation it was said:
“Moreover, once a hearing has been ordered [bankruptcy act] § 75 (s) (3) (49 Stat. at L. 944 [11 XJSCA, § 203 (s) (3)]) necessarily guarantees that it shall be a fair and full hearing. The basic elements of such a hearing include the right of each party to be apprized of all the evidence upon which a factual adjudication rests, plus the right to examine, explain or rebut all such evidence. Tested by that standard, the personal investigation by the conciliation commissioner cannot be justified. It was apparently made without petitioner’s knowledge or consent and no opportunity was accorded petitioner to examine or rebut the evidence obtained in the course of such investigation. The use of this evidence was therefore inconsistent with the right to a fair and full hearing. Moser v. Mortgage Guarantee Co. (C. C. A.), 123 Fed. (2d) 423; 4 Wigmore on Evidence (3d Ed.), § 1169.”
State, ex rel. Madison Airport Co., v. Wrabetz, 231 Wis. 147, 153 (285 N. W. 504), involved a question as to the legality of the procedure of the State industrial commission of Wisconsin under the workmen’s compensation law of that State. It was claimed that the commission had failed to read a transcript of certain evidence taken before an examiner. In discussing such claim the court said in part:
_ “Such unlawful action on the part of the commission would be not only without or in excess of its powers and operate in effect as a fraud upon the relator, but would also constitute a denial of due process of law, in violation of the constitutional safeguards in that regard. As has been said in a number of cases, the cardinal and ultimate test of the presence or absence of due process of law in any administrative proceeding is the presence or absence of the ‘rudiments of fair play long known to our law.’ ”
The court further quoted from the opinion of Chief Justice Hughes in Morgan v. United States, 298 U. S. 468 (56 Sup. Ct. 906, 80 L. Ed. 1288), as ■ follows:
“ ‘If the one who determines the facts which underlie the order has not considered evidence or arguments, it is manifest that the hearing has not been given. * * * It is no answer to say that the question for the court is whether the evidence supports the findings and the findings support the order. For the weight ascribed by the law to the findings — their conclusiveness when made within the sphere of the authority conferred — rests upon the assumption that the officer who makes the findings has addressed himself to the evidence and upon that evidence has conscientiously reached the conclusions which he deems it to justify. That duty cannot be performed by one who has not considered evidence or argument. It is not an impersonal obligation. It is a duty akin to that of a judge. The one who decides must hear. * * * And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them. That duty undoubtedly may be an onerous one, but the performance of it in a substantial manner is inseparable from the exercise of the important authority conferred.”
The essentials of due process were further discussed by the Wisconsin court in Ocean Accident & Guarantee Corp. v. Poulsen, 244 Wis. 286 (12 N. W. [2d] 129, 152 A. L. R. 810), and a provision of the workmen’s compensation law of the State was held invalid because of failure to provide for notice and an opportunity to be heard.
The holdings in the cases above referred to, with reference to what is necessary to constitute due process of law within the meaning of State and Federal constitutional guaranties, are in accord with the decisions of this court on the same subject. Thus in Milk Marketing Board v. Johnson, 295 Mich. 644, in discussing the question of whether the statute there involved was invalid because of al leged failure to provide for due process the following comment was made (p. 654):
“We have always held, under the workmen’s .compensation law, that the court will examine the record to determine whether there is any evidence to sustain the findings of fact made by the department of labor and industry. As was said in Highland Farms Dairy v. Agnew, 16 Fed. Supp. 575, 585, affirmed 300 U. S. 608 (57 Sup. Ct. 549, 81 L. Ed. 835):
“ ‘It is true that if a legislature attempts to make the findings of fact of its agencies conclusive, even though the findings are wrong and constitutional rights have been invaded, the legislative action is. invalid, for the judicial power of the courts cannot thus be circumscribed.’ ”
Measured by the test suggested in the language of the Federal court above quoted, it is obvious that the statute here involved is unconstitutional. Wé are mindful of the basic rule that every reasonable doubt is to be resolved in favor of the validity of a legislative enactment. When it clearly appears, however, that provisions of the fundamental law of the State or of the nation have been violated, the presumption of validity is overcome and it becomes the duty of the court to determine the issue accordingly. .Due process of law requires notice and opportunity to be heard. It imports the right to a fair trial of the issues involved in the controversy and a determination of disputed questions of fact on the basis of evidence. Measured by the test repeatedly applied by this court and by other courts, section 6 of part 7 of the workmen’s compensation law cannot be sustained.
No record is directed to be kept by the medical commission; and only the conclusion reached is required to be submitted to the department of labor and industry. Neither employee nor employer is afforded an opportunity before the medical commission to explain or rebut the showing on which the conclusion is based. Evidence not made a part of the record cannot be reviewed by the court for the purpose of determining whether an order based thereon has requisite support. There is no requirement with reference to notice and the right to a fair hearing is not safeguarded. Such rights are, however, guaranteed by both State and Federal constitutions. Sligh v. City of Grand Rapids, 84 Mich. 497. See, also, Ehlers v. Stoeckle, 37 Mich. 261; People v. Dickerson, 164 Mich. 148 (33 L. R. A. [N. S.] 917, Ann. Cas. 1912 B, 688); Hendershott v. Rogers, 237 Mich. 338; Rassner v. Federal Collateral Society, 299 Mich. 206.
The invalidity of the section in question does not affect any other provisions of the workmen’s compensation law. It is separable and its elimination will not interfere with proceedings under the act. The practical result is that, in 'cases of the character here presented, the determination as to whether an applicant for compensation is afflicted with an occupational disease within the meaning of part 7 of the act is to be determined, like other disputed issues, on the basis of the proofs offered by the parties to the controversy and made a part of the record.
The conclusion reached with reference to the constitutional question renders it unnecessary to consider other issues raised by the defendant. Inasmuch as the finding of the department was based on the report of the medical commission, we think that the case should be remanded for further proceedings in accordance with this opinion. It is so ordered, with costs to abide the final result.
Butzel, C. J., and Bushnell, Sharpe, Boyles, Reid, North, and Starr, JJ., concurred.
The powers and duties of the industrial accident board, here referred to, have been transferred to the department of labor and industry and the board abolished. See 3 Comp. Laws 1929, §§ 8310, 8312, as amended by Act No. 241, Pub. Acts 1943 (Comp. Laws Supp. 1945, §§ 8310, 8312, Stat. Ann. 1945 Cum. Supp. §§17.1, 17.3). — Reporter. | [
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Marston, C. J.
We are of opinion that the court erred in the instructions given relating to the chattel mortgage placed upon the goods by King. The plaintiff had a right to have the case submitted to the jury upon the theory that the goods mortgaged had been furnished by him under the written contract of March 26th, and in this view of the case the court was requested to charge the jury that giving a chattel mortgage thereon to Forrest would be such a “ termination of the bailment as to entitle the plaintiff to the possession of the goods.” This was refused, but the court did charge that placing a chattel mortgage thereon with intent to deprive the plaintiff of the proceeds of the goods, if done fraudulently, would justify the plaintiff in rescinding the agreement.
The intention with which the act was done would be immaterial. It was an assumption of ownership by King, and wholly inconsistent with the title claimed by Winchester under the contract. The effect as to Winchester’s rights was the same, whatever the intent of King may have been.
For this error the judgment must be reversed with costs and a new trial ordered.
The other Justices concurred. | [
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] |
Marston, C. J.
We are of opinion that the court erredi in the instructions given as to the delay of the constable in giving notice of sale under his execution.
An execution was issued by a justice of the peace and! delivered to Baldwin, a constable, who- on the 26th day of' August, 1819, levied upon certain chattels as the property of the execution debtor O. Bobert Talbot. It appeared upon the trial that the property levied upon with other property had previous to the levy been mortgaged by the execution debtor to his mother, the defendant in error. That on the day after the levy one Taylor, acting as her agent, made demand of the constable for the goods and chattels levied! upon, and upon refusal to deliver, he on the 30th day of' August sued out a writ of replevin, which was the commencement of the present action, and under which the property was taken by the sheriff on the second day .of September following.
Several questions were raised on the trial. We shall, however, notice but one. The court in substance instructed the-jury that the statute required the constable to immediately give public notice by advertisement of a sale under his execution levy; that “immediately” as used in the statute meant, that he must use due diligence and give such notice as soon as he reasonably could under all the circumstances, and left, the question to the jury as to whether the constable had proceeded with all due diligence.
The constable, to excuse the delay, showed that property other than what he levied upon was embraced in the mortgage, and that a portion of the same was within his. bailiwick, and that he was endeavoring to find the same; also, that he delayed giving notice because of a conversation with Talbot, the execution debtor, who requested him not to give the notice and thus save expense, as the property would certainly be replevied by the mortgagee. The court had serious doubt as to the admissibility of the conversations between Talbot, the mortgagor, and the constable, as it was not shown that Talbot had authority to speak for the mort.gagee.
We are of opinion that there was evidence tending to show that the constable had reason to believe that Hr. Talbot did represent his mother on that occasion. In so far as the rights of the execution creditor are concerned, if the constable had good reason to believe, and did believe, that Talbot did have authority to request delay, and that time was given in consequence thereof, the rights acquired under the levy would not be lost. There was, however, another good reason for the delay in this ease. In so far as the mortgaged property was within the jurisdiction of the officer it was his duty to levy on the whole thereof and sell it in one parcel or lot subject to the mortgage, and after levying on a part thereof, a reasonable time must be given him to find the rest of the mortgaged property. As already inti- ■ mated it is the execution debtor who is prejudiced by the •delay if any one. The constable may willfully or negligently fail to perform his duty, and the circumstances may be such that the execution debtor would have a right to apply to a court of competent jurisdiction to compel the officer to proceed and execute his writ. We are not prepared to say that a failure by the officer for even an unreasonable time, to give the notice required by the statute, would operate to release the property levied upon, or enable a mortgagee thereof to obtain possession in an action of replevin. At all events, under the evidence we are of opinion the jury were not correctly instructed upon this part of the case.
The judgment must be reversed with costs, and a new trial ordered.
The other Justices.concurred. | [
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] |
Ostrander, J.
The issue in this cause is simple. The testimony on the part of plaintiffs, who are partners, tended to prove that they undertook for the defendant to sell his real estate for $14,000 for which they were to be paid a commission of $400; that they produced a purchaser able and willing to pay the price; that the defendant then refused to sell, giving as a reason that his wife would not join him in conveying the property. On the part of defendant the testimony tended to prove that he made no such bargain with plaintiffs; that his property was only for sale upon a contingency, which did not occur. Specific denials of the material testimony of plaintiffs were given. There was testimony which, if believed, warranted a verdict for plaintiffs. The cause was submitted to a jury with instructions, which, although criticised, seem to us to correctly state applicable rules of law. A motion for a new trial was denied. We have examined the assignments of error, 47' in number, have read the record with care, and are of opinion that none of the errors are well assigned.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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McAlvay, C. J.
Plaintiff and appellant brought suit against defendant in an action to recover damages for injuries received by him while in its employment, whereby he lost the sight of one of his eyes, claimed to have been caused by the negligence of defendant. The case was brought on for trial before the court and a jury, and, at the close of plaintiff’s case, on motion of defendant, a verdict was directed by the court in its behalf against the plaintiff. From a judgment duly entered upon this instructed verdict in favor of defendant, plaintiff has removed the case to this court upon writ of error.
In stating the facts in this case, this court will follow the well-established rule in cases of a judgment entered upon an instructed verdict against the appellant by giving the proof presented upon his part its greatest probative value.
The case presented by appellant shows that he was an “experienced, all around machinist,” employed at the time as an automobile assembler by defendant; that the injury referred to occurred September 22, 1911, and was caused by a defective drill in an electric hand motor which he was then operating, which drill had been furnished plaintiff by the keeper of defendant’s stockroom, upon the usual requisition in the due course of business; that immediately after this injury the stockkeeper took plaintiff in defendant’s automobile from its factory to the office of Dr. Goux, a surgeon and eye specialist, who was employed by the London Guaranty & Accident Insurance Company, by which company defendant was insured against industrial accidents; that, after the examination, Dr. Goux ordered plaintiff removed to Harper Hospital, where he treated him until October 9th following, when he was discharged. During the time plaintiff was confined in the Harper Hospital under treatment by Dr. Goux, he was visited several times by Thomas Cotter, an attorney and claim agent employed by the London Guaranty & Accident Insurance Company, who talked with plaintiff relative to a settlement, and requested him to call at his office in the Ford Building as soon as he got out of the hospital.
The night before plaintiff left the hospital Dr. Goux called upon him and stated to him he would recover his eyesight in six or seven weeks, and could again go to work. The next morning, after plaintiff left the hospital, he went to Dr. Goux’s office, where the doctor told him the same thing relative to recovering his sight, saying that he would see as well as ever in six or seven weeks. The same day he went to Attorney Cotter’s office, as requested, and, while there, Mr. Cotter telephoned to Dr. Goux in the presence of and at the request of plaintiff, and, when he was through, told plaintiff the doctor said he would get his eyesight back in six weeks. Following that, within half an hour, negotiations for a settlement were closed for the sum of $110 cash, hospital and doctor’s bills not to exceed $100, and plaintiff, at Mr. Cotter’s request, signed a full release and discharge to the defendant Regal Motor Car Company, from all claims for damages against it by reason of injuries sustained from the accident in question, which writing is in words and figures, as follows:
“For and in consideration of the sum of one hundred and ten ($110.00) dollars to me in hand paid in cash and the payment of my hospital and doctor bills not to exceed the sum of one hundred ($100.00) dollars, making a total of two hundred and ten ($210.00) dollars by the Regal Motor Car Company, receipt whereof is hereby confessed and acknowledged, I, the undersigned do hereby release, discharge, forever quit-claim and set over unto the said Regal Motor Car Company any and all claim, claims, action, actions or causes of action which I now have or may hereafter have against the said Regal Motor Car Company by reason of an accident which occurred to me on or about the 22nd day of September, A. D. 1911, at the plant of the said Regal Motor Car Company in the city of Detroit, in which accident I sustained injuries, personal or otherwise.
“In further consideration of said sum or sums, I, the undersigned do hereby release and discharge the said Regal Motor Car Company from any and all claims for damages which I now have or may hereafter have against the said company by reason of any act or thing heretofore done. This release to benefit all persons, firms, or corporations chargeable with negligence or liability in the premises.
“In witness whereof I have hereunto set my hand and seal, this 9th day of October, A. D. 1911.
[Signed] “Louis Bertha.
“Witnesses:
“Harry Hanford.
“Thomas M. Cotter.”
Plaintiff learned very soon afterwards that the sight of his right eye was totally destroyed, and that there was strong probability of a sympathetic injury to the left eye. He immediately caused the sum of $110, with interest, to be tendered back to defendant company. Through its president this tender was refused, and suit was at once instituted.
To the declaration in the case defendant promptly pleaded the general issue, with the following special notice of defense:
“To said Plaintiff: •
“Please take notice that on the trial of the above-entitled cause the said defendant will offer evidence to prove and insist upon in its defense that, if the said plaintiff ever had any claim or cause of action against the said defendant, as in plaintiff’s declaration alleged, that the same has been fully satisfied and discharged, and full receipt, release, discharge, and quittance given therefor by the said plaintiff to the said defendant.”
During the presentation of proofs on the part of plaintiff, and before directing a verdict for defendant, the court, upon separate motions made by defendant, had excluded and stricken out all the testimony of the plaintiff relative to statements and representations made to him by Dr. Goux and Thomas Cotter, also all the testimony of the witness Cotter relative to the part he had taken in the matter in soliciting and securing a settlement and the release which is in evidence; all for the reason that there was no evidence in the case connecting the acts and doings of Dr. Goux and Mr. Cotter with the defendant company.
At the close of plaintiff’s case, defendant moved for an instructed verdict, the matter having been argued before the court in the absence of the jury before the formal motion was made. The court granted the motion, giving his reasons therefor in the following language:
“But we are not concerned with whether there was fraud or whether there were misstatements in this particular case, because the parties who made these statements, in so far as the testimony goes, have not been shown tb be connected with the defendant, the Regal Motor Car Company. There has been testimony introduced here in your absence which shows an agency, but that the agency was of such an extent as would warrant a connection between the defendant and the plaintiff in so far as these representations were made in connection with the alleged settlement, there isn’t anything at all in the testimony which would justify us in concluding that was so. Consequently this man accepted the payment of the money, and he cannot now sue a second time for that which he received at another time in full for his compensation, and your verdict will be a verdict for the defendant of no cause of action.”
Exceptions were taken to and errors assigned by appellant upon the foregoing holdings of the court, and upon the final direction of a verdict in favor of defendant and against plaintiff. As all of the assignments of error are based upon these rulings of the court which were had upon the sole ground of the insufficient showing on the part of plaintiff of such a relation between Dr. Goux and Mr. Cotter and the defendant in the case to constitute an agency or any authority to act on their part to bind defendant, they will be considered collectively.
Appellant relies upon the application of the doctrine of ratification and estoppel. Considering the evidence on the part of plaintiff as true, there can no doubt or question arise but that plaintiff has shown beyond a peradventure a serious injury caused while in the employment of defendant; that he was taken from defendant’s factory to Dr. Goux’s office by one of defendant’s employees in defendant’s automobile, and from there, by order of Dr. Goux, was taken to and cared for at Harper Hospital as the doctor’s patient from the 22d of September to the 9th of October, 1911; that, while he was in the hospital, Attorney Cotter called several times to see him, talked about settling for his injury, and invited him to come to his office; that Dr. Goux assured plaintiff he would recover his eyesight as good as ever within six or seven weeks, and so told Cotter, who repeated the telephone message to plaintiff; that plaintiff, relying upon such assurance, was induced by Cotter to accept $110 in full satisfaction for his injury, and signed a full release to the Regal Motor Car Company, this defendant.
It is an accepted fact that both Dr. Goux and Mr. Cotter were the representatives of the insurance company which had issued industrial accident policies in favor of defendant which were then in force; and it is also an accepted fact that the release which was secured from plaintiff by Cotter was in terms for the benefit of defendant company alone, which, by such release, if valid, was freed from any and all liability on account of the injury which plaintiff had suffered. Without reference to any active fraud on the part of the two representatives of the insurance company, it is apparent that the amount which plaintiff was induced to accept was insignificant compared with the extent of the injury he had suffered, and plaintiff’s testimony shows that it amounted to fraud in law.
Appellant contends that defendant has ratified and adopted the acts of these representatives of the insurance company. The pleadings and evidence in the case disclose the following facts relative to defendant’s attitude toward and relation to the release: Soon after accepting the money and signing the release to defendant company, plaintiff discovered that he was totally blind in his right eye, and at once repudiated the settlement by making a full tender of the amount he had received to the president of defendant company. Defendant refused to accept this tender. To the declaration immediately filed (October 10, 1911) as commencement of suit, defendant, on October 21, 1911, filed with its plea a notice of full reliance upon the release and discharge given to it by the plaintiff in defense of any claim or cause of action plaintiff ever had against it. The release is in the record, a written instrument given to defendant in its corporate name, uncontradicted and unexplained, produced upon the trial by defendant’s attorneys and used by them upon their cross-examination of plaintiff, concerning which the record shows that they presented the release to plaintiff, had him identify his signature, and testify that it was signed and given by him to the defendant company upon payment to him of the sum of $110, and the defendant company agreed to pay his hospital and doctor’s bills, and proceeded at great length with such cross-examination to unequivocally fix the fact that the defendant had settled with him in full, and been released from all claim of every kind arising from the injury he had received for which the suit was brought; and they stated, in answer to a charge by plaintiff’s attorney, that defendant had paid Dr. Goux for his services, that it was immaterial, that it was paid by defendant as part of the release, and they admitted it.
It is a proposition of law too fundamental and too well established to require á citation of authorities that, if a party adopts even unauthorized acts of another, and has received and accepted benefits accru ing therefrom, he thereby adopts and ratifies the instrumentalities by which the results were obtained, and is estopped from denying that the agent was authorized to act. So in this case, by accepting this release, which upon its face is prima facie a release in its favor and for its sole benefit, by pleading the release as a defense to the suit, by refusing to accept the tender back of money which has been paid to secure the release, by its course of cross-examination to show that it had obtained the release and claiming the benefits of it, by admitting in open court that it had paid Dr. Goux for his services in caring for plaintiff, defendant must be held to have adopted and ratified the acts of the two representatives of the insurance company. Upon this record, the court was in error in striking out the testimony referred to, and in directing a verdict in favor of defendant.
As already stated, and as appears by the excerpt from the charge of the court directing a verdict in the case, the sole question considered and passed upon by the trial judge was the question of the relation of Dr. Goux and Mr. Cotter in this transaction to the defendant company, and this is the only question now before this court for determination. This is not an indirect attack upon this release in a.collateral proceeding, nor are we called upon at this time to determine the question of the duty of inspection of the tool, the breaking of which caused this injury, or the negligence of either of the parties to the litigation.
For the reasons herein stated, the judgment of the circuit court is reversed and set aside, and a new trial is ordered.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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McAlvay, C. J.
Plaintiff recovered judgment, against defendants upon a directed verdict in a suit brought on a promissory note executed by them for the amount due upon such note.. Plaintiff is engaged in selling certain computing scales to the trade upon written orders, by the terms of which the title to the property remains in plaintiff until the purchase price is paid; the payment of the price, except the initial sum of $10, being deferred according to the terms of the promissory note printed upon the same blank which contains the contract order for the scales. The contract order is of considerable length. It was given November 8, 1910, by defendants for two computing scales of the capacity of two pounds each, to be shipped to them at Grand Rapids, Mich., for which they agreed to pay the sum of $70, $10 cash with the order, and the balance, $60, payable as evidenced by the note attached to the order, $5 each month, beginning March 1, 1911, and continuing to -February 1, 1912. The order provided, among other things, that, should there be any failure to promptly pay such note or any payment thereon when due, or if plaintiff should feel itself insecure, or if defendants should be sued and their property levied upon, then the whole unpaid balance of the purchase price should, at the option of plaintiff, without notice, become due and payable, and possession might be taken of the scales without legal process, unless an extension in writing was given, and previous payments should be considered as having been made for the use of the scales, during the time they remained in the custody of defendants. It was further agreed that title to the scales should not pass from plaintiff until paid for in full, and until such time the scales would remain the property of plaintiff; also that bringing any suit for the price of the scales would not operate to vest the title thereto in defendants, but such title should remain in plaintiff until any judgment recovered for such purchase price should be paid, and, in case of recovery, all costs and attorney fees should be paid by defendants. It was further agreed that the scales were to be held by defendants at their own risk pending the vesting of title in them, and no injury, loss, or destruction of said scales, by any cause whatever, except plaintiff’s fault, should release defendants from their obligation to pay the purchase price therefor, and the contract was to remain in full force and effect as to any other' scale that might be sent in exchange for those originally delivered. It was agreed that the contract and order should not be countermanded, and covered all the agreements between the parties. Defendants certified that they had read the contract and acknowledged receipt of a duplicate. This contract was duly executed by defendants. The following is a note given at the time:
“$60.00. State, Mich. Town, Grand Rapids. Date, Nov. 8, 1910.
“For value received I (or we) promise to pay to the order of Moneyweight Seale Co., 47 State St., Chicago, Illinois, sixty dollars ($60.00) dollars, payable as follows:
Jan. 1, 1912, $5.00 July 1, 1911, $5.00
Feb. 1, 1912, $5.00 Aug. 1, 1911, $5.00
Mch. 1, 1911, $5.00 Sept. 1, 1911, $5.00
April 1, 1911, $5.00 Oct. 1, 1911, $5.00
May 1, 1911, $5.00 Nov. 1, 1911, $5.00
June 1, 1911, $5.00 Dec. 1, 1911, $5.00
“New York or Chicago Exchange.
[Sign here] “David & Hattem.’
There was printed under the signature a statement that “the above note draws interest at six per cent, per annum from date of shipment or delivery if delivered by salesman,” also if payments were promptly made interest would be waived, otherwise full interest would be charged, and, if the account was paid in 30 days, 5 per cent, discount would be allowed.
After the execution of the order and note, the scales were delivered to defendants at their place of business. A guaranty in writing, dated on the same date, was delivered to defendants by plaintiff’s agent, whereby it was guaranteed that these scales, Nos. 287,521 and 287,606—
“Will weigh correctly any article capable of being weighed on it and should the scales get out of order at any time within two years from date of shipment with ordinary use (not dropped or broken) will repair the same gratis, the purchaser paying the freight or express charges to and from the factory.
“We further guarantee that all pound and ounce graduations within the capacity of this scale which carry corresponding computations are commercially correct, and we hereby guarantee to indemnify and protect the purchaser of this scale against loss resulting from possible suits by competing manufacturers charging infringement of patents.”
This case was begun in justice’s court May 23, 1911.
“Plaintiff declares orally on all the common counts in assumpsit specially on written contract, to plaintiff’s damage, $500. The defendants pleaded orally general issue and recoupment.”
From the time the writings were made and entered into, as stated, and the scales in question were delivered to defendants by plaintiff’s agent, defendants, who were engaged in business as partners, conducting a confectionery store in the city of Grand Rapids, used these scales in their business continuously up to January 1, 1911, when defendant David sold his interest in that business to his partner Hattem and a Mr. Malobey, who, as partners, continued the business and used the scales in question continuously up to February 20, 1911, when, upon inspection by the city sealer of weights, one of these scales was not passed by him, and the firm was ordered not to use it.
Concerning the foregoing facts in this case as stated, there is no dispute in the record. There was a disputed fact in the case between these parties concerning which the court in his charge to the jury said:
“It is claimed on the part of plaintiff that when they were notified that the scales were out of order they immediately sought to repair them, and that the de fendants refused to permit a repair and insisted that the plaintiff take that pair of scales back.
“On the other hand, the defendants claim that they notified the plaintiff, and the plaintiff neglected to repair them and continued to neglect to repair them after the suit was brought. That is a question of fact which, if the case should be submitted to the jury, would be for the jury to determine, and it is practically the only question of fact in the case.”
Defendants have removed the case to this court upon writ of error for review. Defendants rely upon but two of the errors assigned, namely, that the court erred in taking the case from the jury and directing a verdict for plaintiff, and also that the court erred as to the amount of the verdict directed.
Defendants in their brief urge that there was a substituted contract or novation. This is based upon the claim made for the first time in this court by them that the guaranty was not given to defendants by plaintiff but was given to their successors, Hattem ,& Malobey, as appears from the copy of such guaranty printed in the record. An examination of the entire record shows that neither by notice under the plea of the general issue, nor by any testimony, nor by any claim made by or on the part of defendants does it appear that the question of novation was mentioned or in any manner brought to the attention of the trial court, and the claim is made for the first time in their brief filed in the case that the guaranty was given to Hattem & Malobey. The rule that questions not raised and passed upon in the trial court will not be considered for the first time in this court is too well settled to require discussion.
The defense interposed in this case is based upon the notice of recoupment. The amount of damages claimed which defendants consider they are entitled to does not appear in the evidence. The court, in directing a verdict, held that this was an entire contract, and, “if the contract is to be repudiated, it must be repudiated as an entirety and not as a part of it only,” and also held that:
“There is no right under the law given to defendants to recoup damages in a case like this. The law is that, until the title passes, there can be no recovery for a breach of guaranty, and the title has not passed to the defendants in this case and cannot pass until they have paid for the scales. And any claim for damages by way of recoupment under these circumstances under the law cannot be allowed.”
By the recoupment sought to be recovered, defendants are undertaking to recover for a breach of the warranty given by plaintiff. In this case it appears that this was an executory contract; that title did not pass and, under the agreement, would not pass until full payment of the agreed price. The court, therefore, was not in error in so holding. Bunday v. Machine Co., 143 Mich. 10, at page 13 (106 N. W. 397, 5 L. R. A. [N. S.] 475), and cases cited. It follows that the court properly instructed a verdict for plaintiff.
Defendants’ next contention is that the amount of the judgment directed was erroneous; that no credit was given for the months of January and February, 1911, which they claim has been paid. This is clearly a mistake, for the reason that the written order and note which was used at the time of the argument and left with the court for examination shows that the first payment became due March 1, 1911, and thereafter on the 1st day of each month following a payment of $5 became due for 12 months, until the amount of $60 would be paid. This would require the payment of $5 to be paid on January 1, 1912, and also a like amount on February 1,1912. The printed blank upon which this order and note were written contains 12 spaces, in 3 columns of 4 each, in which to write payments for each of the 12 calendar months. Beginning with the 1st of March, 1911, when the note shows the first payment was due, down to the 1st of December, 1911, were spaces for but 10 payments, making $50 of the balance due, and no spaces were left for the two remaining payments except on the blank above the first payment. These two last payments are distinctly written in the blank as follows: “Jan. 1, 1912, $5.00. Feb. 1, 1912, $5.00” — so that in position on the note the last two payments are written first and might readily be taken to be the first two to become due, unless care was taken in reading the year in which a payment was to occur.
Neither of the defendants testified that more than $10 ever had been paid upon this contract, nor is there any such evidence in the case.
The sole remaining question is whether interest on the balance due was correctly computed. Each payment on this note would draw interest at 5 per cent, from the date it became due until November 13, 1912, the date of the entry of the judgment. A computation shows that the entire sum of interest amounts to $3.67, which, added to the principal, $60, gives $63.67. This makes an excess of interest amounting to $3.53. During the trial, or when the court directed a verdict for the amount as computed by plaintiffs attorney, no objection whatever was made on the part of defendants that such computation was incorrect.
Other portions of the charge are criticised in appellants’ brief, but, as no exceptions were taken or errors assigned upon them, this court will not consider them.
We find no reversible error in the case, and, as counsel for plaintiff in his brief is willing to remit any excess of interest which may have been included in the amount of the verdict, judgment of the circuit court will stand affirmed for the sum of $63.67, with costs in favor of plaintiff.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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McAlvay, C. J.
This case was brought in justice’s court in Wayne county by plaintiff in an action of trespass, claiming damages for assault and battery committed on him by defendant. It was appealed to the circuit court, and a trial before a. jury resulted in a verdict in favor of plaintiff for the sum of $85. The case is brought to this court for review upon writ of error by defendant.
The parties to this suit lived in the city of Detroit upon adjoining premises, and apparently not with very friendly relations toward each other. In May, 1911,. plaintiff, who was at work digging with a spade in his garden, with his wife near him, remarked to her that “somebody got a licking.” He said this within the hearing of defendant’s wife, who was sitting in her back yard. The cause of this remark was that an adopted daughter of defendant was being punished by him in the house, of which plaintiff knew nothing except the resulting noise. Defendant’s wife suggested to plaintiff that he mind his own business. Plaintiff then, after such remark, placed his thumb to his nose, describing an arc of a circle with his fingers. Defendant, having heard voices, appeared at his door while plaintiff was thus exercising his hand, and demanded why he insulted his wife, and, as plaintiff claims, at once jumped over the dividing fence into plaintiff’s yard, coming at him in a threatening manner; in self-defense, expecting an attack, plaintiff struck him with the handle of his spade, whereupon defendant struck plaintiff several severe blows, knocked him down, and gave him a severe beating.
Defendant’s version of the circumstances is that he came out of his house, got upon this fence, and asked plaintiff what he meant by that motion to his wife, when plaintiff struck him with the spade; that he grabbed it and was pulled over the fence by the plaintiff into his yard, and struck plaintiff in defending himself.
It does not seem to be disputed but that plaintiff was considerably injured. The doctor who was called testified he was bruised about the face and had a cut on the left temple down to the bone, which required stitches to close it. This he did with the assistance of another doctor, who administered the chloroform. Plaintiff was a bookbinder, receiving $19 a week, and lost seven working days. He paid for the services of the two doctors, according to their testimony, $40.
The errors assigned and relied upon by appellant relate to refusals to charge as requested and to certain portions of the charge of the court. The substance of the requests of defendant which should have been given were included in the main charge of the court and relate to the fundamental principles of law applying to such a case. As to the portions of the charge objected to, we find from an examination of the record that the court, under the undisputed evidence in this case, was justified in charging the jury as he did, indicating that the punishment which defendant inflicted upon the plaintiff was unwarranted, and leaving only the question of damages to the jury.
The judgment of the circuit court is affirmed.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
M. F. Cavanagh, J.
These appeals arose from a single action instituted in Ingham County Circuit Court by the plaintiffs to enjoin the three defendant-appellant schools from operating shared time secular educational programs. These programs are funded, in part, by state school appropriations. The trial court granted plaintiffs’ motion for a summary judgment and entered an order enjoining the operation of the programs. The trial judge concluded that the programs constituted an establishment of religion contrary to the First Amendment to the United States Constitution and to art 8, § 2 of the Michigan Constitution of 1963.
The three programs challenged in this case vary in terms of the details of their operations, but they have important common characteristics. Each public school district has leased premises from a parochial school. On these premises, the districts operate a shared time educational program. Secular subjects are taught by teachers employed by the public school systems. These teachers are supervised and controlled solely by the public school systems and utilize books and materials purchased with public funds. The classes are open to all children eligible to attend public school. Children who are also enrolled in a parochial school attend the public school instruction during part of the day and private classes for the remainder of the day. Each of the public school districts receives state aid in support of the programs, the amount of aid being determined according to the percentage of each student’s day which is spent in a public school classroom. Evidence of religious objects and symbols have almost entirely been removed from the leased areas.
It is helpful to examine briefly the circumstances and conditions of each of the three programs. The Center Line School District leases a building from the Catholic Archdiocese of Detroit. Public school teachers provide instruction for students in grades 3 through 8. Most of the students attend the school half days and attend St. Clement’s Catholic School for the remainder of the day. The classes taught at the leased building are identical to those being taught in publicly owned school buildings. The leased buildings also are used to provide other services not connected to parochial students, such as special classes for pregnant girls from several Macomb County districts.
The Bay City School District leases several classrooms at two of the Roman Catholic high schools in Bay City. Teachers employed by the public school provide instruction in art, vocational education, drafting and physical education. The students are taught during the remainder of the day by teachers employed by the parochial schools. The public school teachers are under the control of the principal of Bay City Central High School.
The public school system in Warren, like that of Center Line, leases a building from the Catholic Archdiocese of Detroit. The leased building is connected by a passageway to an adjacent Catholic school. Children in grades 3 and 5 through 8, attend school in the leased premises half days and in a parochial school for the remainder.
In the trial court, all parties moved for summary judgment. No disputes as to issues of fact are involved since plaintiffs have accepted as true defendants’ answers in response to interrogatories.
The First Amendment states in part:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * # »
Likewise, the Michigan Const 1963, art 8, § 2 states:
"The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law. Every school district shall provide for the education of its pupils without discrimination as to religion, creed, race, color or national origin.”
The key Michigan case in this area is Traverse City School District v Attorney General, 384 Mich 390; 185 NW2d 9 (1971), which considered certified questions concerning a constitutional amendment to art 8, § 2. The Court struck down that part of the amendment which prohibited any assistance to nonpublic school students "at any location or institution where instruction is offered in whole or in part to such nonpublic school students”. The certi fied question and the Court’s answer are helpful in resolving the present litigation:
"Does Proposal C preclude the provision, through shared time or dual enrollment programs, of elementary or secondary instruction or educational services to nonpublic school students at any nonpublic school or at any other location or institution where instruction is offered in whole or in part to such nonpublic school students?
"Answer: At the public school, no; on leased premises, not necessarily; on nonpublic school premises, not necessarily.” 384 Mich 390, 410.
Traverse City distinguished shared time programs from programs involving direct financial assistance from the state to parochial schools:
"Shared time differs from parochiaid in three significant respects. First, under parochiaid the public funds are paid to a private agency whereas under shared time they are paid to a public agency. Second, parochiaid permitted the private school to choose and to control a lay teacher whereas under shared time the public school district chooses and controls the teacher. Thirdly, parochiaid permitted the private school to choose the subjects to be taught, so long as they are secular, whereas shared time means the public school system prescribes the public school subjects. These differences in control are legally significant.” Id. at 413-414.
Preliminarily, it is worthwhile to note that these three distinctions — payment to a public agency, choice and control of teachers by the public school district, and choice of subjects by the public school system — are all satisfied by the three programs under consideration in this case. At the oral argument of this cause in this Court, counsel for plaintiff-appellee stated his concurrence with the fact that each of the three programs involved complies with the guidelines set down in Traverse City.
Finally, the Court considered, in general terms, the legitimacy of a shared time program held on premises leased from a nonpublic school:
"Premises occupied by lease or otherwise for public school purposes under the authority, control and operation of the public school system by public school personnel as a public school open to all eligible to attend a public school are public schools. This is true even though the lessor or grantor is a nonpublic school and even though such premises are contiguous or adjacent to a nonpublic school.
"Nonpublic school students receiving shared time services under such circumstances are in the same position as such students at any other form of public school and are entitled to the same rights and benefits. Consequently, as already noted, the valid portion of Article 8, § 2 does not prohibit funds for shared time under such conditions.” Id. at 415. (Emphasis added.)
The trial court distinguished Traverse City by interpreting that case to apply only to programs of auxiliary services dealing with general health and safety measures. Since the present programs involve general instruction, the court reasoned, there is considerable opportunity for political and administrative entanglements. We think the lower court misread Traverse City. That opinion contains no language which would so limit the effect of its holding. The court did, however, note that special circumstances "may create unconstitutional religious entanglements, but shared time in and of itself does not”. Id. at 417. We will consider subsequently whether such special circumstances are present.
Under Traverse City it is clear that the programs do not violate the Michigan Constitution. Whether they are consistent with the First Amendment depends on the consideration of a number of cases from the United States Supreme Court. The three-part test for determining whether a particular form of state assistance violates the First Amendment is stated in Committee for Public Education & Religious Liberty v Nyquist, 413 US 756, 772-773; 93 S Ct 2955; 37 L Ed 2d 948 (1973):
"to pass muster under the Establishment Clause the law in question, first, must reflect a clearly secular legislative purpose, e.g., Epperson v Arkansas, 393 US 97; 89 S Ct 266; 21 L Ed 2d 228 (1968), second, must have a primary effect that neither advances nor inhibits religion, e.g., McGowan v Maryland [366 US 420; 81 S Ct 1101; 6 L Ed 2d 393 (1961)], School District of Abington Township v Schempp, 374 US 203; 83 S Ct 1560; 10 L Ed 2d 844 (1963), and, third, must avoid excessive government entanglement with religion, e.g., Walz v Tax Comm’n [397 US 664; 90 S Ct 1409; 25 L Ed 2d 697 (1970)]. See Lemon v Kurtzman, 403 US at 612-613; 91 S Ct at 2111; 29 L Ed 2d 745 (1971), Tilton v Richardson, 403 US 672, 678; 91 S Ct 2091, 2095; 29 L Ed 2d 790 (1971).”
See also Lemon v Kurtzman, 403 US 602, 612-613; 91 S Ct 2105; 29 L Ed 2d 745 (1971).
We concur with the trial court’s assessment of the purpose of the three programs:
"The plans in these four cases before us have a secular legislative purpose: educating young people in secular subjects.”
See Committee for Public Education & Religious Liberty v Nyquist, 413 US 756, 773.
As to the primary effect of the programs, we cannot say that there is no assistance afforded to nonpublic schools. However, indirect and incidental benefits to church-related schools do not offend the Establishment Clause of the First Amendment. Everson v Board of Education, 330 US 1; 67 S Ct 504; 91 L Ed 711 (1947). Lemon v Kurtzman, 403 US 602, 616-617. The primary effect of the programs is to extend secular public school instruction to part-time students. They advance a religious institution to a much lesser extent than the program upheld in Tilton v Richardson, 403 US 672; 91 S Ct 2091; 29 L Ed 2d 790 (1971). In Tilton, millions of dollars in construction grants were appropriated by the Federal government to be sent to church-related colleges for secular educational purposes. The primary effect of that program was held to advance secular education, not religion. Likewise, the present programs’ effect is primarily secular, not an advancement of religion. We further note that each of the involved school districts undertook its respective lease arrangement due to a pressing need for additional space and as a much less expensive alternative to new construction.
The third part of the test is whether the program results in an excessive entanglement between the government and a religious institution. Numerous recent cases have struck down plans which attempted to assist financially troubled nonpublic school systems. In Sanders v Johnson, 403 US 955; 91 S Ct 2292; 29 L Ed 2d 865 (1971), and Marburger v Public Funds for Public Schools, 417 US 961; 94 S Ct 3163; 41 L Ed 2d 1134 (1974), the Supreme Court affirmed Federal district court judgments which struck down two such plans of direct financial grants to private schools. In Committee for Public Education & Religious Liberty v Nyquist, supra, and Sloan v Lemon, 413 US 825; 93 S Ct 2982; 37 L Ed 2d 939 (1973), two plans for the reimbursement of tuition paid by parents of nonpublic school students were invalidated. Similarly, in Lemon v Kurtzman, supra, and its companion case, Earley v DiCenso, the Court struck down programs under which Pennsylvania and Rhode Island supplemented the salaries of teachers who taught secular subjects in nonpublic schools.
The most recent decision invalidating a state program because of excessive entanglement is Meek v Pittenger, 421 US 349; 95 S Ct 1753, 1766-1767; 44 L Ed 2d 217, 235-236 (1975). In Meek the Court held that a Pennsylvania program of loaning instructional equipment to nonpublic schools and of providing "auxiliary services” — remedial and accelerated instruction, guidance counseling, speech and hearing services — violated the First Amendment. The Court’s analysis concerning this latter program is relevant to the present case:
"The fact that the teachers and counselors providing auxiliary services are employees of the public intermediate unit, rather than of the church-related schools in which they work, does not substantially eliminate the need for continuing surveillance. To be sure, auxiliary services personnel, because not employed by the nonpublic schools, are not directly subject to the discipline of a religious authority. Cf. Lemon v Kurtzman, 403 US at 618; 91 S Ct at 2113. But they are performing important educational services in schools in which education is an integral part of the dominant sectarian mission and in which an atmosphere dedicated to the advancement of religious belief is constantly maintained. See id., at 618-619; 91 S Ct at 2114. The potential for impermissible fostering of religion under these circumstances, although somewhat reduced, is nonetheless present. To be certain that auxiliary teachers remain religiously neutral, as the Constitution demands, the State would have to impose limitations on the activities of auxiliary personnel and then engage in some form of continuing surveillance to ensure that those restrictions were being followed.
"In addition, Act 194, like the statutes considered in Lemon v Kurtzman, supra, and Committee for Public Education & Religious Liberty v Nyquist, supra, creates a serious potential for divisive conflict over the issue of aid to religion — 'entanglement in the broader sense of continuing political strife.’ Committee for Public Education & Religious Liberty v Nyquist, supra, 413 US at 794; 93 S Ct at 2976. The recurrent nature of the appropriation process guarantees annual reconsideration of Act 194 and the prospect of repeated confrontation between proponents and opponents of the auxiliary services program. The Act thus provides successive opportunities for political fragmentation and division along religious lines, one of the principal evils against which the Establishment Clause was intended to protect. See Lemon v Kurtzman, supra, 403 US at 622-623; 91 S Ct at 2116. This potential for political entanglement, together with the administrative entanglement which would be necessary to ensure that auxiliary services personnel remain strictly neutral and nonideological when functioning in church-related schools, compels the conclusion that Act 194 violates the constitutional prohibition against laws 'respecting an establishment of religion’.” (Footnotes omitted.)
Although the Pennsylvania program has some similarities to the present ones, we conclude that there are sufficiently important differences not to warrant the invalidation of the three programs involved in this case. First, the Meek program was, in effect, a direct grant of assistance to private schools. The services were provided within parochial schools. In the present case, the secular instruction occurs on premises leased by the public school system. Although in some instances this occurs in an area contiguous to parochial instruction, the content of the activity on the premises leased is controlled solely by the public school district. The lessor has no authority whatsoever concerning the activity at these extension public schools.
Second, unlike the restricted admission policy in Meek, the present programs are open to all children eligible to attend public schools. Further, the scheduling is arranged such that the children attend public schools during part of the day and private school during the remainder. This provides for a clear, time segregation of supervision by the two entities. Since the leased premises are both legally and actually public schools with public employees, there is no need for continuing surveillance to ensure that the teachers remain religiously neutral. The dangers in these programs are no greater than that posed by any public school teacher in an ordinary classroom setting.
As to administrative entanglement, the record does not disclose that extensive meetings between public and nonpublic school officials have been necessary. Indeed, it would seem that the public school system could independently decide what courses would be offered to part-time students and to provide for the classroom space and other details without the need to communicate continually with nonpublic school officials. We do not consider occasional communication between the two entities in order to smooth transitional difficulties to be the kind prohibited by the First Amendment. Likewise, since the programs are open to all, we see no serious potential for politically divisive conflict in the programs. Finally, we emphasize that these programs are operated under the authority and control of the public school system by public school personnel.
These circumstances, in our opinion, are closer to the classic released time program approved in Zorach v Clauson, 343 US 306; 72 S Ct 679; 96 L Ed 954 (1952). There students were released from public school to attend religious classes. The Court concluded that this program violated neither the Free Exercise nor Establishment Clauses of the First Amendment:
"When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.” 343 US 306, 313-314.
Under the circumstances of the' three programs before this Court, we likewise conclude that the shared time programs merely enable parents to take advantage of both the secular education offered by our public schools and the sectarian education offered by parochial schools.
Consequently, we hold that where shared time secular educational programs operated on premises leased from nonpublic schools are under the authority and control of public schools, are operated by public school employees, and are open to all students eligible to attend public schools, these programs do not offend the Michigan and United States Constitutions.
The trial court’s grant of summary judgment in favor of plaintiffs is reversed. Judgment for defendants may enter. No costs, a public question being involved.
For an explanation of the meaning of "shared time”, see Traverse City School District v Attorney General, 384 Mich 390, 411 n 3; 185 NW2d 9 (1971).
The Warren program has removed all religious articles from the leased premises. The same is true in Center Line except for one cross which is an integral part of a supporting wall. The record is unclear as to whether religious objects are visible in the Bay City program. Under the lease, the lessor covenanted to remove all religious symbols from the rooms leased. According to affidavits from two Bay City School officials, this has been accomplished. Under these circumstances, we assume that almost all religious symbols and articles have been removed from each of the three facilities.
We recognize that some lower Federal courts’ opinions are to some extent conflicting with our conclusions. See, e.g., Americans United for Separation of Church and State v Paire, 348 F Supp 506 (D NH, 1972), vacated and remanded 475 F2d 462 (CA 1, 1973), after remand 359 F Supp 505 (D NH, 1973), and Americans United for Separation of Church and State v Board of Education of Beachwood Independent School District, 369 F Supp 1059 (ED Ky, 1974). However, we are more nearly in accord with the views expressed by the Nebraska Supreme Court in State ex rel School District of Hartington v Nebraska State Board of Education, 188 Neb 1; 195 NW2d 161 (1972), cert den, 409 US 921; 93 S Ct 220; 34 L Ed 2d 182 (1972). | [
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McGregor, P. J.
Defendant was convicted by a jury of robbery armed, MCLA 750.529; MSA 28.797, and subsequently sentenced to 3 to 15 years in prison. Defendant now appeals his conviction as a matter of right.
The facts are not in dispute. Defendant entered a party store in Centerline, Michigan, between noon and 12:30 p.m. on March 23, 1974. There were four people in the party store: Mr. David Sparazynski, the owner; his sister-in-law, Barbara Sparazynski; and two customers, Mrs. Germaine Post and Mr. Henry Milewski. Defendant approached Mrs. Post from behind and grabbed her, put a gun to her head, and said to the owner, "Give me your money or she will get it”. The owner took some money from the cash register and placed it into a brown paper bag; he then passed the bag to Mr. Milewski, who placed his wallet into the sack. After taking the bag, defendant moved out of the door, all the while holding Mrs. Post. Once outside, he shoved Mrs. Post aside, jumped into an automobile, and fled. Mr. Milewski observed the license number of the automobile and this information was conveyed to the police. Shortly thereafter, the defendant was spotted by a cruising police officer and subsequently arrested. The bag, containing the money stolen from the store and Mr. Milewski’s wallet, was found on the front seat of the automobile.
Defendant raises only one issue of merit. He contends that the information filed by the people as well as the evidence presented at trial were both insufficient to establish that the crime of armed robbery had been committed.
The information provided, in part:
"Keith Lawson * * * while armed with a dangerous weapon, to-wit: a revolver, did assault one Germaine Post and rob, steal and unlawfully take from the person of David Sparazynski, and in the presence of the said Germaine Post and David Sparazynski certain property which was the subject of larceny, to-wit: $200.00 more or less, the property of David Sparazynski”.
The problem inherent in the information is that it states that the person assaulted was not the person robbed, nor was the person robbed the person assaulted. Defendant claims that without the unity of both the assault and the larceny of property which was in the possession, either actual or constructive, of the one assaulted, there can be no armed robbery of that person.
Plaintiff, on the other hand, claims that the language of the statute, "rob, steal and take * * * in his presence”, is broad enough to cover the facts of the present case, since the property was clearly taken in the presence of Mrs. Post.
Under the Michigan statute, it is essential, in order to constitute robbery, that property be taken by means of an assault from one having the care, custody, control, management, or possession of the property. See People v Moore, 13 Mich App 320; 164 NW2d 423 (1968), People v Needham, 8 Mich App 679; 155 NW2d 267 (1967), People v Cabassa, 249 Mich 543; 229 NW 442 (1930), and People v Covelesky, 217 Mich 90; 185 NW 770 (1921). In the present case, Mrs. Post did not have any such relationship to the property taken, and therefore, we hold the information to be defective in this regard.
Although the information was defective, it must still be determined whether this defect was fatal. The standard for determining the sufficiency of an information is set forth in People v Adams, 389 Mich 222, 243; 205 NW2d 415, 425 (1973), where the Supreme Court quoted a New York case:
"In determining the sufficiency of an indictment the test is: Does it identify the charge against the defendant so that his conviction or acquittal will bar a subsequent charge for the same offense; does it notify him of the nature and character of the crime with which he is charged so as to enable him to prepare his defense and to permit the court to pronounce judgment according to the right of the case?” (Emphasis deleted.)
Applying this standard to the present facts, we find that the information was sufficient. It clearly notified the defendant that he was being charged with armed robbery. In addition, it informed the defendant of the identity of the witnesses and apprised him of the date, time, and circumstances of the alleged offense. Although the information might well have been more adequately drawn, the defendant was not prejudiced thereby.
The defendant further argues that, even if the information is held to be sufficient, the evidence presented at trial went only to proving what the information alleged and, therefore, the crime of robbery armed was not established. We disagree.
The proofs clearly showed that the defendant committed an armed robbery on both Mr. and Mrs. Sparazynski and also on Mr. Milewski. There can be no doubt that the taking of their property was achieved by the defendant’s use of force and intimidation. Although the defendant claims otherwise, the fact that the defendant held the gun only to Mrs. Post’s head is of no consequence in determining whether or not the others were assaulted. The actions of the defendant were sufficient to place the others in fear and to prevent them from resisting the taking or exercising their free will. This is all that is necessary to constitute an assault.
Moreover, the trial court’s instructions to the jury cured whatever problems the information may have engendered.
The following instruction was submitted by de fendant’s counsel and given to the jury exactly as written:
"Ladies and Gentlemen of the Jury, I instruct you that if you find, from the evidence beyond a reasonable doubt that the Defendant did, at the time and place, make an assault on the person of Germain [sic] Post and did rob and steal from her money or other items while being armed or did assault the person David or Barbara Sparazynski and did take from their person money or other items while armed, then it would be your duty to find him guilty as charged.
"If, on the other hand, the prosecution has failed to show each and every element of the offense, that is, that he assault [sic] Germain [sic] Post, that he took from her person money or other items while being armed or that he assaulted David or Barbara Sparazynski, and that he took from their person or in their presence money or other valuables then being armed, and the existence of each and every element of the offense, then it would be your duty to acquit him of the charge of armed robbery.”
Thus, in order to convict the defendant, the jury would have had to have found, in addition to the allegations contained in the information, that either property was taken from the person of Mrs. Post or that one of the Sparazynskis was assaulted. Since no property was taken from the person of Mrs. Post, it must be assumed that the jury found that the defendant committed an armed robbery on one of the Sparazynskis. This being the case, we hold that the crime of robbery armed was established and that the defendant was properly convicted thereof.
Affirmed.
"Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years’ imprisonment in the state prison.” | [
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] |
N. J. Kaufman, J.
This appeal involves an attempt by plaintiff, a resident of Midland County, to stop the construction by defendant, Consumers Power, of a pressurized water nuclear power plant on the south shore of the Tittabawassee River, one and one-eighth miles from plaintiff’s residence. In the nearly seven years since Consumers Power applied to the Atomic Energy Commission (AEC) for a construction permit, the proposed plant has been the subject of lengthy AEC hearings, two law suits now pending in Federal court and the instant action. Our review of the trial court’s holding requires us to inquire into concerns basic to our Federal system of government. We must determine the division of rights, interests and responsibilities between state government and Federal government in the vitally important and rapidly evolving realm of environmental protection.
On January 15, 1969 Consumers Power filed with the AEC an application for a construction permit. Pursuant to AEC procedures, hearings were held on the application in Midland, Michigan before an Atomic Safety and Licensing Board. This board is a unit of the AEC and was composed of technical and legal personnel drawn from outside the AEC staff. See 10 CFR § 2.1 et seq. A number of organizations were granted permission to intervene. One of these was the "Mapleton Intervenors”, of which plaintiff was a member. Plaintiff also filed a limited appearance in opposition to the issuance of a construction permit.
Initially, pursuant to AEC regulations, the hearing was limited to concerns of health and safety pertaining only to radiological matters, and nonradiological matters were excluded. However, on the date that the hearing was to conclude the United States Court of Appeals for the District of Columbia held, in the landmark case of Calvert Cliffs’ Coordinating Committee v AEC, 146 US App DC 33; 449 F2d 1109 (1971), that the AEC regulations which excluded environmental issues from this type of hearing did not comply with the National Environmental Policy Act of 1969 (NEPA), 42 USC 4321 et seq. This decision was not challenged by the AEC, and, as a result, the board held two more weeks of hearings at which the power plant’s environmental impact was studied. On December 14, 1972, the Atomic Safety and Licensing Board recommended that the requested construction permit be issued. On the next day, the AEC issued the permit. This issuance was appealed by the intervenors to the Atomic Safety and Licensing Appeal Board.
On May 24, 1972, prior to the decision of the safety and licensing board, plaintiff and a number of others filed a suit in the United States District Court for the Eastern District of Michigan, Northern Division, Aeschliman v AEC (File No. 3202). This suit, which has not yet been decided, sought a declaratory judgment based on the alleged inadequacy of the safety and licensing board hearings and on the alleged failure of the board to consider the evidence presented by the Mapleton Intervenors.
Plaintiff, on January 17, 1973, filed an action in Midland County Circuit Court, but later voluntarily dismissed it without prejudice and with costs to defendant. He then filed the instant action in Jackson County Circuit Court on March 28, 1973. Defendant moved for a change of venue of this case and, on July 31, 1973, the court transferred the cause to Midland County.
After this case was filed, the AEC’s safety and licensing appeal board affirmed the decision to issue the construction permit. This affirmance is currently on appeal to the United States Circuit Court of Appeals for the District of Columbia (D.C. Cir. No. 73-1776).
Plaintiffs complaint sought, in its first count, a declaration of rights that defendant’s proposed power plant would constitute a "private and/or public nuisance” and in its second count, money damages of $750,000. He contended that the operation of defendant’s power plant would violate the Michigan environmental protection act, 1970 PA 127, MCLA 691.1201 et seq.; MSA 14.528(201) et seq., and would constitute a common law nuisance against which he asked relief pursuant to GCR 1963, 521.6.
The allegations on which he founded his complaint were:
"6) That in constructing and operating its proposed nuclear Units No. 1 and No. 2 in this location and area, a threatened or anticipated private and/or public nuisance will result to a practical certainty or probable result or a natural or inevitable consequence in the following particulars:
"6A. That the operation of the proposed cooling pond and towers interacting with the prevailing meterological [sic] conditions at this site in the winter will necessarily result in creation of steam fog and icing; which will to a practical certainty or as a natural or inevitable consequence invade plaintiffs premises; thereby adversely affecting plaintiff’s vested personal and property rights, and his lawful rights incidental thereto.
"6B. That dangerous or hazardous vehicular driving conditions will necessarily be created in winter by the operation of defendant’s proposed nuclear plant; in that fogging, interference with visibility, and slippery and treacherous driving conditions from creation of ice will necessarily result from the operation of said nuclear plant under all the circumstances and conditions prevailing to a meterological [sic] and scientific certainty or as a natural or inevitable consequence of same.
"6C. That plaintiffs premises will necessarily be subjected to accumulation [of] ice on occasions in the winter time under all the conditions and circumstances prevailing to a meterological [sic] and scientific certainty or as a natural or inevitable consequence of the operation of defendant’s nuclear plant.
"6D. That the operation of defendant’s nuclear plant would jeopardize and/or aggravate plaintiffs health; would cause him to become depressed (e.g. especially where the emergency core cooling system planned to be installed in close proximity to his premises is of unproven workability; and the results of a possible nuclear accident so catastrophic as to give rise to anxiety and mental suffering; and further, where he has no private insurance coverage on his premises in the event of a nuclear accident by reason of the nuclear exclusion clause in his insurance policy); would impair the marketability of his property, and result in a depreciation of the value thereof, and in a diminution in the rental value thereof; would materially interfere with the plaintiff’s normal use and enjoyment of his property; would result in annoyance, inconvenience, or discomfort.
"6E. That the operation of the proposed nuclear power plant to a certainty and/or probability will leave plaintiff with no private insurance coverage on his premises in the event of a nuclear accident by reason of the standard nuclear exclusion clause in his insurance policy, and plaintiff will suffer deprivation of a vested personal property right and due process of law by reason thereof.
"6F. That the emergency core cooling system planned to be installed in such proposed nuclear units is of unproven workability, and the results of a possible nuclear accident so catastrophic that the siting and location of the said plant is a private and/or public nuisance.”
Defendant moved for an accelerated judgment, GCR 1963, 116, as to plaintiff’s first count on four grounds: (1) that the court lacked jurisdiction of the subject matter because it had been preempted by the Federal government (GCR 1963, 116.2); (2) that the matter was res judicata; (3) that plaintiff was equitably estopped from suing; (4) that plaintiff had made an election of remedies which precluded his bringing the action. Defendant moved for summary judgment on count two on the ground that plaintiff had failed to state a claim upon which relief could be granted, GCR 1963, 117.2(1).
After hearings and filing of briefs, the trial court granted both motions. In an extensive and detailed opinion it held that the Federal government had preempted the field of regulation. No holding was rendered on defendant’s three other grounds. The court also found that plaintiffs second count presented no actionable claim because plaintiff had failed to allege facts from which the court might hold defendant’s nuclear power plant a nuisance. The court held that plaintiff had not alleged facts which tended to show that the plant, if built, would be either a nuisance per se or a nuisance per accidens and that plaintiff had demonstrated no injury on which damages could be based.
I
The doctrine of Federal preemption has its roots in the supremacy clause of the Constitution, US Const, art VI. The supremacy of Federal law is counterbalanced by the Tenth Amendment, which reserves to the states those powers not specifically consigned to the Federal government or specifically forbidden to the states. US Const, Am X. Where the Federal government has prempted an area of jurisdiction, state governments are prohibited from legislating or regulating. Where preemption exists, however, state courts will not always be prevented from acting. A litigant may still enforce rights pursuant to the Federal law in state courts unless the Constitution or Congress has, expressly or impliedly, given a Federal court exclusive jurisdiction over the subject matter. Mondou v New York, N H & H R Co, 223 US 1; 32 S Ct 169; 56 L Ed 327 (1912), Claflin v Houseman, 93 US 130; 23 L Ed 833 (1876). See Hart and Wech sler, The Federal Courts and The Federal System (2d ed), pp 427-438. Thus, we must determine whether Congress has preempted states from legislating or regulating the subject matter of the instant case, and, if it has, whether it has also vested exclusive jurisdiction of that subject matter in the Federal court system.
Preemption may occur in a number of contexts. Congress may expressly indicate that the authority conferred by it is exclusive. This indication may be manifested by statutory language, Campbell v Hussey, 368 US 297; 82 S Ct 327; 7 L Ed 2d 299 (1961), or by legislative history, Rice v Santa Fe Elevator Corp, 331 US 218; 67 S Ct 1146; 91 L Ed 1447 (1947). Preemption may arise from an actual conflict between Federal and state regulations where compliance with both is a "physical impossibility”. Florida Lime and Avocado Growers, Inc v Paul, 373 US 132, 142-143; 83 S Ct 1210; 10 L Ed 2d 248 (1963).
Where there has been neither an express intention by Congress to preempt a subject matter nor an inevitable Federal-state conflict, a court may still interpret the Federal scheme as implying preemption. Where courts have found that Congress intended to preclude dual regulation, a number of factors have been significant: (1) the statute and its legislative history; (2) the pervasiveness of the Federal regulatory scheme as authorized and directed by the statute and as executed by the Federal administrative agency; (3) the nature of the subject matter regulated and the extent uniformity of regulation is required; (4) whether, in a particular case, the state law represents an obstacle to the accomplishment and execution of Congress’ objectives in enacting the Federal law. Northern States Power Co v Minnesota, 447 F2d 1143, 1146-47 (CA 8, 1971), afFd by memorandum decision, 405 US 1035; 92 S Ct 1307; 31 L Ed 2d 576 (1972). Where a Federal administrative agency has been given a broad grant of regulatory power, preemption may be found even in the absence of the agency’s full exercise of that power. San Diego Bldg Trades Council v Garmon, 359 US 236; 79 S Ct 773; 3 L Ed 2d 775 (1959), (National Labor Relations Board), Napier v Atlantic Coast Line R Co, 272 US 605; 47 S Ct 207; 71 L Ed 432 (1926), (Interstate Commerce Commission).
Here, in finding that Federal law preempts state consideration of plaintiff’s complaint, the court stressed three factors: the pervasiveness of the Federal scheme of regulating atomic energy, the need for uniformity of regulation, and the NEPAmandated consideration of environmental impact by the AEC. The court stated:
"Every state could, conceivably, have a different set of regulations and a different approach to the problem which could only result in the creation of very conflicting conditions which the Atomic Energy Act and the decisions of the courts have sought to avoid. * * * [I]t appears to this Court that there are no interests or rights which the Michigan Environmental Act is designed to cover which are not already fully protected by the Atomic Energy Act and the National Environmental Act. The acts of Congress have preempted all of these items which the Michigan Environmental Act could possibly cover.”
Having found preemption of the subject matter, the court also held that Congress had placed exclusive jurisdiction of the area in the Federal courts. The trial court cited 28 USC 2342:
"The [Federal circuit] Court of Appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of—
"(4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42.” (Emphasis supplied.)
We agree that this provision mandates Federal court jurisdiction for all those matters related to atomic power plants which are exclusively in the Federal realm. We do not, however, agree with the trial court that all of the concerns raised by plaintiffs complaint are subject to Federal preemption. We find that this state is preempted from regulating, and this Court from adjudicating, those matters which deal with dangerous radioactive hazards. Specifically, we hold that we are barred from considering plaintiffs allegations concerning the workability of the emergency core cooling system of defendant’s plant and the possibility of nuclear accident.
We find that we are not prevented from considering plaintiffs allegations of nonradiological hazards from the plant, viz., the creation and effects of steam, fog and icing in the winter from the operation of the plant’s cooling pond. We hold that we are not preempted from considering these issues only as they are founded on common law nuisance theory. We render no decision on the effect of Federal law on law suits based on the Michigan Environmental Protection Act because, as we will detail below, we affirm the trial court’s holding that plaintiff has not presented a cause of action under that statute. Nor do we render a decision as to whether a state court could enjoin the construction of an AEC licensed facility because we find plaintiffs complaint contained no specific request for injunctive relief.
Our holding that the Federal government preempts state action concerning radiological, but not nonradiological matters is founded on the 1959 amendments to § 2021 of the Atomic Energy Act, Act of September 23, 1959, Pub L 86-373 § 1, 73 Stat 688 amending 42 USC 2021. As originally conceived, Federal regulation over atomic energy appeared to be complete. Congress, in enacting that act, found in § 2012 that:
"(c) The processing and utilization of source, byproduct, and special nuclear material affect interstate and foreign commerce and must be regulated in the national interest.
"(e) Source and special nuclear material, production facilities, and utilization facilities are affected with the public interest, and regulation by the United States of the production and utilization of atomic energy and of the facilities used in connection therewith is necessary in the national interest to assure the common defense and security and to protect the health and safety of the public.
"(f) The necessity for protection against possible interstate damage occurring from the operation of facilities for the production or utilization of source or special nuclear material places the operation of those facilities in interstate commerce for the purposes of this chapter.” 42 USC § 2012.
Based on the original act, a strong case could be made that states had no role in the field of atomic energy. However, in 1959, Congress added provisions which delineated the respective roles of Federal and state governments. The 1959 amendments to the Atomic Energy Act offered states a significant role in regulating certain aspects of nuclear energy. In 42 USC 2021(b), the Congress authorized states and the AEC to enter into "turnover agreements” by which, a state would assume regulatory authority over "(1) byproduct materials; (2) source materials; (3) special nuclear materials in quantities not sufficient to form a critical mass”. The promulgation of subsection (b) was prompted by a belief that atomic technology had reached a point where state agencies could be trained to regulate certain less dangerous atomic activities. Safeguards had been perfected so that uniform Federal regulation would no longer be necessary to prevent nuclear accidents. See 1959 US Code, Cong and Admin News, p 2879.
However, in subsection (c) of § 2021 Congress forbade the AEC from turning over to the states regulation of:
"(1) the construction and operation of any production or utilization facility;
"(2) the export from or import into the United States of byproduct, source, or special nuclear material, or of any production or utilization facility;
"(3) the disposal into the ocean or sea of byproduct, source, or special nuclear waste materials as defined in regulations or orders of the Commission;
"(4) the disposal of such other byproduct, source, or special nuclear material as the Commission determines by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission.” 42 USC 2021(c).
In doing so, Congress was defining an area that required exclusive Federal control.
As a further expression of state authority, Congress promulgated subsection (k) of § 2021, which, we find, makes manifest the radiological/nonradiological dichotomy. Congress provided:
"Nothing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards.” 42 USC 2021(k). (Emphasis supplied.)
The division of powers between Federal and state governments in § 2021, thus, parallels the Constitutional delineation. In subsection (c), certain exclusive powers are given to the Federal government and subsection (b) provides for concurrent powers. The Tenth Amendment reservation of all other powers to the states is found in subsection (k). As the Joint Congressional Committee notes demonstrate, Congress was restating the long-recognized state responsibility to assure through its police powers the health, safety, and welfare of its citizens. Sligh v Kirkwood, 237 US 52; 35 S Ct 501; 59 L Ed 835 (1915).
The Committee stated:
"This subsection [k] is intended to make it clear that the bill does not impair the State authority to regulate activities of AEC licensees for the manifold health, safety, and economic purposes other than radiation protection.” 1959 US Code, Cong and Admin News, p 2882.
Further, it stated:
"Licensing and regulation of more dangerous activities — such as nuclear reactors — will remain the exclusive responsibility of the Commission.” Id at 2879. (Emphasis supplied.)
Congress, thus, recognized the need for expertise and uniformity of regulation with regard to the handling of nuclear materials sufficient to form a critical mass, whose potential danger is clear. This potential danger and lack of expertise by state authorities required Federal preemption. Congress authorized the turnover to states of those less-hazardous aspects of nuclear power which state agencies might be trained tb regulate. It also was careful not to impinge on state authority over nonradiological problems resulting from nuclear plant operation. Commentators have placed in this category such matters as site selection and zoning, local pollution, building and equipment codes on nonradiation machinery and working conditions of plant employees. All such concerns are intricately related to the construction and operation of nuclear plants, but all have, historically, been left to state regulation.
This radiological/nonradiological dichotomy was recently reaffirmed in two landmark cases, North ern States Power Co v Minnesota, 447 F2d 1143 (CA 8, 1971), aff’d by memorandum decision, 405 US 1035; 92 S Ct 1307; 31 L Ed 2d 576 (1972), and Calvert Cliffs’ Coordinating Committee v AEC, 146 US App DC 33; 449 F2d 1109 (1971). In Northern States, the court held that a Minnesota statute which regulated radioactive waste releases from nuclear plants, was unconstitutional. The court found neither specific language requiring preemption nor physical impossibility of dual regulation. Instead, it opined that the whole tone of the 1959 amendments demonstrated a congressional intent to preempt. The court noted that, as Minnesota had conceded:
"[r]adioactive discharges from nuclear power plants [do] not fall within any of the three categories enumerated in § 2021(b) over which AEC authority may be relinquished by means of * * * turnover agreements.” 447 F2d at 1148.
Rather, the court found the release of nuclear effluents to be a matter involved in the "construction and operation” of nuclear plants, a concern over which § 2021(c) prohibits the AEC from discontinuing its authority. It reasoned further that if, prior to the 1959 amendments, states had concurrent power to regulate, it would have been unnecessary for Congress to affirmatively give states authority in specific areas by means of turnover agreements.
The trial court relied on Northern States as requiring preemption over nonradiological matters in the instant case. We disagree. We read Northern States as holding that state control over construction and operation is prohibited only as to radiation hazards. First, the only issue before the court in that case was "whether the United States Government has the sole authority under the doctrine of preemption to regulate radioactive waste releases from nuclear power plants to the exclusion of the states”. 447 F2d at 1144. (Emphasis supplied.) It made no decision as to regulation of nonradioactive emissions. Specifically, the court held that " * * * Congress intended federal occupancy of regulations over all radiation hazards except where jurisdiction was expressly ceded to the states * * * ”. Id at 1150. (Emphasis supplied.)
Second, the Northern States opinion itself stressed the retention of state regulation over "activities for purposes other than protection against radiation hazardsId at 1149. (Emphasis in original.) The court stated:
"The only logically acceptable reason for inclusion of subsection (k) within §2021 was to make it clear that Congress was not, by subsection (c) of the 1959 amendment, in any way further limiting the power of the states to regulate activities, other than radiation hazards, associated with those areas over which the AEC was forbidden by that subsection to relinquish its control.” Id at 1150. (Emphasis in original.)
We do not, as did the trial court, read the Northern States opinion as holding that regulatory authority of nonradiological matters is part of a nuclear plant’s "construction and operation” as that term is used in the § 2021(c)(1) expression of exclusive AEC control. Both the Northern States opinion and AEC regulations demonstrate that there is exclusive AEC control over "construction and operation” only as to radiation hazards, not as to nonradiological matters. In Northern States, the court cited an analysis of § 2021(c)(1) made during hearings on the 1959 amendments. This analysis made it clear that the purpose of the "construction and operation” clause was to "retain under Commission regulatory control the operation of the reactor”. 447 F2d at 1149, fn 6. (Emphasis supplied.) The AEC regulations, in describing the scope of "construction and operation”, speak only in terms of the storage, handling and discharge of radioactive materials. 10 CFR § 150.15.
In Calvert Cliffs’, the court explicitly recognized the ability of states to set standards dealing with nonradiological pollution. It stated that, in enacting the National Environmental Policy Act of 1969 (NEPA), 42 USC 4321 et seq., "Congress was surely cognizant of Federal, state and local agencies 'authorized to develop and enforce environmental standards’ ”. 449 F2d at 1123. The court held that, under § 104 of the NEPA, the AEC was required, at a minimum, to make sure that prospective licensees complied with standards set by states and made enforceable by Federal law. Id at 1124. As an example, the court pointed to the Water Quality Improvement Act of 1970, 33 USC 1151 et seq. (WQIA). This act prohibits Federal licensing agencies from granting a license until the applicant has received certification from a state agency that compliance with applicable water quality standards is reasonably assured.
Similarly, the 1970 Clean Air Act Amendments to the Air Quality Act of 1967, act of December 31, 1970, Pub L 91-604, 84 Stat 1676 et seq., amending 42 USC 1857 et seq., recognizes the states’ ability to regulate emissions. The act encourages "the enactment of * * * uniform State and local laws relating to the prevention and control of air pollution” on an interstate level. 42 USC 1857a(a). On an interstate level, states are asked to make recommendations leading to Federal standards for ambient and secondary air pollution. The act gives primary responsibility for implementation of these interstate standards to state governments, not to the Federal government. 42 USC 1857c-2(a), c-5. The Federal domain in matters covered by the Clean Air Act has been held not to be exclusive or preemptive of state legislation. Clean Air Coordinating Committee v Roth-Adam Fuel Co, 465 F2d 323 (CA 7, 1972), cert den 409 US 1117; 93 S Ct 895; 34 L Ed 2d 701 (1973), reh den 410 US 959; 93 S Ct 1412; 35 L Ed 2d 694 (1973), Houston Compressed Steel Corp v Texas, 456 SW2d 768 (1970). Further, a state may impose pollution control requirements which are more strict than those specified by the Federal plan. Indiana & Michigan Electric Co v Environmental Protection Agency, 509 F2d 839 (CA 7, 1975), St Joe Minerals Corp v Environmental Protection Agency, 508 F2d 743 (CA 3, 1975). Both the WQIA and the Clean Air Act deal with interstate pollution. The fact that the Federal government has given state and local governments significant responsibilities in setting interstate standards and the responsibility to enforce those standards makes even more clear the responsibility of the states to regulate intrastate pollution.
In addition to the Northern States case, the trial court founded its holding of preemption on the theory that the interests of the state and its citizens were protected by the National Environmental Policy Act. Because the AEC had, pursuant to NEPA, already considered the environmental impact of the plant, a state court review would not only be fruitless but would result in a multiplicity of state regulations that would defeat the purpose of the Atomic Energy Act. We disagree for several reasons: (1) the differing nature of state court and Federal agency deliberations; (2) the necessity for state courts to provide a forum for the adjudication of state common law rights; (3) the fact that a license granted by a Federal agency is a permit, not a Federal order to build; (4) the authority of United States Supreme Court cases where the Court upheld state court actions which effectively blocked or penalized a party exercising a Federally granted license.
