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Brooke, J.
Plaintiff and defendant entered into the following contract:
“Gladstone, Michigan, Feby. 9 — 09.
“H. Rubinsky,
“Muskegon, Michigan.
“Dear Sir:
“This will confirm our conversation of even date whereby we agree to sell you and you agree to purchase and pay for what scrap iron we may have at Gladstone at the following prices f. o. b. cars, railroad weight at Gladstone to be final basis of settlement: Scrap, $8.50; sheet iron and saws, $3.00 per net ton.
“We also agree to pay you $300.00 for burner now located at Garth, with the privilege of moving same at any time during the coming summer. Your acceptance will constitute all the contract necessary between us, and shall be binding upon our respective successors, heirs, and assigns. All brass, copper, and dynamo is included.
“Yours truly,
“N. W. Coop. & Lbr. Co.,
“F. P. Bushong.
“Accepted: H. Rubinsky,
“Per — Harry.”
Certain scrap was delivered to defendant thereunder, but he declined to pay therefor. Plaintiff thereupon brought suit to recover the value of the same, filing its declaration in assumpsit, and serving a bill of particulars of its claim as follows:
1909.
Peb. 22 5,800 lbs. sheet scrap iron at $2.75 per net ton.......................$ 7 98
175 10 41,200 lbs. cast scrap iron at $8.50 per net ton.......................
10 04 27 7,300 lbs. sheet scrap, iron at $2.75 per net ton.......................
182 75 43,000 lbs. cast scrap iron at $8.50 per net ton........................
6 74 4,900 lbs. sheet scrap iron at $2.75 per net ton........................
448 48 105,525 lbs. cast scrap iron at $8.50 per net ton.......................
$831 09
Loaded in Car No. 40776-30545-32852.
To this declaration the defendant filed a plea and notice. Generally speaking, the notice sets out that plaintiff had made breach of the contract, in that it had not delivered to defendant all of the scrap bargained for, and that therefore the defendant had lost the difference between the contract price and its value —about $6 per ton, a total of $900 — that no brass, copper, or dynamos were delivered, and that he should have received 3,200 pounds of this material, and which was worth $251.51 per net ton in excess of the agreed price of $8.50 per net ton, entailing a further loss on defendant of $403. Further, that plaintiff failed to deliver to defendant 15 tolls of sheet iron and saws, which were worth $8.50 per net ton, an excess of $5.50 per net ton over the agreed price of $3, entailing a further loss on defendant of $82.50. Defendant asked that his damages occasioned by the alleged breach of the contract by plaintiff should be ascer tained, and such, portion as was necessary set off against plaintiff’s claim, and the balance thereof certified in his favor.
At the close of the testimony, the court directed a verdict for the plaintiff in the sum of $759.70.
Defendant’s assignments of error are grouped under two heads: (1) Error in directing a verdict for plaintiff; (2) error in the admission and rejection of evidence.
It appears that the scrap actually shipped was shipped on February 22 and February 27, 1909; that thereafter plaintiff made frequent demands upon defendant for payment. On April 3, 1909, plaintiff wrote defendant the following letter:
“Gladstone, Mich., 4/3/09.
“Mr. H. Rubinsky,
“Muskegon, Mich.
“Dear Sir:
“We have yours of the 31st ult., and, replying, you are laboring under a mistake or misunderstanding, as we shipped you practically all the scrap we had, except a little that we were not able to gather up out of the snow, but it is not enough for a car load.
“As to the. brass, copper, and dynamos. The dynamos we sent to shops and will repair. There was no brass, except a couple of small quarter boxes, and, inasmuch as we are repairing two or three of the engines that went through the fire, these small boxes are being used. We shipped no scrap to other parties, except such as we are getting repaired to use again in our mill, and you must know that we are entitled to do this. You are taking a very technical position indeed in suggesting the things you do in your letter. We have given you an absolutely fair deal in every respect, and do not take kindly to such a letter as you have written. We treated this matter properly when you were here, giving you preference when we could have shipped the iron to better advantage to other people, because we had done business with you in some of the material at Garth. Furthermore, every dollar’s worth of material we ever bought of you at Garth we paid you spot cash right in our office. Now you come along with a letter such as you have no right to write. We are entitled to settlement long ere now for the iron shipped you, and will ask you to kindly send us remittance promptly.
“We also note you mention a difference in your weight and the railroad weight. We do not know why there should be any difference, as you know we are not interested in same as -the basis of the sale to you was railroad weights to govern. We have evidence to believe the railroad weight is correct and furthermore we are shipped hundreds of cars per month of all kinds of material that are weighed over the railroad scales at Gladstone and we find their weights in every case to be very accurate.
“We called your attention to the matter of the 2 per cent, that was on our invoice in some way by oversight. Such terms as you know, are not known to the trade at all, and we surely are as much entitled to our money when this iron was shipped, as you are to expect spot cash for material we buy of you. The raising of the question in your letter and intimations made will not tend to make future business with you very desirable, unless you are disposed to treat this matter in exactly the spirit in which the deal was made.
“We shall expect to hear from you promptly, so that we will know exactly where we are at in this matter.”
On May 17, 1909, defendant wrote plaintiff the following letter:
“May 17 1909. ’
“Northwestern Cooperage & Lumber Co., ’ “Gladstone, Mich.
“Gentlemen:
“Replying to your favor of the 15th inst., I have to say that my contract provides thatT shall receive all scrap which you had on your premises at the time that contract was made, and should also have all brass and dynamos; and I am surprised that you should have shipped any of the material covered by my contract, when you knew that I was entitled to it.
“I want a full statement showing what became of this material, through which I -am entitled to, under my contract.
“When I get this information, I will be ready to adjust this matter; but you certainly could not ask me to settle until you comply with the terms of this contract fully.”
After some further correspondence, plaintiff wrote defendant as follows:
“Gladstone, Mich., 5/15/09.
“Mr. H. Rubinsky,
“Muskegon, Mich.
“Dear Sir:
“We are in receipt of yours of the 10th. In reply, we sent to Escanaba three of our engines, constituting in all two car loads, for repairs, just as was our right according to the deal with you. It developed after-wards that one of the engines was so badly burned that it could not be repaired, consequently it was scrapped. There was also, we believe, enough put in to make car load weight, but just what this was, we are at this time unable to state. Be this as it may, you know very well that our deal provided that we were to reserve such materials as we needed for our use or any of the material or this scrap that we could use and why you should be hanging back as you are is more than we can understand. It certainly has nothing to do with the adjustment of the matter. We will thank you, therefore, to clean it up promptly.
“Yours truly,
“The Northwestern Cooperage & Lumber Co., “By I. N. Bushong, Manager.”
Fourteen days later plaintiff wrote the following letter:
“Gladstone, Mich., 5/29/09.
“Mr. H. Rubinsky,
“Muskegon, Mich.
“Dear Sir:
“Replying to yours of the 17th. As stated in our former letter, our agreement provides that we shall reserve any of the material that went through the fire that we can use in our rebuilding and what you are trying to get at in writing the way you do is more than we can understand. This was all set out very plainly in the contract, and, as you know, was also
talked fully between yourself, my son, Mr. Staple, and myself when you were here. We sent car No. 93501, weighing 45,600 pounds, and car No. 28799, weighing 45,400 pounds, to the Chatfield Iron Works at Escanaba, and on these cars were five of our engines that were through the fire, and besides some other fittings. This is everything that has gone from here, except what has been loaded on your cars. All of this material we had a perfect right to reserve as contract provides. We need not have given you more than one car load if we did not wish to, but we have given you an absolutely square deal just according to the contract, and we ask you to come forward and settle pow, or we shall have to take other measures. If you do not think we have been square with you, why don’t you come over and investigate, and not be playing the coward as you are. We have in the neighborhood of two cars of scrap here yet, but you can rest assured that it will not be shipped until you change your attitude very much. What we want now is a settlement, or else we shall take legal proceedings very shortly. Your letters are entirely out of order. We have at all times kept within our rights. We are ready to demonstrate this to you any time you will come over and make the investigation.
“Yours truly,
“The Northwestern Cooperage & Lumber Co., “By I. N. Bushong, Manager.
“Two of the engines referred to have been repaired and are here. Three are still at the iron works in Eseanaba, and you can very easily verify all we have said. We paid you cash for all the Garth material, hence your attitude is all the more ridiculous.”
On June 30, 1909, plaintiff wrote the following letter:
“Gladstone, Mich., 6/30/09.
“Mr. H. .Rubinsky,
“Muskegon, Mich.
“Dear Sir:
“We have had no advice from you with shipping orders for the balance of the scrap here and have now been waiting for nearly 30 days. If we do not hear from you within the next four or five days, as per our former letter, we shall sell this material in other directions, as we must have it off the ground.
“Yours truly,
“The Northwestern Cooperage & Lumber Co., “By B.”
It appears to be defendant’s claim that he was entitled to receive everything of metallic character belonging to plaintiff that went through the fire. Expert evidence was offered on the part of plaintiff as to what the term “scrap iron” included. We are satisfied that it cannot be held to include any material which is in a condition which will permit of repair. The correspondence clearly shows that the engines and dynamo were shipped by plaintiff for the purpose of repair, and that they were all repaired, with the exception of two of the engines, which turned out upon examination to be too badly burned to permit a restoration. The letter of plaintiff to defendant of June 30th, supra, indicates a willingness on the part of the plaintiff to deliver to defendant all the remaining scrap, even though the defendant had up to that time declined to make settlement for that which had been shipped to him in the month of February. Defendant did not comply with the request for shipping instructions, and therefore cannot be heard to complain that he did not, in fact, receive all of the scrap. It is therefore unnecessary to determine whether plaintiff was entitled to demand payment for the scrap already shipped and to decline to ship the balance in case payment was not made.
Under the terms of the contract, the railroad weight at Gladstone was to control. Defendant does not contend that he has not received according to the railroad weight the iron which at the contract price would represent the amount of the judgment against him. He does, however, claim that the proportion of cast scrap and sheet scrap was not such as is indicated by the plaintiff’s bill of particulars. This claim is based upon the evidence of defendant’s son, who claimed to have examined the scrap after receipt, and that it was three-quarters sheet iron and one-quarter heavier iron scrap. The record discloses that in loading the cars the cars were first weighed empty by the railroad company, and were then loaded with light scrap and again weighed, and thereafter the load was completed with heavier scrap, the various weights being taken by. the weighmaster. Evidence of these weights was introduced at the trial, and we are of opinion that, under the terms of the contract, the defendant is bound by them, and cannot, after receipt of the material, question their accuracy.
Error is assigned upon the refusal of the court to permit the defendant to testify how certain words in the contract came to be inserted. The court was clearly right in the ruling, as the contract was plain and unambiguous, and must be construed by the court according to its terms.
Other errors are assigned as to rulings of the court in rejecting certain testimony. They require no discussion.
The judgment is affirmed.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Brooke, J.
On November 24, 1897, complainant gave to defendant Watson her promissory note for $660, secured by a real estate mortgage covering certain lands described in the bill of complaint. On the same day defendant Watson assigned said note and mortgage, together with five other notes and mortgages, to defendant Airth as security for his note of $1,100, given to Airth. Complainant between the years 1898 and 1908 made certain payments upon principal and interest to defendant Watson, some of which were turned over to Airth by Watson. On November 8, 1911, complainant tendered to defendant Airth $145, which she claimed to be the balance due from her and demanded a discharge of the mortgage. This being refused, she filed her bill of complaint, alleging the payment to Watson of the several sums of principal and interest, alleging her ignorance of the assignment from Watson to Airth and averring that Watson was the agent of Airth. To this bill defendant Watson filed an answer admitting all the material averments, except as to the amounts paid. As to those he left complainant to her proof.
Defendant Airth filed an answer and cross-bill. He admitted the making and assignment of the mortgage as alleged, but denied that Watson was his agent to collect the moneys payable thereunder, and denied that complainant had made any payments upon principal or interest to said Watson as his agent, and claimed that there was then due him upon said mortgage the sum of $629.85; this sum being the balance due him from Watson on the $1,100 note. He prayed for an accounting as between himself, complainant, and defendant Watson, and for a sale of the mortgaged premises to satisfy any sum found to be due from complainant. Upon this cross-bill a subpoena was issued and duly served upon defendant Watson. Watson not having appeared, an order pro eonfesso was duly entered against him by the solicitor for cross-complainant Airth on June 5, 1912. On July 3, 1912, the case came on to be heard. The complainant and her counsel were present, Defendant Watson was represented by his counsel, Mr. I. S. Canfield, and defendant Airth by his counsel, Mr. William N. Cross. Testimony was taken in open court, and it was determined that defendant Watson was indebted to defendant Airth in the sum of $644.21, and that of this sum complainant should pay the sum of $272; that being the amount found to be due from her upon her note and mortgage. A decree was noticed for settlement on July 15, 1912. That decree provided that complainants should pay the sum of $272 to defendant Airth, and in default thereof her mortgage should be foreclosed, and further that defendant Watson should pay to Airth, as cross-complainant, the further sum of $372.21 with costs. On the same day (July 15, 1912) defendant Watson filed objections to the entry of any decree against him. It is necessary to notice the third objection only:
“Because said defendant Watson has not been brought before the court as a party defendant to said cross-bill.”
The other objections are all such as should have been urged by way of demurrer or answer to the cross- bill. As to the third objection, the record conclusively shows that personal service of the subpoena issued on the cross-bill was made upon defendant Watson on February 20, 1912. The proposed decree was not finally signed until January 25, 1913. In the meantime, defendant Watson had filed an answer to the cross-bill and by his counsel now claims to have secured an oral order from the court that his default should be set aside and a hearing had upon the issues raised by his answer. On January 18, 1913, complainant Emery filed a petition in the cause asking-leave to pay into court the sum of $272, and have her mortgage discharged. This petition came on for hearing on January 24, 1913, and the decree was signed the following day. On April 29th, defendant Watson filed a petition asking leave to be heard touching the issues raised by his answer to the cross-bill, voluminous affidavits and counter affidavits were filed, and the matter came on to be heard on July 7, 1913. The learned circuit judge made the following finding and order:
“In this matter it is made to appear before the court that a claim for appeal from a decree heretofore, on the 3d day of July, 1913, granted herein, was made by the said Arthur F. Watson on the 17th day of April, 1913, and a case proposed and amendments proposed to the case was this day brought on for consideration of the court, and there was also brought on for consideration before the court a petition dated April 29, 1913, in which it appears that 'the petitioner therefore appears in this honorable court and asks to be heard touching the matters of said decree and herein refers to his answer to the said bill of complaint now on file in said cause, and asks that he may be permitted to file the same, or such other answer as he may deem best in said case, and that upon the hearing said court will order that said decree be set aside, altered, or amended as to court may seem just, and that the court will grant the petitioner such other relief in the premises as to equity shall appertain,’ and said petition coming on to be heard on notice, I. S. Canfield appeared for the .defendant Arthur F. Watson, William N. Cross and Victor D. Sprague appeared for Henry M. Airth, and Mrs. Mary Emery was not personally represented, a full hearing was had upon the petition, an examination of the records and files made the answer of Mary Emery and Henry M. Airth to said petition of Arthur ,F. Watson, and the affidavits in support of said answer were all presented to the court, and after hearing counsel, and the court being fully informed in the premises, and after full hearing, the court doth find, order, adjudge, and decree as follows:
“ (1) That the said Arthur F. Watson was duly and regularly served with subpoenas to answer the cross-bill, and his default for not appearing, answering, or demurring thereto was regularly taken.
“(2) That the defaults of said Arthur F. Watson were not set aside by oral order or other order of the court as alleged in paragraph 4 of said Arthur F. Watson's petition.
“(3) That a full hearing and trial of said case was had on July 3, 1912, and testimony taken, and that said Watson was represented by his counsel, I. S. Can-field, during a portion of said hearing had on the forenoon of said day, and he absented himself on the afternoon- of said day without asking or obtaining permission of the court.
“(4) That on said July 3, 1912, after such full hearing, and argument of counsel, a decree was granted, and the terms thereof fully determined by the court, and that the decree finally entered is in accordance with the terms as then provided by the court.
“(5) That on July 13, 1912, a form of decree was presented to the court, after due notice given to Arthur F. Watson, and the other parties interested, and that there was present and represented at that time Mr. Cross, as solicitor for said Airth, and Mr. Canfield, as solicitor for said Watson, and that said Watson, through his solicitor, filed some objections and exceptions to the entering of a decree, largely based upon an affidavit in which it was claimed that the defaults of said Watson were irregular and illegal, and that no process had been issued against him under the cross-bill, and no service of said cross-bill had, which allegations as to nonservice of process and no service, this court thereafter found, and now finds to be untrue in fact, and that a subpoena was regularly issued against said Watson under said cross-bill and regularly served upon him, and his default thereafter regularly taken, and that all this occurred prior to the hearing and decree on July 3, 1912, the former decree, being taken under advisement by the court, was finally settled and signed as proposed by the court, and the same duly filed by complainant on January 25, 1913.
“(6) That since the decree was made and before the petition herein was filed, the status of the parties had changed, it appearing that under the terms of said decree Mrs. Emery had paid into court her money and had discharged the mortgage in question.
“(7) That on April 23, 1913, before the filing of the petition herein, the decree and all proceedings hereunder were enrolled.
“(8) That the decree heretofore made herein is in accordance with the justice of the case, and was duly and regularly settled according to law, and is hereby confirmed in every particular, and the petition dated April 29, 1913, of said Arthur F. Watson, is hereby dismissed as insufficient in law and fact to warrant the setting aside of said decree.”
The decree so far as it affects complainant Emery appears to have received the assent of defendant Watson in open court. As between himself and defendant Airth he has no right to complain. He was personally served with process under the cross-bill and neglected to enter his appearance. He was in court by his solicitor when the cause came on to be heard, and his counsel seems to have participated for a time in the hearing when he absented himself, before the differences between himself and Airth were considered. There are two reasons why his default, duly entered, should not have been set aside: First. He did not tender a sworn answer as required by Chancery Rule 7. Hews v. Hews, 145 Mich. 247 (108 N. W. 694). Second. His application was not made within six months after the entry of his default. St. Louis Hoop & Stave Co. v. Wayne Circuit Judge, 155 Mich. 311 (118 N. W. 989), and cases cited.
The decree is affirmed, with Costs.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit.
This was made out from information which the adjuster Spear testifies he secured from the plaintiff. It is signed by the adjuster, and not by the plaintiff. It is contended by defendant that the record clearly shows that the last item therein, “less purchaser’s interest per advance payment made, $80.00,” is clearly false, as the record conclusively shows that a much larger sum had been paid plaintiff. Plaintiff denies all knowledge of this entry. Even where the false statement has been sworn to, it has been held not to void the policy in certain instances. Tiefenthal v. Insurance Co., 53 Mich. 306 (19 N. W. 9) ; Knop v. Insurance, supra; Walker v. Underwriters’ Ass’n, 142 Mich. 162 (105 N. W. 597). | [
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Kuhn, J.
(after stating the facts). It is clear from the reading of the local act of 1903 that it was the intention of the legislature that all proceedings to take private property for the use and benefit of the public in the city of Detroit should “be held and prosecuted under the provisions of this act and no other.” Act No. 149, Pub. Acts 1911, containing no repealing clause, it must also be clear that it. did not repeal the local act in question. The general legal principles applicable were recently stated by this court in Hopkins v. Sanders, 172 Mich. 227, 235, 236 (137 N. W. 709), when it was said, in referring to other decisions upon this question:
“From them can be deduced the general principles that repeals by implication are not favored; that there is no presumption of an intention on the part of the legislature to repeal a law where no reference is made to it in a later act, unless the intent is clear, and, where an act is passed for a particular purpose it is not to be held as abrogated by subsequent general legislation, which may be sufficiently broad to include it, unless the intent to abrogate is so clear and distinct as to be unavoidable. * * *
“An examination of the authorities on repeals by implication shows clearly a tendency to sustain local acts as silently excluded from the operation of subsequent general acts, where the legislative intent is not so clear and positive as to render it impossible to do so; and only where the implication of intention to repeal necessarily flows from the language used, and discloses a repugnancy between its provisions and those of the former law so positive that it is impossible to reconcile the two by any fair construction, will repeal by implication be declared.”
See, also, Lake v. Village of Cedar Springs, 162 Mich. 569 (127 N. W. 690).
In considering the question of the unconstitutionality of the local act for the reasons urged by counsel for the city, the distinction between assessments for local benefits and a general tax must be borne in mind.
It is well settled in this State that the rule of uniformity of taxation provided for in the Constitution of the State has no application to assessments for local improvements. Woodbridge v. City of Detroit, 8 Mich. 274; Motz v. City of Detroit, 18 Mich. 495; Hoyt v. City of East Saginaw, 19 Mich. 39 (2 Am. Rep. 76) ; Sheley v. City of Detroit, 45 Mich. 431 (8 N. W. 52).
The distinction between these assessments and a general tax is clearly set forth in 2 Cooley on Taxation (3d Ed.), pp. 1153-1155:
“Special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for State and municipal purposes, and governed by principles that do not apply universally. The general levy of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed, beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited, in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it. The' justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby; their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay. This is the idea that underlies all these levies. The distinction between them and ordinary taxation has thus been pointed out in a recent case:
" £A local assessment can only be levied on land; it cannot, as a tax can, be made a personal liability of tbe taxpayer; it is an assessment on tbe thing supposed to be benefited. A tax is levied on tbe whole State or a known political subdivision, as a county or a town. A local assessment is levied on property situated in a district created for tbe express purpose of tbe levy, and possessing no other function, or even existence, tban to be tbe thing on which tbe levy is made. A tax is a continuing burden and must be collected at stated short intervals for all time, and without it government cannot exist; a local assessment is exceptional both as to time and locality — it is brought into being for a particular occasion, and to accomplish a particular purpose, and dies with the passing of the occasion and the accomplishment of the purpose. A tax is levied, collected, and administered by a public agency, elected by and responsible to the community upon which it is ■ imposed; a local assessment is made by an authority ab extra. Yet it is like a tax in that it is imposed under an authority derived from the legislature, and is an enforced contribution to the public welfare, and its payment may be enforced by the summary method allowed for the collection of taxes. It is like a tax in that it must be levied for a public purpose, and must be apportioned by some reasonable rule among those on whose property it is levied. It is unlike a tax in that the proceeds of the assessment must be expended in an improvement from which a benefit clearly exceptive and plainly perceived must inure to the property upon which it is imposed.’