First, the parties, the rights adjudicated, the interests alleged, and the basic nature of the forum are so different in a state court from what they are in AEC administrative hearings that an adjudication by one should not always prevent the other from deciding a similar question. Plaintiff and defendant were not the principal parties at the AEC hearings. Their dispute was not the principal subject of the hearings. Plaintiff was not forced to intervene but did so in an admirable attempt to protect the interests of his community. He was asserting a general Federal right at the AEC hearings, not a specific state right. In the instant case, plaintiff is alleging a state common law right to be free from an alleged nuisance. The NEPA provides no such right. The only right that the NEPA gave plaintiff at the AEC hearing was a procedural one: to have the AEC fully disclose the environmental impact of a proposed project. Upper Pecos Association v Stans, 452 F2d 1233, 1236 (CA 10, 1971). His only remedy is against the AEC, not against defendant. Because a state court and a Federal agency have clearly different, not concurrent, jurisdictions, this is not like those cases which require a plaintiff to elect between agency or court action, or which involve the doctrine of primary jurisdiction. White Lake Improvement Assn v City of Whitehall, 22 Mich App 262; 177 NW2d 473 (1970), 3 Davis, Administrative Law Treatise, § 19.01, p 5.
Further, each forum will conduct a different balancing process. A state court must make a case-by-case determination based on a number of factors. It must examine such factors as the character of a defendant’s industry and the character, volume, time and duration of the alleged nuisance. Smith v Western Wayne County Conservation Assn, 380 Mich 526; 158 NW2d 463 (1968). In each case, the only concern is the adjudication of a state common law right.
The AEC, on the other hand, cannot be accu rately termed neutral. The agency was established to fulfill the often conflicting goals of both regulating and promoting nuclear energy. Only recently has it attempted to divide the two functions into separate agency units. The tendency of regulatory agencies to be "captured” by those whom they regulate is well known. In the agency balancing process, state and local interests will be but one factor, and they will have to compete against concerns vital to national and international policy. Commentators have opined that, in AEC determinations, such Federal concerns as the promotion of nuclear power and the national need for more sources of energy will get greater precedence than such local concerns as icing or fogging. These basic differences between state court and Federal agency action belie defendant’s claim that plaintiff has made an election of remedies or has created multiplicity of actions. Where different rights, obligations, remedies and jurisdictions are involved, such theories are inapplicable.
Second, without recourse to a state court, a private party will have no ability to make sure that his state rights will be adequately protected by his state government. Where a state intervenes in the agency process, a private party has no way of requiring the state to defend his specific interest and no ability to seek judicial review of the quality of state involvement. If the state does not inter vene, a private party could not force it to do so. A suit for mandamus to force such intervention would be fruitless, inasmuch as a plaintiff could show no mandatory duty to intervene. Without a state court forum, a private citizen would be forced to raise the state interest by appealing the AEC ruling.
Such an appeal is a difficult task. Because the NEPA contains no enforcement provision, a challenge to an AEC decision must be made under chapter 7 of Title 5 of the United States Code (formerly the Administrative Procedure Act). See 5 USC 702. The prescribed scope of review under that chapter is the substantial evidence rule. 5 USC 706(2)(e). Under this rule, reviewing courts will defer to an agency determination so long as, upon an examination of the whole record, there is substantial evidence upon which the agency could reasonably base its decision. Judicial deference to AEC expertise may make this review a narrow one.
Third, and most importantly, the license granted by the AEC is merely a permit to construct a power plant, not a Federal order to do so. Therefore, a state which, pursuant to its Atomic Energy Act power to regulate nonradioactive hazards, stopped a power company from operating until it met reasonable state standards or abated a nuisance under state law could not be frustrating a Federal mandate.
In this light, the case of Huron Portland Cement Co v Detroit, 362 US 440; 80 S Ct 813; 4 L Ed 2d 852 (1960), is cogent precedent. In that case, Hu ron Portland argued that a Federal law providing for the inspection and regulation of ships’ boilers preempted Detroit from enforcing an ordinance governing smoke emissions. Notwithstanding the facts that compliance by Huron Portland would require it to make extensive structural alterations in its ships’ boilers and that the ordinance affected ships on navigable, interstate waters, the Supreme Court upheld the ordinance application. The Court found no overlap between the Federal and local laws. The Federal law was designed to assure safe equipment while the Detroit city ordinance sought to eliminate air pollution, a matter of state and local concern.
The Court in Huron Portland Cement stressed its policy of not "seeking out conflicts between state and Federal regulations where none clearly exists”. 362 US at 446. (Emphasis supplied.) Thus, the mere chance that some remedies might impinge on Federal preeminence in an area should not oust a state court from acting where a valid state police power is involved. Similarly here, exclusive AEC regulation pursuant to § 2021(c) is designed to assure the safe operation of nuclear reactors and the safe handling of dangerous radioactive materials. This does not overlap with the exercise of state judicial power to insure the welfare of its citizens.
Even more in point are two cases where the Supreme Court affirmed state court enforcement of the state common law even though that enforcement effectively defeated the exercise of Federally authorized licenses. Radio Station WOW v Johnson, 326 US 120; 65 S Ct 1475; 89 L Ed 2092 (1945), (fraud claim), and Regents of the University System of Georgia v Carroll, 338 US 586; 70 S Ct 370; 94 L Ed 363 (1950), (contractual claim enforced). Cf. Allen B Dumont Laboratories v Carroll, 184 F2d 153 (CA 3, 1950), cert den 340 US 929; 71 S Ct 490; 95 L Ed 670 (1951). See Engdahl, Preemptive Capability of Federal Power, 45 Colo L Rev 51, 68-76 (1973). The Court spoke in terms of "fair accommodation between State and federal authority”. 326 US at 132. In both cases, the Court stressed the fact that a Federal broadcasting license was a permit to serve, not a duty to do so. As here, the Court found that Federal licensees must conform to state laws which did not actually impinge on the licensing system.
Where, however, a local ordinance stands in direct conflict to a Federal regulation, the local law is preempted. In City of Burbank v Lockheed Air Terminal Inc, 411 US 624; 93 S Ct 1854; 36 L Ed 2d 547 (1973), the City of Burbank passed an ordinance which made it unlawful for jet aircraft to take off between 11 p.m. and 7 a.m. the next day. This was an attempt to exercise police powers to reduce noise. The Supreme Court held the attempt to have been preempted by the Federal Aviation Act of 1958, 49 USC 1301 et seq. Burbank was relied on by an Illinois appellate court in Village of Bensenville v City of Chicago, 16 Ill App 3d 733; 306 NE2d 562 (1973), a case whose reason ing the trial court adopted. We find both cases inapposite here for two reasons. First, in Burbank and Bensenville, the local scheme could literally not coexist with Federal regulation. Management of airspace was in the exclusive realm of the Federal Aviation Agency. If localities made flight impossible, they would directly impinge on Federal authority to set routes and times for commercial carriers. Here a finding of nonradiological nuisance would not impinge on AEC regulation of radioactive hazards. If the state did attempt to declare all power plants nuisances per se and exclude them, a Burbank-type case would occur.
Second, the Federal Aviation Act, unlike the Atomic Energy Act, left no room for any state regulation. While the Atomic Energy Act, in § 2021(k), specifically allowed state regulation of nonradiation hazards, the Federal Aviation Act, § 611(d), provided only for "consultation” with states as the FAA deemed appropriate.
The fact that, under the NEPA, a nuclear plant’s environmental impact is a matter of concern to both Federal and state governments does not limit state action. Where, as here, coordinate state and Federal efforts exist within a complementary administrative and governmental framework and where both have the same objectives, the case for Federal preemption is not strong. See e.g., New York State Dept of Social Services v Dublino, 413 US 405; 93 S Ct 2507; 37 L Ed 2d 688 (1973), Mobil Oil Corp v Attorney General, 361 Mass 401; 280 NE2d 406 (1972). This is especially so where the state role is a traditional exercise of its police power. FPC v Panhandle Eastern Pipe Line Co, 337 US 498, 512-513; 69 S Ct 1251; 93 L Ed 1499 (1949), Quinn v Bd of Standards and Appeals of the City of New York, 78 Misc 2d 559; 357 NYS2d 762 (1974).
Finally, while we sympathize with the trial court’s fear that allowing state action here will cause conflict between a variety of state standards and AEC regulations, we feel that the potential for such conflict is inherent in our Federal system. As such, the system has developed ways of dealing with such conflict. The doctrines of comity and Federal abstention are two examples. Ultimately, the US Supreme Court may be the final arbiter.
The choice between diverse and uniform solutions is always a difficult one. The very magnitude and complexity of the energy crisis may require a number of different solutions. This is especially so where two of our most pressing concerns, the need for alternate sources of energy and the need to preserve the environment, clash. A uniform national energy policy may be necessary, but it could never be applied with uniformity. States may adopt different solutions to their own needs and, in that way, become "experimental laboratories”. Where a broad, Federal scheme is established, it is important to allow room for state regulation by which such local factors as topography, demography and meteorology may be considered.
The Atomic Energy Act has allowed for such state action for the health, safety, and welfare of its citizens. Our Court would be remiss if it denied Michigan citizens the ability to enforce Michigan common law. Specifically, if it found that a nuisance did exist, a court could, if there were no" remedy at law, exercise its equitable powers and require defendant to establish measures to abate the nuisance, given current technology. If such measures made the construction of a nuclear plant impossible, they could not be required. In such a case, the Federal interest would prevent state action from absolutely prohibiting the construction of nuclear power plants within its boundaries. Short of such a situation, state required abatement procedures would be legitimate.
II
Having decided that we can hear the instant controversy, we turn to plaintiffs specific claims. Plaintiff brought his action for a declaration of rights under both the Michigan Environmental Protection Act (MEPA) and common law nuisance theory. The trial court held that plaintiff had not stated a cause of action under the MEPA. we agree.
The MEPA provides "for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction”. MCLA 691.1202; MSA 14.528(202). While the act’s protections encompass many areas of common law nuisance, we find that plaintiffs complaint sounds only in nuisance. The fogging of the air and icing of roads cannot, consistent with the purposes of MEPA, be considered "pollution, impairment or destruction” of any natural resource.
We also agree with the trial court’s disposition of plaintiff’s complaint for a declaration of rights that defendant’s plant would constitute a common law nuisance. The court held:
"The Court does not believe that the Declaratory Judgment Act, or G.C.R. 521.1, gives the Plaintiff the right to a declaratory judgment under the facts of this case. If this Court were to determine that at some time in the future a nuisance was likely to occur, it is not clear to this Court how this would benefit the Plaintiff or how it would protect his rights or determine his future course of action. Further action would be necessary at a later time when the plant was actually completed and placed in operation in order to determine whether or not, in fact, because of the manner in which the plant was being operated that a nuisance had been created.”
The trial court, thus, held that plaintiff had failed to allege facts sufficient to constitute a present or definite future nuisance. As the Supreme Court stated in Falkner v Brookfield, 368 Mich 17, 23; 117 NW2d 125 (1962):
"[e]quity will not enjoin an injury which is merely anticipated nor interfere where an apprehended nuisance is doubtful, contingent, conjectural or problematical. A bare possibility of nuisance or a mere fear or apprehension that injury will result is not enough. On the other hand, an injunction may issue to prevent a threatened or anticipated nuisance which will necessarily result from the contemplated act, where the nuisance is a practically certain or strongly probable result or a natural or inevitable consequence.” (Emphasis supplied.)
The validity of a summary judgment motion based solely on the grounds that the opposing party has failed to state a cause of action is to be tested by the pleadings alone. Cooke Contracting Co v Dept of State Highways #2, 55 Mich App 479; 223 NW2d 15 (1974). The motion tests the legal, not factual, sufficiency of the complaint and the facts pleaded are viewed in the light most favorable to plaintiff. Van Liere v State Highway Dept, 59 Mich App 133; 229 NW2d 369 (1975). Viewing plaintiff’s complaint in this light, we are convinced that he did not state facts sufficient to show that the building of defendant’s plant would necessarily or inevitably create either a nuisance per se or per accidens. A "nuisance at law” or "nuisance per se” is an act, occupation, or struc ture which is a nuisance at all times and under any circumstances, regardless of location or surroundings, as distinguished from a "nuisance in fact” or "nuisance per accidens” which is that which becomes a nuisance by reason of circumstances and surroundings. Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399; 97 NW2d 90 (1959).
Because defendant’s plant, if built, would violate no law or ordinance, it is not a nuisance per se. As the trial court stated, it is yet unclear whether the plant will, in fact, be built. The Federal court appeal from the AEC’s issuance of a construction permit is still pending. The issuance might be reversed or its conditions changed. As such, the eventual construction of defendant’s plant, not to mention its possible effect, is too uncertain to provide a basis for a declaratory judgment that the plant would be a nuisance per accidens.
Ill
With regard to plaintiff’s claim for damages, we are in agreement with the court’s determination that plaintiff had failed to state a cause of action. We adopt the court’s reasoning:
"This Court cannot apprehend how the Plaintiff could submit an issue of damages to a jury, * * * until such time as he can demonstrate that he has suffered some damage. It does not now appear with any degree of certainty that this plant will, in fact, be completed, or, that if completed, it will, of necessity, damage the Plaintiff.”
Plaintiff merely alleged damages he would suffer if defendant’s plant were built. He alleged no present damages capable of recovery.
Affirmed. No costs, a public question being involved.
For the constitutional underpinnings of the turnover agreements, see Engdahl, State Power Over Plowshare: the Constitutional Framework, 14 Atom Energy LF 243 (1973). The author notes "cogent arguments * * * in defense of a decisive state policy role”. Id at 264.
Tarlock, Tippy and Francis, Environmental Regulation of Power Plant Siting: Existing and Proposed Institutions, 45 S Cal L Rev 502, 523-539 (1972). Note, State Regulation of Power Plant Siting, 47 Ind LJ 742 (1972). Hazleton, Public Policy for Controlling the Environment, 48 J Urb L 631, 654-656 (1971), Lemov, State and Local Control Over the Location of Nuclear Reactors Under the Atomic Energy Act of 1954, 39 NYU L Rev 1008 (1964). Some 26 states require that a certificate of convenience be obtained from a state agency prior to construction. This results in appeals by environmental groups of public utilities commission decisions on such certificates. See e.g., Northern California Assn to Preserve Bodega Head and Harbor, Inc v Public Utilities Commn, 61 Cal 2d 126; 37 Cal Rptr 432; 390 P2d 200 (1964). Michigan utilities are not immune from zoning ordinances. Detroit Edison Co v Wixom, 10 Mich App 218; 159 NW2d 230 (1968), rev’d on other grounds 382 Mich 673; 172 NW2d 382 (1969).
See Note, State Environmental Protection Legislation and the Commerce Clause, 87 Harv L Rev 1762 (1974), Note, Federal and State Responsibilities in the Environmental Control of Nuclear Power Plants, 2 NYU Rev of L & S C 20 (1972) [hereinafter "Responsibilities”].
Estep and Adelman, State Control of Radiation Hazards: An Intergovernmental Relations Problem, 60 Mich L Rev 41, 58-63 (1961). If a state regulation stood as an obstacle to compliance with a Federal regulation, the specific state requirement would be suspended, even though its purpose is different from that of the AEC regulation. The obstruction, however, must be nearly absolute where the state is exercising a traditional police power. Huron Portland Cement Co v Detroit, 362 US 440; 80 S Ct 813; 4 L Ed 2d 852 (1960).
Estep and Adelman, fn 4 supra, pp 58-63.
The Federal Environmental Protection Agency has, since Northern States, taken over control of setting applicable standards for radioactive effluent discharge outside plant site boundaries. Pres Reorg Plan #3 of 1970, 3 CFR 1072 (1966-1970 Compilation). This merely represents a change in Federal agency authority over an exclusively Federal area.
Section 104 of NEPA requires:
"Nothing in Section 102 or 103 shall in any way affect the specific statutory obligations of any Federal agency (1) to comply with criteria or standards of environmental quality, (2) to coordinate or consult with any other Federal of State agency, or (3) to act, or refrain from acting contingent upon the recommendations or certification of any other Federal or State agency.” 83 Stat 854; 42 USC 4334. (Emphasis supplied.) Such "criteria or standards” include those set by states under such Federal laws as WQIA. See also Note, Water Quality Standards in Private Nuisance Actions, 79 Yale LJ 102 (1969).
See also Prevention, Control, and Abatement of Environmental Pollution at Federal Facilities, Exec Order No 11752, (December 19, 1973), 3 CFR 380; 38 FR 34793, § 4.
Compare Ohio v Wyandotte Chemicals Corp, 401 US 493; 91 S Ct 1005; 28 L Ed 2d 256 (1971), with Illinois v Milwaukee, 406 US 91; 92 S Ct 1385; 31 L Ed 2d 712 (1972). In Wyandotte Chemical, the Supreme Court refused original jurisdiction of a suit to abate interstate pollution. It felt that a state court had as compelling a claim to adjudicate the controversy and that the case would be decided under the common law of nuisance. The Court stressed the value of "close supervision of the technical performance of local industries” by state courts. 401 US at 505.
In Illinois v Milwaukee, however, the Court held that Federal common law governed such suits. The Court distinguished Wyandotte Chemical in a cryptic footnote, claiming that Wyandotte had been concerned with state nuisance law, not Federal common law. 406 US at 102, fn 3. In any case, Federal common law would be enforced with reference to state standards. Id at 107.
Energy Reorg Act of 1974, Pub L No 93-438 (October 11, 1974).
Jaffe, Judicial Control of Administrative Action, (Little, Brown & Co ed 1965), pp 11-14.
Sax, The (Unhappy) Truth About NEPA, 26 Okla L Rev 239 (1973), Coggins, The Environmentalist’s View of AEC’s "Judicial” Function: A Reply to Messrs Doub 15 Atom Energy LJ 176 (1973).
The State of Michigan intervened in the AEC hearing but not in the instant case. It was also an intervenor in the Northern States case. An agency or court ruling may cause a utility company to make changes in its building plans. Because these changes will inevitably be paid for by state consumers, the state government should take an active interest in all such hearings and litigations,
Note, Responsibilities, fn 3, supra, pp 40-41.
See, e.g., Williams v Superior Court In and For County of Pima, 108 Ariz 154; 494 P2d 26 (1972), State v Republic Steel Corp, 38 Ohio Misc 43; 311 NE2d 911 (1973).
In Radio Station WOW v Johnson, 326 US 120; 65 S Ct 1475; 89 L Ed 2092 (1945), the state court ordered a lease necessary to operate the radio station set aside on the ground of fraud. It also set aside the broadcast license on this ground and ordered the station to do all things necessary to return the license to the lessor-original owner. Only the latter holding was reversed because it impinged on the Federal licensing scheme and on the licensee’s freedom to take part in the licensing process.
In Regents v Carroll, supra, 338 US 586; 70 S Ct 370; 94 L Ed 363 (1950), the FCC conditioned the renewal of plaintiffs license on its breaking a contract with a third party. When it did, the third party sued and won a judgment. The Court upheld this judgment. | [
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Quinn, P. J.
Plaintiffs appeal from summary judgments entered in favor of defendants Spencer and Limbaugh. The only question presented involves an interpretation of 1972 PA 196 which amended MCLA 436.22; MSA 18.993 (dramshop act).
May 27, 1972, a collision occurred between a motorcycle driven by plaintiff Dietrich and a car driven by defendant Gardner. Plaintiff Crawfis was a passenger on the motorcycle. Defendant Gardner was allegedly intoxicated.
1972 PA 196 became effective June 29, 1972. It amended MCLA 436.22 by adding the following:
"No action against a retailer or wholesaler or anyone covered by this act or his surety, shall be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.”
It is commonly referred to as "the name and retain provision”.
Sometime thereafter, plaintiffs commenced this action against Gardner. With permission, plaintiffs amended their complaint September 17, 1973 by adding bar owner defendants Tassi, Spencer and Collier as parties defendant and charging them with violation of the Dramshop Act.
November 26, 1973 and December 3, 1973, plaintiffs executed releases to Gardner, and on December 28, 1973, pursuant to stipulation, an order entered dismissing Gardner as a defendant.
April 9, 1974, defendants Spencer moved for summary judgment claiming that the release to Gardner acted as a release to them under amended MCLA 436.22. By order of April 17, 1974, this motion was granted.
With permission, plaintiffs again amended their complaint May 23, 1974 by adding bar owner Limbaugh as a party defendant and charging him with violation of the Dramshop Act. He moved for summary judgment on the same grounds that Spencers had asserted and this motion was granted by order of June 26, 1974 and by agreement, defendants Collier were included in the order.
It is plaintiffs’ contention that since their cause of action arose prior to the effective date of the "name and retain” amendment, it is inapplicable because legislation is prospective unless the Legislature clearly states that the act shall be retrospective. We accept this basic rule of statutory construction, but it is inapplicable to this case.
Plaintiffs’ cause of action against the bar owner defendants was statutory. The statute specified how the statutory right was to be enforced. The "how to enforce provisions” are procedural and are generally held to operate retrospectively, unless a clear contrary intention is shown. When a new statute deals with procedure only, prima facie, it applies to all actions, those which have accrued or are pending and future actions. No vested right can exist to keep statutory procedural law unchanged and free from amendment, Hansen-Snyder Co v General Motors, 371 Mich 480, 485; 124 NW2d 286, 288 (1963).
Prior to the time plaintiffs commenced their action against defendant bar owners the "name and retain” amendment was in effect, and by releasing Gardner, plaintiffs came under its limitation.
On the surface, this appears contrary to Koehler v DRT Sportservice, Inc, 55 Mich App 567; 223 NW2d 461 (1974), but in reality it is not. In the case before us, the sequence of events was accident, amendment of statute, suit commenced thereafter and then release. In Koehler, the sequence was accident, release, amendment of statute and then suit. We read Koehler in context with the facts of Koehler, and while it had factual support for the holding that the amendment affected substantive rights, that holding should be limited to Koehler and similar cases. It is not controlling precedent for holding procedural changes substantive changes when no substantive rights are involved.
Affirmed with costs to defendants Collier.
D. F. Walsh, J., concurred. | [
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] |
D. E. Holbrook, Jr., J.
Defendant was convicted on January 17, 1974, by a jury, of selling heroin. MCLA 335.152; MSA 18.1122. He was sentenced to serve 4 to 20 years in prison. Defendant appeals as of right.
At trial the prosecution relied on the testimony of the complaining witness, Betty Harris. Mrs. Harris, a former addict, testified that she purchased a quantity of heroin from the defendant. The sale occurred while Mrs. Harris was in the district court in Inkster awaiting a preliminary examination on an unrelated matter. The defendant was also present to testify in another case in which he was the complaining witness. She further testified that she had used heroin or cocaine hundreds of times over the past 2 to 2-1/2 years. Mrs. Harris explained the effects that heroin had on her and she testified that after she made this purchase she had similar effects. On this basis the trial court permitted Mrs. Harris to express her opinion that the substance she purchased from the defendant was heroin.
On appeal, defendant claims that the trial court erred in permitting Mrs. Harris to testify as an expert witness in addition to being the only eyewitness to the crime. As a general rule this Court will reverse a trial court’s determination of a witness’s status as an expert only when there is an abuse of discretion. People v Hawthorne, 293 Mich 15; 291 NW 205 (1940), People v King, 58 Mich App 390; 228 NW2d 391 (1975), People v Charles Wilson, 27 Mich App 171; 183 NW2d 368 (1970), lv den, 384 Mich 840 (1971). To abuse its discretion the trial court must so misconstrue the facts and the logic of the case as to reach an absurd result. Wendel v Swanberg, 384 Mich 468; 185 NW2d 348 (1971), Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959).
The underlying question of whether a heroin addict may be an expert witness as to the identification of heroin is really one of first impression in this state. Recently, this Court in dicta stated that a regular marijuana smoker is qualified to give his opinion that what the defendant was smoking was marijuana. People v Belleville, 56 Mich App 275; 224 NW2d 61 (1974). However, it has been pointed out that unlike many other drugs an addict’s reaction to heroin will be the same as his reaction to many other drugs of the opiate group. Howard v State, 496 P2d 657 (Alas, 1972). Consequently, we do not feel bound by the dicta in People v Belleville, supra.
To determine if Mrs. Harris should have been qualified as an expert we must first define who an expert is. Although the court rules make provisions for expert witnesses they do not define who may be one. GCR 1963, 605. However, case law has defined an expert witness as a person who is educated in the field or has practical experience in the field to aid the jury in understanding an issue relating to that field. Empire Oil & Refining Co v Hoyt, 112 F2d 356, 360 (CA 6, 1940), Pennacchio v United States, 263 F 66 (CA 2, 1920), cert den, 253 US 497; 40 S Ct 588; 64 L Ed 1031 (1920). Witnesses are especially helpful where they possess greater knowledge on a subject than would the average lay juror. Pennacchio v United States, supra at 67.
It is clear that expert testimony greatly aids the jury in determining if a substance is heroin. In fact, without it, it is doubtful that the jury could reach a sound conclusion since the typical member of a jury probably has had no experience with heroin. However, as stated in Empire Oil & Refining Co v Hoyt, supra, there are two basic types of expert witnesses, those with academic training and those with practical experience. However, even those with the necessary academic training must demonstrate that they understand the particular fact situation. E. g., Cree Coach Co v Wolverine Ins Co, 366 Mich 449; 115 NW2d 400 (1962), Accetola v Hood, 7 Mich App 83; 151 NW2d 210 (1967), Giacobazzi v Fetzer, 6 Mich App 308; 149 NW2d 222 (1967), lv den 379 Mich 770 (1969). It is possible that someone with practical experience will be more of an expert witness than one with academic training in the area. See, e.g, Rucker v Wyandotte Savings Bank, 6 Mich App 195; 148 NW2d 532 (1967).
In this regard a properly qualified heroin addict may be the most qualified expert witness. Commonwealth v Harris, 186 Pa Super 59; 140 A2d 344 (1958). However, in a case when a heroin addict is used as an expert witness it will be more necessary for him to fully develop his "reasoning” process as to why and how he determined that the substance that he purchased and used was heroin. To qualify a heroin addict as an expert it is necessary to establish the number of times that he has used heroin. Then it is necessary for him to describe his reactions to the heroin when it was used on previous occasions. Finally it is necessary for the addict to state that he purchased what he thought was heroin and that he received the same reaction from this purchase that he had received earlier. See Howard v State, supra, People v Rios, 127 Cal App 2d 620; 274 P2d 163 (1954). In this case this is what the addict, Mrs. Harris, did.
In reaching this conclusion we are in accord with the vast majority of jurisdictions that have considered this question. The only case that the defendant cites to us for the opposite proposition is easily distinguishable. In People v Kenny, 36 App Div 2d 477; 320 NYS2d 972 (1971), the complaining witness, whom the prosecution relied on to establish that the substance was marijuana, had smoked it only three times before he observed the defendant smoking it. Compare State v Lewman, — Ind App —; 303 NE2d 668 (1973). Although there is language in People v Kenny, supra, concerning the need for scientific testimony in substance abuse cases, we feel that the use of a substance three times hardly qualifies one without more to identify the substance. In the present case Mrs. Harris had used heroin hundreds of times. Accord, People v Rios, supra, State v Lewman, supra.
Since Mrs. Harris could qualify as an expert witness the trial court did not abuse its discretion in qualifying her. Defendant’s questions concerning her qualifications are matters of weight and credibility for the jury and not matters of admissibility for the trial court. People v Charles Wilson, supra. We also note with approval that the trial court specifically cautioned the jury regarding Mrs. Harris’ expert testimony.
Defendant next argues that the uncorroborated testimony of a narcotics addict is insufficient to prove defendant’s guilt beyond a reasonable doubt. Although it is better to have corroborated testimony in any case, this Court has rejected the theory that a narcotics addict inherently cannot tell the truth. People v Martin, 53 Mich App 321; 220 NW2d 186 (1974), People v Atkins, 47 Mich App 558; 209 NW2d 735 (1973), lv granted, 391 Mich 766 (1974). Since an addict’s testimony is not inherently unbelievable, it is up to the jury to determine what weight to give it in a particular case. People v Atkins, supra, at 561-562.
Defendant next argues that it was error not to introduce some of the heroin at the trial. This is based on the theory that the defendant has a right to have his own experts analyze the substance and give their opinions as to whether or not the substance is actually heroin. However, if it is not necessary to corroborate an addict’s testimony it is not necessary to produce some of the substance at the trial for the defendant’s expert. State v Lanigan, 258 Ind 279; 280 NE2d 809 (1972), accord, People v Atkins, supra.
The reason that the prosecution was unable to produce any heroin was that the entire amount was used by Mrs. Harris shortly after she acquired it. This is not a case where the prosecution’s scientific expert witness used the entire amount which prevented the defendant from producing an expert to contradict the prosecution’s expert’s findings. In this case all the heroin had been consumed before the prosecution was even begun. Even if the prosecution had desired to present some of the heroin to the court, it could not since the heroin was not existent, through no fault of the prosecution.
Defendant finally claims that he was denied a speedy trial. Defendant was arrested June 29, 1973, on a complaint dated June 23, 1973, alleging that defendant had sold Mrs. Harris heroin on January 5, 1972. At trial the complaint was amended to allege that the sale occurred on August 23, 1972. The trial was initially scheduled for October 16, 1973, but was postponed twice because of Mrs. Harris’ inability to attend court due to her pregnancy.
Although defendant objected to the adjournments of the trial date, on appeal, defendant does not claim they prejudiced him. His complaint is with the delay in arrest. However, before this Court will entertain a charge that the defendant was denied a speedy trial it is at least necessary for the defendant to show he was prejudiced by the delay. People v Rhymes, 62 Mich App 27; 233 NW2d 171 (1975). In this case the defendant makes a tentative showing of prejudice in his claim that the delay before his arrest prevented him from developing an alibi for January 5, 1972.
However, at trial the complaint was amended to make January 5, 1972, irrelevant. When the trial court offered the defense a continuance following the amendment of the complaint to explore and develop any possible alibi defenses for August 23, defense counsel turned the offer down. This eliminated any prejudice to the defendant since the defendant makes no claim that he could establish an alibi for August 23, and he does not allege any other reason that he was prejudiced by the delay.
The case is further distinguishable from People v Hernandez, 15 Mich App 141; 170 NW2d 851 (1968), since in that case the police knew of the incident for the entire period between the commission of the crime and his arrest. In the present case the record is bare of indications that the authorities knew of this sale by this defendant to Mrs. Harris much before the complaint was issued. Any delay is thus understandable since we do not permit police to arrest people before they have knowledge of a crime.
We find no error. Affirmed.
Among the more common members of the opiate group are heroin, opium and morphine. For additional members of the group see, MCLA 335.314; MSA 18.1070(14), and MCLA 335.316; MSA 18.1070(16).
United States v Atkins, 473 F2d 308 (CA 8, 1973), cert den, 412 US 931; 93 S Ct 2751; 37 L Ed 2d 160 (1973), Ewing v United States, 386 F2d 10 (CA 9, 1967), cert den, 390 US 991; 88 S Ct 1192; 19 L Ed 2d 1299 (1968), Howard v State, 496 P2d 657 (Alas, 1972), People v Rios, 127 Cal App 2d 620; 274 P2d 163 (1954), People v Robinson, 14 Ill 2d 325; 153 NE2d 65 (1958), Pettit v State, 258 Ind 409; 281 NE2d 807 (1972), Edwards v Commonwealth, 489 SW2d 23 (Ky, 1972), State v Pipkin, 101 NJ Super 598; 245 A2d 72 (1968), cert den, 393 US 1042; 89 S Ct 668; 21 L Ed 2d 590 (1969), Commonwealth v Harris, 186 Pa Super 59; 140 A2d 344 (1958), see Pennacchio v United States, 263 F 66 (CA 2, 1920), cert den, 253 US 497; 40 S Ct 588; 64 L Ed 1031 (1920), State v Dunn, 155 Mont 319; 472 P2d 288 (1970), State v Johnson, 54 Wis 2d 561; 196 NW2d 717 (1972). Contra, People v Kenny, 30 NY2d 154; 331 NYS2d 392; 282 NE2d 295 (1972). See also People v Belleville, 56 Mich App 275; 224 NW2d 61 (1974).
Aff’d in People v Kenny, 30 NY2d 154; 331 NYS2d 392; 282 NE2d 295 (1972) (a 4-3 decision). | [
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M. J. Kelly, J.
Defendant was convicted by a jury of delivery of marijuana contrary to MCLA 335.341(l)(c); MSA 18.1070(41)(l)(c). He was sentenced to serve 30 months to four years in prison, and appeals.
The charge against defendant arose from the sale of marijuana to an undercover police officer, Terry Lee Brenay, on December 28, 1972. The officer testified that he was introduced to defendant a month before and that on three prior occasions he had purchased small quantities of marijuana from defendant.
Defendant admitted that he sold marijuana to Brenay on December 28, 1972, bút denied the other three sales. Defendant also testified that he was not in the business of selling marijuana, although he grew some for personal use. He claimed that his reluctance to sell was overcome by persistent entreaties.
Defendant has made four assignments of error. Two of these alleged errors have not been properly preserved for appeal. First, defendant claims that the prosecutor failed to indorse and produce res gestae witnesses. However, this issue was not preserved for appeal as defendant did not move for a new trial in the court below as required by People v Robinson, 390 Mich 629, 634; 213 NW2d 106 (1973). Second, defendant also claims that the trial court improperly permitted the introduction of prosecutorial rebuttal witnesses. It is urged that the testimony of these witnesses belonged in the prosecution’s case-in-chief. Since no objection was made at trial and no manifest injustice appears, we decline to consider this claim.
We will address the two other allegations: that the trial court’s instruction to the jury on entrapment was erroneous; and that the defendant was deprived of a fair trial by prosecutorial misconduct during final argument.
I
In People v Turner, 390 Mich 7; 210 NW2d 336 (1973), the court rejected the subjective test and held that entrapment claims are to be weighed by the objective standard. In doing so, the Supreme Court relied on the dissenting opinion of Justice Stewart in United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973). In Turner, Justice Stewart’s opinion was quoted at length, including this definition of the objective test:
" '[W]hen the agents’ involvement in criminal activities goes beyond the mere offering of such an opportunity, and when their conduct is of a kind that could induce or instigate the commission of a crime by one not ready and willing to commit it, then — regardless of the character or propensities of the particular person induced — I think entrapment has occurred. For in that situation, the Government has engaged in the impermissible manufacturing of crime, and the federal courts should bar the prosecution in order to preserve the institutional integrity of the system of federal criminal justice.’ ” 390 Mich at 21.
Justice Stewart explained his rationale for rejecting the subjective test which focused on the defendant’s predisposition to commit the crime:
" 'Moreover, a test that makes the entrapment defense depend on whether the defendant had the requisite predisposition permits the introduction into evidence of all kinds of hearsay, suspicion, and rumor — all of which would be inadmissible in any other context— in order to prove the defendant’s predisposition. It allows the prosecution, in offering such proof, to rely on the defendant’s bad reputation or past criminal activities, including even rumored activities of which the prosecution may have insufficient evidence to obtain an indictment, and to present the agent’s suspicions as to why they chose to tempt this defendant. This sort of evidence is not only unreliable, as the hearsay rule recognizes; but it is also highly prejudicial, especially if the matter is submitted to the jury, for, despite instructions to the contrary, the jury may well consider such evidence as probative not simply of the defendant’s predisposition, but of his guilt of the offense with which he stands charged.’ ” 390 Mich at 20-21.
In the case at bar, the trial court closely followed the language of Justice Stewart in instructing the jury. Thus it is clear that the trial court correctly stated the objective test of entrapment. The serious problem, and one not raised by either party, is that the entrapment issue went to the jury at all. The trial court should have decided the entrapment issue, not the jury.
In People v Habel (On Rehearing), 53 Mich App 399; 220 NW2d 74 (1974), another panel of this Court ruled that entrapment is an issue to be determined by the trial judge, and not by the jury. The court reasoned that, although Turner, supra, did not address the question of whether the judge or jury determined entrapment, the Supreme Court in adopting the objective test in Turner was persuaded by the dissenting opinion of Justice Stewart in Russell. Therefore it was logical to conclude that our Supreme Court intended the opinion of Justice Stewart to prevail on the judge-jury issue as well. Justice Stewart said that the determination of entrapment "must be made — as it is on all questions involving the legality of law enforcement methods — by the trial judge, not the jury”. United States v Russell, 411 US 423, 441.
This case must be reversed and remanded for a new trial, with the issue of entrapment to be decided by the trial judge.
II
At trial both the prosecutor and the defense counsel were apparently confused by the Turner approach. Both addressed the question of defendant’s predisposition. Under the objective test, of course, predisposition is irrelevant. We do not condone the prosecutor’s misstatements of the law. However, we assume that such misstatements will not be repeated upon retrial, simply because the issue of entrapment will be decided by the judge, not the jury.
In considering defendant’s other allegations of improper argument, it should be noted that no objection was made to these arguments in the trial court. The proper standard of review in such cases is set forth in People v Blassingame, 59 Mich App 327, 335; 229 NW2d 438 (1975):
" 'The rule is that this Court will reverse a conviction based upon a prejudicial remark made during closing argument, only when the prejudice could not have been rectified by a curative instruction on the part of the trial judge, where the prejudicial remark was not objected to at the trial below.’ ” [Citations omitted.]
In the light of this rule, we do not believe that there was any remark made by the prosecutor below, which was so prejudicial that it could not have been cured by an instruction.
Finally, we should note that retrial will not always be required where the issue of entrapment has been improperly left to the jury, see, eg., People v Fraker, 63 Mich App 29; 233 NW2d 878 (1975), where the evidence was uncontroverted and another panel of this Court decided there was no entrapment as a matter of law. This Court decided the question instead of remanding for the trial court’s decision.
In the case at bar, however, there was conflicting testimony. Therefore we cannot determine the issue of entrapment on the record before us.
Furthermore, both the prosecutor and defense counsel argued predisposition to the jury. We can not say that the determination that defendant willingly sold marijuana to the undercover officer was not affected by the lengthy discussions of defendant’s predisposition.
Reversed and remanded for a new trial. | [
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Per Curiam.
Plaintiff, George Hensley, was permanently injured in a tragic accident. On June 20, 1971, he dove off a 7-foot high garage into a 4-foot deep swimming pool. The pool was owned by plaintiff’s brother-in-law, Glenn Smith, and was located in Smith’s backyard. Hensley sued the pool manufacturer, The Muskin Corporation, the retail seller, Federal’s, Inc., and his brother-in-law, alleging breach of various warranties and negligence, as well as a theory of strict liability.
In essence, plaintiff alleges that defendants were under a duty to warn him that he should not dive into the pool. The record reveals that plaintiff was a 28-year-old person with some swimming experience and that he helped assemble the pool and knew full well that it was only 4 feet deep. Under these circumstances we feel that the trial judge correctly granted summary judgment for all defendants. Neither the manufacturer, the seller, nor the brother-in-law were under any duty to warn this plaintiff of an obviously dangerous use of an otherwise nondangerous product. Fisher v Johnson Milk Co, 383 Mich 158; 174 NW2d 752 (1970), Colosimo v May Department Co, 466 F2d 1234 (CA 3, 1972).
Affirmed. Costs to defendants. | [
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Quinn, P. J.
Plaintiffs appeal from the grant of summary judgment in favor of defendant.
Robert E. Lewis, hereinafter plaintiff, was involved in a motorcycle accident and injured his right eye. At the time, he was insured by defendant. The policy covered "total and irrecoverable loss of sight of one eye”. The deposition of the eye specialist who treated plaintiff after the accident established that plaintiff had approximately 20 percent vision in the injured eye. On the basis of Sump v St Paul Fire & Marine Insurance Co, 21 Mich App 160; 175 NW2d 44 (1970), the trial judge granted summary judgment.
Plaintiff admits that Sump, supra, is apparently controlling but he seeks a reexamination of the Sump holding. While we are not bound by Sump, we should not disregard it unless we find legitimate reasons for doing so. We find those reasons to be:
1. There was evidence in Sump that the sight loss was either 80 or 25 percent. Here the only evidence is 80 percent sight loss.
2. Sump is contrary to the weight of authority; see 87 ALR2d 481.
3. We are not able to say that the term "sight” in the context of insuring against the "total and irrecoverable loss” thereof is so clear and unambiguous that as a matter of law it means total blindness.
We do not propose to rewrite the insurance contract nor to give a forced or strained meaning to its words that is contrary to the obvious intent of the parties. However, believing there is some lack of clarity in the term "sight” in the context noted above, interpretation of the contract is required.
In our view, the Sump court failed to apply an important principle of interpretation, namely: ascertaining that meaning of the contract which the insured would reasonably expect, Zurich Insurance Co v Rombough, 384 Mich 228, 233; 180 NW2d 775, 777 (1970).
Can a person seeking insurance coverage for loss of sight reasonably expect that the term "total and irrecoverable loss of sight” means only total blindness? Or that he is not insured if he can make out the sun on a clear day? We think not. It is reasonable for such a person to expect *that the term means loss of useful or practical sight, and we so interpret it.
Reversed and remanded with costs to plaintiffs. | [
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Lesinski, C. J.
Plaintiffs, to test the constitutionality of 1972 PA 294; MCLA 500.3101, et seq.; MSA 24.13101, et seq., ("No Fault”) brought an action for a declaratory judgment in Wayne County Circuit Court. Defendants are three state officials and various insurance companies, some of whom filed cross-complaints challenging certain provisions of the no fault act. After complicated pretrial proceedings and a lengthy trial, the court issued its judgment. The holdings of the trial court in the declaratory judgment that was entered below are as follows:
"NOW, THEREFORE, IT HEREBY IS ORDERED, ADJUDGED AND DECLARED that the following are the rights and legal relationships of the interested parties herein:
"A. Insofar as raised by the issues delineated in the Court’s Pretrial Statement and by those permitted to be raised during the course of trial, The Act, including Section 3109a thereof, does not violate any provision of the United States and Michigan Constitutions except as hereinafter specifically declared.
"B. Section 3101(2) of The Act, to the extent that it excludes from The Act vehicles which have two wheels or less violates the Equal Protection Claqses of the United States and Michigan Constitutions and, therefore, is declared to be void and of no force and effect.
"C. That portion of Section 3107(b) of The Act, insofar as it requires that the cost of replacement services be incurred and subsequently be reimbursed, is void and of no force and effect as violative of the Equal Protection Clauses of the United States and Michigan Constitutions. The cost of such replacement services must be paid, therefore, in the same manner as other personal protection insurance benefits are paid.
"D. The last sentence of Section 3109(3) of The Act, empowering the Commissioner of Insurance to approve deductible provisions in excess of $300.00 per accident for inclusion in insurance policies issued under The Act, violates Article III, Section 2 of the Michigan Constitution of 1963 as a delegation of legislative power without any standards whatever and, therefore, such sentence is void and of no force or effect.
"E. Section 3109(1) of The Act violates the Equal Protection Clauses of the United States and Michigan Constitutions and, therefore, is void and of no force and effect.
"F. Notwithstanding the provisions of Section 3135 of The Act, non-resident owners and occupants of a motor vehicle not registered in this State retain all tort rights of action possessed by them under Michigan law without regard to The Act unless such motor vehicle has been operated in this State for an aggregate of more than 30 days in any calendar year or unless such owners or occupants are entitled to personal injury protection benefits provided by an insurance policy or other security providing such benefits under The Act.
"G. Property protection insurance required by The Act violates the Due Process and Equal Protection Clauses of the United States and Michigan Constitutions and, therefore, Sections 3121, 3123, 3125 and 3127 are void and of no force and effect in their entirety and, in addition, all other references to property protection insurance contained in Sections 3101(1), 3145(2), 3148(1) and (2) and 3163(1) and (3), hereby are declared to be legally ineffectual. Such property protection insurance, therefore, shall not be deemed to be security required by Sections 3101(3) and (4) or 3135(2) of The Act and, consequently, tort liability for property damage is not abolished by Section 3135(2) of The Act. As a further consequence, the residual liability insurance coverage required by Section 3131 of The Act includes property damage liability.
"H. Section 3116 of The Act is construed to require subtraction from personal protection insurance benefits paid or payable under The Act only when like benefits have been recovered upon tort claims.
“I. Cross-Plaintiff State Farm’s proposed interpretation of Section 3135, first submitted in its Motion for Partial Summary Judgment, and thereafter included as an issue for determination at the conclusion of this case, be and the same hereby is rejected and its Motion is denied.
"IT IS ORDERED, ADJUDGED AND DECLARED, further, that the provisions of The Act declared to be unconstitutional in the foregoing paragraphs are sever-able; that all such provisions are declared to be unconstitutional as of October 1, 1973 (the effective date of The Act); and that the balance of The Act is consonant with the original legislative intent.”
Plaintiffs filed a motion for a new trial and for a partial rehearing. This motion was denied. The state officials and some of the insurance companies appealed. Plaintiffs and other insurance companies cross-appealed.
Defendants argued before the trial court that plaintiffs’ action raised certain issues that were not properly before the court and that a ruling on these issues would be an advisory opinion.
The trial court viewed the question as one of standing. It found that the no fault act "has required and continues to require the expenditure of state funds”, and therefore concluded that GCR 1963, 201.2(3) authorized plaintiffs to raise all possible infirmities in the Act. GCR 1963, 201.2(3) deals with real parties in interest and states:
"[A]n action to prevent the illegal expenditure of state funds or to test the constitutionality of a statute relating thereto may be brought in the name of a domestic non-profit corporation organized for civic, protective, or improvement purposes, or in the names of at least 5 residents of this state who own property assessed for direct taxation by the county wherein they reside.”
We disagree with the trial court’s ruling that the court rule provides a basis for plaintiffs’ suit. Plaintiffs are not concerned with the illegal expenditure of state funds. The court rule allows taxpayers aggrieved by the outlay of state funds to hurdle the traditional standing obstacle in taxpayers suits. We do not read it as permitting a group to challenge any legislation merely because of an incidental expenditure of state funds; almost all legislation involves some public spending. GCR 1963, 201.2(3) is inapplicable to this litigation.
We must determine whether GCR 1963, 521, Declaratory Judgments, authorized plaintiffs’ action. Even though the court rule was intended to provide "the broadest type of declaratory judgment procedure”, GCR 1963, 521, Official Committee Comment, the first subsection of the rule requires that there be "a case of actual controversy” before a court may issue a declaratory judgment. GCR 1963, 521.1, Kuhn v East Detroit, 50 Mich App 502; 213 NW2d 599 (1973), Welfare Employees Union v Civil Service Comm, 28 Mich App 343; 184 NW2d 247 (1970). A person seeking a declaratory judgment must show that the issues he raises have more than hypothetical importance to him. "It is familiar law that a party to whom a statute is inapplicable cannot question its constitutionality by seeking a declaration of rights.” 1 Anderson, Declaratory Judgments, § 159, p 303. Plaintiffs have made no showing that the provisions of the no fault act dealt with in paragraphs C, D, E, F, and H of the court’s judgment have or are likely' to work to their disadvantage. A decision on the issues decided in those paragraphs was not "necessary to guide plaintiffs’ future conduct in order to preserve [their] legal rights”. Welfare Employees Union v Civil Service Comm, supra, 28 Mich App at 350. It was, therefore, inappropriate for the trial court to include paragraphs C, D, E, F, and H in its judgment. "It is not properly within our function to hypothesize particularized claims or to set up, speculatively, strawmen classes of persons who might claim to be disadvantaged in various ways by the classifications and provisions of the act.” Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 484; 208 NW2d 469 (1973), (concurring opinion of Justice Levin).
We do think, however, that because of the possibility of punishment by fine or imprisonment for non-compliance with the no fault act’s security requirements, plaintiffs’ action for a declaratory judgment on the issues found in paragraphs A and G of the court’s judgment was appropriate. Strager v Wayne Prosecuting Attorney, 10 Mich App 166; 159 NW2d 175 (1968).
Plaintiffs also challenged the Legislature’s decision not to include motorcycles in the no fault act’s compulsory insurance requirements. Paragraph B of the judgment contains the trial court’s, ruling on this challenge. It was proper for the trial court to consider plaintiffs’ claim that the act’s compulsory insurance requirements, since they did not extend to all types of motor vehicles, were invalid on equal protection grounds. Arguments going to the act’s failure to extend no fault benefits to motorcyclists or someone injured by a motorcycle, however, should not have been heard. This sort of underinclusiveness claim, to be adequately considered, deserves the presentation only a member of the excluded class could make. Our review of Paragraph B will be limited to the argument properly before the trial court.
Paragraph I resolved a question of construction that was directly related to the issues in Paragraphs A and G, and the trial court appropriately ruled on this question.
Turning to the substance of plaintiffs’ challenge, we must first decide whether the trial court utilized the correct standard of constitutional review. Plaintiffs claim that the trial court’s application of traditional tests of due process and equal protection was error, and that the court should have subjected the act to "strict scrutiny” since the fundamental right to travel was involved. We find no infringement of plaintiffs’ fundamental rights, and therefore agree with the trial court’s refusal to employ a strict scrutiny test. Our recognizing that the automobile is a basic means of transportation today does not force us to conclude that legislation affecting automobile ownership and use constitutes an infringement upon the constitutional right to travel. Recent right to travel cases, which have dealt with statutes or regulations that penalized interstate migration, e.g., Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969), Dunn v Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1972), provide no basis to doubt that "[t]he use of the automobile as an instrument of transportation is peculiarly the subject of regulation”. Silver v Silver, 280 US 117, 122; 50 S Ct 57, 58; 74 L Ed 221, 225 (1929). We are unwilling to extend the right to travel to include mere locomotion and thus severely limit legislative ability to respond to the many hazards present-day automobile operation presents. Rather than "strict scrutiny”, the more permissive traditional tests of due process and equal protection should apply to this legislation.
I. Personal Protection Insurance
The no fault act requires that all motor vehicles registered in Michigan carry personal protection insurance. Benefits, payable to an insured without regard to fault, cover medical expenses, wage losses and cost of replacement services that result from an automobile accident. Medical expenses include prosthetic devices and rehabilitation costs, wage reimbursement is limited to $1,000 a month for three years, and replacement services have a limit of $20 a day for three years. If death results, survivors may recover, in addition to $1,000 funeral and burial expenses, the amounts the deceased would have contributed to them, subject to a three-year $1,000 a month limit.
In providing for this rather extensive coverage, the no fault act abolishes most common law tort liability for automobile related personal injuries. Only if there is death, serious impairment of body function or permanent serious disfigurement can there be a recovery for non-economic losses resulting from the ownership, maintenance or use of an automobile. Economic loss that is in excess of the benefits recoverable under personal protection insurance may also be recoverable in a tort suit. Tort liability for intentionally caused harm remains.
The no fault act’s provisions on compensation for accident victims serves the important social interest of lessening the tragic social and economic consequences that often accompany automobile mishaps. The route taken by the Legislature to achieve this permissible end, the institution of compulsory "no fault” insurance and the partial abolition of tort remedies, is not an unreasonable one. The trial court found that problems for both society and injured individuals existed with reparations for personal injuries under the, tort system.
Common law remedies are not sacrosanct, New York Central R Co v White, 243 US 188; 37 S Ct 247; 61 L Ed 667 (1917), Mackin v Detroit-Timkin Axle Co, 187 Mich 8; 153 NW 49 (1915), Const 1963, Art 3, § 7, and their replacement by other means of redress is within the Legislature’s prerogative. Plaintiffs have not shown that the no fault act’s provisions for replacing tort liability for personal injury with recovery under compulsory first-party insurance violates due process.
Plaintiffs also argue vigorously that equal protection prohibits the difference in treatment the no fault act accords automobile accident victims and automobile tortfeasors. We disagree and find no invidious discrimination in the distinction made between automobile accidents and other instances of injury. There is certainly evidence that automobile accidents, by their frequency and severity, present a social evil unique at least by degree. "Courts should proceed cautiously and should defer to legislative judgments which are reasonable. The Legislature must be free to experiment without being required to attain 'mathematical nicety’ in its formulation of remedies to social and economic problems.” Manistee Bank & Trust Co v McGowan, 394 Mich 655, 680; 232 NW2d 636 (1975).
The trial court did find that the no fault act, in excluding motorcycles, violated equal protection. Finding that motorcycles have consistently been classified as motor vehicles in this state and that their exclusion from the act did not have a reasonable relationship to the act’s purpose, the trial court ruled that their exclusion lacked constitutional justification. The court accepted that cost was the main reason for not including motorcycles, but was unpersuaded that cost of coverage could justify the alleged under-inclusiveness of the act. We disagree. In reform legislation, the Legislature has wide latitude and may consider many variables in fashioning a solution. Manistee Bank & Trust Co v McGowan, supra. In the recent case of Geduldig v Aiello, 417 US 484; 94 S Ct 2485; 41 L Ed 2d 256 (1974), the United States Supreme Court reviewed the exclusion of pregnancy-related disabilities in California’s disability insurance coverage. The cost to contributing employees was given significant weight by the Court in upholding the Legislature’s decision. In Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510; 104 NW2d 182 (1960), the Michigan Supreme Court upheld limitations on workman’s compensation benefits allowable for death resulting from silicosis. "The legislative scheme as exemplified in the silicosis amendments included both monthly gradations and overall maximum limitations on benefits designed to lessen the economic impact on industry of accumulated exposure.” 360 Mich at 523 (Emphasis added).
We refuse to consider irrational the Legislature’s decision not to require no fault coverage for motorcycles because of the cost of insurance for those vehicles. In our delicate task of constitutional review we should not deprive the Legislature of its ability to consider the economic aspects when deciding how far to extend its reform. Danridge v Williams, 397 US 471; 90 S Ct 1153; 25 L Ed 2d 491 (1970).
II. Property Protection Insurance
The no fault act requires that automobile owners purchase property protection insurance. Like personal protection insurance, the required property insurance pays benefits without regard to fault. Property protection insurance, however, provides strictly third-party coverage. Even that coverage does not apply to vehicles and their contents unless the vehicle is properly parked at the time of the accident. The required property insurance provides coverage, up to $1,000,000, for damage to non-vehicular property of third parties and properly parked vehicles of third parties. All that remains of tort liability for property damage arising from the ownership, maintenance or use of an automobile is liability for intentionally caused harm.
Plaintiffs and cross-plaintiffs State Farm and Allstate attacked the property damage provisions on due process and equal protection grounds. The trial court found that the tort system did not present the same severe social problems, namely, inefficient and inequitable compensation, for property damage, that it did for personal injuries. In fact, the court, finding no evil to be eliminated by altering the scheme for property damage reparations, stated that "the challenged sections ad dressed no legitimate governmental interests”. This led the court to conclude that the act’s property damage provisions were invalid. Our analysis, though it has a different emphasis, leads us to the same conclusion.
Even under the minimum scrutiny test applied when innovative legislation is challenged on equal protection grounds, the legislation must be examined to see if its classifications are reasonable, and bear some reasonable relationship to the object of the legislation. While it is not the judiciary’s task to second-guess legislative wisdom or to speculate on the possibility of more precise line-drawing by the Legislature, the decision on reasonableness cannot be avoided. "What is reasonable is in each instance a matter of judgment. In the final analysis, it is a value judgment and should be recognized as such.” Manistee Bank & Trust Co v McGowan, supra, at 671.
Our judgment is that the distinction between moving vehicles and other types of property found in the no fault act’s property damage provisions is an unreasonable one. The act is an attempt to assure prompt and adequate compensation for economic losses due to automobile accidents. To achieve this purpose, recovery for losses due to personal injury is had without regard to the negligence or "fault” of the injured party. Persons suffering certain types of property losses are reimbursed, under the act, without inquiry as to whether negligence caused their loss. Yet the act provides no means for compensating the owner of a vehicle damaged while it was being operated.
One reason advanced for the disparate treatment of certain property losses is that in accidents involving these two types of property, the moving vehicle is most often at fault; non-vehicular prop erty seldom causes damage to vehicles. But we fail to see how this observation serves as a basis of distinction when the aims of the act are considered. Reich v State Highway Dept, 386 Mich 617; 194 NW2d 700 (1972). It is also argued that the act, by excluding moving vehicles from the property protection coverage, places the burden of protecting the vehicle on the owner, who may still purchase optional collision insurance, and this provides a reasonable basis to set apart moving vehicles. But, we ask, why limit this burden to only vehicle owners, or why place the burden of protecting a parked car on someone other than its owner? If the answer is that non-vehicular property or parked cars seldom are at fault, we are again at an impasse.
Good reason can be offered, in light of the act’s objective, for treating personal injury losses differently than property losses. The tort system operated at different levels of efficiency and adequacy of compensation for these types of claims. A valid distinction could also be made based upon the different burdens these types of losses placed on society and the individuals involved. But we fail to see any reasonable basis, in view of the act’s purposes, that justifies the property damage classifications made by the act. We therefore hold that the property damage provisions are violative of equal protection.
In addressing plaintiffs’ due process claims, we again turn to the legislative purpose. The legislative purpose, it appears, is to provide timely and adequate relief, at the lowest cost to the system and the individual, for economic losses arising out of motor vehicle mishaps. This purpose, as we have noted, is a permissible legislative goal. However, the means used to implement this purpose in the property sections of the act are arbitrary and do not bear a reasonable relation to the legislative object. Grocers Dairy Co v Dept of Agriculture Director, 377 Mich 71; 138 NW2d 767 (1966). Under the enactment, adequate and timely compensation for damage to the owner’s vehicle will result only if the owner exercises his option to purchase insurance for his own vehicle. This option, by reducing the opportunities for compensation for damage to the owner’s vehicle, is an insufficient and arbitrary substitute for the prior tort system, which was found by the trial judge to be both accurate and timely. This is not to say that a substitute means of compensation is mandatory in all legislative alterations of the common law. We hold that to abolish an existing common law scheme in favor of a statutory scheme that does not achieve the legislative purpose is arbitrary and unreasonable. The traditional tort remedy at least provided compensation for vehicle owners who could prove another’s negligence, and there was, in addition, the option for self-insurance; under the act only the option for self-insurance remains. The legislative purpose of adequate and timely relief is not served by elimination of the tort system for owners’ property claims.
The property protection provisions of the no fault act that we have held invalid are severable. The scheme for personal injury protection, which we uphold, can function independently, and under MCLA 8.5; MSA 2.216, we must find the invalid portion severable, rather than invalidate the entire act.
Paragraphs A, G and I of the Declaratory Judgment are affirmed; Paragraph B, insofar as it deals with a justicable issue, is reversed, and the remaining paragraphs are vacated. We award no costs, a public question being involved.
Quinn, J., concurred.
MCLA 600.2041(3); MSA 27A.2041(3) is identical.
" 'Motor vehicle’ as used in this chapter means a vehicle, including a trailer, operated or designed for operation upon a public highway by power other than muscular power which has more than 2 wheels.” MCLA 500.3101(2); MSA 24.13101(2).
The optional collision insurance actually preserves fault analysis for those who wish to pay for it. The insurance available is on two forms: broad coverage and limited coverage. Broad coverage pays for all property damage to the vehicle in an accident in which the insured was not at fault. In cases in which the insured was at fault, there is a $100 deductible. Limited collision provides for payment of all damages to the car, less a $100 deductible, if the insured was not at fault and no payment if the insured was at fault. The effect of the statute, then, is to eliminate access to the tort system as a right and to substitute an option to purchase insurance that, in part, preserves traditional notions of fault. This substitution does not seem reasonable to us, for it does not advance the Legislature’s purpose.
In the flux of events, the Legislature may determine that society is served by the elimination of legal recognition of a formerly protected interest. In Bean v McFarland, 280 Mich 19; 273 NW 332 (1937), the Court summarily upheld the legislative abolition of the tort of criminal conversation.
Since we are certain that the Legislature did not intend to deny legal recognition to the economic interest one has in his automobile, the abolition of a means of protecting this interest must be considered unreasonable. The lack of a substitute scheme for compensation prevents us from making an analogy to workmen’s compensation. | [
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] |
D. E. Holbrook, J.
On April 3, 1972 plaintiff filed a complaint alleging that on August 26, 1971 he had entered into an oral agreement with defendant Warren Metals : " * * * to perform certain work, labor and services for it and in consideration of the performance of said work, labor and services by plaintiff, said defendant agreed to pay to plaintiff the reasonable value of said work, labor and services”. The complaint alleged that defendant owed plaintiff $12,000 for work performed during a period of 30 weeks. Plaintiff based the four counts in his complaint on theories of quantum meruit, oral contract, implied contract and mechanics’ lien. Pretrial procedures which included the taking of depositions and substitution of defendant’s counsel took more than two years. Trial was set for October 30, 1974. The proceedings on that date opened with defendant’s attorney making a motion to dismiss. He based this motion on MCLA 338.1516; MSA 18.86(116). That statute provides for certain penalties in the case of persons acting as residential builders who do so without the proper license. The statute then provides that, in order for a residential builder to sue in the courts of Michigan, he must be licensed. Because defendant was relying on this statute, plaintiffs attorney characterized defendant’s motion as a motion for accelerated judgment. This, plaintiff argues, was due to the fact that the motion was essentially an attack upon plaintiff’s capacity to sue. Plaintiffs counsel then argued that the defense should have raised their motion for accelerated judgment by the first responsive pleading. Defendant’s attorney then amended his motion, making it a request for summary judgment for failure to state a claim upon which relief can be granted pursuant to GCR 1963, 117.2(1). This he could do since the rule states that a motion for summary judgment can be made "at any time”. Then defense counsel argued that MCLA 338.1516, supra, requires that a builder allege and prove the existence of a license before he can bring an action; since plaintiff failed to do so his complaint did not state a cause of action upon which relief could be granted. The trial court granted the motion for summary judgment. The motion was reheard on December 9, 1974. At this time plaintiff again characterized defendant’s prior motion as an attack upon plaintiff’s capacity to sue. Plaintiff argued that this actually made defendant’s motion one for accelerated judgment which should have been denied as untimely. Plaintiff also argued that he was not a "residential builder” as defined by the statute. The trial court refused to set aside the summary judgment and plaintiff appeals.
We deal first with plaintiff’s contention that defendant’s motion for summary judgment was essentially an attack upon plaintiff’s capacity to sue. The statute in question, MCLA 338.1516, supra, provides for penalties in the case of persons who, unlicensed, engage in the business of being residential builders. The statute then provides:
"No person engaged in the business or acting in the capacity of a residential builder and/or residential maintenance and alteration contractor may bring or maintain any action in any court of this state for the collection of compensation for the performance of any act or contract for which a license is required by this act without alleging and proving that he was duly licensed under this act at all times during the performance of such act or contract.”
The statute plainly denies to unlicensed residential builders the capacity to sue. If this were all the statute did, then plaintiff’s contention would be correct; but the statute does more. It imposes upon the plaintiff the duty to plead and prove the existence of a license. In thus providing, the statute adds an element to a cause of action brought in our courts by a residential builder/plaintiff. Without alleging this element, the complaint of a residential builder/plaintiff fails to state a cause of action upon which relief can be granted. In such a case a summary judgment under GCR 1963, 117.2(1) would be properly granted.
Plaintiff’s complaint did not allege the existence of a license. Therefore, if plaintiff was a residential builder, the summary judgment was properly granted. Plaintiff claims that he was not a residen tial builder and was therefore not subject to the licensing requirement.
MCLA 338.1502(b); MSA 18.86(102)(b) defines a residential builder as:
" 'Residential builder’ means any person engaged in the construction of residential structures or a combination of residential and commercial structures who, for a fixed sum, price, fee, percentage, valuable consideration or other compensation, other than wages, undertakes with another or offers to undertake or purports to have the capacity to undertake with another for the erection, construction, replacement, repair, alteration or any addition to, subtraction from, improvement, movement of, wrecking of or demolition of, a residential structure or combination of residential and commercial structure, or any person who manufactures, assembles, constructs, deals in, distributes residential or combination residential and commercial structures which are prefabricated, preassembled, precut, packaged or shell housing, or any person who erects a residential structure or combination of residential and commercial structure except for his own use and occupancy on his own property.” (Emphasis supplied.)
It is undisputed that the nature of the services allegedly performed by plaintiff are within the meaning of the statute. What is crucial is the nature of the compensation to be paid plaintiff. If the compensation were "other than wages” it would appear that plaintiff was indeed a residential builder and should have been licensed.
The trial judge ruled that plaintiff was indeed a residential builder and granted defendant’s motion for summary judgment. In so doing, the court was bound to consider only the pleadings. GCR 1963, 117.3, Drouillard v Roseville, 9 Mich App 239; 156 NW2d 628 (1967), Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974). The motion for summary judgment should have been granted only if it appeared on the face of the complaint that plaintiff could not recover. Major v Schmidt Trucking Co, 15 Mich App 75; 166 NW2d 517 (1968), Johnston’s Administrator v United Airlines, 23 Mich App 279; 178 NW2d 536 (1970). The test to be applied in such a case is whether the plaintiffs claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right of recovery. Crowther v Ross Chemical & Mfg Co, 42 Mich App 426; 202 NW2d 577 (1972). That is, the complaint must show the actual existence of all the facts necessary for a complete defense. Brooks v Fields, 375 Mich 667; 135 NW2d 346 (1965).
Summary judgment was properly granted in this case only if the trial judge could find, from the complaint, that plaintiff was a residential builder. To do so, the trial judge would have had to find that plaintiff was working for compensation "other than wages”. We hold that such a finding is not warranted by the facts as pled. Allegations that plaintiff is owed the sum of $12,000 for 30 weeks’ work are as consistent with a theory of payment by wages as they are with the theory of payment "other than wages”. The $12,000 amount could very well have been arrived at by terms of a contract allowing for hourly, daily, or weekly rates of pay. The terms of such a contract and the question of its very existence are factual matters which are in dispute.
Reversed and remanded for proceedings not inconsistent with this opinion. Costs to plaintiff.
There is no indication that Union Investment Company ever took any active part in this litigation. | [
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] |
T. M. Burns, J.
This negligence action was instituted by Stanley Philip Jarecki against defendants Ford Motor Company and Richard A. Austin, Secretary of State, jointly and severally. The suit arose as a result of an automobile-pedestrian accident which took place on March 25, 1971, at about the hour of midnight on Eight Mile Road at or near Anglin Street in the city of Detroit. The plaintiff, Stanley Jarecki, then a pedestrian, was struck by a motor vehicle, said vehicle continuing on its way after the accident without stopping. The accident occurred in the westbound lanes of Eight Mile Road at the location indicated.
Livonia Police Officer Daniel Wilcox investigated the accident and over the objection of counsel for defendant Ford Motor Company, testified at trial that a witness, Angelo Ramaci, had indicated that the car involved in the accident was a full-sized Ford bearing a 1970 Michigan license number JZJ 411.
Sergeant Carl Larsen of the Livonia Police Department testified that after he learned of the ownership of the vehicle in question through a teletype from the Secretary of State, he contacted Ford Motor Company in April of 1971 to check upon possession of the vehicle with the aforementioned license number. Larsen indicated that a Mr. Echlin of Ford Motor Company informed him that the vehicle in question had been sold a month before the accident. It was later discovered that this information was erroneous and that the vehicle, a Thunderbird, had not been sold, but rather had been leased by the Ford Motor Company to a Lewis Charles Veraldi. After leasing the car, Veraldi turned over complete possession and control to a close friend, Frank Zoline. The possession of the vehicle by Zoline was not in issue.
Angelo Ramaci, who was driving in a westerly direction on Eight Mile Road and was behind the impact when it occurred, was plaintiffs’ major witness. He testified that after the accident he followed the car involved for a considerable distance and when it did not stop, he wrote down the license number on an owner’s manual which he had in his 1966 Cadillac. He also testified that the vehicle which hit the plaintiff contained two white males between the ages of 35 and 45. A manual from a 1966 Cadillac, purporting to be the same manual upon which Ramaci recorded the license number on the night of the accident, was produced at trial and introduced into evidence over the objection of counsel for defendant Ford Motor Company. Written in pencil on the front cover of the manual was the six-digit license number JZJ 411.
Whether the manual was the original manual and whether or not the handwriting thereon was that of witness Ramaci was in issue at trial. Ramaci testified that he could not identify the color (and thus the year) of the plate nor could he tell the state of origin of the plate. A stipulation was entered into at trial to the effect that at the time of this accident, twenty states were using the three letter and three digit license numbering system.
The accident occurred during a period of time in which license plates could have been either one year or the other. The person owning the 1971 license plate with the number JZJ 411 was Tony Julio, a 70-year old white male who was added to the case as a defendant about six or seven months before trial. Julio testified that he was not involved in the accident because he had been home in bed at that time. Frank Zoline, the 42-year old white male driver of the Ford-owned vehicle denied any involvement in the accident but admitted that he could not remember his exact whereabouts on the evening in question.
Trial began in Wayne County Circuit Court on October 31, 1973, and continued through November 8, 1973. On that date, the jury returned a verdict in favor of plaintiff Stanley Jarecki in the amount of $234,000 and in favor of plaintiff Marie Jarecki in the amount of $17,000 against the Ford Motor Company only. The jury returned a verdict of no cause of action against defendant Secretary of State. Earlier the trial court had granted defendant Julio’s motion for a directed verdict while denying similar motions made by the Ford Motor Company and the Secretary of State.
Judgment on the verdict was entered on December 3, 1973. On February 8, 1974, the trial court denied defendant Ford Motor Company’s motion for a new trial as to plaintiff Stanley Jarecki, but ordered that a new trial be granted as to plaintiff Marie Jarecki when plaintiff stipulated to same. Counsel for defendant Ford Motor Company objected as to the granting of a new trial on the Marie Jarecki case only. Orders conforming to the above rulings were entered on March 29, 1974. On May 10, 1974, an amended order denying defendant Ford Motor Company’s motion for a new trial as to Stanley Jarecki and granting a new trial as to Marie Jarecki was entered. This appeal followed.
Defendant Ford Motor Company first claims that it was reversible error for the trial court to permit plaintiffs’ counsel to refer to the fact that Ford Motor Company gave erroneous information to the police officer investigating this hit-and-run accident. On the other hand, plaintiffs argue that such statements were highly relevant to the issues involved in this case.
Where relevancy is in issue, the question we must decide is whether the evidence is sufficiently probative of a fact in issue to offset the prejudice that the evidence produces. A party may properly argue and introduce evidence relating to the opposing parties’ attempts to suppress evidence or otherwise avoid the fair adjudication of a dispute. 31A CJS, Evidence, § 179, p 456, Long v Earle, 277 Mich 505; 269 NW 577 (1936). In the case at bar, as to the question of whether it was permissible for the plaintiffs to show that Ford Motor Company attempted to avoid the fair adjudication of a claim concerning a car owned by them by giving the police erroneous information, the trial court found that the evidence was probative of an issue in dispute and, therefore, admissible. The relevancy of proffered evidence is within the sound discretion of the trial court, and that discretion will not be disturbed on appeal unless a clear abuse has been shown. Wilhelm v The Detroit Edison Co, 56 Mich App 116, 143-144; 224 NW2d 289 (1974), Kujawski v Cohen, 56 Mich App 533, 540; 224 NW2d 908 (1974). We find no abuse by the trial court in admitting this evidence.
Next defendant maintains that it was reversible error for the trial court to deny its motion for a mistrial.
In his opening statement, plaintiffs’ counsel indicated to the jury that the liability of the Secretary of State was limited to $10,000, as that liability related to plaintiff Stanley Jarecki. The trial court charged the jury that if they found against the Secretary of State, their joint award for both Mr. and Mrs. Jarecki could not exceed $20,000. Defendant now claims that it was error to mention the Secretary of State’s limitation of liability and that accordingly its motion for mistrial should have been granted. We disagree.
In Raffin v O’Leary, 34 Mich App 398, 401; 191 NW2d 481 (1971), lv den 385 Mich 789 (1971), the Court said:
"We recognize that reference to the fund, where the Secretary of State has been joined or added or has intervened, is without prejudice since the jury is aware of the fund by the presence of the Secretary.”
If it is not error to refer to the fund where, as here, the Secretary of State has been joined as a defendant, we fail to see how it could be considered error to mention the limited liability of the fund where the applicable statute expressly states what the maximum liability of the Secretary shall be in cases of death or injury. MCLA 257.1123; MSA 9.2823. In our opinion plaintiffs’ counsel in his opening statement and the trial court in its charge to the jury have only accurately stated the law concerning the liability of the fund as expressed in the statute. We find this to be permissible and hence we conclude that the trial court did not err in denying defendant’s motion for a mistrial.
Defendant next assigns error to the denial of its motion for directed verdict. This contention rests upon the theory that the only evidence linking the defendant to the hit-and-run vehicle was the hearsay testimony of the investigating officer. Defendant’s objection to the introduction of this testimony was overruled by the trial court. Defendant now asserts that as this testimony was the only evidence linking it with the vehicle, and as the evidence was inadmissible and never supported by subsequent testimony, that there was not sufficient evidence to go to the jury. We disagree.
Wilcox’s testimony relating the statements of Ramaci made during the accident investigation was hearsay, and the trial court erred in overruling defendant’s objection. This, however, was not reversible error. A question is properly left for the jury’s determination if reasonable minds can differ as to its resolution. Becker v Pension Fund, 59 Mich App 684, 691; 229 NW2d 888 (1975).
Completely disregarding Wilcox’s testimony, there yet existed a question of fact concerning defendant’s ownership of the vehicle and evidence was offered upon which reasonable minds could differ. Ramaci himself testified at the trial that the license plate on the vehicle was JZJ 411, but he was at that time unable to remember the state or year of the license plate or the make of the automobile. Considering the year and state in which the accident occurred and the fact that the license plate number testified to by Ramaci corresponds with the Michigan license plate numbering system, the jury may well have concluded that the license plate seen by Ramaci was a 1970 Michigan license plate.
The argument that the degree of certainty of defendant’s ownership of the hit-and-run vehicle based on the evidence was the same as that of Mr. Julio’s ownership and that, therefore, defendant should have been granted a directed verdict as was Julio is not supported by the facts. The two descriptions of the hit-and-run driver and the fact that Mr. Julio was at home at the time of the accident clearly eliminates any question of his guilt. There is no such evidence to remove the possessor of defendant’s vehicle from the scene of the accident. The testimony with respect to the age of the driver of the car would eliminate Julio from consideration as the driver, but would clearly suggest that Veraldi or Zoline could have been the driver.
Considering the totality of circumstances surrounding the accident and defendant’s erroneous and misleading statements concerning its ownership of the suspect automobile, we conclude that there were sufficient facts upon which reasonable minds could differ on the question of defendant’s ownership of the hit-and-run vehicle. We hold that the trial court was not in error in denying defendant’s motion for directed verdict.
The remaining issues raised by the defendant relating to the trial court’s cautioning of the witness Ramaci and the granting of a new trial for one plaintiff only do not warrant extensive discussion.
The vacillation and uncooperative attitude of Ramaci while testifying was cause for comment by the trial court and did not constitute reversible error. The decision to grant a new trial with respect to Mrs. Jarecki was within the discretion of the trial court and no abuse of such discretion is found. GCR 1963, 527.1.
Affirmed.
Lesinski, C. J., concurred.
On the date of the accident in question, claims against the Motor Vehicle Accident Claims Fund were limited to $10,000. MCLA 257.1123; MSA 9.2823. | [
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] |
M. J. Kelly, J.
Plaintiffs, residents of Green Oak Township, brought this action alleging that they were denied various constitutional rights as a result of the formation and operation of the Southeast Livingston Sewage Disposal and Water Supply Authority. Defendants’ motion for summary judgment of dismissal was granted by the trial judge and plaintiffs appeal of right. We affirm.
Plaintiffs’ first assignment of error is that, under MCLA 124.288; MSA 5.2769(58), the requirements for a petition for referendum upon the execution of a contract with the Authority are unreasonably restrictive and violate plaintiffs’ constitutional rights. Plaintiffs allege that the requirement of obtaining the signatures of ten percent of the electors within 30 days following the publication of notice is unreasonable and unduly restrictive, denying plaintiffs their constitutional rights. However, plaintiffs fail to indicate in what way the requirement is unreasonable. Merely stating a position is insufficient to bring an issue before this Court for appellate review. McKinstrie v Henry Ford Hospital, 55 Mich App 659, 662; 223 NW2d 114, 116 (1974).
Plaintiffs have not alleged in their complaint or in their briefs that they have attempted to comply with the statutory requirements for a referendum. Hence, plaintiffs have failed to establish any prejudice, their claim of prejudice is speculative and they have no standing to raise this issue. The issue appears to have been prematurely raised in the trial court because the record fails to establish that the Authority or the constituent municipalities have yet attempted to enter into such a contract.
Next the plaintiffs argue that the trial court committed reversible error in determining that no issue of material fact exists as to the possible pledging of the townships’ full faith and credit in support of the Authority’s future obligations. Once again this issue was prematurely raised. It is true that MCLA 124.287; MSA 5.2769(57) authorizes the pledge of a constituent municipality’s full faith and credit to secure the obligations of the Authority. However, plaintiffs have not shown the existence of any obligation or pledge in support thereof. Therefore, there has been no attempt to pledge full faith and credit for any financial obligation. The trial court did not err in granting summary judgment on this issue.
Plaintiffs next argue that MCLA 124.282; MSA 5.2769(52) requires that the municipalities forming a sewage disposal and water supply authority be contiguous. A reading of the statute reveals that there are no geographical requirements imposed upon municipalities attempting to form an authority. Where statutory language creates no doubt as to what is intended, a court should not attempt to interpret or construe the statute in some other fashion. See Dussia v Monroe County Employees Retirement System, 386 Mich 244, 248-249; 191 NW2d 307, 309-310 (1971). Plaintiffs’ assertion that the statute is ambiguous is inaccurate in our opinion.
Finally, plaintiffs argue that noncompliance with the Authority’s articles of incorporation with respect to the selection of officers, constituted a deprivation of procedural due process and equal protection of law to plaintiffs. They say that according to the articles of incorporation and the pertinent law, officers for the Authority were not to be selected and installed until the Authority’s charter was effective, contrary to what actually occurred. The defendants, on the other hand, argue that the provision cited by plaintiffs is merely directory, setting an outer limit with which defendants complied. The pertinent provision of Article VII is as follows:
"Members of the first Board shall be so appointed within seveq days after these articles become effective”.
The same article contains the following provision:
"Failure to hold meetings or appoint or select trustees or officers as herein provided shall not render invalid any action taken by the Board or its officers. No appointment of any commissioner or election of any officer, and no action taken at any meeting shall be invalid because it did not occur within or at the time specified in these Articles.”
MCLA 124.282; MSA 5.2769(52) expressly provides that the validity of the incorporation is conclusively presumed in the absence of a chai lenge within 60 days after the filing of certified copies of the articles of incorporation with the Secretary of State and the county clerk. Plaintiffs have not alleged in their complaint that they have complied with this statutory requirement. A direct attack on the validity of the incorporation is not presented. Plaintiffs failed to state a claim upon which relief could be granted and the trial court properly granted summary judgment. GCR 1963, 117.2(1).
Affirmed. No costs, a public question being involved. | [
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] |
Quinn, P. J.
Charged with delivery of a controlled substance, MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a), defendant pleaded guilty on June 12, 1974 to the added count of possession of a controlled substance, MCLA 335.341(4)(a); MSA 18.1070(41)(4)(a). July 1, 1974, defendant was sentenced and on November 4, 1974, he moved to withdraw his plea on the basis that the facts elicited at the plea taking indicated a possible entrapment. The motion was denied and defendant appeals.
Is a trial court required to explore a possible defense of entrapment when the plea transcript indicates that a police officer is involved in the criminal transaction?
Our answer is no, People v Sinclair, 58 Mich App 609, 614; 228 NW2d 486, 489 (1975).
Does this record establish that the trial judge abused his discretion in denying the motion to withdraw the plea?
The pertinent portion of the transcript is:
"The Respondent: The officer, Detective Williams, approached me at my sister’s apartment, and asked me if I would buy some drugs for him or sell some drugs for him and I told him I would meet him downtown later that night. I went to a friend’s apartment on John Street and he was there, and he gave me a ride, dropped me off. I bought the heroin and returned to the apartment on John Street, where the officer later returned, and I handed it to him.
"The Court: So you did have in your possession then the substance you knew to be heroin?
"The Respondent: Yes, sir.
"The Court: And in turn you delivered that to a gentleman later identified as an officer, is this correct?
"The Respondent: Yes, sir.
"The Court: Now I ask you again, sir, do you make this plea of guilty voluntarily and freely and understandingly?
"The Respondent: Yes, sir.
"The Court: With the belief that you are guilty of the offense charged?”
The grant or denial of a motion to withdraw a plea after sentence lies in the sound discretion of the trial judge, People v Bovee, 60 Mich App 727; 231 NW2d 529 (1975). We read this record as establishing no more than offering defendant an opportunity to commit the crime. This is insufficient to establish entrapment, People v Turner, 390 Mich 7, 21; 210 NW2d 336, 342 (1973), and insufficient as a basis for us to disturb the trial judge’s exercise of his discretion.
Affirmed. | [
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Allen, P. J.
This appeal presents the question of first impression of whether the concurrent jurisdiction conferred over 17-year-old defendants by MCLA 712A.2(d); MSA 27.3178(598.2)(d) is constitutionally defective by reason of a lack of standards indicating under what conditions the circuit court should defer jurisdiction to the probate court. Although the identical issue is now pending before the Supreme Court on leave granted in People v Dupie, 392 Mich 785 (1974), that case involves numerous other issues and accordingly the Supreme Court may not dispositively speak to the constitutional issue involved herein.
Defendant, who was then 17 years of age, was charged with the dual counts of safe robbery at the Calumet High School and breaking and entering the school building with intent to commit larceny, MCLA 750.110; MSA 28.305. On October 25, 1974, he pled guilty to the breaking and entering charge and was sentenced to five years probation, the first six months thereof to be served in the county jail. Prior to defendant’s guilty plea, defense counsel moved to dismiss the charges against defendant for lack of jurisdiction or, in the alternative, to waive jurisdiction to the probate court. As part of the motion argument, defendant offered evidence purporting to bring defendant within the concurrent circuit court-probate court jurisdiction as prescribed in MCLA 712A.2(d). In particular, testimony was introduced that defendant drank excessively. The trial court dismissed the motion.
Defense counsel’s claim of error is sophisticated but may be summarized as follows: (1) defendant’s prior conduct placed him within the concurrent jurisdiction defined under MCLA 712A.2(d); (2) MCLA 712A.2(d) fails to define standards to guide the circuit court in exercising its discretion on when to waive jurisdiction to the probate court; (3) under People v Fields, 388 Mich 66; 199 NW2d 217 (1972), and upon rehearing in People v Fields, 391 Mich 206; 216 NW2d 51 (1974), MCLA 712A.2(d) is unconstitutional; (4) therefore original jurisdiction reposes in the probate court.
Assuming, arguendo, that counsel is correct as to (1), (2) and (3) in this chain of logos — assumptions which we make only for the purpose of argument — it does not follow that jurisdiction rests in the probate court. To the contrary, we conclude that given the assumptions above, jurisdiction would repose in the circuit court.
Fields, supra, concerned a situation which is the converse of the case before us. There, a 16-year-old was accused of breaking and entering and of uttering and publishing checks. Because he was under age 17, he was brought before the probate court where the prosecuting attorney moved under then MCLA 712A.4; MSA 27.3178(598.4) to treat the accused as an adult and transfer jurisdiction to the circuit court. The motion was granted and defendant appealed, claiming the statute was void because it lacked standards for determining whether or not the probate judge should waive jurisdiction. In the first Fields case, supra, the Supreme Court agreed:
"Absent carefully defined standards in the statute itself which would justify such disparity of treatment, there is no way by which it can be determined what standard a probate judge should apply in a waiver proceedings. He might use the standards used by Judge O’Brien. He might use the standard contended for by the prosecutor — 'the child’s welfare and the best interest of the state.’ This standard is so vague and subject to so many possible interpretations as to be no standard at all. He might formulate his own standard for review by the appellate courts of this state on a case-by-case basis. He might apply the standards set forth in JCR 1969, 11.” 388 Mich at 75-76.
The Legislature then amended the statute so as to provide standards. Subsequently, rehearing was granted and in the second Fields case the Supreme Court in a 3-2 decision reaffirmed its earlier opinion but limited the retroactive effect to cases pending prior to the date of the amendatory act. However, the amendatory act dealt only with offenders under age 17, these being offenders over whom the juvenile court clearly has original jurisdiction and did not touch age 17 and 18 offenders described in MCLA 712A.2(d) against whom criminal proceedings commence in circuit court.
The distinction is made since neither Fields decision attacked the basic jurisdiction but only found the transfer section invalid. Thus, any difficulty in MCLA 712A.2(d) which may exist because of Fields does not reach the basic jurisdiction of the circuit court but only the potential transfer to the probate court. If MCLA 712A.2(d) is unconstitutional because of lack of standards, jurisdiction over defendant Sabo remains in the circuit court.
Defense counsel attempts to rebut this conclusion via the following argument: Article VI, § 15 of the Michigan Constitution of 1963 provides that the probate court and its judges "shall have original jurisdiction in all cases of juvenile delinquents and dependents, except as otherwise provided by law” (emphasis supplied); there are but two statutes relating to jurisdiction over 17-year-olds; since each is unconstitutional under Fields, supra, the constitutional provision alone must govern court jurisdiction.
We must reject the defendant’s argument because the law has provided otherwise with respect to original jurisdiction of 17-year-olds, and because Fields, supra, deals with waiver of jurisdiction, not necessarily the jurisdiction in itself. MCLA 712A.2(a); MSA 27.3178(598.2)(a) grants exclusive original jurisdiction over juveniles under 17 years to the probate court. As to 17-year-olds, the probate court does not have jurisdiction unless the youth meets one or more of the six conditions listed in § 712A.2(d), and then the probate court’s jurisdiction is only concurrent. To provide that the probate court has concurrent jurisdiction over 17-year-olds under limited circumstances, implies, necessarily, that some other court or courts have jurisdiction over such youths. Article VI, § 13 of the Michigan Constitution of 1963 provides that the circuit courts "have original jurisdiction in all matters not prohibited by law”. (Emphasis supplied.) Counsel has referred th'e Court to no statute prohibiting circuit court jurisdiction over a 17-year-old accused of a felony, and we have found none.
It is evident that the circuit court has original jurisdiction over 17-year-olds in cases such as this one and that said jurisdiction is concurrent with the probate court only when one of the conditions in § 712A.2(d) exists. Added support to this view is found in Chapter IV, § 27 of The Code of Criminal Procedure, MCLA 764.27; MSA 28.886, which grants the circuit court, or any court of record other than probate, authority to waive jurisdiction of 17-year-olds, and transfer the case to probate court where one or more of the conditions in §712A.2(d) exists. One would find it hard to assume that the circuit court could waive jurisdiction without having jurisdiction initially. Therefore, even if the holding of Fields, supra, were extended to invalidate the discretionary authority of the circuit court to transfer jurisdiction to the probate court in cases of the instant statute, original jurisdiction of the circuit court remains unaffected. Accordingly, we find that the circuit court had jurisdiction and that the trial court did not err in dismissing the first portion of defendant’s motion.
Admittedly, our decision does not directly respond to the constitutional issue posed in the first paragraph of this opinion. Neither do we intend to rule, by implication, that the statute is unconstitutional. Appellate courts of this state do not reach constitutional questions when the case under consideration may fairly be disposed of on other grounds. Lansing v Jury Rowe Realty Co, 59 Mich App 316, 320; 229 NW2d 432 (1975). Since no error is claimed on this appeal as to the trial court’s ruling on the second portion of defendant’s motion, we do not speak to that issue.
Affirmed.
The constitutional issue was raised together with seven other grounds for appeal in People v Dupie, an unpublished memorandum opinion, No. 16669, released May 21, 1974. As to the constitutional issue, the Court of Appeals stated only that it was "without merit”. August 7, 1974, the Supreme Court granted leave to appeal. People v Dupie, supra.
Counsel’s motion was made in two parts: first, that the circuit court had no jurisdiction over the case, and second, if the circuit court did have jurisdiction the testimony of witnesses to be called would justify the court’s waiver of jurisdiction to the probate court. The trial court rejected the first part of the motion after hearing opening arguments by both parties and dismissed the second part of the motion after taking testimony. On appeal to this Court, only the first part of defendant’s motion is assigned as error.
1972 PA 265, effective October 3, 1972; MCLA 712A.4; MSA 27.3178(598.4).
MCLA 712A.2(d); MSA 27.3178(598.2)(d) referred to above and Chapter IV, § 27 of The Code of Criminal Procedure, MCLA 764.27; MSA 28.886, referred to infra.
" * * * If, during the pendency of any criminal case against any child in any court in this state, it is ascertained that the child is under the age of 17 years, the court shall immediately transfer such case, together with all papers connected therewith to the juvenile division of the probate court of the county wherein the offense is alleged to have been committed. Where a child over the age of 15 years is charged with a felony the judge of probaté, after investigation and examination, and upon motion of the prosecuting attorney, may waive jurisdiction; whereupon it shall be lawful to try such child in the court having general criminal jurisdiction of such offenses. If, during the pendency of any criminal case against any child in any court of record other than a probate court, it is determined that the child is 17 years of age, then the court if the court finds that any of the conditions exist as outlined in subsection (d) of section 2 of chapter 12A of Act No. 288 of the Public Acts of 1939, as amended, upon motion of the prosecuting attorney, the child or his or her representative, may transfer such case together with all papers connected therewith to the juvenile division of the probate court of the county wherein the offense is alleged to have been committed.” (Emphasis supplied.) | [
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Quinn, P. J.
August 15, 1973 defendant was charged with possession and use of heroin contrary to MCLA 335.341(4)(a); MSA 18.1070(41)(4)(a) and MCLA 335.341(5)(a); MSA 18.1070(5)(a). Prelimi nary examination was held November 8 and 28, 1973 and January 28 and 29, 1974. Defendant was bound over for trial as charged. The information charged defendant with possession of heroin and attempted use thereof.
Defendant filed motions to suppress evidence, to quash the information and for discovery. The trial court ordered discovery and denied the motions to suppress and to quash. Defendant filed a motion for rehearing on the basis of newly discovered evidence. This motion was granted; further evidence was taken and the motions to suppress and to quash were granted. The people appeal.
Nancy Witherspoon was a registered guest at Motel 6 in Lansing. She occupied room 235. Shortly before noon on August 15, 1973, an outside telephone call for a Miss Witherspoon was received at Motel 6. The clerk on duty, Louise Auslander, handled telephone calls to and from the guest rooms. She connected the outside caller, who had a male voice, with room 235, and was then interrupted by some other event. When her attention returned to the telephone switchboard, she noted that the line to room 235 was still open and picked up the receiver to ascertain whether the call had been completed. She heard a female voice say, "I’ve got drugs”. Thereafter, Mrs. Auslander continued to listen to the conversation.
Mrs. Auslander notified the Lansing police of possible drug traffic at Motel 6. Sergeant Baylis of the Lansing Police Department was in charge of the metro-narcotics squad. At about 11:50 a.m., on August 15, 1973, he was returning from lunch when he received a radio message from his secretary to proceed to Motel 6. Prior to doing so, Sergeant Baylis telephoned his office and was advised that Nancy Witherspoon was involved in the activities at Motel 6. She was known to Baylis as a person involved in drug traffic in the Lansing area.
Sergeant Baylis proceeded to Motel 6 where he talked with Mrs. Auslander and learned what Mrs. Auslander had overheard of the telephone conversation between Nancy Witherspoon in room 235 and the male person who had called her. Sergeant Baylis then telephoned the office of the prosecuting attorney, related what he had learned from-Mrs. Auslander and requested instructions. Whatever was to occur at room 235 was supposed to occur within about five minutes of this telephone call. Within that time limitation, there was no possibility of obtaining a search warrant, and Sergeant Baylis was advised by the prosecuting attorney’s office to proceed to enter the room and confiscate the drugs.
The manager of the motel permitted Sergeant Baylis and three other officers to occupy room 231. Through the partially opened door of room 231, Sergeant Baylis saw a male person stop at room 235. The person rapped and was admitted. The police stationed themselves near the door of room 235 and they overheard conversation emanating therefrom concerning "bags” or "bindles”, the price of a "quarter” and the effect of a "hit”. Water was heard running and they smelled something that smelled like something burning. These observations indicated to Sergeant Baylis that something related to drug traffic was going on in the room and he decided to enter.
Sergeant Baylis inserted a passkey in the door of room 235 but before he turned it, he heard a female voice within say she had to go downstairs. Thereupon Sergeant Baylis stepped away from the door without turning the key and the door partially opened. It was immediately closed again and an officer said "Police, open up” and he kicked the door. Shortly, a voice within said "I’ll ojien the door”. It was opened and the officers entered.
Inside, Officer Cross saw the bathroom door open partially and he saw a male person (later identified as defendant) peek out. Officer Cross approached the bathroom door; it closed and he forced it open. He observed defendant standing in front of the sink holding a syringe, a bottle cap and some tinfoil in his right hand. Defendant threw these articles toward the toilet and the syringe went into the toilet, but the bottle cap and tinfoil fell on the floor. Officer Cross retrieved all of the articles, and later the syringe proved to contain heroin. In plain view on a table, there was a small wooden box with the lid open. In it were visible small tinfoil packets which later proved to contain heroin.
At the preliminary examination, defendant contested the admission in evidence of Mrs. Auslander’s recitation of what she overheard of the telephone conversation between Nancy Witherspoon and the male caller and the subsequent use of that information by Sergeant Baylis. It was and is defendant’s position that by monitoring that call Mrs. Auslander violated the Federal and state eavesdropping statutes, 18 USC 2510 et seq., MCLA 750.539 et seq.; MSA 28.807 et seq. Thus, defendant argues, the illegally obtained information was inadmissible, and under the "fruit of the poisonous tree” doctrine, Sergeant Baylis could not legally use that information. If this evidence and the use thereof by Sergeant Baylis was barred, defendant contended there was no probable cause for the police to enter room 235, arrest defendant and seize the evidence in question.
The district judge held that defendant was not an "aggrieved person”, as defined in 18 USC 2510(11), and that under the limitation found in 18 USC 2518(10)(a) defendant had no standing to raise the issue. The district judge further held that Mrs. Auslander overheard "I’ve got drugs” accidentally and that MCLA 750.539e; MSA 28.807(5) did not bar the admission of that portion of the telephone conversation overheard by Mrs. Auslander. The balance of what Mrs. Auslander overheard was barred by the district judge under the state statute last referred to. The district judge found probable cause for the officers to enter room 235 and to arrest defendant and to seize the evidence in question which was received in evidence.
At the conclusion of the first hearing on the motions to suppress and to quash, the trial judge affirmed the district judge on the issue of defendant not being an "aggrieved person” under the Federal statute. Although expressing some doubts that Mrs. Auslander overheard any of the telephone conversation accidentally, the trial judge affirmed the district judge on the finding that "I’ve got drugs” was overheard accidentally. This affirmance was based on the district judge’s opportunity to see and hear the witness. For the foregoing reasons, the trial judge denied the motions to suppress and to quash.
At the first session on rehearing, two former employees of Motel 6 testified that Mrs. Auslander had admitted to them that she had on occasion deliberately listened to telephone conversations between guests and outside callers. At the second session held June 13, 1974, the prosecuting attor ney conceded that Mrs. Auslander had deliberately monitored the outside call to Nancy Witherspoon for reasons which Mrs. Auslander and the prosecuting attorney believed to be legitimate. The information which led to this concession was learned by the prosecutor that day. On the strength of this concession, the trial judge held that the evidence obtained from the monitored telephone conversation was illegally obtained and it was inadmissible. Without that evidence there was no probable cause to enter room 235 and to arrest defendant and to seize the evidence in question. The motions to suppress that evidence and to quash the information were granted.
In an exhaustive brief the people have raised five issues which contain 14 sub-issues. In an equally exhaustive brief, defendant has responded thereto. We have considered all the issues raised but we decline to write to some of them because whatever we said would be dicta. This is true because our analysis of the case convinces us that two issues are determinative of this appeal.
Before reaching * those issues, however, something must be said regarding the people’s contention that the Federal eavesdropping statute has preempted the field, thus causing the state statute to be ineffective. We find this contention untenable. The state statute is more stringent than the Federal statute since it contains no "aggrieved person” limitation. The state statute does not produce a result inconsistent with the objective of the Federal statute, Burbank v Lockheed Air Terminal, Inc., 411 US 624; 93 S Ct 1854; 36 L Ed 2d 547 (1973). We find both statutes applicable.
MCLA 750.539c; MSA 28.807(3) provides:
"Any person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony”.
MCLA 750.539e; MSA 28.807(5) provides:
"Any person who uses or divulges any information which he knows or reasonably should know was obtained in violation of sections 539b, 539c or 539d is guilty of a felony”.
The language "knows or reasonably should know was obtained in violation” of the last quoted section is pertinent to decision of whether the overheard statement "I’ve got drugs” was legally usable by Sergeant Baylis. The legality of this use depends on whether Sergeant Baylis knew or reasonably should have known that the statement was obtained by Mrs. Auslander in violation of MCLA 750.539c, supra. The resolution of this inquiry depends on what Sergeant Baylis knew or reasonably should have known about the way Mrs. Auslander overheard "I’ve got drugs”. This question must be judged from what the record discloses as of August 15, 1973, not June 13, 1974. We find nothing in the record to indicate that Sergeant Baylis knew on August 15, 1973 that Mrs. Auslander overheard that statement in violation of MCLA 750.539c. The record fails to disclose that Sergeant Baylis reasonably should have known on August 15, 1973 any more concerning the manner in which Mrs. Auslander overheard this statement than was disclosed at the preliminary examination. On the basis of the evidence produced at the preliminary examination, the district judge found that Mrs. Auslander overheard "I’ve got drugs” accidentally. This finding was affirmed by the trial judge, and we are unable to say that this finding was clearly erroneous, GCR 1963, 517.1. We con- elude that Sergeant Baylis could legally use the statement 'Tve got drugs”.
The result of this conclusion is that the record established probable cause for Sergeant Baylis to proceed to room 235 for further investigation. What was heard and observed outside room 235 established probable cause to enter the room. Once in the room, plain view observations established the probable cause to arrest and to seize the evidence suppressed by the trial judge.
Mrs. Auslander was a private individual; she had no connection with the police, nor was her monitoring of the telephone conversation in question authorized by any police agency. By June 13, 1974, the record establishes that she illegally monitored that telephone conversation, but that illegality does not carry over to the police and infect their actions. People v Harry James Smith and authorities therein cited, 31 Mich App 366; 188 NW2d 16 (1971).
Reversed and remanded. | [
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] |
T. M. Burns, P. J.
On January 2, 1974, defendant Dr. Hugh R. Gunne, was convicted by a jury of conspiracy to commit first-degree murder and assault with intent to commit murder. On January 16, 1974, defendant was sentenced to life imprisonment on the charge of conspiracy to commit murder and 25 to 50 years imprisonment on the charge of assault with intent to kill and murder. On that same date the trial court denied defendant’s motion for a new trial. This appeal followed.
The chief witness for the prosecution was Barbara Kimmel, the alleged victim of the charged crimes. After the jury had been excused, defense counsel sought to question Mrs. Kimmel about an outstanding capias warrant against her for failure to appear at a trial relating to a charge lodged against her in Washtenaw County. The trial court sustained the prosecutor’s objection on the ground that the question was an inquiry into a charge rather than a conviction and was thus impermissible.
Defendant’s attorney also questioned Mrs. Kimmel regarding certain criminal convictions. She admitted two convictions concerning occupying a hotel room with a male other than her husband but denied the existence of a third conviction concerning loitering at a place of illegal business. When defense counsel attempted to introduce extrinsic evidence of the loitering conviction, the trial court sustained the prosecutor’s objection on the ground that the 1968 conviction was had without benefit of counsel. There was also some discussion as to whether a conviction for violating an ordinance as opposed to a statute is a crime.
The defense called Barbara Bowman, a nurse who worked for the defendant, as an alibi witness. On cross-examination, the prosecutor attempted to introduce a tape recorded telephone conversation between the witness and a third party to show similar or prior acts in an effort to establish the motive of the defendant. After the trial court held that the tape could not be admitted for such purpose, the prosecutor offered to introduce the tape as a prior inconsistent statement of the witness Bowman contradicting her testimony on direct examination. It soon became apparent that the witness would exercise her Fifth Amendment privilege in response to any foundational questions necessary for the admission of the tape recording. Defense counsel then moved to strike the testimony of Bowman since cross-examination would not be available. The trial court denied the motion. When the prosecutor conceded that the foundation question might be incriminating, the trial court ruled that the introduction of the tape was permissible without the necessity of laying a foundation.
There are several assignments of error. We have considered them all. Although we specifically speak to only one issue, the others have not been disregarded. Rather we consider them to have raised issues of insufficient substance to merit decisional discussion. As to each we have found no deviation from sound and accepted trial procedure or established case law. The singular issue which we consider to be decisional, and indeed to mandate reversal, is whether the trial court erred reversibly when it admitted the tape recording of a prior inconsistent statement made by defense witness Barbara Bowman in order to impeach her direct testimony.
Defendant contends that the tape recording was inadmissible because the prosecutor had not laid the requisite foundation for impeachment of a witness by a prior inconsistent statement. As mentioned earlier, after the prosecutor admitted that the proposed foundation questions could be incriminating, the trial court held that the tape could be admitted without any foundation testimony. This was reversible error.
It has long been held in Michigan that in order to impeach a witness by showing a prior inconsistent statement of that witness a foundation must be laid by asking the witness preliminary questions. People v George Jones, 48 Mich App 102; 210 NW2d 145 (1973), Ebel v Saginaw County Board of Road Commissioners, 386 Mich 598, 608; 194 NW2d 365, 369 (1972), Scholnick v Bloomfield Hills, 350 Mich 187, 195; 86 NW2d 324, 328 (1957), Rodgers v Blandon, 294 Mich 699; 294 NW 71 (1940). This foundation requirement has been strictly enforced. See People v Jones, supra, concurring opinion of Judge Gillis at 111, Ebel v Saginaw Road Commissioners, supra, Rodgers v Blandon, supra. No foundation was laid for the impeachment of Barbara Bowman by proof of prior inconsistent statements, and therefore, the admission of the tape recording into the record as an attack on Bowman’s credibility was erroneous. People v Jones, supra, Ebel v Saginaw Road Commissioners, supra, 98 CJS, Witnesses, §480, pp 362-364. Since Barbara Bowman was the only person to corroborate a good deal of defendant’s own testimony, her testimony had an obviously important bearing on the defense and, therefore, we cannot say that the admission of the tape into evidence was harmless error beyond a reasonable doubt. People v Jones, supra, People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972). We hold that where, as here, a witness has exercised her Fifth Amendment privilege against self-incrimination in response to foundational questions put by the prosecutor, it is impossible to lay a foundation properly and therefore prior inconsistent statements cannot be shown. Cf. Ebel v Saginaw Road Commissioners, supra.
Reversed and remanded for a new trial.
Quinn, J., concurred.
Defendant was tried jointly with Stanley Kulczyski. Another alleged co-conspirator was not tried since his whereabouts were unknown.
MCLA 750.157a; MSA 28.354(1).
MCLA 750.83; MSA 28.278.
We note that the tape recording in question was made with the consent of the third party who subsequently turned the tapes over to the Dearborn Police Department. No warrant was ever issued for their making. | [
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] |
Steere, J.
Plaintiff, by a writ of error, seeks review and asks reversal of a judgment on a directed verdict rendered against him in the circuit court of Ingham county in an action brought upon a written contract entered into between him and defendant whereby he engaged to construct a sewer system for a portion of the city of Lansing according to certain plans and specifications made a part of said contract.
The' system, involving an expenditure of near $40,000, contemplated an egg-shaped, trunk sewer built of brick and concrete, 72 inches from top to bot tom at the lower end, and gradually growing smaller as it receded from its outlet, with several laterals of tile extending from the main sewer in different directions.
The contract, following a form approved and adopted by the common council of the city of Lansing on October 11, 1909, is an elaborate document covering 20 pages of the printed record, very full and complete as to all matters involved in the undertaking, with specifications divided and subdivided under headings as to method of construction, workmanship, material, and other details relating to different branches of the work and the rights, duties, and responsibilities of the parties. It was executed May 9, 1910, requiring the work to be commenced June 1, 1910, and completed not later than November 30, 1911. Further reference will be made to such portions of this contract as become material to questions which it is necessary to pass upon or consider.
Performance of the contract was entered upon, and the work progressed, under plaintiff’s general control, but in direct charge of his son and other foremen; he being absent portions of the time looking after other contracts he had taken until July 10, 1911, when plaintiff took personal charge. About August 5th the city engineer, who was inspector by the terms of the contract, made objection to the manner in which certain work was done, and especially forbade the use of some red sand brick, in the trunk sewer, which was from the same brickyard but varied in color from that previously used. Just at that time the brickmakers were unable to furnish the light colored sand brick which had been previously used, and plaintiff, claiming that the red was just as good or better, more expensive, and fully complied with the specifications of the contract, continued its use for a time, until the other brick could be again furnished, building about 32 feet of the sewer with it.
On August 10, 1911, the engineer sent plaintiff a written communication stating that on August 5th notice had been given him not to lay the red brick, and later to discontinue laying certain inverted stone in an unworkmanlike manner, with notice that no estimate would be given him for work done until the same was replaced according to specifications. This notice was received while plaintiff was unable to get the light brick, and he continued to use the red for a time thereafter, until authorized by the engineer to use a certain mud brick which the brickyard was able to furnish, when he continued with the latter, joining them to the red brick which he did not replace. During the time he was laying the mud brick the city engineer and chairman of the sewer committee were many times at the sewer and observed what was being done. The culminating and chief cause of friction between the parties appears to be plaintiff’s refusal to replace the red brick with others. On August 18th plaintiff made written application to the engineer for an estimate claimed due him under the contract, with which to obtain a partial payment “on work done on said sewer, and not previously estimated by you,” which was refused. Plaintiff continued the work for a time, until after the next meeting of the city council, and, being unable to secure an estimate or payment, withdrew his tools and men and discontinued work on September 1st, claiming defendant had violated the contract in not paying him the percentage due on work done according to the contract, and that he was unable to continue through lack of funds resulting from the city refusing to pay him money then due. On September 11th he received a communication of defendant, from the common council, inclosing a copy of a resolution directing him to proceed with his contract at once, or his bond for its faithful performance would be forfeited and he held responsible for all resulting damages. He sought legal advice, and on September 14th. his attorney wrote the city engineer, stating the facts as plaintiff claimed them, and concluding :
“Kindly advise me, as Mr. Algate’s attorney, if you will now make these estimates and when. Also whether you do withdraw your objections as stated in said letter, or still insist on same. Also if you insist on work being replaced as stated in said letter.
“Mr. Algate is entitled to the information that he may know how to proceed and is entitled to his money, in order to continue to finance the work.”
On September 17th he sent to the city council copies of the correspondence and resolution accompanied by the following letter:
“Lansing, Mich., Sept. 17, 1911. “Hon. Common Council,
“City of Lansing.
“Gentlemen:
“Annexed you will please find copy of a letter to City Engineer Sparks; also copy of letter from said City Engineer Sparks to John Algate; also resolutions of common council to John Algate.
“Kindly advise us as to attitude of city in reference to matters mentioned in said letters. Your early advice will be kindly appreciated.”
This communication was received and placed on file, but not answered. On August 23, 1912, this action was begun.
By the opposing claims of these litigants, as set forth in their elaborate pleadings, each charges the other with numerous violations of their contract in many detailed particulars.
The theory of plaintiff’s declaration is a hostile attitude towards him manifested in the inspection of the work, which was unjust, captious, oppressive, and in effect fraudulent, in that proper material was repeatedly rejected, and the work objected to when being properly carried on in strict compliance with the contract; that the inspector hampered and interfered with the progress of the work by abusive and profane language and brutal conduct towards plaintiff’s employees to an extent which rendered it difficult to keep men on the job, and captiously ordered work which complied with the contract to be changed and done again, refusing estimates and payments for work done, and not objected to, until such orders were obeyed, and by such refusal deprived plaintiff of the necessary means to continue.
The theory and claim of defendant, as indicated by its special notice under a plea of the general issue and lengthy cross-examination of plaintiff’s witnesses, is that plaintiff persisted in slighting the requirements of his contract by faulty construction and inferior material, in defiance or evasion of the inspector, repeatedly violating the terms of his contract, and finally, when compliance was insisted upon, abandoned it.
Most of these conflicting claims presented by the pleadings involve issues of fact and call for but incidental consideration as the case is now presented by this bill of exceptions on a directed verdict, for in this inquiry plaintiff’s testimony must be taken as true, and considered in the light most favorable to him.
On the trial of the case defendant offered no evidence, but moved the court for a directed verdict in its favor at the conclusion of plaintiff’s testimony, for the following reasons:
“(1) Under the undisputed evidence in this case it appears that the plaintiff, on September 1, 1911, abandoned all work upon the contract which he had entered into with the defendant to construct the sewer in question, alleging for his reason therefor that the city engineer had refused to make and furnish to him an estimate of work done and material furnished, up to and including August 18, 1911, and not previously estimated, which estimáte under the undisputed • evi dence in this case he was not then entitled to demand and receive.
_ “ (2) For the reason that the plaintiff admits in his testimony that the city engineer had rejected certain brick which plaintiff was using in the construction of said sewer and notified the plaintiff not to use them in such work, and that he, the plaintiff, disregarded such directions of the city engineer and did use such brick in such work after he was so notified by the city engineer not to use them, and that it was for the work thus done with such rejected brick that he claims he was entitled to such estimate from said city engineer.
“(3) Because there is no evidence in this case from which any inference can be drawn that the act of the city engineer in rejecting the brick in question and notifying the plaintiff not to use them was not the exercise of his honest judgment.
“ (4) Because the plaintiff did not, before he abandoned work upon said sewer, bring to the notice of the common council of the city of Lansing his reasons for such abandonment.”
This motion was granted on the ground, as indicated in the reasons stated when directing a verdict, that the contract made the engineer an arbiter, and his decision on questions arising under it was final and conclusive, unless he acted fraudulently, and in bad faith, of which there was no competent proof; that the engineer had a right to and did reject the brick, and “it was his duty not to give plaintiff an estimate upon the city to pay for something he had ■rejected;” that plaintiff’s own testimony showed he first violated the contract, abandoned the same, and did not fully perform it, and therefore could not recover upon it.
In leading up to these conclusions, the court stated plaintiff’s rights in case of defendant’s default in payments as follows:
“If he was entitled to an estimate, and without reason it was refused him, then he was justified in abandoning his contract, because one who performs work for another upon an agreement that from time to time as he has performed part of it he shall have his pay is entitled to his pay, and, if he does not get it when he is entitled to have it, then he need not proceed with further performance of the contract. But if he demands an estimate, and because he does not get it he abandons the contract and later on brings suit on the contract, he must come prepared to show that he was justified in abandoning it; the justification being that he was entitled to his estimate, and it was refused him.”
The contract provided upon the subject of partial payments as the work progressed:
“Estimates for partial payments will be made by the engineer, upon a request of the contractor, if made prior to Saturday'of any week; twenty-five per cent, will be retained therefrom until completion of the work.”
Under this provision of the contract, plaintiff had received from the engineer 15 different estimates as the work progressed. While he complains these were made on a wrong basis, too small, and unfair to him, because they were based on a prorating of the percentage over the entire cost or contract price of the system, and not on the relative value of the work actually done, he states that he submitted to it so long as he was financially able to continue the work, as under the contract he would have just that much more coming to him when the contract was completed, but that, when he asked for the estimate, a refusal of which compelled him to cease operations, not only were his previous estimates too small under the contract, but from three to four weeks’ work had been done since his last estimate, during which time he had built a receiving chamber and 250 feet of the trunk sewer, only 32 feet of which contained the red brick objected to, and there was due him for such work, most of which was not objected to, about $2,000.
While plaintiff has numerous complaints of unfair treatment, in violation of the contract, his ultimate grievance which culminated in his ceasing work is, not that he was unjustly forbidden to use brick which fully complied with the specifications, for he testified that he did not stop work for such reason, but that defendant breached the contract by the refusal of an estimate and payment to which he was entitled and so crippled him financially that he did not have the requisite funds and could not continue. His own testimony confines him to this as the test question in the case and we think defendant is equally limited to such issue by its motion for a directed verdict based on plaintiff’s undisputed evidence.
Irrespective of their previous differences, work in performance of the contract progressed, and payments were made from time to time on the engineer’s estimates, with no indication that either party contemplated terminating it because of a breach by the other until the difficulty arose over the use of the red brick, and then the work continued for a time, and more of the sewer was constructed with brick approved by the engineer. Plaintiff thereafter was apparently doing the work in a manner and with material satisfactory to the inspector and proposed to continue if he could secure the payment he claimed was due him. He quit because unsuccessful in that particular, and defendant demanded in writing that he should continue.
The question on this record, therefore, is whether plaintiff, by his evidence, has prima facie established his right to discontinue work and bring this action for breach of contract, for the reason that defendant’s inspector refused to give him an estimate, and defendant refused him a payment to which he was entitled.
No question is raised as to tile laterals to be constructed under the contract. Of the large, egg-shaped trunk sewer plaintiff constructed about 3,000 feet, and the break between the parties arose over the use of the forbidden red brick in 32 feet of this construction. All the brick used was furnished by Clippert & Spaulding, a local firm of brickmakers. They manufactured both a white and red sand brick and a cheaper clay or mud brick. Their white sand brick had been in use for construction of sewers in Lansing for about 12 years, and was mostly‘used on this contract. At the time plaintiff used the red sand brick Clippert & Spaulding were unable to furnish the white. Plaintiff claims, and testified, that the red brick complied fully with the specifications, were equally good and more expensive than the white, costing from $1 to $2 a thousand more, that the cheaper mud brick, which the engineer later authorized him to use, were laid in the sewer, and connected to the red, so as to form one continuous construction, in the presence of the engineer.
The specifications in the contract relative to brick were as follows: .
“All brick used in the work must be sound, hard, and thoroughly burned through, clean and free from lime. None but whole brick are to be used except by permission of the engineer. All brick must be thoroughly soaked in water before being used. All brick which break under this test must be rejected. If required by the engineer, the contractor must provide a suitable tank in which to soak the brick for a period of twelve hours. All brick must be well wet immediately before being used in dry, hot weather.”
It is plaintiff’s testimony that the red brick as laid fully complied with all these requirements. George Clippert, who had been engaged in manufacturing brick for over 40 years, and was a member of the firm which made these, testified that the red brick fully complied with the specifications in every particular; that they were as good as the white for sewer purposes ; that the clay for their manufacture came from the same bed; that they were mixed the same, put through the same machines, and burned in the same Mins, but some burned red and some white, the latter predominating; that the red, on account of their more attractive color, were more desirable for facing brick, and brought a better price; that they were otherwise practically the same and equally durable as the white. Of the reason for delivering plaintiff the red brick, he says:
“Why, I ran out of the white ones, and I had some of them red ones on hand, and I delivered them, even though these brick were more expensive than the others; that was nothing to me. I would not stop my work on account of the brick, not when I had any brick of any kind.”
Spaulding, the other member of the firm, testifying to the same effect, said:
“The reason why they are called sand brick is you have to mix them with sand to make them, for if we do not they would crack, if they are not strong. We have some clay that burns red and some that burns white. We have to mix the sand with both of them; other than the color they are the same brick, only the difference in the color. The clay with the white are made out of magnesia, and the red has more iron sub«tance in it.”
The written notice given plaintiff by the engineer to replace the red brick, in default of which an estimate would be refused, required that he replace the same “according to the specifications for the construction of said sewer,” thus directly referring his demand to such specifications, and implying that in his judgment they did not comply therewith. This necessarily raised a question of fact, unless the decision of the engineer was final and conclusive. The court held that under the terms of the contract it was, unless plaintiff showed the inspector acted dishonestly and in bad faith, saying:
“Under this contract he could not use any material unless it was approved by the engineer or the inspec tor. I do not understand, however, that that would require the engineer to be there and pass upon each particular item of material going into the work. If the engineer was about and made no objection to material that was visible and being used, then it could be treated as approved. But when the engineer told the plaintiff that he must not use the red sand brick, then the red sand brick had not only not had his approval but his express rejection, and it was the duty of the plaintiff to immediately cease using them, because he had contracted that he would not use material except as it had been approved by the engineer.”
The then charter of defendant provided that the city engineer should “have the supervision and charge of the construction and repair of all sewers and drains whenever and wherever ordered by the common council.” In harmony with this provision the form of contract for sewer work previously adopted by the common council and used in this case designated him as inspector to have charge of and supervise the contemplated construction. As its official and employee he was defendant’s agent and representative in protecting its interests and seeing that the work was performed in compliance with the contract. This, however, would not preclude the contracting parties from agreeing that he should also be the arbitrator between them and his decision final in any matter in difference. ' If they did so agree, his determination would be conclusive and binding between them, to the exclusion of any appeal to the courts, unless he acted in bad faith and fraudulently.
On the subject of inspection this contract provides that:
“Whenever the word ‘inspector’ is used in these specifications it is understood to refer to the city engineer or, in his absence, such special inspector as may be appointed by the council or engineer for the purpose of supervising the work.”
A special inspector was appointed by the engineer and inspected the work under his supervision. The most stringent provisions in the contract as to inspection, and those upon which defendant relies, are:
“All materials of whatever nature required in the work are to be furnished by the contractor, and must be approved by the engineer before being used, and the contractor must furnish full facilities for such tests as may be required. * * *
“All work to be done in a neat, substantial, and workmanlike manner, to the satisfaction of the common council, under the direction of the engineer, whose orders are to be obeyed in all matters pertaining to workmanship or materials, subject to these specifications.”
The contract nowhere provides in exact words that the engineer or inspector shall be an arbitrator, or that his decision shall be final, in the clear and concise language commonly found in contracts construed as appointing an arbitrator. It is well settled that the contracting parties may agree to the arbitrament of even an interested party, if they see fit, and when they do so with full knowledge they must abide the result, in the absence of fraud; but there must be no room to doubt that such was the intention of the parties. The agreement must be express, not implied. Central Trust Co. v. Railway Co. (C. C.), 70 Fed. 282; Mercantile Trust Co. v. Hens ey, 205 U. S. 298 (27 Sup. Ct. 535, 10 Am. & Eng. Ann. Cas. 572). In Lamson v. City of Marshall, 133 Mich. 250 (95 N. W. 78), relied upon in this case as authority for directing a verdict, the contract under consideration provided :
“In case of misunderstanding of the meaning of such plans, specifications, and contract, or any of them, the engineer’s interpretation shall be taken as final.”
Equally clear and conclusive language appears in the contracts construed in Hanley v. Walker, 79 Mich. 607 (45 N. W. 57, 8 L. R. A. 207); Guthat v. Gow, 95 Mich. 527 (55 N. W. 442) ; Moran v. Schmitt, 109 Mich. 282 (67 N. W. 323) ; Kelley v. Public Schools of Muskegon, 110 Mich. 529 (68 N. W. 282).
While this contract confers upon defendant and its engineer strong controlling authority over the construction during its progress, in the particulars that material furnished by the contractor must be approved by the engineer before being used, and the work must be done to the satisfaction of the common council, under direction of the engineer, whose orders are to be obeyed, the requirements of the contract are yet made the final test by the provision that such matters are “subject to these specifications.” This is emphasized in behalf of defendant by the further provision that:
“Any direction in relation to the work that may be given by said inspector in contravention to the provisions of the plans or specifications shall-in no wise be binding upon the city.”
While the work is required to be to the satisfaction-of the common council, this is not of that class of satisfaction contracts involving the personal sentiment, taste, or sensibility of the party to be satisfied, in which case his expression of satisfaction or dissatisfaction cannot be questioned, but involves, as in Schliess v. City of Grand Rapids, 131 Mich. 52 (90 N. W. 700), “gross considerations of operative fitness and mechanical utility which are capable of being seen and appreciated by others,” where compliance with the requirements of the contract is held to import satisfaction.
The proposition is urged in behalf of defendant that:
“It makes no difference in what capacity the city engineer acted, whether as an arbitrator between the parties, or as a supervising agent for the city; the agreement was that the brick should, before being used, be passed upon by the city engineer and approved by him. It would be unreasonable to suppose that the contractor had the right to furnish such brick as he saw fit to use, place it in the sewer against the objection of the city engineer, go forward with the work and construct a large sewer and cover it up, and then try out the question as to whether the brick were good and complied with the specifications in a lawsuit afterwards, when it would be impossible to determine from examination whether such was the case.”
As a general proposition this contention, as stated, presents a reasonable rule of construction, but applied to the facts of this case, disclosed by the thus far undisputed testimony, it becomes of less force.
It is plaintiff’s claim that the brick in dispute not only complied with all specifications of the contract, but that in effect they had been passed upon and approved by the engineer, inasmuch as they were shown by the testimony to be of the same quality, from the same clay bed, made by the same parties, in the same manner, and with the same machines as that previously approved and used in the construction; the only difference being the color, in relation to which the contract contained no requirement. Plaintiff’s testimony also showed that it was yet possible to determine from examination whether they were good and complied with the specifications, there being no difficulty in traversing the interior of this large, egg-shaped sewer and making a thorough inspection and comparison of all its parts, and that this had been done, with an acetylene lamp, prior to the trial; that most of the red brick which he was directed to replace had been laid before the engineer ordered him not to use them; and that after such order, and before the clay brick he was authorized to use came, he had laid only from 500 to 700 red brick, and then under the engineer’s orders proceeded with the clay brick.
Plaintiff’s evidence also shows that the value of the work done subsequent to the last estimate, exclusive of the red brick ordered replaced, amounted to approximately $1,600, and that to replace the red brick would cost about $200.
It is admitted by plaintiff that he laid some red brick after the engineer told him not to do so, and that he did not remove those he had laid when ordered to do so. On the strength of these admissions a verdict was directed for defendant under the theory that the decision of the inspector was conclusive, and in disregarding it plaintiff breached the contract.
There is no language of finality in the contract which in our view makes the decision of the inspector an arbitrator between the parties to the extent that his decision is binding and conclusive to the exclusion of an appeal to the courts for an adjudication of whether the material furnished by plaintiff in truth complied with the specifications. For the time being, while the work was in progress, the engineer was vested with authority to judge, direct, and reject, to compel faithful performance, and, as suggested by the trial court, to refuse an estimate upon the city to pay for something he had rejected. While he had rejected this 32 feet of red brick sewer, he had not rejected the other $1,600 worth of work done since the last estimate. The notice he gave plaintiff stated, “No estimate for work done will be given you until same is replaced according to specifications for the construction of said sewer.” What portion of the work done was not in accordance with specifications or in what particular is not stated. It does appear that no answer was given to inquiries upon the subject, and all estimates were cut off, but the work ordered continued.
It also appears that both parties thereafter recognized the contract as in force, and construction of the sewer was continued by plaintiff beyond the red brick, over which the difference had arisen, under direction and inspection of the engineer, with work and ma terial to which no objection was made; operations only being suspended when lack of funds, owing to refusal of estimates for work performed, rendered continuance impossible. Under the contract 25 per cent, was retained on all work until its final completion and accéptance by the council, and plaintiff’s bond for faithful performance required him “to keep the whole work in perfect repair for a period of twelve months from its acceptance by the council as completed.”
In the case of Montgomery v. Mayor, 151 N. Y. 249 (45 N. E. 550), under a contract for construction of a sewer providing for the appointment of an inspector by the park commissioners to see that the material furnished corresponded with the plans and specifications, whose certificate approved by the engineer was a condition precedent to payment, the court said, as can be said here, that the effect of the contract was to vest in the inspector a right or capacity to pass upon the performance of the work “which came very near to constituting him, as between the parties, the judge as to that matter,” and further said:
“For all that the case discloses, there was nothing to prevent the plaintiffs going on with the work and relying upon their ability to prove, if upon completion the city should refuse to make payment, that the work and materials were up to the requirements of their contract.”
In Gearty v. Mayor, 171 N. Y. 61 (63 N. E. 804), under a contract and contentions analogous in many respects to the instant case, touching the rights of the parties and the course to be pursued, the court said:
“We thus have a situation where each party charges the other with breach of the contract. The city insists that the work was improperly done, and the contractor urges that the commissioners are arbitrarily or improperly exercising the powers vested in them by the contract. Questions of fact and law are thus presented, which can only be determined by a trial.
“It is very clear that the plaintiff could have stopped work as ordered by the engineer of construction and stood upon his contention that the work had been properly done, brought his action to recover for labor and materials performed and furnished under the contract, and claimed his prospective profits. Smith v. Wetmore, 167 N. Y. 234 [60 N. E. 419] ; Roehm v. Horst, 178 U. S. 1 [20 Sup. Ct. 780]. * * * The fact that this work was to be performed to the satisfaction of the commissioners and their engineer of construction is not conclusive against the plaintiff. That power cannot be exercised in an arbitrary manner, but reasonably and in accordance with fairness and good faith.
“This court has frequently held that under such a provision, that which the law will say a contracting party ought iri reason to be satisfied with, that it will say he is satisfied with.”
Many of plaintiff’s assignments of error relate to adverse rulings on the admission of testimony offered, made upon the theory that the inspector was a final arbitrator whose decisions were conclusive and could not be questioned. In view of what has already been said, we think those questions, as now presented, are not likely to arise on a retrial of the case, and therefore need not be reviewed in detail.
We conclude, from the copious record before us, that this is a case which, on a full trial, inevitably involves, not only interesting questions of law, but numerous and serious issues of fact for a jury, that plaintiff’s evidence prima facie established his right to an estimate, at least for some amount', on work which had not been questioned, and therefore his right, on refusal of payment, to bring this action for breach of contract; therefore defendant’s motion, at the conclusion of plaintiff’s testimony, for a directed verdict in its favor, should have been denied.
The judgment is reversed, and a new trial granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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Brooke, J.
(after stating the facts). It is clear that since the passage of Act No. 106, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §2932), complainant is subject to the control and supervision of the Michigan railroad commission. It is not questioned that, as required by the said commission, it has filed with the commission a schedule of its rates. This schedule is one which divides the users of the current into classes; there being a classification according to the various quantities used, both as to users of the cur rent for power and light. The commission itself has not so far apparently fixed or attempted to fix the rates demanded by complainant. Those rates, however, upon complaint from the proper parties, are, under the terms of the act creating the commission, subject to revision. We understand from the record that no such application has been made. To permit one user to take the current at its power voltage and transform a portion of it to the lighting voltage, and use it for lighting, paying for the whole at the power rate, would be to permit a discrimination against all other users of the power for lighting, because the rate charged for the current when used for lighting is considerably higher than that charged when it is used for power.
It should be noted that the reasonableness of the rates charged for both classes of service according to the schedule filed with the railroad commission is not in issue in this proceeding. The right of a public service corporation to charge a higher rate for the same commodity when used for one purpose than when used for another purpose is perhaps not directly involved, though questioned by defendant. We deem it unnecessary to pass upon the question in this proceeding, as we are of opinion that the contention should in any event first be made before the railroad commission in a proper proceeding. Upon the question reference is had to the following authorities: Boerth v. Gas Co., 152 Mich. 654 (116 N. W. 628, 18 L. R. A. [N. S.] 1197) ; In re Investigation of Milwaukee Lighting Rates, 9 Wis. R. R. Com. R. 541; Silkman v. Board of Water Com’rs, 152 N. Y. 327 (46 N. E. 612, 37 L. R. A. 827). See, also, Principles and Methods of Municipal Trading, by Prof. Douglas Knoop, p. 224.
We are satisfied that the complainant is entitled to the relief prayed, and that, if defendant feels himself aggrieved by reason of excessive charges, his remedy is open through a proper application for relief to the railroad commission.
The decree is affirmed.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Stone, J.
This case is here upon the appeal of the Michigan Trust Company, receiver, in the special matter of the claim of Thomas M. Robinson. In the statement and consideration of this case the dates of the several steps and proceedings are important.
On September 27, 1910, a bill was filed in the circuit court for the county of Kalamazoo, in chancery, by the above-named complainant, against the above-named defendants, who were the other copartners of George Rickman Sons’ Company, for the dissolution of said copartnership and an accounting. On the same day the following consent order, duly entitled, was made by the said court:
“First. That the Michigan Trust Company, a Michigan corporation, having its principal business office at the city of Grand Rapids, Mich., and being authorized by law to act as such, be and is hereby appointed temporary receiver of all and singular the assets and property of said copartnership firm, with full power and authority to take possession of each, every, and all thereof, to conserve and control the same, to manage and conduct the business heretofore carried on by said copartnership, to collect and receive the moneys due and owing to said copartnership or to said receiver and out of said receipts to pay the expenses of prosecuting said business, of maintaining and conserving the properties of said firm and such dividends to' the creditors of said copartnership as the court, from time to time, shall direct, and such receiver shall have authority to buy such material as may be necessary in the usual course of trade to carry out the purposes of its appointment, and said receiver shall also have all the usual powers of a receiver appointed by a court of chancery in partnership cases. * * * * *
“Third. It also appearing to the court that the co-partnership, as part of its assets, has certain uncompleted contracts for public and private buildings, which it is for the interest of all concerned to complete and finish. It is further ordered that the receiver be and is authorized and empowered to enter upon the completion of said contracts and for that purpose to use any and all money or funds coming-into its hands from the copartnership, or from said contracts, to that end until the filing of the report required by this order, and the further order and direction of this court, and in the meantime to borrow upon the faith of the property of said copartnership temporarily of such sums of money as it may find to be absolutely necessary for said purpose.
“Fourth. All moneys borrowed by said receiver pursuant to this order shall be evidenced and secured by receiver’s certificates approved by this court as to the form thereof.
“Fifth. The receiver shall proceed to make an accurate inventory of the assets and effects of said co-partnership and notify the creditors, so far as it shall be able to ascertain same, of the pendency of this suit and its appointment to said receivership. The receiver shall also examine into the condition of all of said contracts, and within 30 days after the entry of this order file with this court the said inventory, a list of the creditors of said copartnership and the amount of their demand, as claimed by them respectively, so far as the same can be ascertained by it, and also a full report showing the situation and con dition of the copartnership assets, the business carried on by it, the said contracts, and make such recommendations to the court concerning same and the future conduct, management, and disposition of same as it shall deem or be advised is necessary and proper to give the court and all concerned detailed information of the assets and condition of said copartnership and its property and assets, to the end that the court may then make such further or other order in the premises as it may deem to be necessary or expedient.
“Sixth. The appointment of said receiver shall take effect on the filing of an acceptance, in writing, by the said Michigan Trust Company, containing an undertaking on its part for the faithful discharge of the duties of its appointment, and for the accounting of all moneys and effects received by it, as such receiver, and such appointment shall continue until the entry of the final decree in this cause, or until the further order of this court in the premises.
“Seventh. The written consent of the said defendants to the appointment of said receiver and the entry of this order shall be filed with the register of this court.
“Eighth. The parties to this cause, or any other party, or parties, in interest, are given leave to apply to the court at any time for any other or further grant of power to the said receiver, or for such other order respecting the conduct of said receivership as circumstances may render advisable or necessary.”
On the same day an acceptance of appointment, duly entitled, was filed by the Michigan Trust Company.
It appeared in evidence at the hearing that all creditors of said copartnership were immediately notified by the following letter of the appointment of the receiver:
“Grand Rapids, Mich., Sept. 29, 1910. “To the Creditors op George Rickman Sons’ Company, op Kalamazoo, Michigan.
“Sirs:
“The undersigned was on the 27th day of September, 1910, appointed temporary receiver of the assets of George Rickman Sons’ Company, a partnership, by the circuit court for the county of Kalamazoo, Michi gan, in a suit brought by Arthur W. Rickman, one of the partners, against the remaining members of the firm of George Rickman Sons’ Co., for a dissolution of partnership.
“We have accepted the trust, and have taken possession, but have not had opportunity to take an accurate inventory of the assets. We will immediately give the affairs of this firm a thorough investigation, and. expect to advise creditors of the exact condition in as short a time, as possible.
“The assets and liabilities as stated by the members of this firm to us, are as follows:
“The Rickman Hotel, at Kalamazoo, which is an eight-story hotel erected about two years ago, now the best hotel in Kalamazoo, and enjoying a very piofitable business, valued at $135,000 to $150,000. Two large flat buildings in Kalamazoo, valued at $25,000 to $28,000.
“In addition to this, they claim amounts due on building contracts completed and nearly completed, about $74,000. Also other, general accounts receivable, of which we have not had definite statement.
“As against these assets, there are real estate mortgages of $62,000, general unsecured liabilities of about $80,000, and amount necessary to complete contracts estimated at $30,000. Upon these figures, which we have not yet been able to verify, this firm would seem to be amply solvent, and it is claimed that their present embarrassment is entirely due to the action of certain creditors in endeavoring to force claims by lien proceedings against the buildings under construction, and to the fact that their other assets are such as not to be immediately available in their business, and the action taken has been with the idea of obtaining financial assistance necessary to enable them to complete their contracts and realize the amounts due thereon.
“It will be of great assistance to us in our investigation if creditors will send us itemized statement of their claims, so that we can ascertain exactly the amount of liabilities. This statement need not be sworn to.
“If any of the indebtedness is in the form of promissory notes, we would like a statement of these notes, with date of execution and of maturity.
“We trust that you will assist us in this matter, and that we may promptly hear from you.
“Very respectfully,
“The Michigan Trust Company,
“By George Hefperan, Secretary.”
The firm of George Rickman Sons’ Company consisted of four members (the parties to this suit). It was the principal contractor in the year 1910 for the erection of a courthouse for Oneida county, at Rhine-lander, Wis., and also for the erection of the Owosso postoffice at Owosso, Mich.; the Holland city hall at Holland, Mich; a high school building at Chelsea, Mich.; and the Masonic Temple at Flint, Mich. The claimant, Thomas M. Robinson, was one of the subcontractors in the construction of said courthouse at Rhinelander, Wis., and was also one of the subcontractors in the construction of the above-mentioned buildings in Michigan.
The following subcontractors for the building and construction of the said courthouse brought suit in the circuit court for said Oneida county, against above-named complainant and defendants as copartners and said Oneida county jointly, the time of the several proceedings in each of the said shits being as follows:
“ (a) Saginaw Sheet Metal Works, a Michigan corporation. Summons issued August 25, 1910, served upon said Oneida county at 4:-30 p. m. on August 25, 1910; served upon balance of defendants by personal service upon said Arthur Rickman, one of the said defendants, at Rhinelander, said Oneida county, August 25, 1910. Judgment was rendered November 1, 1910, against the said above-named complainant and defendants composing said copartnership, and against said Oneida county, in the sum of $1,250.72 damages and $29.80 costs. Judgment and costs ($1,280.52) paid plaintiff November 15, 1910.
“(b) Thomas M. Robinson, of Michigan. Summons issued August 25, 1910, and served upon said Oneida county at 4:21 p. m., August 25, 1910, and upon the balance of said defendants by personal service upon said Arthur Rickman, at Rhinelander, said Oneida county, on August 25, 1910. Judgment was rendered November 1, 1910, against said above-named complainant and defendants composing said copartnership and against said Oneida county, in the sum of $2,965.26 damages, and $28.82 costs. Judgment and costs ($2,994.08) paid plaintiff (above claimant) November 15, 1910.
“(e) Union Foundry Works, an Illinois corporation. Summons issued August 25, 1910; served upon said Oneida county at 4:22‘ p. m., and upon the balance of said defendants by service upon said Arthur Rickman, personally, at Rhinelander, said Oneida county. Judgment was rendered November 1, 1910, against said above-named complainant and defendants, composing said copartnership, and against said Oneida county in the sum of $2,406.51 damages and costs.
“(d) Scott-Taylor Company, a Wisconsin corporation, of Ashland, Wis. Summons issued' August 25, 1910, and served upon said Oneida county at 4:23 p. m. on said day, and upon the balance of said defendants by personal service upon said Arthur Rickman, at Rhinelander, said Oneida county. Judgment was rendered November 1, 1910, against said complainant and defendants, composing said copartnership, in the. sum of $909.37 damages and costs, and against said Oneida county in the sum of $307.86.
“(e) Wheeler-Blaney Company, a Michigan corporation. Summons issued November 24, 1910; served upon said Oneida county at 3:45 p. m. on said day; no service being made upon balance of defendants. No further steps taken to secure judgment.”
At the time (August 25, 1910) these suits were commenced, there was due said copartnership from said Oneida county, on estimates for work done on said courthouse, the sum of $6,998.97.
The sections of the statutes under which the suit of claimant, in Wisconsin, was brought are sections 3328 and 2884 of the Laws of Wisconsin, Revision of 1898, and are as follows:
“Sec. 3328. Any subcontractor who has done work or labor, or furnished materials to any principal contractor for the construction, repair or removal of any building or machinery for any county, town, city, village, or school district, may maintain an action therefor in the county in which such work, labor or materials were done or furnished, against such principal contractor, and such county * * * jointly, for the recovery thereof; but no judgment shall be rendered against any defendant therein, other than such principal contractor for any amount greater than the amount due from it to such principal contractor at the time of the commencement of such action. Such county * * * when served with the summons in any such action, may give notice thereof to such principal contractor, and on so doing, need not further defend such action. On rendition of judgment in such action against such principal contractor, the court may also render judgment against such county * ^ * for the amount due from it to such principal contractor, at the time of the commencement of such action, or to a sufficient amount to pay the judgment recovered against the principal contractor, and payment thereof shall discharge its indebtedness to such principal contractor to the amount so paid. Such principal contractor may, in .such action, file in the court in which it is commenced, a bond, in such sum and with such sureties as the judge of such court shall approve, conditioned for the payment of any judgment that may be rendered in such action, and thereupon the liability of such county * * * hereunder, shall cease, and the action as to it shall be discontinued without costs to it.”
“Sec. 2884. When the action is against two or more defendants, and the summons is served on one or more, but not on all of them, the plaintiff may proceed as follows:
“1. If the action be against several persons, jointly indebted upon a contract, he may proceed against the defendant served, unless the court shall otherwise direct, and, if he recover judgment, it may be entered in form against all the defendants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendant’served, and, if they are subject to arrest, against the persons of the defendants served.
“2. In any action against defendants severally liable, he may proceed against the defendant, or defendants, served, in the same manner as if such defendant or defendants were the only parties proceeded against.
“3. If all the defendants have been served, judgment may be taken against any, or either of them, severally, when the plaintiff would be entitled to judgment against such defendant or defendants, if the action had been against them, or any of them, alone.”
An exemplified copy of the judgment rendered in Wisconsin in favor of said claimant was offered and received in evidence, and is as follows:
“State of Wisconsin, In Circuit Court, Oneida County.
“Thomas M. Eobinson,
“Plaintiff,
“v.
“Alfred G. Eickman, Arthur W. Eickman, Peter L. Eickman, and William B. Eickman, Copartners, Doing Business under the Firm Name of George Eickman Sons’ Company, and Oneida County, “Defendants.
“The summons in this action having been personally served upon the above-named defendants, Arthur W. Eickman and Oneida county, on the 25th day of August, 1910, and due proof of such service having been made and filed, and it appearing by proof duly made and filed that after due diligence the above-named defendants Alfred G. Eickman, Peter L. Eickman, and William B. Eickman cannot be found and have not been served, and it further appearing by the affidavit of H. F. Steele, attorney for the plaintiff, that no demand for copy of the complaint, and no answer, demurrer, or notice of appearance, has been served upon or received by him from or in behalf of said defendant Arthur W. Eickman, and that neither said Arthur W. Eickman nor the above-named defendants Alfred G. Eickman, Peter L. Eickman, and William B. Eickman, or any or either of them, have appeared in this action; and this action having come on for trial at this regular term of court on this 1st day of November, 1910, upon the answer of the above-named defendant, Oneida county, H. F. Steele appearing for the plaintiff and S. S. Miller for the defendant; and it appearing from the complaint herein, which is duly-verified, that the above-named defendants Alfred G. Rickman, Arthur W. Rickman, Peter L. Rickman, and William B. Rickman, as principal contractors, are jointly indebted to the plaintiff herein, as subcontractor, upon the contracts set out in said complaint, and in the amount demanded in same, and that judgment should be rendered in form against all of the defendants last named, and the said defendant Oneida county having, by its answer herein, admitted its indebtedness to the said defendants Alfred G. Rickman, Arthur W. Rickman, Peter L. Rickman, and William B. Rickman jointly, at the time of the commencement of this action, as principal contractors, upon its contract with same, set out in the complaint, in the amount of $6,988.97, and not having denied any of the materia!allegations of said complaint: Now, on motion of H. F. Steele, attorney for the plaintiff, it is ordered and adjudged that the said Thomas M. Robinson, plaintiff, do have and recover of the said defendants Alfred G. Rickman, Arthur W. Rickman, Peter L. Rickman, and William B. Rickman, and the defendant Oneida county, the sum of $2,965.26, damages, and the sum of $28.82 costs, making in all the sum of $2,995.08; this judgment to be enforced only against the joint property of said defendants Alfred G. Rickman, Arthur W. Rickman, Peter L. Rickman, and William B. Rickman, and the separate property of said defendants Arthur W. Rickman and Oneida county.
“Dated November 1, 1910.
“By the Court:
“A. H. Reid, Circuit Judge.”
There was no order issued by the circuit court of the county of Kalamazoo, in chancery, in this suit restraining the claimant, or other creditors, from maintaining the suits in Wisconsin. No ancillary receivership proceedings were sought to be brought in said Oneida county, and no receiver, for the said complainant and defendants, as such copartners, or for the property of said copartnership, was appointed in said county or State. No action was taken by said copartners, or by the said receiver, to stay the proceedings in said causes in Oneida county, or to prevent the rendition of said judgments.
On November 10 or 11, 1910, and prior to the payment of said judgments in Wisconsin, the attorney for the receiver, and for Henry G. Dykehouse, one of the creditors, went to Rhinelander and there saw H. F. Steele, who was attorney for all of the claimants, who had secured judgments against the Rickman Company and Oneida county jointly. He objected to any payments being made at that time to the judgment creditors by the county of Oneida, to Mr. Steele, and also Mr. Miller, who was a member of the Building Committee of the Board of Supervisors, and at that time served upon Mr. Steele the following notice:
“To H. F. Steele, Rhinelander, Wisconsin, attorney for the Saginaw Sheet Metal Works, Thomas M. Robinson, the Union Foundry Works and Scott-Taylor Company, and ail persons represented by you are hereby notified, in behalf of the Michigan Trust Company of Grand Rapids, Michigan, which was on the 27th day of September, 1910, duly appointed receiver of Arthur W. Rickman, Peter L. Rickman, William D. Rickman and Alfred G. Rickman, as copártners, doing business under the name of George Rickman Sons’ Company, by the circuit court for the county of Kalamazoo, Kalamazoo county, State of Michigan, for and in the interests of the creditors of said firm and on behalf of Henry G. Dykehouse as a creditor of the said firm of George Rickman Sons’ Company, that said firm of George Rickman Sons’ Company, is and was at and before the commencement of the suits hereinafter set forth insolvent and had sufficient assets only to pay a percentage upon the debts of said copartnership; and that whereas, on, to wit, the 25th day of August, 1910, suits were commenced in the circuit court for the county of Oneida, State of Wisconsin, one by the Saginaw Sheet Metal Works, one by the Union Foundry Works, one by Thomas M. Robinson, and one by the Scott-Taylor Company against said copartnership, George Rickman Sons’ Company and Oneida county, in which said several actions judgments were thereafter rendered on the 21st day of October, 1910, and the 1st day. of November, 1910, said judgments were docketed by the said clerk of said court on the 3d day of November, 1910, as will appear by the said records and files in said court: You are therefore notified that pending the filing of a petition in bankruptcy in the district court of the United States for the western district of Michigan, southern division, and pending the adjudication of George Rick-,man Sons’ Company to be bankrupt, any payments made by said Oneida county, to said judgment creditors and plaintiffs, will be considered void and will be void as preferences under the bankruptcy act of the United States and that appropriate actions will be maintained by the receiver in bankruptcy and by the trustee in bankruptcy to set aside and declare void all such payments and to recover the amount of said payments from said judgment creditors and plaintiffs and to recover the balance from said Oneida county upon its contract with said firm of George Rickman Sons’ Company for the construction of a courthouse at Rhinelander, Wisconsin, out' of which the consideration of said claims of said judgment creditors arose.”
The said attorney for the receiver represented to the parties addressed in the above notice that unless these judgments were vacated, bankruptcy proceedings would be brought. This statement was made on behalf of the receiver and on behalf of Mr. Dykehouse, the creditor, whom he represented.
Bankruptcy proceedings had not been commenced, and in fact were never brought, but had been discussed at that time, and upon his return to Grand Rapids he wrote Mr. Steele the following letter; payment of the claimant’s judgment, however, had been made on November 15, 1910, by the county of Oneida:
“Nov. 16, 1910.
“Mr. H. F. Steele,
“Attorney at Law,
Rhinelander, Wis.
“Dear Sir:
“Since my return home I have further considered the matter of the claims in the suits of Thos. M. Robinson, Union Foundry Works and Scott-Taylor Co. upon their judgments at Rhinelander. It seems to me that there can be little question but that these judgments do not constitute such a lien as to give them a preference in bankruptcy. While I am ready to file a petition if these creditors stand on their claims I would prefer not to have this additional expense if after conferring with your client you would be willing to release these judgments, and shall therefore wait for your communication in regard to their intention in the matter of these suits'. Rather than have the expense of litigation over the matter, as I stated to you at Rhinelander, I would be willing to make some concession. In view of the fact that the affairs of the estates are still in an unliquidated condition, so that we cannot definitely determine the exact amount of assets and liabilities, it would be difficult at this time to make a definite agreement in this regard. If your clients would be willing to wait for thirty days until the affairs of the estate would be worked out more fully we would then be in a better position to determine just how much of a concession we would be willing to make on the settlement of these matters without further litigation. Will you not consider this matter fully and write me at as early date as possible, letting me know your determination in this regard.
“Yours very truly,
“Charles M. Owen.”
On January 20, 1911, a decree was entered in the said cause. It found that said copartnership had been engaged in the business of building, and in the management of a hotel at Kalamazoo, known as the Hotel Rickman; that there had been no formal written articles of copartnership; that said copartnership was-not agreed to be continued for any definite time, but was terminable at any time at the will of either of said copartners, and that said copartnership was by said decree dissolved; that the interests of said co-partners were equal, each having an undivided one-fourth interest in said firm and its assets; that inasmuch as it was necessary in the first instance to pay the firm creditors, the court did not, at that time, fix or determine the equities of the copartners between themselves, in the assets of said firm, but ordered that either of said copartners should be at liberty to apply to the court to determine such equities as between themselves, in any surplus that should remain for distribution. From the proofs it appeared that the indebtedness of said firm was then in excess of .$200,000, and that it was desirable, in the interest of creditors, to make a sale of the assets of said firm •and to liquidate said assets for the purpose of paying the indebtedness of said firm, or such dividends thereon, as it might be possible to pay after satisfying the expenses of the receivership and of the management and conservation of the firm assets and business.
The Michigan Trust Company was by the decree appointed receiver of all and singular the assets and properties of said firm, with full power to take possession thereof, and conserve and control the same, to manage and conduct the business theretofore carried on by said firm, to manage and conduct the operation, and to continue the business of the Hotel Rickman, and to make such agreements and incur such expense as should be necessary for the management, control, and operation of said property, to collect and receive the moneys due or owing to said firm, or to said receiver, or to the temporary receiver theretofore appointed, and out of said receipts to pay expenses of prosecuting the business and management of the several properties of said firm, and such dividends to creditors as the court might, from time to time, direct, and that said receiver' should also have all the usual powers of a receiver appointed by a court of chancery in partnership cases.
The appointment was made in succession to the appointment of a temporary receiver, contained in the order made on September 27, 1910, and it was ordered that the receiver thereby appointed should succeed to all and singular the rights theretofore possessed by said temporary receiver, and should take and be vested with the title to the choses in action, which had theretofore accrued to said temporary receiver in the conduct of the business carried on by it, with power to confirm and ratify such agreements, with reference to the management and control of said assets and property as should have been entered into by said temporary receiver, and to carry out and perform said agreements; the appointment thereby made was to take effect on the filing of an acceptance in writing by the Michigan Trust Company, containing an undertaking on its part for the faithful discharge of the duties of its appointment, and to account for all moneys and effects received by it as such receiver, and such appointment was to continue until the further order or decree of the court.