“Not all these differences are necessarily existent in every case, but in the main the characterization is accurate as it is forcible.”
For a review of other text-books and decisions of other courts on this subject, see Arnold v. Mayor of Knoxville, 115 Tenn. 195 (90 S. W. 469, 3 L. R. A. [N. S.] 837, and note, 5 Am. & Eng. Ann. Cas. 881) ; also County of Adams v. City of Quincy, 130 Ill. 566 (22 N. E. 624, 6 L. R. A. 155, and note).
By the terms of the local act it was designed to assess the cost of such a public improvement upon the real estate of a district which might or might not, in the legislative discretion, be coextensive with the geographical limits of the municipality or political subdivision where the improvement was made. The common council having failed to provide a smaller assessment district, and having determined that the cost should be borne by the city, it becomes a burden on all the taxable real estate of the city. Special assessments, as a rule, are not levied on personal property, but generally on real estate alone. The rule deducible from reading the authorities is that it is within the province of the legislature to say that the real estate alone shall be subject to such a special assessment, for the reason that special benefits accrue almost exclusively to lands, so that generally, in works commonly classed as “internal improvements,” the real estate alone has been taxed; and that the legislative authority, either of the State, or when properly authorized, of the municipality, may determine over what territory the benefits are so diffused as to render it proper to make all lands contribute to the cost. The legislature having conferred the power on the city by the local act in question to determine how much of the real estate in the city is benefited by the proposed improvement, their determination of the area benefited is final and conclusive, in the absence of fraud, or unless the absence of benefit makes it manifest that the burden amounts to spoliation, and not taxation. Shimmons v. City of Saginaw, 104 Mich. 511 (62 N. W. 725) ; 1 Page & Jones’ Taxation by Assessment, § 555.
We are satisfied that the said Local Act No. 541 of 1903, because it provides a method of paying for public improvements by a special assessment which may or may not be upon all of the real estate of the city, as the council by proper resolution may determine, is not subject to the constitutional objection urged. The said act providing that all proceedings to take private property for the use and benefit of the public shall be brought under its provisions, and the pending proceedings being clearly of that character, it was improper not to bring them as the act clearly directs.
Appellant’s plea to the jurisdiction of the circuit court should have been sustained.
The case is remanded to the circuit court, with directions to make such an order.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
Steere, J.
This is a contest over the last will and testament of Dennis Dailey, formerly of Wyoming township, Kent county, Mich., who died in the city of Grand Rapids on November 3, 1910, at the age of about 67 years, leaving an estate of uncertain value, consisting of over $3,500 of personal property and 40 acres of land lying close to the city of Grand Rapids, valued by certain witnesses as high as $10,000; the whole estate, however, being estimated in the petition for probation of his will at approximately $7,000. He never married, and was survived by a brother, Jeremiah Dailey, residing in Nebraska, a sister, Mrs. Mary McCarthy, and four nieces and nephews residing in Minnesota, and a niece and nephew apparently residing in Massachusetts.
On April 30, 1910, while a patient at a hospital in Grand Rapids, deceased executed the will in controversy, by the terms of which he bequeathed $600 to his sister, Margaret (Mary) McCarthy, $100 to his parish priest, $5 to each of four nephews and nieces, and the remainder of his estate to his brother, Jeremiah Dailey.
The instrument in question is in legal form, appearing on its face to have been executed in compliance with all statutory requirements. It was filed with, and admitted to probate in, the probate court of Kent county, on the petition of Mary McCarthy, after a contest in which she was one of the contestants, protesting against its admission to probate. Subsequently the proceedings were removed by appeal to the circuit court, in which she joined with other contesting heirs, where a trial by jury resulted favorably to the contestants. The contest was made upon the grounds of undue influence and mental incompetency.
It was claimed by contestants, and testimony was introduced tending to show, that the alleged mental incompetency resulted directly from an attack of apoplexy followed by partial paralysis, which came upon deceased but three days before the date of the will, and that failing health occasioned by hardening arteries naturally led up to, and caused, the apoplexy; that subsequent to the attack he was removed to a hospital, where he remained until his death, his mind being seriously impaired and enfeebled to such an extent that he was wholly incapacitated to understandingly transact any business, and mentally incompetent to make a will. This claim is further emphasized and elucidated by the testimony of experts, produced by contestants who, in answer to hypothetical questions pages in length, state that deceased must have been, and in truth was, suffering for a considerable time before the making of his will with general atheroma and arterial sclerosis, which were the superinducing causes of the apoplectic stroke, and that mental impairment and ineompetency existed as the inevitable result of his malady; while experts called by proponent testify to the contrary in answer to equally long hypothetical questions, and say that deceased’s mental condition at the time of the execution of his will was such that he was perfectly competent to transact such business understandingly, and possessed of sufficient testamentary capacity to dispose of his estate, asserting that, even though affected with the maladies testified to by experts upon the opposite side, it did not follow that his intellect was materially impaired, because persons affected with general atheroma and arterial sclerosis could be, and often were, mentally normal, and competent not only to understandingly make testamentary disposition of their property, but to follow intellectual pursuits.
In support of the will it was claimed, and testimony was introduced tending to show, that the condition of deceased on the day he went to the hospital was not such, nor so serious, as claimed by contestants, and did not result from a stroke of apoplexy, but from an attack of vertigo coming upon him while at work following a very hearty meal; that shortly thereafter he was able to walk and talk, and had possession of his faculties as before, although, realizing he was in failing health, he followed the advice of his pastor and went to the hospital, where he remained until his death, which was six months later; that at the time he went there and when he made his will he was in full possession of his mental faculties, knew his relatives and friends, visited with them, and discussed his business affairs, understood the nature and extent of his property and what disposition he desired to make of it; that, in speaking of his business matters with his brother, who had come to visit him, he asked for a notary to get his affairs settled, and, in compliance with this request, an attorney, who was a notary, was summoned and introduced to him, who, after some general conversation, prepared the will while alone with deceased in his room, summoning two nurses as witnesses when the instrument was ready for execution. They testified to facts showing compliance with legal requirements, and to testator’s participation in, and apparent understanding of, what was being done, as indicated by remarks made by him while executing the will, telling the attorney, who started to read the will in their presence, that he need not read the rest of it, as testator knew all that was in it.
The two grounds of contest, upon each of which there was abundance of sharply conflicting testimony, were submitted to the jury, in connection with the general charge of the court, by special questions, which, with their answers, are as follows:
“(1) Q. Was undue influence used upon Dennis Dailey in making the will in question? A. No.
“(2) Q. Was Dennis Dailey on April 30, 1910, at the time of making the will in question, mentally competent to make said will? A. No.”
The question of undue influence having been decided by the jury in appellants’ favor, the 201 assignments of error in this record, upon all of which we are advised appellants rely, relate to the issue of mental incompetency. A careful reading of the record convinces us that most of these are not well founded and call for no serious consideration. Many of them involve a contention that in the general conduct of the case the attitude of the court was adverse to those seeking to sustain the will, and prejudicial to a fair trial.
Nineteen assignments of error and many pages of appellants’ brief are devoted to tentative rulings of the court sustaining objections to subscribing witnesses giving their opinion as to the mental competency of testator, at the time of executing his will; they having related their means of observation and facts upon which they based their opinions. One of these witnesses was allowed to testify to her opinion before leaving the stand; the other later. Although the latter’s testimony was insisted upon and considerable discussion had, the court expressed a purpose to further investigate the question before admitting the testimony and said:
“If I am satisfied later that I am wrong about that I will not hesitate to reverse the ruling.”
This occurred during a session of the court on Saturday, and at the opening of court on Monday the court called up the matter of this ruling, stated he had announced at that time he would investigate the question and might change said ruling, and that, after giving the matter some study, he had decided the testimony was competent, and he would allow it. The evidence of the witness was thereupon introduced. Full latitude was finally given in the examination of both witnesses upon that subject. Counsel now insist the conduct and remarks of the court in the first instance belittled this testimony and were prejudicial, stating that such “prejudice to proponents would not have arisen * * * if he had less stubbornly refrained from ruling upon something with which he had absolutely nothing to do, and constantly reminding the jury that the opinion of those witnesses was not of sufficient value to be entitled to their consideration.” The last utterance of the court upon such ruling was to the effect that he was previously mistaken and the opinions of those witnesses were entitled to be considered by the jury. We have examined all that was said by the court and counsel in connection with this matter, and conclude that the subsequent admission of the testimony obviated the error previously committed. Cool v. Snover, 38 Mich. 562; Mason v. Partrick, 100 Mich. 577 (59 N. W. 239). While other isolated remarks of the court pointed out by counsel as prejudicial might be considered as cap tious, when considered alone, when read with the record as a whole, they do not impress us as of the import or importance contended for. We do not discover from this record that the court disclosed any opinion on the merits of the case or special inclination to favor either side of the controversy.
Some confusion appears in certain parts of the record, and possible misunderstanding, as to who were parties to these proceedings. The original proponent of said will, and, so far as the record shows, the only one who ever filed a formal petition for its probation, was Mary McCarthy, deceased’s sister and a beneficiary under said will to the extent of $600. After starting the machinery of the court in motion, she, with other heirs, filed objections and contested the probation. The order admitting the will to probate recites that upon the date appointed for hearing said petition, and when objections had been filed by Mary McCarthy, Jeremiah Dailey appeared by counsel as proponent in support of said petition. The order made upon said hearing, after reciting in proper form the admission of said will to probate, appointed Martin Whalen administrator of said estate, with the will annexed. He and Jeremiah Dailey appear to be sometimes collectively referred to in the record as the proponents, although Whalen’s name is first found in the records as administrator after the will was probated, and only in that capacity. He was not a proponent, and it- was stated on the trial, by counsel for Jeremiah Dailey, that they represented Whalen only as administrator of the estate. He was called as a witness by proponent Dailey to testify to deceased’s mental competency. Objections to certain questions asked him were sustained on the ground that he was an opposite party, precluded by statute from testifying to matters which, if true, must have been equally within the knowledge of deceased.
We are impelled to hold, under a well-settled line of authority, that the proposed testimony was erroneously excluded, and upon this record are unable to say this was harmless error. Whalen was a near neighbor of deceased, and knew him intimately for 42 years, seeing him often. Two days before he went to the hospital deceased called at witness’ place and stayed about an hour. Witness also visited deceased while in the hospital, where he observed his condition and appearance and conversed with him. Objections were sustained to the following questions:
“Q. Well now, tell the court and jury what you observed and what you heard him say and what your conversation was at that time.”
“Q. What have you to say as to his health and physical condition and his mental condition on these two occasions?”
The court ruled that this witness could give no conversations with deceased, nor testify as to what he talked about, nor the things said by him, nor state what witness observed as to his mental condition, nor express any opinion as to his mental competency based on facts seen and known by witness.
Contestants were permitted to thoroughly cover all this range of inquiry with witnesses of shorter acquaintance, and apparently less intimacy and opportunity for knowledge than Whalen. His proposed testimony bore directly upon the one controlling issue decided adversely to proponent, and was only rejected on the theory that he was an “opposite party,” within the meaning of section 10212, 3 Comp. Laws (section 12856 [2d Ed.] 5 How. Stat.). Whalen was neither a propent nor contestant. He was not interested as an heir or legatee; the proceeding was not against him nor the estate as such; it did not seek to deplete the estate, but was only to obtain an adjudication of how it should be distributed. The statute did not apply to him. This subject has been fully adjudicated, and is discussed in its various aspects more or less directly in point in the following cases: Brown v. Bell, 58 Mich. 58 (24 N. W. 824) ; Schofield v. Walker, 58 Mich. 96 (24 N. W. 624); Duryea v. Granger’s Estate, 66 Mich. 593 (33 N. W. 730) ; Lautenshlager v. Lautenshlager, 80 Mich. 291 (45 N. W. 147) ; McHugh v. Fitzgerald, 103 Mich. 21 (61 N. W. 354); Moore v. Machen, 124 Mich. 216 (82 N. W. 892) ; Tabor v. Tabor, 136 Mich. 255 (99 N. W. 4) ; Ashley v. Smith’s Estate, 152 Mich. 197 (115 N. W. 1052) ; Freda v. Tishbein, 174 Mich. 391 (140 N. W. 502).
As this error demands a retrial of the case, we deem it unimportant and unnecessary at this time to further consider other questions raised.
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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] |
Butzel, C. J.
Plaintiff, after a hearing before the Michigan liquor control commission followed by a revocation of his license, filed a bill in the circuit court for the county of Macomb in order to set aside the revocation. He claimed that the hearing was conducted in an arbitrary manner, that plaintiff was prevented from presenting a full and complete defense, that hearsay testimony was admitted at the hearing, and that the hearing was not limited to law and facts. Defendants filed a motion to dismiss based upon section 20 of the liquor control act (Comp. Laws Supp. 1945, §9209-35, Stat. Ann. 1945 Cum. Supp. § 18.991), which limits appeals from the final determination of the commission to certiorari. At the hearing it was conceded that the governor had not appointed a board of hearing examiners provided for in section 5a of the liquor control act (Comp. Laws Supp. 1945, § 9209-20a, Stat. Ann. 1945 Cum. Supp. § 18.975[1]). The trial judge held that he had no jurisdiction in the cause by reason of the statutory enactment limiting the review on appeal to certiorari. See section 20, supra (Comp. Laws Supp. 1945, §9209-35, Stat. Ann. 1945 Cum. Supp. §18.991). Plaintiff appeals from the order dismissing the bill.
Plaintiff claims that notwithstanding the law that appeal shall be by certiorari, he could not be deprived of his right to secure an injunction in a court of equity. He claims that the law is unconstitutional if it deprives him of the right to enjoin the revocation of his alleged rights. All questions involving the constitutionality of the law as well as the legality of the revocation could properly have been raised in certiorari proceedings. -There it could be determined whether plaintiff had a fair hearing and whether there was such showing of facts and law as to justify the commission in entering the order, and to show whether the commission acted capriciously, fraudulently or illegally. The legislature could properly limit the form- of appeal to certiorari. Board of Education of Grand Rapids v. State Tax Commission, 291 Mich. 50. In Kundinger v. City of Saginaw, 59 Mich. 355, it was held that the right of general appeal from one tribunal to another is a statutory and not a constitutional right. The rule is so well stated in 28 Am. Jur. p. 242, that after examining the authorities that support such rule, we quote:
“Suits for injunction very often draw into controversy the validity and enforceability of orders and regulations of public utility bodies and commissions. In such cases, the question sometimes arises whether the existence of a remedy by judicial review of such orders or regulations will defeat the right to invoke the aid of a court of equity. If the remedy by appeal is adequate and complete, it will prevent injunctive relief. The rule has been applied to orders or decisions of public utility commissions relating to the equipment and operation or the fares of street cars. A remedy by appeal from an order of the Federal communications com mission will, where adequate, preclude injunction against actions of, or decisions by, the commission.”
We also call attention to the cases to like effect cited in 77 A. L. R. p. 629. An appeal in the nature of certiorari, as provided by law, gave plaintiff all to which he was entitled. He was not entitled to any equitable relief.
Having thus disposed of the main question in the case, we need not discuss the other question raised, as to whether plaintiff’s license could be revoked without a finding by a board of hearing examiners, except to refer to Case v. Liquor Control Commission, ante, 632, relating to Act No. 8, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 133, Pub. Acts 1945.
The order of dismissal is affirmed, with costs to defendants.
Carr, Sharpe, Boyles, Reid, North, and Starr, JJ., concurred. Bushnell, J., took no part in the decision of this case.
Act No. 8, Pub. Acts 1933 (Ex. Sess.), as amended by Act No. 133, Pub. Acts 1945. | [
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North, J.
This is an original habeas corpus proceeding in this Court wherein the writ was issued July 23, 1943. The occasion of issuing the writ is disclosed by the following: Pearl Adams, the petitioner, occupied a dwelling at 314 University Place in the city of Grosse Pointe. This property was subject to a zoning ordinance which prohibited the use of the property for other iban a private dwelling. Petitioner was charged and convicted in the justice court of violating the ordinance in-'that she was using the property “for other than a private dwelling in that there is more than one housekeeping unit and the premises are occupied by more than one family.” She appealed to the circuit court of Wayne county and on trial by jury was again convicted. The circuit judge thereupon placed petitioner on probation for two years subject to various conditions, among them being that plaintiff would pay $200 costs and discontinue the unlawful use of the dwelling. Shortly after the above disposition of the case was made by the circuit judge, petitioner and her counsel appeared before the circuit court and announced that she desired to appeal the case and wished a stay of proceedings. Thereupon the circuit judge entered an order requiring the petitioner to file a bond in the sum of $1,000 with surety. Petitioner claims that the order was for an appeal bond; but the circuit judge asserts that it was a bail bond, for which the statute provides. See 3 Comp. Laws 1929, § 17362 (Stat. Ann. § 28.1105). Petitioner failed to give the bond, and thereupon on order of the circuit court she was taken into custody by the sheriff. On petition of Pearl Adams a writ of habeas corpus was issued out of this Court to the sheriff of Wayne county for the obvious purpose of inquiring into the legality of petitioner’s commitment; and an ancillary writ of certiorari was issued to the circuit judge. His return thereto was timely made. By our order petitioner was released upon her own recognizance.
Except as hereinafter noted no further steps were taken in the habeas corpus proceedings. And, so far as the record before us discloses, petitioner has done nothing in the way of appealing from her conviction in the circuit court. On March 22, 1946, two years and eight months after the issuance of the writs of habeas corpus and certiorari, the circuit judge to whom certiorari was directed filed a motion to dismiss the petitioner’s case, reciting as ground therefor her inexcusable delay in prosecuting the proceedings. She has filed opposition to the motion to dismiss.
We do not herein pass upon the merits or demerits of petitioner’s commitment because of default by her in furnishing the bond ordered by the circuit judge. But it is obvious that by the procedure to which she resorted petitioner has avoided compliance with the terms of her probation as to paying the costs adjudged against her and has cir cumvented the trial court’s enforcement of other terms of her probation, including supervision of her conduct by the probation officer as provided in the order of the circuit court. The .motion to dismiss is meritorious. In arriving at this conclusion we are mindful that subsequent to filing the motion to dismiss and on April 9, 1946, petitioner’s counsel noticed, the habeas corpus proceedings for hearing. This, however, neither justifies nor obviates petitioner’s inexcusable dilatory tactics, as to which she offers no satisfactory explanation or excuse.
The motion to dismiss the habeas corpus proceedings is granted, and costs may be taxed against petitioner.
Butzel, C. J., and Caer, Bushnell, Sharpe, Boyles, Reid, and Staer, JJ.,- concurred. | [
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] |
Sharpe, J.
On August 3, 1944, plaintiff filed a bill for divorce in which it was alleged that the parties were married November 29, 1929; that as a result of the marriage one child-was born September 15, 1930, whose name is Gerald Lukshaitis; that during their cohabitation defendant was cruel to her in that among other things he was often intoxicated and on such occasions was abusive and quarrelsome ; that plaintiff is unable to work because of her undermined and chronic physical condition and has poor eyesight; that during the year of 1939 the parties acquired as tenants by-the entireties a resi dence in the city of Detroit of the value of $13,000 subject to a mortgage in the sum of $5,000; that defendant owned an automobile of the value of $900; and that defendant is a police officer of the city of Detroit.
Defendant filed an answer and cross bill, but at the time of trial withdrew both his answer and cross bill. At an adjourned hearing of the cause, defendant’s counsel was permitted .to cross-examine plaintiff as to her physical condition and to offer evidence as to alleged misconduct of plaintiff and to dispute the allegations in plaintiff’s bill of complaint that she was unable to work. Defendant testified that out of his salary he purchased practically all of the household furniture and kitchen utensils; that his salary is approximately $58 per week; and that he personally is indebted to several people in an amount of approximately $550.
The trial court filed an opinion in which he found as a fact that the home of the parties has a net value of $11,400 subject to a mortgage of $4,409; that the furniture has a value of $650; that the automobile has a present value of $800; and that war bonds held by defendant are of the value of $150.
A decree was entered by the trial court granting plaintiff a divorce, but without alimony. The decree also provided that .defendant pay plaintiff the sum of $3,000 payable at the rate of $50 per month including interest at the rate of five per cent., said payment to be in lieu of any dower right of plaintiff. The decree also provided for a division of the household furniture; and that defendant deliver to plaintiff four $250 life insurance policies.
Plaintiff appeals and urges that where a bill of complaint for divorce has been' taken as confessed, it is prejudicial error on the part of the trial court to admit testimony contradicting the allegations in the bill of complaint.
In Westgate v. Westgate, 291 Mich. 18, the claim was made that the trial court permitted the receiving of immaterial and prejudicial testimony. We there said (p. 25):
“It must be assumed, without convincing evidence to the contrary, that the court disregarded all evidence improperly admitted. The reception of any such testimony, under the circumstances, is not error which so affects the merits of the case as to be grounds for reversal.”
In that case we also said:
“The statute [3 Comp. Laws 1929, § 12728 et seq. (Stat. Ann. §25.86 et seg.)] provides that such proceedings shall be in chancery and in all the important considerations affecting custody of children, alimony and property interests, a large discretion is lodged in the court.”
We note that plaintiff testified as to her physical condition. We shall assume that the trial court admitted the testimony as bearing upon plaintiff’s ability to work and not for the purpose of negativing any testimony of plaintiff as to her right to a divorce. It must also be assumed that the trial court disregarded all testimony that negatived plaintiff’s right to a divorce.