The creditors of said firm were, by said decree, required to exhibit their demands by filing proofs of their respective claims in the office of the register of the court. It provided that said receiver should, within 10 days from the date thereof, give notice thereof by mail to each creditor of said firm known to said receiver, and within 90 days thereafter should make and file with the court proof of service of such notice; the notices served should require all creditors to prove their debts and claims within 90 days from the date thereof, by a proof of claim to be filed in said register’s office, or, in default thereof, the receiver would proceed to distribute said estate as soon as practicable thereafter, without reference to claims not proved when dividends were paid; notice requiring the creditors of said firm to exhibit their demands by filing proofs thereof in said register’s office within the period aforesaid should also be given by said receiver by publishing such notice once a week for six successive weeks in the Kalamazoo Evening Telegraph.
Said decree also required that a list of said creditors (so far as known to said receiver), should be filed by it, with proof of service of the notice given by mail as aforesaid; that every proof of claim filed as aforesaid should be itemized as sworn to, and should state the actual amount unpaid and owing, the actual consideration- thereof, when the same was contracted, and when the same had or would become due, whether any and what payments had been made thereon, that the sum claimed was justly due from said firm to the claimants, and that the claimant had not, nor had any other person for his use, received any security or satisfaction whatever, other than that by him set forth.
The decree provided that the receiver, or either of the parties to the cause, might contest any claims filed as aforesaid; that every creditor desirous of having a claim filed by any other creditor contested might, by writing, request the receiver to contest such claim, whereupon it should be the duty of said receiver to investigate, and, if in its opinion it was deemed best so to do, such contest might be made in, such manner as should be thereafter determined by the court.
. The receiver was directed to cause an inventory of the property coming to its hands to be made, with an appraisement thereof, by two disinterested appraisers to be chosen by it.
By the decree the parties to the cause, said receiver or any other party in interest, were given leave to apply to the court at any time for any other or further grant of power to the receiver, or for such other or further order respecting the conduct of said receivership, or the properties embraced therein, as circumstances might render advisable.
In compliance with said order the claimant filed proof of his claim, showing balance due on contract for material furnished for normal school building at Kalamazoo; for material furnished for high school building at Chelsea, Mich.; for balance for material furnished for city hall building at Holland; balance for work, labor, and material furnished for Owosso postoffice; balance for work, labor, and material furnished for Masonic temple, Flint, Mich., with interest in each instance; also balance on unpaid note given April 24, 1910, to apply on the Holland city hall contract, and credited as payment thereon, with interest at . 6 per cent. After the proof of claim was filed, various credit items were allowed by claimant, and payments were made to. claimant. At the time of the hearing the amounts due were as follows:
Balance due on Holland city liall contract, with interest thereon from March 1, 1910.. $1,055 84
Balance due on Chelsea high school contract,
with interest thereon from March 1, 1910.. 465 32
Balance due on said unpaid note, with interest due as shown on said note.......... 500 00
Total................................. $2,02116-
The record further shows -that the list of claims filed by creditors shows that on accounts amounting to between $4,000 and $5,000 no interest whatever was claimed; that on other items interest was claimed from various times. One or two items of interest was claimed from 1908. The majority of the items bore interest from 1910. On $16,000 of the claims interest was claimed from 1912. It further appeared that said firm was insolvent, that the receiver, under the direction of the court, has declared and paid a dividend of 20 per cent, to creditors, and that no more than an additional dividend of 20 per cent, will be realized and be available for distribution among creditors.
The objection of the receiver, appellant, to the allowance of the claim of claimant filed in said cause was as follows:
“It objects to the claim of Thomas M. Robinson, who has filed a claim herein for $4,233.03 for the reason that after the appointment of the receiver herein, and with full knowledge thereof, said Thomas M. Robinson recovered a judgment against said copartnership and against the county of Oneida, Wis., for the sum of $2,994.08, on the 1st day of November, 1910, at which time said Thomas M. Robinson was a creditor of said copartnership; that afterwards said Thomas M. Robinson received from said county of Oneida the sum of $2,994.08, due from said county of Oneida to said copartnership, and thereby received a preference over the other creditors, whereby it is inequitable that said Thomas M. Robinson should share in the dividends declared by this estate until the amount of dividends declared and distributed in this estate on the total amount of the claim of said Thomas M. Robinson, including said judgment, should amount to said sum of $2,994.08.”
The matter came on to be heard upon the petition of the receiver, setting forth its objections to various claims of creditors which had been filed, including that of claimant, and asking for an order setting a date of hearing of said claims after due notice to the claimant. Such hearing was finally had on December 28, 1912, and an order was made by the court below allowing the claim of said claimant in full for the whole amount claimed by him against said estate at the sum of $2,021.16, and an order was made February 19, 1913, of which the following is the substance, after entitling the court and cause, to wit:
“In the Matter of the Claim of Thomas M. Robinson and Saginaw Sheet Metal Works.
“After hearing the evidence in support of and against the claim of said claimants, it is hereby ordered, adjudged, and decreed that each of said claimants is entitled to share in any dividends declared, without any deductions being made for payments received by them from said fund under said judgments rendered in Wisconsin; each of said claimants is entitled to and is hereby allowed a solicitor fee of $25 and costs amounting 'to $10 each, in said matter. The amount of the claim of Thomas M. Robinson should be $2,021.16, * * * with interest as shown in the proofs of the respective claimants.”
Later, and on the 17th day of March, 1913, a decree was made and filed in said cause, which contains the following language:
“First. That the amount''ót. the claim of said Thomas M. Robinson herein is fixed" and determined by this court in the sum of $2,021.16, with interest thereon at the rate of 5 per cent, per annum on the sum of $1,055.84 from May 1, 1910, and on the sum of $465.32 from March 1, 1910, and with interest on said unpaid note of $500 at the rate specified in said note from the date thereof.
“Second.. That the Michigan Trust Company, receiver, heretofore appointed in this cause, shall, from the funds in its possession as such receiver, pay to said claimant Thomas M. Robinson a dividend on his claim of equal percentage to that paid other claimants herein whose claims were not contested.
“Third. That the said receiver shall, from the funds now or hereafter coming into its possession as such receiver, pay to said claimant Thomas M. Robinson a dividend on the interest due on his claim equal in percentage to that paid under the second paragraph herein.
“Fourth. That the said receiver shall, from the funds in its possession, or hereafter coming into its possession as such receiver, pay to the said claimant Thomas M. Robinson, a solicitor fee of $25 and costs in the sum of $10.”
Upon the hearing the attorney for claimant was called as a witness by the receiver, and gave certain testimony relating to his information concerning the financial condition of the firm at and before the time suit was begun in Wisconsin. His testimony tended to show that, while a notice had been served upon the Wisconsin attorney representing the claimant, as above set forth, in which it was stated that at and before the commencement of the suits in Wisconsin said firm was insolvent, and had sufficient assets only to pay a- percentage upon the debts of said copartnership, he made investigation and was unable to verify such statement, as the assets and liabilities of the firm at that time were not known, but were by him supposed to be sufficient to pay in full the debts of the copartnership. From which order and decree, so far as they allowed the claim of said Robinson, the receiver has appealed to this court.
By its brief the appellant and receiver claims without conceding the validity of the judgment obtained by claimant in the Wisconsin court, but assuming for the purposes of argument that it was regular, that the claimant is not entitled to the relief he prays, and that he should receive no dividends until the total dividends in said estate would on his claim, including said judgment, exceed $2,994.08. The appellant’s argument, contained in the brief of its solicitors, proceeds upon the following propositions:
(1) The receiver could have enjoined the Michigan creditors from proceeding to judgment in the Wisconsin court; (2) the claimant Robinson is in contempt, and does not come into court with clean hands; (3) as to whether a lien existed under the Wisconsin statute; (4) as to whether a lien on this fund was created by the Wisconsin statute from the fact of its being in the nature of a garnishment; (5) substituted service; (6) the rule of comity is subject to the rule that the courts of each State will first protect the citizens of that State, as against residents of another State.
It is the claim of appellant that, by virtue of its appointment as receiver, it was vested with the right, as against all the creditors of the firm of George Rickman Sons’ Company, resident of the State of Michigan, to take possession of and administer, under the direction of the court, all the assets and property of that firm located in the State of Michigan, or elsewhere, except as against the rights and equities of creditors resident in States other than Michigan, in which, the same might be situated. It is a significant fact that should not be lost sight of that no bankruptcy proceedings have ever been instituted against said firm; that as early as the 25th day of August, 1910, suit had been commenced by the claimant against said firm and Oneida county in the circuit court of Oneida county, State of Wisconsin, and that service was had on that day upon Arthur W. Rickman and Oneida county.
If it shall turn out that the commencement of this suit operated as a garnishment of the fund in Wisconsin, and that such garnishment operated as a lien in favor of the claimant upon that fund, then we do not think the authorities cited by appellant upon this proposition are applicable here. The Michigan cases cited by counsel, of Butler v. Wendell, 57 Mich. 62 (23 N. W. 460, 58 Am. Rep. 329), and Cohen v. Order of the Iron flaB/105 Mich. 283 (63 N. W. 304), are readily distinguished from the instant case, in the event that claimant, by the above-mentioned proceedings, obtained a lien upon the fund in Wisconsin.
Counsel also call attention to the case of Gilman v. Ketcham, 84 Wis. 60 (54 N. W. 395, 23 L. R. A. 52, 36 Am. St. Rep. 899). That case is readily distinguished from the instant case for many reasons. In that case there was a voluntary proceeding for the dissolution of a corporation of another State, and a receiver had been appointed by a court of that State, and the creditors had been enjoined from prosecuting actions against the corporation. The Wisconsin court said:
“The situation, in brief, is that after the plaintiff had been enjoined, by a competent court of the jurisdiction in which he resided, from bringing any action against the corporation, * * * and after an adjudication absolutely dissolving the corporation had been made, and after the title to its property, effects, and credit had been vested in the claimant as such receiver, the plaintiff came into the circuit court of this State, and commenced an action to recover his demand against a dissolved corporation.”
We are dealing here with a case in which the claimant had commenced his suit more than a month before the bill of complaint was filed in this cause. It should be noted that the bill of complaint was filed to dissolve a copartnership and for an accounting, and not to wind up a corporation; also that no injunction had been issued, or action taken by the receiver to interfere with the progress of the suit in the State of Wisconsin. The claimant had in no way been made a party to the chancery suit commenced in the Kalamazoo circuit. So far as the record shows, at that time the copartnership was supposed to be solvent, and there seems to have been no reason why the claimant might not proceed to enforce his lien in the State of Wisconsin upon the money there'intended for the payment of the claims. Under such circumstances, we do not believe the receiver could have enjoined the Michigan creditors from proceeding to judgment in the Wisconsin court. Merchants & Manufacturers Nat. Bank v. Kent Circuit Judge, 43 Mich. 292-297 (5 N. W. 627); Baldwin v. Wayne Circuit Judge, 101 Mich. 119-134 (59 N. W. 432); Baldwin v. Wayne Circuit Judge, 101 Mich. 432 (59 N. W. 669).
An injunction should not issue at the suit of a receiver to enjoin a creditor, who has garnished funds of the corporation, from proceeding with his suit.
If claimant had obtained a valid lien on the fund, it was not dissolved by the filing of the bill and the appointment of a receiver, but may be enforced.
It will be noted, also, that there were a number of suits pending in the Wisconsin court, including Michigan, Illinois, and Wisconsin creditors. The result of an injunction would have been to deprive the Michigan creditor of his remedy and lien there, leaving the field open for the Illinois and Wisconsin creditors to
exhaust the fund, for, as it turned out, the fund was not large enough to pay all of the claims in full, but the judgments were paid in the order in which the suits were begun. Under such circumstances an injunction would not have been issued. Washington Lodge v. Frelinghuysen, 138 Mich. 350-355 (101 N. W. 569) ; Campau v. Film Co., 159 Mich. 169-172 (123 N. W. 606).
It seems to us that the receiver bases its entire theory on the assumption that it made no difference whether the suits in Wisconsin were begun prior to the appointment of the receiver, or subsequently. We think there is a marked difference, and that a different rule should be applied. This court has held that, after the appointment of a receiver for an insolvent, the right of a creditor to sequester property by attachment, and thus gain priority, is suspended. Butler v. Wendell, 57 Mich. 62 (23 N. W. 460, 58 Am. Rep. 329). There the assignment was made prior to the commencement of the garnishee proceedings, and was valid in the State where made. See, also, Cohen v. Order of the Iron Hall, 105 Mich. 283 (63 N. W. 304). There the receiver was appointed in Indiana, and on the same day suit was commenced in Michigan and an ancillary writ of garnishment was issued. This court said, at page 288 (63 N. W. 306):
“If it be conceded that the prior appointment of a receiver by the Indiana court would have relegated plaintiff to that court, it does not appear, under either rule, that such appointment preceded the commencement of the present suit. We are of the opinion that under the rule laid down in Granger v. Circuit Judge, 27 Mich. 406 [15 Am. Rep. 195], the pendency of the proceedings in the Indiana court did not deprive plaintiff of his remedy at law.”
We do not agree with appellant’s contention that claimant Robinson was in contempt of court in proceeding to take his judgment in the Wisconsin court. At that time it did not appear that the copartnership was insolvent, nor had any legal steps been taken to invoke bankruptcy proceedings, or to restrain claimant from proceeding to enforce his lien.
This court held in Baldwin v. Wayne Circuit Judge, 101 Mich. 119-134 (59 N. W. 432), that proceedings for contempt are not appropriate for the trial of issues involving a right to a fund as between receiver and a garnishee of the fund. See, also, Alderson on Receivers, §§ 211-219.
The case of Campau v. Driving Club, 130 Mich. 417 (90 N. W. 49), is readily distinguished from the instant case.
The third and fourth propositions may well be considered together. We agree with the contention of the claimant that the commencement of the suits in Wisconsin by the four subcontractors gave each a lien on the fund then owing by the county to the copartnership, with priority of payment in the order of time when such suit was begun. Thus the supreme court of Wisconsin has interpreted the statute which we have already quoted, and has held that the action under this law is equivalent to a garnishment proceeding. We think that the commencement of such actions gave the plaintiffs therein priority over subcontractors and creditors of the principal contractor who might begin their actions later. James v. Davidson, 81 Wis. 321 (51 N. W. 565). In the case last cited that court said:
“These actions, under section 3328, Revised Statutes, are the equivalents of garnishee actions brought by the same creditors of Russell v. County” —citing Klaus v. Green Bay, 34 Wis. 628, and continuing :
“The commencement of each such action gave the plaintiff therein priority over subcontractors and creditors of Russell who commenced their actions later. This plaintiff, being the first to bring an action, is entitled to be first paid out of the moneys* adjudged to have been due Russell from the county when the action was commenced.”
In the suits of the four claimants in Wisconsin the Oneida circuit court carried out the same principle. The amount impounded was not sufficient to pay the claims of all four creditors who had filed suits. The judgments of these four creditors were paid in the order of time in which these suits were filed, and the Scott-Taylor Company, a Wisconsin corporation, being the last claimant to file suit, did not receive payment of its judgment in full from the partnership assets so impounded. The judgments not only established the fact that each claimant had a lien, with priority of payment in the order in which the suits were begun, but also that foreign creditors who commenced suit prior to the Wisconsin creditors were entitled to payment from the fund, even to the depletion of the fund, so that the local Wisconsin creditor did not receive payment of its judgment in full.
It is urged by appellant that the language of the statute is permissive only, in that it is said, “that a court may render judgment.” The Wisconsin courts have held that the exercise of the statutory power which is permissive only in form is jiot discretionary where public interests or individual rights call for its exercise. Brawley v. Mitchell, 92 Wis. 671 (66 N. W. 799), citing many cases. This is also the general rule. See 2 Lewis’ Sutherland Statutory Construction (2d Ed.), § 636, pp. 1149, 1150. This court should follow the construction placed upon these statutes by the Wisconsin courts. Id., vol. 1, § 13, p. 22; 36 Cyc. p. 1104; Black on Interpretation of Laws, § 145, p. 381.
It should be remembered that in this case a bill was filed by one copartner for the dissolution of the partnership and an accounting from the other co-partners. By consent a temporary receiver was ap pointed to carry on the business of the copartnership until the cause could be heard. Such receiver was not entitled to possession of the fund impounded, over a month before, by the suits commenced in Wisconsin. High on Receivers (4th Ed.), § 539, p. 704; Weber v. Weber, 90 Wis. 467 (63 N. W. 757).
“The receiver of a partnership takes only its rights, and consequently is affected by all claims, liens and equities which would prevail against the partnership if it were asserting its interest in the property.” Alderson on Receivers (1905), p. 223.
The receiver takes only such title as the partnership had, subject to all valid or existing liens thereon. Alderson on Receivers (1905), p. 658.
Claimant having obtained a lien on the fund, the receiver is not entitled to possession of the same. Baldwin v. Wayne Circuit Judge, supra; Brownson v. Roy, 133 Mich. 617 (95 N. W. 710).
The doctrine is well stated in 23 Am. & Eng. Enc. Law (2d Ed.), pp. 1091-93, as follows:
“The appointment of a receiver for property does not affect pre-existing liens upon the property, or vested rights or interests of third persons therein. * * * A receiver, it is held, succeeds to only such right, title, and interest in the property as the individual or corporation for which he is appointed receiver had at the time the appointment was made. The receiver takes his title to the property subject to all the equities to which it was subject in the hands of the debtor” — citing many cases.
Where property of the debtor is subject to a lien prior to the time of commencement of receivership proceedings and appointment of receiver over all of debtor’s property, the receiver is not entitled to possession of the property, and the lienor can enforce his lien as against the property.
An abundance of authority may be cited in support of this doctrine outside of this State. We have already cited sufficient authority upon the subject.
That the lien attached on the filing of the suits in Wisconsin there can be no question under the authorities which we have cited. The receiver in Michigan was appointed subsequent to the commencement of the Wisconsin suits, but prior to the time of judgment. Under such circumstances the plaintiffs in the Wisconsin suits were entitled to proceed with these suits and hold the fund' subject to their liens. The money impounded in Wisconsin may be said to have been a fund for the satisfaction of such liens. Baldwin v. Wayne Circuit Judge, supra. The same rule is laid down in the case of Ross v. Titsworth, 37 N. J. Eq. 333.
It will be noted that in the case we are considering the court below did not make a decree dissolving the copartnership and ordering creditors to file their claims until January 20, 1911. In the meantime claimant’s Wisconsin judgment had been paid. Until this decree was entered it cannot be said that the claimant was in any sense a party to the litigation, or affected by it in so far as the proceedings in Wisconsin were concerned.
.The doctrine of the Wisconsin court that the service of garnishee process creates a lien upon the property of the principal defendant in the hands of the garnishee defendant, entitling the plaintiff to hold such property for the satisfaction of his claim, is the general doctrine. In addition to the cases already cited, we'may cite that of Bethel v. Judge of Superior Court, 57 Mich. 379 (24 N. W. 112) ; 20 Cyc. p. 1063; Rood on Garnishment, §§ 180, 192, 193, 194.
Substituted Service. The receiver contends that as personal service was had on only one of the copartners in Wisconsin, and no service was had on the other copartners, the judgment obtained in Wisconsin against the copartnership property will not be recognized. It should be borne in mind that the claimant in these proceedings is not seeking to enforce his Wisconsin judgment against any partnership assets in Michigan, or against the separate property of any of the copartners not served. The Wisconsin judgment was satisfied out of the funds impounded there. The only use made of such judgment in this proceeding is to establish the fact that claimant had, through suit, secured a valid lien on the fund in Wisconsin, out of which fund his judgment was paid. His claim filed in this suit is on entirely different matters arising out of construction work done by him as subcontractor of various contracts in Michigan. The Wisconsin statute which we have quoted, being section 2884, is substantially like our sections 10371-10374, 3 Comp. Laws. It has been held that where one of several copartners has been served with process, the copartnership property is liable. Gunzberg v. Miller, 39 Mich. 80; Smith v. Runnells, 94 Mich. 617 (54 N. W. 375).
Claimant was proceeding to impound the partnership funds in Wisconsin. There is no question that under the laws of that State, the Wisconsin court had jurisdiction to render the judgments against the fund which it did render, and, therefore, the receiver representing the partnership is in no better position than the partnership would be to contest the validity of such judgments. We think the judgment in that court is conclusive upon the parties to the action and their privies. Mitchell v. Chambers, 43 Mich. 150 (5 N. W. 57, 38 Am. Rep. 167) ; Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 489 (33 N. W. 834) ; Dunlap v. Byers, 110 Mich. 109 (67 N. W. 1067) ; Spiker v. Relief Society, 140 Mich. 225 (103 N. W. 611, 104 N. W. 670).
We do not think that the comity rule is involved in this case. We have, in our opinion, said enough to dispose of the case.
We find no error in the order and decree of the lower court, and the same are affirmed, with costs to the claimant.
McAlvay, C. J., and Brooke, Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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McAlvay, C. J.
Complainants filed this bill claiming to own a certain strip of land in the village of Morenci, Lenawee county, Mich., next adjoining on the east to the premises of defendants, where defendants were proceeding to erect a certain building, and to make excavations for the basement walls and foundations of such building, whereby they were encroaching 2 feet upon complainants’ premises, who seek to enjoin such encroachment and trespass and establish their title to such strip of land. A temporary injunction was issued according to the prayer of the bill. Defendants answered, denying complainants’ right and title to the strip of land in question. An issue was joined, and a hearing of the cause had before the court, which resulted in a finding and decree that complainants had “not sustained their claim of title by adverse possession to” the strip of land 2 feet in width in dispute, and dismissed the bill of complaint, with costs to defendant. Complainants have appealed from such decree.
The material facts in the case, except the matter of adverse possession of this strip of land by complainants, are not in dispute. The facts necessary to be stated are that these adjoining properties are lo-' cated in the village of Morenci, fronting on Main street, which runs east and west; the west line of the west lot being the east line of North street, which runs north and south. The size of the two parcels of land is 48 feet fronting on Main street and 60 feet in depth along North street.
The two buildings, which were erected years ago on this entire description, were destroyed by fire in the year 1912. The westerly building, which fronted on Main street, and the west line of which extended 60 feet along the east line of North street, is known as the Mace building, and was built in 1855 upon the west half of the above description. This building was 22 feet wide on Main street. The lot was 24 feet wide. A narrow stairway occupied the east 2 feet, by means of which access was had to the second and third stories.
The building on the east was built by Mr. Gates, from whom the title of complainants is derived, about two years after the Mace building. The east line of defendants’ east wall extended to the east line of this property. Defendants’ west wall was built 22 feet from its east line, built of brick 8 inches thick from the foundation in the basement to the ground floor, and from the ground floor to the roof each story of it was built of studding 8 inches thick, covered with lath and plaster.
The 4 feet between the east wall of the Mace building and the west wall of the Gates building was occupied by a stairway, the foot of which began about 15 feet back from the front entrance on Main street to the landing on the second floor, and from this landing the second flight ran to the third floor landing, which extended back to the north wall of the building. This stairway was built for the use of all the tenants who occupied the second and third floors of both buildings, which were each three stories high, with a basement. The roof and front and rear walls of the Gates building extended to and joined the east wall of the Mace building.
These buildings, at or about the time the Gates building was constructed, became the property of and were occupied by a copartnership, known as W. R. Gates & Co., which consisted of William R. Gates, Waddell A. Mace, and George Acker, Jr. The basement in both buildings and the first floors were occupied by said firm in the conduct of their business, and the second and third floors were occupied by their tenants continuously from that time until the dissolution of said partnership, which occurred in 1872. When the partnership was dissolved, this property was acquired by two of the partners by deeds dated November 23, 1872, by which Mr. Mace took the west 24 feet and Mr. Gates, the east 24 feet of these premises, with the written condition in the deeds to each of them that the hall and stairway on the east side of the premises deeded to Mr. Mace and the west side of the premises deeded to Gates were to be used in common and kept in repair by the owners thereof. The record shows that, from the time the second building was built, in the year 1858, up to the time the buildings were destroyed by fire, in 1912, this hallway and stairs between the buildings were so used, occupied, and kept in repair by the owners.
Complainants claim title by adverse possession to the east 2 feet of defendants’ lot, except the south 15 feet of said strip, claiming that they and their predecessors in title have for many years last past been in the open, exclusive, and hostile possession and occupancy of the same, to the exclusion of all other persons; that in the basement they have occupied all of said strip up to the east basement wall of the building which stood upon defendants’ land, and in like manner have occupied for the same length of time the space under the stairway on the ground floor; and that by such adverse user have acquired title thereto.
On the part of defendants it is contended that, during all the time that complainants claim to have been acquiring this strip of land by adverse possession, it has all been occupied and used by defendants’ predecessors in title continuously and jointly with complainants, without interruption, and that the occupation of the same by complainants has not been and could not be a hostile and adverse possession.
The record shows, as already stated, that when the copartnership of W. R. Gates & Co. was dissolved, this property which was owned by them was divided, and deeds were duly executed, the west half to Mace, and the east half to Gates. Each of the deeds mentioned contained the following agreement:
“With the understanding that the hall_ and stairway on the east side thereof is to be used in common, and that the stairs be occupied and repaired by the owners of the same.”
The only difference in such agreements being that the deed to Gates of the east 24 feet of these premises describes “the hall and stairway on the west side of the premises.”
Defendants in this case have succeeded, by different conveyances, subject to this same condition, to the premises deeded to Mr. Mace. Complainants are the successors in title to the premises deeded to Mr. Gates through his will. It is apparent that, by these conveyances made by the predecessors in title of both parties to this suit, an easement was created in the 4 feet of land occupied by this hallway and these stairs for the mutual use and benefit of the grantees in such deeds and their successors in title for the joint and mutual use of such hallway and stairs, and, as already-stated, such joint and mutual use was continued until the buildings were destroyed by fire, in 1912.
The question arises whether either of the grantees in such deeds, or their successors, could acquire title to the 2-foot strip of land reserved in such deeds by adverse possession. The fundamental principle upon which adverse possession may be based is that it must be a hostile possession. It cannot be possible that any, use or occupation of any portion of these strips of land by either of the parties under these deeds, while both were in the exercise of the rights given to them under this easement, could be or was hostile to the other. Such a condition is repugnant to the terms of" the instruments under which they occupied. This is fundamental and axiomatic. Whatever use the complainants and their predecessors in title made of said disputed 2-foot strip was a permissive' user. Township of Jasper v. Martin, 161 Mich. 341- (126 N. W. 437, 137 Am. St. Rep. 508). In which case appears the following quotation from an opinion of Chief Justice Marshall:
“It would shock that sense of right which must be felt equally by legislators and judges, if a possession which was permissive, and entirely consistent with the title of another, should silently bar that title.” Kirk v. Smith, 9 Wheat. (U. S.) 241, 288.
We concur in the opinion of the trial court “that the proofs in the case do not sustain the claim of title by adverse possession made by the complainants to the strip of land mentioned and described in the bill of complaint.”
The decree of the circuit court is affirmed, with costs to defendants.
Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. Bird, J., did not sit. | [
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] |
Moore, J.
In November, 1908, the plaintiff purchased, upon contract, a city lot on La Salle street, Detroit. Defendants Schultz and Schultz were the owners of the adjoining lot on the west. The plaintiff began the erection of a house on his lot. He had built the basement, put a subflooring on the first floor, the studding was up and sheeted, the roof was on, a chimney built, and some work had been done on the interior of the house. In January, 1909, the defendants Schultz and Schultz obtained an injunction restraining further building operations. At this time a bond was required and given in the sum of $500 running to the plaintiff, signed- by the defendants Schultz and Schultz as principals, and by defendant Willis as surety. Part of the condition is as follows:
“Now, therefore, if the court shall eventually decide that the complainants in said cause were and are not entitled to said writ of injunction, and that the same was wrongfully sued out, in that event, if the said complainants shall pay or cause to be paid to the said Theodore F. Millspaugh such damagés as he may have sustained by reason of the wrongful suing out of said writ of injunction, then this obligation is to be void, otherwise to remain in full force.”
The chancery case was heard and a decree entered April 22, 1911, dismissing the bill. Said decree contained the following:
“And it is further ordered, adjudged, and decreed that the said defendant may bring an action at law to recover any damages he sustained by reason of the injunction issued against him in this cause against the principals and surety who executed the bond filed in this cause to save said defendant harmless for any damages he should sustain by reason of the issuing of said injunction in this cause.”
It does not appear that any appeal was ever taken from that decree.
On June 3, 1911, this suit was commenced in justice’s court. The justice’s return shows the following:
“The plaintiff declares in an action of assumpsit on all common counts, specially on a bond, claims damages $500 or under; the defendants plead general issue. The said cause was tried by court. That on the 1st day of November, 1911, I rendered judgment in favor of plaintiff and against defendants for $200 damages and $3.25 costs. And I do further return that the affidavit and bond herewith returned were delivered to me on the 6th day of November, 1911, and the costs of suit and appeal fees were at the same time paid.”
The record also shows that a bill of particulars was filed as follows:
Rent on said property for the period of one year, the length of time that plaintiff was delayed hy reason of the injunction granted to said Schultz in the completion of the building on the property No. 559 La Salle avenue.. $250 00
Depreciation in materials in the house in being
exposed to the weather...................... 250 00
Total..................................... $500 00
The bond declared upon was the bond given in the injunction suit and from which we have quoted. The following appears in the record:
“Mr. Sevald: In justice’s court a judgment of $200—
“Mr. Bowles: I take an exception to that remark.
“The Court: It is improper, and the jury is instructed to disregard such remark.
“Mr. Sevald: I offer in evidence a chancery case, Frederick E. Schultz and Dorothy C. Schultz, Complainants, v. Theodore F. Millspaugh; and I introduce. * * *
“Mr. Bowles: I wish to object to any evidence
under the plaintiff’s declaration; it is insufficient.
“The Court: The objecton may be noted. You may proceed, and I will take the matter under advisement.”
From a verdict and judgment in favor of the plaintiff the case is brought here by writ of error.
It is claimed the following is reversible error:
“Mr. Sevald: In justice’s court a judgment of $200.”
It will be noted from what we quoted that immediately upon objection the trial judge stated the remark was improper, and the sentence was never completed. In this connection we may say that some testimony was offered bearing upon the damages sustained because of the loss of rents. It is said the admission of this testimony was error. The court told counsel and the jury that the case must go to the jury for recovery only for damage or injury to the material.
Counsel for appellant seem to proceed upon the theory that the jury will not heed what is said by the trial court. We cannot so assume.
It is urged as error that the court declined to exclude all testimony under the declaration and to direct a verdict in favor of defendants. This is based upon the claim that the declaration did not comply with the provisions of section 10378, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13092), which reads:
“When an action shall be prosecuted in any court of law, upon any bond for the breach of any condi tion other than for the payment of money, or shall .be prosecuted for any penal sum for the nonperformance of any covenant or written agreement, the plaintiff, in his declaration, shall assign the specific breaches for which the action is brought.”
It is not necessary to decide whether this statute relates to a bond where there is, as in this case, but a single breach.
This case was commenced in justice’s court. The language of Justice Cooley, in Wilcox v. Railroad Co., 43 Mich. 584 (5 N. W. 1003), is germane here:
“It is no new thing to have an objection of this sort to the pleadings in justices’ courts raised before us. As the proceedings in those courts are commonly managed by parties unlearned in the law, defects in their allegations, when tested by the rules of art, are to be expected in almost every case which is at all complicated. If every such objection were disregarded, pleadings in justices’ courts would in effect be dispensed with. Every plaintiff might allege as much or as little as he pleased, and recover without regard to his allegations. If every one were sustained which would be good if made to pleadings in courts of record, the parties in justices’ courts would be driven to the employment of legal assistance in every case, and these courts, which are intended for the easy and inexpensive redress of wrongs not of great magnitude, would cease to accomplish their purpose. This court has adopted neither the one course nor the other. It has required the plaintiff in justices’ court to apprise the defendant fairly of the cause of action relied upon, but when this has been done, the court has refused to regard formalities or technicalities. The object of the declaration is fully accomplished when the defendant is fairly apprised by it of the grounds of the plaintiff’s claim, so that he need be under no misapprehension as to what matters are to be litigated on the trial. Hurtford v. Holmes, 3 Mich. 460; Daniels v. Clegg, 28 Mich. 32.
“Does the declaration in this case accomplish this purpose? It certainly informs the defendant what he is sued upon. The contract is recited, and defendant is notified that claim is made against him upon it, and upon nothing else. The contract itself specifies the conditions of liability, so that defendant knows there can be no recovery unless performance of these is proved. It is said the declaration does not count upon an assignment. But it counts upon a promise made to another, and upon which there could be no recovery except upon the proof of an assignment. The very claim to recover upon the paper was a claim as assignee, for it was only as assignee that plaintiff could have a right to it. Moreover, the paper was made payable to the railroad company or order, and there was an indorsement upon it by E. D. Kinne, as assignee, which fairly notified the defendant that Mr. Kinne claimed to have become entitled in some manner to order the payment to be made to a transferee. It is true this indorsement might have been more formally made; it might and ought to have assumed the form of an assignment, with such recitals as would have shown Mr. Kinne’s authority; but the question now is whether the defendant was thrown off his guard or misled by any defects, and not whether the pleadings might have been made more perfect. We must judge of this upon all the facts, and not upon the face of the papers alone.
“What the defendant ought to do in every case in which the declaration is supposed to be fatally defective, is to demur, and thereby bring the defect at once to the attention of the court, before parties have been put to trouble and expense in preparing for trial. No doubt he has a legal right to abstain from doing this, when the defects, in substance, are such as cannot by any intendment be supplied or overlooked, but this course is not conducive to justice, and courts will not countenance it any farther than they may feel compelled to do so. When the defendant fails to demur, he tacitly concedes the sufficiency of the declaration, and the court will hold him to .this concession, whenever this can be done without probable injustice.”
See, also, Carmer v. Hubbard, 123 Mich. 333 (82 N. W. 64).
In the instant case, if the defendants had in the-justice’s court demurred to the declaration, or objected to the testimony because the requirements of the statute had not been observed, the declaration could at once have been amended. This was not done. The bond was before the parties. The decree in the chancery case determined it had been breached. The parties knew that the only question was whether plaintiff had been damaged, and, if so, how much. The defendants pleaded the general issue, and a trial was had upon the merits. We do not find any reversible error.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
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Brooke, J.
(after stating the facts). There are 18 assignments of error. The first two relate to the ruling of the court in permitting the witness Martin to answer the question, “I will ask you whether or not you found thése revolvers there?” and in compelling the defendant Cona to answer the question, “And they are your guns, aren’t they?” It is urged on behalf of defendant that the seizure of the revolvers in question was in violation of the Federal Constitution, citing Weeks v. United States, 232 U. S. 383 (34 Sup. Ct. 344). A reading of the opinion in that case makes it apparent, that the principles there announced and relied upon by the defendant are not applicable in the case at bar. People v. Adams, 176 N. Y. 851 (68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep, 675); Smith v. Jerome, 47 Misc. Rep. 22, 93 N. Y. Supp. 202. In the latter case it is said:
“The police have the power and it is also their duty to search the person of one lawfully arrested, and also the room or place in which he is arrested, and also any other place to which they can get lawful access, for articles that may be used in evidence to prove the charge on which he is arrested.”
The third assignment is based upon the ruling of the court in requiring the defendant to answer the question, “Now since you have been in Detroit have you had any other trouble with the officers, the police officers?” We are of opinion that the defendant having offered himself as a witness in his own behalf could be interrogated as to his former convictions, and the question objected to was, as shown by the testimony quoted, simply preliminary to that investigation.
Assignments of error 4, 5, 6, 7, 8, and 9 refer to alleged improper argument made by the prosecuting attorney on behalf of the people. That argument has been set out in the statement of facts. Defendant bases these exceptions upon the cases of People v. Quick, 58 Mich. 321 (25 N. W. 302); People v. Treat, 77 Mich. 348 (43 N. W. 983) ; People v. Lieska, 161 Mich. 630 (126 N. W. 636); People v. Huff, 173 Mich. 620 (139 N. W. 1033). There can be no difference of opinion as to the ruling announced in these cases. It is the duty of the prosecutor to protect the innocent as well as to pursue the guilty and to maintain an impartial attitude in the conduct of his case. But this court has never held that it is improper for the prosecutor to comment upon the testimony in the case and to draw warrantable inferences therefrom. People v. Winslow, 39 Mich. 505; Driscoll v. People, 47 Mich. 413 (11 N. W. 221); People v. Welch, 80 Mich. 616 (45 N. W. 482) ; People v. Hess, 85 Mich. 128 (48 N. W. 181) ; People v. Tubbs, 147 Mich. 1 (110 N. W. 182).
In the sixth assignment of error a further complaint is made of the language of the trial judge in admonishing counsel for defendant in these words:
“Now, listen; no more interruptions. Take your exceptions to his argument if you have got any to make. He didn’t interrupt you. Let him finish.”
That portion of the argument of the prosecutor set out in the statement of facts indicates very frequent interruptions on the part of defendant’s counsel and may be held to justify the statement by the court. A similar remark by the court in the case of People v. Ecarius, 124 Mich. 616 (83 N. W. 628), was held to be insufficient upon which to order a new trial.
Assignments of error numbers 10 to 13, inclusive, are based upon alleged erroneous instructions to the jury. No requests to charge were preferred on behalf of the defendant. A careful examination of the charge convinces us that the rights of the defendant were carefully guarded by the court. At the conclusion of the charge the court inquired of counsel for defendant if there was anything further he desired to have him charge, to which counsel responded: “That is all, your honor; thank you.”
Error is assigned upon the refusal of the court to grant a new trial because of newly discovered evidence. We have examined the affidavits filed in support of that motion. They are all dated more than two months after the date of the homicide. Affidavits filed by the prosecution in opposition to the motion cast doubt upon some of the statements contained in the affidavits filed upon the part of the defense. In view of the positive identification of the defendant by Officer Raedle and the fact that he was seen in the vicinity of the scene of the crime within a few min utes of the commission thereof, we cannot say that the trial judge abused his discretion in declining to grant the motion.
The conviction is affirmed.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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O’Hara, J.
Defendant was charged with felony murder arising out of the perpetration or attempt to perpetrate a robbery and was found guilty as charged by the jury. He was sentenced to life imprisonment and now appeals of right.
The initial assignment of error by defendant pertains to a claim that the trial court committed reversible error when it excused the production of two res gestae witnesses on the grounds that the people had exercised due diligence to produce the involved witnesses.
In general the prosecution is obligated to produce res gestae witnesses in order to protect the defendant from false accusations by insuring that there is disclosure of the whole of the res gestae and affording the defendant an opportunity for cross-examination. People v Raider, 256 Mich 131; 239 NW 387 (1931). It is equally well settled that the question of due diligence rests within the trial judge’s discretion and his decision will not be set aside unless a clear abuse is shown. People v Bersine, 48 Mich App 295; 210 NW2d 501 (1973). In People v Wolschon, 2 Mich App 186, 188; 139 NW2d 123 (1966), the Court quoting from Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), had this to say about the terms "discretion” and "abuse of discretion”:
"'Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion between the trial and the appellate courts. The term discretion itself involves the idea of choice, of our exercise of will, of a determination made between competing considerations. In order to have an "abuse” in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but the defiance thereof, not the exercise of reason but rather of passion or bias.’ ”
The two witnesses in the present case were Margaret Fowlkes and Andrew Swift. Both witnesses had been subpoenaed and had appeared on at least one prior trial date. Neither witness ultimately appeared on the eventual trial date. The trial court thereupon issued bench warrants for both individuals as material witnesses in the present case.
At an evidentiary hearing, Officer Feneley of the Pontiac Police Department related in detail the extent of his personal and the department’s general efforts to locate witnesses Fowlkes and Swift.
In particular as to witness Fowlkes there was no serious indication until the commencement of trial that it would be necessary to make further inquiries in order to locate her. The officer testified that he had visited Margaret Fowlkes’ home on several occasions, had left a card in the door and had spoken to a man on the premises. He also checked out both places where the officer had information she might be employed. One of the companies proved to be the witness’s employer but she was not there. Further checks were made at the jail and a club the woman was known to frequent. He made appropriate inquiries among several informants as to where she might be located. Officer Feneley also secured the assistance of several other police officers to locate the witness during the time in question.
We see nothing approaching an abuse of discretion by the trial judge in reasonably excusing the production of witness Fowlkes under the circumstances.
The situation with respect to Andrew Swift is a bit more complex. As noted previously, he too had shown up on previously scheduled trial dates. But between the second trial date and the day on which the case was actually tried the witness was arrested and charged with possession of a controlled substance. On the date set for his examination on the charge in district court witness Swift did not appear. A bench warrant was issued at that time. This was several days prior to the trial scheduled in the instant case.
The same officer who had conducted the search for Margaret Fowlkes also sought to locate Andrew Swift. He testified to having visited Swift’s last known address six times and also having checked at another house where the witness was known to stay. Officer Feneley further related that he had left his card at both homes. There were also checks made at the jail and a local tavern which Swift was known to patronize. Other police officers in the department were personally informed that Officer Feneley was trying to locate this witness. Then, a few days prior to trial, these inquiries uncovered a "tip” that the elusive Mr. Swift was "believed to be” in New York City.
It is the position of the defendant that the people were obligated to follow up this information as to the res gestae witness’s alleged presence in New York City by energyzing the machinery created by the uniform act to secure the attendance of an out-of-state witness. MCLA 767.91 et seq.; MSA 28.1023(191) et seq. This omission or oversight is urged upon us as being reversible error.
We do not agree with the contention for reasons which we will now discuss.
In People v Gaffney, 51 Mich App 526; 215 NW2d 587 (1974), lv den 392 Mich 806 (1974), we expressly held that the new obligation imposed upon the people by the uniform act to apply to the courts in another jurisdiction to compel return of a witness was prospective only, as of the release date of Gaffney (March 1, 1974). The fact that defendant was tried prior to that date precludes him from claiming entitlement to the benefit of the Gaffney rule. Hence, the people need not have invoked the uniform act in order to secure the presence of witness Swift at the trial in the instant case. Parenthetically, we also note that even if the decisional date in Gaffney were such as to be applicable to the instant case it would be of no assistance to defendant. In situations where the people are possessed of nothing more definitive than a tip that a witness being sought was "believed to be” in New York City, it would indeed be a needless expenditure of time and money to command that the prosecution seek the statutory compulsion of the witness’s presence. See generally, Gaffney.
Nor do we believe that under the circumstances of this case that the people were duty-bound to make a general inquiry to authorities in New York on the basis of the scant information which was at hand and the slim if not ethereal hope that someone there might know the whereabouts of witness Swift. The reluctant witness was not merely undesirous of testifying but, as noted heretofore, was an accused criminal who had fled the jurisdiction to avoid answering for his misdeeds. We hardly think it likely that he bothered to file a change of address card to apprise other persons of his specific whereabouts. It would be completely exalting form over substance to realistically expect that a general inquiry could have been sent to a city the size of New York a few days prior to a pending trial in the forlorn hope that someone in the police department would forthwith respond, to what of necessity for them must be a low priority communication, within sufficient time to secure the attendance of the involved witness at an imminent trial in Michigan (assuming the extremely unlikely event that the witness’s presence and location were actually known to the out-of-state police).
We see no abuse of discretion, as defined in Wolschon, supra, on the part of the trial judge in finding the existence of due diligence by the people to produce witness Swift nor, as stated heretofore, the other res gestae witness.
The second assignment of error by defendant asserts that the prosecutor impermissibly made reference to a prior attorney-client relationship between a prosecution witness and defense counsel as proscribed by, inter alia, People v Brocato, 17 Mich App 277; 169 NW2d 483 (1969). The people deny this assertion and instead contend that the conduct of defendant’s attorney was highly improper since defense counsel allegedly used his knowledge obtained from the prior attorney-client relationship with the prosecution witness for the benefit of his present client, defendant herein. The people conclude that defendant, having opened the door and having obtained the benefit of this improper line of questioning, should not now complain of the prosecutor pursuing the matter further on redirect-examination.
It was during the cross-examination of the principal prosecution witness that defense counsel began a line of questioning the substance of which dealt with what her normal procedure was when she was arrested or charged with the commission of a crime. The prosecutor on redirect examination then asked the witness if defense counsel had not represented her on prior occasions when she had been arrested or faced criminal charges. The witness replied in the affirmative. Counsel for both parties then became embroiled in a general dispute over this matter and the subject was soon dropped.
Our careful reading of the somewhat ambiguous exchanges between defense counsel and the witness renders it difficult to ascertain the precise source of information on which defense counsel relied in order to impeach the testimony of his former client. But there was an obvious infirmity in the conduct of defense counsel which arose out of his overly aggressive questioning of the witness wherein he sought to attack her credibility.
We note that the effect of trial counsel’s questioning about arrests and charges none too subtlely brought to the attention of the jury certain matters which may not have resulted in convic tions. We read the questions as being of highly dubious propriety in light of Supreme Court authority limiting impeachment to instances where both an arrest and conviction has taken place. See People v Falkner, 389 Mich 682; 209 NW2d 193 (1973). The fact that the prosecutor then followed up the initial improvident questioning of defense counsel does not bring the people’s conduct within the ambit of Brocato, supra. Nor was there any objection to the question of the prosecutor. Hence the alleged error was not preserved for review. People v Eroh, 47 Mich App 669; 209 NW2d 832 (1973).
The defendant next complains that the trial court erroneously admitted certain photographs taken of the defendant’s hand on the day of his arrest. The assertion is made that the photographs improperly and speculatively linked the supposed recoil action of a shotgun with a cut found on defendant-appellant’s hand between the thumb and first finger. More specifically, it is asserted that the materiality of the photographs was not shown and that the people also did not properly authenticate the photographs by laying a proper foundation as to their authenticity. Finally, defendant contends that a police officer was not qualified to give expert opinion evidence as to the recoil action of a sawed-off shotgun.
The evidence indisputably indicated that the decedent was killed by a shotgun blast triggered either by defendant or by an unknown third person. Any evidence helpful to determine which of them fired the gun would assist the jury in determining the central point in issue and photographic evidence is equally competent to show a material fact or condition. People v Eddington, 387 Mich 551; 198 NW2d 297 (1972). When these photographs were introduced there already was evidence before the jury that defendant had a cut on his hand at the scene of the crime, was taken to a hospital for treatment and had the cut on his hand when arrested. Thus, this physical evidence was, in fact, highly material to the identity of the "shooter” and the trial judge did not err in admitting the photographs over objections to their materiality.
Defense counsel did not object on the basis of lack of foundation, authentication, chain of custody or accuracy of the photographs and we thus follow the established rule that the Court of Appeals will not review evidentiary questions not timely raised below. People v Belcher, 29 Mich App 341; 185 NW2d 440 (1971).
Nor did the trial judge err in deciding, in effect, that the recoil action of a sawed-off shotgun was not a subject which might arguably be within the ordinary experience and knowledge of mankind. Since a sawed-off shotgun is illegal contraband it would not be reasonable to assume that even jurors who might be familiar with the operation of a shotgun would have knowledge or expertise with respect to the operation of such an illicit weapon.
Due to the illegal nature of the weapon involved in this case, the only persons who could possibly become experts legally would be police officers or police-related ballistics or forensic scientists. The experienced police officer who was the source of the expert testimony in the instant case testified that he had fired sawed-off shotguns and was familiar with their recoil characteristics. The sufficiency of the background of a witness to qualify him as an expert is a matter of trial court discre tion. See generally, People v O'Leary, 6 Mich App 115; 148 NW2d 516 (1967). No abuse of discretion appears herein.
We find no reversible error with respect to any of the issues raised by the defendant-appellant. Consequently, we affirm the verdict of the jury.
MCLA 750.316; MSA 28.548.
To the extent defendant relies on People v Mitchell, 48 Mich App 361; 210 NW2d 509 (1973), that reliance is misplaced. Mitchell is distinguishable on the facte. In addition, the judge who authored Mitchell also signed the opinion in People v Gaffney, 51 Mich App 526; 215 NW2d 587 (1974), lv den, 392 Mich 806 (1974).
The prosecution witness was previously impeached on the basis of certain prior convictions but at the time in question she was queried solely about arrests and charges. | [
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] |
R. B. Burns, J.
Defendant appeals his conviction by a jury of assault with intent to rape. MCLA 750.85; MSA 28.280. We find reversible error in the trial court’s instruction to the jury on the defense of intoxication.
People v Crittle, 390 Mich 367, 374; 212 NW2d 196, 199 (1973), clearly elucidates the proper nature of a jury instruction on intoxication as a defense to those crimes requiring specific intent:
"These various rules all have one thing in common. They refer to a capacity standard. Their test is not Justice Cooley’s — '[T]he crime cannot have been committed when the intent did not exist.’ Their test is rather 'the crime cannot have been committed when the intent could not exist. ’ It is obviously a different standard and not to be followed.” (Emphasis in original.)
Assault with intent to rape requires specific intent, and a jury must be adequately instructed thereupon.
Our evaluation of the instruction requires that it be read in its entirety. People v Harper, 43 Mich App 500; 204 NW2d 263 (1972), People v Hodo, 51 Mich App 628; 215 NW2d 733 (1974). In this regard, People v Scott, 55 Mich App 739, 743-744; 223 NW2d 330, 333 (1974), represents the conclusion of a panel of this Court that:
"While the Cooley standard (the intent did not exist) is different than the capacity standard (the intent could not exist), this is not to say that there is an irreconcilable conflict between the two when both are found in the same charge.” (Emphasis in original.)
This belief is difficult to square with the presumption expressed in People v Gilbert Johnson, 52 Mich App 560, 563; 218 NW2d 65, 67 (1974): "given erroneous and correct instructions, the jury is presumed to have followed the incorrect instruction”. Crittle’s disapproval of a capacity standard is explicit. It seems obvious that an instruction incorporating both standards might only be saved if it clearly and predominantly emphasized the proper Cooley standard.
Such is not the case in this instance. The instruction contains at least three separate and various expressions of the erroneous capacity stan dard: first, "as to render him incapable of entertaining that intent”; second, "you must find that his intoxication was such as to make it impossible for him to have the requisite intent”; and third, "that he wasn’t conscious of what he was doing, or did not know why he was doing it, then he could not have such intent”. (Emphasis added.) The first version closely approximates that of People v Stram, 40 Mich App 249; 198 NW2d 753 (1972); the last version is the long-used formulation of Roberts v People, 19 Mich 401 (1870). Both are expressly disavowed in Crittle.
The people wrongly assert defendant’s failure to object to the instruction as proscriptive of his allegation of error. The trial judge’s incorrect statement of the law may be initially raised on appeal, or reviewed sua sponte by the Court. People v Guillett, 342 Mich 1, 7; 69 NW2d 140, 143 (1955), Crittle, supra, 370-371.
Discussion of the other allegations of error is not necessary in view of our resolution of the first issue. Nevertheless, we have considered the other issues raised by the defendant and find one to have possible merit. A Detective Ballett testified at trial that defendant stood silent when accused of attempted rape. This testimony raises the clear possibility that the jury would infer guilt from defendant’s silence. This may be seen to negatively impact on defendant’s constitutional right to remain silent. It is suggested that this testimony not be repeated on retrial.
Reversed and remanded. | [
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] |
R. B. Burns, J.
Defendant was convicted of breaking and entering with intent to commit larceny. MCLA 750.110; MSA 28.305. He appeals and we affirm.
Defendant claims that the district court erred when the judge conducted part of the preliminary examination in his absence.
The examination was scheduled for 9:30 a.m. Defendant was in court and then left the courtroom and did not return until 10:13 a.m. The court had waited until 9:55 a.m. and then proceeded with the examination. When the defendant finally returned to the courtroom the court had taken the testimony of three witnesses.
Failure to object to alleged insufficiency or irregularity in the examination prior to or during the trial constitutes waiver of the right to object. People v Willis, 1 Mich App 428; 136 NW2d 723 (1965).
The record does not contain any objection or challenge to the proceedings in either the district court or the circuit court. Defendant cannot raise the issue on appeal.
Defendant next claims that the trial court overstepped the bounds of judicial impartiality when questioning the defendant. We have read the entire testimony of the defendant. In our opinion, the questions asked by the trial judge were proper and necessary for clarification of the record. People v Wright, 38 Mich App 427; 196 NW2d 839 (1972).
Defendant also asserts that it was error for the prosecutor to charge the defendant with both breaking and entering with intent to commit larceny, MCLA 750.110; MSA 28.305, and receiving and concealing stolen goods, MCLA 750.535; MSA 28.803.
Defense counsel moved to have Count II dismissed, or, in the alternative, to force the prosecutor to elect between the two charges. The trial judge reserved his ruling on the matter. Before the end of trial the prosecutor did elect to proceed on the first charge.
The procedure utilized by the trial judge has been employed since People v Burman, 154 Mich 150; 117 NW 589 (1908).
The last error ascribed by defendant concerns the court’s charge to the jury on the element of intent. The court’s charge was almost identical to that given and approved in People v Peay, 37 Mich App 414; 195 NW2d 75 (1971).
Affirmed. | [
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Quinn, P. J.
Defendant’s second trial for breaking and entering, MCLA 750.110; MSA 28.305, and larceny in a building, MCLA 750.360; MSA 28.592, resulted in his second jury conviction of both offenses. He was sentenced and he again appeals.
The only facts of the crime pertinent to our decision are that defendant was in the car which contained fruits of the crime when the car was stopped at a roadblock soon after the burglary and the larceny. Other facts relating to the issues raised on appeal will be found in the discussion of those issues.
1. Fair trial denied by admission of hearsay testimony. This claim relates to testimony by Officer McBride concerning the license number of an automobile. Assuming, but without holding, this testimony to be hearsay, its admission was harmless error; it did not result in a miscarriage of justice, MCLA 769.26; MSA 28.1096, People v Roberson, 55 Mich App 413; 222 NW2d 761 (1974).
2. Reversible error occurred when witness Stone-back was permitted to testify and when witnesses Stoneback and Pollard were permitted to identify defendant in court.
Defendant claims that because the prosecuting attorney had stipulated prior to the retrial that witnesses who had not testified at the first trial would not be called at the second trial, Stoneback, who had not testified at the first trial, should not have been permitted to testify. Defendant further contends that because witness Pollard talked with witness Stoneback prior to the latter testifying, contrary to the express order of the trial judge, Stoneback should not have been permitted to testify.
The civil case authority relied on by defendant in support of his contention that the stipulation by the prosecuting attorney should have been enforced is not persuasive in this criminal case. The interest of the public in the just result of a criminal prosecution precludes the binding effect of such a stipulation. Furthermore, defendant was offered an adjournment to meet this evidence and it was declined. Still further, no prejudice to defendant has been demonstrated.
While it was improper for Pollard to discuss the case with Stoneback prior to the latter testifying, with or without an order from the trial court, the admission of Stoneback’s testimony was discretion ary. The record does not disclose an abuse of that discretion.
The trial court found that the contested in-court identification, tainted by improper pretrial identification, was independent of that taint. Proof to support that finding must be "clear and convincing”. We have reviewed the record and we are unable to say that the trial court’s finding was clearly erroneous, People v Manuel Johnson, 58 Mich App 347; 227 NW2d 337 (1975).
3. Fair trial denied because the trial court permitted improper redirect examination by the prosecuting attorney.
The door which led to this redirect examination was opened by defendant on cross-examination. We find no error.
4. The trial court’s instruction on alibi was reversibly erroneous.
We do not read the alibi instruction as offending the rule of People v McCoy, 392 Mich 231; 220 NW2d 456 (1974). "Easy to prove and difficult to disprove” was qualified by "sometimes”. If this language does offend McCoy, that case is inapplicable to a case tried prior to publication of that opinion.
Affirmed. This crime occurred March 20, 1969. Over 6-1/2 years later and after two trials resulting in conviction, both of which have been affirmed by this Court, defendant is still free. Enough is enough. Defendant’s bond is cancelled and he shall commence serving his sentence forthwith.
For first trial see People v Whalen (Docket No. 10764, decided May 31, 1972 [unreported]), reversed, 390 Mich 672; 213 NW2d 116 (1973). | [
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Reid, J.
This action in assumpsit originated in the common pleas court in Detroit, and was appealed to circuit court, where it was tried without a jury. The action is brought to recover for the amount of sales tax paid by plaintiff on sales of lumber by plaintiff to defendant on various dates from July 16, 1941, to September 4, 1942, the total amount of sales being $26,445.08 and tax paid, $793.65. Defendant .had judgment. Plaintiff appeals.
During the period mentioned, plaintiff was engaged in selling lumber at wholesale, with no license to sell at retail. Defendant had no license to sell at retail and used all of the purchased lumber in its very large business of building houses. Plaintiff claims none of its officers knew what business defendant was in. Defendant had a storage yard not open for retail trade to any customer. Mr. Maicki, vice-president of plaintiff company, testified that on making the original sale to defendant Newman Development Company, he asked Mr. Savage of defendant company where the material was to go and the nature of defendant’s business and said if defendant’s yard was not a retail yard, plaintiff could not sell to defendant company because plaintiff did not sell at retail, and further testified that Savage told the witness that defendant had a yard at Beech and Plymouth roads and did a retail business there. Mr. Maicki testified further that plaintiff did not investigate the yard before furnishing some of the lumber, and did not investigate whether defendant was building houses, but took Savage’s statement. Witness Maicki did not remember what Mr. Savage said his official position was but testified that plaintiff got a credit report on defendant and that all plaintiff was interested in (in the report) was whether defendant’s finances were sufficient. Witness Maicki did not remember whether the report showed defendant was not in the retail lumber business. Sales to the amount of $5,023.40 had occurred by the end of August, 1941, and witness Maicki testified that in August, 1941, he checked the yard of defendant and all he found was a yard fenced in with lumber stocked and a small office building which was possibly a real estate office. Maicki’s testimony was not contradicted by any other witness.
In addition to the sales tax on sales to defendant, plaintiff was required to pay $498 refail sales tax because of sales to four other concerns, purchasers for consumption.
Defendant claims that Maicki’s investigation in August, 1941, when only $5,023.40 of the whole account had been incurred, indicated that plaintiff was not relying on any statement by Savage that defendant was in retail business.
The lumber was invoiced and paid for in full. There is no dispute regarding the sale price or payment, which sale price did not include the sales tax in question. After the lumber was paid for, an auditor for the department of revenue investigated the sales. The department required plaintiff to pay $793.65 sales tax on the sales.
There is no special count in the declaration showing a claim of either fraud or mistake, but plaintiff declared in assumpsit on all the common counts and “especially for Michigan State sales tax on sale of lumber.”
After both parties had rested, the court announced his conclusion (at least tentatively) as follows :
“There is no evidence in this case of any misrepresentations of fact, and there is no evidence sufficient to sustain any conclusion of mutual mistake. Therefore, there is no cause of action.”
Further discussion ensued and the following occurred :
“The Court: * * * The burden lies upon the plaintiff to prove misrepresentation of fact, which would be fraud, or to prove mutual mistake of fact. If you contend fraud and rely upon fraud, you must prove fraud by clear and convincing testimony.
“Mr. Boyle: We don’t claim fraud. We claim mistake.”
However, plaintiff now states that a question involved in this appeal is misrepresentation and that in consequence thereof plaintiff did not collect the tax as part of the price. The finding by the circuit judge was against plaintiff as to the claimed fraud. We consider that finding to be not against the clear weight of the evidence and it is affirmed. Even if there were a doubt as to the correctness of the finding, plaintiff clearly abandoned his claim of fraud before the judgment in the lower court. We do not consider such claim on appeal.
Plaintiff further claims a question of mistake is involved on this appeal, and that there was a mu tual mistake to the effect that no tax was payable on the sales to defendant. There is in the record no testimony to the effect that defendant supposed no such tax was payable. Mr. Maicki for plaintiff testified that he had understood that retail sales were taxable. If it is to be inferred that because no tax was. collected from defendant, plaintiff must have considered that sales of such volume were to be treated as wholesale and free from tax, that would be a unilateral mistake, there being nothing to show that defendant so understood the situation. No presumption against defendant arises from the silence of defendant as to noninclusion of sales tax in the price before or at the time of defendant’s paying the price demanded.
' The circuit judge found that the claim of mistake was not supported by the evidence. We determine that that finding is not against the weight of the evidence, and affirm the finding. The section of the statute in question (Act No. 167, § 23, Pub. Acts 1933 [Comp. Laws Supp. 1940, §3663-23, Stat. Arm. § 7.544]) is as follows:
“No person engaged in the business of selling tangible personal property at retail shall advertise or hold out to the public in any manner, directly or indirectly, that the tax herein imposed is not considered as an element in the price to the consumer. Nothing contained in this act shall be deemed to prohibit any taxpayer from reimbursing himself by adding to his sale price any tax levied hereunder. ’ ’
The statute creates no liability on the part of the purchaser to pay the tax unless the tax is incorporated in or added to the price and the purchaser accepts the tangible personal property with such understanding.
Judgment for defendant is affirmed. Costs to defendant.
Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, North, and Starr, JJ., concurred. | [
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Sharpe, J.
This is an appeal in the nature of certiorari, upon leave granted, from an order of the circuit court of Wayne county dismissing appellant’s petition for a writ of habeas corpus.
On February 15, 1944, Dorothy Jeanne Bevard, formerly Ives, filed a petition for a writ of habeas corpus in the circuit court of Wayne county alleging that on January 8, 1935, she was married to Robert Louis Ives and as a result of said marriage two children were bom, their names being Clara Jean Ives and Robert L. Ives; that a decree of divorce was granted to plaintiff by the circuit court of Wayne county and the custody of the two children was awarded to her; that Elmer J. Trowbridge, defendant, and his first wife were old friends of plaintiff and shortly after the birth of Clara Jean Ives plaintiff left the child in the care and custody of the defendant and his wife; that the child continued to live at the home of defendant and the plaintiff regularly visited said child until about two years before filing the instant petition when she was refused permission to visit her daughter; that defendant attempted to adopt Clara Jean in the probate court of Wayne county, but his petition was denied; that plaintiff is informed and believes that defendant instituted proceedings in the probate court of Washtenaw county for the purpose of adopting said Clara Jean Ives; that such resort to the court of Washtenaw county was an attempt to avoid the effect of the denial of adoption in Wayne county; that the probate court of Washtenaw county had no jurisdiction to entertain such adoption proceedings; that said Clara Jean Ives (Trowbridge) is restrained of her liberty by Elmer J. Trowbridge; that said Clara Jean is not committed or detained by virtue of any process, judgment, decree or execution specified in Act No. 314, chap. 37, § 8, Pub-. Acts 1915, and that the petitioner is a proper person to have the care and custody of said Clara Jean.
On February 25, 1944, Elmer J.- Trowbridge filed a return to the writ of habeas corpus in which it is alleged :
‘ ‘ That on April 21, 1942, in the probate court for the county of Washtenaw, State of Michigan, in the matter of the estate of Clara Jean Ives, a minor, being No. 32475, an order was entered by the Hon. Jay G. Pray, judge of probate, that I stand in the place of parent of said child, and that the name of the said child be changed to Clara Jean Trowbridge; that such order of adoption was based upon my declaration of adoption as a resident of Washtenaw county, on Godfredson road, E. F. D. No. 3, where I resided from February 1, 1941, until 18 months thereafter; upon the investigation and report of Arch D. Wilson, county agent; upon substituted service having been obtained by sending a registered letter to the last known address of the natural mother of the said child, the petitioner herein, who was found to have abandoned said child, and by publication in a newspaper of general circulation in the county of Washtenaw; and, by the written consent of the natural father, Eobert Louis Ives.”
Plaintiff filed a traverse to the return and avers that the probate court of Washtenaw county was without jurisdiction to make any valid order of adoption because defendant was not a resident of Washtenaw county; because no consent was obtained from plaintiff; because no proper substituted service was had upon plaintiff in said proceedings; and because defendant employed the probate court of Washtenaw county to perpetrate a fraud upon plaintiff.
The cause came on for trial. The proceedings in the probate court of Washtenaw county were made a part of the record. The record before us shows that on March 24, 1942, Elmer J. Trowbridge filed a declaration of adoption without consent of one parent in which it was alleged that Clara Jean Ives was six years of age on July 23, 1941; that Jean Ives Bevard has abandoned said child for a period of one year preceding the date of filing the declaration of adoption; and that Elmer J. Trowbridge resides at R. F. Ú. No. 3, Tpsilanti, in Washtenaw county. This declaration of adoption was signed and consented to by Robert Louis Ives, the father of said child, who was then living in California. On March 24, 1942, the following order, dated March 5, 1942, was entered in the probate court of Washtenaw county:
“It appearing to the court that a declaration of adoption without consent of one part (parent) has been filed in this court by Elmer J. Trowbridge and Robert Louis Ives. It appears to the court that a proper method of service on the parent not consenting to adoption, is by registered mail and,
“It is ordered, that said party be served by registered mail, return receipt demanded, addressed to Jean Ives Bevard, the person not consenting to the adoption, at her last known address and to be posted by depositing in any United States Post Office at least 14 days prior to the date set for hearing in said notice;
“Jay G. Pray,
“Probate Judge.”
On March 27, 1942, an affidavit was filed in the probate court of Washtenaw county stating that a copy of the petition for adoption and notice of hear ing was on that day served upon Jean Ives Bevard by depositing the same in an envelope and sending it registered mail, return receipt requested, to “Mrs. Jean Ives Bevard, 6510 Third avenue, Los Angeles, California,” that being her last known address. On April 15, 1942, an affidavit of service was filed in which it was stated that the letter sent by registered mail was returned to the sender because Mrs. Jean Ives Bevard had moved and had not left a forwarding address. On April 21, 1942, an order was entered in the probate court of Washtenaw county confirming the adoption without consent of one parent. On July 17,1942, a petition was filed in the probate court of Washtenaw county by Dorothy Jeanne Bevard, plaintiff herein, to set aside the order of adoption, but on November 27, 1943, the above petition was discontinued.
Evidence was also introduced showing that plaintiff and Robert Louis Ives were divorced on December 8, 1938, by the circuit court of Wayne county; and that the care, custody and education of the minor children of the parties was decreed to Jeanne Ives until the further order of the court.
On June 26,1944, the trial court filed the following opinion:
“This court is of the opinion that the due and orderly administration of justice requires that the issues raised herein should be presented to the court in the county in which they have originated and that said adoption proceedings taken in Washtenaw county áre not subject to collateral attack in this court in Wayne county.”
On August 3, 1944, an order was entered dismissing the petition for a writ of habeas corpus.
Plaintiff appeals and urges that the Washtenaw county adoption proceedings were invalid because they were not in compliance with statutory requirements. Defendant urges that an order of adoption may not be collaterally attacked nearly two years after it is made by habeas corpus proceedings in another county when the want of jurisdiction, depending upon the place of residence of the adopting parent, does not appear on the probate record.
The petition for a writ of habeas corpus filed in the circuit court of Wayne county is a collateral attack upon the adoption proceedings in Washtenaw county. If the probate court of Washtenaw county had jurisdiction of the subject matter and of the parties its orders may not be the object of collateral attack in another- proceeding in another county. But, “If want'of jurisdiction affirmatively appears by the files, it would not be cured by testimony on a hearing.” Woodliff v. Citizens Building & Realty Co., 245 Mich. 292.
In Lamberton v. Pawloski, 248 Mich. 330, we said:
- “The question of jurisdiction of the subject matter may be raised at any time. Greenvault v. Farmers & Mechanics’ Bank of Michigan, 2 Doug. (Mich.) 498; Farrand v. Bentley, 6 Mich. 281; Attorney General, ex rel. Lockwood, v. Moliter, 26 Mich. 444; Adams v. Hubbard, 30 Mich. 104; Woodruff v. Ives, 34 Mich. 320; Horton v. Howard, 79 Mich. 642 (19 Am. St. Rep. 198); Tromble v. Hoffman, 130 Mich. 676; Attorney General, ex rel. Wolverine Fish Co., v. A. Booth & Co., 143 Mich. 89; 15 C. J. p. 847.”
We recognize that orders of probate courts have the force and effect of judgments and are res judicata of the matters involved and cannot be attacked collaterally. See Chapin v. Chapin, 229 Mich. 515. However, such rule is based upon a valid order. The principal issue involved in this case is the validity of the adoption order of the probate court of Washtenaw county.
In. this State adoption proceedings are purely statutory. The proceedings in this case were governed hy Act No. 288, chap. 10, Pub. ’ Acts 1939 (Comp. Laws Supp. 1940, §16289-10 [1] et seq., Stat. Ann. 1943 Rev. §27.3178 [541] et seq.). Section 2 thereof provided in part as follows:
“Such adoption and, in case a change of name is desired, such change of name shall be with the consent of the persons hereinafter described, viz:
“1. In case the parents of such child, or either of them, are living, then with the consent of such parents, or the survivor of them: Provided, That in any case where both parents are living and only 1 consents to such adoption and shall allege in the instrument of adoption that the other parent has abandoned such child for the period of 1 year last preceding’ the date of filing the instrument of adoption, or in case the parents are divorced, that such parent has not contributed to the maintenance of such child for the period of 2 years last preceding the date of filing the instrument of adoption, the court shall appoint a day for the hearing of the same and give notice thereof to the parent not consenting thereto, and the notice of such hearing may be given by personal service or by publication as provided by sections 32 to 35 of chapter 1 of this act. Upon the hearing, if the court shall find that the parent not consenting to such adoption has in fact abandoned such child as herein provided, or if the parents are divorced, that such parent who is legally liable for the support of said child has not contributed to the maintenance of such child, as herein provided, the court may enter an order of adoption as hereinafter provided and the effect of such order upon the parent not consenting to such adoption shall be the same as if such parent had in fact given his, or her, consent thereto.”
The notice to the parent not consenting to the adoption provided for in the above act “may be given by personal service or by publication as provided by sections 32 to 35 of chapter 1 of this act.” It is to be noted that the method of service is limited to either personal service or service by publication.
Section 32 of chapter 1 of the probate code, as amended by Act No. 176, Pub. Acts 1941 (Comp. Laws Supp. 1945, §16289-1 [32], Stat. Ann. 1943 Rev. §27.3178 [32]), provides: “Except as otherwise provided by law, all probate and other legal notices required by law or by the probate judge of any county to be served upon any party, shall be served as the court shall direct, ’ ’ either by personal service, service by publication or by registered mail. It also prescribes the manner in which each kind of service shall be accomplished. Neither section 32, above referred to, nor section 2 of chapter 10, above quoted, provides for service by registered mail in adoption proceedings.
In the case at bar, the record shows that an order was entered by the probate court providing for service by registered mail upon Jean Ives Bevard, the parent not consenting to the adoption. In Hosey v. Ionia Circuit Judge, 120 Mich. 280, we held that service by mail was insufficient where the order required personal service upon all parties named. In re Wilkie’s Estate, 314 Mich. 186, we said: ‘‘ Service by mail is not personal service as required by the statute * * * and jurisdiction of the circuit court does not depend on whether or not there is evidence that the mail was received, so long as the statute requiring personal service was not complied with.”
In the case at bar the petition for adoption gave the probate court of Washtenaw county jurisdiction of the subject matter, but the failure to give Dorothy Jeanne Bevard notice as required by statute was fatal to the making of the order of adoption. The record in the probate proceedings shows, without the aid of other evidence, that there was no valid adoption of Clara Jean Ives. Therefore, it follows that the circuit court of Wayne county had jurisdiction to determine the issue involved in the petition for writ of habeas corpus.
Tbe cause is remanded to tbe circuit court of Wayne county for further proceedings. Plaintiff may recover costs.
Butzel, C. J., and Caer, Boyles, Reiu, North, and Starr, JJ., concurred. Bushnell, J., took no part in the decision of this case.
See 3 Comp. Laws 1929, § 15207 (Stat. Ann. § 27.2251). — Bej PORTER. | [
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] |
Starr, J.
Defendant appeals from a decree which determined that plaintiff was the sole owner of certain residence property in the city of Detroit and that the name of defendant as one of the grantees should be struck out of the deeds conveying said ■property.
In 1941 plaintiff acquired the purchasers ’ interest in a land contract covering the house and lot at 986 Krakow place in the city of Detroit. Payments on the contract were made from time to time, and on August 28,1943, the full balance was paid and a deed executed and delivered, which described the grantees as follows: “Thomas W. Collins and Lee F. Collins, his wife.” Plaintiff later claimed that his correct name was Tom Collins, and at his request another deed dated October 20, 1943, was executed and delivered, which designated the grantees as “Tom Collins and Lee F. Collins, his wife.” Both deeds were duly recorded.
Trouble apparently arose between these parties, and on November 27,1944, plaintiff filed bill of complaint in the present suit, alleging that defendant was not his wife and that she had fraudulently caused herself to be named as one of the grantees in said deeds. He asked that her name be stricken from the deeds and that he be decreed to be the sole owner of the property. Defendant answered, denying the charge of fraud and that plaintiff was the sole owner of the property. While not affirmatively alleging that she was plaintiff’s wife, defendant denied his allegation that she was not his wife. The trial judge held that defendant had perpetrated a fraud upon plaintiff by having her name inserted in the deeds as one of the grantees, and a decree was entered determining that plaintiff was the sole owner of the property and that defendant’s name should be stricken from the deeds. Defendant’s motion for a rehearing was denied,.and she appeals. This being a chancery case, we review de novo.
Defendant claimed that she was plaintiff’s common-law wife, although the record clearly indicates that, when the deeds in question were executed in 1943, she was married to one Charlie Norris. Plaintiff denied that defendant was his common-law wife and testified that at the time in question he was married to one Susie Collins. The record is convincing that the parties could not have been husband and wife at the time the deeds were prepared, and, therefore, the deeds did not create an estate by the entireties.
The next question is whether or not defendant fraudulently caused her name to be inserted in the deeds. Plaintiff was about 60 years old and was quite deaf. Neither of the parties was able to read or write to any extent. They were living in the house in question, and the testimony is in conflict as to their relationship. Plaintiff testified in substance that their relationship was not intimate and that defendant was only a roomer in the house. However, he admitted that on several occasions he sent the payments on the land contract to the real estate office by defendant, and that he did not give any instructions as to how the deeds were to be prepared. Defendant testified that she and plaintiff lived together as man and wife, that she gave him the wages she earned, and that the deeds were prepared in accordance with his instructions. A real-estate agent testified that when the final payment was made on the land contract and the first deed was prepared, both plaintiff and his attorney were present, and that the attorney directed that the names of both plaintiff and defendant be inserted in the deed as grantees. The second deed was prepared in accordance with instructions in a letter from plaintiff’s attorney to the real-estate agent. Plaintiff claimed that as he could not read, he did not discover that defendant’s name was inserted in the deeds as a grantee until several months after they had been recorded.