It is also urged that plaintiff is entitled to alimony and that the property settlement is unfair to plaintiff. Both of these issues relate to the abilities of each of the parties to be productively employed in the future, their present financial condition, and the contributions each has made to the property now owned by the parties. We must assume that the trial court, in coming to his determination, took into consideration each of the elements above noted together with the fact that defendant would have the care, custody, support and education of the son Gerald, who chose to live with his father.
In Schmoltz v. Schmoltz, 116 Mich. 692, we said:
“Alimony rests entirely in the judgment of a court of equity, and depends upon the condition and situation of the parties, — the necessities and property of the wife, and the conduct and abilities of the husband.”
In Van Dommelen v. Van Dommelen, 218 Mich. 149, we said:
“In making the award (alimony), and later in enforcing it, the court is expected and required to have due regard to the ability of the husband, the character and circumstances of the parties and all other circumstances of the case.”
In Montgomery v. Montgomery, 221 Mich. 31, we said:
“The real estate was held by the entireties. The court was not required to divide the real estate held by the entireties equally between the parties. He might make such division between them ‘as he shall deem equitable and just.’ 3 Comp. Laws 1915, §§ 11416, 11437. * * * Allen v. Allen, 196 Mich. 292.”
The trial court found as a fact, “I am of the view that, at the present time, Mrs. Lukshaitis is able to work and able to support herself, at least in part. ’ ’ The report of the friend of the court shows that when the present suit was instituted in August, 1944, plaintiff was 33 years of age and defendant 37 years of age. We have reviewed the record carefully and conclude that the trial court came to a just and equitable result on the questions of alimony and division of property. We cannot,say that had we occupied the position of the trial court we would have reached a conclusion materially different than that reached by the trial court.
The decree of the trial court is affirmed, but without costs.
Butzel, C. J., and Carr, Bushnell, Boyles, Reid, North, and Starr, JJ., concurred.
These sections are 3 Comp. Laws 1929, §§ 12747, 12767 (Stat. Ann. §§25.105, 25.132). — Reporter. | [
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Starr, J.
Oil February 13, 1945, plaintiff made a written offer to purchase from defendants the dwelling-house property located at 911 Barringtou road in the .village of Grosse Pointe Park for a price of $17,500. He deposited $500 with defend ants’ real-estate agent, and Ms offer provided in part as follows:
“Deal to be consummated by tbe additional payment in cash or by certified check of the sum of $17,000 by the purchaser to the sellers, and the execution and delivery by the sellers of a warranty deed conveying a marketable, unencumbered title.
‘ ‘ This offer being made by the purchasers is contingent upon their obtaining a Federal-housing-administration-guaranteed mortgage in the amount of $11,000, which commitment must be obtained not later than March 1, 1945, and in the event such an amount cannot be obtained or an amount satisfactory to purchasers, the deposits made herewith shall be returned to the purchasers and this agreement become null and void. # * *
“If above proposition is accepted by owner, on or before February 15, 1945, we (plaintiff) agree to carry out the purchase of said property as above set forth within 10 days after delivery of abstract or title policy or forfeit as full liquidated damages the above deposit.
“If title is defective, owner is to have 30 days to correct the same, and should he not do so, the purchaser may either accept the title or cancel this agreement, in which latter event the deposit made herewith will be returned. Under no circumstances shall the owner be liable for nonperformance hereof by reason of defective title except to cause the return of such deposit.”
Defendants signed an acceptance of plaintiff’s offer, and on February 25, 1945, at his request, they agreed in writing to extend the time within which he could obtain a mortgage ■ loan commitment to March 15th. The balance of $17,000 was not paid, and on March 25th defendants refused to grant a further extension of time within which to close the deal. On March 27th they notified plaintiff by letter that they were terminating their agreement to sell because of his “failure to perform within the time specified,” and that they had instructed their agent to refund his $500 deposit.
The next day, March 28th, plaintiff began the present suit to compel specific.performance, and in his bill of complaint he offered to pay into court the full purchase price of the property. Defendants answered, alleging that plaintiff had failed to perform, and denying his right to specific performance. The case was tried and a decree entered dismissing the bill. Plaintiff’s motion for a rehearing was denied, and he appeals.
The material facts are not in dispute. Plaintiff’s offer expressly provided that if he did not obtain a mortgage loan commitment by March 1st (later extended to March 15th), his deposit of $500 would be returned and the agreement would be “null and void.” He did not obtain a mortgage loan commitment by March 15th, and the record shows clearly that he did not have funds available to complete the payment to defendants until March 27th. Furthermore, plaintiff did not tender the balance due on the purchase price prior to filing his bill of complaint.
Plaintiff contends that time was not of the essence of the agreement of sale and purchase, because it was not so specified. He claims that he was entitled to further time after March 15th within which to complete the transaction. "We cannot agree with this contention, as the terms of the agreement and extension agreement clearly indicate that time was intended to be of the essence. In 17 C. J. S. pp. 1070, 1071, it is stated:
“An express provision is not necessary in order to make time of the essence of the contract.”
It should be noted that at plaintiff’s request defendants executed a supplemental agreement extending the time within which he could obtain a commitment for a mortgage loan to March 15th. In 13 C. J. p. 687, it is stated:
“A new agreement extending* the time of performance of a contract is evidence that the parties considered'time material.”
“Any words which show that the intention of the parties is that time shall be of the essence of the contract or any clause which provides in unequivocal terms that if the fulfilment is not within a specified time the contract is to be void will háve that effect. * * *
“A new agreement extending the time of performance is evidence that the parties considered time as of the essence.” 12 Am. Jur. p. 866, § 311.
See, also, 66 C. J. pp. 691-693.
In MacGlashan v. Harper, 299 Mich. 662, 667, we said:
‘ ‘Equitable relief by way of specific performance should not be granted to plaintiff unless his course of conduct relative to the transaction has been one that warrants the approval of a court of equity. Brear v. Baumgartner, 249 Mich. 633. Specific performance is a remedy of grace and not a matter of right, Mowat v. Walsh, 236 Mich. 391, and the test of whether or not it should be granted depends upon the peculiar circumstances of each case, Waller v. Lieberman, 214 Mich. 428. The granting of this equitable remedy lies within the discretion of the court. Stecker v. Silverman, 294 Mich. 422. See, also, Richards v. White, 44 Mich. 622; Smith v. Stewart, 245 Mich. 452; and 58 C. J. p. 1078, § 336.”
“The test to be applied in such cases is, Are the sellers obligated to sell and the purchaser to buy?” Muirhead v. Freimann, 270 Mich. 181, 185.
“As the rule is generally stated, equity will decree the specific performance of a contract only in. cases where there is a mutuality of obligation and of remedy.” 49 Am. Jur. p. 47.
See, also, Czeizler v. Radke, 309 Mich. 349.
Reviewing the record de novo, we conclude that time was of the essence of the agreement in question; that plaintiff failed to make payment of the balance of the purchase price within the specified time; that he did not obtain a commitment for a mortgage loan on the property by March 15th and that the agreement thereupon became “null and void.” Under the facts and circumstances shown by the record, defendants were entitled to terminate the agreement.
Plaintiff failed to establish his right to specific performance, and the trial court did not err in denying his motion for a rehearing. The several cases cited by plaintiff do not sustain his contentions, as the factual situations presented therein distinguish them from the present case.
The decree dismissing the bill of complaint is affirmed, with costs of both courts to defendants.
Butzel, C. J., and Carr, Bttshnell, Sharpe, Boyles, Reid, and North, JJ., concurred. | [
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Starr, J.
These parties were married in July, 1932, and one child, a son now about 11 years old, was born of the marriage. In October, 1943, plaintiff, then a resident of Grand Eapids, filed petition for separate maintenance under 3 Comp. Laws 1929, § 12794 (Stat. Ann. § 25.211). She alleged that defendant was guilty of extreme and repeated cruelty; that he had failed and refused to provide her and the child with a home and sufficient support; that he had sought the company of another woman; and that he and this woman were living in the same house in Detroit. She alleged that defendant’s misconduct had so impaired her health and nervous system that she had been committed to the Kalamazoo State hospital for several months; and that while there, defendant, as her guardian, obtained $3,000 from their joint bank account and invested it in the Detroit home in which he and the other woman were living. She further alleged that she had later been adjudged sane and released from the hospital, but that she was without funds and unable to engage in steady employment and was in dire need of financial assistance.
Defendant answered, denying plaintiff’s charges and her right to separate maintenance. He later filed a cross bill in which he asked for an absolute divorce on the ground of extreme and repeated cruelty. He alleged that for many years plaintiff had failed and refused to fulfill her marital obligations ; that she had become so obsessed with certain religious beliefs that she refused to attend social gatherings and to have sexual intercourse with him. He alleged that she was not completely sane at the time of their marriage; and that her religious obsession had so unbalanced her mind that she was committed to the Kalamazoo State hospital. He further alleged that, although her sanity had been legally restored, she continued to be obsessed with insane ideas; and that she had failed to care properly for their home and their child.
The case was tried and a decree entered granting plaintiff separate maintenance, the custody of the minor child, alimony of $20 a week, and dismissing defendant’s cross bill. On his petition the alimony was later reduced to $18 a week. He also filed petition to amend the decree so as to grant him an absolute divorce and custody of the child. Further testimony was taken and an order entered denying this petition. Defendant appeals, and, this being a chancery case, we review de novo.
These parties apparently lived rather happily together for several years after their marriage. They bought and paid for a home in Grand Rapids and paid for a farm which they had purchased in Gratiot county. Their marital discord appears to have started following plaintiff’s conversion to certain religious beliefs at an evangelistic meeting in 1935. In January, 1943, plaintiff suffered a mental breakdown and was committed by court order to the Kalamazoo State hospital, where she remained for several months. During her confinement in the hospital defendant was appointed as her guardian. He immediately withdrew about $2,900 from their joint bank account and invested it in the purchase of a home in Detroit. Plaintiff charged him with improper association with a certain woman, and he admits that after acquiring the home in Detroit, he rented it to this woman, that she and her family occupied it, and that he lived there, ostensibly as a roomer and boarder.
In the summer of 1943 plaintiff had sufficiently-recovered her health to leave the State hospital, and later a court order was entered restoring her sanity. Upon her discharge from the hospital the parties apparently made some effort to effect a reconciliation. They went on a vacation trip together, but after a few days they separated, and defendant left plaintiff with relatives in Lansing and returned to Detroit. Pie thereafter sent her small sums of money but not sufficient for the support of herself and the child. Other attempts to effect a reconciliation were futile, and in October, 1943-, plaintiff began the present suit for separate maintenance.
The record is quite convincing that the marital difficulties between these parties are irreconcilable and that it will be impossible for them to live in peace and harmony. Defendant blames their domestic troubles on plaintiff’s alleged religious fanaticism. It appears that she devoted considerable time to religious reading and activities, and she admitted that she refused to attend dances and moving-picture theaters and that she objected to card playing. However, she denied that she refused him sexual intercourse.
Plaintiff blames their troubles on defendant’s interest in and improper conduct with the other woman in the case and on his failure to provide her and their minor son with a home and proper support. The testimony is conflicting, but it appears that defendant had lost all interest in his wife. He said, ‘ ‘ I would not live with her if she was the only one in the world.” The record establishes that during plaintiff’s confinement in the State hospital he openly consorted with and went on trips with the other woman. After plaintiff’s discharge from the hospital he continued to live in the same house with this woman in Detroit, and during this time he failed to provide plaintiff and their child, who were living in Grand Rapids, with a home and with proper support. One of defendant’s sisters, who testified in behalf of plaintiff, said:
“I have known Mrs. Doris Johnson (plaintiff) since she was 10 or 12 years old. We were raised in the same neighborhood. * * * I saw him (defendant) while he was in Detroit. I remember when all of us were invited to dinner over at another sister’s home. That was in March, 1943. * * * When he came Mrs. Hayward (the other woman) was with him. * * * My observation about the action of Mrs. Hayward towards Homer and of Homer toward her while there was that it was too friendly for just a housekeeper. * * * I saw Homer and this woman together at our bee farm seven miles north of St. Johns. * * * I saw them together after that at my parents’ home. * * * Doris Johnson is a woman of good character. She has been a good mother to this child. I don’t know anything about her character that is not good. I have been in their home when they were living together and she is a good housekeeper and a good cook. On the occasions I have seen their son he has been well cared for. ’ ’
Another of defendant’s sisters, who testified in behalf of plaintiff, said in part:
“I have known Doris since childhood. I saw my brother Homer in company with another woman when he came to my house in May, 1943. * * # Doris Johnson is a woman of good character and to my knowledge has been a good mother to this child. I don’t know of anything unfavorable about her character. * * * I talked with him and he tried to tell me that religion was destroying his home and I tried to show him that there were many things much worse than religion in a home. ’ ’
Defendant’s cousin, who was called as a witness by plaintiff, testified: “I have known his wife, Doris Johnson, ever since they were married. * * * I have had an opportunity to observe her character and conduct and believe she is as good as gold. She was an average housekeeper and the boy is an average boy.” Some of the friends and former neighbors of the parties testified that plaintiff’s conduct and her care of the child were entirely proper, while others testified in substance that she was overzealous in hen religious activities and that she failed to care for the child.
It would serve no useful purpose to quote, or discuss further the conflicting testimony regarding the personal conduct of the parties. The trial court saw and heard them and their witnesses and was best able to measure their credibility. In his opinion the court said in part:
“In the latter part of 1935 plaintiff joined the church, since which time the parties have been drifting farther and farther apart. While defendant did not oppose her religious views, he objected to her forcing them upon him and finally left home, returning only for visits which became more and more seldom. * * *
“The real reason why the attempt to resume marital relations was unsuccessful is defendant’s friendship with another woman. This friendship commenced long before plaintiff’s release from the State hospital. Defendant lives in the same home with this other woman, takes her on automobile, hunting and fishing trips, and is altogether too familiar with, her to characterize his conduct as merely a casual, innocent friendship. His relations with this woman are the main causé of the trouble between these parties and operate as a complete bar to any hope of a reconciliation, even though it be said that plaintiff’s extreme religious beliefs are a contributing factor.
“It is my opinion that these parties should be divorced; but defendant has failed to establish grounds for divorce and his cross bill must therefore be dismissed. Plaintiff evidently does not desire a divorce and * * * I cannot force upon her a decree of divorce when she specifically requests separate maintenance. ’ ’
In the case of Kolberg v. Kolberg, 312 Mich. 42, 46, 47, we quoted with approval from Chubb v. Chubb, 297 Mich. 501, 506, as follows:
“While we are not restricted by the findings of the circuit court, a divorce case on appeal being heard de novo, especial consideration is given to such findings, so largely based upon the credibility of the witnesses, and the reviewing court ought not to reverse the determination of the trial court in such a case, unless convinced that it must have reached a different conclusion had it occupied the position of the lower court, under like circumstances. Brookhouse v. Brookhouse, 286 Mich. 151; Stratmann v. Stratmann, 287 Mich. 94; Westgate v. Westgate, 291 Mich. 18.”
Defendant failed to establish his right to an absolute divorce, and, as plaintiff seeks only separate maintenance under the statute cited above, a decree of absolute divorce cannot be forced upon her. Ratcliffe v. Ratcliffe, 308 Mich. 488; Stouten v. Stouten, 235 Mich. 427; Litynski v. Litynski, 227 Mich. 502; Lacey v. Lacey, 189 Mich. 271.
The facts and circumstances shown by the record justified granting plaintiff separate maintenance and the custody of the minor child. The decree of the trial court is affirmed. Plaintiff may recover costs of both courts.
Btjtzel, C. J., and Carr, Bushnell, Sharpe, Boyles, Reto, and North, JJ., concurred. | [
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Reid, J.
The bill of complaint in this case was filed for specific performance of a contract for sale of real estate, which contract for sale was contained in a written lease. From a decree for plaintiff, the defendants appeal.
On May 25, 1934, the St. Joseph Michigan Fruit Association, a Michigan nonprofit corporation, of Stevensville, Michigan, hereinafter spoken of as the association, entered into a 5-year lease with James J. Kostka, Jr., and wife, of a two-story store building in Stevensville, with privilege of renewal for an additional 5 years on the same terms and conditions. The total rent for 5 years, $3,000, was payable in instalments of $50 per month. The lease contained the following covenant:
“The said parties of the first part hereby-expressly grant to the said party of the second part an option to purchase the premises herein leased for a price not exceeding $6,500, said option to be exercised during the term of this lease, and notice of exercising said option shall be given by the said second party to said first parties at least 30 days before the end of the term of this lease.”
Shortly thereafter, on June 4, 1934, the Kostkas sold, assigned and transferred their interest in the lease to defendants Otto and Minnie Pallas, husband and wife, the assignment reciting, “they to have all benefits thereof and to abide by its terms and provisions.” Upon receiving the lease on or about May 25, 1934, the association immediately went into possession and paid the rent by instalments to Robert Schoenfelder, trustee named in the lease, until about May 1, 1941.
The board of directors of the lessee association .in or about September, 1943, passed a resolution, approved in writing by most of the stockholders, to reorganize the corporation under Act No. 327, §§ 98-108, Pub. Acts 1931, as amended by Act No. 327, Pub. Acts 1941 (Comp. Laws Supp. 1945, §§ 10135-99 — 10135-108, Stat. Ann. 1945 Cum. Supp. §§ 21.99 —21.109). The articles of incorporation of the Berrien County Fruit Exchange, Inc., referred to as the exchange, plaintiff appellee herein, were executed and filed, and the new corporation was authorized to do business, May 5,1941. A bill of sale dated May 2, 1941, which instrument was signed, sealed and delivered in the presence of two witnesses and was acknowledged before a notary public, was given tp the exchange by the association and contained the following:
' ‘ ‘ Said association * * * bas bargained, sold and by these presents does grant and convey unto the corporation, its successors and assigns, forever, all of the personal property, goods and chattels of every kind and character, including cash on hand, accounts receivable, good will, franchises and all the assets, tangible and intangible, belonging to the association.
“In consideration of the conveyance of said per-? sonal property, the corporation hereby covenants and agrees to and with the association that it will assume and pay all of the liabilities of the association herein listed and will save the association harmless from all loss, costs, damages and expenses by reason thereof.
“The following is a statement of the assets and liabilities of the association. The corporation is to take all of the assets, regardless of whether they are included in the statement or not and is bound by. any liabilities, not only contained in the statement but which may be omitted therefrom and is to pay all liabilities of any kind or description whatever, which may be outstanding against the association.1”
We note that in this'bill of sale the words, “grant and convey,” are used.
Defendants contend this bill of sale does not cover the leasehold interest and option to purchase the real estate. Plaintiff exchange claims the words in the latter paragraph quoted, “the corporation is to take all of the assets, regardless of whether they are included in the statement or not,” are sufficient to cover the lease, including the option. The exchange, under the provisions of this conveyance, went into possession of the building in question as tenant in May, 1941, and still continues in possession.
The trial judge recited in his conclusion of law as follows:
“The fact that the lease was not specifically mentioned in the agreement of transfer is not controlling. The language of the agreement, so-called bill of sale, that the transferee was to take ‘all of the assets, regardless of whether or not they are included in the statement, ’ was broad enough to carry the lease and its option to purchase.”
We agree with that conclusion of the trial court.
Defendants claim they were entitled to notice under the lease, which claim the plaintiff controverts.
Defendant Otto Pallas had actual notice of the assignment to the exchange because he received the check of the exchange every month for the rent, except for the period during which the payments were paid into court to satisfy a judgment against defendants, and testified that he was told that the building belonged to the exchange and that he saw the exchange sign in front of the building.
Plaintiff exchange claims to be the successor corporation to the association, which claim the defendants dispute. We consider that the resolution adopted by the directors of the association, the reorganization agreement signed by the members, and the fact that substantially the same members of the association incorporated the exchange and accepted stock in the exchange for stock in the association, considered together with the bill of sale to the exchange, indicate that the exchange was the, corporation intended by the members of the association to be the association’s successor.
Defendants claim that the fact that the association continued to occupy the premises is conclusive evidence that the exchange had no relationship to the possession but that of a subtenant, and that therefore the exchange was not entitled as tenant to ex ercise the option. However, the exchange and not the association paid the rent after May, 1941, and the claim of subtenancy is not mentioned in the claim of appeal, and is not shown to have been argued before the trial court. The association remained in existence in name only after giving the bill of sale, and that just for the purpose of winding up its business.
Attorney Leekner testified as a, witness as follows :
“Q. Now, the St. Joseph Fruit Association continued to exist, didn’t it, after this bill of sale, after exhibit 6 was executed?
“A. Continued to exist in name only just for the purpose of winding up its affairs.
“Q. Where did it have its office after the new corporation was formed?
“A. For all intents and purposes the office was at the same place as the Berrien County Fruit Exchange in Stevensville.
“Q. There was some business to perform in closing up the old company?
“A. That is possible.
“Q. They were occupying these premises * * * after what * * * (you) claim (is) a bill of sale of this lease?
“A. No.
“Q. You know that this corporation, the St. Joseph Michigan Fruit Association, continued to exist until October 12, Í942, don’t you?
“A. So far as the records of the State are concerned it was still in existence.
“Q. So far as the records of the State are concerned, it maintained its office in this building in question ?
“A. That is right.”
We conclude the exchange was the tenant after May 2,1941.
That part of the printed form of the lease forbidding assignment was stricken out of the lease before it was executed. The lease with clause forbidding assignment stricken out but containing an option to purchase was assignable. See Craig v. Crossman, 209 Mich. 462, 480, and Gustin v. Union School District of Bay City, 94 Mich. 502 (34 Am. St. Rep. 361), which cas'es are cited by plaintiff.
A dispute arose over repairs to the roof, the bill for which, $188, was paid by the tenant, the exchange, who then sought to deduct this amount from the rent. A summary proceeding was had before a circuit court commissioner, who determined that the tenant had not the right to deduct this amount, and gave judgment for possession. The tenant, the exchange, mailed the defendants a check for $188, the amount found by the circuit court commissioner, but failed to include costs. A dispute arose between the parties as to whether the provisions of the statute regarding payment of the amount found were complied with. In any event, the tenant paid rent thereafter, which was accepted by the landlord without question for over one year. The effect of adjudication and order for possession was eliminated by the action of defendants.
Plaintiff gave notice to defendants of its exercise of the option more than 30 days before the end of the term of the lease. Defendant Otto Pallas testified he did not go to the place and at the time designated by plaintiff for the payment of the $6,500 and delivery of the deed because he did not have the place for sale.
Defendants’ claim there was no legal tender of the $6,500, the price named in the option clause in the lease. The trial court found, “defendants cannot rely on such failure, because their pleadings and their evidence establish that they denied plaintiff’s right to tender and would have refused to convey even if sufficient tender had been made, ’ ’ with which finding we are in accord.
We have examined the other questions raised by defendants and find them without merit.
The decree appealed from is affirmed. Costs to plaintiff.
Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, North, and Starr, JJ., concurred.
See 3 Comp. Laws 1929, § 14988, as amended by Act No. 122, Pub. Acts 1933 (Comp. Laws Supp. 1940, § 14988, Stat. Ann. § 27.1999). — Reporter. | [
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Reid, J.
These two cases, consolidated for the purposes of trial, grow out of a collision which occurred about 4:55 p. m. on November 18,1941, at the intersection of Evergreen road and Plymouth road in the western portion of the city of Detroit. In each case a verdict for the defendants was directed by the trial judge. Plaintiffs appeal.
The only question involved is the question of the contributory negligence of plaintiff Clarence L. Moore, driver of*the car in which he and his wife, the other plaintiff, were riding at the time of the accident.
Plaintiff Clarence L. Moore, who is hereinafter designated solely as plaintiff, testified that he was returning from Chemung Lake, driving his Packard coupe automobile, to which was attached an empty boat trailer which extended from the rear of his car a distance of about 8 feet and weighed about 600 pounds; that when he came to the intersection of Plymouth road as he was going southerly on Evergreen road he came to a stop; that he looked both ways up and down Plymouth road and there was some traffic; that he waited there for a minute and a half, perhaps two minutes, until the traffic cleared up both ways and until there was only one car, he would say about 400 feet distant on Plymouth road, approaching at 25 or 30 miles per hour; that later he found out that Mr. Emery was driving that car; that he knew the Emery car wasn’t coming fast enough to interfere with his car and that he would have time enough to entirely cross the street ahead of the Emery car.
In his brief plaintiff states the facts as follows:
“Mr. Moore made-¿wo observations before he entered the intersection. The first occurred when he stopped behind the yellow line which was behind the sidewalk line and waited for traffic to clear. At this point he observed Emery at a distance of 400 feet and other traffic as he estimated, ‘I would say 1,000 feet or so. ’ Emery was traveling 25 to 30 miles per hour. Prom the time Moore was standing at the yellow line 400 feet from Emery, until the panel truck passed Emery, the latter traveled 100 to 150 feet. If Emery was going 25 miles per hour and the truck 70 miles per hour then the truck traveled as far as 2.8 times 150 feet or 450 feet. Thus by adding the two distances the panel truck was 850 feet from Moore at the time he was at the yellow line. This is the distance the truck was to the west when Moore was making his first observation based upon the testimony of Emery and Moore.
“Moore then stated that when he ‘got to the curb line’ — he ‘looked again both ways,’ as the second observation. During this time Emery had traveled between 50 and 70 feet. By computation on the same basis of relative speeds the panel truck must have been 2.8 times 50 feet closer, which would bring it to a distance of 710 feet from the intersection at the time Moore was at the curb line and in motion. This was the situation when he entered the intersection.
“In making these computations we adopt the version of the testimony most favorable to plaintiffs, as we are entitled to do.
“When counsel sought to pin Mr. Moore down as to whether or not he saw the car that struck him he says, ‘ I didn’t say I didn’t see it. I may have seen it. There were 3 or 4 cars coming.’
“When he looked the third time it was m the middle of the intersection and defendants’ car was almost upon him.
“So it seems to us that while it may not be clear that Mr. Moore distinguished the vehicle that struck him, before he entered the intersection, we are entitled to. the direct testimony that he did see the traffic of which it was a part and that he exercised his judgment that he could safely cross. It is absolutely certain under the testimony that defendants ’ car was at least 200 to 250 feet from the intersection at the time Moore was one-third of the distance across, for the witness Emery testified that it passed him at that point going 60 to 70 miles per hour astride the medial line of the highway. And while Mr. Moore’s estimate that ‘it was about 1,000 feet’ when he Moore, made his first observation before he started into the intersection, it clearly was at that time under Emery’s testimony 850 feet distant, because Emery’s car was fixed at 400 feet distance at that time and it was not until some seconds afterwards, while Emery was traveling 150 to 200 feet at 25 to 30 miles per hour that he was overtaken by it. Simple computation shows it to have been 850 feet distant.
“The question then presents itself as to whether or not one entering an intersection, after making full and adequate observation, from a point several feet from the intersection and observing traffic 850 feet away, and deciding in his own mind and in the exercise of his own judgment that he may safely cross, then starting and making a further observation at the curb line, when it was 710 feet distant, he was guilty of contributory negligence in so essaying to cross as a matter of law.”
Plaintiff further testified that at no time while he was progressing in the intersection was he going at a speed so great as to prevent his stopping his car within three feet, and that his car was struck just back of the front wheel between the door and the front wheel; that after he had seen the Emery car about 400 feet distant, the Emery car traveled per‘haps 50 to 70 feet; that after noting that progress of the Emery car plaintiff paid no further attention to any traffic that was approaching from his right and proceeded through the northerly half of the Plymouth road pavement, which pavement is 40 feet wide. After having progressed so far that the front part of his Packard coupe had gone into the southerly part of the street and his rear wheels either practically approaching or onto the median line of the pavement of Plymouth road, he, for the first time after entering the intersection, noted the approach of the truck driven by defendant Rety and owned by defendant Alexander. Plaintiff further testified that his car traveled only a few inches after he noticed'defendants’ truck before the impact.
It is fairly to be inferred that each driver made some effort to avoid.the collision, plaintiff by endeavoring to turn to his left and Rety, the driver of the other vehicle, by endeavoring somewhat to turn to his right. The testimony indicates a very great speed on the part of defendants’ truck, estimated at 60 or more miles per hour. The witness Emery says defendants’ truck was going 60 miles an hour at least, 60 to 70. Defendants’ truck had passed the Emery car and Emery was situated where he could see the two vehicles up to the moment of collision but could not see the parts of the two cars that immediately came in contact with' each other.
Many cases are cited by defendants in their brief. Particularly emphasized is the case of Nelson v. Linderman, 288 Mich. 186, in which case it appears that plaintiff approached the intersection of two streets at a speed of 8 or 10 miles per hour and when he was 8 or 10 feet from the intersection, he observed defendant’s car 300 feet from the intersection, that plaintiff had crossed the center of the road when he was struck by defendant’s ear and that from the time defendant’s car was 300 feet from the intersection plaintiff did not observe it again until the impact. We held that under the circumstances of that case, plaintiff driver’s failure to make any observations while he was traveling the last 25 feet precluded recovery. In that case, as in the instant case, there was nothing to obstruct the view of the driver to prevent his observing the car with which his car came into collision. See, also, Carey v. De Rose, 286 Mich. 321; Carrothers v. French, 309 Mich. 340, 347, 348.
In the instant case, plaintiff wrongly assumes that his duty to observe other traffic ceased when he concluded he could cross the intersection ahead of the nearest approaching car, without observing the speed of other cars back of the nearest car. If plaintiff had stopped his car at any point four feet or more north of the center line of Plymouth road, the collision would not have occurred even if defendants’ truck were astride the center line; but plaintiff swears that the collision occurred south of the center line. In any view of the facts, if plaintiff during his progress in the intersection had seasonably observed the approach of defendants’ truck, he could have avoided the collision.
Clearly plaintiff failed to do what an ordinarily prudent driver must be expected to do, which is to pay attention to other traffic which he could fairly well observe that would jeopardize Ms car. There are no circumstances shown in this casé that would excuse plaintiff from the performance of that duty.
See, also, Lacaeyse v. Roe, 310 Mich. 591.
'We conclude that Clarence Moore is guilty of contributory negligence as a matter of law and that the trial judge properly directed a verdict against him.
We must now consider the action brought by plaintiff Florence Moore. Since the trial of this case we have rendered our decision in Bricker v. Green, 313 Mich. 218 (163 A. L. R. 697), in which opinion at p. 236 we quote with approval from 2 Restatement, Torts, p. 857, § 315, comment b:
“If the actor, while riding merely as a guest, does not warn the driver of a danger of which he knows and of which he has every reason to believe that the driver is unaware, by failing, to do so he becomes guilty of contributory negligence which precludes him from recovery against another driver whose negligent driving is also a cause of a collision in which the actor is himself injured.”
In the instant case plaintiff Florence Moore testified as follows on direct examination:
“I saw a car about a half a block away. And the other traffic that was coming was beyond that. This car that was half a block away was coming toward Evergreen. I saw this car, my husband then started on across. I didn’t look any more. I never saw the panel truck. ’ ’
On cross examination she testified,
“I told Mr. Barnard (attorney for plaintiffs) that I did make observations myself. I saw Mr. Emery’s car, maybe it was half a block or a little more. I at no time saw this panel delivery which subsequently came in contact with oiir car. * * * I know that Plymouth Road is a through highway. And it is usually a heavily-traveled highway, it is an important thoroughfare. That is the reason we stopped. And that fast traffic nses Plymouth highway. ’ ’
In view of Bricker v. Green, supra, the negligence of Clarence Moore, the driver of the car, is not imputable to Florence Moore as passenger in the car. However, it was incumbent upon Florence Moore as plaintiff t'o show that she was free from contributory negligence. Her testimony that she knew Plymouth road to be a through highway, heavily traveled, that fast traffic uses it, and that traffic was approaching, are indications on the subject of her duty to exercise care.
“It is the undoubted rule that the invited passenger is not absolved from the duty to exercise reasonable care for his own safety.” June v. Railway Co., 232 Mich. 449, 456.
Plaintiff Florence Moore was not obliged to exercise the high degree of care required of the driver. Ordinary care to observe and appreciate danger was required under the circumstances of this case. June v. Railway Co., supra, 456, 457.
The trial judge directed a verdict against plaintiff Florence Moore on the grounds of imputed negligence, which ruling was erroneous under the authority of Bricker v. Green, supra. On a new trial of her case one of the issues to be tried is whether she exercised ordinary care in view of all the circumstances.
Judgment for defendants in the case of Clarence Moore is affirmed, with costs to defendants.
Judgment for defendants in the case of Florence Moore is reversed and new trial ordered. Costs to abide the result.
Butzel, C. J., and Bushnell, Sharpe, Boyles, North, and Starr, JJ., concurred. The late Justice Wiest took no part in the decision of this case. | [
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Carr, J.
This case involves the respective rights of the parties, as riparian owners, to the use of the waters of St. Marys Lake, Calhoun county, Michigan, and the land under such waters. For the purpose of clarifying the situation plaintiffs 'filed suit under the provisions of Act No. 36, Pub. Acts 1929 (3 Comp. Laws 1929, § 13903 et seq. [Stat. Ann. § 27.501 et seq.]), seeking a declaratory decree, defendant filed his answer to the petition and the controversy was submitted to the trial court on an agreed statement of facts.
From said statement it appears that the lake in question is approximately seven-eighths of a mile in length and about one-fourth of a mile in width at its widest point. It has no, inlet; but there is an outlet, dry most of the year, through which during wet seasons excess waters flow into ponds and upon low lands. Across this outlet is a dam which has been maintained at its present level for the past 60 years.
In 1936, plaintiffs became the owners of land on the north shore of the lake and beneath the waters extending along the shore for a distance of 1,095 feet. At the time of their purchase of the property the water in the lake was lower than at the present time, being materially below the high-water level as maintained by the dam in wet seasons. Plaintiffs proceeded to improve their property, set out trees, and constructed a small artificial pond. In 1943, the waters of the lake rose to such a height that the dam in the outlet was overflowed, and low land bordering the lake was flooded. It is agreed that lands of the plaintiffs so flooded in 1943 constituted a portion of the original lake bottom. The matter is expressly covered in the stipulation filed, which contains the following clause:
“It is further agreed by plaintiffs and defendant that the question of the high-water level of said lake is not here at issue and that for the purposes of this action, it can be conceded that the present level of said lake is its true level and that the lands of plaintiffs presently covered with water are part of the original lake bed.”
On plaintiffs’ property for a distance of approximately 390 feet along the water’s edge is a bank on which trees have been planted. The raising of the waters of the lake in 1943, and thereafter, has resulted in washing away the soil of the bank to such an extent that the destruction of said trees is threatened. Plaintiffs wish to construct a cement retaining wall on the lake bottom a few feet from the water’s edge and fill in between the wall and the shore line for the purpose of protecting their property. They also wish to fill in a portion of the lake bottom, approximately 50 by 150 feet in size, on which the water is shallow and at times becomes stagnant. In their petition plaintiffs ask that a decree be entered granting them the right to make the desired improvements.
Defendant is also the owner of land on and beneath the lake and it is conceded that he has “full riparian rights.” It is claimed in hi's behalf that plaintiffs are not entitled to deprive him of the use of any portion of the surface of the water of the lake, as it now exists; that he has the rights of boating and fishing on the entire lake; and that the alterations plaintiffs desire to make, if carried 'out, will in fact deprive him of such rights.
The trial court, following a hearing, entered a decree granting to plaintiffs the right to build a wall on the lake bottom in front of their property, at a reasonable distance from the shore, “to protect their lands and property from-destruction by erosion.” Plaintiffs were, however, denied the right to fill in the submerged parcel referred to, containing approximately 7,500 square feet, it being the opinion of the trial court that plaintiffs were not entitled to deprive defendant of the right to use any part of the surface of the lake for boating and fishing. Prom such decree defendant has appealed, and plaintiffs have filed a cross-appeal. The questions presented for determination on the record are: (1) Whether plaintiffs are entitled to construct the desired wall on the lake bottom; and to fill in between said wall and the shore line, in order .to protect their property; (2) Whether plaintiffs may, as against the asserted rights of the defendant, fill in the parcel above referred to, which, under the agreed statement of facts, is a part of the lake bottom, so as to raise the surface of such parcel above the water level.
It is conceded that all of the shore of the lake is privately owned by various proprietors; and that said lake is used principally for pleasure, boating and fishing. , No question is involved as to public rights in the waters of the lake; nor is it disputed that under the law of Michigan the riparian proprietors own to the middle of the lake. Bauman v. Barendregt, 251 Mich. 67.
The respective rights of the parties to the case with reference to the use and enjoyment of the waters of the lake and the lake bottom, is the controlling issue. In Beach v. Hayner, 207 Mich. 93 (5 A. L. R. 1052), this court considered the rights of riparian owners in the waters of Silver Lake in Livingston county, such lake being practically identical in character with the lake involved in the case át bar. Plaintiff therein, a riparian owner, sought to enjoin the licensees of other riparian owners from entering on that portion of the lake covering lands that plaintiff claimed to own. The trial court dismissed the bill, saying:
‘ ‘ The court, however, is of the opinion that where there are several riparian proprietors of an inland lake, that all such proprietors and their lessees may use the surface of the whole lake for boating, fishing, and fowling purposes, if access is gained to the lake from their own or leased land; and that no one riparian proprietor can exclude another riparian proprietor from the exercise of these rights; and that neither can one riparian proprietor exclude the lessees of another riparian proprietor from the exercise of these rights.”
Citing the Massachusetts case of Inhabitants of West Roxbury v. Stoddard, 7 Allen (89 Mass.), 158, and the dissenting opinion of Justice Campbell in Sterling v. Jackson, 69 Mich. 488 (13 Am. St. Rep. 405), this court sustained the action of the trial court. Pointing out that no question of fowling upon the waters was presented in the case, it was said:
“We are of the opinion that the judge was right in holding that where there are several riparian owners to an inland lake, such proprietors and their lessees and licensees may use the surface of the whole lake for boating and fishing, so far as they do not interfere with the reasonable use of the waters by the other riparian owners.”
This decision was followed in Manney v. Prouse, 248 Mich. 655, which case was cited in Bauman v. Barendregt, supra, in support of the statement “Each riparian owner has the right to fish in any part of the lake.” The general rule as laid down in Beach v. Hayner, supra, was again quoted with approval in Swartz v. Sherston, 299 Mich. 423.
The foregoing decisions clearly indicate the general rule recognized and applied in this State with reference to riparian proprietors on inland lakes of the character here involved. See, also, Pere Marquette R. Co. v. Siegle, 260 Mich. 89; Greisinger v. Klinhardt, 321 Mo. 186 (9 S. W. [2d] 978); Mueller v. Klinhart (Mo. App.), 167 S. W. (2d) 670. The conclusion follows that defendant has the right to the use of the entire surface of the waters in St. Marys Lake for boating and fishing purposes. If plaintiffs are permitted to construct their proposed wall on the bed of the lake and fill in between such wall and the shore line such action will necessarily constitute an interference with defendant’s rights of boating and fishing on the entire surface of the lake in its natural condition. The size of the lake will be diminished to the extent of the lake bottom occupied by the wall and .the fill. Plaintiffs’ shore property will, of course, be increased in like measure. The same situation obtains with reference to the section of the lake bottom that plaintiffs desire to raise above the water level. The result of such action would be to increase the extent of plaintiffs’ land on the shore, at the expense of the lake and defendant’s rights therein. The desire of plaintiffs to protect and improve their property is quite natural, but they are not entitled to accomplish such purpose by means constituting an invasion of the rights of the defendant.
In reaching the conclusion indicated we are not unmindful of the general rule that a riparian proprietor may construct a dock, wharf, or pier for the purpose of facilitating his use and enjoyment of the waters of the lake. Blain v. Craigie, 294 Mich. 545. In the case at bar, however, such is not the purpose of either the proposed wall or the filling in of the submerged land. The object sought to be accomplished thereby is, as above pointed out, the protection of the shore property of the plaintiffs. Quite possibly such result may be accomplished, so far as the bank and the trees thereon are concerned, by the erection of a wall on the shore at the edge of the lake. Barnes v. Marshall, 68 Cal. 569 (10 Pac. 115). Plaintiffs are not entitled to obtain such protection, however, by acts constituting an invasion of the rights of the defendant in and to the waters of the lake.
The decree of the trial court, in so far as it undertakes to grant to plaintiffs the right to construct their proposed wall on the lake bottom and to fill in between such wall and the shore line, is vacated. That portion of the decree denying the right to fill in the section of lake bottom referred to therein is affirmed. A decree will enter in this court in accordance with the conclusions indicated, with costs to defendant.
ButzeIí, C. J., and Sharpe, Boyles, Reid, and Starr, JJ., concurred. North, J., did not sit. Bushnele, J., took no part in the decision of this case. | [
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Boyles, J.
On leave granted, plaintiff appeals in the nature of certiorari from an order entered by the circuit court for Calhoun county denying his petition for a writ of mandamus. The facts are accurately stated by the circuit judge in his findings, as follows:
“This is a petition by William Whitmore for writ of mandamus to compel James Threapleton, as county treasurer of Calhoun county, to pay or honor drain order No. 239 in the amount of $600.
“It appears from, the evidence taken at the hearing on said petition that J. E. Shedd, county drain commissioner in the year of 1943, entered into an oral contract with William Whitmore to clean out the John Wood drain, also known as the Wood & Acker drain, that traverses Burlington and Tekonsha townships, for the sum of $3 per rod, or a total contract price of $3,360.
“The county drain commissioner had no petition of freeholders setting forth the necessity of said proposed work, and he did not have the approval of the township boards of the townships traversed by said county drain, to said cleanout. Said John Wood drain is an established county drain having an initial cost in excess of $1,500.
“Plaintiff completed the work of cleaning out said drain in the year of 1943, and the county drain commissioner on July 6, 1943, issued and delivered to plaintiff six drain orders numbered from 239 to 244 inclusive, the first five in the amount of $600 each and the sixth in the amount of $360 payable one each year for six consecutive years beginning with order No. 239 on April 15, 1944, same to be paid out of moneys belonging to John Wood drain fund.
“Drain order No. 239, due on April 15, 1944, was duly presented to James E. Threapleton, county treasurer of Calhoun county on April 17, 1944, for payment, by registered mail, by plaintiff’s attorneys. On May 2, 1944, the drain order was returned to plaintiff’s attorneys by the county treasurer with the notation that it was dishonored because the proceedings relative to the drain on which said order was given, were invalid; The drain order was then presented to the county clerk and returned by the county clerk on May 16, 1944, with the notation that all drain orders are handled through the treasurer’s office. '
“The clean-out of the John Wood drain was not approved by either Burlington or Tekonsha town ship boards in 1943. However, on September 25, 1944,. the township board of Burlington township did pass a motion approving the clean-out. No action was taken by the township board of Tekonsha township. ’ ’
There was more than $600 in the funds available for payment of the drain order in question. The defendant contended in the circuit court, and still insists here, that the act of the drain commissioner in contracting for cleaning the John Wood drain for $3,360 and drawing orders in 1943 for $600 each, payable annually, for the work done in 1943, was illegal and void because no petition of freeholders had been filed and no approval of the township boards of the townships traversed by the drain had been obtained. This contention is correct as to its effect on each of the drain orders issued in excess of $600 for payment of the work. However, defendant’s contention overlooks the obvious fact that the instant case is only to compel payment of drain order No. 239, for $600, and is not an attempt to compel payment or acceptance of the rest of these drain orders.