Plaintiff based his right to relief on the alleged fraud of defendant, and the burden was upon him to establish such fraud. We have repeatedly said that fraud will not be presumed and cannot be lightly inferred, but must be established by a preponderance of evidence. Fahey v. Pell, 310 Mich. 280. In the present case we'find no evidence satisfactorily proving fraud on the part of defendant in connection with the insertion of her name in the deeds.
As plaintiff has failed to establish the alleged fraud, and as the parties were not husband and wife and could not take title by the entireties, we conclude that the deeds conveyed title to them as tenants in common. As it is impossible from the evidence in the record before us to ascertain the respective in terests of the parties as'tenants in common, and as neither party seeks an accounting or a determination of their interests, that matter cannot be adjudicated in the present case.
Other questions presented do not require consideration. The decree of the trial court is set aside, and a decree may be entered in this court dismissing plaintiff’s bill of complaint. Defendant may recover costs of both courts.
Carr, Boyles, Beid, and North, JJ., concurred with Starr, J. | [
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Bushnell, J.
No disputed questions of fact are involved in this appeal, the sole question being whether the provisions of Act No. 314, chap. 78, § 2a, Pub. Acts 1915, as added by Act No. 132, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16224-1, Stat. Ann. 1945 Cum. Supp. §27.3482 [1]), must be complied with in appeals from the common pleas court of the city of Detroit to the Wayne circuit court. See, also, Court Rule No. 76, § 8 (1945).
On May 18, 1945, Harry D. Martin, appellant herein, took a general appeal from a common pleas court judgment in favor of plaintiff in the sum of $616.57, and costs. On the same day Martin served copies of his claim of appeal and affidavit in support thereof upon plaintiff’s attorney. The original affidavit and bond on appeal were delivered to the clerk of the common pleas court, and on the' same day the costs of the suit and the appeal fee were paid. On May 25th the common pleas court filed a return in the circuit court, together with the appeal bond. On June 11th plaintiff entered a special appearance in the circuit court and filed a motion to dismiss defendant’s appeal, on the ground that the circuit court had not acquired jurisdiction. Plaintiff claimed therein that the defendant did not, within five days after the return on appeal had been filed, comply with the statutory requirements, viz., serve on him — “a copy of the affidavit and bond filed by him together with notice of the date of filing of the return on appeal and a notice to the effect that the opposite party is required to enter his appearance in the circuit court within 20 days after the date of filing of the return on appeal” upon counsel •for the opposite party in the court below.
Section 8 of Court Rulé No. 76 (1945) reads:
“In all appeals, within the time limited for perfecting an appeal, the appellant shall also do the following:
“(a) Secure the approval of, and file with, the lower court such bond as may be required by law as a condition of the appeal;
“(b) Pay such fee as may be required by law for taking such appeal;
“(c) Make any delivery or deposits of money or property or documents, and do 'any other act which may be required by law.”
The trial judge dismissed defendant’s appeal on the ground that, in the absence of a service of the copy of the affidavit, bond and notices required by statute, the circuit court did not obtain jurisdiction.
Defendant argues that since rules of practice are intended to 'clarify and simplify procedure, they supersede statutory requirements, and that the phrase in the quoted rule, “do any other act which may be required by law,” is merely a “catch-all” phrase and one which it is impossible to' comply with.
It is insisted that the construction applied by the trial court permits a trap to be prepared and sprung on appellant and that court rules were never intended to entrap litigants.
The question thus presented was recently discussed in Wetzel v. Hogopian, 313 Mich. 524, an appeal from the justice’s court from the city of Dearborn to the circuit court of Wayne county. In that case the appellant did not serve a copy of the bond, nor give notice of the date of filing the return on appeal, et cetera, and the trial court denied appellee’s motion to dismiss. We said there that the rule and the statute do not conflict with each other and compliance with both is required.
Unfortunately, Court Rule No. 76 does not also contain, verbatim, the language of the statute in question, but rules must always be read in the light of applicable statutes as is suggested in Court Rule No. 1, §3 (1945).
■ The order dismissing defendant’s appeal is affirmed, with costs to appellee.
Butzel, C. J., and Carr, Sharpe, Boyles, Reid, North, and Starr, JJ., concurred.
The courts of justices of the peace in a city having a population of 250,000 may be consolidated into a common pleas court. See 3 Comp. Laws 1929, § 16369 et seq., as amended (Comp. Laws Supp. 1940, 1945, § 16369 et seq., Stat. Ann. and Stat. Ann. 1945 Cum. Supp. § 27.3651 et seq.). — Reporter. | [
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] |
Boyles, J.
Plaintiff life insurance company issued a group life insurance policy in 1925 to the Kelsey-Hayes Wheel Company for the benefit of its employees. The policy was issued under the group life insurance provisions of Act No. 256, pt. 3, chap. 2, subd. 2, §§ 9-a, 9-b, 9-c, Pub. Acts 1917, as amended (3 Comp. Laws 1929, §§ 12434, 12435, 12436 [Stat. Ann. §§24.270, 24.271, 24.272]). Joseph Wojciechowski became an employee of the Kelsey-Hayes Wheel Company in 1928 and his employment was continuous from 1938 to the time of his death in February, 1942. He applied for insurance under the group policy on September 8, 1941, by a signed application, and a certificate of insurance was issued to him on November 1, 1941, under the terms and conditions of his employer’s group policy. He died on February 24, 1942, aiid the plaintiff company declined to pay his widow, Amelia, the beneficiary named in the certificate, any benefits, on the ground that the certificate of insurance was void, that false statements had been made by Joseph Wojciechowski in his application, known to him to be untrue, and that the plaintiff company would not have approved the application and issued the certificate if it had known the facts. The company tendered back the premiums and filed the instant bill of complaint in chancery to cancel the certificate of insurance on the ground of misrepresentation and fraud. The circuit judge who heard the proofs granted the relief prayed for and entered a decree accordingly, from which the defendant beneficiary named in the certificate appeals.
While we hear the case de novo, only two ques- ' tions are raised by appellant on which reversal is sought, and these will be considered. Appellant’s first claim is that no fraud was shown by plaintiff to sustain a decree for cancellation of the certificate.
In the application for insurance under his employer’s group policy executed by Joseph Wojciechowski he answered certain questions as follows:
“5. Have you ever had, or been told you had, albumin or sugar in your urine? — No. High blood pressure? — No. Heart trouble? — No. Stomach ulcer? — No. Syphilis? — No. (Give details under Question 6, below.)
“6. Have you had any disease or injuries, or have you received any medical or surgical advice or attention within the last 5 years? — No. If so, give full details below. (Include also particulars of any questions answered ‘Yes’ under Question 5 above.) — None. * * *
“8. Are you now in good health? —Yes.”
At the hearing in the circuit court Dr. Nowicki, called by the plaintiff as a witness, testified that Joseph "Wojciechowski had been a patient of his; and apparently testifying from records the doctor enumerated 64 different dates on which he had been consulted professionally by Mr. Wojciechowski and on which he had rendered medical or surgical advice or attention to Mr. Wojciechowski, during the four years immediately preceding September 8, 1941, the day on which the application was signed. He testified that all these visits (except one) were made to his office by Mr. Wojciechowski for the purpose of seeing him professionally to receive medical advice or attention. The dates enumerated by the doctor were spaced quite regularly a few weeks apart, during most of the time for the entire four years, indicating a continuity of some disease or' disability which caused Mr. Wojciechowski to regularly employ the services of a physician during that time. Eleven of these visits to the doctor for such services were made within the eight months immediately preceding the date on which Mr. Wojciechowski executed his ápplication for the insurance, and the last visit was made only three weeks before that date. The defendant made no attempt to show what the reasons were for her husband’s visits to the doctor’s office, whether for some minor ailment or condition, and admitted that her husband used to go to the doctor’s office often for several years prior to the date of the application.
The statement by Mr. Wojciechowski that he had not received any medical or surgical advice or attention within the five years preceding making his application for issuance of the policy was false and intended to deceive, was the concealment of a material fact, the falsity of which was known to him. It materially affected the acceptance of the risk, and bore a direct relation to the acceptance of the risk by the insurer where a further inquiry might have been made had the facts been revealed. Under the circumstances, this unexplained misrepresentation was a fraud on the insurer justifying cancellation of the certificate.
A false representation in an application for insurance which materially affects the acceptance of the risk entitles the insurer to cancellation as a matter of law. Krajewski v. Western & Southern Life Ins. Co., 241 Mich. 396. The insurer was entitled to information relative to the medical attention received by the insured, and failure to give this information in the application entitles the insurer to cancellation. Continental Assurance Co. v. Friedman, 289 Mich. 531. A false representation by the insured in the application, that he had not consulted a physician in five years, is a representation as to a material fact, which bears a direct re lation to acceptance of the risk, and entitles the insurer to cancellation. Metropolitan Life Ins. Co. v. Carter, 252 Mich. 432; New York Life Ins. Co. v. Bahadurian, 252 Mich. 491. Concealment by the insured that he had consulted a physician was concealment of a material fact which bears a direct relation to acceptance of the risk. Bellestri-Fontana v. New York Life Ins. Co., 234 Mich. 424. If the misrepresentations materially affect the risk it is not necessary to show that the misrepresentations were intentional. Prudential Insurance Company of America v. Ashe, 266 Mich. 667; Sun Life Assurance Company of Canada v. Allen, 270 Mich. 272. Such misrepresentations amount to a constructive fraud (Bonewell v. North American Accident Ins. Co., 167 Mich. 274 [Ann. Cas. 1913A, 847]), and such misstatements in the application which materially affect the risk constitute sufficient grounds for cancellation, even though made in good faith, it not being necessary that actual fraud be found. North American Life Assurance Co. v. Jones, 287 Mich. 298.
In the case at bar the appellant rested her case on the plaintiff’s proofs and offered no testimony. The burden was on the appellant to show that the medical attention or treatment which- the doctor gave to Mr. Wojciechowski was for some temporary ailment, minor or trivial disease or difficulty not tending to permanently affect the health of the insured. Bullock v. Mutual Life Insurance Co. of New York, 166 Mich. 240; Wohlfeil v. Bankers Life Co., 296 Mich. 310. The appellant, called by the plaintiff for cross-examination under the statute, testified that the insured never complained of his health, and that he worked seven days a week. "While this raised a question of fact, however slight, as to Mr. Wojciechowski’s being in good health (New York Life Ins. Co. v. Newman, 311 Mich. 368), this issue was decided by the court against the appellant. The record fully supports such a conclusion.
Appellant claims that there was no showing that Mr. Wojciechowski made the statements found in the application over his signature, that the application might have been signed in blank, and that it might be inferred that the answers had been written in after the application was signed. Defendant offered no proof bearing on this issue and conceded that the signature to the application was that of Mr. Wojciechowski. A copy of the application was attached to the bill of complaint and its authenticity was not denied by the defendant. A prima facie showing was thus made by the plaintiff, and the circuit judge correctly concluded that in the absence of any proof to that effect the court would not be justified in finding that a fraud had been perpetrated on either the insurer or the insured, by someone who might have filled in the answers unknown to Mr. Wojciechowski.
The other claim relied upon by appellant for reversal is that the plaintiff insurer is barred from contesting the insurance because it did not attach a copy of the application to the group policy or certificate. The insurer admits this was not done and claims that it is not required by the group insurance provisions of the act.
The so-called master policy issued by the insurer to. the Kelsey-Hayes Wheel Company, and approved by the State commissioner of insurance, contains a provision that employees are entitled to insurance without evidence of insurability if they apply therefor within 31 days after they become employed, by making a so-called short-form application. In the event that an employee does not apply for insurance within 31 days after employment, or re-employment, he is required to make a “long form” application and present evidence of insurability satisfactory to the company. These are usual provisions, in group policies issued under the group insurance law. Mr. Wojciechowski did not apply for insurance during the first 31 days of his employment, in fact did not apply until after he had been employed by Kelsey-Hayes WTheel Company for many years and until about six months previous to his death. Consequently he executed the long-form application hereinbefore referred to, and acceptance of the risk was contingent upon the approval by the insurer. The group insurance law does not require the insurer to insure all of the employees who apply for insurance. after 31 days of employment. Nor does the law require that a copy of the application be attached to the group policy or the certificate issued to the individual insured. The applicable group insurance provision (3 Comp. Laws 1929, § 12435 [Stat. Ann. 1943 Rev. §24.271]) is as follows:
“Seo. 9-b. No policy of group life insurance shall be issued or delivered in this State unless and until a copy of the form thereof has been filed with the commissioner of insurance and approved by him; nor shall such policy be so issued or delivered unless it contains in substance the following provisions: * * #
“(2) A provision that the policy, the application of the employer and the individual applicants (applications), if any, of the employees insured, shall constitute the entire contract between the parties, and that all statements made by the employer or by the individual employees shall, in the absence of fraud, be deemed representations and not warranties, and that no such statement shall be used in defense to a claim under the policy, unless it is contained in a written application.”
Note that this merely requires that the statements he contained in a written application, but does not require that the application be attached to the policy. The certificate is not the policy (Germain v. Aetna Life Ins. Co., 285 Mich. 318), and it has been settled by the court that the application need not be attached to the certificate, in Kot v. Chrysler Corp., 293 Mich. 688, as follows (p. 691):
“Plaintiff, as appellant, urges that the trial court committed error by receiving in evidence Linek’s application for this insurance. At least in part this objection is based on the fact that a copy of Linek’s application for the insurance was not attached to nor made a part of the certificate of insurance issued to him. Appellant contends that this, was in violation of Act No. 180, Pub. Acts 1907, which was substantially re-enacted. * * *
“Appellant’s objection is without force because in group insurance the statute provides that the policy is issued to and held by the employer. It is not contended that the policy held by the Chrysler Corporation did not fully comply with the statute. The provision upon which appellant bases this objection is not applicable to certificates of insurance held by employees under group or master policies of the character here involved.”
Appellant insists on reading into the group insurance law a provision from the general life insurance law (See 3 Comp. Laws 1929, § 12427 [Stat. Ann. §24.263]) that no statement by the insured shall avoid the policy unless a copy of the application shall be indorsed upon or attached to the policy when issued. Appellant’s position in that regard is plainly untenable. In the first place, the certificate issued to the insured is not the policy of insurance (see Germain v. Aetna Life Ins. Co., supra) and obviously an application by an employee for insurance under a group policy already issued, in this case many years previously, could not have been attached to the policy “when issued.” Furthermore, it has been settled that the provisions of the general life insurance law in 3 Comp. Laws 1929, §12427 (Stat. Ann. §24.263), supra, on which appellant relies, do not apply to group insurance.
“The provisions for group life insurance (3 Comp. Laws 1929, § 12434 et seq. [Stat. Ann. §24.270 et seq.]) differ from the provisions under the general insurance law and section 12427, supra, is not applicable to a group life insurance policy. The statutory provisions in regard to general life insurance and group life insurance are different and many of the requirements of the one are not applicable to the other.” Szymanski v. John Hancock Mutual Life Ins. Co., 304 Mich. 483, 489 (145 A. L. R. 947).
Among the decisions above cited, the Germain, Kot and Szymanski Cases are under the group insurance law.
The alternative position taken by appellant is likewise untenable, in claiming that the certificate of insurance issued to Mr. Wojciechowski under the terms of his employer’s group policy, was merely “an ordinary life insurance policy,” and that: “the plaintiff in this case actually wrote ordinary life insurance under the guise of group insurance.”
A certificate of insurance issued under the provisions of a group policy, approved by the commissioner of insurance under the provisions of the group insurance law, is not a life insurance policy issued under the provisions of the general life insurance law.
We have noted the suggestion in the brief filed by amici curiae, with leave of court, that a misunderstanding results among employees from the practice of continuing to write group insurance after the 31-day period from date of employment has elapsed. The court does not decide the policy of legislation. If the objection merits consideration the remedy lies in legislative action.
The decree is affirmed, but without costs, a question of construction of a statute of public interest being involved.
Butzel, C. J., and Carr, Bushnell, Sharpe, Reid, North, and Starr, JJ., concurred.
This section was amended by Act No. 75, Pub. Acts 1937, Act No. 101, Pub. Aets 1941, and Act No. 154, Pub. Acts 1943 (Comp. Laws Supp. 1940, 1942, 1945, § 12434, Stat. Ann. 1943 Rev. § 24.270). —Repoetee.
See 3 Comp. Laws 1929, §14220 (Stat. Ann. §27.915). — Reporter.
See 3 Comp. Laws 1929, § 12425 ei seq., as amended (Comp. Laws Supp. 1940, 1945, § 12426-1 'et seq., Stat. Ann., Stat. Ann. 1943 Rev., and Stat. Ann. 1945 Cum. Supp. § 24.261 et seq.). — Reporter. | [
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Reid, J.
(dissenting). The dispute involved in this appeal is over the sufficiency of the service of notice of appeal from probate court to circuit court. Appellants Essie I. Camp and Flossie O. Vollendorf, who are the only heirs and legatees of deceased, filed their motion in circuit court to dismiss the appeal from probate court. The circuit judge held the service of notice of appeal sufficient and denied the motion to dismiss the appeal. From the order of the circuit judge denying their motion to dismiss, appellants take their appeal to this court in the nature of certiorari and mandamus.
There was a showing before the probate judge that the deceased left real estate of the value of $7,800 and personal property of the value of $3,500. On May 23, 1945, the probate court appointed James C. Camp, the executor designated in the will, as executor, but fixed his bond at $100,000, with a requirement that “the expense of the bond be his expenditure.” James C. Camp appealed to the circuit court from that part of the probate order fixing the amount of the bond. On June 6, 1945, the probate judge ordered as follows:
“It is ordered that said appeal be and the same is hereby approved, and that said appellant give notice of said appeal and of the hearing thereof in said circuit court to Flossie O. Vollendorf and Essie I. Camp, the adverse parties, by personal service upon them or their attorney of record of a copy of said claim of appeal.”
Failure to comply with this order would require dismissal of the appeal. See Act No. 288, chap. 1, §40, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 16289-1 [40], Stat. Ann. 1943 Rev. § 27.3178 [40]); also, Court Rule No. 75, §4(b) (1945).
On June 14, 1945, William S. McDowell, attorney for James C. Camp, mailed to Wilfrid L. Burke, attorney, a copy of claim of appeal from the order of the probate court of May 23, 1945. McDowell made an affidavit to that effect and attached a photostatic copy of the letter of transmittal of the claim of appeal and a photostatic copy of a reply to the letter enclosing the notice of appeal, which reply was written by Wilfrid L. Burke, the attorney, dated June 15, 1945, returning McDowell’s letter. The letter from McDowell to Burke, dated June 14,1945, is as follows:
“Enclosed herewith find copy of appeal from the' order of the probate court of May 23, 1945, in the estate of John F. Wilkie, deceased. As stated yesterday, it might be well if you entered a general appearance in said estate for your client, Essie I. Camp.
“I will endeavor to have personal service of said appeal made upon Mrs. Vollendorf.”
The reply by Wilfrid L. Burke, dated June 15, 1945, and addressed to attorney McDowell, is as follows :
“I am returning herewith claim of appeal in the above cause. Since no appearance has been filed in said cause which would make me ‘attorney of record’ for either Mrs. Camp or Mrs. Yollendorf, I cannot accept service for either of them. Personal service pursuant to the court order should be made on these two ladies.”
The record discloses that on March 14, 1945, attorney Burke wrote to an attorney, Raymond LaBar of Detroit, as follows:
“Your client, Mr. James Camp, was named executor in the will of Mr. Wilkie, who recently died. Mrs. Camp and her sister prefer that some one else act in his stead. I am therefore enclosing a declination to act, and ask that you obtain his signature for us.”
On May -22, 1945, attorney. Burke swore to and filed in the probate court an affidavit which in part is as follows:
“Wilfrid L. Burke, being duly sworn, deposes and says that he is attorney for the petitioner and the two legatees named in the will of the deceased. Deponent further says that he served a true copy of the attached notice upon Essie I. Camp and Flossie O. Vollendorf, the sole legatees and sole heirs at law of John F. Wilkie, deceased, on March 31, 1945.”
Attorney Burke in his letter returning the notice mailed to him says that he is not the attorney of record for either Mrs. Camp or Mrs. Vollendorf. However, his filing of .the above affidavit in which he recites that he is attorney for the “two legatees named in the will of deceased,” who are Mrs. Camp and Mrs. Vollendorf, and who are also the appellants whom he represents on this appeal, stands as a record in the probate court that he was such attorney, at least on May 22, 1945. On June 14, 1945, when the notice was mailed, there was no indication to the probate court nor ■ to Mr. McDowell, the attorney for Mr. Camp, that Mr. Burke no longer represented the two parties in question. While Mr. Burke denied in the circuit court that he was the attorney of record at the time he received the notice, he makes no point of such claim in his statement of questions involved on this appeal. Under all the circumstances, we conclude that he was attorney of record for the appellants in probate court at the time he received the notice by mail. There remains only the question whether the service upon him was sufficient. It plainly appears that Mr. Burke, a practicing attorney, personally received the notice in question, that he personally knew the contents, purport, tenor and substance of the notice. It is not questioned that the notice was in writing and sufficient in form.
“Delivery of notice of an intention not to abide by an award of the industrial accident commission, sent through the registered mails, and actually de livered to defendant in person is giving of notice' by ‘personal service’ within Vernon’s Ann. Civ. St. Snpp. 1918, art. 5246-44, requiring such notice as condition precedent to action in the district court.” Hood v. Texas Employers’ Ins. Ass’n (Tex. Civ. App.) (syllabus), 260 S. W. 243.
‘ ‘ The delivery of the bill of exceptions to said attorneys by Wells Fargo & Co. made the service a personal service. * * * ‘The delivery of the notice through such agency (Wells Fargo & Co.) renders the service personal, and the proof of such delivery establishes a personal service.’ Heinlen v. Heilbron, 94 Cal. 636, 640 (30 Pac. 8).” Kramm v. Railroad Co., 22 Cal. App. 732 (136 Pac. 523, 528).
See, also, McKenna v. State Ins. Co. of Des Moines, 73 Iowa, 453 (35 N. W. 519), in which case the court construed a statute which provided, “such notice may be served either personally, or by registered letter addressed to the insured at his post-office address, named in or on the policy,” in reference to which statute the court says, at p. 520:
“If the plaintiff’s position is correct, that the service by mail is not made until the actual delivery of the notice to the insured, then that service would be personal service, and it would follow that the provision for service by mail is superfluous.” (Italics supplied.)
Our decision in Hosey v. Ionia Circuit Judge, 120 Mich. 280, is not controlling of the instant case, but instead is plainly distinguishable. In that case the only proof of service was that the nptice of appeal was properly mailed to James Hosey; but there %vas no proof that he received the notice so mailed. Seemingly for that reason it was properly held that mere mailing did not constitute personal service. But in the instant case the attorney of record for the appellants in this court admitted he received, read and understood the notice of appeal which was sent to him through the mail. This fact stands undisputed in the record. Under such circumstances the service should be held to be good as personal service upon the attorney.
In the case of Sokup v. Davis’ Estate, 206 Mich. 144, cited in the opinion of Mr. Justice Boyles, the defect in service pertained to the time limited for service, and is no authority on the proposition in dispute in the instant case, that the service became personal service when the recipient personally and understanding^ received the written notice.
The notice in the instant case was complete. Our attention has not been directed to any decision holding that when a party or an attorney of record personally receives written notice, he is not considered as personally served.
The order appealed from should be affirmed. Costs to the appellee.
Btttzel, C. J., concurred with Reid, J. | [
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Cooley, J.
This proceeding originated in the office of the circuit court commissioner of Livingston county, where Gorton instituted .it for the recovery of the possession of lands under the statute which authorizes summary proceedings before a commissioner “when any person shall continue in possession of any premises sold by virtue of any mortgage or execution, after the expiration of the time limited by law for the redemption of such premises.” Comp. L. § 6Y06.
The mortgage under which Gorton claimed was given to him by Peter McGraw June 3, 1861, to secure the payment of five hundred dollars in instalments, the last of which was due in five years from date. Margaret McGraw, the wife of Peter, joined in the mortgage. They were at the time living upon the land, and continued to live there until Peter died some time in 1864. The evidence appearing in the record indicates that Peter McGraw never had any title to the land, and that at the time of his death it was owned by Francis Palms. In June, 1866, the defendant John Poach took a lease of the land from Palms, and'went into posses sion. In the following year he made a purchase of it from Palms. He also at some time not specified married Margaret McGraw, who is united with him as defendant in this proceeding. It seems to be assumed in this case that the marriage took place at or before the time when Poach took possession of the land, and that the defendant Margaret has remained in possession continuously since the death of her first husband. The mortgage was foreclosed by ex pa/rte proceedings under the power of sale, and the lands bid in by the mortgagor in July, 1878, and the sale became absolute in one year thereafter. This proceeding was instituted afterwards, and after a trial before the commissioner was appealed to and tried in the circuit court, where the defendants had judgment.
It seems to be the theory of the plaintiff that Mrs. McGraw, while remaining in possession of the mortgaged premises after her husband’s death, was occupying under a dower or homestead right, and would be estopped from disputing the mortgage or the title which the husband assumed to mortgage; that Poach, marrying the widow and coming to the occupancy with her, took possession in her right and was in like manner estopped, and that both mpst surrender possession before they or either of them can set up an adverse title.
The general principle that a mortgagor cannot dispute the title mortgaged for the purpose of retaining possession adverse to a foreclosure, is familial’. But in this case the adverse title is not set up by one of the mortgagors; it is set up by one who was a stranger to the mortgage. The only way in which he is supposed to be connected with the estoppel which affected the mortgagor is by his having married the widow while she remained in possession. He had an undoubted right before the marriage to evict the widow and take possession, but having entered into possession without doing so, he has in some way, it is supposed, taken upon himself among other marital consequences the estoppel that previously affected the widow. But we are unable to appreciate the force of the reasoning in support of this view.
"When John Poach took his lease from Palms, he. had a right to take possession if he could acquire it peaceably. The widow in possession seems to have made no objection, and his possession, so far as we are informed, has been peaceable ever since. There, is nothing to show that the marriage was entered into and possession taken for the purpose of defrauding the mortgagee, or that John Poach ever for a moment claimed in right of his wife, or otherwise than under the adverse title. His possession from the first must be presumed to be in his own right, and his wife occupied with him because she was his wife and he was lessee and afterwards owner. If Roach independent of his marriage had a right to take possession, the marriage certainly could not preclude him. That was an affair which in no manner 'affected the title or right to possession of the iand, but after it took place he had a right to live with his wife wherever he had a right to live separately. He cannot be required to separate from his wife in order to be in position to enforce his rights to property. And having an actual right himself he must be deemed to have held under it, and not under any claim of the wife which she does not make, and which would be unfounded if made, and which is only made for her by the mortgagee in order that he may attach to it the consequences of an estoppel.
The judgment must be affirmed with costs.
The other Justices concurred. | [
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Kuhn, J.
The plaintiff, an Illinois corporation, brought an action in assumpsit against the defendant to recover the difference between the agreed price of $138 per share and the price received at a sale, $120 per share, for 50 shares of the common capital stock of the American Fork & Hoe Company. The defendant, who had traded in this stock, on March 31, 1911, sent plaintiff the following letter:
“Dudley A. Tyng & Co.,
“Chicago.
“Gentlemen:
“I will buy any part of 50 shares American Fork & Hoe Com. at 138 per share. Advise me promptly if you have anything to offer at this price.
“Very truly,
“W. T. Converse.”
In reply he received the following:
“Chicago, April 1, 1911.
“Mr. W. T. Converse,
“Jackson, Mich.
“Dear Sir:
“We note that you have raised your offer on American Fork & Hoe common, and will buy any part of 50 shares at $138 per share, and we will keep the same open until canceled.
“We regret we were unable to fill the last order we had from you, but other people bid our client a higher price than we could afford to pay and stock got away from us.
“We thank you for your business to date however and hope we may serve you in the near future.
“Yours truly,
“Dudley A. Tyng & Co.,
“By A. M. Andrews.”
Between the 5th and 8th of April, Mr. Andrews, in Chicago, representing the plaintiff company, and the defendant, in Jackson, had a conversation over the long-distance telephone. There is no dispute that such a conversation took place, but some controversy is had as to what the conversation was. It is contended by Mr. Andrews, that his company had carried on its books for the defendant what is known as an open order for 50 shares of the stock at $138 per share; that while carrying this order the defendant bought 28 shares of the common stock of the same company at $145 per share; and that when the talk occurred by which the defendant ratified this order for 28 shares at $145 each, he asked the defendant if he wanted to cancel his order for 50 shares at $138, and that the defendant replied, “No, let it stay in. I will be very glad to get it at that price any time .1 can get it;” and that he replied, “Very well, we will leave it open as it stands.” Mr. Converse, on the other hand, claims that when asked by Mr. Andrews in the telephone conversation concerning the so-called order for 50 shares he said that while he would have been glad to get that stock, he was at the time well supplied and had all he could handle, and denied that he made the statements testified to by Andrews. On April 19th plaintiff sent defendant this telegram:
“W. T. Converse,
“Amn. Fork & Hoe Co.,
“Jackson, Mich.
“Sold you fifty American Fork Hoe hundred thirty-eight as per your open order can possibly supply fifty more.
“Dudley A. Tyng & Co.
“1234 p. m.”
—and received in reply:
“Dudley A. Tyng & Co.,
“184 La Salle St. Chgo.
“Cannot accept the fifty shares. Have bought all can handle.
“W. T. Converse.”
On the same day the following letters were exchanged between the parties:
“Chicago, April 19, 1911.
“Mr. W. T. Converse,
“American Fork & Hoe Co.,
“Jackson, Mich.
“Dear Sir:
“We hereby confirm wires passed between us today: ‘Sold you fifty American Fork Hoe hundred thirty-eight as per your open order. Can possibly supply fifty more.’ Your reply: ‘Cannot accept the fifty shares. Have bought all can handle.’
“In the writer’s subsequent conversation with you over the long-distance telephone you acknowledge having given us this order and that you had bought the stock some place else without canceling it.
“We have acted in good faith and up to this time our deals with you have always been satisfactory. We had no reason to suppose that you were in any trouble or were not in a position to take stock for which you gave us orders. We believe you to be an honorable man and ready to take care of your obligations when possible. We have therefore offered to carry this stock for you if you will give us $500 or
$1,000 on account to take care of the matter until you can get straightened around.
“The writer particularly asked at the time we sold you the last block of stock whether or not you wanted this order canceled at $138 and you told him no, if we could get it at that price you would be glad to take it.
“We hope you will see your way clear to take care of us, as we do not wish to go to our attorneys about a matter on which the right and wrong is so* obvious.
“We are unable to get a bid for the stock this afternoon but will try the first thing in the morning and are awaiting your letter which you have promised to write us tonight.
“Yours very truly,
“Dudley A. Tyng & Co.,
“By A. M. Andrews.”
“Jackson, Mich., Api. 19 — 11. “Dudley A. Tyng & Co.,
“Chicago.
“Gentlemen:
“Confirming our phone conversation will say I am very sorry I did not cancel my order with you. But since placing the order have bought two lots of you at much higher prices, and have also taken small lots from other houses, and now have all I can handle. If I had the wherewith to pay for same would be glad to get several hundred shares at present prices. Am very sure it would be a good investment. The stock I have recently bought has all been put with the bank, and I have gone my limit. Cannot take more at present at any price.
“Very truly,
“W. T. Converse.”
Mr. Andrews testified that after receiving the telegram in which defendant refused to take the 50 shares he called him by long-distance telephone, and Mr. Converse said, in substance, that he was sorry he had forgotten to cancel the order, but that he was unable to purchase the stock and would write fully about it that night. It is plaintiff’s claim that when defendant refused to take the stock they offered it on the market and sold it on April 21st at the best price obtainable, $120 per share. Plaintiff, in the trial court, had a verdict for $943.12, the difference between the price contracted for and the price received at the sale, and interest thereon. It is the contention of the defendant that the letter of March 31st was a present offer to buy, and that to have made a binding contract it would have been necessary for plaintiff to accept the offer without any terms or conditions, and that the letter of April 1st was not such an acceptance. It is the theory of the plaintiff, and it was upon this theory that the case was tried and submitted to the jury, that the correspondence and telephone conversation created an open or standing order which was accepted when the plaintiff notified the defendant that it had sold him the stock as per such open order. It is an elementary proposition that before an offer can become a binding promise and result in a contract it must be accepted. While there is dispute as to what the telephone conversation in the early part of April was, the claim that there was an open or standing order, and that it was so understood by the parties, received its strongest corroboration in the letter of April 19th, in which defendant says:
“Confirming our phone conversation will say I am very sorry I did not cancel my order with you.”
This is a direct admission that he considered that he had an open order with plaintiff which he failed to cancel. There can be no question that if plaintiff had failed or refused to deliver the stock after agreeing to furnish in the telegram of April 19th, it would have been liable in damages to the defendant.
It is contended by the defendant that if there was a contract it was a Michigan contract, and that if the telephone conversation is held to be binding, it should be governed by the laws of Michigan, which provide that an oral agreement to purchase property of the value of $50 or upwards is not binding unless in writing. Section 9516, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 11400). There is no question in our minds that if there was an acceptance of the offer it was accepted in Chicago. An offer may be accepted by telegram or by telephone. Bank of Yolo v. Flour Co., 141 Cal. 314 (74 Pac. 855, 65 L. R. A. 90).
Elliott, in his work on Contracts, vol. 1, § 46, says:
“Contracts may be consummated by means of telephonic conversations. When a person places himself in connection with another by means of the telephone system he thereby invites communication relative to his business through that channel. In a recent case, referring to an argument against the validity of such a contract, it is said:
“ ‘If by this Is meant that a contract cannot be made by telephone conversation, it is too late to so argue. A large part of our business transactions are, in this century, carried on by telephone. Our courts have long ago held that contracts made by telephone are as effective and binding in law as if made verbally between the parties standing face to face and carrying on the conversation which culminates in the contract.’ ”
Also, at section 62:
“The place of the contract is also usually determined by the place where the acceptance is given. Thus, an order to make certain bets having been transmitted by postal telegraph from the plaintiff without the city of London to the defendant within it, he telegraphed from the city that the order had been obeyed. It was held that the contract of agency was made in the city. And where an offer was made in Boston, and accepted by telegram from Providence, it was held that the contract was made in Rhode Island, although to be performed in Massachusetts. Likewise the contract is made at the place when the acceptance is mailed. If the communications are had over the telephone the contract is deemed to have been made at the place where the offer of one is accepted by another. The place of contract is material as prima facie denoting the law by which it is to be construed and regulated.”
It is clear that if a contract was established it was an Illinois contract (Douglass v. Paine, 141 Mich. 485 [104 N. W. 781]), and it was conceded upon the trial that there is no statute of frauds in Illinois in reference to the sale of goods, wares, and merchandise.
It is further contended that if there was a binding contract plaintiff did not, at the time, have control of the stock, and could not have delivered it. The .plaintiff had bound itself to deliver the stock, and the defendant refused to accept it. It was not necessary for plaintiff, in order to bind itself in the way that it did, to have had title .to the stock. Gregory v. Wendell, 40 Mich. 432.
We have examined the assignments of error with care, and we are of the opinion that the issue involved was properly submitted to the jury without prejudicial error.
Judgment affirmed.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Kuhn, J.
The defendant, James Davidson, prior to February 20, 1904, was interested in a factory at Dresden, Ontario, for the manufacture of beets into sugar. The operation of the factory not being sue cessful in that locality, he made a contract with the plaintiff, Theodore Hapke, who was an expert agriculturist, to remove the same, which contract in terms was as follows:
“This agreement, made February 20th, 1904, at Detroit, Michigan, between Theodore Hapke, of the city of New York, party of the first part, and James Davidson, of West Bay City, Michigan, party of the second part, Witnesseth:
“1. Said party of the first part hereby agrees to supervise the removal of the Beet Sugar Factory of the Dresden Sugar Co., Ltd., from its present location at Dresden, Ont., to Janesville, Wis., or such other place as the said party of the second part may designate, and also the re-erection and reconstruction of said factory at the place to which it shall be so removed and to also assist during the operation of the same up to February 1st, 1905.
“2. Said party of the first part also agrees to furnish for such work a first class engineer to superintend the erection of the machinery of said plant, and also another first class engineer to supervise the re-erection of the building thereof; both said engineers shall devote their entire time and attention to said work until it is all accomplished and complete, and said factory in successful operation; their said services .shall continue during the operation of said plant when so removed and re-erected, but not later than February 1st, 1905.
“3. Said party of the first part agrees to pay all the wages, salary and expenses of the said two engineers, also his own office expenses of every nature and description, including telegrams and correspondence, and all traveling expenses; and he further agrees to furnish full details, plans and specifications for the removal and re-erection of said plant as aforesaid, that no material changes shall be made therein without the approval of said party of the second part; and said party of the first part also guarantees that said factory shall be so re-erected in its new location that it can be there operated as economically and efficiently as heretofore.
“4. In consideration of this agreement and the performance thereof by said party of the first part, the said party of the second part hereby agrees to pay him, in full, for all services and expenses on account of said work, the sum of fifteen thousand six hundred dollars, as follows:
“One thousand dollars at the signing of this agreement, and the balance in equal monthly installments of thirteen hundred and twenty-seven dollars and thirty-three cents each, on the first day of each and every month thereafter, commencing April 1st, 1904, until said balance is paid.
“5. It is understood and agreed that said party of the second part is to pay for all the work, labor, freight and other expenses attendant upon such removal and re-erection of said plant, except such expenses as are herein specified to be borne by said party of the first part.
“6. It is further agreed that said party of the second part will use his best endeavors to expedite said work of removal and re-erection, and that both of said parties hereto will faithfully use their best efforts to accomplish the removal of said factory, its re-erection as aforesaid, and its successful operation in its new location up to February 1st, 1905.
“In witness whereof, said parties have hereunto set their hands the day and year first above written.
[Signed] “Theo. Hapke.
[Signed] “James Davidson.”
At the time of the execution of this contract, the defendant delivered to the plaintiff the following writing:
“To Whom It May Concern:
“Mr. Theodore Hapke has been employed by me to superintend the removal of the beet sugar factory now on premises near Dresden, Ontario, to Janesville, Wisconsin, or such other place as I may designate; he is authorized to make all necessary arrangements respecting the entry of the property into the United States custom house, and to act for me as my agent in the re-erection of said factory at the place which I may designate; and to do what may be incidentally necessary to the proper removal and re-erection of said factory.
“James Davidson.”
The factory was removed, re-erected, reconstructed, and operated at Janesville, and the plaintiff performed all of the work required of him under the agreement of February 20, 1904, and the defendant paid, as contracted, the entire sum of $15,600. It is the claim of the plaintiff, in practically the language of a request to charge as given by the court, that:
“After February 20, 1904, he rendered certain services and expended certain moneys in connection with securing a site for the factory at Janesville and negotiating with the railroad companies for joint railroad tracks, and in securing acreage for beets from farmers in the vicinity, and in the payment of agents’ commissions to solicit the farmers to grow such beets, and in negotiating with the railroad companies for securing rates on machinery shipped to Janesville, and upon sugar shipped from the factory at Janesville, and in negotiating with railroad companies for rates upon coal, limestone, and other supplies required in the operation of such factory, and in negotiating with railroad companies in regard to demurrage charges on cars of coal and beets, and in going to Milwaukee in regard to the entering of the machinery into the country from Dresden, and in going to Milwaukee and Washington to secure the release of certain bonds given by the defendant in connection therewith, all of which said services and expenditures of money plaintiff claims are extra services and expenditures not included in the written contract of February 20, 1904, for which the defendant should compensate and reimburse him; and the plaintiff claims that he performed these extra services and made such disbursements at the request of the defendant, and upon the promise of the defendant to pay him well for such services, and to reimburse him for such expenditures, and that the plaintiff called the defendant’s attention to such services and expenditures from time to time while the services were being performed and the expenditures were being made, and that the defendant told him he would pay him for such services and reimburse him for the expenditures, but he did not do so, nor did he refuse to pay him for such services and reimburse him for such expenditures, nor deny liability therefor, but said to the plaintiff, in substance, ‘What is a few thousand dollars to you if I help you to make several thousand dollars by going in with you in the building of sugar beet factories?’ and the plaintiff claims that he did not relinquish his right to be paid any money for such services and disbursements, nor did he agree to be compensated for such services and disbursements by the defendant’s promise, if carried out, to interest himself with the plaintiff or back the plaintiff in the removal of beet sugar factories, but that the plaintiff did forego presenting a bill or insisting upon payment in money at the time of such conversation with the defendant for such services and disbursements, relying upon the defendant’s promises that he would back him up or help him out with a moderate amount of capital in the removal of sugar factories, but that defendant failed and refused to interest himself with the plaintiff or furnish a moderate amount of capital in the removal of the sugar factories, and that when defendant did so refuse and fail to interest himself with the plaintiff in the removal of sugar factories, or invest a moderate amount of capital, the plaintiff presented a bill for the extra services claimed to have been performed by him, and for certain disbursements, and demanded payment therefor in accordance with defendant’s promise to pay.”
The claim of the defendant, as given in the charge of the court, was as follows:
“The defendant denies entirely that he is indebted to the plaintiff in any sum for any such claimed service or expenditure, insisting that if such services were rendered and moneys expended, all of which he questions in amount, they were rendered and expended by the plaintiff without any request upon the part of defendant that plaintiff should do so, and without any knowledge that plaintiff ever expected to be compensated or reimbursed therefor, but rather that plaintiff understood that such service and expenditure were a part of the agreement of February 20, 1904, which he was called upon to perform and do.”
The issue thus formed being submitted to the jury, a verdict in the sum of $1,917 for the plaintiff was returned. Judgment being had thereon, the cause was brought to this court by writ of error.
The numerous assignments of errors have been conveniently grouped by counsel for defendant, and under appropriate headings have been discussed by counsel in their briefs:
Does Contract of February 20th Include by its Terms Items of Plaintiff’s Claim? It is the contention of the defendant that the economical, efficient, and successful operation provided for in section 3 of the contract necessitated the securing of a site where railroad tracks could be secured, sufficient acreage of beets, reasonable freight rates upon machinery and material shipped in, coal, limestone, and other supplies required, and upon the manufactured product shipped out, and all things which must receive attention necessary to the successful operation of a manufacturing plant, and which tend to affect the profits of the owner, and that the provision in the contract that the plaintiff would use his best efforts towards the successful operation of the factory up to February 1, 1905, called upon him to do all the things he claims as extra services. It is the contention of the plaintiff that the agreement provides simply for an engineering and mechanical proposition, and that the matters in controversy are incident only to the success of the enterprise, and not to the successful operation of the factory. Having in mind the well-established rule that in construing a contract the endeavor should be to arrive at the intention of the parties, and that in doing so all its parts must be examined and effect given to every word and phrase, if practicable (Plano Manfg. Co. v. Ellis, 68 Mich. 101 [35 N. W. 841]), we are of the opinion that the contention of the plaintiff and the conclusion that the trial court came to is the correct one. The contract did not require, and the plaintiff did not undertake to guarantee, that the enterprise should be a success and the venture profitable. He did contract to supervise the mechanical part of removal and reconstruction so that the machinery would operate as economically and as efficiently as before, up to February 1, 1905. That it did so is unquestioned. We do not think that the items of plaintiff’s claims submitted to the jury can be said to be covered by the terms of the agreement.
No Implied and No Express Agreement Other Than in Contract February 20, 1914. It was claimed by the plaintiff and denied by the defendant that the services performed by plaintiff for the recovery of which this suit is brought were done at the instance and request of the defendant, with his knowledge and approval, for his special benefit, and were received by him. The issue thus made was submitted as a question of fact for the determination of the jury. It is urged by the defendant that it is clear from the correspondence of the parties that it was the understanding of the plaintiff that the services for which compensation is now claimed came under the contract, and that no claim was made by him for extra services until April 5, 1905, when he wrote a letter, in which he said:
“As to the bill for extra services, I did not intend to make you pay for any extra services rendered, since according to your promise given more than a hundred times, you would help me out at any time with a moderate amount of capital in new deals, but you now flatly refuse to do anything for me. This shows that you do not appreciate for a minute the hard work I did for you, and instead of canceling the charge for extra services I now request and demand remittance.”
It is urged that this letter shows that the services rendered were voluntary, and with no expectation at the time of rendition that they were to be compensated for, and that it was only the failure of the de fendant to carry out another arrangement to assist plaintiff in other factory deals that caused him- to make his claim for extra services. It is plaintiff’s contention that he expected compensation at the time the services were rendered, and that it was agreed upon that he should have it; that the letter simply shows that he felt kindly towards the defendant, and did not intend to make defendant pay for these services in case their business relations continued. We are strongly impressed, however, that the significant statement in the letter of April 5th showed the true intent of the plaintiff not to charge the defendant for the services when they were rendered, especially when considered in connection with his oral testimony when he said, “My intentions were not to charge him if he would do what he promised to do for this work,” and also the fact that he kept no record of the time spent in extra services. It is also to be presumed, not conclusively, but as a matter of fact, that whatever services plaintiff rendered were rendered in performance of the contract. The services might have been rendered in performance of the contract, and the statement in the letter, “I did not intend to make you pay for extra services rendered,” etc., we think, is clearly an admission that when they were rendered they were rendered in performance of the contract. The presumption referred to and the letter and corroborating evidence are so persuasive, to our minds, that we are of the opinion that the circuit judge should have granted the motion for a new trial on the ground that the verdict was clearly against the weight of the evidence. As this conclusion necessitates sending the case back for a new trial, we shall consider some of the other questions raised on this appeal.
Proofs Affecting Making Contract February 20, 1904. The circuit judge held and instructed the jury that there could be no recovery for services per formed or the expenditures made prior to February 20, 1904, for the reason that all these matters had merged in the contract. The defendant offered in -evidence certain correspondence between'the. parties prior to that time,- and also endeavored to show conversation which took place between the parties in the office of the attorney at the time the contract was made. In the letter of February 13, 1904, written by the defendant to plaintiff at Janesville, he said, after discussing the removal of the factory in question:
“And of course we would also want it distinctly understood that we could not allow anything for any promotion, expenses or anything of that kind.”
It is clear that the purpose of offering this letter and a draft of the proposed contract made previous to the meeting in the attorney’s office, when the agreement was actually signed, was to vary the terms of the contract as construed by the court, and was an effort to show that the claimed items for extras were intended to be within the terms of the agreement. The rulings of the court in excluding these writings were proper. It must be assumed that the contract as made was the culmination of the negotiations between the parties, and, its terms not being ambiguous, these writings were inadmissible. Eaton v. Gladwell, 108 Mich. 678 (66 N. W. 598); Mouat v. Montague, 122 Mich. 334 (81 N. W. 112); 17 Cyc. p. 596. The evidence of the conversation had before the contract was also inadmissible. Cohen v. Jackoboice, 101 Mich. 409 (59 N. W. 665); R. K. Carter & Co. v. Weber, 138 Mich. 576 (101 N. W. 818); Wallace v. Kelly, 148 Mich. 336 (111 N. W. 1049, 118 Am. St. Rep. 580) ; International Text-Book Co. v. Marvin, 166 Mich. 660 (132 N. W. 437).
Bill of Particulars and Amendment Thereto. Without leave of the court, on June 6, 1911, plaintiff filed an amendment to his bill of particulars, by which amendment the limit of 1904, fixed as to several items, was advanced one year, making the same 1905. On June 11, 1911, the defendant entered a special motion to strike such amendment from the files, for the reason, in substance, that the same' was filed without leave of court, and that it covered new and distinct claims of plaintiff against defendant after the statute of limitations had run, and after the taking of the testimony of several witnesses. The hearing on this motion was postponed until the trial of the cause, at which time the court held the amendments properly made. The mere change in the date did not, in our judgment, introduce a new cause of action, and, under' the rule announced in Pratt v. Montcalm Circuit Judge, 105 Mich. 499 (63 N. W. 506), unless this is the result, the amendment is proper. As stated in 1 Enc. PI. & Prac. p. 564:
"The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope and varying phases of the testimony.”
See, also, Connell v. McNett, 109 Mich. 329 (67 N. W. 344) ; City of Detroit v. Wayne Circuit Judge, 125 Mich. 634 (85 N. W. 1); Jones v. Pendleton, 151 Mich. 442 (115 N. W. 468); Croze v. Land Co., 153 Mich. 363 (117 N. W. 81). The allowance of an amendment to the bill of particulars is discretionary. City of Battle Creek v. Haak, 139 Mich. 514 (102 N. W. 1005).
Statute of Frauds. The Rock Island Sugar Company was incorporated on March 4, 1904, for the purpose of owning and operating the Janesville plant. It is claimed that compensation for any services or expenditures as claimed by plaintiff, if resting on an implied contract, would create a liability against the sugar company, and not against the defendant, as the benefit would accrue to it, and not to him, and if this is true, the action would be barred by the statute of frauds. The theory upon which this case was submitted to the jury was that the services rendered and the expenditures made were made at the request of the defendant. There is nothing in the record to show that the items of plaintiff’s claim arose otherwise than through plaintiff’s dealings with the defendant, with whom he had his correspondence and conversations. We are not impressed that there is any merit in this claim.
Set-Offs. The claim to set-offs arose from the following writing:
“Me. M. R. Osbuen,
“Mgr. Rock County Sugar Co.,
“Janesville, Wis.
“Dear Sir:
“I herewith offer to buy your total output of dried beet pulp and dried molasses beet pulp manufactured by you during the beet slicing season of 1904 and 5 at the price of $12.00 per ton in bags f. o. b. cars Janesville.
“Yours truly,
“Theo. Hapke.
“Accepted:
“Terms (20) twenty days net cash.
“Rock County Sugae Company,
“By M. R. Osbuen, General Manager.
“James Davidson.
“Theo. Hapke.”
In a notice of set-off it was defendant’s claim that plaintiff owes, as a result of this contract, $2,526.14 for beet pulp delivered by the sugar company to plaintiff. It is plaintiff’s position that he also has a claim against the sugar company as an offset to this claim. It quite clearly appears from the record that plaintiff’s dealings with the sugar company were separate and distinct from his business relations with the defendant. The fact that the defendant owned practically all of the stock of the sugar company did not alter the fact that it was a separate and distinct legal entity. It was not a party to this litigation. Plaintiff could not urge his claim against the sugar company in this litigation, and so its claim could not be offset against plaintiff’s present claim.
Other assignments of error relate to the charge of the court, admission of testimony, and limiting cross-examination. We are convinced that there is no merit in these contentions, as no prejudicial error was committed.
However, for the reason stated, the case will be reversed, and a new trial granted.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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McAlvay, C. J.
Plaintiff, as representative of her deceased husband, recovered the present judgment in this case against defendant for injuries resulting in his death, charged to have been caused by the negligence of defendant.
This case was first before this court in the April term, 1897, where a former judgment in favor of plaintiff was reversed by a majority opinion and a new trial ordered. No further prosecution of the case was had until October, 1912, when a second trial occurred, which resulted in the judgment now before this court for review.
For an extended statement of facts in the case, reference is had to the opinions in Andrews v. Mining Co., 114 Mich. 375 (72 N. W. 242). In the present opinion only such facts as are sufficient to an intelligent understanding of the case need be stated.
Plaintiff’s decedent was a miner of 20 years’ experience. He had worked in Michigan copper and iron mines for several years, and had previously worked in defendant’s mine for about one year. At the time of the accident, he had for a second period worked in this mine for several weeks. He was a man of more than ordinary intelligence, and in mining, which had been his life work, he was an expert, and had at times held positions of trust, having been at one time a captain. At the time of the accident he was working as a “hitch cutter” with a man named Trevarrow. “Hitch cutters” work in pairs, cutting holes, called “hitches,” in the rock of the foot wall of the “stope,” or tunnel, of the mine. One of the pair holds the cutting tool, and the other strikes with a sledge. These holes receive the lower ends of pieces of timber which are set upright in sets of three, called batteries, and are driven in tight against the top, or hanging wall, of the stope to prevent rock from falling down. These sets of timbers are put in about seven or eight feet apart as the drilling and mining of the “stope” advances. The “stope” rises at an angle towards the level above as it is mined out. In this “Stope” the vein of ore, which was perfectly hard and safe to work in, required drilling and blasting. It was first mined out on the lower half of the vein near the foot wall, and then the upper half up to the hanging wall, so that in mining the stope was usually driven in further on the foot wall than overhead. The rock above the vein of ore was brittle, which necessitated that it be timbered in the manner described, and this mining was known and understood to be more than usually dangerous. The work of the “hitch cutters” and putting in the timbering into the “stope” advanced as the ore was mined out, exposing the rock roof, and they were continually making the place safe. It was their duty to examine and see that everything was safe before going to work, and, if the “hitch cutters” examined and found it was not safe for them to work, they should take time to make it safe and have men, if they needed them, to help make it safe. This “stope” was on the sixteenth level, and had been worked in about 60 feet along the course of the level and up near enough to the fifteenth level to cut a hole through for purposes of ventilation.
On the morning of the accident, the two miners had for about two hours been at work in this place, using their bars on the hanging wall, or roof, breaking down the “loose” and testing it for safety. Then came four or five timbermen, and also the “hitch cutters.” These timbermen set up the timbers and drive them into place after the “hitch cutters” have cut the “hitches.” On this occasion they also, with the two miners, continued for an hour or more after they came there to work at the rock above, including that which later fell, and broke down all that was loose or which they could break down. The hanging wall was then pronounced safe, and the testimony of all the witnesses is that everybody considered it safe.
During the time the miners and timbermen were at work with their bars, they had sufficient lights, and during this time Andrews and Trevarrow were present, standing or sitting behind the men who were doing this work, observing all that was done. When they finished, the timbermen pronounced the place safe and went to work. The miners also began to set up their machine to proceed with the drilling. The testimony of Trevarrow is that he and his partner, Andrews, were fully convinced that the place was safe to go to work in, and the head timberman told the “hitch cutters” that they could go to work, everything was safe. They at once began cutting “hitches,” and had worked about one hour, when suddenly a large piece of rock fell down and, rolling, crushed Andrews and injured Trevarrow.
The main contention of defendant is that, under the evidence in the case, a verdict should have been directed in its behalf, for the reason that there was no evidence of defendant’s negligence with respect .to plaintiff’s decedent; and that there was a clear and absolute assumption of risk by plaintiff’s decedent. Errors are also assigned upon the admission of certain testimony, and upon some portions of the charge.
When the case was first before this court, it was reversed only on account of the improper admission of certain testimony, given at the inquest, of the mining captain, Maslin, who had charge of the underground work of this mine, introduced, not for the purpose of impeachment, but to prove the substantive fact that defendant, through its agent (the captain), had knowledge of the danger and should have warned plaintiff’s decedent. The majority opinion, Mr. Justice LONG speaking for the court, probably for the purposes of a new trial, although it is not so stated, in considering one of the contentions made by plaintiff’s counsel, reads:
“But counsel for plaintiff contend that the place was made dangerous by the excavation’s being worked too far under, and left too long a time, without putting in the sets of stuff timbers, as was usual; that this was done under the direction of Capt. Maslin, who knew that if too great excavation was made, and the timbers not at once placed, the hanging walls, being left exposed, would crumble or break off and fall; that he, knowing this, sent the men in without warning them of the dangerous condition. We think there is some evidence to sustain this -contention. Mr. Par-nail, the superintendent of the mine, testified that ofttimes, when the overhanging wall appeared safe, it would suddenly break off and fall, and this within the space of a few minutes. * * * While the evidence is not very clear upon this question, we are not able to say that there is no evidence of that fact.” Andrews v. Mining Co., 114 Mich., at page 381 (72 N. W. 244).
This conclusion of the court was based entirely upon the testimony of the captain and the superintendent of the mine, who have both died since the former trial, and whose testimony, then taken, was not introduced by either party upon the last trial. Appellant alleges that the case now before the court for consideration is therefore an essentially different one from that which was passed upon on the former hearing, and that, in view of the evidence in this record and the undisputed duties of plaintiff’s decedent which he was employed to perform, there is no evidence in this case of defendant’s negligence. We have already briefly stated these duties in this opinion and find, upon an examination of both opinions handed down on the former hearing, that the entire court agreed as to these duties of plaintiffs decedent.
Quoting again from the majority opinion, we find as follows:
“Under the method adopted by the defendant company, these hitch cutters were required in all cases to examine all places where they might go to work, and see and satisfy themselves that such places were safe, before beginning their work, and they were frequently cautioned and warned as to this duty, and that they must never, under any circumstances, work under overhanging ground without first examining it, and being satisfied that it was all right, and, if found dangerous, to make or have it made safe; and they were allowed to take all the time and have all the assistance necessary for that purpose, and they understood and knew that no one would go ahead of them for that purpose, but that that was one of their particular duties.” 114 Mich., at page 382 (72 N. W. 245).
From the minority opinion, Mr. Justice Grant speaking, we quote:
“The situation, in brief, is this: These men were authorized and were expected to judge for themselves as to the safety of the place. They were competent to do so. They had been cautioned against working in dangerous places. They placed no reliance upon the judgment of any other employee, officer, or man, but used their own judgment. They were at liberty to withdraw if they considered the place dangerous. * * * The master in this case had furnished the proper tools and appliances, competent and experienced men, and had instructed them to exercise their own judgment as to the safety of the place, and had authorized them, if in their judgment the place was unsafe, not to go to work, but to take the necessary steps to render the place safe.” 114 Mich., at pages 383, 384 (72 N. W. 245).
The sole ground of negligence relied upon in plaintiff’s declaration is that it did not perform its duty in furnishing a safe place for the plaintiff’s decedent to perform his work.
The first question which arises is whether the doctrine of a safe place, as invoked, is applicable to this case. Under the undisputed evidence in this case, as far as performing his work was concerned, plaintiff’s decedent was engaged in making a safe place, and it is self-evident that it would be an impossibility for the defendant to cause the timbering in this stope to be done in advance for the protection of the men who themselves were specially employed to put in the timbering. The dangers were only those necessarily incident to the employment, changing from hour to hour, as the work progressed, and it is apparent that, by reason of the character of the work and the dangers attending it, miners of extraordinary skill and experience were selected, invested with power and authority to determine for themselves the safety of the place before going to work. This court has held that under circumstances of this character the doctrine of safe place does not apply. Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505).
The undisputed testimony of all the witnesses would indicate that for several hours, in the presence of the hitch cutters, these experienced miners and timbermen worked upon this hanging wall with bars, testing and prying down, until everybody was satisfied that the place was safe, including plaintiff’s decedent, who, with his partner, was chief in authority at that work. In the absence of the testimony of the mining superintendent and captain, upon which the opinion of a majority of this court indicated that there was slight evidence of negligence on the part of defendant, it is not necessary to discuss that feature of the case. We are satisfied that there was no evidence in the case of negligence on the part of defendant, and the court was in error in refusing defendant’s motion for an instructed verdict. This conclusion makes it unnecessary to consider the question of assumption of risk by plaintiff’s decedent, or any of the other questions which have been presented by appellant, and are discussed in the briefs.
The judgment of the circuit court is therefore reversed, and, it being obvious that no other or different case can be presented, no new trial will be granted.
Brooke, Kuhn, Stone, Bird, and Steere, JJ., concurred. Ostrander and Moore, JJ., did not sit. | [
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] |
McAlvay, C. J.
Plaintiff brought suit against Harry L. Sias, formerly township treasurer of plaintiff township, and American Bonding Company of Baltimore, as defendants, upon a surety bond given to plaintiff by them as principal and surety as the official bond of such township treasurer. Defendant bonding company demurred to the first count of plaintiff’s declaration. This demurrer was overruled, and the case is brought to this court for review, under Act No. 310, Pub. Acts 1905 (5 How. Stat. [2d Ed.] §§ 13737-8), upon a writ of certiorari by the demurring defendant. ■
The record consists of the pleadings and the return of the trial judge to the writ. The facts are not in dispute and, stated briefly, are as follows: Defendant Sias was elected treasurer of plaintiff township in April, 1907, and furnished a bond in the penal sum of $6,000, upon which the American Bonding Company became surety. It is claimed that Sias was short in his accounts with the township at the end of his term of office in April, 1908, $1,589.74. One Julius Gross was elected to succeed Sias in office in April, 1908, and held the office of treasurer of plaintiff township for two successive terms and until April 4, 1910, when Sias was again elected to the office of treasurer.
It is claimed by plaintiff in its declaration that Sias represented to the township upon his re-election in April, 1910, that Gross was in default as treasurer in the sum of $1,693.30. October 11, 1910, said Forest township sued Gross and his surety upon his official bond, as treasurer, in the circuit court for the county of Cheboygan, which suit was tried in said court in March, 1911, resulting in a verdict for plaintiff against said Gross, of $103.56. Judgment upon the verdict in said suit was entered March 2, 1911. And it is claimed that at this trial the township for the first time knew that Sias was in default in the sum of $1,589.74, and this present suit was commenced by summons May 15, 1912.
The declaration in this case consists of a special count upon the bond given by Sias on April 27, 1907, for the ensuing year, and the bond is set up in full. To the special count in the declaration are added the common counts in assumpsit. The bond in form is a bond given by Harry L. Sias as principal and the American Bonding Company as surety, running to the township of Forest, Cheboygan county, Mich., and the employee mentioned in the bond was that of township treasurer of the township of Forest, conditioned to stand for his defaults in said office for a term of one year, as therein mentioned. It is alleged in the declaration, as shown by the return of the circuit judge, that the cause of action against Sias and petitioner had been concealed from said township, its officers and agents, and that due notice had been given by said township, its officers and agents, as soon as they became aware of the shortage, and that suit was commenced within one year thereafter.
The bond upon which plaintiff declared was not in form the bond required by the statute to be given by township treasurers, but is in form such a bond as is furnished by surety companies for an employee to his employer; these terms being used therein in reference to Sias, the treasurer, and the township of Forest. It was made and executed by the principal and surety and was delivered by them, accepted and approved by the township board and by the supervisor of the township for its use and benefit, as and for the official bond of defendant Sias, as township treasurer, required by law. The material portions of this bond are as follows:
“Know all men by these presents: That Harry L. Sias, of Tower, Mich., the employee, as principal, and the American Bonding Company of Baltimore, hereinafter called the surety, as surety, are held and firmly bound unto township of Forest, Cheboygan county, Michigan, the employer, in the sum of six thousand ($6,000) dollars, to the payment whereof we bind ourselves, our heirs, legal representatives, successors and assigns.
“Signed and sealed, this twenty-seventh day of April, 1907.
“The condition of this obligation is: That the employee shall in the position of township treasurer, and in no other in the employer’s service, make good to the employer, within sixty days, any loss sustained by the employer by larceny or embezzlement committed by the employee during a term commencing on the 22d day of April, 1907, at 12 o’clock noon, and ending upon the 22d day of April, 1908, at 12 o’clock noon.”
This bond recites that it “is made, issued and accepted, or renewed, upon the following conditions.” There are eight of these conditions, of which those material only are given, as follows:
“(3) That the surety’s liability hereunder shall cease immediately as to subsequent acts of the employee from and after: (a) Discovery by the employer, his or its officers, of any default on the part of the employee.”
The fourth condition provides that the employer shall immediately give notice to the surety, at its expense, by telegraph and registered letter, of the discovery of any default on the part of the employee, with full particulars.
“(5) That the employer’s claim for default hereunder must be presented to the surety within six months from the date the responsibility of the surety for the employee’s further acts ceased from any cause, and no suit or proceeding at law or in equity shall be brought after 365 days shall have passed from the date upon which the surety’s responsibility for the further acts of the employee ceased.”
The foregoing are the conditions relied upon by the defendant American Bonding Company in its demurrer to the special count. The reason urged before the circuit court for sustaining defendant’s demurrer was that plaintiff’s action was begun too late, which is expressed in the demurrer as follows:
“(3) Because said suit was commenced more than 365 days after the date when this defendant’s responsibility as surety upon the further acts of said defendant Harry L. Sias had ceased.”
“(5) Because the cause of action mentioned in the first count of said plaintiff’s declaration, if any there be, did not, nor did any or either of them, accrue to the said plaintiff at any time within 365 days before the commencement of this suit.”
Counsel for appellant, in its brief, first discusses the question whether the defense that the plaintiff’s claim is barred by the limitations in the contract can be raised by demurrer, and seeks to distinguish the instant case from Renackowsky v. Water Commissioners, 122 Mich. 613 (81 N. W. 581), and First Nat. Bank v. Steel, 136 Mich. 588 (99 N. W. 786), by stating that in these cases such defense is not plainly evidenced by the declaration itself, while in the instant case the limitation of the action is provided in the contract.
The question is no longer an open one in this State. On both of the cases cited, which appellant seeks to distinguish from the instant case, it was held distinctly by this court:
“The general rule is that the statute of limitations must be pleaded, and that the defense cannot be raised by demurrer.” Renackowsky v. Water Commissioners, 122 Mich., at page 615 (81 N. W. 582).
See, also, Whitworth v. Pelton, 81 Mich. 98 (45 N. W. 500) ; Shank v. Woodworth, 111 Mich. 642 (70 N. W. 140). And later:
“Another ground of demurrer insisted upon is that plaintiff’s cause of action was barred by the statute of limitations. This objection cannot be made by demurrer. (Citing above case [First Nat. Bank v. Steel].”)
This appears to be the established doctrine in all but the Code States.
“In actions at law, as contradistinguished from actions under the Code, it has always been the established rule that if the defendant desires to avail himself of the statute of limitations as a bar to the demand in suit, he must plead the defense.” 13 Enc. Pl. & Prac. p. 200.
It is therefore unnecessary to pass upon any of the other important questions presented by the briefs and which were apparently considered in the court below.
The judgment of the circuit court is affirmed, and the case will be remanded, and defendant permitted to plead within the usual time provided by rule.
' Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Steere, J.
This is an action for malicious prosecution involving a judgment against defendant for six cents damages and equal costs, brought here by defendant for review on a writ of error for the purpose, as we are informed, of maintaining his right, as a citizen willing to vindicate the law and assist the suppression of crime in discharge of his duty to society, to protection from annoying litigation resulting from such public service.
Plaintiff and defendant were formerly friends and copartners in the business of spraying orchards in Shiawassee county, but differences arose between them which resulted in their ceasing to prosecute the business after some time in February, 1912, though they were unable at that time to satisfactorily adjust their partnership affairs and fully dissolve such rela tions, in consequence of which, unfriendly feeling developed. While their relations were friendly, Hickey procured some whisky, of a brand known as the “Golden Gift,” by express, from Covington, Ky., for medical purposes, as then assumed and said, in the consumption of which both participated, according to the demands of their health or inclinations. The number of times it was procured and the circumstances under which defendant participated and obtained his portion are questions upon which they are not in harmony. Defendant claims it was procured by plaintiff on three different occasions; plaintiff admitted that it was ordered once by him, but claimed it was for both of them acting in co-operation, either in January or February, 1912, when the weather was very cold. His account of the transaction and his agency is as follows:
“It was 14 months before the warrant was sworn out. I said to Shellenbarger, T believe I am sick, coming down with the gripand I says, T have got to do something for this or I won’t be able to go any further;’ so I says, ‘I believe I will send and get a gallon of whisky and see if I can’t break up my cold.’ Mr. Shellenbarger says to me, he says, T believe I have got the same thing;’ and he says, ‘While you are sending, get some for me.’ I says: ‘Mr. Shellenbarger, I am going to get a gallon, and I don’t need it all. If you want some and you order it, why I will get it for you.’ So he asked me what it was, and I told him it was $3.20 per gallon, or-five quarts; there was one quart thrown in free. I told him I would figure in that quart just the same as I paid for it/ He said ‘You send and get one quart bottle for me/ and offered to pay me. It was so awful cold my hands were frozen stiff. My coat was buttoned up. And I says to Shellenbarger, ‘Never mind, I will advance the money for you, and you can pay me some other time/ He says, ‘Very well/ ”
That the “Golden Gift” was procured from Kentucky and possessed special medicinal properties is said to bear some relation to the fact that Shiawassee county was under the local option law, so called, and the sale or giving away of intoxicating liquors in that territory was prohibited.
After the estrangement of these parties and their inability to settle their partnership affairs became acute, it is claimed by Hickey that Shellenbarger, who was an athlete and had manifested his prowess while on the police force in the city of Toledo, commenced a course of intimidation towards the former both by physical demonstrations and by threatening to make him trouble on account of his having procured and furnished liquor to others in violation of law. Different witnesses testified to such threats and physical violence by Shellenbarger, at one time reaching a point where he grabbed Hickey by the throat and choked him. A settlement of their business matters was reached about a year after they ceased doing business, under circumstances which did not altogether relieve their strained relations.
In the fall of 1912 Shellenbarger became a candidate for sheriff of Shiawassee county on the Progressive ticket, and Hickey does not appear to have been favorably disposed to his candidacy. During the campaign each insinuated that the other had been guilty' of violating the local option law, and threats of prosecution were made in that connection.
On February 27, 1913, Shellenbarger made an affidavit before Gustav F. Friegel, a justice of the peace, charging Hickey with selling deponent one quart of whisky in the city of Owosso on the 21st of April, 1912, receiving therefor the sum of 60 cents. Upon this a complaint was sworn to by a deputy sheriff, and a warrant issued charging Hickey with violation of the local option law. An examination had before said justice resulted in the discharge of Hickey; the justice finding that there was no probable cause to suspect him guilty of the commission of the offense charged, on the date stated. Following Hickey’s discharge he commenced this action against Shellenbarger for malicious prosecution. The case was tried before a jury in the circuit court of Shiawassee county, resulting in a verdict for plaintiff and assessment of damages in the sum of six cents. The various objections to the validity of this judgment propounded in defendant’s assignments of error, and discussed, involve the claims that a verdict should have been directed for defendant because plaintiff failed to prove malice and want of probable cause, and admitted that he himself was guilty of violating the local option law; that defendant “acted in good faith to bring a man he believed guilty to justice;” that various errors were made by the court in its charge and in the admission and rejection of evidence.
To entitle plaintiff to recover in this action for malicious prosecution, these three things must concur and be established by a preponderance of the evidence: That the prosecution was begun and came to a legal termination in plaintiff’s favor; that defendant instituted it without probable cause; and that in doing so he was actuated by malicious motives.
It is undisputed that the prosecution was instituted on the strength of an affidavit made by defendant, and that it has ended favorably to plaintiff, resulting in his discharge.
The question of malice calls for little consideration. It is always exclusively for the jury when there is any evidence in the case tending to establish it.
“It may be proved by direct evidence, or it may be inferred from circumstances.” Hamilton v. Smith, 39 Mich. 223.
The record in this case contains both direct and circumstantial evidence, consisting of acts of violence, threats, and expressions of ill will, with facts and cir cumstances in the dealings and relations of the parties from which malice might be inferred. • Furthermore, in this record the testimony of the contending parties and their relations to the facts out of which the alleged malicious prosecution arose bring both the questions of malice and want of probable cause to a simplicity of inquiry which relieves from the necessity of resort to fine distinctions and detailed definitions often deemed essential to an understanding of their import. Both litigants claim and testify to first knowledge of the essential fact. No question of misinformation or misunderstanding is involved. Both of them have personal, positive, and direct knowledge of the absolute truth. Plaintiff testified he did not sell or furnish defendant a bottle of whisky at the time, and place stated in the affidavit. His testimony makes out a prima facie case and, if true, establishes want of probable cause for the prosecution and the inference that it was begun maliciously, in bad faith. Defendant swore in his affidavit and testified on the trial that plaintiff did sell him a bottle of whisky at the time and place charged. If true, there was not only probable cause but positive and conclusive cause for the prosecution, and the question of malice is eliminated. If untrue, there was no cause, probable or possible. Whether he “acted in good faith to bring a man he believed guilty to justice” rests upon the same contingency. All citation of authorities and subtlety of reasoning circle back to these elemental propositions. According as the jury determined the truth or falsity of the direct and positive testimony of these opposing litigants, so the questions of probable cause and malice inevitably went. Evidence of their, relations with each other and all facts and circumstances bearing on their veracity, or in any way legitimately tending to throw light on the transaction and refute or substantiate the testimony of either, was competent, and full latitude appears to have been given by the court in that respect, to both parties.
Complaint is made that it was not, in the particular that the court sustained an objection to admission of the testimony of certain witnesses taken at the examination before the magistrate in the criminal prosecution on account of which this action was brought; counsel for defendant stating its purpose was to show that plaintiff’s discharge was wrongful and a miscarriage of justice. No claim was made that any of the witnesses at that examination were dead or for other reasons not available. It was undisputed that there was an affidavit by defendant, a complaint, warrant, and arrest of complainant, followed by an examination before the magistrate and discharge of plaintiff, legally terminating the case. The prosecution did not end on technical grounds but after examination of witnesses and an adjudication by the court. The details and reasons of the court for such decision were immaterial. The court rightly held that the discharge of plaintiff was only admissible and material to show the prosecution was terminated, and what evidence the magistrate had before him to govern his official action, or what he may have thought, was immaterial. Defendant was permitted to go fully into all the original facts and circumstances bearing on plaintiff’s guilt and introduce whatever testimony he desired as to his knowledge, motives, the occasion for and circumstances of his making the affidavit.
It is urged that the circumstances under which the affidavit was made by defendant indicate that he acted in good faith and without malice, because he is shown to have made the affidavit at the solicitation of one Goodwin, who testified that he was looking after “bootlegging” in an effort to bring offenders in that particular to justice, and that a deputy sheriff, who heard defendant knew of certain facts implicating plaintiff, interrogated and solicited him to make complaint. It appears undisputed that matters reached a stage where it was understood by Goodwin, the officer, and others that defendant had made statements that plaintiff had violated the local option law to defendant’s own knowledge on at least three different occasions, and when they interviewed him he asserted such to be the case. He accompanied them to the magistrate and there said he was willing to make an affidavit, but did not care to make complaint, and it is claimed that the officers selected, from the three offenses of which defendant told, the one for which the complaint was made, and therefore, as a matter of law, defendant cannot be held responsible for such selection. This is not borne out by the facts proven. The magistrate testified that when these matters were brought to his attention, and he was solicited by Mr. Goodwin to issue a warrant, he stated that it would be necessary for some evidence to be produced which would justify issuing the same; that later defendant came before him, accompanied by Mr. Goodwin and an officer, and stated that he was willing to make an affidavit, whereupon the magistrate prepared an affidavit, asking defendant particularly for the data from which to make it and the date on which he claimed the offense was committed; that he drew up the affidavit according to such statements made by defendant, and defendant signed and swore to it. This affidavit was the cause and foundation of the prosecution. He is not shown to have made affidavit to any other offense or manifested his willingness to do so.