The applicable provisions of chapter 7, § 6, of the drain law (1 Comp. Laws 1929, § 4908, as amended by Act No. 318, Pub. Acts 1931, Act No. 303, Pub. Acts 1937, and Act No. 21, Pub. Acts 1941 [Comp. Laws Supp. 1943, § 4908, Stat. Ann. 1944 Cum. Supp. § 11.72]) reads as follows:
“The county drain commissioner of any county, or the drainage board in case of intercounty drains, shall cause an inspection to be made annually, or oftener if deemed necessary, by a competent person, of all drains laid out and constructed under this act. The commissioner or the drainage board may loithout petition, expend an amount not to ex ceed, in any one year, 40 per cent, of the original cost of said drain for any work contemplated in this chapter, where in the opinion of said commissioner or drainage board, as the case may be, such inspection shows such work to be necessary to keep the drain in working order or where an emergency condition exists endangering the public health, crops or property: Provided, That the county drain commissioner of any county, or the drainage board in case of intercounty drains, if the initial cost of the drain exceeded $1,500, shall not expend to exceed $600 for the purpose of cleaning out drains unless it shall be approved by the township board or boards of the townships traversed by the drain. In case the fund belonging to said drain is not sufficient to pay for said expense, the commissioner or board shall reassess said drain therefor according to benefits received.”
The record amply supports the conclusion of the drain commissioner that the clean-out work on the John Wood drain was necessary to keep the drain in working order. The approval of the township boards was not necessary in order to authorize the drain commissioner to expend not to exceed $600, in 1943, for the purpose of cleaning out the drain. The drain commissioner lacked the authority to expend more than $600, in 1943', to clean out the John Wood drain. The issuing of what in effect amounted to postdated drain orders for $600 each, on the theory that they were expenditures in futuro for each of those years, was contrary to the express inhibition in the statute above quoted. It provides that if the initial cost of the drain exceeded $1,500, the drain commissioner “shall not expend to exceed $600 for the purpose of cleaning out drains unless it shall be approved by the township board or boards of the townships traversed by the drain.” Such is the plain purport of the above quoted stat ute. However, that does not affect the validity of the drain order No. 239, the only one here involved, which was issued in 1943 for $600 for the work done by plaintiff in that year.
The John Wood drain was the middle one of three separate and distinct drains, each legally established with separate drainage assessment districts. The fact that these three drains together constitute a continuous drainage system does not make them a single drain. The John Wood drain here involved is a legally separate and distinct drain, with its own separate drainage assessment district. Under the statute above quoted, the drain commissioner had the authority to expend $600 in 1943 to clean out the John Wood drain. Drain order No. 239, the only one for which plaintiff here seeks to compel payment, is a valid order.
The only other question raised is as to the jurisdiction of the court in this proceeding to consider and pass upon the regularity of the proceedings to clean out the John Wood drain and the validity of the drain order here in question. The court had jurisdiction. It was the plain statutory duty of the county treasurer to accept drain order No. 239 for payment, and mandamus is the proper remedy. Beach v. Myll, 264 Mich. 604.
Reversed and remanded with direction to issue the writ as prayed for, with costs to appellant.
Butzel, C. J., and Carr, Bushnell, Sharpe, Reid, North, and Starr, JJ., concurred.
Amendment by Act No, 262, Pub, Acts 1945, bas no bearing. | [
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] |
Brooke, J.
Respondent stands convicted of having obtained the sum of $500 under false pretenses from one Josephine Klepeck. The facts as testified to by witnesses on behalf of the people are as follows: Respondent was acquainted with and lived near Mrs. Klepeck on the same street in Grand Rapids. On March 13, 1909, he went to her and represented to her that he then had three car loads of potatoes which he wished to ship to a rabbi in San Francisco; that he needed $500 to complete the shipment; that he would make $3,000 out of the deal, and would return the $500 to her in three weeks. Two days later respondent moved away from the vicinity, and shortly thereafter moved to New York. Respondent denied making any false representations, admitted having received the money and giving a note therefor, and admitted that he had paid nothing upon the note.
The first two assignments of error in the brief for respondent relate to the ruling of the circuit judge permitting the prosecuting attorney to add certain names to the information immediately preceding the opening of the trial. It appears that the prosecuting attorney was sworn and testified that he learned the names of the witnesses in question on the 14th of November, 1911, and notified respondent’s attorney the following day that he would apply for leave to add the names to the information. The trial was started on the 17th of November. It appears to be the contention of the respondent that because the prosecuting attorney learned at the time of the examination that certain testimony would have to be supplied by witnesses other than those produced upon the examination, he should have ascertained the names of such necessary witnesses earlier than he did, and that it was error for the court to permit the indorsement of the names in question upon the showing made. The evidence which these witnesses were produced to give tended to show that the respondent had not, at any time near the time when he secured the money from Mrs. Klepeck, shipped three car loads of potatoes, or any other number of car loads of potatoes, out of the city of Grand Rapids. The same evidence was given at the examination, but was given by one whose knowledge was only gained through hearsay. It is apparent that the respondent was not surprised or prejudiced in any way by the order made. The rule as contended for in the brief of respondent’s counsel is recognized, but we do not think it was applicable in the instant case.
It appears that in December, 1908, the complaining witness had loaned $300 to respondent and taken a note therefor. This transaction occurred some three months prior to the $500 transaction upon which the prosecution of respondent is based. Error is assigned upon the statement made by the prosecuting attorney in his opening statement touching this note, and upon the ruling of the court in permitting it to be introduced in evidence. Respondent admitted that the $300 note, as well as the one for $500, was unpaid. Inasmuch as intent is one of the ingredients of the crime with' which respondent stood charged, we are of opinion that the statement in question and the admission of the earlier note was not erroneous. People v. Henssler, 48 Mich. 49 (11 N; W. 804).
Error is assigned upon the refusal of the court to direct a verdict of not guilty, based upon the contention that the prosecution had not shown a false representation as to an existing fact or past event. Cases are cited on behalf of respondent which demonstrate the entire correctness of his position if the facts make them applicable. It is quite clear that all of the representations made by the respondent were not representations of an existing fact or past event. Some of them were representations as to what would occur in the future, and his promises in relation thereto. There is, however, one statement which clearly refers to an existing fact, and that is that respondent, at the time he applied to Mrs. Klepeck for the loan, was the owner of three car loads of potatoes. Where several false representations are made,- one or more of them referring to existing facts or .past events, while others refer to future events, it is sufficient to warrant a conviction if the people can show a false representation as to an existing fact, if that false representation was a part of the moving cause which induced the complaining witness to part with her money.
It is urged that to constitute the offense three things must concur: The intent to defraud, a false pretense, made with intent to defraud, and the fraud accomplished (People v. Wakely, 62 Mich. 297 [28 N. W. 871]); and that the people failed to show all three of these elements. This contention seems to rest upon the fact that respondent denied upon the stand that he made the representations as claimed by the complaining witness, and that in securing the money from her he had no intention to defraud. We are of opinion that the relations existing between the parties, the lack of business experience of the complaining witness, together with all the circumstances surrounding the transaction, coupled with the conduct of the respondent immediately after the loan was negotiated, in absenting himself from the city of Grand Rapids, and his failure to return, afforded sufficient ground for the jury to find, in spite of his evidence to the contrary, that the respondent deliberately undertook, by means of false pretenses, to cheat and defraud the complaining witness out of her money.
Error is assigned upon the admission of certain testimony. We have examined these assignments with care, but are of opinion that no error was committed by the trial court in relation thereto.
The conviction is affirmed, and the court below is directed to proceed to judgment.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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] |
McAlvay, C. J.
This suit was brought by plaintiff against defendant in assumpsit to recover a certain commission under an agreement made with defendant to furnish him a purchaser ready, willing, and able to purchase certain premises located in the township of Spring Lake, Ottawa couhty, Mich., at a price and upon terms fixed by defendant. The result of the • trial was a verdict and judgment in favor of plaintiff for the amount claimed. Defendant, upon a writ of error, asks for a reversal.
There is little or no dispute between the parties upon the material facts in the case. The property in question was part of a considerable tract of resort property at that place owned by defendant, who resided in Troy, N. Y. He was acquainted with plaintiff, who was a contractor living at Spring Lake. On May 11, 1912, defendant wrote plaintiff a letter,.the material parts of which are as follows:
“If you can find a purchaser for my whole property on Spring Lake * * * for $25,000 * * * I will sell the whole property. * * * I hope you can find a purchaser for me, and if so, I am willing to pay you the usual commission of 21/2 per cent.”
Plaintiff found a -customer for ten acres of it, upon which a bungalow was situated, and wrote defendant to put a price upon it. On June 5, 1912, defendant wrote plaintiff as follows:
“Dear Sir:
“The lowest price I have put on the bungalow is $9,000. It includes, ag you probably know, ten (10) acres of land. I hope you will succeed in selling it to Mr. Williams.”
On June 10, 1912, defendant wrote another letter to plaintiff, as follows:
“I have had some correspondence with Mr. Williams and finally offered him the bungalow for $8,000, $2,000 cash and the balance in three years at six per cent. I think that is a very low price for the property and hope he will take it.”
After receiving this letter, plaintiff had further negotiations with Mr. Williams, who agreed to take the property at that price and said he was going to New York and would stop at Troy and complete the purchase with Mr. Peabody. Mr. Williams, on arriving at Troy, went to the office of Mr. Peabody ready, willing, and able to take the property upon the terms fixed. He found that Mr. Peabody had sailed for Europe the day before, and was informed by Mr. Peabody’s secretary that she was authorized to complete the transaction. Mr. Williams, who was examined as a witness for plaintiff, was not allowed to testify further as to what occurred in Peabody’ office in Troy, because of the objection that no agency had been shown. Within a few days he returned to Spring Lake and took possession of this property and occupied it for several weeks, when, upon payment to him of $750 by an attorney who claimed to represent defendant, he quitclaimed all his right and interest in the premises to defendant. The action of this attorney was confirmed by defendant, as appears by an excerpt from a letter written by him to plaintiff’s attorney, as follows:
“ * * * My attorney afterwards paid Williams a consideration for the annulment of the contract so as to clear the title but no sale was ever made to Williams in the proper sense of the term.”
The record shows that, after Mr. Williams was at Troy, all of the premises which defendant owned at Spring Lake were sold, on June 26, 1912, for $25,000 to a man named Morse through real estate agents in Grand Rapids, in whose hands'they had been placed for sale for more than a year. The last letter above quoted was written by defendant after such sale and after his return from Europe, when plaintiff’s claim against defendant had been given to his attorneys.
Defendant offered no evidence in the case and made a motion at the close of plaintiff’s case for a directed verdict. This was denied, and after argument by counsel the case was submitted to the jury under the charge of the court with the result as stated. There were 27 assignments of error, of which very few require consideration, the most material of which is whether the court should have directed a verdict in favor of defendant.
It is the contention of plaintiff that under his agreement with defendant his duty ended when he had furnished a purchaser ready, willing, and able to complete the purchase upon the terms offered by the vendor. It does not appear to be disputed but that he found such a purchaser in Mr. Williams, who was ready, able, and willing to buy this property from defendant upon the terms fixed by defendant; nor is it denied that Mr. Williams went to Troy, N. Y., for the purpose of completing the purchase. Plaintiff’s commission, however, did not depend upon a completed sale. This principle is so well established by the courts of this and other States that citations of authority are unnecessary.
It appears that the principal contention of counsel for defendant is that this consummation of the sale was defeated because there is no evidence in the record that defendant was notified of that fact. Plaintiff contends that the record not only shows defendant was notified that Mr. Williams would purchase this prop erty, but that afterwards through his office he recognized and ratified the transaction. The evidence in the case conclusively shows that plaintiff secured this-purchaser and notified defendant of that fact; that defendant took the matter up with Mr. Williams, and his letter shows that he gave him the terms and notified plaintiff by the letter what the terms were; that plaintiff then had further negotiations with him, and he agreed to the price and terms; and that Mr. Williams,, for the purpose of closing the deal, went to defendant’s office in Troy and so informed defendant’s secretary, who said she was familiar with defendant’s correspondence as she had written the letters; that Mr. Williams returned to Spring Lake, where he and his wife were let into possession of the premises by defendant’s caretaker and plaintiff, who, being present, surrendered the keys of the cottage to Mrs. Williams. It appears to be undisputed that Mr. Williams retained such possession for several weeks. It was a question of fact for the jury to determine whether defendant, through his duly authorized agent, was notified that plaintiff had fulfilled his contract.
The matter of ratification rests upon what was done after that and the surrender of possession of the premises by Mr. Williams. There is no evidence in the case disputing the fact that defendant’s attorney negotiated with Mr. Williams and upon payment of $750 to him received a quitclaim deed to the defendant of all his interest in the premises. The authority of this attorney is admitted in the quotation from defendant’s letter given above. This, also, was a question of fact for the jury to determine.
There is a claim in the case that the authority to plaintiff to find a purchaser for this property was revoked by the sale to Morse. Upon the facts in the case upon which plaintiff relies for recovery, we do not think it is necessary to consider this proposition.
Error is assigned upon portions of the charge of the court and certain requests to charge as given, also upon the admission of certain testimony in the case. These have been examined with care, and we find that no reversible error was committed. The charge of the court, taken as a whole, fairly submitted the questions of fact in the case to the jury, and there was evidence to support the verdict. ■
The judgment of the circuit court is therefore affirmed.
Brooke, Kuhn, -Stone, Ostrander, Bird, and Steere, JJ., concurred. Moore, J., did not sit. | [
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Moore, J.
Louis Beach, the plaintiffs decedent, was employed by the defendant as a freight brakeman, and was injured on the night of April 19, 1910, at Ypsilanti, dying at the Railroad Sanitarium at the city of Detroit, where he was taken a few hours after the accident, from the injuries received. The above suit was instituted by his father to recover damages. From a directed verdict in favor of defendant at the close of the testimony for plaintiff, the case is brought here by writ of error.
The claim of counsel for appellant is summarized as follows in the brief:
“There were no eyewitnesses to the accident. There was no contention that decedent was negligent in the case as it stood when verdict was directed. The law is settled that in the absence of eyewitnesses the deceased will be held to have been in the exercise of due care. See Gilbert v. Ann Arbor Railroad, 161 Mich. 73 [125 N. W. 745].
“On the question of the negligence of defendant we are confident in stating that we produced substantial proof, certainly more than a scintilla of evidence, which was unanswered in the slightest degree when verdict was directed. We offered testimony to show, first, decedent was on the top of the car braking the same in the line of his duty when last seen before the accident; second, that the other car was shunted down in a hurried, violent, and careless manner so that it struck his car with more than usual force and noise and drove it 1,000 feet to the ^ derailer and off the track, with brakes partly on; third, that deceased was found immediately thereafter beside the track, not run over, but crushed and injured such as a fall from a car would do; fourth, that the circumstances were such as to cause the engineer of the freight to hurry with' the work, i. e., the necessity of clearing the line for the passenger train. Even if there was negligence proven on behalf of both under the act suit was brought, the question would still be one for the jury.”
The trouble with this contention is that there is a dearth of facts disclosed by the record upon which to base it. It is shown that deceased was in the employ of the railroad company; but it is not shown how many persons were in the crew in charge of the freight train at Ypsilanti, nor is it shown whether there was one brakeman or more. While it was shown that there was a lantern upon the first car, which was switched upon the side track, it is not shown that deceased carried that lantern, or that he was upon that car. While it was shown that one or more other cars were sent in on the switch, it is not shown whether a brakeman was or was not on the car or cars so sent in. While the cars were heard to come together, it is not shown whether decedent was on either of the cars, and as the result of the impact was thrown to the ground, or whether he was already on the ground, and while there was injured. The cause of his injury is entirely in the field of conjecture. The case is within Manning v. Railway Co., 105 Mich. 260 (63 N. W. 312); Fuller v. Railroad Co., 141 Mich. 66 (104 N. W. 414); Micari v. Stone Co., 154 Mich. 362 (117 N. W. 939).
Judgment is affirmed.
McAlvay, C. J., and Beooke, Kuhn, Stone, OsTEANDEE, Bied, and Steeee, JJ., concurred. | [
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Moore, J.
This action is brought to recover commissions claimed to have been earned by the plaintiff on the sale of various parcels of land in and about Lakeview, Montcalm county, Mich.; some of the sales being consummated and others, it is claimed, being defeated by the actions of the vendors. It is also sought to recover a percentage of the cost of conducting the sale.
The firm of Macomber & Bale owned many thousands of acres of wild and improved lands in and around Lakeview. Mr. Macomber died, and his wife, Esther Macomber, as executrix, and Charles M. Miller, as executor, with the will annexed, assumed the administration of his estate.
It is claimed by plaintiff as follows:
“That plaintiff should undertake to sell all the lands defendants owned about Lakeview.
“He was to arrange for, advertise, and conduct the auction sale of these lands, and was to receive the sum of $1,000 and his expenses in any event. A list price was placed on each lot, and in the event that the total sales amounted to more than the list plus the expenses of sale, including $1,000 for plaintiff, then and in that case such excess was to be equally divided between plaintiff and the defendants; the plaintiff receiving one-half. All expenses were to be borne by the defendants. * * *
“It is claimed by the plaintiff that certain village property was put into the sale in the disposal of which he was to have no interest, except that these lots were to bear their pro rata, of the general sale expense, which, in the event of a surplus', would inure one-half to his benefit.”
This claim is not admitted by the defendants.
“The plaintiff claims also for the repairs necessarily made to his automobile, for parts and tires worn out in the sale service.”
This claim is not admitted by defendants.
After the arrangement was made, an elaborate illustrated catalogue of 90 pages, containing maps, landscape views, pictures of State and other buildings, advertising for sale 111 tracts of land at auction, which was to be held September 6th, 7th, and 8th, and October 4th, 5th, and 6th, was published and freely circulated. This catalogue advertised special low-rate, round-trip excursion rates. The announcement was signed as follows:
“Lakeview, Michigan, July 15th, 1911.
“Estate of Allen Macomber, Deceased.'
“Esther Macomber, Administratrix.
“Charles M. Miller, Administrator.
“Macomber & Bale.
“John J. Bale.
“Sotham & Sons Land Co.
“Carey M. Jones, Auctioneer.
“T. F. B. Sotham, Sale Manager.”
At the close of the catalogue were printed 12 rules and regulations in relation to the sale. The following of which are important in this litigation:
“Rule IV. — Deposit. Whenever the auctioneer shall declare any lot (subdivision of lot, or combination of lots) sold, the buyer or buyers thereof shall forthwith deposit at least ten per cent, of the purchase price with the clerk of the sale as a first payment. Such deposits may be made in currency, bank draft, certificate of deposit or certified check, endorsed to the satisfaction of the clerk. In event any buyer should fail or neglect to satisfactorily settle such first payment, the auctioneer may declare sale void and thereafter resell the premises in question.”
“Rule IX. — Terms: Cash or its equivalent. Half cash with mortgage on land purchased to secure payment of balance will be deemed the same as all cash. Earnest, capable, honest workers desiring to buy on smaller cash payments will be accommodated, but before bidding should arrange for credit with the sale manager. Such sales will be covered by contract. Interest on all deferred payments will be at the rate of six per cent, per annum. Time to suit purchaser within 5-year limit unless otherwise agreed.
“Rule X. — Settlements. The right is reserved to the vendors to declare off any sale or sales not Satisfactorily ' settled for within ten days from date of such sale and to declare any payment or payments under Rule IV forfeited thereafter.
“Rule XI. — Commissions. One commission, of one dollar ($1.00) per acre, on each lot or subdivision of lot sold and satisfactorily settled for, will be paid land agents who comply with the following conditions. Said land agent must attend sale in person. * * *
Such names must be filed at least twenty-four hours prior to clients’ purchase at sale; otherwise the agent will forfeit any commission rights that could accrue hereunder.
“XII. Any and all statements, offers, bids, sales, payments or settlements made by buyer, seller or agents of either, at these auctions are subject to these rules. The right to interpret these rules is strictly reserved to and in the vendors.”
Part of the lands were sold and part were not. The parties to this litigation could not agree as to the compensation due the plaintiff, and this suit was commenced by summons, followed later by a declaration on all the common counts in assumpsit. This was followed by a bill of particulars for “commission due as per contracts earned on the following pieces of real estate.” Then followed the lot numbers and the expense account. The case was put at issue, and early in the trial the respective counsel made concessions that simplified the issues. It was conceded by defendants that the profits on the land sold were $5,485, less the expenses incurred, which, including $1,000 for plaintiff’s salary, amounted to $5,062.32, and that if the lands sold on contract were to be counted as though sold for cash, there was due plaintiff $234.13. This made no allowance for automobile repairs, salaries to the sons of plaintiff for acting as chauffeurs, or for the making of a map; it being the claim of defendants that plaintiff was not entitled to any allowances on these claims, except for the map, and as to that the parties could not agree as to the amount.
The trial judge submitted these two claims to the jury, who returned a verdict of $25 for the map, and $300 for chauffeurs’ salaries and automobile repairs, and a verdict and judgment were entered in favor of the plaintiff for $500.25. The defendants have not appealed. The plaintiff has brought the case here by writ of error.
The first question we will consider is whether the jury should have been allowed to assess some damages because certain village properties should have borne their pro rata share of the general sale expense. It was the claim of defendants that these lands were put in the catalogue, at the request of plaintiff, for advertising purposes only, and that plaintiff’s claim that they should bear part of the expense was untenable. The court was of the opinion that in any event there was no showing which would warrant an intelligent apportionment pro rata of these expenses. Counsel does not suggest in his brief whether it should be upon the basis of values, or acreage, or number of lots. We agree with the judge that there is no basis for intelligently arriving at an amount for this purpose.
The special grievance of the plaintiff is that the court decided, as a matter of law, that he was not entitled to compensation as to various lots of land, where no sale was, in fact, made. It will not be necessary to discuss in this opinion each lot which was offered for sale, and struck off to a bidder, as is done by counsel in their brief. We will take up the most important items, and the ones most favorable to the claim of plaintiff. Those are lot 6 and lot 7.
We now quote from the brief:
“Lot 6 was struck off to Hiley Warner at $22,000 and sold to him. Lot 7 was struck off to the same buyer at $1,800, making a total of $23,800. Before the bidding started, Bale and plaintiff urged Warner to bid; Warner told them he couldn’t comply with the rule as to 10 per cent, down, and defendant Bale told him to bid, and he would take care of him, give him time on the 10 per cent, and on the balance. Warner told him he thought he could interest other parties in it. It was struck off to him in the presence of defendants Bale and Miller.
“Bale told Warner that whatever arrangement he made with Sotham as to time was all right with him. Sotham told him he could have 20 days on the 10 per cent., and 90 days or longer on the balance, to be half cash and half mortgage or all cash. Accordingly Warner gave a check due in 20 days, which satisfied Sotham and Bale, but not defendant Miller, and one due in 10 days was substituted.
“Warner interested Meade, Sandell, Lambertaon, and Chappell in the deal, and they agreed to finance him and give him one-fifth of the profits. Warner told Bale he had interested Lambertson and Chappell, and that they would back him. Then Sotham sent Exhibit 19 to Warner and to the bank at which the check was payable, attempting to change .the terms and get the balance above the 10 per cent, in cash on the same day the check was due.
“Sotham and the vendors went to Belding the day the check was due, and met Warner and his people. The Belding people objected to the change in terms, and offered to pay the 10 per cent, check of $2,380 that day, and to bind themselves to pay the rest within 30 days, reserving the right to give a mortgage of $12,000. This was agreed to by all parties. Then the dispute arose over the form by which this agreement should be set forth. Defendant Miller wanted a bond to guarantee payment of Warner’s bid, and would not sign a land contract setting forth the agreement that was reached, on the advice of his attorney. The check was not protested until after the Belding meeting. At that time they were ready to pay it. The financial ability of the Belding parties up to the $12,000 to be covered by mortgage was conceded on the trial.
“After this deal fell through, Sotham readvertised lots 1 to 7 for the October auction in his circular of September 23d, but they were not offered in that auction. * * *
“The first assignment of error relates to the court’s allowing the witness Warner to answer the following question: ‘Q. What property did you have in Sep-
tember, 1911?’ (the time of the sale). Unless the test of our performance is the buyer’s ability at the time of the sale to pay the purchase price, the question was immaterial, and the answer should not have been received. Under the agreement as to the conduct of the sale, the vendors — that is, the defendants —were to pass on all credits. This would necessarily negative the idea of any guaranty on the part of the plaintiff of the financial ability of any purchaser. Nowhere in the correspondence is any such idea hinted at. In this connection let it be noted from a reading of Exhibit 6, which forms the basis of the agreement, that plaintiff was bound only as a sale manager, and is not held as strictly as a broker would be. His duty consisted in working out a plan and putting it through. He was to run the sale and advertise it. He lacked many characteristics of a broker. But, even if he is considered as a broker, without an agreement on his part to guarantee the financial ability of a buyer, such ability or inability is immaterial in an action for commissions.
“Before citing authorities on this proposition, I desire to call the court’s attention to another matter directly connected with it, viz., that, where a purchaser is presented who is ready and willing to sign a contract in compliance with his offer, the failure of the vendor to require such a contract is no defense to an action for commissions if the sale falls through, and to argue from that the proposition demonstrated by the cases that where buyer and seller enter into a contract of sale, the agent’s commissions are not thereafter defeated by the financial inability of the purchaser to perform. Consequently it is our claim in this case, under this assignment, that Warner is to be treated as having entered into a binding contract to buy, and his financial ability to carry that out being immaterial, the question and answer excepted to should not have been received.”
The defendants do not admit the truth of the statements of counsel as we have stated them, but it may be safely assumed counsel will make as favorable a claim for his client as the record will warrant.
The foregoing claim raises the pivotal questions in the case. Mr. Warner testified as to the extent of his property. When he gave the check referred to, he had not to exceed $100 in the bank. He had some horses and other personal property, all of which was chattel mortgaged. Exhibit 19 referred to in the brief of counsel for appellant, which we have quoted, reads:
“Lakeview, Mich., Sept. 7, 1911.
“Hiley Warner, Orleans, Mich., to Macomber & Bale, Dr. to lots 1, 2, 3, 4, 5, 6, and 7 of land catalogue, $23,800.00. Due this day according to Rule 4 of the sale rules and regulations, a deposit of ten per cent., or $2,380.00, for which, purely as an accommodation to Mr. Warner, he was allowed to deposit a ten-day check, due on or before September 18, 1911. The balance of purchase price, $21,420.00, to be paid in cash on or before September 21, 1911, at the Farmers’ & Merchants’ State Bank of Lakeview, Michigan.
“N. B. Should the ten-day check for $2,380 not be paid on presentation September 18, 1911, the sale will be declared off, and bill rendered for such damages as may have been done. Should the check for $2,380 be paid on September 18, 1911, as agreed the said $2,380 will be held as a deposit under Rule 4, and forfeited as liquidated damages in event the balance of $21,420 is not paid in cash or its equivalent on the date and in the manner hereinbefore provided.”
This exhibit was prepared and sent by the plaintiff, indicating his understanding of the situation. Notwithstanding the impecunious condition of Mr. Warner, the defendants were willing that he should have the benefit of his bid, if he could get the Belding parties to do what it was his duty to do, if the bid was to remain good, and the defendants and Mr. Sotham went to Belding to see what could be done.
The plaintiff claims an agreement was made by all the parties at Belding, and cites the testimony of the attorney, Mr. Hubbell. This witness, after testifying to the conferences held by the parties, and to drawing a contract which was satisfactory to his clients, and to the production by Mr. Miller of papers drawn by the attorney for defendant, closed his testimony as follows:
“Q. They four didn’t get together and agree it was what they wanted and that they would sign it, did they? A. Oh, no; the two sides didn’t get together upon it.”
The conference ended without the parties being able to get together, and later the $2,380 check given by Mr. Warner went to protest.
Following the Belding conference Mr. Sotham prepared and circulated in large quantities a circular letter reading in part as follows:
“Lakeview, Michigan.
“Closing Session. Grand Wind-up.
“Wednesday, Thursday and Friday, October 4th, 5th, and 6th, 1911. T. F. B. Sotham,
Sale Manager.
“Lakeview, Mich., Sept. 23d, 1911.
“Dear Sir:
“Since last writing we 'woke up’ and got busy adding attractive land bargains to those (lots 56 to 111 of catalog) originally set apart for the closing session Oct. 4, 5, and 6 of our Lakeview land auctions. •H H* «Jí
, “Having revived somewhat from the disappointing shock of low prices at the September auction, and adjusted ourselves to the situation, we saw that at the sale prices the lands we had sold were yet the very cheapest really first-class lands in Michigan. * * * Again, certain other buyers were disappointed in their money arrangements, and while the vendors will aid our customers in every consistent way and will not crawfish on any sale, no matter how absurdly low the price, it is obvious that they cannot be cut off from the right to reoffer in our October auction any September lot not settled for.
“Therefore, kindly take notice that in addition to lots 17 and 21 (passed) we will be able to reoffer lots 6, 7, 22, 86, 37 and 38 in our October auction. You will see by the catalog that lot 6 is the celebrated Macomber & Bale home farm made up of lots 1, 2, 3, 4, and 5. * * * Now, if you missed coming to the
September sale remember that we have these lots where you can get another chance at them. * * * [Signed] “Sotham & Sons Land Co.,
“By T. F. B. Sotham.”
The auction sale in October was held, but these lands found no purchaser, and had not been sold at the time of the trial. It is not very important in what way Mr. Sotham is characterized in this transaction, whether he is called sales manager, with a salary and expenses, with the right to one-half the net profits, or whether he is called a real estate broker; in either event he must show either a sale or the production of some one able and willing to purchase according to the terms fixed in the contract between him and the vendors, or to take the property upon terms agreeable to himself and the vendors.
As bearing upon the last of these two propositions, it was entirely proper to inquire into the pecuniary responsibility of Mr. Warner, who was the bidder, and to whom the property was struck off. The record shows beyond any question that Mr. Warner was never in a position to buy the lands; that Belding parties were never present at the sale; and that though, a conference was had with them at Belding, they and the vendors were not able to get together; and that nothing came of the extensive and expensive advertising, so far as securing a sale of these lands is concerned. The result of the ruling of the trial judge is that the plaintiff has been given a judgment for the balance due upon his share of the profits of all sales made, whether payment was made in cash, or partly in cash and partly upon land contract.
One other assignment requires attention. We again quote from the brief:
“13. This relates to permitting Miss Conant, the stenographer furnished the plaintiff, to testify in relation to Exhibit 43, the list she took from plaintiffs book of the list prices, the plaintiff claiming the communication is privileged. As appears on pages 8 and 9 of the record, in plaintiff’s bill of particulars, Miss Conant’s salary was a sale expense to which plaintiff contributed from the surplus. She was therefore as much his stenographer as the defendants’. * * *
“We submit that this communication, or, rather, this taking of information by a stenographer from records to which she is in confidence given access, demands the utmost protection. Its primary quality is confidence in nondisclosure. There can be no doubt that the universal opinion favors its maintenance. Compared with the benefit to a litigated case, if the privilege is abused the relation must terminate. The admission of the testimony was error. Its only purpose could be to dispute plaintiff when he says that his report of the list price of lot 94 contained in Exhibit 34 was an error on his part, unintentional and 'typographical, and that no such list was ever given him.”
We have difficulty in understanding this contention. Mr. Sotham was the sales manager of defendants. Miss Conant was employed as stenographer to assist him in his duties, and was paid out of the expense fund, which, of course, came out of the proceeds of the sale of defendants’ land. She owed no duty to Mr. Sotham that she did not owe to defendants, and it was not the duty of either of them to withhold any information from defendants as to what was being done to promote the sales. We discover no reversible error in the case.
Judgment is affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Steere, JJ., concurred. | [
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] |
Brooke, J.
Plaintiff, a man 38 years of age, came to this country from southern Europe in the year 1909. His entire adult life had been spent in the performance of ordinary labor, except for a short time while he was in the army. He was employed by the defendant as a “dirt passer.” The duty of a dirt passer in defendant’s mine calls him to work in the stope with a pick and shovel. The rock, after' it is blasted, must be broken up and shoveled down to a point where it can be loaded into cars. Some of the rock can be shoveled out without being broken, but other pieces are too large to be handled with a shovel, and have to be split or broken with a pick. The custom in force at defendant’s mine at the time of the happening of the injury to the plaintiff required the plaintiff to call at the toolhouse at the mouth of the shaft, where he was handed a pick by the shift boss, which he took into the mine with him, using it as occasion required during his shift, and returning it to the toolhouse at the close of the shift. The shovels were left in the drift.
Plaintiff had worked for defendant for six days. Upon the first trial of the case, he swore that on each of these six days he was given a pick which he examined and found to be sharp, but that on the seventh day he was given a pick which he did not examine until after he received the injury complained of, when he found it to be dull. Upon this trial he testified that he could not remember having examined the picks given him on the six earlier occasions, but that they were “good” picks. Plaintiff received the injury on account of which he brings suit in the following manner: In the course of his labor he came to a rock so large that it could not be handled with a shovel. He struck the rock at a point where there was a crack in it with his pick. The first blow was a light one, the second he struck with all of his strength, causing the rock to splinter, and a small particle entered one of his eyes. This injury later resulted in the loss of the sight of the injured'eye. The negligence relied upon by the plaintiff is the failure of the defendant to give him a sharp or suitable pick with which to perform his labor, and the further failure to warn him of the danger of using a dull pick.
At the close of the testimony, the court directed a verdict for the defendant in the following language:
“The plaintiff claims that he was injured by the use of a dull pick while striking a rock, and causing splinters to fly into his eye. The undisputed evidence is that the plaintiff had this dull pick, and the question resolves itself right down to this question: Is it negligence on the part of the company to fail to warn a man that in striking a rock with a dull instrument, splinters are liable to come off of the rock and strike him and injure him? Now, it doesn’t seem to me that is the question before this jury, and I don’t see where the jury have anything to pass upon. It seems to me it is clearly a question of law, and, if the court must assume to pass upon the question as a matter of law, assuming what the plaintiff has shown to be true, the situation there is not contradicted. The defendant has not put in any evidence which contradicts the situation here as claimed by the plaintiff: First, that there was a dull pick handed to him. We must assume that as an established fact in this case, that the defendant did furnish a dull pick to do this work. We then would have only the one question left, and that was whether the defendant ought to warn him of the danger of striking rock with a dull pick and pieces might fly. It seems to me the court must pass upon that as a question of law, and it is not a matter of fact, a question of fact, rather, for the jury. Now, the more I studied this case, the more it seems to me to come down simply to this: If A. hires B. to go out in the courtyard here to break up a rock, and gives him a hammer or a dull pick and an instrument of that kind, must he warn him when he goes out and strikes that rock, begins to break it, pieces are liable to fly? Now, it seems to me that the matter is one that an ordinary man of ordinary intelligence is bound to know, and it does not seem to me that, if that, you have got to warn the employee against that. If you order the employee to go and drive a nail in that door, you would have to stop and warn him of all danger that might possibly come from striking a nail with a hammer. It seems to me anybody who strikes a rock with a dull pick must know, when he begins to break that rock, there are going to be some pieces fly. It is so simple and so plain. I don’t believe a warning is necessary. A man, when he hires out to work at a given employment, assumes all the ordinary risks of that employment. That rule of law claims it. This plaintiff here, when he went and hired himself out to the defendant in this case, he assumed all of the ordinary risks of his employment. It seems to me that this necessarily was an ordinary risk of the employment. I do not see any extraordinary thing about it. If he struck a rock with an instrument, he must have known, when he broke that rock, that pieces would fly. * * * Here is not a case of a defective tool. While it was dull, it had no defect in it, and the fact that it was dull was a matter that the plaintiff was bound and ought to know. When a man is handed a pick — a man of ordinary intelligence— and he was bound to be a- man of ordinary intelligence when he sought the work he did, if he looks at a pick, he knows whether it is sharp or dull. He is bound to know. He can’t take a pick and afterwards claim he didn’t know it was dull. That is a matter so apparent and so obvious that, even if he was a child, the law would require him to know the pick was not a sharp pick; it was dull. We have the plaintiff bound to know he was using a dull pick. As I said at the outset, it was the same as if he was given a sledge hammer to break this rock. That he was bound to know when he struck the rock with a dull instrument,"* when he struck a rock with any instrument, a man knows when he goes to break it there will be a certain amount of splinters fly around. That is all this case is. Therefore I conclude, under the law, I assume the responsibility and direct a verdict for the defendant.”
We are of opinion that the direction was warranted. A pick is a tool of common use and of utmost simplicity. As to such tools, reasonably fit in the first instance, the master owes no duty of inspection. Wachsmuth v. Electric Crane Co., 118 Mich. 275 (76 N. W. 497) ; Meyer v. Ladewig, 130 Wis. 566 (110 N. W. 419, 13 L. R. A. [N. S.] 684).
We think it must be said that it is a matter of common knowledge that, when a rock is struck with great force by any iron tool, whether sharp or dull, splinters are liable to fly as a result of the concussion. A man 33 years of age, who has spent his life in ordinary laborious occupations, could not reasonably be supposed to be ignorant upon this point and require instruction. His ignorance of English or of the customs of the country would not make instructions necessary. The results of such a blow are so common as to be of almost universal knowledge. The blow is struck; the splinters fly. No harm follows, unless, as in the instant case, through some adverse chance a flying particle reaches the eye of the operator. Under such circumstances, the master is under no duty to warn the servant of a danger so common and obvious. Findlay v. Foundry Co., 108 Mich. 286 (66 N. W. 50); Mushinski v. Vincent, 135 Mich. 26 (97 N. W. 43) ; Swick v. Cement Co., 147 Mich. 454 (111 N. W. 110); 4 Thompson on Negligence (2d Ed.), §4061.
The judgment is affirmed.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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McAlvay, C. J.
Complainant, a Michigan corporation, filed its bill against defendants, who occupy certain premises in the village of Harrisville, Alcona county, adjoining the property of complainant on the west, charging that defendants have wrongfully torn down the line fence erected by it between the lands of the parties, and after it had rebuilt said fence entirely upon its own land defendants threatened to tear it down again and destroy it. It prayed for an injunction to restrain them from so doing, and a decree for all damages occasioned by reason of defendants’ unlawful conduct in destroying said fence, and for general relief. Defendants’ joint answer to this bill of complaint admits the allegations of complainant’s, bill- that it was duly incorporated and had the record title of the premises claimed, but claimed there was a mistake in the description of land in its deed, and it had never had possession of the portion in dispute in this case. Defendants admit that they destroyed the fence in question and threatened after it had been rebuilt by complainant to tear it down again because it was built without authority upon their premises. They further alleged that they have been in the adverse possession of the strip in dispute for 26 years, and claimed by their answer the benefit of a cross-bill, asking that the title to this piece of land be decreed in defendant Mary G. Colwell. The case was heard upon proofs taken in open .court, and resulted in a decree in favor of complainant.
The parties to this suit own and occupy adjacent portions of land situated on lot 2, section 12, in town 26 north, of range 9 east, in the county of Alcona. The record shows that complainant, on March 15, 1883, purchased by warranty deed this description of land from defendants George W. Colwell and wife and others, members of Colwell Bros. & Co., a copartnership, and has owned and occupied it continuously since that time. The description of these premises is as follows:
"Commencing 847 feet east of the southwest corner of lot 1 in section 12 town 26 north, of range 9 east; thence, south 9 degrees and 30 minutes west to Washington street, in the village of Harrisville, as surveyed and platted by H. G. Rothwell, C. E.; thence, south 80_ degrees 30 minutes east 538 feet along the line of said street; thence, north 9 degrees and 30 minutes east to the line between lots 1 and 2 in section 12 in said township; thence west on said line 550 feet to the place of beginning, being a part of lot 2 of section 12 above mentioned.”
The description under which defendants occupy the premises adjoining complainant on the west, which were later, by several deeds from defendant George W. Colwell and others, conveyed to defendant Mary G. Colwell, situated on lot 2, of said section 12, as given in the deed to her, dated October 4, 1901, reads as follows:
“All that part of lot 2 in section 12 in township twenty-six (26) north, range nine (9) east: Commencing at the southwest corner of land owned by the Alcona Agricultural Society; thence, north along the west line of the Alcona County Society’s lands to the north line of said lot two (2) ; thence, west to the east line of the Detroit & Mackinac Co.’s right of way; thence, southerly along the east line of the Detroit & Mackinac Co.’s right of way to Washington street; thence, easterly along the north side of Washington street to place of beginning.”
A voluminous record is returned containing a large amount of testimony of many witnesses, a reading of which satisfies us, as it did the learned trial judge, that much of it is contradictory and irreconcilable. Defendants do not ask to have the claimed error in the description of land conveyed to complainant by its deed corrected, but rely upon adverse possession, and dispute the correctness of complainant’s surveys.
From the descriptions in the deeds as already given, conveying title to the parties to this suit, it will be noticed that the title conveyed to complainant by the members of Colwell Bros. & Co. antedates by more than 18 years the deed to defendant Mary G. Colwell, and both descriptions are by metes and bounds. By these deeds to these parties the west line of complainant’s land coincides with the east line of land claimed by defendants, and the description in Mrs. Colwell’s deed cannot be determined without first ascertaining and locating the west line of complainant’s premises, as is apparent from the description, ■ which reads:
“Commencing at the southwest corner of land owned by the Alcona Agricultural Society; thence, north along the west line of the Alcona County Society’s lands to the north line of said lot 2; thence, west,” etc.
It will be of no benefit for this court to analyze and digest the testimony of the parties and many witnesses produced by them in this case. This has been done with care by the learned trial judge before whom the witnesses were produced and in whose presence they testified. He has carefully stated in an opinion which is in the record the contentions of these parties and his conclusions from the testimony given.
The contention of defendants throughout the case is that the complainant never took possession of this strip of land, but built its first fence 45 feet east of the point where it now contends defendants’ northwest corner is located, and until the year 1909 maintained such fence running south from that point to the southwest corner of its land. Complainant insists that the first fence it built on the west side inclosing the premises deeded to it was constructed upon practically the same line where its present fence is located, and included the piece of land in controversy, which is wedge-shaped, being 45 feet wide at the north end and running to a point something more than halfway to the southwest corner. Defendant Colwell was a member of the firm of Colwell Bros. & Co., and, with his wife as a party thereto, executed and delivered the warranty deed given to it by the grantors.
In our opinion the controversy turns upon the question of fact as to whether the survey recently made by complainant can be accepted as correct, and whether the original fence constructed by it along the west line of the premises described in the warranty deed from the members of the firm of Colwell Bros. & Co. and their wives to it was upon the line coincident with the line of such survey. From our examination of the testimony in this record we are satisfied that the conclusion of the trial court favorable to the complainant upon both these propositions is supported by the weight of the evidence, and that complainant’s survey coincides with the line upon which, the first fence was built, and the fence as now constructed by it along the west line of its premises is located entirely upon its own land.
The decree of the circuit court is affirmed, with costs of both courts in favor of complainant and against defendants.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and. Steere, JJ., concurred. | [
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McAlvay, C. J.
(dissenting). Plaintiffs brought suit,' in an action of assumpsit, against defendant to recover the sum of $500, which they claim he by oral agreement promised to pay them. This suit resulted in a verdict and judgment -for plaintiffs. The case is brought here for review upon a writ of error by defendant. In order to have any understanding of this suit and the relations of these parties to each other in the transaction out of which it arose, it will be necessary to make a statement of the facts.