The claim that a verdict should have been directed in defendant’s favor for the reason that plaintiff admitted facts which show he is guilty of violating the local option law is not tenable. His testimony, on cross-examination, which it is claimed was such an admission, related to an entirely distinct transaction from that involved here. At the worst, it was a different offense, at another time and place. Counsel devote much space in their briefs to the question of whether the facts plaintiff admitted would constitute a violation of the liquor law, under People v. Driver, 174 Mich. 214 (140 N. W. 515). This we regard as immaterial. The evidence was admitted. Defendant had the benefit of it before the jury. It may be considered admissible as. bearing upon plaintiff’s character and veracity and, if known to him, defendant’s good faith; but proof of other similar offenses is not competent to directly prove guilt of the offense charged. 26 Cyc. p. 94; Patterson v. Garlock, 39 Mich. 447; Wilson v. Bowen, 64 Mich. 133 (31 N. W. 81).
Defendant requested the court to “instruct the jury that the discharge at the examination is not evidence of probable cause.” This the court did not give, and manifestly should not have given in the form presented, but did in effect, we think, instruct the jury that the discharge was not to be considered as evidence of want of probable cause, distinctly charging them that it was admitted solely for the purpose of proving the one essential fact that the prosecution was terminated in the discharge of defendant, and what the justice may have thought in so doing was not for the jury to consider, emphasizing at length the rule putting the burden of proof upon plaintiff to establish, by a preponderance of evidence, that defendant was not only actuated by malice but had no reasonable ground or probable cause to think plaintiff guilty, and that plaintiff could not recover “if he has not done that to the satisfaction of the jury, by a preponderance of the evidence.” We think the charge of the court as an entirety was correct, and very clearly stated to the jury the principles of law involved, and under the law their duty in relation to the issues of fact. As before suggested, the paramount problem for the jury was the veracity of the contending litigants. This they have solved in plaintiff’s favor, to the extent of six cents. We are not impressed that the verdict is so against the overwhelming weight of evidence as to demand that it should be set aside for that reason.
No reversible error is found in the record, and the .judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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Steere, J.
In this case Anna M. Weiss has appealed from a decree of the circuit court of Lenawee county, rendered on a bill of interpleader filed by the city of Adrian, for the purpose of protecting itself against conflicting claims of defendants, and to have determined which of them is entitled to receive the principal and interest due and to fall due on two sewer bonds for $1,000 each, issued by said city of Adrian on November 1, 1906, to bearer, and payable on the 1st day of November, 1923, with interest at the rate of 4 per cent, per annum, payable semi-annually.
The two bonds in question, numbered 99 and 100, were, at the time of issuing the series to which they belonged, purchased by Frank X. Weiss, since deceased, and by the terms of his will became the property of defendant Anna M. Weiss, his daughter-in-law. The bonds of that issue were in short and simple form, appropriate for sale to the general public; the portion material here being as follows:
“The city of Adrian, a municipal corporation, hereby promises and agrees to pay to bearer the sum of one thousand dollars, together with interest thereon at the rate of four per cent, per annum as evidenced by the annexed interest coupons.
“This bond is one of a series of seventy-five thousand ($75,000) dollars bonds for public sewer purposes, said bonds being numbered from 1 to 124 inclusive.
“The same is due and payable at the city treasurer’s office of the city of Adrian on the 1st day of November, 1923.
“Pay to the bearer the amount of each of the interest coupons hereto attached, as the same shall severally become due.”
On November 1, 1910, the Whitney Central National Bank, of New Orleans, La., presented the coupons then due upon the two bonds in question to the Adrian city treasurer for payment, making claim that it was the lawful holder, in due course, of said bonds and coupons. Previous to this, the city treasurer had received two letters from defendant Anna M. Wiess claiming said bonds had been stolen from her, and requesting that, if any one presented them .for payment, they should be taken up, and the party presenting them arrested.
Payment being refused, the Whitney Central National Bank commenced an action at law against the city of Adrian in the circuit court of Lenawee county to recover the amount due on the two coupons, which had become due and payable. Complainant, declaring itself ready and willing to pay the amount due on said bonds to the proper parties, filed this bill, asking the aid of the court to determine who is entitled to demand and receive payment, and that in the meantime an injunction issue restraining further prosecution of said suit instituted against it to recover the amount of said coupons. Both defendants answered.
The Whitney Central National Bank claimed to have become the holder of said bonds and coupons in due course of business, in good faith, for value, without any notice of infirmity or defect of title in the party negotiating the same; said party being one E. C. Gray, the apparent owner, who presented said bonds at the banking office of defendant, in the city of New Orleans, on August 6, 1910, claiming to be the owner, and there negotiated and delivered them to said bank, as collateral to secure certain notes given for loans made to him, which loans have not been paid.
Defendant Anna M. Weiss, answering, claimed that the bonds belonged to her, and were taken from the safe of a hotel in New Orleans at which she was a guest, without any authority from her and under such circumstances as to make the taking larceny; that she was subsequently informed the clerk or manager of said hotel took them from the safe and “put them up with the Whitney Central National Bank as collateral to his note for a loan to pay a gambling debt to one of the officers of said bank.” She also requested in her answer that the issue be tried by jury. A jury was called, but, it being subsequently agreed between counsel that the case should be heard and determined by the court, the services of the jury were dispensed with.
The testimony shows that E. C. Gray, who negotiated the bonds with defendant bank, was then manager of the De Soto Hotel in New Orleans, having assumed that position some time in June, 1910, going there from Detroit, where he had held a position in the Detroit Club. Defendant Anna M. Weiss was a resident of the city of Adrian, and quite intimately acquainted with him. She testified that she had known him for about a year before he went to New Orleans, and had joined him at the De Soto Hotel under a previous arrangement that she was to go down there and have a position as cashier; that there was an understanding between them they might some time be married, although she knew he had a wife and child living in Detroit, but he had assured her he would get a divorce from his wife; that she took her private papers with her, including the bonds in question, and, on her arrival in New Orleans, she was met at the station by Gray, who took her to the De Soto Hotel, where he registered her under the name of Mrs. Du Bois, of Chicago, introducing her as his niece; that, while in New Orleans, she went by that name at his request, and they occupied adjacent rooms in the hotel, with a door between; that he told her there was a safety deposit vault in the hotel for guests to put their valuables and papers in, and she should put hers there; that she gave them to him for that purpose, and he put them in the safe; that she had confidence in him at that time and paid very little attention to it; that she never was employed in the hotel, but remained as a guest as long as Gray was there. It was while they were living at the De Soto Hotel that Gray negotiated the bonds with the Whitney Central National Bank.
As to the circumstances of the negotiation, it appears undisputed that on the 6th of August, 1910, Gray applied at the bank to negotiate a loan of $750, stating that he was manager of the De Soto Hotel in that city, and would give as collateral for the loan the bonds in question, which he produced. He further stated that he was related to a Mr. Smith, assistant to the president of the First National Bank of Detroit, Mich., that these bonds represented money which he had saved in the past, and, having temporary need of money, he desired to borrow, using the bonds as collateral. After examining the bonds and discussing the matter with him, the president of the bank telephoned the De Soto Hotel and ascertained that Gray was manager there, as he had represented. Relying upon the information thus obtained, believing Gray’s statements, and knowing that bonds of this character were sought after and considered desirable, as they were payable to bearer, and there were no suspicious circumstances in connection with the offer, the bank made the loan of $750 to .Gray, taking one of the bonds as collateral security. Gray deposited the money in the bank, and checked it out from time to time. On the 27th of August, 1910, he applied to the bank for a further loan of $500, offering as security the other bond. No suspicious circumstances having arisen in the meantime, the loan was made; the money being deposited and checked out as before. On September 10, 1910, he borrowed $250 more on his note, secured by the second bond which the bank held. This loan was negotiated with the vice president of the bank, who, since the other loans were made, had returned from abroad, and was living at the De Soto Hotel, thus becoming acquainted with Gray as its manager. He testified Gray impressed him favorably, and, so far as he could judge by seeing him around the hotel, his habits were correct, and he knew nothing to the contrary until after Gray had left the city. The notes Gray gave were what are generally known as collateral notes, pledging the bonds attached as security, with authority to sell in case of default, covering any and all indebtedness which he might owe to the bank, and all costs which might be incurred in connection therewith.
On the 8th of October, 1910, Gray presented to the Whitney Central National Bank a check drawn on Adrian State Savings Bank for $300, payable to bearer, and purporting to be signed by Anna Weiss. He indorsed this check, and the bank cashed it for him. The bank then forwarded the same through the usual channels to the Adrian State Savings Bank for collection, and payment was refused because the genuineness of her signature was questioned.
All officers of the bank who had anything to do with making these loans testified that they never heard or had any intimation of Gray’s gambling or of any thing wrong in relation to him or any question as to his ownership of the bonds until after payment of the $300 was refused. About this time Gray lost his position at the De Soto Hotel and left New Orleans, going to Covington, La., where he assured defendant Anna Weiss that he expected to get a position. She joined him there, and they stopped for some time at the Southern Hotel in that city. She testified she remained there a month or a little more; that one day he informed her he had a position as manager or assistant manager of the Battle Hotel, Mobile, and departed for that city, stating that he would get her a position in the hotel at Mobile and send for her, when she should come on and bring his trunk which he had left with her. While she was waiting at Covington, the trouble arose over nonpayment at Adrian of the $300 check purporting to be signed by her, which Gray had negotiated with the Whitney Central National Bank. It was in that connection she first discovered, as she states, that the bonds were not among her papers, which she had taken with her when she left the De Soto Hotel, and she then notified the city treasurer of Adrian that the same had been stolen. It was her testimony that she never authorized Gray to hypothecate these bonds or to sign any check for her; that she had confidence in him and believed him honest until after the matter of the $300 check came up and she went back to New Orleans, when she first learned from the bank officials that Gray was a gambler, and the full measure of his perfidy. Of her final disillusioning she testifies: “Gray had turned against me, and his wife was there, and I was all alone.”
If, at the time Gray hypothecated the bonds which she had put into his hands, she, with her intimate acquaintance and knowledge of him, believed him honest and trusted him implicitly, as she states, she is, at least, at a disadvantage in urging that the bank was not an innocent party and acted in bad faith when accepting the bonds, payable to bearer only, presented by him under the circumstances shown, as security for a loan.
Several bank officials of Adrian testified in behalf of defendant Weiss as expert witnesses to the effect that custom and good usage in the banking business demanded greater precautions than those shown to have been taken by the defendant bank; the contention upon that proposition being stated in her counsel’s brief as follows:
“We have shown by the testimony that in the usual and ordinary course of banking business, that the appearance of a stranger in a bank with bonds such as these bonds was a circumstance in itself which has come to be recognized by bankers as a danger signal, and that good bankers in due course do not purchase or loan money to strangers upon bonds of which they have no knowledge, either as to the title or as to the value.”
In support of which is cited Smith v. Mechanics’ & Traders’ Bank, 6 La. Ann. 610. The facts in that case are not in harmony with those under consideration. There the plaintiff, a broker, discounted, without inquiry, for an entire stranger a forged bill purporting to be drawn on and accepted by a commercial house of New Orleans, and gave a check on the defendant bank payable to the order of the supposed acceptors of the bill. The broker, the bank, and the commercial house were all located in the city of New Orleans. It was held the plaintiff did not exercise due caution in taking the bill from a stranger without inquiry, and that making out his own check to the order of the supposed acceptors of the bill instead of the party to whom the bill was discounted was not in the usual course of business. Here the party presenting the bonds was ascertained to be a resident of the city, occupying a responsible business position. He produced the bonds, payable to bearer, with no other payee named, and was presumptively the owner of them; no indorsement or signature being required to transfer title. In Consolidated Ass’n of Planters v. Numa Avegno, 28 La. Ann. 552, the attitude of that court in a case more closely analogous to this is shown. It is there held that bonds, with coupons attached, payable to bearer are negotiable securities, having all the qualities of commercial paper, and pass as such by delivery. That, though stolen from a bank by burglars, the purchaser, acquiring them in good faith, before maturity, for value, in due course of business, is unaffected by want of title in the vendor. In Wylie v. Railway Co. (C. C.), 41 Fed. 623, it was said of stolen bonds:
“The bonds being negotiable, the promise to pay runs to the holder, and, if he has acquired them bona fide and for value, the plaintiff’s title is gone, and the promise is satisfied by the payment to the holder according to their tenor.”
The law is well settled by abundant authority that a purchaser of stolen negotiable bonds before maturity, without fraud or bad faith, obtains good title thereto. Welch v. Sage, 47 N. Y. 143 (7 Am. Rep. 423) ; Seybel v. National Currency Bank, 54 N. Y. 288 (13 Am. Rep. 583) ; Evertson v. National Bank, 66 N. Y. 14 (23 Am. Rep. 9).
The cardinal principles upon this subject have been condensed and crystallized into statute law in many States by the uniform negotiable instrument act. This has been enacted in both Michigan (Act No. 265, Pub. Acts 1905, 2 How. Stat. [2d Ed.] § 2672) and Louisiana (Gen. Assem. Acts 1904, No. 64). The rights of the contesting parties here are to be determined by the provisions of this statute, which, however, this court has held, introduced no change in the rules relative to a holder in due course. Graham v. Smith, 155 Mich. 65 (118 N. W. 726).
It must be taken as undisputed that, though Gray came lawfully into possession of these bonds, he did not have title to them. On their face they were regular and complete, payable to bearer only, were negotiated and delivered by him under claim of ownership to the defendant bank, before maturity, for value, with no notice that they had been previously dishonored, or that there was any infirmity or defect in his title to them.
It is claimed in behalf of defendant Anna Weiss that the bank failed to prove that it was “a holder in due course;” it having the burden of proof on that question under section 61 of said negotiable instrument act, which provides as follows:
“Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course.”
Section 54 of said act provides:
“A holder in due course is a holder who has taken the instrument under the following conditions: First, that it is complete and regular upon its face; second, that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; third, that he took it in good faith and for value; fourth, that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”
Section 58 provides:
“To constitute notice of an infirmity in the instrument, or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”
The numerous authorities upon a holder in due course are found on pages 309 and 310 of Ogden on Negotiable Instruments, and it would be superfluous to review them here.
In Jones on Corporate Bonds and Mortgages (2d Ed.), § 200, using the following language, quoted with approval by this court in Toledo, etc., R. Co. v. Peters, 177 Mich. 76 (143 N. W. 18), it is said:
“A purchaser may have had suspicion of a defect of title, or knowledge of circumstances which would excite such suspicion in the mind of a prudent man, or he may have disregarded notices of stolen bonds; and yet, if he has purchased for value in good faith, his title cannot be impeached.”
In this case the evidence is conclusive that the bank officials had no such suspicion, knowledge, or notice at the time the bonds in question were negotiated.
Testing the obligations, duties, and risks of the defendant bank by the statute and authorities cited, in the light of the facts and circumstances proven, we are constrained to hold that it is shown to have acted without bad faith, and to be the holder of said bonds “in due course.”
The result reached by the learned circuit judge is well supported by reason and authority, and his decree is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, and Moore, JJ., concurred. Bird, J., did not sit. | [
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McAlvay, C. J.
In an action in trover brought by plaintiff against defendant for the unlawful conversion of certain money belonging to her, she recovered a judgment upon an instructed verdict. Defendant has removed the case to this court for review and asks a reversal, assigning errors upon the rulings of the court during the trial and in instructing a verdict against him.
The following are the facts in the case: Defendant was at the time of the transaction in dispute, and had been for a period of years prior thereto, assistant cashier of the Benton Harbor State Bank. On September 16, 1909, he sold and assigned to plaintiff for a valuable consideration the following promissory note, together with a certain certificate of stock held by him as collateral security therefor:
“$2,400. Benton Harbor, Mich., Sept. 1, 1908.
“On the first day of each month after date for value received, I promise to pay to the order of B. F. Wells, forty dollars ($40.00) until the whole principal sum of two thousand four hundred dollars with interest on the same at the rate of six per cent, per annum payable annually shall have been paid on all principal sums at any time unpaid, and if the interest is not paid when due it shall become as principal and draw interest- at the rate of six per cent, per annum, payable annually. It is also agreed that A. S. Miles shall deposit with and assign to B. F. Wells all his stock in the Miles Shoe Company as collateral security for the repayment of the said two thousand four hundred dollars and the interest thereon.
[Signed] “A. S. Miles.”
At the same time he indorsed on the back of said note and signed the following written guaranty:
“Benton Harbor, Mich., Sept. 16, 1909.
“For a valuable consideration, I do hereby sell, assign and transfer to Mary R. Hogue, all my right, title and interest in and to the within instrument, and further for a valuable consideration, I do hereby guarantee the payment of the sums of money in the within instrument at the times and in the manner therein specified, I also assign to said Mary R. Hogue the certificate of stock referred to in said note and the same is hereby attached.
[Signed] “B. F. Wells.”
At the time of such transfer there was a balance of $2,200 remaining unpaid on said note. Plaintiff at this time had a credit account in and did business with said bank. She left this note in the possession of defendant with instructions to collect for her and, as from time to time the installments of principal and interest became due, to receive and place the same to her credit in the bank. Defendant received the note from her for that purpose and made collections for her from the maker of said note each and every month thereafter during the years 1909 and 1910 and certain payments amounting to five monthly payments in 1911, and indorsed all of said payments received by him upon said note and placed the amounts so collected for her to her credit in the bank. On June 17, 1911, the maker of plaintiff’s note, who was secretary and treasurer of the Miles Shoe Company, of which defendant had been president for several years, drew the check of said company on the Benton Harbor State Bank, of which defendant was assistant cashier, for the sum of $8,724, payable to the order of defendant; such sum being made up of the amount of a certain $2,000 indebtedness of A. S. Miles to defendant and $1,724.46, the amount of the balance of plaintiffs note. Miles delivered this check to defendant, who‘indorsed it, presented it to the bank, which honored it and stamped it paid, and returned it in due course of business to the maker. The following is a copy of this check, and the indorsement and bank stamp upon it:
“No. 3528.
“Benton Harbor, Mich., June 17,1911.
“Benton Harbor State Bank pay to the order of B. F. Wells three thousand seven hundred and twenty-four and 46-100ths ($3,724.46). A. S. Miles notes.
“The Miles Shoe Co.,
“per A. S. Miles.”
Indorsed on the back: “B. F. Wells.” Stamped on the face of it: “Paid June 17, 1911, Benton Harbor State Bank, Benton Harbor, Michigan.”
Defendant admits that this check represented the amount' of the two items named. This check represented Miles’ personal indebtedness to defendant, and was charged to his personal account at the time in the books of the Miles Shoe Company.
Of this check of $3,724.46, which was received and indorsed by Wells, and paid to him by the bank, he retained the whole amount and did not account for and deliver to her by depositing to the credit of plaintiff the amount of her specific interest therein. At the time of this transaction, when defendant received this check from Miles in payment of the indebtedness to him and the balance of plaintiff’s note, she was in the West visiting. Upon her return, and before the fact that the entire balance on her note had been paid to her agent and collector by the maker came to her knowledge, she began a suit in assumpsit on this note, commenced by summons, and afterwards filed declaration. In this suit there was afterwards a substitution of attorneys, and, when her present attorneys learned through. Mr. Miles of the payment of the note in question, a motion was made by them for leave to withdraw the declaration filed and for permission to file a declaration in trover. This motion was granted and a declaration in trover filed, on payment of costs. Defendant pleaded the general issue to this declaration, with notice that plaintiff had elected to bring suit in assumpsit instead of trover and had therefore waived her right of action against defendant in trover. The trial now under discussion and consideration before this court was the trial had upon this issue. At the close of plaintiff’s case defendant moved for a directed verdict upon the ground stated in the motion attached to the plea.
The contentions of defendant upon the trial of the case were:
(1) That plaintiff had waived her right of action in trover by bringing an action in assumpsit.
(2) That an action of trover for the conversion of this money will not lie against defendant in this case, even if it should be held that he had received it.
The information that the balance unpaid on plaintiff’s note had been fully paid to defendant did not come to the knowledge of plaintiff until after the declaration in assumpsit had been filed in this suit and the substitution of attorneys had been made. The contention that plaintiff had waived a right of action in trover, therefore, cannot be sustained, for the reason that at the time plaintiff had no knowledge that such right of action existed. It is well settled that a party cannot waive a right of which he has no knowledge.
“There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts which would enable him to take effectual action for the enforcement of such rights.” Clare County Sav. Bank v. Featherly, 173 Mich. 292 (139 N. W. 61), citing 29 Am. & Eng. Enc. Law (2d Ed.), p. 1093.
Under this contention defendant urges that this money, for the wrongful conversion of which this suit is instituted, if in his hands, was a general indebtedness on his part to the plaintiff, and that this suit is brought in trover to recover money generally and not a specific fund of money delivered to him to be returned to her in specie. There is no dispute in this case but that the relation between plaintiff and defendant was that of principal and agent. He was a collector for her of the amount of this note and was recognized and had acted as such for nearly two years, about which there is no dispute. A specific portion of the proceeds of the check which Miles gave defendant and which the bank paid him was the property of plaintiff received by defendant to be delivered in a prescribed manner to her. And this is not disputed by defendant, and in fact his contention on this proposition now under consideration admits it. This fund never came to his hands as his money. He never had any right to its possession except for a certain purpose. His relations in this matter to plaintiff were fiduciary. His retention of this fund was therefore an unlawful conversion, and like conduct is defined and punished in this State as statutory larceny. To hold that such wrongful conversion cannot be made the basis of an action in trover would seem to be a stultification of judicial conscience. Under the circumstances of this case, trover was a proper remedy. The trial court therefore was not in error in denying the motion of defendant to instruct a verdict against plaintiff.
Upon the trial defendant made an offer to prove that no payment was ever made by Miles to him of the balance of plaintiff’s note; that he, being a creditor of the Miles Shoe Company to the amount of $2,000, on his individual claim and the bank a creditor of about $2,700, and he having guaranteed the payment of plaintiff’s note when he sold it to her and transferred the collateral, knowing of the uncertain finan cial condition of the Miles Shoe Company, undertook to get security for the entire amount, $6,800, on these claims; that in furtherance of such undertaking one W. G. Newland took notes of the Miles Shoe Company for $6,300 secured by chattel mortgage upon its entire stock and property, and Newland drew and delivered his check on the Benton Harbor State Bank for that amount to said company; that this check was indorsed by the Miles Shoe Company, presented to the bank, and stamped paid by said bank June 17, 1911; that the check of $3,724.46, which has already been referred to, was drawn against this credit; that in truth and fact no money was ever paid on this transaction, but that it was done in order to accomplish defendant’s plan to get bona fide security for these items of indebtedness above stated.
The court refused to pass upon this offer made by defendant as a whole, for reasons given by him, which will appear in excerpts which we will quote from the record. This offer of proof was made at the close of the cross-examination of Mr. Miles, plaintiff’s last witness, when Mr. Sterling, counsel for defendant, said:
“Mr. Sterling: Before you rest I want to make an offer of proof, and I have a motion to make also. (The jury retired from the courtroom.)
“Mr. Sterling: Since last night I wrote out more in detail what I wanted to put in the record, of what I wanted to show, and I will read it and have it in the record.”
This statement was then read into the record. As given in this opinion it is very much condensed. When the reading was finished, the following colloquy between court and counsel occurred:
“The Court: What do you say?
“Mr. Andrews: I haven’t anything to say. Questions have been asked about everything that has been presented. About half the testimony has been admitted and the other—
“The Court: Do you object to it?
“Mr. Andrews: There is nothing before the court.
“Mr. Sterling: I will make this offer.
“The Court: Plaintiff has rested his case.
“Mr. Sterling: But not until I get the offer in.
“The Court: It is impossible to rule on that offer, Mr. Sterling, in consideration of the condition of the proofs. One part of your offer has been given and received in evidence, so it would be impossible to rule on that offer in general. Some parts have been introduced and some parts the court has sustained the objection to.
“Mr. Sterling: I offer to show all that proof by Mr. Miles, the last witness on the stand for plaintiff.
“The Court: I shall decline to rule on the offer as a whole at this time, irrespective of any technicalities, as it would be impossible, it seems to me, under the condition of the evidence as it now appears. Part of that that you put in there has been admitted.
“Mr. Sterling: Just enough admitted to leave the jury in doubt as to certain points I want to clear up.
“The Court: Under the theory of the court, a large part that you have offered is inadmissible entirely. I shall decline to rule upon the offer as a whole, but if counsel desires to recall Mr. Miles he may recall him arid ask such questions as he desires if you have omitted any question.
“Mr. Sterling: I want to show I offer this testimony, and what the court has said appears on the record, and I take exception to the ruling of the court, and to the attitude of the court to rule either favorably or unfavorably on the testimony.”
Counsel for defendant then made a motion that the court direct a verdict in his favor. This motion included the propositions relative to the declaration in trover, and also that trover was not the proper remedy, which have already been discussed. It was denied, and one of the errors assigned is upon such denial. In this opinion we have already considered and disposed of these questions against the contention of defendant.
A verdict was directed by the court in favor of plaintiff, and upon this direction error is assigned. It is apparent that, if the court was in error in excluding the above offer of proofs made by defendant, such verdict should not have been directed.
Defendant insisted that the court should consider the offer made as a whole, and the exception taken to the refusal of the court “to rule either favorably or unfavorably on the testimony offered” is that relied on. It will be noted that the court did not deny counsel the right to offer testimony in the ordinary way; in fact, the court, in declining to rule upon the offer as a whole, suggested to counsel to recall the witness and further examine him. Counsel was in error in insisting as he did upon a ruling upon the offer as made. He should have followed the suggestion of the court.
This leaves to be determined the question whether the record discloses any evidence in the case on the part of defendant to be submitted to the jury. An examination of the entire record satisfies us that there was no such evidence, and that the court was not in error in instructing a verdict for plaintiff.
The judgment of the circuit court is affirmed.
Brooke, Kuhn, and Steere, JJ., concurred with Mc-Alvay, C. J. | [
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Brooke, J.
The bill of complaint in this cause is filed for the purpose of canceling a land contract made between complainant and defendant by the terms of which lot No. 14, block No. 5, in Parkland addition No. 2 of the city of Flint, was sold to defendant for the sum of $550, payable $3 cash and $1 per week. Complainant likewise prays for an injunction directed to the defendant, commanding him to refrain from removing or attempting to remove the dwelling house erected upon said lot by said defendant. The record shows that while this contract was dated the 13th day of November, 1909, it was in fact executed upon a Sunday. Various payments were made' thereon until defendant had paid in all $54. All of said payments with a single exception were, likewise made upon Sundays. Defendant was in arrears 69 weeks at the time complainant served notice upon him in accordance with the terms of the contract to terminate the same. The learned chancellor who heard the case entered a decree dismissing complainant’s bill, upon the ground that the contract was illegal, being made upon a Sunday, and that it was not ratified by the fact that a single payment was made thereon upon a secular day, a receipt therefor having been given at the same time by the complainant.
In this court complainant claims that a new contract was created by the acts of the defendant in going into possession of the lot in question and building a house thereon and in making payments to the complainant from time to time. It is, we think, apparent that whatever was done by the defendant or the complainant was done in reliance upon the contract upon which complainant bases his action, and not upon any new contract. It is not disputed that this contract was in fact made upon Sunday, though dated upon the Saturday preceding. Such a contract is void under section 5912, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 5261), and cannot be ratified upon a secular day. Benedict v. Bachelder, 24 Mich. 425 (9 Am. Rep. 130); Pillen v. Erickson, 125 Mich. 68 (83 N. W. 1023); Acme Electrical Illustrating & Advertising Co. v. Van Derbeck, 127 Mich. 341 (86 N. W. 786, 89 Am. St. Rep. 476).
Complainant assigns error upon the action of the circuit judge in permitting an amendment to the answer during the hearing, setting up the defense that the contract was made upon a Sunday, and therefore void. A showing was made which was apparently satisfactory to the circuit judge, and we are not prepared to say that his action evidences any abuse of discretion. His authority to permit amendments is based upon section 10268, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12969), and Chancery Rule 16, subd. (g). Upon the allowance of the amendment complainant did not apply to the court for further time in which to prepare.
The decree must be affirmed.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Bird, J.
It is the claim of the plaintiffs, who were practicing attorneys in the city of Detroit in August, 1909, that they were employed by one Elmer Wood to prosecute a personal injury case for him against the defendant railroad company for injuries which he received from a gunshot wound at the hands of one of the company’s detectives. After Wood received the injury, he was removed to a hospital, where plaintiff Lehman visited him at his request. Mr. Lehman made him a proposition that he would take the case if the necessary expenses were paid for one-third of what he recovered by suit or compromise, and, if he (Wood) did not pay the expenses, he would retain 50 per cent, of what was recovered. If nothing was recovered, no charge would be made. It is claimed defendant Wood accepted this proposition and requested plaintiffs to commence suit at once, as he was then uncertain as to whether he would survive his injuries. In pursuance of this understanding, plaintiffs commenced the suit, paid the filing fee to the clerk and the sheriff’s fee for making service of the process, attended the trial of the criminal case against the detective, made investigations, took the deposition of plaintiff Wood, and looked up witnesses. After rendering these services, the case was compromised for $1,200 by the attorneys for the railroad company directly with Wood, through the intervention of Mr. Murphy, the employer of Wood. It was claimed by plaintiffs that they notified Mr. Murphy and all of the attorneys representing the railroad company before the settlement was made that they had the case upon a contingent basis. Failing to receive their fees in accordance with their contract, they brought this suit to enforce them against Wood, the railroad company, its attorneys, and Mr. Murphy.
The questions raised by defendants’ assignments of error are:
(1) Was there a completed contract between the parties?
(2) If there were one, was it a void contract?
(’3) Should a verdict have been directed in behalf of defendants Geer, Williams, and Murphy?
(4) Was the verdict against the weight of the evidence?
1. The testimony disclosed that Mr. Lehman stated to Mr. Wood the terms upon which he would take the case, namely: One-third of the amount recovered if Wood paid the expenses, and 50 per cent, if he did not. There is testimony to the effect that Wood assented to this proposition and requested Mr. Lehman to proceed with the suit at once, and that afterwards Wood neither paid nor offered to pay any of the expenses. This testimony was sufficient to justify the jury in finding that Wood accepted the 50 per cent, proposition.
2. It is urged that, if the contract were a completed one, it is invalid by reason of the agreement of plaintiffs to pay the necessary expenses of the litigation. It is conceded -that since the passage of section 11254, 3 Comp. Laws (5 How. Stat. [2d Ed.] §14432), it has been lawful for an attorney to contract with his client on a contingent basis with respect to his fees, but that he may not agree to pay the expenses of the litigation because it is in violation of section 1136, 1 Comp. Laws (5 How. Stat. [2d Ed.] §12554). That section provides that:
“No attorney, solicitor or counselor, by himself, or by or in the name of any other person, shall lend or advance, * * * or procure to be lent or advanced, any money, or any bond, bill of exchange, draft or other thing in action, to any person, as an inducement to the placing, or in consideration of having placed, in the hands of such attorney, solicitor or counselor, or in the hands of any other person, any debt, demand, or thing in action, for collection.”
By the common law, champerty was defined to be “a bargain with a plaintiff or defendant to divide the land or other thing sued for between them if they prevail at law; the champertor agreeing to carry on the suit at his own expense (citing Bouvier’s Institutes of American Law, vol. 4, p. 236).” Backus v. Byron, 4 Mich. 535. The facts upon which plaintiff recovered in this case are clearly within the common-law definition of champerty, and are also within the inhibition .of the foregoing statute. But it is contended by the plaintiffs that subsequent legislation in this State has wiped away the common and statute law with reference to champerty. The first inroad made upon them was “when the legislature enacted that lands in the adverse possession of another might be conveyed, and also that choses in action might be assigned,” and it is doubtful whether the laws relating to champerty have had any place in our jurisprudence since the passage of those statutes. Wildey v. Crane, 63 Mich. 720 (30 N. W. 327). But, if they have, the passage of Act No. 58 of the Laws of 1867 (3 Comp. Laws, §11254 [5 How. Stat. (2d Ed.) §14432]), would seem to have completed what the other statutes began. That section in part provides:
“That all existing laws, rules, and provisions of law, restricting or controlling the right of a party to agree with an attorney, solicitor, or counsel, for his compensation, are repealed, and hereafter the measure of such compensation shall be left to the agreement, express or implied, of the parties.”
This statute has been construed frequently by this court, and, on several occasions where the facts have been similar to those under consideration, it has followed Wildey v. Crane, supra, in holding that common-law champerty was repealed by the foregoing statute. Town v. Tabor, 34 Mich. 262; Wildey v. Crane, 63 Mich. 720 (30 N. W. 327) ; Denman v. Johnston, 85 Mich. 387 (48 N. W. 565) ; Smedley v. Dregge, 101 Mich. 200 (59 N. W. 411); In re Service’s Estate, 155 Mich. 179 (118 N. W. 948); Foley v. Railway Co., 157 Mich. 67 (121 N. W. 257) ; Grand Rapids, etc., R. Co. v. Cheboygan Circuit Judge, 161 Mich. 181 (126 N. W. 56, 137 Am. St. Rep. 495); Dreiband v. Candler, 166 Mich. 49 (131 N. W. 129).
Section 1136 was an early statute, and, as it was in affirmance of the provisions of common-law champerty, we are of the opinion that it, too, was abrogated by sections 11254 and 10054.
3. It is said that a verdict should have been directed in behalf of defendants Geer, Williams, and Murphy. This contention is without much force when Mr. Lehman’s testimony is considered, that he advised Mr. Murphy and all the attorneys of the railroad before the settlement was made that he had the case on a contingent basis. This testimony made the question of notice one of fact for the jury.
4. There was much- conflict in the testimony on some of the material questions involved in the case; these questions were submitted to a jury, and we do not think the court was in error in refusing to set aside their verdict on the ground that it was against the weight of the evidence.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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Steere, J.
This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff, on July 29, 1910, from a passing automobile driven by an employee of defendant, while alighting from a Michigan avenue street railway car in the city of Detroit. From a judgment on a directed verdict for defendant plaintiff brings this case here for review on a writ of error. The controlling question involved is whether the relation of master and servant existed between defendant and the driver of the automobile at the time of the collision.
The uncontroverted facts essential to this inquiry are substantially as follows: On the day in question John I. Werner of Bronson, Branch county, Mich., went to the city of Detroit, purchased and paid for an automobile at the salesrooms of the Ford Motor Company on Jefferson avenue. He was in the hardware business at Bronson, and handled automobiles under what is called a limited dealer’s license contract with defendant, by the terms of which he could purchase its cars at a discount for resale. He was accompanied to Detroit by a prospective purchaser named Kline, to whom he expected to sell the car. He proposed to drive the car to Bronson and deliver it to Kline, whose home was near by. He had owned and driven automobiles, was an experienced driver, and had driven several kinds, including a Ford, making long trips with them. He had owned and driven a Ford at least two years before the time in question. After purchasing the automobile and paying for the same in full, he also purchased and paid for gasoline, oil, and carbide for the drive to Bronson. Upon the car was a card marked with the license number registered for the Ford Motor Company for the year 1910, under the Michigan motor vehicle law. Having fully completed his purchases and preparations for the journey, and when about to leave, accompanied by Mr. Kline, he asked the salesman from whom he had purchased the automobile if they would let him have a driver to take them to the city limits; and the salesman replied that he would see. Werner testified that though he was a competent driver himself, he was not familiar with city driving in the congested streets, and for that reason asked for a driver to go with and pilot him to the city limits; that he had made this request before when he drove cars through to Bronson, and as a matter of accommodation they had sent a driver with him, and on reaching the city limits he would himself take the car and go on. A man by the name of Groholski was furnished, and they started on the journey with him as driver.
Groholski was a regular employee of defendant, having been in its service for some time as a repair man, tester, and demonstrator. His instructions from Walker, the foreman at the salesrooms, were to put on his coat, get into the car, drive it for the two gentlemen out to the city limits, turn the car over to them, and then come back on the street car. The three men got into the car about the same time, Werner sitting upon the back seat and Kline by the side of Groholski, to whom Werner said that they wanted to go over Michigan avenue. They proceeded westerly along Michigan avenue, and when near its intersection with Thirty-fourth street a street car overtook and passed their automobile, which was running along the avenue on its proper side of the track at a speed of from 10 to 15 miles an hour. As the street car neared Thirty-fourth street it commenced to slow down, to make a stop at the corner, and the automobile began to gain upon it. Plaintiff was a passenger upon the street car, and in alighting at Thirty-fourth street was struck by the automobile and injured, to what extent is a matter in dispute, as are also the circumstances surrounding the accident. He was thrown down, but not run over, by the automobile, which made a sudden stop. He was then assisted to his feet by the driver, taken into the automobile and driven to his home, where he walked without assistance from the car to the house. The questions of negligence, contributory negligence, and the extent of his injuries, which were closely contested, are but indirectly involved, and need not be further considered, as a verdict was directed on the ground that the driver was not defendant’s servant, at the time of and in connection with this transaction. The limited dealer’s license under which Werner bought this car provided for the delivery by defendant of cars f. o. b. at Detroit. Werner was required to pay cash for the same. He could then have the cars shipped by rail, he paying the freight, or could get them at defendant’s salesrooms and drive them to Bronson, thus saving the freight. In this case he adopted the latter course. The records of the defendant show that the car was sold, paid for, and delivered to Werner at the salesrooms.
It was shown to be the custom of defendant to mark its license number on pasteboard tags and put them on cars, having as a manufacturer but one regular license number on a metal plate issued by the State. These tags were sometimes left upon the cars when sold and driven away, if the purchaser wished, until he could secure a license for himself from the secretary of state, which sometimes took two or three days. Under this undisputed evidence the fact that defendant’s number was on a tag attached to the car when Werner took it away raises no inference against his ownership and control. Burns v. Paint Co., 152 Mich. 613 (116 N. W. 182, 16 L. R. A. [N. S.] 816).
It is contended by plaintiff that Groholski was not the servant of the purchaser of the car when the accident occurred; but of defendant, his regular employer; that he was acting under orders of his employer within the scope of the customary duties for which he was hired and paid; that in carrying out the orders of defendant he had charge and control of the car, did not know Werner, and took no orders from him, was solely engaged in the work of his general employer, and not that of another; that though Werner may have had the benefit of his work, the servant was in no sense transferred to him or put under his control.
It is the claim of defendant that under the undisputed facts Groholski, though a general servant of and regularly in defendant’s employ, was temporarily loaned to Werner, to do work for him and not for defendant, and for the time being was working for and as the servant of Werner, who became the special master and responsible for Groholski’s acts in relation to the particular service he was then rendering. The rule is long settled that a servant in the general employment of one person may also become the special servant of another, with all the mutual rights and obligations of master and servant between them for the time of, and in relation to, the special service in which the servant is temporarily engaged. If an employer loans a servant to another for some special service, the latter with respect to that service may become liable as a master for the acts of the servant without any actual contract of employment between them or payment for service. Text-book authority, borne out by abundance of cited decisions, shows this is old doctrine. 1 Labatt on Master and Servant, § 52; 1 Bailey on Personal Injuries (2d Ed.), § 25; 26 Cyc. p. 1519; Shearman & Redfield on Negligence (6th Ed.), §§ 160, 160a, 161.
Counsel for the respective parties seem practically in harmony upon the rule by which the question involved should be tested, but widely at variance in applying the test. The essence of the best considered cases upon the temporary loan, or hire, of a servant for a special purpose is thus well stated in 26 Cyc. p. 1522:
“A person who avails himself of the use, temporarily, of the services of a servant regularly employed by another person may be liable as master for the acts of such servant during the temporary service. The test is whether in the particular service which he is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the person to whom he is lent or hired, or who requests his services. It is not so much the actual exercise of control which is regarded, as the right to exercise such control. To escape liability the original master must resign full control of the servant for the time being, it not being sufficient that the servant is partially under control of a third person. Subject to these rules the original master is not liable for injuries resulting from acts of the servant while under the control of a-third person.”
One of the important considerations involved in this class of cases is the ownership of the equipment, appliance, or instrumentality with or in relation to which the temporary service, out of 'which the alleged injury arose, is performed. If it be.the property of the general master who has loaned or hired the servant, there is a stronger reason, followed by a greater presumption, that he should and would retain in whole or in part the control and right to dictate and direct its use in carrying out the work. While not always controlling, this has often been recognized as sufficient to turn the scale in otherwise doubtful cases, particularly in that line of special service relating to transportation, or carrying of persons and property.
In the case of Joslin v. Ice Co., 50 Mich. 516 (15 N. W. 887, 45 Am. Rep. 54), strongly urged by plaintiff as controlling here, the general employer owned the team and wagon which inflicted the injury complained of, and had hired the same, with a driver, for the day to an independent contractor. The court held, citing the English case of Quarman v. Burnett, 6 M. & W. 499, that the owner of the team and general employer was the responsible master of the wrongdoer, being the “owner of the horses, and not any one at whose service the horses and driver were temporarily placed.” Of the Quarman Case the court said that, whether correctly decided or not, it had been too generally recognized and followed to be questioned now, citing numerous English cases regarded as quite analogous to the case then under consideration. It is well pointed out by the trial court that these English cases, upon which the Joslin Case is based, have been later so interpreted as to distinguish them and the cases based upon them from the instant case. In Jones v. Scullard, 2 Q. B. Div. (1898) p. 574, in analyzing the previous English cases mentioned, Chief Justice Bussell said:
"The principle, then, to be extracted from the cases is that, if the hirer simply applies to the livery-stable keeper to drive him between certain points or for a certain period of time, and the latter supplies all necessary for that purpose, the hirer is in no sense responsible for any negligence on the part of the driver. But it seems to me to be an altogether different case where the brougham, the horse, the harness, and the livery are the property of the person hiring the services of the driver.”
Counsel for plaintiff refers to these English cases as being “musty with forgotten lore,” and certain of the conclusions in them reached, as pointed out by Labatt, through resort to what an eminent English judge described as “desperate refinements.” Be that as it may, the Joslin Case from this court, upon which counsel relies, was committed to and based upon one of the earliest English, so-called, “carriage cases,” which the English courts interpreted, as above stated, in 1898. In the case of Perkins v. Stead, 23 Times L. R. 433, following the reasoning of Jones v. Scullard, supra, it was held that the servant of the vendor lent to the purchaser of an auto car, to drive it to a certain point' was in that service the servant of purchaser. Stead purchased and paid for a motor car in London from a dealer who agreed in that connection to provide a driver to take the car to a certain place outside the city. Stead, when making the purchase, was accompanied by his son and his own driver, who was not experienced in driving the class of car purchased, nor familiar with the locality. While the car was being driven through the streets of London by the driver the dealer had furnished, defendant, his son and driver being in the car, a collision occurred with a bicycle, as a result of which the party injured brought an action against Stead for damages. It was held that, though the driver was the general servant of the vendor, yet at the time of the accident he was under the control of defendant in the service which he was rendering in relation to property which defendant owned and was in possession of, and therefore defendant was liable for the driver’s negligence. That case presents an element of uncertainty not found in the instant case in the particular that there the record indicates the vendor’s agreement to furnish the driver to take the car through London was an element in the negotiations of purchase and sale, while here the subject was not mentioned until after the purchase was consummated.
Plaintiff’s counsel cites and urges as controlling Dalrymple v. Motor Car Co., 66 Or. 533 (135 Pae. 91), another automobile case, also similar in many of the circumstances and relations of the parties to the one under consideration. In that case a customer named Dunham purchased an automobile from the defendant, a dealer in the city of Portland, and was furnished a driver named Harrington to take it from defendant’s garage to the suburbs of the city. Dun-ham accompanied the driver, and while they were on the way, the car being driven by Harrington collided with a boy and injured him. In an action against the motor car company for the driver’s negligence it was held that the question of whose servant he was became, under the testimony, an issue of fact for the jury, chiefly on the question of delivery and assumed obligation of defendant to instruct Dunham in the use of the car. It was shown that when Dunham negotiated the purchase he was inexperienced in driving, and it was therefore arranged that the car purchased by him should remain in possession of the dealer until Harrington, a demonstrator in its employ, instructed him in its use. Harrington had given him some instructions in running the automobile two days prior to the accident. On the day of the accident he called for it, having decided to take it away. The head sales- naan instructed Harrington to take the car through the populous part of the city to an outskirt called East Portland, as Dunham was yet inexperienced as a driver, and there let him take charge of it himself. Harrington testified that Dunham was not a competent or experienced driver, and that his object in going with Dunham that morning was—
“Simply to take the car through the city and to get him over on the east side, out of town, where he could go from there by himself, because I refused to let him drive through town alone.”
The court, in a somewhat exhaustive opinion, considers and reviews many of the leading authorities upon the questions involved, apparently with approval, recognizing the rule that the test is not so much the exercise of the power of control as the right to exercise such power; states that under the circumstances of this case it can well be contended that Dun-ham did not have a right to control Harrington in the operation of the car and says:
“Whether the owner, who is conceded to have known little or nothing about running the car, was with the driver while passing through that part of the city, or was to meet him at the place where it was intended that the owner should take charge of the car, would make but little difference. * * * Were it necessary for the act of the chauffeur Harrington to be defined, we would say that the service performed by him for the company on the morning of the accident was of much the same nature as the operation of the car for the purpose of demonstration or instruction. * * * The evidence tended to show * * * that the company undertook to perform the service as a part of the transaction, in connection with the sale of the automobile, as a part of its general business and in furtherance of the same; that Harrington, the servant, was doing the work for his master, the company, and not for himself, nor on his own account, nor as a mere favor to the purchaser; that it was as much a part of the general business of the company as though it had been performed prior to the time of the purchase of the car.”
In the instant case there was no agreement or suggestion, as a part of the negotiations and purchase, that the motor company should assume, or undertake, any instructions to the purchaser relative to operating the car, or to see that when it left the salesrooms it was properly run for any length of time, or to any place. He was a dealer in cars himself, experienced in their use, and knew what was necessary. The deal was closed, he had his receipt, and the car had been delivered to him at the time he asked for the accommodation. Groholski was sent along to drive as a “mere favor to the purchaser.” At the time of the accident Werner, an experienced driver, not only owned the car but was in actual occupation and possession of it, riding with a prospective purchaser out from the city towards their homes. He was in no sense helpless, looking to, and dependent upon, the driver, as would be the case of an inexperienced purchaser. Like many other experienced drivers from the country or small towns he felt less confidence in driving through the congested thoroughfares of a large city, and for that reason asked the loan of a driver to the suburbs. The fact that he found no occasion to give instructions to the driver, except to tell him along what street to drive, and relied upon his skill and experience, in no way affected Werner’s absolute right to control him in everything he did in connection with the car. Samuelian v. Machine Co., 168 Mass. 12 (46 N. E. 98). Under the undisputed testimony, the motor company had no control over nor interest in the car after it left its salesrooms, nor in the manner in which it was run, nor in where it went. It could not dictate how the car should be run; the most it could do would be to recall from this special employment the servant it had loaned. Dur ing Groholski’s absence from the salesrooms in this service he was doing the work of Werner, to whom he was gratuitously loaned, on the initiative and request of Werner, who had full right to dictate as to his own property and direct in what manner the car should be operated. He unquestionably could have taken charge and driven it himself, if he saw fit at any time, and, if so disposed, could have discharged the driver and proceeded without him; he was therefore for the time being the special master.
The conclusion of law deduced by the trial court from the undisputed fact that Groholski was, at the time of the accident, the servant of Werner, whose automobile he was driving, and not of defendant, whose interest in and control over that instrumentality had ended, is sustained. .
The judgment is affirmed.
McAlvay, C. J., and Bbooke, Kuhn, Stone, OsTEANDEE, Bied, and Mooee, JJ., concurred. | [
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] |
McAlvay, C. J.
This is an appeal from the Wayne circuit court, in chancery. Complainant filed his bill in that court praying that defendant be temporarily and permanently restrained from obstructing a certain water course which complainant used in passing to and from his house, which was situated thereon, and that complainant and other members of the public “be decreed to have the right to use said stream for any and all purposes for which the public may lawfully use a navigable stream or public highway.” A demurrer by defendant to the bill of complaint was overruled, and on an appeal to this court the order of the circuit court was affirmed. Lepire v. Klenk, 169 Mich. 243 (134 N. W. 1119, Ann. Cas. 1913E, 50). Reference is had to the opinion in that case for a brief statement of the allegations in the bill of complaint upon which complainant relied for the relief sought.' Mr. Justice Beooke, speaking for the court in that opinion, said :
“The bill of complaint in the instant case clearly sets out facts from which it is apparent that complainant suffers private and direct damage other and different from that suffered by the public at large. It further avers that the way in question is a public highway. For the purpose of determining the question now here, that fact must be taken as admitted by the demurrer. Under the facts alleged in this bill, if sustained by competent evidence, complainant is entitled to the relief sought” (citing numerous authorities).
Defendant then answered the bill, and a full hearing was had on the merits, which' resulted in a decree in favor of complainant, granting him full relief as prayed. The case is now before this court upon an appeal from such decree. The question involved is whether, upon the evidence in the record, complainant is entitled to relief. A digest of the evidence produced by the respective parties and a discussion of the same would be of no benefit to the profession.
Complainant, by a preponderance of the evidence contained in the record, has sustained the material allegations contained in his bill of complaint: That said stream is a navigable stream or canal and a public highway and is the only way possible by which complainant by water may reach Lake St. Clair and the Detroit river from his home, which is located on. this stream above the obstruction complained of. This navigable water has been used by complainant and the public freely, without objection or obstruction, as a navigable public highway for many years, and the upper part of it, below complainant’s residence, has been improved at the public expense, and a large part of it was dedicated to the public use by defendant at the time this subdivision was platted by him. Complainant has also established the fact that the navigation of this waterway has been wrongfully and wilfully obstructed by defendant by sinking a barge across its channel.
It follows that the decree of the circuit court should be affirmed. Complainant will recover costs to be taxed.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Ostrander, J.
(after stating the facts). In attempting to find the meaning to be given to section 1 (a.), it will be assumed that the legislature knew that, independent of the immediate appropriation, there was a fund already devoted to the needs of the college larger than any sum likely to be used to maintain the particular department. If the purpose was to limit the total sum which should be expended to maintain that department, it could not be accomplished by limiting the amount which might be taken from the immediate appropriation. If there was no purpose to limit the total amount which might be expended, the provision is wholly insensible. In any event, the words “from any and all sources” may not be disregarded. Section 1 (a) cannot be held as intended merely to place a limitation upon the amount to be taken from the immediate appropriation to be used in maintaining the mechanical and engineering department.
While no reading and no analysis of the language employed leaves one entirely certain of the meaning of the provision, it seems most reasonable to say that the purpose was to limit expenditures for maintaining the particular department to $35,000 annually, and to make unavailable for the use of the college all of its funds in case the maximum thus fixed was exceeded. I do not overlook the language, “No part of this' or any other appropriation shall be available,” nor the actual occurrence of a result which was inevitable; namely, that unless the declaration of the relator board was to be accepted for the fact some part of the immediate and of other appropriations would of necessity be available, if the college was to continue to exist, since it could not be known before the fact whether relator would or would not expend more than $35,000 in maintaining the particular department. Some question might be raised also about the meaning of the words “or any other appropriation.” The reference might be to an unexpended appropriation or the term “appropriation” used to designate, and not improperly, the earlier legislation which devoted the Federal gifts to the maintenance of the college. But I think we must say that the legislative purpose expressed in this statute is the one to which the respondent has given effect, and, assuming the law to be valid, respondent cannot be required to issue to relator further warrants for money.
We must either say this, or else conclude that section 1 (a) was added to the act as an admonition, and not a command, or a condition; that it expresses the opinion of the legislature with respect to the manner in which the agricultural college funds shall be employed. If it was an admonition merely, the act could, of course, stand without it. Because of the language employed in section 1 (a) I do not feel warranted in concluding that it is admonitory only. It is therefore necessary to determine whether the legislature has, as it is claimed, exceeded its constitutional powers, and, if it has, then the state of the applicable law.
If section 1 (a) be held to be valid, its eifect would be legislative supervision of the college. To determine that a department of the college which has been maintained at a cost of $60,000 annually for instructors and supplies -shall be from a given date maintained at a cost of $35,000 annually for instructors and supplies is to determine that it shall have fewer supplies, or fewer, or less capable, instructors, or both. It is something more than reducing a general appropriation so that the expenses in some or in all departments of the college must be reduced, leaving the proper supervisors to determine how efficiency can be best maintained under new conditions. The Constitution has given to the relator the general supervision of the college and the direction and control of all agricultural college funds. So long as the relator employs them for the purposes intended by the grant, it is beyond the power of the legislature to control the relator’s use of the funds received from the Federal government and long ago appropriated to the agricultural college. Undoubtedly the grant of funds was to the State, .and the disposition of them wholly within the power of the State, acting through its legislature, in accordance with the conditions of the trust imposed. Montana, ex rel. Haire, v. Rice, 204 U. S. 291 (27 Sup. Ct. 281); Wyoming, ex rel. Wyoming Agricultural College, v. Irvine, 206 U. S. 278 (27 Sup. Ct. 613). See, also, Massachusetts Agricultural Col lege v. Marden, 156 Mass. 150 (30 N. E. 555). I am called upon to neither affirm nor deny the proposition that the legislature may now. appropriate the Federal fund, in whole or in part, to some other institution, withdrawing it, or some of it, from the agricultural college, so long as it keeps faith with the congress. The legislature has not withdrawn it from the college nor appropriated it, or any part of it, to another institution. It remains an agricultural college fund, within the meaning of the Constitution, devoted, under the supervision and direction of the relator, to the college and to the purposes expressed in the grant, in State legislation, and, finally, in the Constitution of the State. It is required to be “annually applied to the specific objects of the original gift, grant or appropriation.” Necessarily it must be so applied, under existing conditions, by the constitutional supervisors of the fund, and of the college, and not by the legislature. It follows that the legislature exceeded its powers in attempting to deprive the relator of its constitutional control of agricultural college funds derived from the Federal government. The constitutional powers of the State board of agriculture with respect to the college and its funds are the same as those of the board of regents of the university with respect to the university and its funds, and authority for the conclusion stated may be found in Sterling v. Regents of the University, 110 Mich. 369 (68 N. W. 253, 34 L. R. A. 150); Board of Regents v. Auditor General, 167 Mich. 444 (132 N. W. 1037), as well as in Bauer v. State Board of Agriculture, 164 Mich. 415 (129 N. W. 713).
I assume that the legislature, in amending the original bill by adding section 1 (a) thereto, acted in good faith and with the highest motives. I am obliged to find that in doing so constitutional-powers were exceeded. I am obliged to find, further, that the legislative intent was to deprive the college of all funds, however derived, upon the contingency expressed in the act. This being so, the question is whether it can be said that the act would have passed without the condition.
In deciding this question, we are not concerned with, do not inquire into, and cannot know the purpose and intent of legislators. We must look at the law itself and judicially ascertain the intent of the legislature.
“If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.” Cooley’s Constitutional Limitations (6th Ed.), p. 211.
There are some facts which we may and do know which aid us in this inquiry. We know that in the year 1901, and until the year 1913, the State appropriation for the agricultural college was one-tenth of a mill. In 1913, by the act in question here, this appropriation was increased, upon condition, to one-sixth of a mill. The appropriation made in 1901 does not fail if the act of 1913 is held invalid. The college will still receive the proceeds of a tax of one-tenth of a mill upon the taxable property of the State, and it appears that upon this basis something remains in the treasury. It is contended that the decision of this court in Moreland v. Millen, 126 Mich. 381 (85 N. W. 882), supports the ruling that the act may stand, notwithstanding the invalid condition, and that to hold otherwise is to overrule the decision, in that case. I have read the opinions delivered in that case with care and with no disinclination to sustain the relator in this controversy. The cases seem to me to be wholly unlike. For the purposes of the decision in that case, it was assumed in the majority opinion that the legislature, in the act there in question, sought to improve the method of administering public works in the city of Detroit. The act made radical changes in the existing law. It provided finally that a superintendent of public works should be appointed, for a designated, but short, period of time, by the governor of the State, and thereafter by the mayor of the city. It was held that the legislature exceeded its powers in providing for the provisional appointment, but that the whole law was not thereby made invalid. It was held further that, an office having been created by the act, the mayor might proceed at once to fill it by appointment. In that case the invalid portion of the act provided for a mere detail; in this case it is the condition upon which an increased appropriation is made. It is as though the legislature, in 1913, had for that year, and each succeeding year, provided a fund for the college, and for a further sum to be given it upon condition.
The whole act must fail, and, this being so, the respondent should be advised (it is unlikely that a writ will be necessary) that the act of 1913 is void; that the act of 1901 is in force; that the fund deri/ed from the Federal government and a fund equal to the one created by that act are within the control of the relator.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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] |
McAlvay, C. J.
This is an appeal from a decree of the circuit court of the county of Wayne, in chancery, in case of a bill filed for the partition of lands, under the statute. The parties to this cause are the surviving children in interest of Seborn F. Tolsma, who, after the death of his wife, by proper warranty deed, conveyed the premises in question to all of his children jointly, reserving to himself a life interest therein. From and after his death they have continued to own such premises as tenants in common.
Before the institution of this partition suit defendant Charles S. Tolsma acquired the undivided interests of two of the heirs, by which means he became the owner in fee of an undivided three-eighths, and each of the other parties to this suit is the owner of an undivided one-eighth. These premises are described as follows:
“Lot No. 5; and the southerly 49 feet of Lot No. 57, all in section 8 of the Governor’s and Judge’s Plan of the city of Detroit.”
In the proceeding to partition the premises lot No. 5 is called parcel 1, and the southerly 49 feet of lot 57 is called parcel 2.
The bill was filed by four of the heirs against the remaining two who are interested in these premises. Defendants answered the bill of complaint, and after issue joined a consent decree of partition was made and entered October 21, 1912. By this decree David T. Lorimer, William A. Gleason, and William T. Dust were appointed commissioners in partition, and after-wards qualified and proceeded to perform their duties as such commissioners. Having concluded their work in the premises, all of these commissioners, on March 21, 1913, made and filed their report in said court and cause containing a statement of their acts and doings, which report, omitting the formal parts, reads as follows:
“To the Circuit Court for the County of Wayne, in Chancery:
“In pursuance of a decree for partition entered October 2, A. D. 1912, and a supplemental decree made and entered on the 4th day of February, A. D. 1913, appointing the undersigned as commissioners in partition, in the above-entitled cause, we, the commissioners named in the said decrees, respectfully report unto the court:
“That after wé and each of us had taken and subscribed an oath, honestly and impartially to execute the trust reposed in us, and make partition and division as directed by the court, which said oath is hereto annexed for greater certainty and filed herewith, we went together upon the premises described in said decree, to wit, lot number five (5), and the southerly forty-nine (49) feet of lot number fifty-seven (57), all in section eight (8), of the Governor’s and Judge’s Plan of the city of Detroit, Wayne County, Michigan, and after careful inspection, and on consideration, made a partition thereof, quality and quantity relatively considered, according to their respective rights and interests as declared by the said court in and by said decree; that is to say, after giving notice in writ ing, by registered letter, to all the parties interested, and their respective solicitors, of the time and place of our meeting held to consider the matters referred to us in said decree, as will appear by proof of service hereto attached.
“We further report that we divided said property into two parcels, parcel 1 being described as lot number 5, in section 8 of the Governor’s and Judge’s Plan of the city of Detroit, Wayne county, Michigan, and parcel 2 being described as the southerly 49 feet of lot number fifty-seven (57), section 8, of the Governor’s and Judge’s Plan of the city of Detroit, Wayne county, Michigan. And we further report that we appraised the value of said parcels and buildings thereon, and found a difference in value of $22,000.
“We further report that we set off and allotted to the above-named Charles S. Tolsma and Anna (Tolsma) Shields, in severalty for their interest and share in the said premises, the one-half (%) part thereof according to the relative value thereof, the following parcel thereof, to wit: Parcel one (1), lot numbered (5) in section eight (8), of the Governor’s and Judge’s Plan of the city of Detroit, Wayne county, Michigan. And we set off and allotted to the above-named Alex S. Tolsma, Ray S. Tolsma, Gertrude L. Tolsma, and Venus E. Tolsma, in severalty for their interest and share in said premises, the one-half (i/^) part thereof according to the relative value thereof, the following parcel of land in the following proportion: Parcel two (2), the southerly forty-nine (49) feet of lot numbered fifty-seven (57), section eight (8) of the Governor’s and Judge’s Plan of the city of Detroit, county of Wayne, and State of Michigan. To Charles S. Tolsma three-quarters (%) and to Anna Tolsma Shields one-quarter (*4) of parcel one (1). And we do further report that parcel two (2) is of greater value than parcel one (1) (and that, for the purpose of equalizing the division of said premises, the said Alex S. Tolsma, Ray S. Tolsma, Gertrude L. Tolsma, and Venus E. Tolsma, who are allotted said parcel two [2], are hereby directed to pay, and the said parcel two [2] is charged with the payment of, the sum of eleven thousand dollars to the persons receiving parcel one [1], as named herein).
“And we further certify and report that the items of the various expenses attending the execution and our said duties as commissioners in partition, including Our fees as commissioners, are contained in a schedule hereto annexed and marked Exhibit A, and forming a part of this our report.
“All of which is submitted for the approval of the court.
“In witness whereof we, the said commissioners, have set our hands and seals to this our report this 18th day of March, A. D. 1913.
“David T. Lorimer. [L. S.] “Wm. A. Gleason. [L. S.] “Wm. T. Dust. [L. S.].”
Afterwards the attorneys for complainants filed and served upon defendants notice of a motion for confirmation of this report in partition, to be heard May 26, 1913. On April 18, 1913, defendants filed exceptions to this report which, omitting the formal parts, are as follows:
“To the Circuit Court for the County of Wayne, in Chancery:
“Your petitioners, the above-named defendants Charles S. Tolsma and Anna Tolsma Shields, hereby make and file exceptions to the report of the commissioners in partition heretofore filed, in the above-entitled cause, that is to say:
“(1) Because the said commissioners in and by their said report have greatly underestimated the difference in value between ‘Parcel 1’ and ‘Parcel 2/ described in said report.
“(2) Because in truth and in fact said ‘Parcel 2’ is worth the sum of $28,000 more than said ‘Parcel 1,’ and that the difference in value of $22,000 as found and reported by said commissioners is grossly inadequate.
“(3) Because your petitioners are ready and willing and hereby offer to pay to the above-named complainants the cash sum of $14,000, making a total difference of $28,000, in value of said ‘Parcel 2’ over and above the value of said ‘Parcel 1/ in case this court shall set aside said report and recommit to the said commissioners the partition and division of the pieces or parcels of land described in the bill of complaint filed in this cause and specified in said report.
“(4) Because your petitioners tender herewith a bond in the penal sum of $14,000 with sufficient sureties conditioned to pay to said complainants the sum of $14,000, in case said parcel 2 shall be set off and allotted to your petitioners, in severalty for their interest and share in said premises.
“(5) Because your petitioners will be greatly damaged if said report of said commissioners is confirmed, and will suffer great loss if the same is allowed to stand, and the same will operate as fraud upon your petitioners.”
This petition prayed the court to set aside and vacate the report, according to statute, and for an order to recommit the making of such partition to the same or new commissioners, who should proceed therewith according to law, and with such petition, according to its offer, defendants filed a bond in the penal sum of $14,000.
On May 22d, before the time of hearing the motion for confirmation arrived, the court made the following order: .
“At a session of said court, convened and held in the circuit court rooms in the city of Detroit, county of Wayne and State of Michigan, on the 22d day of May, A. D. 1913.
“Present, the Honorable George Codd, circuit judge.
“On reading and filing the exceptions of the above-named defendants to the report of David T. Lorimer and William Gleason, two of the commissioners in partition, heretofore filed in the above-entitled cause, and a bond for the sum of fourteen thousand dollars ($14,000) filed with said exceptions, it is ordered that said report be and it is hereby referred back to the commissioners in partition heretofore appointed in said cause for further findings.”
By some error the report in this order is called the report of two commissioners. It was in fact the report signed by all of them.
On the same date two of the commissioners made out and signed the following report (omitting the entitling) :
“We, the undersigned commissioners in partition in suit, Tolsma v. Tolsma, do hereby reconfirm our report filed and submitted in said cas
“Detroit, Mich., May 22, 1913.
“David T. Lorimer.
“William A. Gleason.”
On May 24th following defendants made and filed exceptions to this report of the two commissioners for the same reasons as stated in their first exceptions, objecting to the confirmation of the first report, and praying for the same relief. On the same day complainants, by petition reciting matters as to the first report, and its reference back to the commissioners, and also showing that Commissioner Dust had filed a minority report, asked that the report of. the two commissioners be confirmed. A report of Commissioner Dust, favoring the change in the report petitioned by defendants, was filed May 26, 1913. On June 19th following defendants filed a petition duly verified, and asked the court, for the reason that no opportunity had been given them to be heard by the two commissioners after the case had been referred back, and for the reasons given in former exceptions, to set aside the last report of the commissioners, and appoint new commissioners, on account of the partisanship and prejudice of the two commissioners against them.
On June 26, 1913, the court entered a final decree in the case in which was recited the entire first report of the commissioners already given, and recited the fact that the matter was referred back to the commissioners for further consideration, and that a further report made by the two commissioners reaffirming the former report, which decree confirmed the first report of the commissioners, and made partition of the premises accordingly, and decreed de fendants should receive the part partitioned to them and $11,000 from complainants as their portion, according to the terms and conditions of said report.
It is the contention of appellants that this decree should be reversed (a) because the proceedings were irregular and void, and (6) that the decree is unjust. They contend that the final report of Commissioners Lorimer and Gleason in response to the order of the court made May 22, 1913, made on the same day, was without the presence or co-operation of Commissioner Dust; that they gave appellants no notice of any meeting, and no opportunity to be heard at said meeting to reconsider their report in accordance with the order of the court.
After the commissioners had made their first report, the record shows that defendants filed exceptions thereto by a petition in writing duly verified, asking that the report be set aside and vacated as provided by statute. This petition upon its face showed that parcel 2, which had been assigned to the complainants, exceeded the value of parcel 1, which had been assigned to appellants, by the sum of $28,000, and they filed a surety bond to substantiate their offer that they would give to complainants $14,000 as a fair difference between the values of the parcels.
After hearing these exceptions, the order referring the report back to these commissioners was made “for further findings.” Without any notice to appellants, or any opportunity to be heard on their part before the commissioners, and, as far as the record shows, in the absence of Commissioner Dust, the majority commissioners, on the same day the order of court was made for further findings, returned as follows:
“We, the undersigned commissioners in partition in suit, Tolsma v. Tolsma, do hereby reconfirm our report filed and submitted in said case.
“Detroit, Mich., May 22, 1913.”
The individual report of Commissioner Dust, made after this second report, accepts the proposition of defendants, and reports that $14,000 should be paid by the defendants, quality and quantity relatively considered. This has a bearing upon the contentions of defendants, at least by inference, that this commissioner was not present at the meeting of the 22d of May, when the second report was made by the majority, and also as bearing upon question of the injustice of the decree.
Proceedings in partition of lands are statutory, and, among other requirements, appear the following:
“The commissioners shall make .an ample report of their proceedings, under the hands of any two of them, specifying therein the manner of executing their trust, and describing the land divided and the shares allotted to each party, with convenient certainty. * * * ” Section 11039, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13236).
The first report made by the three commissioners March 18, 1913, already set forth in this opinion, is an indication that the commissioners had knowledge of and followed the reasonable requirements of this section. In that report it is recited, among other things:
“That is to say, after giving notice in writing, by registered letter, to all parties interested, and their respective solicitors, of the time and place of our meeting held to consider the ■ matters referred to us in said decree, as will appear by proof of service hereto attached. * * * ”
And in another portion of said report is stated that, after each of them had taken an oath honestly and impartially to execute the trust, “we went together upon the premises,” etc.
There is another statutory provision relative to the participation of commissioners in the proceedings, as follows:
“All the commissioners must meet together in the performance of any of their duties. * * * ” Section 11040, 3 Comp. Laws.
It is apparent that neither of the requirements of the two sections quoted were complied with. The court had made an order for a rehearing because of certain facts which had been presented as to the value of one parcel of the lands to be partitioned, and on petition of defendants had granted the privilege to be heard, as provided by statute, section 11042, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13239), which provides the commissioners “shall proceed in like manner as hereinbefore.” The majority of the commissioners denied this privilege. Upon both branches of this contention as to the right to be heard, and as to the necessity of the presence of all the commissioners at all meetings, this court has sustained the claim of appellants. In an early case, this court said:
“The defendants had a right to be present and to be heard when these things were done; and notice of the meetings of the commissioners should have been given to them, that they, or either of them, might have been present if they desired. The requirement of such notice is always implied, when not expressed in the statute, and indispensable.
“The commissioners failed, also, to comply with the plain language of the statute, in attempting to take action under the order without all being present. It is not necessary that all should sign or acknowledge the report, but their deliberations should be had together, and they must all meet when the final action is taken and * * * signed. ' One of the commissioners, who appears to have been willing to act, and had not been discharged or disqualified from acting, took but little or no part in the deliberations of the commissioners, and was not present at, nor had notice of, their last meeting, and had no notice or knowledge whatever of the final action taken by the other two. This was a clear violation of the statute. It is of no consequence now to say that Dewey would not have agreed to the report filed had he been present, or participated in the deliberations with the other two. It is quite possible it ought not to have been agreed to, and it may not be improbable that a different result might have been reached had they then sufficiently consulted together. However this may be, it cannot change the requirement of the statute with which, in both of the instances pointed out, the commissioners failed to comply.” Simpson v. Simpson, 59 Mich. 71, 77 (26 N. W. 285).
The next contention is that the decree is inequitable, and ought to be reversed, for the reason that parcel 2 is worth $28,000 more than parcel 1, and the decree for equality of partition awards only $11,000, instead of $14,000.
When the matter was referred back for further findings upon the sworn petition and offer of defendants, it is manifest that it was done for the purpose, not only of giving opportunity to defendants to present proofs and be heard, but also to correct an injustice. If the facts set up in the petition are true, an opportunity should have been given to correct any error which had been committed in that regard. Defendants had a right to question the correctness of the conclusions of the commissioners as to values, and apparently the proposition made by them is not unusual. Under the circumstances their sincerity cannot be questioned; their conduct in filing a bond was an assurance of that. A very similar case is reported from New Hampshire where the action of the commissioners was set aside. Timón v. Moren, 54 N. H. 441.
There are two other matters which are called to our attention by defendants’ brief. The first is the claim that the award of parcel 2 to complainants upon paying defendants $11,000 was unauthorized and void, for the reason that section 11094, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13291), expressly confers such judicial power upon the court; and also that the com missioners did not follow the decree and value each parcel separately.
We do not think it necessary to express any opinion upon these propositions at the present time. As the case will be remanded for further proceedings, these matters will receive all necessary attention.
The decree appealed from is reversed and set aside, and the cause remanded to the circuit court for the purpose of the appointment of new commissioners to make partition of the premises, according to the equities of the respective parties, and the statute in such case made and provided. Defendants will recover costs of both courts.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Ostrander, J.
It is the statute duty of every corporation doing business in this State to make and in January or February of each year to file a report showing the condition of the corporation on the preceding 31st day of December. For neglect or refusal to perform this duty, and after a default therein of 10 days, corporate powers are suspended, it can maintain no action in court upon any contract entered into during the period of default, and any director who has neglected or refused to join in making such report is made liable—
“For all the debts of such corporation contracted since the filing of the last report of such corporation, and shall also be liable to such corporation for any damages sustained' by it by reason of such refusal or neglect.” Act No. 137, Pub. Acts 1907.
Defendant was director of a corporation organized in February, 1910, which bought goods of plaintiff during the period from February to September, 1910. For the value of the goods judgment was rendered in favor of plaintiff and against the said buying corporation January 9, 1913, and is unpaid. This action is begun to recover the debt, defendant’s liability being predicated upon the statute above referred to; it appearing that the debtor corporation, which continued to do business until the summer of 1911, and which was formally dissolved in 1912, made no reports. The court directed a verdict for defendant, upon which there was judgment.
I am of opinion that the judgment should be affirmed. It is plain, I think, that the liability of directors is by the statute made to depend upon a default ,in filing the report. Weber v. Draper, 170 Mich. 550, 556 (136 N. W. 596). The debt in question was not contracted during a period of default.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.
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Per Curiam.
On April 19, 1973, defendant pled guilty to unlawfully taking and using a motor vehicle, MCLA 750.414; MSA 28.646. He was sentenced to a term of two years probation. On September 19, 1974, defendant was found guilty of violating probation and was sentenced to a term of one year and four months to two years. Defendant appeals as of right.
While defendant raises several issues on appeal, we find one to be dispositive. The notice of probation violation charged defendant with having been present in an automobile containing a shotgun and ammunition. The basis of the trial court’s revocation order, however, was defendant’s anti-social conduct. Assuming arguendo that defendant was properly notified of the initial charge, defendant had no notice that he was expected to meet a charge of anti-social behavior. While the trial court’s finding may be viewed as a mere characterization of the conduct contained in the charge, we have previously held that a probationer must have notice of the specific violation charged and the revocation hearing is to be restricted thereto. People v Elbert, 21 Mich App 677; 176 NW2d 467 (1970), People v Davenport, 7 Mich App 613; 152 NW2d 553 (1967).
In the instant case, the trial court exceeded the proper scope of the hearing. Defendant’s conviction therefore, must be reversed.
The order revoking defendant’s probation is set aside, the sentence vacated, and the defendant is remanded to the custody of recorder’s court without prejudice on the part of the court to conduct a hearing after defendant is given a written copy of the probation violation charges that he is required to meet. | [
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] |
D. E. Holbrook, Jr., J.
Defendant was originally charged with first-degree murder arising out of the shooting death of one Mary Juanita Cloyd. MCLA 750.316; MSA 28.548. Pursuant to court order the information was subsequently amended to charge murder in the second degree. Defendant was tried by a jury and convicted of the amended charge. Sentenced to imprisonment for a term of not less than 25 nor more than 40 years, defendant appeals as of right.
Prior to the shooting defendant and decedent had been lovers, having lived together in decedent’s apartment from July of 1972 to April of 1973, when defendant moved out and returned to London, Ontario.
On the morning of May 22, 1973, defendant decided to go from his home in London, Ontario, to Westland so as to return to the decedent a suitcase, keys to her apartment and a set of keys to her car and pick up some of his clothes. He also was desirous of returning certain tools to his brother-in-law. Before departing London defendant drank beer. En route to Westland defendant stopped at Port Huron where he purchased more beer which he drank on the way to his brother-in-law’s home. Upon his arrival at his brother-in-law’s home he left his wife, Carol, and proceeded to Mary Juanita Cloyd’s apartment. Not finding her home he entered decedent’s apartment with the keys he had planned to return. Deciding to wait for her return defendant drank more beer while in her apartment. Some time thereafter he left the apartment and looked for her at a launderette where she was accustomed to doing her laundry and at her mother’s house. She was not at either place. Defendant then proceeded to the home of either his brother-in-law or his brother-in-law’s brother, he could not remember which, where he proceeded to drink more beer.
Later the same day and some time during the evening hours defendant again went to the apartment of Mary Juanita Cloyd. She was home on this occasion and he entered and they talked. Defendant testified that he returned her keys to the apartment, the keys to her automobile and her suitcase. He further testified that he requested his clothing and a brown envelope containing certain papers which he had left behind. According to the defendant Miss Cloyd advised the defendant that she had moved the location of such so that he would be unable to pick them up without conversing with her.
During the course of their conversation an argument ensued. Defendant, according to his testimony, got up to leave. At this point the decedent blocked the doorway between the kitchen and dining room insisting they talk further. Defendant then sat down upon a chair and bruised himself with a pistol which he had previously found in the apartment and subsequently placed in his rear pocket. Defendant stated it was at this point he removed the pistol from his pocket and placed it on the table. The parties continued to converse and further arguments ensued. According to the defendant the decedent picked up the pistol from the table. There is no evidence, however, tending to show in what manner she held it. Upon her picking up the pistol defendant, who was angry, snatched the pistol from her hand. It was at this point, he presumed, the gun went off, resulting in decedent’s death. Defendant further related to the jury that the sight of blood has a special effect on him causing him not to remember his actions. He claims that the sight of blood, on this particular occasion, caused him to remember nothing thereafter until he found himself in a motel room in Windsor, Ontario, on the morning of May 23, 1973. Defendant testified that on the day in question he had drunk enough to be drunk at the time of the alleged offense. Defendant further testified that at no time did he intend to kill Mary Juanita Cloyd or cause her any harm. On May 25, 1973, defendant voluntarily surrendered to the London, Ontario, police.
On appeal defendant claims that the trial court committed reversible error by not instructing the jury on intoxication so as to reduce the crime from second degree murder to voluntary manslaughter. We disagree. The defense of intoxication may only be interposed when the defendant is charged with a specific intent crime. People v Crittle, 390 Mich 367; 212 NW2d 196 (1973), People v Kelley, 21 Mich App 612; 176 NW2d 435 (1970). Second-degree murder is not a specific intent crime and therefore voluntary intoxication may not be interposed as a defense. People v Rufus Williams, 23 Mich App 459; 179 NW2d 48 (1970), aff’d 386 Mich 277 (1971), People v Jones, 45 Mich App 373; 206 NW2d 453 (1973). We find no error in the court’s failure to instruct on voluntary intoxication since we hold second-degree murder not to be a specific intent crime.
Next defendant contends that the trial court erred in refusing to instruct the jury as to the lesser-included offenses of voluntary and involuntary manslaughter and by affirmatively limiting the jury in their deliberations to two possible verdicts.
At the conclusion of trial, defendant in his request to charge, requested an instruction on both voluntary and involuntary manslaughter. The court did not honor such request and instructed the jury as to two possible verdicts; guilty of murder in the second degree or not guilty. The court also instructed the jury on both áccident and self-defense and further instructed the jury that the burden of proving the absence thereof was on the people.
In voluntary manslaughter there is an intent to take life, under provocation which is serious enough to deprive the killing of its malicious character. See 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1664, p 2006. The provocation necessary to reduce a crime from murder to manslaughter must, by the laws of the human mind, have been sufficient to cause the respondent to act rashly and without due deliberation and reflection, and from passion rather than judgment. Again see 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1665, p 2007.
Here the defendant affirmatively testified that he did not intend to kill or hurt the deceased. Voluntary manslaughter is therefore inconsistent with his own testimony. Further, we conclude that the circumstances leading up to the shooting of the deceased were not sufficient to constitute provocation serious enough to deprive the killing of its malicious character or to cause the defendant to act rashly and without due deliberation and reflection or from passion rather than judgment. The court, therefore, did not commit error in failing to instruct on voluntary manslaughter.
We need not decide whether the trial court erred in failing to instruct the jury on involuntary manslaughter for assuming, arguendo, that it did, such error would be harmless beyond a reasonable doubt. Our reasons for so holding are as follows:
Involuntary manslaughter is (1) the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm; or in (2) negligently doing some act lawful in itself; or (3) by the negligent omission to perform a legal duty. See People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923), People v Townes, 391 Mich 578, 590; 218 NW2d 136 (1974). Here there is no evidence that defendant killed the deceased by the negligent omission to perform a legal duty. At this point we should point out that following the commission of the alleged offense defendant allegedly told four persons that he had shot and killed the deceased.
With respect to the first and second forms of involuntary manslaughter, stated above, we again point out that the court instructed the jury on both accident and self-defense. In instructing the jury on accident the court defined accident as:
"A happening by chance, something out of the usual course of things that was not intended and was not expected. Something of a fortuitous character, not anticipated and not naturally to be expected. ” (Emphasis supplied.)
While perhaps the jury could have found (1) that the defendant, at the time of the shooting, was performing an unlawful act not amounting to a felony, or (2) that decedent’s death resulted from defendant negligently doing some act lawful in itself, the court’s instructions on accident and self-defense would render such findings of little benefit to the defendant.
Due to the court’s instructions on accident, implicit in the jury’s verdict is a finding by the jury that the result of defendant’s actions was both anticipated and naturally to be expected. This would preclude a finding of involuntary manslaughter on the first theory mentioned above since such a finding is tantamount to determining that the acts of the defendant naturally tended to cause death or great bodily harm. Further implicit in the jury’s verdict, due to the court’s instructions on self-defense, is a finding by the jury that defendant was not performing a lawful act in a negligent manner.
We find no prejudice resulting to the defendant since had the jury believed defendant’s version of the incident they, under the instructions, would have been obliged to return a verdict of not guilty. Had the court instructed on involuntary manslaughter and had the jury believed defendant’s version they would have been obliged to return a verdict of manslaughter. Error, if any, inured to defendant’s benefit and therefore would be harmless beyond a reasonable doubt.
Having reviewed defendant’s final assertion of error, we find that the issue therein raised has previously been decided adversely to defendant’s claim in People v Milton, 393 Mich 234; 224 NW2d 266 (1974).
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Allen, P. J.
This is an appeal by four of eleven property owners in the city of Gladstone whose complaint for a permanent injunction prohibiting the levy of a special assessment for the laying of water mains was denied by the trial court. Plaintiffs’ properties are situated along Lowrie Avenue which runs parallel to and some distance back of a high bluff overlooking Lake Michigan. Plaintiffs constructed residences on their property, three of which set back from Lowrie Avenue some 400 feet, and the fourth 650 feet from the street. As there was no available city water in the bluff area, all plaintiffs, prior to construction, drilled their own wells at an average cost of approximately $1,472.00. Sometime in 1970, funds became available to the city from the Department of Housing and Urban Development to pay 50% of the cost of the water main extension. The remaining 50%, less a small portion financed by a transfer to the general fund from the municipal electric utility, was assessed against property owners at $4.50 a foot multiplied by the number of feet of property abutting on Lowrie Avenue. The city’s charter permits special assessments on property "specially benefited”.
In a meticulously prepared written opinion the trial judge rejected plaintiffs’ claim that they derived no special benefit from the proposed special assessment. Specifically, the trial court found that plaintiffs were benefited by increased fire protection, an assured safe water supply, and by some increase in the market value of their property. Though we review equitable actions de novo, the trial court’s opinion is accorded great weight. Davis v Bridgeport Township Planning Commission, 55 Mich App 15, 16; 222 NW2d 13 (1974). Our review of the record testimony and exhibits uncovers nothing to justify our departure from the findings of the trial court. Increased fire protection will be provided because the hoses of the fire engines can run off the proposed water main rather than returning the fire trucks to the foot of the hill to refill the tanks. Increased fire protection in itself is a benefit sufficient to support a special assessment. Johnson v City of Inkster, 56 Mich App 581, 588; 224 NW2d 664 (1974). To overcome the court’s finding with respect to fire protection benefits, plaintiffs point out that the proposed system does not have "a firm capacity” of 500 gallons per minute as recommended by the consulting firm retained by the city to develop the system, and as initially required by the Michigan Department of Public Health. Trial testimony shows, however, that the Department of Health modified its requirements and approved installation with a firm capacity of 300 gallons per minute for the reason that while the system was designed to ultimately accommodate a much larger population, in the first years of operation the total residential load would be light, and the prospect of any unit being out of service during the initial period would be extremely low. Moreover, even a 300 gallon per minute firm capacity off the proposed water main would be a substantial improvement over the existing system of trucking down the hill to fetch another pail of water.
Since plaintiffs maintained their own water supply system from wells sunk on their property, the benefits to them are, of course, less direct. Nevertheless, benefits would accrue if the bluff residences were to connect to the new mains on Lowrie Avenue. City water in the area to be served, unlike well water, is floridated for dental health. Further, while water from private wells is only occasionally tested by the property owner, city water is tested daily by the city, and periodically by the state. Owing to the tendency of private wells to become contaminated as population increases, the water mains assure a more safe water supply. Finally, granted the increase is smaller when the property has its own source of water, the record indicates that property values do increase where city water is made available.
Plaintiffs claim the lower court erroneously failed to invoke equitable estoppel against defendant. The doctrine of equitable estoppel is aptly summarized in 11 Michigan Law & Practice, Estoppel, § 8, pp 70-71:
"The concept of the doctrine of estoppel in pais is fraud, actual or constructive, on the part of the person sought to be estopped, and arises when a person, by his acts, representations or admissions, or by his silence when he should speak, intentionally or through culpable negligence induces another to believe certain facts to exist, and such other rightfully relies and acts on such belief, so that he will be prejudiced if the person inducing the belief is permitted to deny the existence of those facts. Thus, there can be no estoppel unless one is misled to his prejudice by the acts of another against whom the estoppel is set up.”
Plaintiffs state that although the city commenced plans for a water main extension to the bluff area in 1967, plaintiffs were advised that city water would not be so extended as late as 1972. Plaintiffs’ position is that this misinformation caused them to construct wells that they would not have otherwise done. Interrogatories, stipulated to as part of the record, disclose that two of the plaintiffs (Patient and Heynssens) stated they did not contact the city prior to drilling their wells. A third plaintiff (Cretens) installed his well in 1965— a date prior to the earliest date claimed as the time when the city first seriously considered water main extension. It is thus evident that the doctrine of equitable estoppel has no applicability to these plaintiffs.
Plaintiff LaLonde drilled his well in 1968 after requesting water from the former city manager who responded "there were no plans of installing water mains on the Bluff in the near future”. Moreover, the city manager reportedly informed LaLonde that city water would not be available in his area for "at least 25 years”. The record indicates that when the city manager made the statement, the city was in fact unable to proceed owing to lack of funding for the 50% share which the city would pay. The funds were not available from the Department of Housing and Urban Development until about 1970, and application therefor was not made until 1971. On May 29, 1973, the city learned it could use approximately $96,000 from the municipal utility surplus fund for the water main project, and it was not until September 1973, that the city council set a public hearing on the proposed assessment. Based on these facts, it seems the city manager’s statement in 1968 that water would not be available "in the near future” was not misleading, but accurate. Although the opinion relative to 25 years appears farfetched in retrospect, no evidence exists that the manager did not sincerely believe it, or that LaLonde would have deferred drilling for five years had the city manager possessed the clairvoyance to say water would be available in September 1973. In short, there is no proof in the record that LaLonde was induced to do what he otherwise would not have done because of a misrepresentation of facts by defendant. Holt v Stofflet, 338 Mich 115; 61 NW2d 28 (1953). For these reasons, Geftos v Lincoln Park, 39 Mich App 644; 198 NW2d 169 (1972), cited by appellants as sole authority for the applicability of equitable estoppel, is clearly distinguishable.
Affirmed, no costs, a public question being involved.
The city has two fire trucks, one holding 750 gallons of water and the other 500 gallons. The discharge rate in a typical residential fire is 200 gallons per minute. Thus "it would take one truck about 3-1/2 minutes to empty and the other one about 2-1/2 minutes to empty” after which the trucks would have to go down to the bottom of the hill, fill up again at the hydrant and come back. With the proposed new water mains the normal pumping capacity would be 500 gallons per minute and the trucks would pump continuously. (Tr, p 51-52).
Final plans called for two 200 gallon per minute pumps and one 100 gallon per minute pump. Normal capacity is the sum total of all three pumps, viz: 500 gallons per minute. "Firm capacity” is the sum of all three pumps minus the largest unit, viz: 300 gallons per minute. It is the system’s capacity assuming that the largest unit is out of service for repairs or any other reason.
On February 8, 1967, the city received an engineering report from Northern Michigan Engineers for the cost of extending water along 29th Street with "provisions * * * to allow future installation * * * along Lowrie Avenue * * * ”. | [
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Bashara, J.
The defendant, Hector McGregor, was convicted in the district court of the 17th Judicial District of harboring bees which become a nuisance and of improper storage of vehicles in a residential rear yard. Defendant appealed to the Wayne County Circuit Court which affirmed his conviction. We granted leave to appeal.
On September 8, 1970, an ordinance officer of Redford Township visited the home of the defendant. The inspector testified that in the yard of the premises he observed two trucks, three trailers, one small wrecker, one tractor, one licensed vehicle, various junk items, old lumber, bike wheels, bike innertubes, a truck camper body, old bed springs, tires, wheels, beehive equipment and two active beehives. Citations were issued to the defendant for permitting his bees to leave the premises and for violating the rear yard storage of vehicles ordinance.
A neighbor of the defendant testified that sometime in late September of 1970, her daughter was stung by a bee while standing on the sidewalk in front of the defendant’s home. There was no other testimony on whether the bee actually belonged to the defendant’s hives. The neighbor further testified that her property was covered with either bees or yellow jackets in the spring. Toward the close of the neighbor’s testimony the trial judge ruled that the people failed to sustain their burden of proof relative to the date of the bee sting. Apparently, and it is not entirely clear from the record, the trial judge did not believe that there was sufficient evidence to find that the defendant permitted his bees to leave the premises on the date the citation was issued for violation of the ordinance. The trial continued, however, on the issue of whether the bees had become a nuisance.
At the close of the people’s case the defendant moved to dismiss the charge of harboring bees that become a nuisance on the ground that the people failed to establish a nuisance. The trial judge ruled that there was sufficient evidence to support a finding of nuisance from the neighbor’s testimony that a large number of bees covered her property in the springtime. The court also took judicial notice that unless bees are restricted they are a nuisance because they roam the neighborhood and, on either intentional or inadvertent antagonization, sting human beings.
Defendant first argues that the evidence does not support a finding of nuisance for the conviction of harboring bees. Michigan has no case law determining whether the raising of bees constitutes a nuisance. The view that has generally been adopted is well stated in City of Arkadelphia v Clark, 52 Ark 23; 11 SW 957, 958 (1889):
"Neither the keeping, owning, nor raising of bees is in itself a nuisance. Bees may become a nuisance in a city, but whether they are so or not is a question to be judicially determined in each case.”
Other cases in agreement are Ferreira v D’Asaro, 152 So 2d 736 (Fla App, 1963), and Olmstead v Rich, 53 Hun 638; 6 NYS 826 (Sup Ct, 1889). See also 39 ALR 352, 363-364. We adopt this view.
It was error for the trial judge to take judicial notice that the raising of bees with their propensities towards roaming and stinging was a nuisance. The question still remains as to whether the bees or yellow jackets on the neighbor’s property in the springtime constituted a nuisance.
An ordinance that prohibits conduct which results in a nuisance refers to a public nuisance. In Township of Garfield v Young, 348 Mich 337, 341-342; 82 NW2d 876 (1957), the Court quoting Prosser, Torts, § 71, pp 401, 402 states:
" 'No better definition of a public nuisance has been suggested than that of an act or omission "which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects”. The term comprehends a miscellaneous and diversified group of minor criminal offenses based on some interference with the interests of the community, or the comfort or convenience of the general public
" 'To be considered public, the nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several. * * * It is not necessary, however, that the entire community be affected, so long as the nuisance will interfere with those who come in contact with it in the exercise of a public right.’ ”
The Court further stated:
"As such, the activity must be harmful to the public health, Township of Kalamazoo v Lee, 228 Mich 117; [199 NW 609 (1924)] * * * or prevent the public from the peaceful use of their land and the public streets, City of Grand Rapids v Weiden, 97 Mich 82 [56 NW 233 (1893)]. The question in each case is one of fact, and in each case we must consider the facts peculiar to that particular case. People v Carpenter, 1 Mich 273; Crippen v People, 8 Mich 117.”
The facts in this case show only that the neighbor’s property was covered in the springtime by either bees or yellow jackets that appeared dead but came back to life after being placed in jars. There was absolutely no evidence to lay the charge of nuisance at the door of the defendant.
The second issue for consideration is whether Redford ordinance 152, § 3.04 limiting the storage of the listed vehicles to 10% of the rear yard is a violation of the police power because it is arbitrary and bears no relation to the health, safety or well being of the community. This is the extent of defendant’s argument on the issue. In Tally v Detroit, 54 Mich App 328, 335; 220 NW2d 778 (1974), the Court stated:
"The legitimacy of any exercise of police power depends upon 'the existence of a real and substantial relationship between the exercise of those powers in a particular manner in a given case and the public health, safety, morals, or the general welfare’. Grocers Dairy Co v Dept of Agriculture Director, 377 Mich 71, 76; 138 NW2d 767 (1966). An ordinance will be presumed to be constitutionally valid. Watnick v Detroit, 365 Mich 600, 606; 113 NW2d 876 (1962). The party claiming that an ordinance is unreasonable has the burden of so proving. Michigan Towing Association, Inc v Detroit, 370 Mich 440, 455; 122 NW2d 709 (1963).”
The defendant’s brief contains only bare allegations, and is clearly insufficient to sustain the burden of proof placed upon him.
The remaining issues are without merit or require no discussion because of the disposition of the above issues.
Defendant’s conviction for harboring bees that become a nuisance under Redford ordinance 174, § 1, is reversed. His conviction for improper storage of vehicles in a residential rear yard under Redford ordinance 152, § 3.04 is affirmed.
Redford ordinance 174, § 1:
"It shall be unlawful for any person, firm or corporation to harbor bees, goats, pigeons and other fowl or animals other than cats and dogs in the Township of Redford in any manner so that said bees, goats, pigeons or other fowl or animals other than cats and dogs, shall become a nuisance or cause damage to the property within the Township of Redford.”
Redford ordinance 152, § 3.04; Residential Rear Yard Use:
"A rear yard in residential districts may be used for any detached garage or an accessory use such as a swimming pool or small accessory building. The rear yard may also be used for the parking of a currently licensed passenger vehicle, currently licensed accessory trailer, or boat, provided such storage area shall not occupy more than ten percent (10%) of the unoccupied rear yard area.”
Redford ordinance 174, § 2:
"It shall be unlawful for the 'owner’ of any bees, goats, pigeons and other fowl or animals to permit such fowl or animals to leave the owner’s premises, excepting, however, that dogs may leave the owner’s premises when controlled on a leash.”
Webster’s Third New International Dictionary defines a bee as "a social colonial hymenopterous insect (Apis mellifera) often maintained in a state of domestication for the sake of the honey it produces and for use as a pollinator.” Bees differ from wasps in that bees have a "heavier body and sucking as well as chewing mouthparts”.
Webster’s Third New International Dictionary defines a yellow jacket as "any of various small yellow-marked social wasps of the family Vespidae that commonly nest in the ground”. | [
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Quinn, P. J.
All defendants were charged with violating MCLA 335. 341(l)(c); MSA 18.1070(41)(l)(c), in that they did unlawfully manufacture marihuana (count I), that they unlawfully possessed with intent to manufacture marihuana (count II), and that they unlawfully possessed with intent to deliver marihuana (count III). In addition, defendant Rodriguez was charged with unlawfully keeping or maintaining a dwelling used for keeping or storing marihuana contrary to MCLA 335.342(l)(e); MSA 18.1070(42)(l)(e). The jury returned verdicts of guilty on all counts. Defendants were sentenced, their motion for new trial was denied and they appeal. The issues raised on appeal will be discussed in the same order as briefed by defendants.
Prior to trial, defendants moved to quash the search warrant and suppress certain evidence. The motion was based on the alleged inadequacy of the affidavits on which the search warrant was based. Defendants’ first four issues relate to the inadequacy of the affidavits.
MCLA 780.651; MSA 28.1259(1) provides:
"When an affidavit is made on oath to a magistrate authorized to issue warrants in criminal cases and when the affidavit establishes the grounds for issuing a warrant pursuant to this act, the magistrate, if he is satisfied that there is reasonable or probable cause therefor, shall issue a warrant to search the house, building or other location or place where the property or thing which is to be searched for and seized is situated.”
MCLA 780.653; MSA 28.1259(3) provides:
"The magistrate’s finding of reasonable or probable cause shall be based upon all the facts related within the affidavit made before him. The affidavit may be based upon reliable information supplied to the complainant from a credible person, named or unnamed, so long as the affidavit contains affirmative allegations that the person spoke with personal knowledge of the matters contained therein.”
Two affidavits were presented to the magistrate who issued the search warrant. These affidavits were a mixture of the personal knowledge of the affiants and information they had received from informants. The personal information was ob tained by surveillance and investigation and corroborated the informant information. As to the information supplied by informants, the affidavits failed to contain affirmative allegations that the informants spoke with personal knowledge of the information, but the affidavits did contain facts relating to the reliability and credibility of the informants.
Defendants assert four inadequacies in the affidavits:
a. No affirmative allegations that the informants spoke with personal knowledge.
b. Failure to state underlying facts to support the affiants’ conclusions as to the credibility and reliability of the informants.
c. Failure of the informant information to furnish facts to support affiants’ conclusion that the marihuana was where it was claimed to be.
d. Failure to state facts establishing independent corroboration of the informant information.
1. The first attack on the adequacy of the affidavits requires an interpretation of MCLA 780.653. We read the statute as covering two types of affidavits, namely: one in which the affiant states facts, and one in which the affiant states only informant information. The latter type may be sufficient if the information is reliable, from a credible person and if the affidavit contains affirmative allegations that the informant spoke with personal knowledge of the information. Neither type specifically fits the hybrid type of affidavits before us.
The purpose of the affidavit is to supply the magistrate with reliable information on which to judge the question of reasonable or probable cause. In the case of an affidavit based only on informant information, the requirement for an affirmative allegation that the informant spoke with personal knowledge of the information is necessary to supply the reliable quality of the information. Where the affiant states facts from his personal knowledge which establish the reliability of the informant information, there is no reason to require anything further. The affidavits before us contain facts stated by the affiants from personal knowledge which establish the reliability of the informant information. We reject defendants’ first argument.
2. The record does not support defendants’ second attack on the affidavits. The Cruz affidavit recites underlying facts supporting the credibility .and reliability of his informant, see People v Iaconis, 29 Mich App 443; 185 NW2d 609 (1971), adopted by the Supreme Court in People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972). In the Winger affidavit, the credibility and reliability of the informants are established by corroborating facts furnished by affiant surveillance.
3. As to the third attack, the statute requires the magistrate to act on "all the facts”. Those facts support the conclusion that the marihuana was where it was claimed to be.
4. The fourth attack is not factually supported. Both affiants were experienced in drug investigation. What they observed may not have provided independent corroboration to defense counsel or to any layman, but it did to trained investigators.
We conclude that the trial court properly denied defendants’ motion to quash the search warrant and to suppress evidence.
5. Defendants next contend that it was reversible error for the trial court to deny their pretrial motion for discovery relating to the informant. The motion was addressed to the trial court’s discretion, People v Ranes, 58 Mich App 268; 227 NW2d 312 (1975). Revelation of an informant’s identity is not required unless he is a material witness, People v Phelps, 57 Mich App 300; 225 NW2d 738 (1975). The trial court found that the informant was not a material witness. No abuse of discretion has been shown.
6. It was not error for the trial court to deny defendants’ motion for the endorsement of the confidential informant as a witness. The record does not support a finding that the confidential informant was a res gestae witness.
7. MCLA 335.305(3); MSA 18.1070(5X3) defines marihuana as "all parts of the plants Cannabis sativa L. * * * Defendants contend that only marihuana of the Cannabis sativa L. variety is covered by the statute. The marihuana here involved could not be identified as that variety to differentiate it from Cannabis indica or Cannabis ruderalis. Hence, no violation of the statute was proved. This Court has rejected this argument, People v Riddle, 65 Mich App 433; 237 NW2d 491 (1975).
8. Defendants have demonstrated no reversible error in the failure of the trial court to give their requested instructions 1, 7, 8, 14, 15 and 20.
9. Our resolution of issue 7 supra, obviates discussion of this ninth issue. No reversible error occurred.
10. Defendants’ requested instruction number 10 was sufficiently covered by the instruction found at pages 98-99 of volume IV of the trial transcript. Failure to give requested instruction number 10 was not reversible error.
11. Read as a whole, the instructions of the trial court disclose no reversible error. Hence, defendants’ eleventh issue presents no reversible error.
12. Disorderly conduct is not a lesser included offense of the crimes with which defendants were charged. It was not error for the trial court to refuse to instruct on disorderly conduct.
13. The record does not support defendants’ contention that prejudicial comments by the prosecuting attorney in closing argument constituted reversible error. The comments are not to be judged out of context with the entire argument. Read in context, no reversible error is demonstrated.
Affirmed. | [
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] |
T. M. Burns, J.
Plaintiff has not been paid for meat products sold by it to Steering Wheel, Inc., of which the defendants are officers and directors. The sales occurred between May 15, 1972, and July 17, 1972. In October of that same year the buyer, Steering Wheel, Inc., filed a petition in bankruptcy.
Plaintiff’s action is based upon provisions of the former Michigan General Corporation Act, MCLA 450.87; MSA 21.87 (since repealed), which provided for the personal liability of corporate officers for corporate debts contracted during any period in which such officers refused or neglected to join in the making of the corporation’s annual report. The annual reports were to be filed by May 15 of each year.
On May 15, 1972, Sylvia Durso, an employee of Steering Wheel, Inc., prepared the 1972 annual report and defendant LoPatin signed it as president. While the corporation act required that all annual reports be signed by two corporate officers, only LoPatin’s signature appeared on the report. The report was sent to the Michigan Treasury Department on May 15, 1972, and was returned to the corporation on September 15, 1972, bearing the following notation:
"This report has not been accepted for filing by the Corporation Franchise Fee Division, Department of the Treasury, and is not in final form.”
The report was placed in the corporate records rather than being completed and resubmitted and was not returned to the Treasury Department until after defendants were served with the complaint in this action in November of 1972.
Hence, debts were contracted by the corporation during a period in which no annual report was on file with the proper agency as required by statute. Upon these facts, the trial court granted plaintiffs motion for summary judgment, holding that the failure of officers LoPatin and Kawamoto to pre pare and file the annual report rendered them personally liable for the corporate debts. Defendants contend on appeal that the lack of one officer’s signature did not constitute such neglect or refusal to make a report as will create personal liability, and that even without the signature the report substantially complied with statutory requirements. We cannot agree with either argument.
It is undisputed that from May 15, 1972, until some time in November of 1972, there was no annual report for 1972 on file for Steering Wheel, Inc. This is not a case of a filed report which contains an error. The report was not complete and hence was returned to the corporation. Bremer v Equitable Construction & Mortgage Corp, 386 Mich 187; 191 NW2d 331 (1971), relied upon by defendants, is not applicable to this case. In Bremer, the annual report, although defective, was in fact filed, and it was complete, containing only a clerical error. Because the annual report in Bremer was in fact filed and contained only a clerical error, the Court held that the officers were not personally liable for corporate debts incurred while the defective report was on file.
The case at bar is more closely analogous to Radio Electronics Supply Co v Smith, 372 Mich 393; 126 NW2d 729 (1964). In that case, the Court held that the corporation president’s deliberate noncompliance with requests of the Corporation and Securities Commission to furnish the names of the directors and the corporation’s new address rendered him liable for the debts incurred by the corporation during the period of noncompliance. As in the Radio Electronics case, the corporate officers in the case at bar neglected or refused to complete the annual report even after notice from the proper state agency that the report was incomplete. For the officers to say that they were unaware of the statutory requirement and unaware of the fact that the report was returned unfiled is irrelevant. The corporation act clearly made it the officers’ duty to make sure a proper report was in fact on file. The heavy penalty imposed by the statute for failure to comply with its terms indicates the significance of that duty. The good or bad faith of the officers in fulfilling this requirement is also irrelevant. The statute read "neglects or refuses,” without qualification. MCLA 450.87; MSA 21.87. We hold that the trial court was correct in finding that there was no genuine issue of material fact and holding that defendants are personally liable for the debts of the corporation.
Other arguments raised by defendants are without merit. Careful consideration of the briefs and review of the record discloses no error in the trial court.
Affirmed.
MCLA 450.87; MSA 21.87 provided:
"(1) If any corporation neglects or refuses to make and file the reports and/or pay any fees required by this act within the time herein specified, and shall continue in default for 10 days thereafter, unless the secretary of state shall for good cause shown extend the time for the filing of such report or the payment of such fee, as the case may be, as provided in section 91 of this act, and (2) if such corporation shall continue in default for 10 days after the expiration of such extension, its corporate powers shall be suspended thereafter, until it shall file such report, and it shall not maintain any action or suit in any court of this state upon any contract entered into during the time of such default; but nothing herein contained shall prevent the enforcement of such contract against the corporation by the other party thereto, and during the period of such suspension such corporation may exercise the power of disposing of and conveying its property and may settle and close its business. Any officer or officers of such corporation so in default who has neglected or refused to join in making of such report and/or pay such fee shall be liable for all debts of such corporation contracted during the period of such neglect or refusal.”
MCLA 450.82; MSA 21.82, MCLA 450.83; MSA 21.83. | [
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Danhof, J.
The plaintiffs filed the original complaint in this matter on March 13, 1974 for injuries arising out of an automobile accident which occurred on December 24, 1970. On October 18, 1974, the trial court granted the defendants’ motion for accelerated judgment with the provision that the plaintiffs could amend their complaint within 20 days to specify the alleged misrepresentations which would constitute equitable estoppel. Having failed to so amend, the trial court dis missed the plaintiffs’ cause of action with prejudice on December 6, 1974. We affirm.
Both the original and the amended complaints state that they complain of the accident which occurred on December 24, 1970. Also, both state "that the statute of limitations ran in this cause of action”. This point is not disputed. However, in the trial court and on appeal, the plaintiffs have argued that the defendants should be estopped from asserting the defense of the statute of limitations.
In support of this estoppel argument, the plaintiffs alleged that during the course of negotiations the defendants "failed, refused, and neglected” to pay the plaintiffs as promised. The plaintiffs further alleged that representatives of the defendant insurance company, particularly one George Lynott, represented to them that the plaintiffs would be fairly and justly compensated by the company and that a full and fair settlement would be made of the present cause of action.
It is not disputed that the plaintiff, Bonnie Cummings, underwent plastic surgery in 1971, which the defendant insurance company paid for in full.
As to this surgery, the plaintiffs alleged:
"That the Plaintiffs were told by the representatives of the Defendant, TRAVELERS INSURANCE COMPANY, that a full and equitable settlement of the present cause would be paid once the Plaintiff, BONNIE CUMMINGS’ physical condition stabilized and the Defendant insurance company had had an opportunity to further evaluate the case following the above related plastic surgery.”
The defendants submitted the following interrogatories to the plaintiffs:
"4. State the names of each of the agents or representatives of Defendant, Travelers Insurance Company with whom you had contact, including Defendant George Lynott, concerning the accident of December 24, 1970.
"a. State the time and place of each of these conversations and with whom they took place.
"b. State specifically the individual who promised that a fair and just settlement would be made and when such statement was made.
"c. State specifically who stated that you were not to be concerned with the Statute of Limitations and the time and place this statement was made.
”5. State the total amount of medical expenses incurred by you as the result of the accident of December 24, 1970, and indicate the date these expenses were incurred.
"a. State any medical payments that may have been paid to you by Defendant, Travelers Insurance Company, in connection with the expenses incurred as a result of the accident of December 24, 1970.”
The plaintiffs responded to the interrogatories with the following answers:
"4. I don’t know the agent representing TRAVELERS INSURANCE COMPANY in 1971. All I remember is he told me to take Bonnie to Duluth for plastic surgery and that he would take care of all of the bills. The agent told me he would come back and see me after the operation and see the results of the operation. Also, he would take care of any expenses incurred by me, such as travel, lodging, etc.
"5. Travelers Insurance paid the hospital direct and Dr. Frank Wakefield and Dr. John Wolfe of Duluth, Minnesota.”
The defendants stated to the trial court and on appeal that the plaintiffs have not submitted any claims to them since 1971.
Based on the foregoing, the trial court granted the defendants’ motion for accelerated judgment for the reason the statute of limitations, MCLA 600.5805(7); MSA 27A.5805(7), had run, and failed to find the defendants were estopped from asserting the statute.
The issue raised on appeal is whether the plaintiffs failed to allege facts sufficient to estop the defendants from asserting the statute of limitations to bar the plaintiffs’ cause of action.
Despite the fact that the plaintiffs have raised an estoppel theory, the claim here is one in tort which arises out of the injuries that resulted from the accident on December 24, 1970. See Smith v Gilles, 28 Mich App 166; 184 NW2d 271 (1970), and the cases cited therein. Thus, unless the defendants are estopped from asserting it, the three-year provision of MCLA 600.5805(7); MSA 27A.5805(7) would bar the plaintiffs’ cause of action.
When raising an estoppel theory to counter the defense of the statute of limitations, the plaintiff must show "that the conduct of the defendant has induced the plaintiff to refrain from bringing action within the period fixed by statute, and that such conduct should estop the defendant”. Renackowsky v Board of Water Commissioners of Detroit, 122 Mich 613, 616; 81 NW 581 (1900).
Yarger v City of Hastings, 375 Mich 413, 418-419; 134 NW2d 726 (1965), provides more specific guidance as to what factors constitute estoppel. The Yarger Court indicates the following actions by the defendant are relevant to establishing an estoppel theory: concealment of the cause of action, misrepresentation as to the statutory time in which the action might be brought, and inducement not to bring the action. In addition, Di-Giovanni v Yacenick, 9 Mich App 590, 596; 157 NW2d 785 (1968), points out that, as in Yarger, supra, the promise to pay or settle the claim, special knowledge on the part of the defendant, and a fiduciary relationship are also factors to consider.
Assuming for purposes of this motion that the plaintiffs’ allegations are true, the pleadings fail to establish a basis for equitable estoppel that would bar the defense of the statute of limitations. In the present case, the plaintiffs alleged that the defendants had promised to fairly compensate them for their injuries and that after the surgery the defendant insurance company would further evaluate the case so as to arrive at a full and equitable settlement. This general promise to fairly compensate fails to explain two years of inaction. The plaintiffs have not shown, even in general terms, how the statements of the defendant insurance company induced them not to bring a lawsuit. Over two years passed after the surgery in which no action occurred by either party. Yet, the plaintiffs were in the best position to know the state of their injuries. Further, no fiduciary relationship existed in the present case. The facts do not indicate any action on the part of the defendants to hinder the plaintiffs in bringing their cause of action. Rather, the facts indicate the plaintiffs did nothing affirmative to enforce their claims. Without more, these allegations are insufficient to show the defendant insurance company or its agents induced the plaintiffs to refrain from bringing a legal action. Upon consideration of the factors indicated by the case law, supra, the plaintiffs must be deemed to have sat on their rights while the statutory time in which they could have brought their action ran out.
Accordingly, the trial court correctly granted the defendants’ motion for accelerated judgment for the reason that the claim was barred by the statute of limitations. GCR 1963, 116.1(5).
Affirmed. Costs to the defendants. | [
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Bronson, P. J.
Plaintiff, Leslie Wilson, brought suit against defendant Jerry Yono for malicious prosecution. Wilson had been acquitted of uttering and publishing a forged instrument, contrary to MCLA 750.249; MSA 28.446, and defendant had been the complaining witness in that prior case. Plaintiff alleged in his complaint that defendant had caused the prosecution to be instituted without probable cause to believe plaintiff had committed that crime. At the close of the proofs, the trial judge granted defendant’s motion for a directed verdict, and plaintiff appeals by right.
The tort cause of action for malicious prosecution was developed as a means to resolve the inherent conflict between an individual’s interest in avoiding unjustifiable and oppressive litigation of criminal charges and society’s interest in effective law enforcement through full reporting of suspected criminal activity. The elements of this cause of action are (1) a criminal proceeding instituted or continued by the defendant against the plaintiff, (2) termination of the proceeding in favor of the accused, (3) absence of probable cause for the proceeding, and (4) "malice” or a primary purpose other than that of bringing the offender to justice. Prosser, Torts (4th ed), § 119, p 835; Weiden v Weiden, 246 Mich 347, 352; 224 NW 345 (1929).
It is clear that defendant cannot be held responsible unless he has taken some active part in instigating or encouraging the prosecution. Therefore, the following rule was developed to handle one frequently occurring set of circumstances:
"If the prosecuting witness has in good faith fully and fairly stated all the material facts within his knowledge to his own attorney or the prosecuting attorney and acted upon his or their advice, proof of the fact establishes a case of probable cause.” Swaney v John Schlaff Creamery Co, 212 Mich 567, 569-570; 180 NW 599 (1920).
That rule has been consistently applied in a long line of Michigan cases. See, Christy v Rice, 152 Mich 563; 116 NW 200 (1908), Clanan v Nushzno, 261 Mich 423; 246 NW 168 (1933), DeVitis v Newcomb-Endicott Co, 264 Mich 1; 249 NW 487 (1933), Baker v Barach, 297 Mich 219; 297 NW 472 (1941), Drobczyk v Great Lakes Steel Corp, 367 Mich 318; 116 NW2d 736 (1962), Tomita v Tucker, 18 Mich App 559; 171 NW2d 564 (1969), Belt v Ritter, 18 Mich App 495; 171 NW2d 581 (1969), aff’d, 385 Mich 402; 189 NW2d 221 (1971), Taft v J L Hudson Co, 37 Mich App 692; 195 NW2d 296 (1972). Although the cases seem to talk in terms of probable cause, it is clear that the rule is based upon the idea that defendant has not in fact instituted the prosecution. Cf., Prosser, Torts (4th ed), § 119, p 836; Renda v International Union, UAW, 366 Mich 58, 84; 114 NW2d 343 (1962).
To come within the scope of the above rule, the complaining witness does not have to go directly to the prosecutor. Several cases have held that the defendant was not liable, as a matter of law, where he went to the police, the police made an independent investigation, and the prosecutor instituted charges upon the recommendation of the police department. See, for example, Gooch v Wachowiak, 352 Mich 347; 89 NW2d 496 (1958), Sottile v DeNike, 20 Mich App 468; 174 NW2d 148 (1969). Such was the situation here, and the trial judge properly ruled as a matter of law that defendant could not be held liable.
The facts as to defendant’s actions with respect to the police department and the prosecutor’s office are undisputed. Plaintiff cashed a check at defendant’s store in February, 1970. That check was drawn on the account of Central Identification Detective Agency [CID] and contained the forged signature of Wilius Harris, the owner of CID. When the check was returned for insufficient funds, defendant called Mr. Harris and was told that the check was stolen. Defendant contacted plaintiff at least once, but the substance of their conversation was in dispute. Plaintiff claimed that he referred defendant to Harris, while defendant claimed that plaintiff assured him that he would make the check good.
Defendant finally went to the police. He testified at trial that he informed them about a "bad” check he had received, never characterizing it as a "stolen” check. Further, he testified that he did not specify any individual as the wrongdoer. Several police witnesses stated that the police department made an independent investigation. Mr. Harris was contacted, and he stated that the check was stolen and forged and that he had never issued a check to plaintiff. When initially contacted by the police, plaintiff told them that the check was a paycheck from Mr. Harris. After that investigation, the police requested the prosecuting attorney to issue a warrant for plaintiff’s arrest. They also requested defendant to come down and swear out a complaint before a magistrate, which he did.
It is clear that the trial judge acted properly in dismissing the case for defendant did not instigate the prosecution here. There was a full disclosure by the defendant of all material facts within his knowledge. A warrant was then issued upon the recommendation of the police, and defendant merely acquiesced in signing the complaint. As the Court concluded in Christy v Rice, supra, p 566:
"It must be assumed that defendant, in swearing to this affidavit, if he himself believed the truth of the statements, was acting under the direction of the prosecutor, and had the right to assume that the prosecutor was instituting the suit on behalf of the public.”
The trial judge properly granted defendant’s motion for a directed verdict.
We do not want to be understood as saying that plaintiff lacked probable cause to actually instigate a prosecution against defendant. There is probable cause to do so when:
"[T]he information possessed is believed and is such and from such sources that the generality of business men [sic] of ordinary 'care, prudence and discretion’ would prosecute upon it under the same conditions * * * Hamilton v Smith, 39 Mich 222, 226 (1878).
Where there is no dispute as to the facts available to the defendant upon which he relied when he signed the complaint, the existence or want of probable cause on his part is a matter of law to be determined by the court, Clanan v Nushzno, supra, Baker v Barach, supra, Sottile v DeNike, supra, LaLone v Rashid, 34 Mich App 193; 191 NW2d 98 (1971).
The trial judge would also have been correct if he had held that defendant Yono had probable cause to actively instigate a prosecution against plaintiff. The following facts were undisputed: that the plaintiff passed a check payable to himself, drawn on Central Identification Detective Agency, to defendant; that defendant cashed the check and paid to plaintiff $72.12 in cash and merchandise; that the owner of Central told plaintiff that the check was stolen and forged; that plaintiff offered no explanation to defendant as to how he gained possession of the forged check; and that the police recommended prosecution of plaintiff after an investigation. A prudent businessman would be certain to prosecute under those circumstances.
Plaintiff raised two other issues on appeal, but they do not merit discussion.
Affirmed, costs of this appeal to defendant. | [
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V. J. Brennan, P. J.
Rose Kasuba was admitted to a state-hospital as mentally incompetent by an order dated February 12, 1952. Her husband, Joseph Kasuba, was appointed guardian and was ordered to reimburse the state and county for her care. On February 19, 1952, an order for support was entered reducing the amount of his liability to 10 percent. Mrs. Kasuba was released from the hospital in April of 1957, but was readmitted by order dated June 30, 1960.
Joseph Kasuba died on September 23, 1965, and Rose Kasuba became sole owner of property valued at $17,650 at that time. Dolores Rickie, a daughter of Rose Kasuba, was appointed guardian in 1968. On June 29, 1971, Dolores filed a petition to sell real estate, and an order for a hearing on claims was entered on October 6, 1971. The Department of Revenue filed a state’s claim for reimbursement for care and maintenance for Mrs. Kasuba totaling $40,423.75. Notice of contest was filed by the guardian and the hearing was set for November 11, 1971. This hearing was subsequently adjourned to December 1, 1971. Plaintiff and defendant appeared on December 1, the hearing was held and the probate judge signed and filed an order allowing the claim of the state. Copies of the order were not mailed to the parties, however, until June 20, 1972. On July 3, 1972, the Attorney General filed a petition for order to show cause why the guardian should not be removed for failure to sell property and pay the claim. The Attorney General filed a petition on August 9, 1972, for reimbursement for the care and maintenance of Rose Kasuba against Mrs. Kasuba’s children, in accordance with MCLA 330.21; MSA 14.811. On October 12, 1972, the guardian filed a petition for rehearing on the state’s claim.
A hearing on these three petitions was held on October 19, 1972, in Presque Isle Probate Court. The probate judge dismissed both petitions of the Attorney General and granted the guardian’s petition for a rehearing on the state’s claim. Thereafter, the Attorney General took an appeal to the Presque Isle Circuit Court. On April 11, 1974, the circuit judge issued an order denying the state’s appeal and remanding the cause back to the Presque Isle Probate Court for further hearings. Appli cation for leave to appeal was made to this Court and was granted on June 20, 1974.
The appellant raises four issues on appeal, but since we find the first issue dispositive we need not discuss the other three.
Plaintiff argues that MCLA 701.19; MSA 27.3178(19) requires the probate court to entertain petitions for rehearing within three months of the original hearing or the making of any order related thereto. Plaintiff contends that regardless of whether one counts from December 1, 1971, the date on which the order was filed, or June 20, 1972, the date on which copies of the orders were mailed to the parties, more than 90 days had elapsed, with the result that the probate court lost jurisdiction to grant relief. We agree.
The jurisdiction, powers and duties of the probate court are prescribed by statute. Const 1963, Art 6, § 15; MCLA 701.1 et seq.; MSA 27.3178(1) et seq. The power of a probate court, therefore, may not exceed that which is conferred by statute. In re Milner’s Estate, 324 Mich 269; 36 NW2d 914 (1949), In re Dowling’s Estate, 308 Mich 129; 13 NW2d 233 (1944), In re Thorne, 307 Mich 659; 12 NW2d 445 (1943), In the Matter of Hertler, 16 Mich App 256; 167 NW2d 817 (1969).
Section 19 of the probate code, MCLA 701.19; MSA 27. 3178(19) provides that the probate judge shall
" * * * have and exercise all such other powers and jurisdictions as are or may be conferred by law;
"To that end he may, upon the filing in said court of a petition therein, within 3 months of the original hearing, or of the rendering or making of any order, sentence or decree, as the case may be, and after due notice to all parties interested, grant rehearings, and may modify and set aside orders, sentences and decrees rendered in such court. * * * [T]he court shall make and enter an order with respect to the original hearing or rehearing of contested matters within 3 months after the termination of such hearing or rehearing.”
The three-month period specified in the statute has been held to be mandatory and not directive. Smolenski v Kent Probate Judge, 301 Mich 8; 2 NW2d 900 (1942), In the Matter of Reedy, 20 Mich App 268; 174 NW2d 12 (1969). It is true that the probate court has discretion in the granting of rehearings, In re Izzo, 358 Mich 101; 99 NW2d 625 (1959), but such discretion may not extend beyond the limited three-month period. In re Dowling’s Estate, supra.
Defendant contends that there was no full and adequate hearing on the claim on December 1, 1971. Even if we assume this to be true, we can find no deprivation of due process. Due process requires only that a person be entitled to his day in court, to due notice of the proceeding and a reasonable opportunity to appear and defend. See Ridenour v County of Bay, 366 Mich 225; 114 NW2d 172 (1962), and cases cited therein, In re Lakehead Pipe Line Co, Inc, 36 Mich App 544; 194 NW2d 94 (1971). Defendant had the opportunity fully to contest the claim on December 1, 1971. If she failed to take advantage of her opportunity, she is barred from relitigating the merits of the action.
Defendant also contends that the time limitation should only be held applicable to estates of decedents, and not to estates of living persons. By its terms, the statutory time limit is not limited to claims against estates of decedents, and we are unable to find any authority in Michigan law for making such a distinction in the orders of a probate court. We are constrained to hold, therefore, that the statute applies to orders entered by a probate court regarding estates of mental incompetents.
While Michigan law compels us to hold for the plaintiff in this matter, we do so with reluctance because we feel that the state should bear the burden of maintaining mental health facilities without requiring reimbursement from the next of kin. A family with a mentally ill member has visited upon them a person whose lack of mental or emotional perception poses an enormous psychic drain on everyone involved. Such families have a heavy enough cross to bear without adding catastrophic financial burdens. The state provides the same services for those who can well afford to pay as it does for those who can afford to pay nothing. In such cases we have little quarrel with the policy of the state. But in cases involving relatively small estates, families are virtually wiped out financially by these costs. We take the liberty of expressing our disapproval of MCLA 330.1800 et seq.; MSA 14.800(800) et seq.
Reversed and remanded. | [
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Per Curiam.
An Oakland County jury found defendant guilty of the charged offense of unarmed robbery, MCLA 750.530; MSA 28.798. He was sentenced to a term in prison of from 10 to 15 years and now appeals as of right.
Before addressing ourselves to the issues it should be noted that the defendant was originally charged with the armed robbery, on September 6, 1971, of a Ferndale party store, MCLA 750.529; MSA 28.797. He was allowed to plead to the reduced charge of unarmed robbery. However, this plea-based conviction was reversed by this Court due to the apparent absence of a factual basis for the plea. People v Palombo (Docket No. 17018, decided March 21, 1974 [unreported]).
In accordance with the ruling in People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), the defendant was then charged with unarmed robbery and a jury found him guilty of that offense.
The defendant first argues that he was denied effective assistance of counsel due to the failure of his counsel, at a post-arrest police lineup, to make a written record of the events occurring at the lineup. This contention is hinged upon certain language in People v Young, 21 Mich App 684, 693; 176 NW2d 420 (1970), to the effect that "if counsel is present [at a lineup] it is clearly his duty to observe and note the events and to learn, if possible, the identity of those present.” (Emphasis added.)
We cannot accept the defendant’s interpretation of this dicta from Young. Effective assistance of lineup counsel was not at issue in that case, and we are certain that the Young panel did not intend to create a duty on the part of lineup counsel to actually transcribe the events occurring at a lineup. The function of an attorney in such situations is not that of a stenographer. Rather, as this Court has once stated, "The purpose of requiring the presence of counsel at pretrial identifications is to insure that such identification procedures proceed in a manner which comports with minimal standards of due process.” People v Dates, 52 Mich App 544, 547; 218 NW2d 100 (1974).
Defendant next raises a novel question precipitated in part by the McMiller rule. During his trial on the charge of unarmed robbery the prosecution unquestionably proved that the defendant was armed with a pistol at the time of the commission of the offense. Therefore he argues that the trial judge erred in refusing to direct a verdict of acquittal on the charge of unarmed robbery and by instructing the jury that evidence showing that defendant was armed would not preclude a guilty verdict.
The Supreme Court, by adopting the McMiller rule, sought to preserve the integrity of the plea-taking process by assuring appellate review of plea-based convictions unfettered by the threat or possibility that retrial on the principal offense might occur. The Court clearly understood the immediate results of such a rule:
"We recognize that a prosecutor’s willingness to allow an accused person to plead to a lesser offense is generally predicated on the assumption that the accused will, upon acceptance of a plea of guilty, stand convicted and will be sentenced for the lesser offense. We also recognize that the rule we adopt means that a successful appeal from a plea-based conviction for a lesser offense defeats that legitimate expectation, deprives the prosecutor of leverage he otherwise would have in further plea bargaining upon reprosecution, may well, therefore, burden the prosecutor with the need to prove his case at a trial and at the same time limits the people to a conviction less than the proofs may justify.” People v McMiller, supra, at 432-433. (Emphasis added.)
The instant case poignantly illustrates these considerations. And what is clear from the McMiller decision is that the Supreme Court did not intend to restrict the people from proving the entire criminal transaction at the retrial, but only to limit the penalty imposed upon an accused who has elected to appeal a plea-based conviction.
The defendant argues, and understandably so, that the fact of "not being armed with a dangerous weapon”, in the words of the applicable statute, is an element of the offense charged and since the prosecutor failed to prove this element his conviction must be reversed. Such a position is the progeny of a very narrow definition of the term lesser included offenses and a mistaken notion of the rule that that concept plays in a criminal jury trial. For, independent of and notwithstanding a judge’s duty to instruct a jury on lesser included offenses, is the very basic phenomenon that our system permits a jury to convict an accused of a less serious offense than that charged in the information regardless of the fact that the evidence at trial proved the greater offense. Cf. People v Blanchard, 136 Mich 146, 148; 98 NW 983 (1904).
We accordingly affirm the defendant’s conviction.
The trial court instructed the jury:
"Now, concerning this matter of the dangerous weapon. There has been some testimony concerning the presence and use of a dangerous weapon.
"You have also heard my instructions setting forth the elements of unarmed robbery. One of those elements of unarmed robbery, as mentioned previously, was that the defendant was not armed with a dangerous weapon.
"This may cause you some confusion; therefore, I instruct you that you may find the defendant, Richard Palombo, guilty of unarmed robbery, providing all of the elements are proved beyond a reasonable doubt, even though the testimony shows that a dangerous weapon was, in fact, used.
"The testimony, if believed, concerning the hand gun, may be considered in deciding whether the defendant placed the victim in fear.
“However, the presence and use of the hand gun does not prevent you from returning a verdict of guilty of unarmed robbery, if all of the other elements have been proven beyond a reasonable doubt.”
See Koenig, The Many-Headed Hydra of Lesser Included Offenses, 1975 Detroit Col L Rev 41, 48-52, where the author criticizes the "strict statutory” definition of lesser included offenses. | [
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] |
R. B. Burns, J.
Van Ray Johnson was convicted in November, 1972, of larceny in a building. MCLA 750.360; MSA 28.592. He appealed, and the Court of Appeals reversed. Defendant Johnson was retried in June, 1974, and convicted by a jury. We affirm.
The offense involved defendant’s removal of a stereo unit from Bursma Radio Supply in Kalamazoo, Michigan. A statement allegedly made by defendant after his arrest to an Officer Dolfman was held admissible, as voluntary, at a Walker hearing. Essentially, this statement expresses defendant’s contention that he thought that the subject stereo had just been bought by a friend, Leo Durden, who was in the store and who requested defendant’s assistance in carrying his purchases to his car. As testified to at trial by Officer Dolfman:
"Mr. Johnson told me he was at the store and he took a stereo or tuner out for a friend of his who told him to remove it, put it in the car as his friend had bought it, and he started to take it out of the store and somebody yelled at him, he got scared and then he started running.”
In the testimony of Leo Durden:
"I didn’t point exactly, didn’t tell him, just made a gesture, and he picked up the wrong thing, and I heard somebody say, 'Hey, hey,’ and I turned around and looked and Mr. Johnson came running out of the store and I hollered, 'Say, man, what’s happening?’ And I seen he had picked up the wrong thing.”
Defendant did not testify in his own behalf. The jury apparently rejected the theory that defend ant’s removal of the stereo was inadvertent. His appeal contains six allegations of procedural error.
Defendant renews on appeal his contention that the trial court committed reversible error by not suppressing at the Walker hearing defendant’s alleged statement to Officer Dolfman. The proper standard for our review is clearly stated in People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677, 679 (1974):
"As this Court stated in People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972), 'the sole purpose of the Walker hearing is to determine the fact of voluntariness and a reviewing court is concerned only with the correctness of that determination. * * * "On this appeal we are required to 'examine the whole record and make an independent determination of the ultimate issue of voluntariness.’ ” ’
"If after such a review we do not possess a definite and firm conviction that a mistake was committed by the trial judge in his ruling, we will affirm that ruling. People v Hummel, 19 Mich App 266; 172 NW2d 550 (1969).”
We cannot entertain such a "definite and firm conviction” in this instance. We note defendant’s statement at the Walker hearing that "we just started rapping”, and concur with the trial judge’s observation that the exculpatory nature of the statement lends credence to its voluntariness. The decision not to suppress is not reversible error.
Defendant further alleges a denial of due process and of a fair trial by the prosecutor’s failure to endorse and produce certain res gestae witnesses. The allegation gains a certain viability by some seemingly imprecise police work in this case.
Among the initial investigating officers on the scene after defendant’s arrest were an Officer Glover and an Officer Cantu. Officer Glover made notations as to the identities of all of those who professed their presence in Bursma Radio Supply during the incident. Officer Glover then informed an Officer Brigman of these identities, and the latter officer continued the investigation. Officer Glover subsequently threw his notes away. The follow-up investigation of the case was conducted by Officer Dolfman, who apparently communicated with neither Officer Glover nor Officer Brigman.
These facts were revealed at an evidentiary hearing undertaken during the course of trial initiated by defendant’s motion to dismiss for failure to endorse. Prior testimony had revealed significant confusion as to the possible presence of unendorsed customers in the store at the time of the incident. Employee Trover testified as to his recollection that there was a couple standing at the counter, and that there was a lone black man in the vicinity of defendant. Officer Brigman could not remember talking to any customers. Employee Murray testified at one point that there were "one or two” customers at the counter, but later qualified this testimony in stating that "I vaguely remember about two people in the store before I was attracted by the shout”. At the end of this evidentiary hearing the trial judge exercised his discretionary authority to permit the late endorsement of witnesses, People v Blue, 255 Mich 675; 239 NW 361 (1931), People v Hodges, 34 Mich App 90; 190 NW2d 703 (1971), and Officers Glover and Cantu and Leo Durden (the other man observed by Mr. Trover) were endorsed.
It is settled that the prosecutor must endorse and produce all known res gestae witnesses. MCLA 767.40; MSA 28.980, People v Harrison, 44 Mich App 578; 205 NW2d 900 (1973). In denying the motion to dismiss, the trial court concluded in its discretion that the prosecution’s endorsement activities did not involve either gross negligence or voluntary suppression, and thus did not require dismissal. We will only reverse when this determination classifies as an abuse of the trial court’s discretion, "with the burden ordinarily on the party asserting the abuse”. People v Lakin, 30 Mich App 441, 444; 186 NW2d 867, 868 (1971).
Recalling that the primary purpose of the endorsement statute is to protect against selective investigation, People v Raider, 256 Mich 131; 239 NW 387 (1931), we cannot hold that this regrettably confused investigation is sufficiently infirm as to require our reversal of the trial judge’s determination. We further note the judge’s cautionary instruction to the jury that if the prosecutor was shown not to have produced all eyewitnesses, the jury could infer that their testimony would have been unfavorable to the prosecution. We affirm as to the issue of endorsement.
We have thoroughly reviewed defendant’s four other assignments of error and find them to be without merit. The decision is affirmed.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). | [
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] |
Per Curiam.
Plaintiff, William L. Bennett, brought this action in the Court of Claims against defendant, the Attorney General of the State of Michigan, for defamation, abuse of process, and malicious prosecution. Defendant did not file an answer to plaintiff’s complaint, presumably because service of process was not effected in a manner which conformed to the requirements of MCLA 600.6410(3); MSA 27A.6410(3). On March 26, 1974, plaintiff filed a default of the defendant. Two days later, on March 28, 1974, a motion to strike the entry of default was filed by the Attorney General. Before a hearing was held on this motion, defendant filed a motion for accelerated judgment under GCR 1963, 116.1(1) and (2) and Court of Claims rule 4 or, in the alternative, for summary judgment under GCR 1963, 117.2(1). Plaintiff thereupon filed a motion for entry of a default judgment and an answer to the motion to dismiss arguing that the motion to dismiss was premature because the default had not been set aside, and the defendant had not specified a meritorious defense in the motion to strike the default, that actual service had been made and that, even if service was effected improperly, it was good under GCR 1963, 105.8. After hearings were held on the above motions, the trial judge set aside the default for lack of personal service and granted summary judgment in favor of defendant under GCR 1963, 117.2(1) for failure to state a claim upon which relief could be granted. It is from this decision that plaintiff now appeals.
Plaintiff first claims that the trial judge erred in setting aside the default. We disagree. The setting aside of a default is discretionary with the trial judge, upon good cause shown. GCR 1963, 520.4. In the case at bar defendant was not properly served. While it may be true that this was done through no fault of plaintiff’s, who was representing himself and relied upon the advice given him by an employee of the Court of Claims, it is clear that this should not serve to the detriment of either plaintiff or defendant. The trial judge, by setting aside the entry of default and considering defendant’s motion for accelerated or summary judgment, placed the parties in exactly the same position they would have been in had service been properly effected. There was no abuse of discretion.
Plaintiff next contends that the trial judge erred in granting defendant’s motion for summary judgment. The trial judge granted defendant’s motion in this regard because he found that plaintiff had failed to state a claim upon which relief could be granted. GCR 1963, 117.2(1). Since GCR 1963, 117.2(1) tests the legal sufficiency of the pleadings, we must assume that all the allegations of plaintiff are true in deciding whether plaintiff states a claim upon which relief can be granted.
Plaintiff relies on Maki v City of East Tawas, 385 Mich 151; 188 NW2d 593 (1971), for the proposition that governmental immunity established by MCLA 691.1407; MSA 3.996(107) is invalid, and that consequently the Attorney General is not immune. Plaintiff apparently assumes that immu nity is created by statute, and that when such a statute is held to be invalid, no immunity can be said to exist. The law is too well settled to require discussion, however, that the sovereign immunity of the state will obtain unless there is an express statutory waiver thereof. Van Antwerp v State, 334 Mich 593; 55 NW2d 108 (1952), McNair v State, 305 Mich 181; 9 NW2d 52 (1943), Mead v State, 303 Mich 168; 5 NW2d 740 (1942). The statute in question, MCLA 691.1407; MSA 3.996(107), sought merely to codify the common law, and by its terms disclaimed any construction which would modify or restrict the immunity of the state from tort liability as it had existed theretofore. See MacGriff v Van Antwerp, 327 Mich 200; 41 NW2d 524 (1950), Mundy v McDonald, 216 Mich 444; 185 NW 877 (1921).
Plaintiff alleges that he was defamed by defendant. In response to this allegation the Attorney General may invoke governmental immunity as discussed supra, and, in addition thereto, he may invoke judicial privilege, either of which would constitute an absolute defense. The absolute judicial privilege attaches to pleadings filed in any lawsuit, if relevant to the issues of the case. Sanders v Leeson Air Conditioning Corp, 362 Mich 692; 108 NW2d 761 (1961). As long as a communication is within the scope of an absolute privilege, falsity or malice will not defeat it. See Harrison v Arrow Metal Products Corp, 20 Mich App 590, 610; 174 NW2d 875, 884-885 (1969), and cases cited therein.
Affirmed. No costs.
Maki held that MCLA 691.1407; MSA 3.996(107) was invalid as exceeding the scope of its title. This infirmity was cured by 1970 PA 155, § 1, Imd Eff Aug 1. Since plaintiffs action arose after Aug 1, 1970, statutory immunity, as well as common law immunity, would apply. For purposes of this appeal, however, we choose not to rely on statutory immunity. | [
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J. H. Gillis, J.
In April and July of 1968, Consumers Power Company (hereinafter referred to as Consumers) petitioned the Michigan Public Service Commission (hereinafter referred to as MPSC) for an increase in its gas and electricity rates. Extensive public hearings were held on the matter, beginning in November 1968 and concluding in June 1969. On September 23, 1969, the MPSC granted Consumers a rate increase, though not in the amount requested. The MPSC order contained the following clause:
" * * * that in the event the Federal Income Tax Surcharge expires or is reduced, Consumers Power Company shall promptly file rate schedules reducing its rates by the amount of the tax reduction. Such reduced rates shall be effective within 30 days of the effective date of the tax deduction.”
The Federal Income Tax Surcharge, to which the MPSC order referred, was first enacted as part of the Revenue and Expenditure Act of 1968. By the terms of the act, the 10 percent surcharge was to expire on June 30, 1969. At the time that the evidentiary record was closed on Consumers’ applications for rate increases, the Federal Income Tax Surcharge was scheduled to expire approximately one week later.
Following the close of the evidentiary record before the Commission, but prior to the Commission’s order, Congress, on August 9, 1969, reenacted the surcharge retroactive to July 1, 1969, for a 6-month period, the tax to expire on December 31, 1969. On December 30, 1969, the surcharge was reenacted at one-half the previous rate (5 percent), effective January 1, 1970 and expiring June 30, 1970. No further action was taken by Congress, and the income tax surcharge, at the 5 percent rate, did in fact expire by its own terms on June 30, 1970.
Soon after the MPSC ruling, Consumers filed its statutory appeal in the Ingham County Circuit Court. In its complaint, Consumers alleged that the MPSC order was "unreasonable, unlawful, confiscatory, noncompensatory, discriminatory and contrary to the great weight of the evidence”. Consumers also contended that the portion of the order dealing with the tax surcharge was unlawful because while it mandated automatic reduction of rates if the tax was repealed, it did not allow Consumers the opportunity to show that other expenses had unexpectedly risen between the time the order was issued and the tax was repealed.
On February 3, 1970, Consumers obtained a preliminary injunction from the Ingham County Circuit Court. The injunction allowed Consumers to ignore that portion of the MPSC order dealing with the tax surcharge and related rate reduction.
It was not until three years later that Consumers moved to supplement its original complaint. In March, 1973, they sought partial summary judgment on the issue of the validity of the tax surcharge clause. The MPSC counterclaimed, seeking a partial summary judgment declaring the provision valid. In March of 1974, the trial judge dissolved the temporary injunction and granted partial summary judgment to the MPSC, declaring the tax surcharge provision valid in all respects. It is that partial summary judgment which the parties appeal.
It is important to first note that this appeal is one of very limited scope. The bulk of the case remains in the Ingham County Circuit Court. We are to decide only whether the MPSC may properly set a rate with a built-in automatic reduction to take place on the occurrence of an expected event — a reduction of a Federal tax.
We start with the basic premise that all rates set by the MPSC are, "prima facie, lawful and reasonable”. MCLA 462.25; MSA 22.44. In the instant case the contested clause appears imminently reasonable to us. The MPSC was well aware that the tax surcharge was due to expire shortly, and did not wish Consumers to be able to employ a rate based on the 10 percent surcharge after that surcharge had expired. On the other hand, MPSC was aware that if they completely ignored the surcharge in setting the rate, Consum ers would be unfairly damaged because they then could never recover the money lost. The MPSC solution was to take a middle ground that avoided hardship to both Consumers and their paying customers.
Prior Michigan cases establish the principle that a regulating body may look to the near future to ascertain factors which will aid in establishing a just rate:
"To meet this test and provide rates that are 'just and reasonable’ the commission should consider not only all reasonable costs of doing business * * * but should also consider these factors as they will influence yields for a reasonable time in the future. (Citation omitted.)
" * * * When failure to provide adequate rates in the past cannot be remedied by retroactive orders, it follows that every reasonable effort should be made by the commission to eliminate unnecessary delay and to pass judgment on facts that will not only reflect upon the present but a reasonable period in the future.” General Telephone Co v Public Service Commission, 341 Mich 620, 631-632; 67 NW2d 882, 887 (1954).
We think that Consumers has failed to prove that the MPSC order concerning the tax surcharge was unreasonable.
Consumers’ claim that the MPSC failed to consider any other future events in setting the rate is not supported by the record. Finally, the other issues raised by Consumers on appeal are matters which concern that portion of the case still in Ingham County Circuit Court.
The partial summary judgment is affirmed in toto. No costs, a public question being involved.
Michigan law forbids the use of retroactive rates to recover past nonrecurring expenses. Michigan Bell Telephone Co v Public Service Commission, 315 Mich 533; 24 NW2d 200 (1946). | [
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] |
Quinn, P. J.
Plaintiff appeals from a partial summary judgment which dismissed defendants Gladys R. Lee, trustee, Faith Missionary Church and Citizens Commercial and Savings Bank, and from the trial court holding that plaintiff’s mortgage from Thomas P. Lee and Jacqueline A. Lee, individually and as representatives of Lee Homes, Inc. was null and void.
Walter H. Lee was the husband of Gladys and the father of Thomas whose wife is Jacqueline. By will, Walter left his estate in trust for the benefit of Gladys during her lifetime. Defendant bank was named the trustee and was directed to pay the net income from the trust assets to Gladys monthly. The trustee was empowered to invade the corpus if, in its discretion, that was necessary to provide support or medical care for Gladys. The trustee was authorized to "sell, lease, develop, subdivide or mortgage any item of property in my estate without order from any probate court * * * ”.
At the completion of the probate of the will, the only remaining asset of the estate of value was 40 acres of land. The defendant bank petitioned to withdraw as trustee and this petition was granted. September 12, 1967, Gladys was appointed trustee.
The language of the trust pertinent to the issues on appeal is
"(a) To take, receive, and receipt for such residue; to invest whatever funds may be available in real estate, stocks, bonds, land contracts, mortgages or other invest ments, and to retain such investments without liability therefor as I own at my death. It is my intention hereby not to limit my trustee to those investments eligible under Michigan law for trustees; to manage my estate, including the payment of all reasonable charges against property in the estate; to sell, lease, develop, subdivide or mortgage any item of property in my estate without order from any probate court, including herein the right to receive proceeds from such hypothecation.
(b) To pay the net income from such trust estate over to my wife, Gladys R. Lee, upon a basis no less often than monthly, for so long as she shall live.
(c) To invade the trust corpus when and if in the sole discretion of the trustee the same is necessary for the purpose of providing support and maintenance or medical care for my wife, Gladys R. Lee.
(d) Upon the death of my said wife, Gladys R. Lee, or in the event she shall predecease me, or should she die pending the administration of my estate, then and in any such event, my executor or trustee, as the case may be, shall pay, if necessary, the expenses of her last illness, and funeral and burial expenses, and distribute the residue of my estate free of the trust herein imposed, to the following named persons: Thomas P. Lee, my son, William B. Lee, my son, Martha E. Zimmer, my daughter, and Virginia G. Burwell, my daughter, share and share alike, the issue of any deceased child to take by right of representation.”
Lee Homes was indebted to plaintiff. To provide security for the debt, on November 21, 1966 Thomas and Jacqueline executed a promissory note to plaintiff and a document which purported to mortgage their interest in the 40 acres held by the Lee trust.
In October 1971, trustee Gladys sold five acres of the 40 acres to Faith Missionary Church which mortgaged the five acres to defendant bank. Asserting the impropriety of these transactions, plaintiff filed this action to foreclose its mortgage. The case was ultimately submitted on briefs for disposition. The trial judge found that the interest of Thomas in the 40 acres was that of a remainderman beneficiary of the trust and that Thomas had no mortgageable interest under MCLA 555.16; MSA 26.66 and Weaver v Van Akin, 71 Mich 69; 38 NW 677 (1888).
We do not read the pertinent language of the trust instrument, cited above, as did the trial court. That language created in Thomas, his brother and two sisters a vested remainder interest in the corpus of the trust subject to defeasance if the entire corpus is needed to support and provide medical care for Gladys. The trust ends on the death of Gladys and the four children take "free of the trust”. See MCLA 555.17; MSA 26.67.
The vested remainder interest may be mortgaged, MCLA 554.35; MSA 26.35:
"Expectant estates are descendible, devisable and alienable, in the same manner as estates in possession.”
Plaintiff’s mortgage from Thomas is valid and may be foreclosed. When foreclosure is complete and plaintiff is vested with the interest of Thomas in the trust estate, plaintiff obtains only the interest of Thomas, namely: a one-quarter vested remainder subject to defeasance. Until that time, plaintiff has no claim other than foreclosure and the trustee, Faith Missionary Church and defendant bank were properly dismissed from this action.
Affirmed in part and reversed in part. Plaintiff may recover costs as to Lee Homes, Inc., Thomas and Jacqueline Lee. Defendants Gladys Lee, trustee, Faith Missionary Church and defendant bank may recover their costs from plaintiff. | [
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] |
D. F. Walsh, J.
I agree with Judge Lesinski that the defendant’s conviction must be reversed on the grounds that the trial court abused its discretion in not allowing an adjournment so that the prosecution could be given the formerly required four-day notice of an insanity defense.
However, I disagree with the conclusion that the procedure followed in the trial court relative to the competency hearing was reversibly erroneous.
It is well settled that a defendant who may be incompetent to stand trial cannot knowingly and intelligently waive his right to have the court determine his competency. It is not improper, however, for a defendant who is represented by counsel to waive the presence of the examining psychiatrist at the competency hearing and to consent to the admission of the report of the forensic center as evidence at the hearing. As I read the record, that is what happened in this case.
The pertinent portion of the waiver signed by the defendant reads as follows:
"I, Willie Edward Walker, being the defendant in the above entitled cause, having been arraigned therein on the charge of (1) RA (2) assault W/I and having been referred to the Forensic Center for psychiatric evaluation and written report having been filed by_ and_finding me competent to stand trial, I do hereby in open court voluntarily waive and relinquish my right to a competency hearing at which testimony is taken. ” (Emphasis supplied.)
In my judgment this is not a waiver of defendant’s right to a competency hearing but a waiver of his right to have the examining psychiatrist appear in court to testify and his right to call his own witnesses to give rebuttal testimony. Supporting this conclusion is the following entry found on the file jacket used in the trial court.
"Dec 1, 1972
Deft waives Doctor’s testimony. Court Finds That Defendant is Able to Stand Trial and So Orders * * * .
"Hon Joseph A Gillis” (Emphasis supplied.)
Based on the foregoing I find no improper waiver of competency hearing in this case. The defendant was represented by counsel. He was given a comprehensive psychiatric evaluation by a psychiatrist at the Center for Forensic Psychiatry at the Ionia State Hospital. A detailed report of the center’s findings was made to the court. The report concluded that the defendant was competent to stand trial. The defendant’s counsel had an opportunity to evaluate the report and apparently decided not to contest the findings and that nothing would be gained by requiring the psychiatrist to appear at the hearing in order to give his testimony in person. Accordingly defendant waived his right to have the doctor appear and his right to call witnesses to give rebuttal testimony. The court thereupon considered the report, which was apparently the only evidence submitted, and determined the defendant to be competent to stand trial.
This hearing satisfies the requirements of the applicable statute. MCLA 767.27a; MSA 28.966(11).
Reversed and remanded.
V. J. Brennan, J., concurred.
Pate v Robinson, 383 US 375; 86 S Ct 836; 15 L Ed 2d 815 (1966), People v Lucas, 47 Mich App 385; 209 NW2d 436 (1973).
The statute makes specific provision that the report of the forensic center shall be admissible in evidence at the competency hearing.
"The certificate and psychiatric report shall be admissible as evidence in the [competency] hearing, but not for any other purpose in the pending criminal proceedings.” MCLA 767.27a(6); MSA 28.966(H)(6). | [
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] |
McGregor, P. J.
Plaintiff appeals as of right from an August 30, 1974, judgment dismissing its declaratory judgment action which had alleged that MCLA 229.1; MSA 9.281 was unconstitutional.