All of the parties to this suit are the sole heirs at law of William Jackson, who died testate June 21, 1910. Besides these children, there survived him a widow, who was their stepmother, and who elected to take her statutory dower and homestead rights in his real estate as his widow. In 1905 William Jackson had conveyed to defendant Charles Jackson, his son, by warranty deed, 40 acres of land in Monterey township, Allegan county, Mich., known as the “wood lot," for the cash consideration of $2,500. His wife, Lucy Jackson, refused to join in the deed, and it was provided therein that the conveyance was made subject to her dower rights. At the time of his death, William Jackson owned real estate consisting of a farm of 102 acres in Monterey township and a house and lot occupied by him as his homestead in Hopkins village, Allegan county. The farm was appraised at $9,000 and the homestead at $1,800. The widow claimed dower rights in the farm, in the 40 acres deeded to defendant, and homestead rights in the house and lot at Hopkins. The total valuation of the three parcels was between $12,000 and $13,000.
On August 21, 1910, the four heirs of William Jackson and his widow met at the probate office at Allegan, and made a settlement, and entered into an agreement in writing whereby these heirs purchased all of the dower and homestead rights of the widow in these three parcels of land. The material portions of this agreement read as follows:
“This agreement entered into this 22d day of August, 1910, by and between Lucy M. Jackson, party of the first part, and Charles S. Jackson, Minnie Opperman, Carlotta Stevens and Mary B. Knoblock, heirs at law of William Jackson, deceased, and devisees under his will, parties of the second part: Said party of the first part for and in consideration of the covenant herein undertaken by second parties doth hereby release unto said second parties all her right, title and interest in and to the estate of William Jackson, deceased, either under the will of said William Jackson, deceased, or under the statute as his widow and does hereby convey to said parties of the second part all her interest in and to the following described real estate, to wit, [giving description of premises], as dower homestead rights, or otherwise. To have and to hold the same forever. * * * [Omitting the agreement on the part of the heirs to sell and set over to the widow the household furniture and certain personal property and to lease the homestead to her for five years.] Second parties further agree to pay to the first party the sum of eighteen hundred (1,800) dollars on or before the first day of June, 1911, with interest at five per cent, after due. * * * ”
This instrument was duly executed, witnessed, and acknowledged by all the parties. Its terms and conditions were in all respects performed. The four heirs of William Jackson borrowed from the Hopkins State Bank the sum of $1,800, giving their joint and several promissory note for that amount, and they later paid said note out of the proceeds from the sale of said farm; each paying one-fourth of said $1,800. The foregoing statement of facts is undisputed.
The dispute in this suit arises out of the claim made by the three plaintiffs that on the same day, and shortly before the dower and homestead rights of the widow, Lucy Jackson, were sold and conveyed by her to the four children equally, as appears from the writing above referred to, a verbal agreement was entered into by which it is claimed Charles Jackson, defendant, agreed to pay, for the release of the dower interest in his 40 acres, $500 of the purchase price of $1,800 and one-fourth of the balance of $1,300. Defendant, Charles Jackson, denied that he made any verbal agreement with the plaintiffs or any of them. The court, over objections of counsel for defendant, allowed plaintiffs to testify at length relative to this agreement.
At the close of plaintiffs’ case, a motion was made by counsel for defendant for a directed verdict, upon several grounds, viz.: Because the claimed verbal agreement tended to contradict the written instrument which later all parties entered into; because the verbal agreement was within the statute of frauds relating to the sale of an interest in lands; because it was without consideration; because there was a misjoinder of plaintiffs; the action arising upon the agreement claimed to have been made was several and not joint. This motion was denied by the court, and an exception taken. The trial of the cause proceeded, and the case was submitted to the jury upon the charge of the court.
The errors assigned and relied upon relate to the refusal of the court to grant the motion for a directed verdict in favor of defendant; to the admission of certain testimony; to the refusal to give certain requests to charge; and upon certain portions of the charge as given. The most important contention on the part of appellant is that raised, among others, as a ground for an instructed verdict, namely, that this verbal agreement related to a sale of an interest in lands and was within the statute of frauds requiring such agreements to be in writing. At the time of making this verbal agreement, these parties were about .to, and did later on the same day, acquire by purchase all of the dower and homestead interests of their stepmother in all of the real estate of their ancestor in which she was interested. By this claimed agreement defendant was to pay $500 for the widow’s dower interest in the 40 acres he had purchased from his father, and each was to pay a one-fourth of the balance of $1,300, and plaintiffs testified that they were not purchasing, and did not know until after the commencement of this suit, that they had purchased any interest from the widow in defendant’s land. Each of the plaintiffs testified that, after this suit was begun, she executed and tendered to defendant a quitclaim deed of all interest in the 40 of defendant. This agreement, if made, was in contemplation of a settlement with the widow and a transfer of all her interest in this property to these parties which was made later on the same day, and which conveyed to each one of them a one-fourth of the widow’s interest in all of this real estate, including defendant’s 40 acres, for which each paid one-fourth of the purchase price agreed upon. That each received an interest in lands by this conveyance is not disputed, but it is contended that the agreement upon which suit was brought was not between the parties to the conveyance but only among purchasers. That agreement, however, contemplated acquiring an interest in real estate by defendant, and what was done in furtherance of it will be presumed to have been intended; and, having each acquired a quarter interest in all the widow’s dower and homestead rights in all the real estate, it will be presumed that they contemplated the only possible means whereby defendant could acquire the dower interest in his land, which would be by transfer to him from each plaintiff of her interest therein.
We do not find in these facts any performance which would satisfy the statute, and therefore must conclude that the verbal agreement was within the statute of frauds and void. The court should have directed a verdict in favor of defendant upon that ground. It will not be necessary to consider other questions presented.
The judgment of the circuit court should be reversed, and, as this conclusion would dispose of the entire case, a judgment should be entered in this court in favor of defendant and against plaintiffs.
Stone, J.
I am unable to agree with the result reached by Justice McAlvay in this case. In my opinion the contract set forth in the special count of the declaration, as well as the one claimed under the common counts, and testified to by the plaintiffs, was a valid oral contract, and it did not in any manner alter, contradict, or vary the terms of the written agreement by which the parties, both plaintiffs and defendant, purchased from Lucy M. Jackson her interest in and to the estate of William Jackson, deceased, “either under the will of said William Jackson, deceased, or under the statute as his widow,” and whereby she conveyed her interest to the parties to this suit. The agreement sued upon in no way affected the agreement of purchase from the widow, but was one whereby the plaintiffs and defendant agreed how the purchase money should be paid, as between themselves. It is the claim of the plaintiffs that, in consideration of their agreement to pay a portion of said purchase money, the defendant agreed that, of the $1,800 to be paid, he would first pay $500 of said sum, in consideration of his interest in the 40 acres (he having before purchased the same from William Jackson, subject to the dower interest of Lucy M. Jackson), and further that he would pay one-quarter of the remainder of $1,300; that he failed to do this, and only paid one-quarter of the whole sum of $1,800; and that, he having failed to pay as he agreed to do, he is indebted to them in the sum of $375, which they jointly had paid for him, as joint makers of the note.
In my opinion the agreement claimed by the plaintiffs was not within the statute of frauds, and did not relate to a transfer of an interest in lands, within the meaning of that statute. The conveyance of lands was made by a third party to the parties to this suit, and we are here dealing with a claimed contract between the latter as to how the purchase money should be paid, and the portion to be paid by each.
At most there was a mere presumption that the interest of each purchaser was equal, and that presumption was rebuttable. Campau v. Campau, 44 Mich. 31 (5 N. W. 1062) ; 38 Cyc. p. 74. As tending to show the interest of each, it would be competent to show the amount of purchase money paid by each. This would not infringe or contravene the statute of frauds.
Here a question of fact was presented as to the amount each of the parties agreed to contribute of the purchase money. The plaintiffs claim that, by reason of his interest in the property, the defendant agreed to pay $825 of the $1,800. This he did not do. They, having jointly paid for him, and for his use and benefit, $375 of that sum, seek by this action to recover it back. It would seem that there was a sufficient consideration for such promise, if made, and that such contract was made jointly with the plaintiffs. In my opinion a question of fact only was involved, and it was properly submitted to the jury.
The record showing no reversible error, the judgment of the circuit court should be affirmed.
Brooke, Kuhn, Ostrander, Bird, and Steere, JJ., concurred with Stone, J. Moore, J., did not sit. | [
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Ostrander, J.
While it is alleged in the declaration that it was defendant’s duty, among others, to have adopted, promulgated, and vigilantly enforced a rule for notifying miners of the condition in which the place in which they were required to work was left by miners working in the same place, on another shift, the case as made and as it was submitted to the jury, and the legal propositions presented in this court, may be gathered from that portion of the charge of the court which is here set out:
“The plaintiff has brought this suit to recover damages for personal injuries which he received while in the employ of the defendant mining company on or about the 16th day of February, 1911. He claims, and has introduced evidence tending to show: That he was working as a miner sinking a certain winze from the twenty-second level to the twenty-third level of defendant’s South Kearsarge mine. That there were two shifts of men working company account and not .on contract, on opposite shifts, in and about the sinking of said winze. That the plaintiff and his partner worked on one shift, and that on the other shift his opposite partners, consisting of two miners, worked in and about the work of sinking this winze downward along the vein. That, on the week when plaintiff was injured, he was working with his partner on the night shift, as I recollect the evidence. That on the preceding shift, which was the day shift, his partners on the opposite shift worked taking up a sink, as it has been called in the evidence, which is done by drilling holes in the solid ground or face of the rock at the bottom of the winze and blasting the same for the purpose of taking out a cut or taking up a sink in order to push the winze further downward. That, on the said day shift, seven holes were drilled by the opposite partners of the plaintiff, and that at the end of the shift the miners working on such shift, and who were known in the evidence as the opposite partners, blasted the seven holes. That, in and about the business of blasting holes in that mine, dynamite, fuse, and caps are used. That the fuses by which the holes are fired or exploded are usually, as in this place and at that time, cut in different lengths for the pur pose of exploding the holes in succession. That the holes are then exploded or blasted by firing the fuse, which explodes a primer or cap contained in the dynamite or in one of the sticks, and is supposed to explode the charge of dynamite. That sometimes as many reports or blasts are heard as the number of holes drilled and attempted to be blasted, and sometimes a less number of reports are heard, varying from one or two to any number less than the full number of blasts or attempts at blasting holes. The plaintiff further claims, and has introduced evidence tending to show, that, when a less number of reports are heard in blasting under such conditions as existed in that winze, it was the duty of the miners so doing the blasting to so report the fact, that there were a less number of explosions or reports heard by them, to the men coming on to work on the succeeding shift, or to the shift boss, so that the latter could see that timely warning and notice thereof would be given to the succeeding shift unless such miners so doing the blasting had satisfied themselves that there were no missed holes or unexploded blast, by means of a careful inspection, investigation, or examination of the premises subsequent to the firing of the holes.
“The plaintiff claims: That, on the day shift immediately preceding the night of his injuries, his opposite partners drilled and attempted to blast seven holes in making a sink in the bottom of the winze where plaintiff was employed. That, when said blast was made, the miners who were doing the blasting heard only two reports. That such miners, after a reasonable time had expired, looked over and investigated said winze, but were not able to satisfy themselves that either there was or that there was not a missed hole; it being -the claim of the defendant, however, that such miners did satisfy themselves that there were no missed holes. That thereupon it became the duty of such miners to report that fact that they heard only two reports to the plaintiff, or to the shift boss, so that it would be eventually reported to the plaintiff, who would and did come to work on the succeeding shift, of the possible existence of missed holes or unexploded powder in the bottom of that winze. • That the plaintiff’s partners on the other shift (that is, the miners who were doing the blasting, as aforesaid) failed to notify him or send him word or warning to the effect that only two explosions were heard, and that plaintiff went to his place of work without any knowledge of the existence of any unexploded dynamite in the bottom of the winze, and while exercising due and ordinary care for his own safety, and without having assumed the risk, he and his partner drilled into unexploded dynamite then and there in the bottom of the winze, which thereby caused an explosion, as a result of which the plaintiff received the injuries of which he complains in this case.
“That is substantially the claims of the plaintiff in this case. And, furthermore, the plaintiff claims: That his injuries so received are a result of negligence on the part of the men working on the opposite shift in failing to notify him that only two reports were heard, and failing to warn him of the possibility of the existence of unexploded dynamite in the winze, and that the defendant is responsible for the negligence of the miners on the opposite shift. That there was no want of ordinary care on the part of the plaintiff which contributed proximately to his injuries, and that the injuries which' resulted to him were not assumed by him and were not and are not one of the inherent risks of the service which he assumed in entering upon and continuing in the employment of the defendant.
“On the other hand, the defendant claims: That there was no negligence on the part of the defendant. That the miners on the other shift satisfied themselves, from an examination and investigation of the situation in the bottom of the winze after the blasting, on the day shift, that there was no missed hole or unexploded dynamite in the winze. That the inspection and investigation which they made was the usual, reasonable, and ordinary investigation that would be made under such conditions, and that by reason thereof the miners working on the day shift became perfectly satisfied that there was no missed hole in that winze or any unexploded dynamite, and that therefore there was no occasion on their part and no duty to warn the partners who would succeed them, the plaintiff and his partner, or to warn the shift boss, of the existence or possible existence of any unexploded dynamite in the bottom of the winze.
“The defendant denies that it was the custom under the conditions which obtained in that winze, and especially in making a sink and taking up á sink, as they express it, to depend upon the number of reports to determine whether there was any unexploded dynamite left after the blasting, and that such number of blasts was no evidence either one way or the other as to what had occurred with reference to missed holes or the existence of unexploded dynamite.
“The defendant further claims that the miners,' even if they did neglect their duty in this case, are fellow-servants of the plaintiff, for whose neglect they are not responsible in this case. The defendant also claims that the risks, under the circumstances of this case, of unexploded dynamite in the winze, from which the plaintiff was injured, was one of the inherent and ordinary risks of the service which he assumed and entered upon when he went into the employment of the defendant,' and for which the defendant in law is not responsible. The defendant also claims that, if there was any negligence on the part of the defendant or upon the part of any one for whom the defendant is responsible, there was also negligence on the part of the plaintiff himself in not making a sufficient examination- of the premises in the bottom of the winze before he went to work, in order to determine for himself whether or not there was any missed holes or unexploded dynamite in the bottom of that winze, and the defendant therefore denies any liability to the plaintiff, and claims that it should recover a verdict in this case, by reason of any and all of those claims.
“Now, you have heard, gentlemen of the jury, the claims of the parties as near as the court can recollect them, and the first question for you to determine will. be whether or not there is any negligence on the part of the defendant which caused the injuries to the plaintiff in this case. Negligence is usually defined as the failure to exercise ordinary care under the circumstances. That is, the failure to exercise such a degree of care for the safety of another as a reasonably prudent person would have exercised under like conditions and circumstances.
“Now, as you have already heard, the claim of negligence made by the plaintiff in this case is that the defendant has failed to warn and notify the plaintiff of the existence or possible existence of missed holes or unexploded dynamite in the bottom of that winze before he went to work there on that night shift that he was injured. The plaintiff claims it was the duty of the defendant to have warned him of its existence, if you have found that it did exist, of missed holes or unexploded dynamite in the bottom of the winze; and the plaintiff claims it was the custom in that mine for men who were going to work to rely upon the opposite shift, the men who had worked upon the preceding shift, to give that warning, if the men working on the preceding shift had reasonable opportunity to become aware that missed holes or unexploded dynamite was existing, or liable to exist, in the premises where the succeeding shift was to come on to work, and that that custom was applicable to this case and to the circumstances of this case; and the plaintiff further claims that, when the number of reports were not heard equivalent to the number of holes attempted to be exploded, that was evidence from which the men doing the blasting should have determined that there was a possibility of missed holes, and the fact that a less number of explosions were heard than the number of holes attempted to be blasted should have been brought home to the knowledge of the men on the succeeding shift, and that that custom has application to the facts in this case.
“I say to you, gentlemen, if you find by a fair preponderance of the evidence that such custom existed, then it will be your duty to say that the defendant was guilty of negligence in failing to give the plaintiff warning that there was a possibility of missed holes or unexploded dynamite in that winze prior to his going to work on that night shift, and it makes no difference whether it was the duty of the men working on the preceding shift to give that warning, or the shift boss. He was not a fellow-servant of the plaintiff; he was an agent of the defendant, and for whose neglect in that regard the defendant would be liable in this case; and it will be for you to determine whether there was such a custom or not prevailing in that mine. It is denied by the defendant, and you have to find by a fair preponderance of the evidence, as I outlined it to you and as claimed by the plaintiff, whether it existed, and that it was applicable to the conditions pertaining in that winze. It would not make any difference whether the custom existed in other conditions in the mine, if it did not exist and was not applicable to the conditions prevailing in that winze at the time the blasting was done and at the time the plaintiff went to work succeeding the blasting on the next shift. If you find that such custom existed by a fair preponderance of the evidence, then proceed to the next step in the case. If you do not find such custom, then I charge you it is your duty to render a verdict for the defendant; you need not consider any other question in the case. If you do find that such custom existed, then you may proceed to determine whether or not, if that warning had been given, the plaintiff in this case would have been in any better position. In other words, would it have prevented the injury which occurred? Would it have prevented the explosion in the winze at that time? If you further find that, if the plaintiff had that warning and knew that there was a less number of blasts reported than had attempted to be exploded, it would have prevented his injuries, if you find that to be a fact, then, gentlemen of the jury, you can say, and it will be your duty to determine, then, as a matter of fact, that the negligence of the defendant was the proximate cause of the injury to the plaintiff; and if you have not so determined that, even had such a custom existed, it would have done the plaintiff any good had he got that notice, then you should find for the defendant.”
The jury returned a verdict for plaintiff, upon which judgment was entered. Defendant at the close of plaintiff’s proofs, and when all proofs were concluded, asked for a peremptory instruction in its favor. The grounds of the motion were: (1) There is no proof of the custom or duty relied on by plaintiff. There is no proof of any negligent fault or failure of the miners who worked on the opposite shift with respect to any duty or custom. (2) Assuming there was a duty resting upon the miners in the opposite shift and a default on their part, it was the fault of fellow-servants of plaintiff.
Errors are assigned which raise other questions, but the argument of counsel for appellant is directed principally to the propositions just stated. On the other hand, after a quotation of testimony from the record, counsel for appellee admirably and concisely state their position as follows:
“We cite this testimony merely for the purpose of showing that at least there was some evidence before the court and before the jury which tended to show that there was a custom that it was the only means of protection furnished the plaintiff or people in a like situation; that this was known, or must have been known, to the defendant; and that it was evidence upon which a jury could base its verdict, and evidence which it is the duty of the jury to pass upon under the proper instructions of the court. It cannot be brushed aside merely with the statement that there is no evidence in the case.
“There was undoubtedly some testimony in the case showing the practice or custom among the miners with regard to submitting information relative to the conditions of the missed holes, and so on. As long as the defendant required work of the extremely hazardous character of that performed by the plaintiff in this case, and did not choose to provide a system of rules and a system of inspection looking to the protection of its men, but acquiesced in the custom or practice, loose as it might be, which the men themselves had established, it is bound by that custom. It cannot, because it failed to provide a more perfect method than it had permitted the men to work, out for themselves, be heard to say that they are absolved from all duty because the men did work out some system, though a crude one.
“There is hardly any ground for argument that the defendant company owed the plaintiff the duty to warn him of the latent danger in the place in which he was to work. If there had been any doubt on this ground, it was settled in the case of Panela v. Castile Mining Co., opinion dated December 20, 1913 [177 Mich. 669]. A reading of that opinion renders the citation of other authorities on this proposition unnecessary.
“The appellant’s second contention, viz., that the negligence in this case, if any is to be imputed to any one, was that of a fellowTservant, is completely disposed of by the case of Panela v. Castile Mining Co. The duty claimed by the plaintiff in the case at bar is exactly the duty placed upon the shift boss in the case of Panela v. Castile Mining Co., and it is there held by the court that the duty to give this warning was the nondelegable duty of the master. * * *
“It was held in Panela v. Mining Co., 165 Mich. 336 [130.N. W. 689], that it was the duty of the defendant to warn plaintiff if the members of another crew left explosives in the shaft. The court said:
“‘All crews used explosives. It was the duty of defendant to notify plaintiff if the members of another crew left explosives in the shaft, because, if such notification was not given, there would exist an unknown, and perhaps undiscoverahle, hazard to which plaintiff should not he exposed. This is the reasonable meaning.’ ”
We are referred by appellee also to Shannon v. Mining Co., 24 Wash. 119 (64 Pac. 169) ; McMillan v. Mining Co., 32 Wash. 579 (73 Pac. 685, 98 Am. St. Rep. 908) ; Blaisdell v. Paper Co., 75 N. H. 497 (77 Atl. 485, 139 Am. St. Rep. 735) ; Coffeyville, etc., Tile Co. v. Shanks, 69 Kan. 306 (76 Pac. 856). The case of Panela v. Mining Co., reported in 165 Mich. 329 (130 N. W. 686, 144 N. W. 528), is not decisive of the case at bar. The case was here first on error to review an order sustaining a demurrer to. the declaration, and we found in it averments sufficient in form and substance to require the admission of testimony. In an analysis of the language employed in the declaration, the issues presented were stated. No rule of law affecting the duty of the defendant was announced, and the last sentence of the quotation from the opinion, found in appellee’s brief and above set out, does not appear in the opinion. What the court said was, “This is the reasonable meaning,” referring to the language of the declaration, and it did not say, as counsel have made it appear, “This is the general rule.” Upon the second appearance of the case in this court, after a trial in the court below, where a verdict for defendant had been directed, there was presented the question whether, viewing the testimony in a light most favorable to plaintiff, there were issues of fact for a jury. A statement of facts is incorporated in the opinion, and among them the one that:
“The duty of so warning them [the men] was imposed by defendant on the foreman of each crew. It was customary to so give such warning where there were several crews working at the same place.”