The statute in question basically provides that the person seeking to establish a private road may make an application to the township supervisor who will then give notice to the owner of the land over which the road is proposed to be constructed. Pursuant to such notice, a meeting is held for the purpose of striking a jury which shall determine the necessity for the road. The following sections of the statute deal with formation of the jury, assessment of damages, payment thereof, and the actual construction of the road. The statute has been virtually unchanged since its enactment nearly a hundred years ago.
The sole issue in this case is whether or not the statute in question is constitutional. The trial court held that it was. We disagree.
We find MCLA 229.1 et seq.; MSA 9.281 et seq. to be repugnant to Const 1963, art 10, § 2.
In Shizas v Detroit, 333 Mich 44, 50; 52 NW2d 589 (1952), our Supreme Court expressed its approval of the following quotation from 18 Am Jur, Eminent Domain, § 34, pp 657, 658:
"It is to be noted that few, if any, of the state Constitutions in terms prohibit the taking of property by authority of the state for uses that are not public. The characteristic provision found in the Constitutions of the several states, and in that of the United States as well, is to the effect that property shall not be taken for the public use without just compensation. Nevertheless, while the courts have not been in agreement on the precise meaning of the term 'public use, ’ it has been held, without a single dissenting voice, that the state does not have power to authorize the taking of the property of an individual without his consent for the private use of another, even on the payment of full compensation.”(Emphasis added.)
Finding no "public use” to support the statute before us, we therefore must conclude that the deletion of the constitutional sanction was fatal to its continued validity.
Reversed.
N. J. Kaufman, J., concurred. | [
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J. H. Gillis, J.
On January 11, 1973, defendant was convicted by a jury of first-degree murder. MCLA 750.316; MSA 28.548. He received the mandatory life sentence on January 23, 1973. Defendant appeals by leave granted.
This cause arises out of the murder of John Arthur Williams in the City of Pontiac on September 19, 1972. The victim was found in his home on a couch with his hands and feet tied. His death was caused by a gunshot wound in the chest.
On appeal defendant raises three issues. We will deal with them seriatim.
I.
The first assignment of error concerns the preliminary examination. With regard to the preliminary examination, defendant first argues that the corpus delicti of felony murder was not established at the preliminary examination, and therefore, the circuit court never obtained jurisdiction to try defendant on a felony-murder charge.
The only evidence at the preliminary examina tion regarding the felony element of felony murder was defendant’s extrajudicial statements. Defendant argues that, under People v Allen, 390 Mich 383; 212 NW2d 21 (1973), the felony element of the corpus delicti of felony murder cannot be established by defendant’s extrajudicial statements. We believe that this case can be distinguished from Allen for the reasons set forth infra in part II.
However, it should be noted at this juncture that the defendant has not properly preserved this issue for appeal. A defendant may not on appeal raise errors or irregularities relating to the preliminary examination, unless the issue was timely raised prior to or at trial. People v Sparks, 53 Mich App 452, 454; 220 NW2d 153, 155 (1974), People v Boyd, 49 Mich App 388; 212 NW2d 333 (1973), People v White, 32 Mich App 296; 188 NW2d 236 (1971).
In the case at bar, there was no defense objection at the time defendant was bound over, nor did defendant move to quash the information prior to or at trial. Therefore this matter has not been preserved for appeal.
Secondly, also with regard to the preliminary examination, the defendant argues that binding over the defendant on an "open charge” of murder did not give circuit court jurisdiction to try the defendant for first-degree murder.
The complaint and warrant both charged "open murder” and cited the statutes for both first- and second-degree murder. Defendant was bound over on a charge of "open murder”. In binding defendant over, the district judge stated that he felt the prosecution had established the crime of murder.
Circuit court’s jurisdiction is limited to the offense specified in the return of the examining magistrate. People v Curtis, 389 Mich 698; 209 NW2d 243 (1973). In the case at bar, the return specified "open murder”. Defendant argues that a charge of open murder is a charge of second-degree murder, citing Allen, supra. We do not agree.
MCLA 767.71; MSA 28.1011 provides:
"In all indictments for murder and manslaughter it shall not be necessary to set forth the manner in which nor the means by which the death of the deceased was caused; but it shall be sufficient in any indictment for murder to charge that the defendant did murder the deceased; and it shall be sufficient in manslaughter to charge that the defendant did kill the deceased.”
The defendant in this case was charged with murder in both the warrant and information under the provisions of MCLA 767.44; MSA 28.984, the statutory short form. Both the warrant and information cited MCLA 750.316; MSA 28.548, first-degree murder; MCLA 750.317; MSA 28.549, second-degree murder; and MCLA 750.318; MSA 28.550, manslaughter.
Michigan courts have long recognized the propriety of the open charge of murder. Brownell v People, 38 Mich 732 (1878), Cargen v People, 39 Mich 549 (1878), People v Davis, 343 Mich 348; 72 NW2d 269 (1955). The courts have also held that a person may properly be charged with and convicted of first-degree murder under a theory of premeditation and deliberation, where such a charge has been made in the statutory short form language. People v Collins, 216 Mich 541; 185 NW 850 (1921), People v Brown, 23 Mich App 528; 179 NW2d 58 (1970). The same rule applies when the defendant is convicted of first-degree murder on a felony-murder theory, as is demonstrated in People v Page, 198 Mich 524; 165 NW 755 (1917).
Furthermore, the district judge is not required, on preliminary examination, to determine the degree of murder. People v Strutenski, 39 Mich App 72; 197 NW2d 296 (1972). Therefore we find defendant’s contentions to be without merit.
II.
Defendant next contends that reversible error was committed under Allen, supra, when the prosecution used defendant’s extra-judicial statements to establish the felony element of the corpus delicti of felony murder.
People v Allen, supra, held that the corpus delicti of felony murder may not be established without evidence independent of the accused person’s confession of the essential element that distinguishes first-degree murder from second-degree murder.
In the case at bar, two witnesses testified at trial that on the evening in question they drove over to the victim’s home to buy some heroin from the victim. Upon their arrival they observed defendant and another on the porch of the home. Defendant approached the car and told them he was going to "pull a rip”, Le., a robbery.
Following this, defendant went back to the victim’s house and the witnesses drove down the street. It appeared as if defendant was trying to get into the house. A short time thereafter, gunshots were heard and defendant was observed running with another to a car which then left the scene. They followed the car to another location, where the car stopped and the defendant got out, came back to the witnesses’ car and told them that he "only got a little bit”. The witnesses also observed the defendant wiping what appeared to be blood from his hands.
A police officer testified to finding the deceased. A butcher knife was discovered underneath the deceased’s body and broken pieces of an ashtray and vase were found scattered on the floor two to three feet from his head. A search of the home revealed no other signs of a struggle or ransacking. Although the deceased was a narcotics dealer, a search uncovered no narcotics whatsoever. However, the tools of the trade for cutting and packaging were present. Money was found in one of deceased’s pockets.
It is clear from reviewing the testimony that defendant’s admissions were necessary to make out the felony element of the corpus delicti of felony murder. The corpus delicti may, of course, be established by circumstantial evidence and reasonable inferences. People v Allen, supra, adopting People v Allen, 39 Mich App 483, 494; 197 NW2d 874, 880 (1972). Here, however, the circumstantial evidence alone was not sufficient to show a robbery.
It has been stated that it is the settled rule that the corpus delicti cannot be established by the extrajudicial admission or confession of the accused. People v Barron, 381 Mich 421, 424; 163 NW2d 219, 220 (1968). However, certain exceptions to that rule have been carved out for some admissions which are not confessions.
In People v Randall, 42 Mich App 187, 190-191; 201 NW2d 292, 294-295 (1972), Judge Danhof summarized this area of the law:
"There are several types of statements which while classified as admissions are nonetheless admissible to establish the corpus delicti. A statement which itself is an element of the offense may be admitted. People v Lay, 336 Mich 77; 57 NW2d 453 (1953). Excited utterances are admissible. A statement of a presently existing state of mind made shortly before the crime is committed is admissible to prove the crime. People v Potter, 5 Mich 1 (1858). In general, admissions made before the crime was committed are admissible to prove the corpus delicti. Warszower v United States, 312 US 342; 61 S Ct 603; 85 L Ed 876 (1941). A statement made roughly contemporaneously with the crime even if shortly after may be admitted to prove the corpus delicti. People v Quimby, 134 Mich 625; 96 NW 1061 (1903).
"When a defendant’s statement is not simply an admission, but also falls within another exception to the hearsay rule, which gives an additional indication of truth, the statement is admissible to prove the corpus delicti. Older cases allowed these statements as part of the res gestae. People v McGarry, 136 Mich 316; 99 NW 147 (1904), People v Potter, supra, People v Quimby, supra. Today we would analyze them under the more specific analysis advocated by Professor Wigmore. See People v Jones, 38 Mich App 512, 515-516; 196 NW2d 817, 818 (1972), where we said:
" 'The term "res gestae” has been used to justify the admission of testimony which would otherwise be inadmissible as hearsay. Examples of the types of statements which have been called res gestae are (1) declarations of present bodily condition, (2) declarations of present mental states and emotions, (3) excited utterances, and (4) declarations of present sense impressions. The term "res gestae” has also been used to describe statements that are not hearsay and this fact illustrates the indiscriminate coverage of the term.’ ”
Judge Danhof also explained in Randall, supra, what the policy reasons are for these exceptions to the general rule:
"The policy of the rule requiring proof of the corpus delicti by proof other than a confession is not offended by admitting statements which fall within two exceptions to the hearsay rule. This is sufficient indication of the truth to overcome any reluctance to convict on the basis of a confession. A rule that was created for the salutary purpose of doing justice should not be construed in a manner that makes it merely an escape hatch for the guilty.” 42 Mich App at 192; 201 NW2d at 295.
In People v Meyer, 46 Mich App 357, 364; 208 NW2d 230, 233-234 (1973), the Court followed Randall, supra, and held that an admission which was a spontaneous utterance was admissible to prove the corpus delicti of manslaughter.
The fiirst extrajudicial admission in this case clearly falls within one of the categories outlined in Randáll, supra. Defendant’s statement that he was going to "pull a rip” is a declaration of present mental state as set forth in Jones, supra, and Randall, supra.
Defendant’s second statement, to-wit, that he "only got a little bit”, does not fit so easily into the subcategories of res gestae statements set forth in Randall. However, it is clearly a "res gestae” statement under People v Quimby, supra.
We do not feel that the admission of these two statements violate either the letter or the spirit of People v Allen. Allen, it should be recalled, dealt with a confession, not an admission. Furthermore, each admission falls into two exceptions to the hearsay rule and, as discussed in Randall, this fact adds to their reliability.
Defendant’s contention that this case comes within the purview of Allen is erroneous.
III.
Defendant next assigns as error the admission into evidence of defendant’s blood-stained clothing.
On the evening of the murder, the defendant came to Sharon Robinson’s house. His clothes had bloodstains on them and his hand was bloodied. He changed clothes and left the blood-stained clothes at the Robinson home. Defendant had stayed at Sharon Robinson’s house on many occasions, had left clothes there on other occasions, and was the father of two of her children.
Two days later, after defendant’s arrest, Sgt. Johnston of the Pontiac Police went to the Robinson home and received from Sharon Robinson the clothes defendant had changed from on the night of the murder.
At a hearing to suppress this evidence, Sharon Robinson testified that Sergeant Johnston told her that defendant had asked him to come and get the clothes. She further testified that she gave Sergeant Johnston the clothes because he said that defendant said he could come and get them. Sergeant Johnston, on the other hand, denied making any such statements.
The trial court found that Sharon Robinson had consented and that even if consent had not been given, there would have been a right to have a search. The clothes were allowed into evidence.
Defendant argues that Sharon Robinson could not consent to the search because it was an invasion of defendant’s privacy. This contention is erroneous. Under People v Chism, 390 Mich 104, 128-140; 211 NW2d 193, 201-210 (1973), and People v Bunker, 22 Mich App 396; 177 NW2d 644 (1970), Ms. Robinson could consent to turn over the clothing. It was her home; defendant did not live there, although he did stay overnight from time to time and was the father of two of her children; and the clothing was in a room which defendant did not use, much less use exclusively.
Defendant also argues that her consent was not knowing and voluntary, and that the prosecution did not meet its burden of showing that the consent was freely and intelligently given. Once again, we do not agree. The testimony of Ms. Robinson and Sgt. Johnston conflicted. The hearing judge apparently believed Sgt. Johnston and disbelieved Ms. Robinson.
The standard of review on appeal is whether the trial court was clearly erroneous in its conclusions. People v Bunker, supra, 22 Mich App at 404; 177 NW2d at 648. From our review of the record at the hearing, we are unable to say that the hearing judge was clearly erroneous.
Affirmed.
Bashara, P. J., concurred.
In People v Allen the Supreme Court adopted the dissenting opinion of Justice Levin, then a member of the Court of Appeals, found at 39 Mich App 483, 494; 197 NW2d 874, 880 (1972). | [
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Allen, P. J.
One of numerous issues raised on appeal has never been decided by an appellate court in Michigan. What was the intent of the Legislature in the Controlled Substances Act of 1971, when it defined marihuana as "all parts of the plant Cannabis sativa L.”? MCLA 335.305(3); MSA 18.1070(5X3).
Defendant was arrested and charged with delivery of marihuana, contrary to MCLA 335.341(l)(c); MSA 18.1070(41)(l)(c). At his bench trial, defendant stipulated he had sold a substance to an undercover policeman, and conceded the substance’s chain of possession to the police laboratory. The prosecution, in its case in chief, called a state forensic chemist as the only prosecution witness. Based upon microscopic examination and the results of the Dequenois-Lavine test, this expert identified the substance as marihuana. She admitted on cross-examination to having heard of the three species theory of Cannabis, but testified that it was all Cannabis sativa to her.
The defense theory was there are at least three species of marihuana, only Cannabis sativa L. is a controlled substance within the Controlled Substances Act of 1971, and hence, the state failed to prove beyond a reasonable doubt that the substance delivered was marihuana within the meaning of the Act. To support the view that marihuana is polytypic, the defense called botanist Dr. Monroe R. Birdsey who testified that in his opinion there exist at least three species of marihuana: Cannabis sativa, Cannabis indica, and Cannabis ruderalis. He cited other authority for his position.
In rebuttal, the prosecution called Dr. Arthur Cronquist of the New York Botanical Gardens, who testified that he among others viewed Cannabis as a single species, and that the other so-called species are but varieties of Cannabis sativa.
In finding defendant guilty as charged, the trial court stated it "tended to agree” with the evidence that marihuana is monotypic or a single species. However, it is evident that the lower court re garded the taxonomic dispute over the number of species of little moment. Relying on Federal cases facing the same question with respect to an identical definition in the Federal drug law, the lower court ruled that in 1971 the Legislature intended to adopt the scientific view then prevailing that marihuana was monotypic, and therefore, Cannabis sativa means all Cannabis for purposes of the 1971 Act. Defendant was subsequently sentenced to 90 days in jail and 3 years probation.
Defendant contends that the trial court improperly derogated from the intent of the Legislature when it determined Cannabis sativa means all Cannabis, essentially because there is no room for judicial construction of the technical and exact term Cannabis sativa, a penal statute must be strictly construed, and Federal cases construing Federal law are inappropriate as a basis for determining the intent of the state Legislature.
We are compelled to reject the contention of defendant for various reasons. First, acceptance of defendant’s narrow reading of the definition would, as a practical matter, render marihuana regulation ineffective. The record shows there are currently no methods for distinguishing Cannabis sativa from other so-called species or varieties once the marihuana plant is chopped up. Unless the culprit is caught with the plant itself, convictions would appear unattainable, since the prosecution would be unable to present evidence specifically identifying the substance as Cannabis sativa.
The record also indicates that the chemical ingredient producing the euphoric effects is found in all the so-called species of marihuana. Defendant would have us hold that the Legislature intended to prohibit only one form of marihuana which is distinguishable from others, if at all, by its morphological characteristics. Moreover, under this approach, each time a taxonomist makes a judgment and adds another species to the marihuana plant the object of the law would be further thwarted. The Court cannot subscribe to such self-defeating legislative intent. We believe that the Controlled Substances Act of 1971 was not intended to serve as a textbook on botany and that if the Legislature believed that its definition of marihuana covered all forms of marijuana containing the hallucinogenic or euphoric chemical common in all so-called species or varieties of the plant, it is irrelevant for the purpose of the Act whether plant taxonomists recognize one, three, or numerous species.
The following reasons add support to our conclusion that in 1971 the Legislature believed marihuana was monotypic, and that its definition was intended to include all Cannabis plants producing a "high”. Initially, at the time the Legislature enacted the Controlled Substances Act of 1971, there was ample judicial, as well as scientific authority, for the proposition that there was but a single species of the marijuana plant, to wit, Cannabis sativa. See Leary v United States, 395 US 6, 50; 89 S Ct 1532, 1555; 23 L Ed 2d 57, 90 (1969), United States v Moore, 330 F Supp 684 (ED Pa, 1970), aff’d 446 F2d 448 (CA 3, 1971), cert denied, 406 US 909; 92 S Ct 1617; 31 L Ed 2d 820 (1972), Martinez v People, 160 Colo 333; 417 P2d 485 (1966), State v Alley, 263 A2d 66 (Me, 1970), State v Romero, 74 NM 642; 397 P2d 26 (1964), State v Hall, 41 Wash 2d 446; 249 P2d 769 (1952).
Moreover, our 1971 drug legislation is based upon the Uniform Controlled Substances Act ap-proved by the Uniform Conference of Commissioners of State Laws in 1970, and which included an identical definition of marihuana. Congress also used the definition of marijuana as all parts of the plant Cannabis sativa L., in the Comprehensive Drug Abuse Prevention and Control Act of 1970. In rejecting an argument quite similar to instant defendant’s, the Supreme Court of Iowa set forth the intent of the Commissioners of State Laws respecting the Uniform Controlled Substances Act:
"When the Uniform Controlled Substances Act was recommended to the states for adoption in 1970, the commissioners said:
" 'The Uniform Controlled Substances Act is designed to supplant the Uniform Narcotic Drug Act, adopted by the National Conference of Commissioners on Uniform State Laws in 1933, and the Model State Drug Abuse Control Act, relating to depressant, stimulant, and hallucinogenic drugs, promulgated in 1966. With the enactment of the new Federal narcotic and dangerous drug law * * * it is necessary that the States update and revise their narcotic, marihuana, and dangerous drug laws.
" 'This Uniform Act was drafted to achieve uniformity between the laws of the several States and those of the Federal government. It has been designed to complement the new Federal narcotic and dangerous drug legislation and provide an interlocking trellis of Federal State law to enable government at all levels to control more effectively the drug abuse problem.’ Handbook of the National Conference of Commissioners on Uniform State Laws, supra, at 223.” Cassady v Wheeler, 224 NW2d 649, 651-652 (Iowa, 1974).
It thus appears germane for this Court to seriously consider the decisions of Federal courts, as well as court decisions of sister jurisdictions adopting a similar definition of marihuana, in order to fully realize the intent of our own Legislature.
We choose to follow the overwhelming number of courts which have confronted and rejected the argument that a definition of marihuana as Cannabis sativa within controlled substance legislation necessarily excludes other so-called species of Cannabis (marihuana), even if the substance contains the chemical giving the euphoric effect. United States v Walton, 168 US App DC 305; 514 F2d 201 (1975), United States v Honneus, 508 F2d 566 (CA 1, 1974), United States v Kinsey, 505 F2d 1354 (CA 2, 1974), United States v Gaines, 489 F2d 690 (CA 5, 1974), United States v Rothberg, 480 F2d 534 (CA 2, 1973), People v Holcomb, — Colo —; 532 P2d 45 (1975), Cassady v Wheeler, supra, Crowley v State, 25 Md App 417; 334 A2d 557 (1975), State v Allison, 466 SW2d 712 (Mo, 1971), State v Parker, 9 Wash App 970; 515 P2d 1307 (1973), State v Wind, 60 Wis 2d 267; 208 NW2d 357 (1973).
For reasons already given, and for those reasons set forth in United States v Walton, 168 US App DC 305; 514 F2d 201 (1975), we affirm the lower court’s construction of the statutory definition of marihuana.
Defendant next claims the tests used by the crime laboratory expert — microscopic examination and the Dequenois-Lavine color test — are not sufficiently reliable to identify the controlled substance marihuana. The record shows counsel for defendant voiced no objection to the test during trial. The question thus has not been preserved for appellate review. People v Smith, 58 Mich App 76; 227 NW2d 233 (1975), People v Alexander, 56 Mich App 400; 223 NW2d 750 (1974).
Defendant’s final contentions that the statute prohibiting possession, use and delivery of marihuana violates equal protection and due process are without substance. People v Alexander, 56 Mich App 400; 223 NW2d 750 (1974).
Affirmed.
1971 PA 196; MCLA 335.301 etseq.;MSA 18.1070(1) etseq.
The toxic ingredient common to the plant is tetrahydrocannabinol, or THC. United States v Walton, 168 US App DC 305; 514 F2d 201 (1975), Cassady v Wheeler, 224 NW2d 649, 654 (Iowa 1974).
"The issue is not whether marihuana is monotypic or polytypic but what Congress means when it used the term 'Cannabis sativa L.’ United States v Honneus, 508 F2d 566, 575 (CA 1, 1974).
See 52 Mich S B J 617 (1973).
Cassady v Wheeler, supra, at 651.
84 Stat 1242 (1970); 21 USC § 802 (15).
The Court in Walton assumed that more than one species of marihuana exist. Nonetheless, it found Congress never meant to prohibit distribution, possession, etc., of but one species. The Court ruled that Congress intended to include all parts of marihuana within the proscription which contain "THC”, the chemical producing the euphoric effects. Otherwise, the definition would raise serious equal protection difficulties. Moreover, Congress could not be said to have enacted a law "violations of which could not be proven on the basis of present knowledge” owing to lack of a scientific method to distinguish the species in chopped up form. This reason would lead to due process problems because the group of citizens to whom the law is addressed would be unable to discern if they were violating the law. The Court reasoned further that the principle of strict statutory construction was inapplicable to the definition involved, since there was no ambiguity in use of term Cannabis sativa. It concluded that "[w]hile Congress with the wisdom of hindsight could have been more clear in its definition of marijuana, we can discover no significant doubt about Congress’ purpose in proscribing the distribution of marijuana”. 168 US App DC at 309; 514 F2d at 205. | [
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Bronson, J.
Plaintiff appeals from the property settlement portion of a divorce judgment entered between the parties and the denial of her motion for a new trial; Our findings indicate the division of personal property made in this case was eminently fair, given defendant’s sizable mortgage prepayment, the sums expended by him to discharge joint indebtedness, and the amounts he contributed to the marital coffers at the outset of the marriage.
The sale of the marital home at less than its appraised value was in large part plaintiff’s own fault. We find no error in the trial judge’s refusal to reduce defendant’s share of the proceeds, particularly in light of plaintiff’s favorable treatment with respect to personal property and the amounts previously subtracted from defendant’s award to cover child support.
The trial judge concluded that because of defendant’s present financial plight and plaintiffs ability to pursue the litigation without further attorney’s fees, her request for additional compensation for her attorney should be denied. We do not feel that the trial judge erred in that judgment.
It is truly unfortunate that both parties have experienced such serious financial problems in addition to the breakdown of their marriage. The trial judge did a commendable job in resolving a difficult problem. The property award is fair and equitable under all of the circumstances. We would not have reached a different result had we been in the position of the trial judge. Mixon v Mixon, 51 Mich App 696, 700; 216 NW2d 625 (1974).
Affirmed.
M. J. Kelly, J., concurred. | [
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D. E. Holbrook, J.
This is a divorce action commenced by the plaintiff husband on September 27, 1974 against the defendant wife. The parties were married on May 25, 1956, and there were four children born of the marriage, the eldest being 17 years of age at the time of the commencement of the divorce. The parties had been living in Wayne County for a number of years. They had their home there and they lived there with their children.
On September 23, 1974 plaintiff and defendant visited the plaintiff’s attorney’s office and signed a property settlement agreement. On September 27, 1974 the plaintiff commenced a divorce action in the County of Oakland, claiming to have been a resident therein for more than 10 days preceding said date. Defendant was personally served with summons and copy of complaint on October 1, 1974. On October 21, 1974 the plaintiff filed a default in the court, showing defendant as having failed to enter her appearance therein. On January 14, 1975 defendant filed an appearance in the trial court, together with a motion to set aside the default previously entered, also asserting that the plaintiff had not legally established his residence in Oakland County at the time of the filing of the complaint, together with an affidavit of meritorious defense. On January 14, 1975 at the time of filing said pleadings no praecipe was on file to take a default judgment. At this time Judge Hampton, for Judge Templin to whom the case had been previously assigned, signed an injunctive order, and set the hearing date on the motion to set aside the default for January 22, 1975. On January 15, 1975 the plaintiff took a default judgment. Before taking testimony the plaintiff’s attorney made this statement:
“At this time we would ask the court also waive the six-month statutory waiting period.
"The Court: Court will waive the six-month period.”
The default judgment was granted, signed and entered on the same day.
On January 16, 1975 the defendant filed an amended motion to set aside default, and also to set aside default judgment.
Following a hearing on January 29, 1975, adjourned to February 5, 1975, defendant’s motion to set aside the default and default judgment was denied. Defendant appeals therefrom as of right.
The issue to be determined on this appeal is as follows:
Whether the trial court abused its discretion in refusing to set aside the default and default judgment against defendant upon her application, made one day prior to entry of judgment, setting forth good cause for having failed to plead and setting forth meritorious defenses?
GCR 1963, 520.1 provides that when a party has failed to plead or otherwise defend, the person seeking relief or his attorney may enter the default of that party by filing a statement of default with the clerk who is then authorized to enter default. Once that default has been entered, the defaulted party may not proceed until such default has been set aside by the court pursuant to 520.4.
GCR 1963, 520.4 provides:
"For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 528. If personal service was made upon the party against whom the default was taken, it shall not be set aside unless application to have it set aside is made either before the entry of judgment or within 4 months after the default was regularly filed or entered except as provided in Rule 528. Any order setting aside such default shall be conditioned upon the party against whom the default was taken paying the taxable costs incurred by the other party in reliance upon the default, except as prescribed in subrule 526.8. Other conditions may be imposed as the court deems proper. A proceeding to set aside default or a default judgment, except when grounded on want of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.”
As defendant does not allege a want of jurisdiction over her person, the question is whether good cause is shown and an affidavit of facts showing a meritorious defense has been filed.
It is well established that a motion to set aside a default judgment is addressed to the trial court’s discretion and will not be disturbed by the appellate court, unless a clear instance of abuse of discretion is shown. Freeman v Remley, 23 Mich App 441; 178 NW2d 816 (1970), Albro Leasing, Inc v Sylvester, 40 Mich App 227; 198 NW2d 437 (1972).
The original motion and affidavit filed by defendant in this matter on January 14, 1975 sets forth the following "good cause”, although not designated as such, for delay:
"7. * * * That the mental condition of this defendant has been made worse by threats that if she employs counsel her telephone will be shut off, she will receive no money for food or shelter from her husband. She, further, will receive physical punishment and she will be committed to a mental hospital by her husband.
"8. Further, that since she has indicated to her husband that she is consulting an attorney, he has told her that if she employs counsel that she will receive a serious physical beating with a belt and that three (3) years after this matter is over 'she will get hers’.”
At no time, either by way of counteraffidavit or at the ensuing hearing, have these assertions of fact been disputed.
Defendant also raised, though prematurely, possible grounds for dismissal of the action, alleging, though not establishing, that plaintiff was not a resident of Oakland County for ten days preceding the filing of the complaint.
The affidavit and motion also alleged that plaintiff had perpetrated a fraud upon the court and upon the defendant: "That defendant is fearful that she is pregnant at this time, as the marital relationship has not completely stopped despite the filing of this divorce.” This was neither disputed by way of affidavit nor at the ensuing hearing. No supplemental complaint was filed.
Finally, defendant asserts what may be a defense to the divorce action itself, and a defense to the terms thereof if one is granted:
"That defendant believes that it is possible that there has not been a breakdown of the marriage relationship to the extent that the objects of matrimony has [sic] been destroyed and that if plaintiff would receive professional medical help and counseling, it might be possible to save this marriage.”
"That, defendant signed a property settlement and separation agreement on the 23rd day of September, 1974, before the filing of this action and was, in fact, told by her husband that she could not have an attorney in this matter. That this property settlement was signed without benefit of counsel and fails to protect the defendant in any way.”
Neither of the foregoing has been disputed by way of affidavit or at the ensuing hearing. Rather, on the day following filing of the motion and affidavit, the trial court granted plaintiff a default judgment of divorce less than 4 months after filing.
On January 16, 1975 the day following the granting of the judgment, defendant filed an amendment to the motion to set aside default and affidavit of meritorious defense. Defendant there asserted that plaintiff, in light of the continued cohabitation, should have filed an amended complaint in order for the judgment to have validity; asserted that plaintiff had been made aware of the appearance and motion previously filed by her because the process server had delivered papers to the 17-year-old son, residing with plaintiff; prayed for an injunction preventing plaintiff from transferring or selling the marital home or assets until hearing; and asked for relief as follows: "Wherefore, defendant prays that the Judgment as well as the Default heretofore entered be set aside and held null and void.” We rule that this pleading was a supplement to the motion filed on January 14, 1974, because the pleading states at the beginning as follows:
"NOW COMES JOAN J. O’NEILL, defendant, by and through her attorneys, KENNETH J. MORRIS, P. C., and as an Amendment to her Motion to Set Aside Default, in addition to that information contained in the Motion, states as follows * * * ”
GCR 1963, 110.3, Birch Run Nursery v Jemal, 52 Mich App 23; 216 NW2d 488 (1974).
At the hearing held on January 29, 1975 no testimony was given by either party. However, defense counsel there proceeded to argue the matters set forth in the original motion and affidavit. He argued that there had been an unconscionable property settlement. He called to the court’s atten tion that the requirement that no proofs be taken in a divorce proceeding where there are children before the elapse of six months had been waived on oral motion, with no showing of good cause therefore. He argued that he had filed an appearance on behalf of defendant but had received no notice of the hearing at which the judgment was taken. He argued coercion by the plaintiff, who had threatened not only the defendant but the defense counsel. He argued that there had been cohabitation during the pendency of the case. He argued that the court had no jurisdiction over the matters inasmuch as there had not been ten days residency preceding the complaint.
Rather than objecting to any statements regarding the cause and defense set forth by defendant in her original motion and affidavit, counsel for plaintiff stated:
"[W]e have got a case where Mr. Hemming has alleged fraud and it is well known in the law, your Honor, fraud is not going to be presumed, fraud is going to have to be proved conclusively by a preponderance of the evidence. We have right now, your Honor, merely statements of both myself and Mr. Hemming before the court. I think that if any determination to setting aside this default is to be based on fraud we have to take testimony.”
The court, however, stated that it was concerned only with the allegation that no money had been paid on the lump sum alimony. He then adjourned the hearing for one week, at which time the plaintiff was required to show what had been paid.
Plaintiffs counsel suggested to the court that both parties give testimony. The trial court did not take testimony, however. Therefore, only defendant’s unrefuted affidavits were before the court. Plaintiff did not file counter-affidavits and did not object to the court’s failure to take testimony.
It appearing that the motion and affidavit were properly before the court, the first inquiry is whether the contents fulfill the requirements. As said in Mission Investment Co v Perfect Totalisator Corp, 51 Mich App 376, 379; 214 NW2d 898, 900 (1974):
"Relief from a default judgment is discretionary. GCR 1963, 520.4 sets out the requirements to be fulfilled by the moving party in requesting such relief. The pertinent portion of the rule is as follows:
" 'A proceeding to set aside default or a default judgment, except when grounded on want of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.’ ”
In Milinsky v Schmidt, Ellis & Associates, Inc, 48 Mich App 192, 195; 210 NW2d 367, 368 (1973), the Court quoted with approval from 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), Authors’ Comments, p 662:
"Good cause within the meaning of this provision would seem to include (1) a substantial defect or irregularity in the proceedings upon which the default was based, (2) a reasonable excuse for failure to comply with the requirements which created the default, or (3) some other reason showing that manifest injustice would result from permitting the default to stand.”
The unrefuted affidavit of defendant evidences a reasonable excuse for her failure to have appeared and pled. Defendant asserted that she was threatened by plaintiff with physical abuse, confinement in a mental hospital, and refusal to support.
Moreover, in defendant’s original affidavit and in her supplement, it is asserted, and is unrefuted, that the parties continued to cohabit following the filing of the divorce complaint. See Garza v Garza, 27 Mich App 544; 183 NW2d 880 (1970).
In this case, plaintiff did testify at the pro confesso hearing that the parties were separated on a certain date. He did not, however, assert, under oath, either at the hearing or by way of counter-affidavit that the separation had been continuous or that there had been no cohabitation.
In addition to the dissolution of the marriage, plaintiff prayed that the settlement agreement entered into between the parties on September 20, 1974 be incorporated in the judgment of divorce. In her original affidavit, defendant asserted that she signed a property settlement agreement after being told by her husband that she could not have an attorney in that matter so that the property settlement was signed without benefit of counsel and failed to protect her in any way. She further asserted that there had not been full disclosure of the value of the various assets of the parties before or following the entering into of that agreement.
In 41 Am Jur 2d, Husband and Wife, §§ 270, 271, pp 223-225, it is said:
"The relationship of husband and wife is generally regarded as of a confidential nature. * * * If there is any misrepresentation or concealment of material facts, or any just suspicion of artifice or undue influence, courts of equity will interpose and pronounce the transaction void and as far as possible restore the parties to their original rights.
"Equity will enforce agreements between the spouses only where they are fair and just and free from fraud, undue influence, duress, and overreaching.
"It is recognized that the most dominant influence of all relations is that of husband over wife, and transactions between them, to be valid, particularly as to her, must be fair and reasonable and voluntarily and understandingly made. Such transactions are jealously scrutinized to prevent the wife from being overreached or defrauded by the undue influence or improper conduct of the husband; and when they are brought about by anything amounting to constructive fraud on his part they are voidable by the wife and are not enforceable against her, at least not in equity.
"Whenever independent counsel would be of real assistance to the wife in deciding whether to enter into a transaction with her husband, it is his duty to advise her to seek such counsel.”
In the instant case, defendant’s unrefuted affidavit indicates that the husband not only failed to advise her to seek counsel of her own, but affirmatively advised her that she could not obtain same. The sworn statement of defendant in this matter distinguishes this case from Tapin v Kramer, 238 Mich 497; 213 NW 699 (1927), where an equally divided Court affirmed the lower court’s dismissal of suit by a decedent’s brothers and sisters to set aside conveyances to her husband.
Since it appears uncontradicted in the record that defendant’s failure to appear and plead was caused by certain actions of the plaintiff and that a meritorious defense exists (also due to certain actions of the defendant), coupled with the fact that MCLA 552.9f; MSA 25.89(6) was not complied with because there was no showing that a petition was presented to the court and no showing of hardship or compelling necessity justifying the waiver of the six-month rule, we determine that the default and default judgment should be set aside and defendant allowed her day in court. The pertinent part of MCLA 552.9f, supra, reads as follows:
"No proofs or testimony shall be taken in any case for divorce until the expiration of 60 days from the time of filing the bill of complaint, except where the cause for divorce is desertion, or when the testimony is taken conditionally for the purpose of perpetuating such testimony. In every case where there are dependent minor children under the age of 18 years, no proofs or testimony shall be taken in such cases for divorce until the expiration of 6 months from the day the bill of complaint is filed. In cases of unusual hardship or such compelling necessity as shall appeal to the conscience of the court, upon petition and proper showing, it may take testimony at any time after the expiration of 60 days from the time of filing the bill of complaint.”
This Court in Penney v Protective National Ins Co, 24 Mich App 218, 221; 180 NW2d 44, 46 (1970), stated:
"The trend of recent decisions both in our courts and in the Federal courts has been toward liberal construction of the default judgment provisions in order to achieve meritorious determination of cases. Walters v Arenac Circuit Judge, 377 Mich 37, 47; 138 NW2d 751, 754 (1966). The Supreme Court has combined this with strict construction of the procedural requirements of the rules.”
Reversed and remanded for proceedings consistent with this opinion. Costs to defendant. | [
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] |
Kuhn, J.
The plaintiff, a corporation with its business offices located at Jackson, Mich., is engaged in the manufacture, under a patented process, of sewer pipe known as reinforced concrete pipe. The defendant Boyes, who resides in Grand Rapids, Mich., is engaged principally as a contractor in street and sewer work in that city. In the summer of 1909 he was successful in obtaining the contracts for the construction of sewers on two of its streets. After bidding on these jobs, and before receiving the contracts, knowing of the business of the plaintiff, he called at its offices in Jackson to get prices on the amount of pipe needed. After some negotiation, and after the contracts were awarded defendant Boyes, the following contract was entered into between the parties:
“This article of agreement, made and entered into this 4th day of September, A. D. 1909, by and between the Reinforced Concrete Pipe Company, of Jackson, Michigan, party of the second part, witnesseth: That the said party of the first part, for the consideration hereinafter named, does hereby promise, covenant, and agree to manufacture for the said party of the second part, approximately:
“18x20 to be manufactured or not as directed by D. W. Boyes.
“782 lin. ft. 18 in. inside diam. reinforced concrete pipe, at 65c. per lin. ft.
“296 lin. ft. 21 in. inside diam. reinforced concrete pipe, at 75c. per lin. ft.
• “852 lin. ft. 24 in. inside diam. reinforced concrete pipe, at 95c. per lin. ft.
“564 lin. ft. 27 in. inside diam. reinforced concrete pipe, at $1.10 per lin. ft..
“266 lin. ft. 30 in. inside diam. reinforced concrete pipe, at $1.35 per lin. ft.
“332 lin. ft. 33 in. inside diam. reinforced concrete pipe, at $1.50 per lin. ft.
“The said pipe is to be manufactured for said second party at the city of Grand Rapids, Michigan, along the line of sewer construction of said city, where free water may be obtained, at such places as are convenient and practicable for the manufacture thereof, and where permission may be had from the city of Grand Rapids' for the manufacture of said pipe; said places of manufacture being the place of acceptance and delivery.
“Said party of the first part further agrees to manufacture the pipe in a good workmanlike manner, using a mixture of one part Portland cement and five parts sandy gravel, and reinforce the same, using the American Steel & Wire Company’s wire reinforcement in the body of the pipe,' with the interlocking joint, as per the specifications of the reinforced concrete pipe, copy of. which is hereto attached.
“It is understood and agreed that in the manufacture of said pipe the said party of the first part shall provide such openings for house and catch basin connections as are shown by the plans of the city engineer, or the engineer in charge of said sewer construction, without extra charge, the number and sizes of such openings to be furnished by the party of the second part at the commencement of the manufacture of said pipe.
“It is further agreed and understood that the manufacture of the pipe shall be under the inspection of the city engineer or the engineer in charge of the work.
“The said party of the first part further agrees to furnish a suitable derrick and saddle for the handling and lowering of said pipe into the trench, without extra charge to the party of the second part, excepting, however, the' freight to and from Jackson to Grand Rapids, Michigan, shall be paid by the party of the second part.
“The said D. W. Boyes, party of the second part, does hereby promise and agree to and with the said party of the first part that he will accept of and receive the said pipe, when so manufactured, at the said places above mentioned, and pay to the party of the first part the prices per lineal foot as stipulated above.
“The said party of the second part further agrees to settle and pay to the said party of the first part, on the 10th day of each and every month during the time the said pipe is being so manufactured, for all pipe manufactured by said party of the first part during the previous month, that is to say, on the 10th day of each and every month after the commencement of the manufacture of the pipe, the said party of the second part shall pay to the said party of the first part for all pipe manufactured by the said party of the first part during the preceding month, and at the completion of the manufacture of said pipe the party of the second part agrees to settle in full and pay the balance due for all pipe manufactured by said party of the first part for this contract. Pipe to be paid for as estimated by the city engineer.
“In witness whereof, the said parties have set their hands and seals the day and date first above written.
“This contract is executed in duplicate.
“The Reinforced Concrete Pipe Company,
“By E. F. Lowery, Prest.”
“D. W. Boyes.”
Attached to the contract was a copy of the standard specifications for the manufacture and composition of reinforced concrete pipe. Shortly after the execution of the contract plaintiff sent on to Grand Rapids the necessary moulds, tools, and machinery for manufacturing the pipe, which was begun on September 23d, under direction of a Mr. Curran, who was the foreman in charge of the gang of workmen on the job. After the work was completed, and when plaintiff insisted on payment according to the terms of the contract, the defendants claimed certain set-offs, amount ing to about $200, composed of various items — for constructing some brick sewer, for bailing, for extra cement around pipes under railroad tracks, and for city inspection charges — all of which were outside the terms of the contract. This claim resulted in the present controversy. On the trial of the case the defendants admitted the full amount claimed by the plaintiff in its bill of particulars, and claimed the benefit of Circuit Court Rule 24c, in respect to the opening and closing in the taking of the testimony and the argument on the trial of the cause. This right of a set-off was based by the defendants on two propositions, viz.:
(1) That Mr. Curran was held out to defendant Boyes as an agent having authority to charge the plaintiff for the minor changes which were made.
(2) That the pipe to be manufactured and supplied by the plaintiff under the contract was not furnished to the defendant Boyes within a reasonable time, as a result of which he suffered losses.
At the close of defendants’ proofs, the trial judge directed a verdict for the plaintiff, and whether or not the two propositions above set forth, under the proofs in this case, raised questions of fact which should have been submitted to the jury is the question to be considered in reviewing the case here.
Instead of manufacturing its pipe at Jackson and shipping the same to its customers as ordered, the plaintiff company, after making its contract for a specific amount of pipe, sends its employees to the place where the pipe is used and manufactures it there. An examination of the contract shows that by its terms the only duty devolving upon the plaintiff was to manufacture the pipe of the sizes and dimensions called for in the contract in the manner and the place provided for in the contract. As to Curran’s connection with the work, the defendant Boyes testified :
“Mr. Curran was the representative of the Jackson people, the Reinforced Concrete Company. He was introduced to me here in this city as a representative that would look after their part of the work here. He was superintendent or foreman of construction of the work here. He went to the gravel pit at different times, in with the inspector, and loaded the gravel. All I can say is that he ordered the gravel and went out different times to the gravel pit with the inspector. Other materials were purchased there — cement and slants for the pipe. He ordered them as he wanted them, always. He hired the men. Mr. Cur-ran had supervision of the work as it went along. If any changes were made in the manner of doing work as it went along, Mr. Curran made them. * * * Mr. Curran ordered that change in the form or in the pipes. He superintended the work of the men there. Mr. Curran had general charge of all work that was done in the city of Grand Rapids on those two jobs, so far as I know. I dealt with Mr. Curran, that is, in regard to the work.”
It is a well-settled rule in this State that the apparent scope of the authority of the agent is to be determined by the acts of the principal, and not by the acts of the agent. Marx v. King, 162 Mich. 258, 267 (127 N. W. 341), and cases cited; 31 Cyc. p. 1322. In Delta Lumber Co. v. Williams, 73 Mich. 86, 91 (40 N. W. 940), this court said:
“Corporations are bound by the acts of their agents to the same extent, and under the same circumstances, as natural persons. Agents may have as much or as little power as their principals see fit to give them, and one dealing with an agent is bound to inquire into the extent of his authority, not from the agent, in the absence of a written evidence of authority, but from the principal, if accessible; and dealings or engagements of the agent beyond the scope of his authority do not bind the principal. Bond v. Railroad Co., 62 Mich. 643 [29 N. W. 482, 4 Am. St. Rep. 885].”
It is urged that the statement in defendant Boyes’ testimony, “He was introduced to me here in this city as a representative that would look after their part of the work,” was a holding out of Curran as a general agent. By the terms of the contract, plaintiffs part of the work was to manufacture the tile, and the statement could mean nothing more to defendant Boyes, who was the other party to the contract, than that Curran was in Grand Rapids for that purpose, to look after plaintiff’s part of the work — to manufacture the tile. It further appears that the defendant Boyes at different times telephoned the offices of plaintiff at Jackson with reference to details of the work. In the absence of express authority from the plaintiff holding out Mr. Curran as its general agent, it was incumbent upon the defendant Boyes to make inquiry of the plaintiff, if he desired to bind plaintiff as to matters outside of the contract because of acts of Curran. It is claimed that the instant case should be governed by the decision of this court in Teakle v. Moore, 181 Mich. 427 (91 N. W. 636). We think it is clearly distinguishable from the present case, as in that case all the contracts for the different portions of the work on a building referred to the supervising architect as the agent of the owner, and it was held that this was a sufficient authorization to bind the owner to an arrangement made by the architect with a, contractor for the erection of a scaffold. We agree with the trial judge that there was not sufficient evidence to warrant submitting to the jury the question of charging plaintiff on account of expenditures made by the defendant Boyes because of alleged consent by Curran, who was plaintiff’s foreman on the job.
The contract does not specify the time in which the work was to be done. Defendant Boyes’ contracts with the city required the completion of the work by December 10, 1909. It appears that the plaintiff had manufactured and placed on the ground ready for use all pipe ordered by the defendant Boyes within the time provided in his contracts with the city for the completion of the work, although these contracts with the city were not made a part of the contract between the plaintiff and said defendant. It is claimed that the work was delayed because the plaintiff manufactured a size of pipe at first which the said defendant could not use to advantage. Nothing is contained in the contract as to which size of pipe should be furnished first. It is admitted that ten days after signing the contract the work actually began, and that, with the exception of time consumed putting in a curved brick sewer and one or two days when it was held up by the city inspector because of green pipe, there was no delay. The contract did not provide for curved pipe, and the fault of this delay must be ascribed to the said defendant in failing to provide for it. It is an elementary proposition of law that, where no time is specified in the contract for the completion of work, it must be done within a reasonable time. What is reasonable time* usually depends upon the nature of the contract and the particular circumstances. Where facts are in dispute, it presents a question of fact for the jury. Stange v. Wilson, 17 Mich. 342; Coon v. Spaulding, 47 Mich. 162 (10 N. W. 183) ; Hill v. Mathews, 78 Mich. 377 (44 N. W. 286) ; Greenwood v. Davis, 106 Mich. 230 (64 N. W. 26).
When the question of reasonable time depends, however, upon the construction of a contract in writing or upon undisputed facts outside of the contract, it becomes a matter of law. 9 Cyc. p. 614. In the instant case the contract is in writing, and the only testimony offered was that of the defendant Boyes. There is no evidence showing the usage or amount of time reasonably required to manufacture the number of feet of pipe of the sizes and kind mentioned in the contract. The amount of pipe, 3,042 feet, was completed and ready for the defendant Boyes in a little over two months. We are of the opinion that there was no question of fact to submit to the jury, and that the court properly determined the question of reason able time under the circumstances of this case to be' a question of law, and rightfully determined it in favor of the plaintiff.
Judgment affirmed.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Ostrander, J.
Complainant has acquired the title of the State to certain premises in tax proceedings. The title which the State held is not, and apparently cannot be, successfully attacked by any one. Complainant undertook to give, and did give, to all per sons entitled thereto, personally or by publication, notice of his having acquired the title and of the sum necessary to be paid to secure a conveyance from him. No one who was entitled to the notice is complaining about it. The appellant, who was not one of the class entitled to notice, who was not in possession of the land, but who asserted an interest in the premises, an interest cut off by the State’s title, was made a party defendant by complainant’s bill to quiet his title. She compiains that the notice complainant gave was in various respects informal and not in compliance with governing law. The assignments of the failures to comply with the law in giving notice are several and raise various questions besides the one discussed in the opinion of Mr. Justice Bird. I am of opinion that appellant cannot take advantage of any infirmities in the method of giving the notices. The case is not like White v. Shaw, 150 Mich. 270 (114 N. W. 210), in which a cotenant entitled to notice was permitted to assert failure to serve a notice upon his cotenant’s executor, who was also entitled to notice. It was held that the tax title owner cannot proceed by piecemeal to cut off the right of redemption of each part owner, and that, until he had served notice upon all who were entitled thereto, the right to redeem continued in all. In the case at bar, as has been pointed out, the appellant was not one of the class entitled to notice, nor a cotenant with any one entitled to notice. If it is held that complainant is unlawfully in possession of the land, must again give notice and accept a sum certain for a reconveyance, appellant may be greatly benefited, and the complainant greatly injured. It appears that appellant’s title is evidenced by tax deeds for taxes for the years 1901 and 1902. Complainant acquired the title for taxes for the year 1908. Appellant did not record her deeds. Complainant, since acquiring his title, has paid taxes, has built two houses on the premises, and made other improvements. The ap pellant December 23, 1911, deposited with the register in chancery of Muskegon county $96.21 to obtain a reconveyance from complainant. Of this fact the register notified the complainant. The bill in this cause was filed January 4, 1912. It is therefore apparent that no equitable considerations favor appellant.
The decree will be affirmed.
McAlvay, C. J., and Brooke, Stone, Moore, and Steere, JJ., concurred with Ostrander, J. | [
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Bird, J.
By this proceeding the complainant seeks to have his marriage with defendant annulled on the ground of her previous unchastity. The defendant answered the bill, and charged complainant with extreme cruelty, and prayed for affirmative relief. After hearing the testimony offered by the parties, the chancellor refused to grant relief to either, and accordingly dismissed both bill and cross-bill. From this decree complainant has appealed.
These parties were married in January, 1912, after an acquaintance of six months and a courtship of four months. After marriage they lived with complainant’s parents in the city of Detroit for a time, and later they lived at a boarding house until they separated in August, 1912. At the time of marriage complainant was 23 and defendant 21 years of age. Complainant charges that he was induced to marry defendant by reason of her representations that she was a chaste girl; that before marriage he talked with her concerning her chastity, and she assured him that she had never indulged in sexual intercourse. He gives as a reason for his great concern in this regard that the Lutheran Church, to which they belonged, lays great stress on the chastity of women. He asserts that he married defendant believing and relying upon these representations, and that they lived happily for about four months, when he began to hear rumors of her previous unchastity; that an investigation convinced him of the truth of them, and he at once left her, and has neither lived nor cohabited with her since. Upon the hearing three witnesses testified that defendant was pregnant and suffered a miscarriage in February, 1911. One of these witnesses was a nurse who attended her on that occasion. It was further shown that defendant had sexual intercourse on several occasions in the month of October, 1910, with a young man whose name was given upon the hearing. Defendant afterward testified in her own behalf, but she made no denial of these charges; therefore, it is fair to assume that they are true. Defendant admitted in her answer and also in her testimony that she suffered a miscarriage about a month after she was married, but she testified that complainant was responsible for her condition, as he was intimate with her previous to their marriage. It having been established without contradiction that defendant was sexually intimate with another in October, 1910, that she gave birth to twins 11 months before marriage, and it having been established by her own admission that she was pregnant at the time of marriage, we think a case was made entitling complainant to relief. Harrison v. Harrison, 94 Mich. 559 (54 N. W. 275, 84 Am. St. Rep. 364). It is true, as argued, that if complainant was sexually intimate with defendant before marriage, he is not entitled to the relief sought. He denies, however, that he had any such relations with her before marriage, and his denial is given credence by the admitted conduct of defendant with others before marriage. The burden of proof upon this question rested with her (Thomas v. Thomas, 19 Neb. 81 [27 N. W. 84]) and conceding that her testimony is entitled to equal weight with his, she has failed to discharge that burden.
Defendant’s showing fell short of making a case of extreme cruelty against complainant. She testified to a few instances of personal violence and to one occasion when he threatened to kill her. Her testimony in this regard lacks corroboration, except in a single instance, and is denied by complainant. Defendant’s charges that complainant made love to their landlady are denied by them. Both complainant and defendant agree that they lived happily together until the last month or six weeks before they separated, and a reading of the record leads to the conclusion that whatever there was in his treatment of her which merited criticism occurred in the last six weeks they were together, and was due to quarrels growing out of her deception as to her past life.
It is also contended by defendant that the allegations of the bill are insufficient to admit of proof that defendant was pregnant at the time of the marriage. The amendment to the bill, allowed upon the application of complainant at the hearing, fully meets this objection.
The decree should be reversed, and one be entered annulling the marriage; neither party to recover costs.
Brooke, Steere, and Moore, JJ., concurred with Bird, J.
Ostrander, J.
The complainant seeks a decree annulling his marriage with defendant, which took place January 11, 1912. They ceased cohabitation in August, 1912, and the bill was filed September .17, 1912. It is established, I think, that prior to her marriage the defendant had illicit sexual relations with some man or men in October, 1910, and that as a result there was a miscarriage in February, 1911. The serious question is whether complainant had not such relations with her before their marriage. In her answer she tenders such an issue, charging upon oath that while they were engaged to be married complainant had sexual intercourse with her, which resulted in a miscarriage after they were married. This issue she maintains with her testimony, stating that, discovering her condition, she wrote to him and" took the matter up with his father and mother, who insisted they be married. After marriage they lived with complainant’s father and mother for some time, and about a month after the marriage she suffered a miscarriage. A doctor attended her. When asked if defendant had a miscarriage after their marriage complainant answered, “I don’t recollect.” The father and mother of complainant were not called as witnesses. Assuming that the testimony of each of the parties is apparently entitled to equal credence, I am of opinion that the testimony of defendant must be held to preponderate, for the reason that no attempt was made to disprove her statements by calling either of the parents of complainant, or by excusing the calling of them, and by the further fact that complainant does not deny that defendant suffered a miscarriage after marriage as she says she did. The testimony of defendant is specific, and affords the opportunity for its complete refutation by other witnesses, namely, the father and mother of complainant and the physician who attended her. It is met by complainant’s denial of the antenuptial intimacy. The circuit judge had the advantage, not an inconsiderable one in such a case, of seeing the parties, and the relief asked for by complainant was refused.
For these reasons I feel compelled to disagree with my Brother Bird, and to hold that the decree of the court below should be affirmed, with costs to defendant.
McAlvay, C. J., and Kuhn and Stone, JJ., concurred with Ostrander, J. | [
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Kuhn, J.
Plaintiff recovered a judgment against the defendant in the justice’s court of $47.80. On an appeal to the circuit court, in a trial before a jury, it resulted in a verdict and judgment for the plaintiff in the sum of $48.50.
The case is here by writ of error, and it is claimed that the trial court should have granted the motion for a new trial which was made by the defendant, because the verdict was a compromise verdict, as it should have been either for the entire amount of $95.70, the claim of the plaintiff, or, for the defendant, no cause of action. The dispute arises out of the method used in scaling certain logs sold by plaintiff to defendant. Plaintiff claims that the logs were sold with butts on, and the defendant claims that the logs were to be butted to get above certain irons and nails which had been driven into the trees. In order to have a verdict set aside because of its being a compromise, it must be clear that the jury reached the verdict by "splitting differences.” Benedict v. Provision Co., 115 Mich. 527, 531 (73 N. W. 802). We are not satisfied from this record that such an inference is the necessary one, and agree with the trial judge, who, in denying the motion for a new trial, said that the verdict might be supported by the evidence given on the trial.
Defendant also claims that it was error for plaintiff’s attorney, in opening the case to the jury, to refer to the fact that the plaintiff had recovered a judgment in the justice’s court, and the defendant had appealed. The court, in referring to this in his charge, specifically instructed the jury that they must not be governed by what happened in the justice’s court and must decide the case upon the proof offered on the trial before them.
We are of the opinion that no prejudicial error was committed in the trial of the case, and the judgment is affirmed.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Kuhn, J.
(after stating the facts). It is the complainants’ contention that under section 29, article 8, of the Constitution, the grant in question is invalid, because it contains no maximum term limit beyond which it cannot run, although the right of revocation is reserved to the grantor. What is the grant in question? The most that can be claimed for it is that it is a revocable right. It is immaterial whether it is termed a grant, license, franchise, or permit. Its important feature in this discussion is that whatever it is termed, it is revocable at the will of the city, whenever the public interest requires its termination. By its terms this is to be determined by the common council or the people of the city of Detroit, at their pleasure or caprice. The resolution clearly provides that no term right shall be acquired by the railway company because of the acceptance of the grant by it, and by virtue of the provisions of said section 29, article 8, of the Constitution, which is a clear limitation on the power to grant franchises or licenses, this grant of power could not extend beyond the period of 30 years fixed by the section, even if it should not be revoked by the granting power before the expiration of that time. In the absence of a time limitation in the grant, it must be assumed that it cannot extend beyond the term fixed by the Constitution. Boise, etc., Water Co. v. Boise City, 230 U. S. 84 (33 Sup. Ct. 997). Not being a grant for a longer period than 30 years, which is prohibited by the Constitution, and, complying with section 25 of article 8 in that it is “subject to revocation at the will of the city,” we are clearly of the opinion that the resolution making the grant was not in violation of any constitutional prohibition.
It is also contended that the council’s resolution should be held void because it contains a proviso that, in case the city shall engage in municipal ownership and operation of street railways, and shall desire to operate on the streets mentioned in the resolution, it shall purchase the tracks and equipment therefor at a price to be fixed by agreement or arbitration. This provision cannot be construed to be a limitation upon the power to revoke the .permit. This power can be exercised without complying with any conditions. It can be exercised at the will of the common council or the city, and is independent of any other provision. The question of whether or not the city could be compelled to purchase the property and equipment of the railroad as provided for in the resolution, in case the right of revocation is exercised, is a question not involved here.
The decree of the court below dismissing the bill of complaint is affirmed, with costs to defendants.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Steere, J.
Defendant seeks in this case to obtain a review and reversal of an order made by the Wayne county circuit court dismissing defendant’s petition for leave to appeal, after the expiration of five days, from a judgment rendered against it in a justice’s court of said county.
Defendant’s assignments of error are:
“First. The' court erred in dismissing the plaintiff’s (defendant's) petition to appeal after the expiration of five days.
“Second. The court erred in making an order dismissing the plaintiff’s (defendant’s) petition, for the reason that the facts do not support such a verdict.”
The reasons given in defendant’s petition why said leave should be granted are that justice requires it, and that defendant was prevented from taking an appeal within the time allowed through no fault or neglect of its own and by circumstances not under its control.
The action upon which judgment was rendered and from which an appeal is sought was commenced before a justice of the peace of the city of Detroit on May 2, 1913, by a summons returnable May 9, 1913, between Orville Huddleston, plaintiff, and Charles Amos & Co., defendant, to recover damages for injuries received by plaintiff while in defendant’s employ. On the return day there was no appearance by defendant, and the cause was adjourned to May 16th, at which time also defendant failed to appear, and, after hearing proofs, judgment by default was rendered for plaintiff in the sum of $500 damages and $1.75 costs. A petition for leave to appeal was filed and presented to the court on June 3, 1913, and, after hearing, denied. A second petition, and the one sought to be reviewed here, was presented to the court on June 10, 1913, which was also denied.
The general law relative to appeals from justice’s court limits the time for taking appeals from judgments rendered therein to five days, unless the circuit court or circuit judge at chambers shall authorize an appeal after the expiration of that time, where it appears the party desiring to appeal has been prevented from doing so by circumstances not under his control. Analogous to the general law, section 22 of Act No. 475, Local Acts 1903, relative to justices’ courts in the city of Detroit-, beginning with the prohibition that: “No appeal shall be taken from any judgment of any justice of the peace in said city of Detroit, except in the following cases” — contains the following provision, upon which defendant relies:
“Appeals may be authorized by the circuit court of the county of Wayne, when the party making the appeal has been prevented from making a defense upon the merits of the case in which such appeal is taken by circumstances not under his control; and such appeal may also be authorized when justice requires that such appeal should be authorized.”
The fourth and last subdivision of said section, relative to appeals, provides:
“Under absolutely no circumstances shall any appeal be allowed or authorized after five days from the rendition of judgment, except as herein otherwise provided.”
The record returned to this court contains the petition supported by affidavits, counter affidavits, and testimony taken before the court at the hearing of said petition. These present certain rather sharply drawn issues of fact for the court to pass upon, if the question of whether justice required allowance of the appeal is involved.
The substance of the showing made by defendant, under the claim that circumstances beyond its control prevented its appeal, is as follows: Defendant was a corporation doing business in the city of Detroit; Charles Amos being its president, and Mrs. Charles Amos its secretary. The record only discloses the nature of its business inf erentially; it being shown plaintiff was in its employ as a structural ironworker; its board of directors was composed of three members, Amos and wife constituting a majority of said board, and in active control and management of the business, the third member being their attorney; that the summons in this case was served upon Mrs. Charles Amos at the office of defendant while she was in charge, Charles Amos being at that time out of the city; that Mrs. Amos turned said summons over to the bookkeeper, with instructions to deliver it to Mr. Amos on his return, which was neglected; that Mr. Amos first learned of said suit and judgment on the 29th of May, 1913, while searching records in the justice’s court, looking up other suits in which defendant was interested.
Against this it is shown that early in the history of the case plaintiff’s attorney notified defendant that he was retained and action was contemplated, whereupon he was referred to defendant’s attorney, who was also one of the directors, and who, acting for the company, proposed terms of settlement, but a few days later reported defendant had refused to ratify the same and would do nothing in the matter, following which action was begun.
Plaintiff deposed that on the 4th or 5th of May, 1913, he met Mr. Amos, president of defendant, who stated that the attorneys were trying to job the company out of $100, that it had never paid for any one getting hurt yet, and he would like to see plaintiff get anything out of it, whereupon plaintiff replied that he had started a suit against the company and he would have a fight on his hands. On his examination at the heáring, Amos testifies as to this notice:
“I met Mr. Huddleston, the plaintiff. He came into our yard and said a suit had been started, but did not say anything else that I remember. That was before the 19th of May, but I could not say the exact date. * * *
“Q. You understood the suit had been started at that time?
“A. Yes, sir; I understood him to say that.”
In regard to this he says:
“1 paid no attention to the statement, because I did not think it was necessary to consider anything but a summons into court.”
The testimony of Mrs. Amos, the secretary, indicates that she was quite actively connected and familiar with the business of defendant, doing all the estimating, billing, making payrolls, and paying the men. She testifies:
“I was not the general head of the business; I am the efficient head. * * * Mr. Amos has full charge of the business. He has been away three or four weeks at a time, and I have taken care of the business in his absence. * * * In the absence of Mr. Amos, I do the business.”
As to her knowledge of the import of a summons, she states:
“I have been served with garnishee summons and have been in court, but never served with any summons. This is the first summons I had ever had.”
From the foregoing it appears, uncontroverted, that all the directors of defendant had early notice that this action was imminent, and the president and secretary, its executive officers, that it had actually been commenced, in ample time to have appeared and made such defense as was desired. Legal, personal service was duly made on the secretary of defendant in its office, while she was in charge of and conducting its business as “the efficient head.” The fact that, instead of putting it in the hands of their attorney, or herself giving it to the president on his return, she turned it over to a subordinate, who neglected to follow her instructions, cannot legally amount to, nor be construed as, a circumstance beyond the control of the company of which she was secretary and a director. The trial court rightly so held, and said: “I cannot deal with the equities; I must deal with it as a matter of strict legal right.”
Defendant’s counsel urge that such strict construction is not in harmony with the tendency of former decisions of this court which hold the statute relative to appeals from justice’s court is remedial in character, and should be liberally construed, citing Braastad v. Mining Co., 54 Mich. 258 (20 N. W. 43); Capwell v. Baxter, 58 Mich. 571 (25 N. W. 493) ; Potter v. Lapeer Circuit Judge, 119 Mich. 522 (78 N. W. 536) ; Jackson v. Jackson, 135 Mich. 549 (98 N. W. 260) ; Pickell v. Coates, 147 Mich. 53 (110 N. W. 125).
Without reviewing them in detail, it can be said of all those cases that they deal with the general statute and none of them presents a state of facts analogous, as a whole, to those disclosed here. While certain of the cases may suggest a liberal construction of the statute, we cannot construe them as authority for the proposition that in passing upon the issue of circumstances beyond defendant’s control, the court will vary its findings of facts or circumstances according to disclosed equities. If important to determine here we are not prepared to find that the showing made at the hearing as to the equities is such as to impel a court to grant the appeal because justice requires it.
In this case we are dealing with the local act relative to justices’ courts in the county of Wayne, in which somewhat different and more restrictive language is used than that found in the general act. In Stock v. Wayne Circuit Judge, 143 Mich. 339 (106 N. W. 897), which also cites previous decisions of this court touching the statute under consideration, it is said:
“The entire provision for appeals bears some evidence of intention to restrict, rather than to enlarge, the right to appeal. Whether the provision of the fourth subdivision does or does not cut off the right to appeal, after five days, in any case and for any reasons, excepting those stated in the third subdivision, we are agreed that no appeal is provided for after five days unless the showing required by 1 Comp. Laws, § 909, is made.”
Under the general statute it is held not to have been the intent to confer upon the court unlimited discretion to allow appeal after five days in any case where, in the judgment of the court, it would be- equitable, but it must first be satisfactorily established, before the court can go further, that the party desiring to appeal has brought himself within the terms of the statute. Draper v. Tooker, 16 Mich. 74; Combs v. Saginaw Circuit Judge, 99 Mich. 234 (58 N. W. 71). Had it been shown to the satisfaction of the court in this case that lack of proper notice, physical causes, or other uncontrollable circumstances, without fault or neglect on the part of defendant, prevented it from appealing within the five days, thus bringing it within the provisions of the statute, then the limited discretion of the court might have been applied, on the showing made as a whole, to determining whether justice required that the dilatory appeal should be granted.
While we have in this instance concluded to consider the ruling complained of on a writ of error, no question having been raised in the record as to its propriety, this case is not to be regarded as a precedent, or an indorsement of that remedy in cases where the court has refused to take jurisdiction and denied the appeal.
Where the court has taken jurisdiction and proceeded with the case, the aggrieved party may by proper objection save the question, which can and should be raised by writ of error after final judgment; but where a final order is made refusing jurisdiction, as we have here, mandamus is the appropriate remedy. This distinction should be borne in mind and adhered to. Although it must be recognized that cases are to be found where, objections not being raised, the impropriety of the remedy has been overlooked by the court, on both contingencies.
The converse of the question here presented is discussed and cases cited in Cosgrove v. Wayne Circuit Judge, 144 Mich. 682 (108 N. W. 361), and Mikkola v. Houghton Circuit Judge, 165 Mich. 583 (130 N. W. 1118), which hold that a writ of error is the proper course where the circuit court has taken jurisdiction. It is unnecessary to here repeat what is there said or again review the cases there cited.
In Vincent v. Bowes, 78 Mich. 315 (44 N. W. 276), it is held that where the circuit court denies an appeal and by final order declines to take jurisdiction, such action can only be reviewed on mandamus. In Capwell v. Baxter, 58 Mich. 571 (25 N. W. 493), and Pickett v. Coates, 147 Mich. 53 (110 N. W. 125), the question of a final order denying an appeal appears to have been raised by writ of error, and, in the absence of objection, passed upon by this court. It may, perhaps, be said of those cases, as was said of Stock v. Wayne Circuit Judge, 143 Mich. 339 (106 N. W. 897), in Cosgrove v. Wayne Circuit Judge, supra, “the impropriety of that remedy was not suggested and did not occur to the court.” In view of the possibility that counsel may have been misled by those cases we have considered the questions raised by this writ, but neither those cases nor this are to be taken as approving authority for the remedy resorted to here.
We conclude that defendant failed to bring itself within the provisions of the statute, and the circuit court rightly denied the appeal petitioned for.
The order of the circuit court is therefore affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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] |
McAlvay, C. J.
Relator asks for a writ of mandamus to compel respondent to audit and allow a certain bill of costs incurred by it upon the trial in the circuit court for Jackson county of a certain criminal prosecution against Joseph Davidson, respondent, who was at that time a convict confined in the Michigan State prison at Jackson in said county, upon a certain information in due form, charging him with setting fire to and burning a certain warehouse within the walls of said prison on October 24, 1912. The itemized claim of relator was duly presented to respondent board for allowance, and such board refused to audit and allow the same. The only question in the case is whether the statute which provided for the payment of costs and expenses incurred in the prosecution and trial of such cases has been repealed.
The statute in question was Act No. 132, of the Public Acts of 1887, entitled:
“An act to provide for the punishment of crimes committed by any person while confined or before the expiration of his sentence in any of the penal institutions of this State.”
Section 1 of this act provided that any convict confined in the penal institutions named therein, who should commit any crime punishable under the laws of this State should be subject to the same punishment “as if the crime had been committed at any other place, or by a person not so confined.” Section 2 gave the circuit court for the county where the crime was committed jurisdiction over the case, and provided that the proceedings thereto pertaining should in all ways conform to the law and rules applying to such cases, except that the examination might be held in the office of the penal institution, and the convict so charged should continue to remain in the custody of the warden. Section 3 provided for the sentence which might be imposed upon conviction. Section 4, which is the section under which the liability of the State is claimed, provided as follows:
“All costs and expenses incurred under the provisions of this act, except pay of circuit judges and prosecuting attorneys, shall be paid by the State of Michigan.”
The legislature later passed an act designed to consolidate in one act the provisions with reference to the management, government, and discipline of the various penal institutions of the State. This is Act No. 118 of the Public Acts of 1893 (5 How. Stat. [2d Ed.] § 15268 et seq.), which is entitled:
“An act to revise and consolidate the laws relative to the State prison, to the State house of correction, and branch of the State prison in the Upper Peninsula, and to the house of correction and reformatory at Ionia, and the government and discipline thereof and to repeal all acts inconsistent therewith.”
By this later act sections 1 and 2 of the act of 1887 were substantially re-enacted by sections 64 and 65, and are therefore repealed. Section 3 of the earlier act, which provided for the imposition of the sentence in case of a conviction, was not repealed. Relator contends that section 4, upon which its claim is found ed, was not repealed. The repealing section of the later act reads as follows:
“Sec. 66. All acts and parts of acts contravening any of the provisions of this act are hereby repealed; but all proceedings pending, and all rights and liabilities existing, acquired or incurred at the time this act takes effect, are hereby saved, and such proceedings may be consummated under and according to the law in force at the time such proceedings were commenced.”
The later act of 1893 has been twice before this court for construction, first in the case of Attorney General, ex rel. Fuller, v. Parsell, 100 Mich. 170 (58 N. W. 839), which had already been twice construed (see 98 Mich. 96 [57 N. W. 33], and 99 Mich. 381 [58 N. W. 335]), where this court said:
“The very terms ‘revise’ and ‘consolidate’ imply the intention to include in such act entire control over the subject, and to exclude all prior enactments. Cooley, Const. Lim. (6th Ed.) 182, note 4. The act in question contains 66 sections, and its provisions cover the entire management and control of and discipline in the penal institutions named. There is not a single provision of the former laws which is requisite or necessary for the management and control of these institutions.
“But it is argued that the language in the repealing clause, that ‘all acts and parts of acts contravening any of the provisions of this act are hereby repealed,’ indicates an intention to retain those provisions of the old law which may be held not to conflict with the new. We are of the contrary opinion. It would be unreasonable to hold that the legislature, while covering the entire subject, and declaring its intention to be to revise and consolidate all the laws upon the subject, intended to leave in force any provisions of the former laws which the courts might determine did not contravene the provisions of the new act.
“But, however this may be, the repealing section, when read as a whole, shows the understanding of the legislature to be that the revised and consolidated act should supersede all other acts upon the subject. The repealing section closes with these words:
“‘But all proceedings pending, and all rights and liabilities existing, acquired, or incurred, at the time this act takes effect, are hereby saved, and such proceedings may be consummated under and according to the law in force at the time such proceedings were commenced.’ ”
Later, in the case of People v. Huntley, 112 Mich. 569 (71 N. W. 178), the question was considered whether section 8 of the act of 1887 was repealed by the act of 1893. This court said:
“But it is contended by counsel for respondents that this section of the act of 1887 was repealed by Act No. 118, Pub. Acts 1893. The act of 1893 wás a revision and consolidation of the former acts, and to repeal all acts inconsistent therewith. While the general rule is that statutes and parts of statutes omitted from a revision are to be considered annulled, and not to be revived by construction, yet there are many exceptions to this rule. A revisal repealing all acts repugnant to the provisions thereof cannot affect statutes which are omitted, and which are not repugnant to its provisions. State v. Pollard, 6 R. I. 290. The rule of implied repeal is clearly inapplicable also where the revising statute declares what effect it is intended to have upon the former law, as where it declares that it shall operate as a repeal of such provisions_ of earlier acts as are inconsistent with it, which is regarded as a declaration that it shall repeal only such provisions and leave unaffected such as are not inconsistent. End. Interp. Stat. § 203; Patterson v. Tatum, 3 Sawy. 164 [Fed. Cas. No. 10,830] Lewis v. Stout, 22 Wis. 234; Gaston v. Merriam, 33 Minn. 271 [22 N. W. 614], Applying these rules to the present case, it must be held that section 3 of the act of 1887 was not repealed.”
A further reason why section 3 was not repealed is because it is not only not repugnant to the provisions of the repealing statute, but is in harmony with it, and it must be considered that the legislative intent was not to repeal this section and leave the re pealing statute without any provision for imposing sentence in case of a conviction. A careful examination of both these cases will show that they are not inconsistent with each other. The question raised in the instant case relative to the status of section 4 of the earlier act was not considered in either of these decisions. It reads:
“All costs and expenses incurred under the provisions of this act, except pay of circuit judges and prosecuting attorneys, shall be paid by the State of Michigan.”
“The provisions of this act” referred to in this section, being sections 1 and 2, were repealed by reenactment in the later act, leaving no provisions in the act under which costs and expenses could be incurred. We also find the legislative intent not to re-enact this section, but to repeal the same, to be clear from the saving clause in the repealing section of the later act, providing for all liabilities already incurred, as follows:
“ * * * But all proceedings pending, and all rights and liabilities existing, acquired or incurred at the time this act takes effect, are hereby saved.
The “liabilities existing, acquired or incurred, at the time this act takes effect” would include “all costs and expenses incurred under the provisions of this act,” to be paid by the State of Michigan. It follows that at the time the later act was passed the legislature had in mind the costs and expenses which had accrued in cases already incurred, and refused to continue the liability against the State in subsequent prosecutions under the statute.
This court, therefore, holds that section 4 of Act No. 132, Pub. Acts 1887, was repealed. The writ of mandamus is denied, but without costs to either party.
Brooke, Kuhn, Stone, ■ Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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45,
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28,
2,
4,
17,
17,
-6,
6
] |
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