In other respects, the facts which in that case the testimony offered by the plaintiff tended to prove were vitally different from the testimony offered in the case at bar. And it was not decided that the master owed to the miners the nondelegable duty to warn them of unexploded dynamite left in the mine by fellow miners working on another shift. It is true that four of the justices, resting the duty upon the doctrine of the rule of safe place, were of opinion that it was nondelegable. But only four of the justices agreed to the conclusion. Nor are the other cases cited by appellee controlling here, as an examination of them will discover.
The facts shown by the record are simple, and not disputed, and, briefly stated, they are as follows: Four experienced miners were employed by defendant in sinking a winze, 4 by 4% or 5 feet in size, in rock. Two of them worked on the day, and two on the night, shift. These men did the drilling, blasting, and cleaning out of the winze as they proceeded. They had been at the particular work for some weeks, and had proceeded more than 30 feet into the rock. Having squared up the sides and leveled the floor, the miners on the day shift had drilled in the rock 7 holes from 5 to 6 feet in length and an inch and a half in diameter. One of these holes was substantially in the center of a circle made by the other 6; the diameter of the circle being perhaps 14 or 15 inches. The center hole was drilled vertically into the rock, the others at an angle; the rock within the drill holes being roughly in form a cone. That is, in making the six holes, the drills were so directed as to gradually approach the center of the circle; one hole sometimes intersecting another or others. Into the seven drill holes dynamite was introduced, the fuses lighted, the men left the pit, and the action of the explosion, if the desired result was accomplished, was to break up, so that it could be removed, the rock inside the drill holes.
Thereafter drilling and blasting proceeded both from above and from the inside of the opening thus made until the rock inside the walls of the winze had been removed. In this way the process was repeated. But while seven caps and seven fuses were used, one to each drill hole, and were cut and fired in such a way as if further removed from each other, to produce a series of explosions, the charges of dynamite were so close to each other that in fact one explosion was all that sometimes could be heard, two or more at other times. The fact that a less number than seven explosions could be counted was not evidence that any charge remained unexploded. All of these miners knew this. Sometimes, and it was true on the particular occasion, the explosion will break up the rock inside the circle of drill holes, but will not lift or blow it out of the hole. It will be, and in this case it was, left, except for a few inches at the collar, or stop, so closely packed that another blast was required to loosen it. Whether, in such a case, below the surface of what remained in the hole there is unexploded dynamite may and may not be discoverable. Sometimes, perhaps most of the time, the results of a blast were left in the pit to be cleaned out by the men in the oncoming shift. They take conditions as they find them, with such warning as the outgoing shift may leave for them, make such examination as they choose, and go on with the work. In short, the miners are the men upon whom rests the duty to do all that is required to be done about the matter. It does not appear that more skillful inspectors can be employed. Upon the particular occasion the miners who set off the blast went back into the pit, after hearing two explosions, made an examination, satisfied themselves that all of the charges had exploded, and quit work. They were mistaken. But it does not appear that any one could have been more certain. The plaintiff and his companion, coming' to work, saw the conditions. They did not know whether the other miners had been able to hear one or more explosions. They could see and understand everything else that the others could have told them. They knew how the drilling had been done; they saw the hole plugged with material; they knew what such examination as could be made disclosed. They had precisely the same information that the miners on the outgoing shift had, except the information that but two explosions had been heard. But that information, as has been stated, would not be evidence that all of the charges had, or that they had not, been exploded. And it was a part of plaintiff’s knowledge, derived from his experience, that it was unlikely that there had been seven or any considerable number of explosions. It is not perceived how anything that defendant or the miners on the preceding shift could have told plaintiff would have improved his situation. What those miners saw, he could see. Such inspection as they might have made, he could make.
It does not appear that the method of excavating rock pursued was not an approved and wholly proper method. Unless, then, we are to hold, as matter of-law, that the defendant owed to plaintiff the duty to discover and notify him that there was unexploded dynamite in this rock, there is no evidence of any negligence on the part of defendant or on the part of the miners who did the blasting. We find neither authority nor reason for such a ruling. We may go further and say there is in this record no evidence of a custom of miners to notify other miners of the possible existence of unexploded dynamite where work such as plaintiff was doing is carried on. At best, the evidence is that, when the miners who set off the blast discovered or believed such a condition existed, they were in the habit of giving notice of it. Where mining for ore was carried on, and holes for dynamite were drilled at various distances from each other from a foot and a half to greater distances, a series of explosions was expected, and miners were able to count them, and thus learn whether all of the charges had been exploded. We are not here dealing with such a case.
The judgment is reversed, and, as it does not appear that any rule which defendant could formulate and enforce would have better protected plaintiff under the circumstances, no new trial will be granted.
McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. | [
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Moore, J.
In 1911, the plaintiff, who owned an automobile, a Thomas flyer, then at Tecumseh, Mich., made an arrangement with one Eyke, who owned a garage at Muskegon, to the effect that the automobile would be shipped by rail to Muskegon, and would be received by Mr. Eyke and put in repair for the plaintiff. The automobile was shipped, and upon its arrival in Muskegon Mr. Eyke paid freight upon it to the railroad company, amounting to $83.60. He also furnished an extra tire, which was strapped into the receptacle for extra tires on the side of the machine. The charge for the tire was $50.75.
All this was done prior to September 15, 1911, at which time a settlement was made between Mr. Gardner and Mr. Eyke, and $75 was paid on the account, leaving a balance of $171.60. Mr. Gardner was an actor, going about from place to place, and it was agreed at the time of settlement that the machine should remain for the present ’with Mr. Eyke, and that Mr. Gardner should pay storage at the rate of $1 a week until he should pay the account and take the car away. Later Mr. Eyke went .out of business and assigned his account and claim to the defendant. The plaintiff made a demand upon the defendant for the automobile, without offering to pay the account. The defendant declined to deliver the machine until the account was paid, and replevin was brought. Upon the trial the judge directed the jury to find that the title to the automobile was in the plaintiff, but that defendant had a lien thereon for the balance due on account, with interest amounting in all to $164.85, and a verdict and judgment was so entered. The case is here by writ of error.
It is claimed the right to enforce a lien cannot be assigned, citing Caldwell v. Lawrence, 10 Wis. 331, and Pearsons v. Tincker, 36 Me. 384. Whatever else may be said of these cases, we think they are not the law of this State.- Section 10054, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12704), recognizes the right to assign choses in action and other property rights. See cases cited in note to this section. In De Witt v. Prescott, 51 Mich. 298 (16 N. W. 656), Justice Campbell, speaking for the court, said:
“The more important allegations of error relate to the rulings of the court as to what circumstances would relieve defendants from responsibility for the result of the replevin suit, and discharge them from any lien which may have existed. And several of the charges and refusals complained of are connected with the alleged waiver of the lien, by allowing the lumber to be shipped to Welch & Co.
“The court below held that any delivery of the lum'ber by Eames to Welch & Co. would discharge the lien, unless preserved by agreement, and that no such agreement would bind defendants or sustain the lien, so far as their responsibility to discharge or defend against it was concerned, unless made with their consent or ratification. This doctrine was laid down very broadly, and it was also intimated that an agreement to remove the lumber from this into ánother jurisdiction might be treated as fraudulent and injurious to defendants. And the court refused to charge that such an agreement, made without fraudulent intent and with no design to injure defendants, would not be of itself a fraud on them.
“We have not found authority for any such unqualified doctrine, and no cases were cited on the argument sustaining it. It is quite uniformly held that an unconditional surrender of possession, or conduct showing a design to discharge the lien, or plainly inconsistent with it, will usually put an end to it. But it seems equally clear that the holder of the lien may allow the owner of the property to take it into his possession and remove it without prejudice to the lien, if so agreed. Wheeler v. M’Farland, 10 Wend. [N. Y.] 318. And it is also undisputed that such a lien cannot be destroyed by a removal, without the consent of the lienholder, from his possession. And in Nash v. Mosher, 19 Wend. [N. Y.] 431, Cowan, J., in reviewing the authorities, comes to the conclusion that the holder of a possessory lien can transfer the lien with the possession, as other valuable rights may be assigned.”
In this case it is clear Mr. Eyke did not intend to part with his possession and the lien for the benefit of the plaintiff. On the contrary, he assigned the claim and delivered the automobile into the possession of the defendant, to be held by him until the claim was paid.
It is claimed a lien cannot be asserted for the freight paid. We do not think it necessary to say whether, if nothing had been paid by plaintiff on the account, the lien could be enforced. As a matter of fact $75 was paid after the freight bill was paid, and as the amount paid for the freight was the first item of Mr. Eyke’s claim, the payment could well be applied upon the freight bill, which it would more than pay. People, for use of Holmes, v. Sheehan, 118 Mich. 539 (77 N. W. 88); People, for use of C. H. Little Co., v. Grant, 139 Mich. 26 (102 N. W. 226).
It is said it was error to hold that the lien attached for the extra tire furnished. Section 10747, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 13805), is as follows:
"When any person shall deliver to any mechanic, artisan or tradesman, any watch, clock, article of furniture or jewelry, implement, clothing or other article of value, to be altered, fitted or repaired, such mechanic, artisan or tradesman shall have a lien thereon for the just value of the labor and skill applied thereto by him, and may retain possession of the same until such charges are paid.”
One familiar with automobiles and the use made of them would regard an extra tire as part of a properly equipped automobile. A prudent, experienced owner of a Thomas flyer would hardly venture away from home with it without carrying an extra tire. It will be noticed the language of the statute is “to be altered, fitted or repaired.” We think, when Mr. Eyke fitted this automobile with an extra tire, which became a part of the outfit, the lien given by the statute attached.
We think it not necessary to discuss, although they have had our attention, the other assignments of error.
The judgment is affirmed.
Brooke, J., concurred with Moore, J.
Ostrander, J.
In my opinion, plaintiff has no lien upon the automobile for the price of the extra tire,, nor has he any lien under the statute relied upon for the price of the tire. I agree with the result announced in the opinion of Mr. Justice Moore for the reasons he gives, and the further reason that plaintiff had a lien at common law upon the tire for its value.
McAlvay, C. J., and Kuhn, Stone, Bird, and Steere, JJ., concurred with Ostrander, J. | [
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McAlvay, C. J.
A judgment was recovered by plaintiff against defendant for damages in a negligence case for personal injuries. Plaintiff, a young man about 17 years old, received his injury at about half past 6 o’clock on the morning of April 19, 1911, while riding on the rear bumper, or deadhead, outside of the rear dash of a north-bound Baker-Chene street car of defendant in the city of Detroit, while such car was on the passing switch near the corner of Garfield and Chene streets.
At this time defendant operated a single track line on Chene street from Gratiot avenue to the northeasterly city limits, upon which cars moved north and south, passing each other on switches located at distances of from 800 to 900 feet apart. The service ordinance then in force called for a three-minute service, upon which cars from the barn on Baker street were operated. From the Chene street intersection on this track it was not possible to operate cars exactly on schedule. The cars from that point were run north and south substantially upon a, double header system by which two cars going north would ordinarily pass two cars going south on the same switch.
On the morning in question it had rained considerably before the accident occurred. The track was wet, and the weather foggy. This was during what is called the “rush hour,” and all the cars were crowded. Plaintiff lived several blocks north of this switch. He was acquainted with the conditions of traffic at this time of day, and walked south on Chene street as far as Forest, where, discovering a car on or near the switch at Garfield street, one block further on, he proceeded south. Arriving at this place he found the car crowded inside and on the platform. The second car, bound in the same direction, also came on this switch and stopped near the rear of the first car. Plaintiff says he undertook to get on this second car, and, not being able to do so, because of the crowd, went back to the first car, and, with others, climbed on the rear bumpers of the rear dash, where he stood when the conductor took his fare. The testimony indicates that the cars stood from 6 to 15 feet apart. These cars waited on this switch until two south-bound cars passed them. The first car then started forward and, after moving a short distance, suddenly stopped.
To this point there is no dispute between these parties upon the facts. It is claimed on the part of plaintiff, and testimony is in the record ón his part tending to show, that the motorman on the rear car, who was in a position to see plaintiff riding on the bumper of the first, slowly started his car forward, and did not stop it until the collision occurred and plaintiff was injured.
It is not disputed on the part of defendant but that the motorman operating the rear car saw the persons who were riding on the bumper. Defendant’s claim relative to the collision, tending to support which there is evidence in the record, is- as follows: The motorman on the second car testified that, observing the first car had started, he gave the signal that he was ready, and, receiving the answer from his conductor, started his car ahead on one point of the controller, afterwards increasing it to two. He says he very soon observed that the car ahead had stopped, and at once shut off his power, tripped his sand, put on his air brakes, and hand brakes, but, owing to the wet and slippery condition of the track, was unable to stop his car before it struck the bumper of the first car a slight blow, without injury to either car. There is no dispute between the parties as to the following facts: Some of the men standing on this bumper jumped before the cars collided. Plaintiff’s left foot was caught between the bumpers of the cars and badly crushed, and another boy was injured slightly. These bumpers are five inches wide, extending out this distance around the end of the car. Plaintiff distinctly saw the car approaching slowly from the rear, and testified he thought it was going to stop. He had fre quently used the cars on this line before this day in going to and from, his work. He appears, from his testimony, to be a young man of ordinary intelligence, and had attended a Polish school, also an English school into the fifth grade, and could read and write both languages.
Experienced motormen operated both of these cars on this date. The first car started out after the two south-bound cars had passed on this switch. It had gone but a short distance before the motorman discovered another south-bound car approaching about one block south of the next switch. He had not discovered it sooner because of the fog. To avoid being forced to back south if he passed the frog on this Garfield switch going north, and thereby lose his place and also time, he stopped his car at once.
Cars, of necessity, on this line, because many of the switches will accommodate but two cars, must keep quite near together. The motorman of the rear car could not see, as he testifies, the car going south, and, having started slowly, when he discovered the sudden stopping of the first car, immediately made the efforts to stop his car, the controlling mechanism of which was in perfect condition.
At the close of plaintiff’s case, and after a motion made by defendant for a directed verdict, because there was no proof of the acts of negligence charged in the first count of the declaration, because of a fatal variance between the allegations of negligence contained in the second count of the declaration and the proofs in the case, because there was no evidence of negligence proved as charged in such count, and because plaintiff was guilty of contributory negligence, the court, upon motion of plaintiff’s attorney, granted leave to amend the second count of the declaration. This was done, notwithstanding the objection of defendant that such amendment charged a new cause of action, on account of which defendant was not pre pared to proceed because of complete surprise. The amended count reads as follows:
“That he boarded a certain car of the deféndant which was facing in a northerly direction, and which was standing on the easterly side of the switch at said point, and paid his fare to the conductor in charge of said car; that said car was greatly overcrowded; plaintiff took a position outside of the rear dash of the same, in which position plaintiff and several other passengers were standing when the conductor of said car accepted his fare; that after plaintiff boarded said car said car was moved forward on said switch a distance of 4 or 5 feet, at which point it stopped and remained stationary for a period of three or four minutes; while said car was so standing at said point on said switch, the defendant, by its servants in charge of another car standing about 11 feet in the rear of said car upon which plaintiff was a passenger, caused said rear car to be started forward and to be operated to and against the plaintiff who was standing on the bumper; * * * that the motorman in charge of said car in the rear of the car saw plaintiff and several other passengers in their position outside of the rear dash of said car before causing said rear car to be started forward, and well knew that if he collided with the rear of said car upon which plaintiff was riding, that plaintiff would be crushed and crippled, that notwithstanding the fact that plaintiff occupied said position outside of the rear dash of said car and.was in plain view of, and had been seen by defendant’s motorman before starting his car forward, the said motorman in charge of said rear car, in utter disregard of his duty in the premises, and with reckless, thoughtless, and intentional disregard of the consequences, acting with gross, wanton, and wilful negligence, caused said car which he was operating to be propelled forward to and against the plaintiff and other passengers who were outside of the rear dash of said car, and without the exercise of any proper effort to avoid said collision.”
Defendant was required to proceed at once with the trial upon such declaration as amended, to which its counsel objected and excepted. This declaration upon which.'the case was submitted to the jury was the third which had been filed in the case.
The original declaration, filed August 15, 1911, contained but one count, and alleged that, while plaintiff was a passenger on the rear platform of a crowded car of defendant company which had arrived on the switch at Garfield street, another car going in the same direction at a high rate of speed collided with it, badly crushing and injuring him, charging defendant’s duty was to operate its cars not less than a certain distance apart and at a certain speed, which duties were alleged to have been violated.
In October, 1912, upon leave given, plaintiff filed an amended declaration containing two counts. The first count alleged that he boarded one of defendant’s cars at Garfield and Chene streets to go to his work, and paid his fare; it charges in proper language defendant’s duty to operate its cars without negligence, and as required by certain ordinances, and at a certain distance apart when approaching from the rear, and at a certain rate of speed; it charges a negligent disregard of such duties in operating a car at a high rate of speed approaching the car upon which plaintiff was a passenger from the rear, so that it collided with it, and he was severely injured, without fault or negligence on his part. The position which plaintiff occupied upon the car is not stated in this count.
The second count alleged that plaintiff at this place, at the invitation of defendant, boarded a greatly overcrowded car while it was standing on Garfield switch; that he “took a position outside of the rear dash of the same” where several others were standing, and paid the conductor his fare; that the car remained stationary for three or four minutes, and, while so standing on the switch, another car of defendant, approaching from the rear of the car upon which plaintiff was a passenger, in plain sight of the approach ing car, where he could be seen for several blocks by its motorman, was operated with gross, wanton, and wilful negligence at a high rate of speed, causing it to collide with the car upon which he was a passenger and injured him severely.
Under the direction of the court, the trial of the case proceeded after the court had denied defendant’s motion for a directed verdict, and had allowed an amendment to plaintiff’s declaration, notwithstanding an objection by defendant that such amendment stated a new cause of action and was a matter of surprise. The case was tried and submitted upon this declaration amended at the close of plaintiff’s case. The result of the trial was a verdict in favor of plaintiff. Defendant has brought the case to this court for review by writ of error.
The errors assigned and relied upon by defendant for a reversal, which are based upon the refusal of the court to grant its motion for a directed verdict at the close of plaintiff’s case, do not require consideration. It is admitted in plaintiff’s brief that the first count of the declaration was eliminated from the case during the trial. The abandonment of the second count immediately after this motion was made, by asking from the court and accepting permission to amend the second count of plaintiff’s declaration and filing the amended count, was an admission on the part of plaintiff that the contention of defendant that there was a fatal variance between the declaration as it then stood and the proofs of plaintiff in the case was well founded.
The contention of defendant that the record disclosed plaintiff was guilty of contributory negligence does not appear to be disputed. This is admitted by the amendment to plaintiff’s declaration, which relies entirely for a recovery upon the alleged subsequent negligence of defendant, upon which, if shown, a recovery could be had, notwithstanding plaintiff’s con tributory negligence. This was the view of the case taken by the court, as appears from what was said at the time the amendment was made, and later in submitting the case to the jury upon the one question of subsequent negligence.
It is strongly urged on the part of defendant that the court erred in allowing plaintiff to amend his declaration at that time. Under the circumstances, we do not think it necessary to consider the proposition. If it be admitted that allowing such amendment was a matter of discretion on the part of the court, the question remains whether requiring defendant to proceed to trial at once was an abuse of judicial discretion, when its counsel was protesting that this amended declaration stated another and different charge of negligence, whereby defendant, by reason of surprise, was not prepared to proceed to trial.
The court, later in' the case, where a similar question arose relative to another amendment to the declaration to allow proof of a certain custom, not so important as the one under consideration, recognized the fact that, if by an amendment a great surprise is given to the opposite party, sufficient time for preparation should be granted, and so ruled. We do not think, under the circumstances of this case, this court should say that, where defendant had been called to meet a certain specific charge of negligence alleged in the declaration, and had prepared to defend such a case, it should be required forthwith to proceed to defend a substantially different charge of negligence, without opportunity to procure witnesses or' make other preparation for defense.
At the close of the case counsel for defendant made a motion for a directed verdict, “upon the ground that there is no proof of the allegations of negligence contained in the plaintiff’s declaration and that, under the law, the plaintiff is guilty of contributory negligence.” Counsel challenged the sufficiency of the amended declaration, as not charging a case of subsequent negligence, and said:
“If it does state a case for liability for subsequent negligence, I assert that there is no evidence which supports the allegation of subsequent negligence, as charged in the declaration.”
The motion was denied, the court saying:
“I think negligence arises from the fact that the motorman saw it who was opérating the car. I think that is sufficient negligence. * * * I think, in other words, you may go to the jury in this case upon the question of subsequent negligence.”
Errors are assigned upon the ruling of the court denying this last motion, and also upon the holding of the court that subsequent negligence arose from the fact that the motorman operated the car in such a way that it collided with the car upon which plaintiff was riding, with the knowledge of the fact that plaintiff was in an exposed and dangerous position.
The case was submitted to the jury upon the one question of subsequent negligence upon the theory of the court as above stated. The declaration contains no specific averment of negligence in starting the rear car in the manner it was started, nor as to the speed at which it was operated. There is no dispute in the record but that the car started and proceeded slowly, nor is there any dispute but that the motorman did everything possible to stop the car and avoid collision. Plaintiff testified that it was coming slowly, and that he expected it would stop before striking his car.
To hold the defendant liable for subsequent negligence under this declaration it must appear that after the rear car was started the motorman, with knowledge of the situation, made no reasonable effort to stop it and avoid collision. In other words, that the conduct of the motorman amounted to gross negligence. The evidence in the record does not support such a conclusion.
Other errors assigned do not require consideration.
For the reasons stated, the judgment of the circuit court is reversed, and a new trial granted.
Brooke, Stone, Ostrander, Moore, and Steere, JJ., concurred with McAlvay, C. J. | [
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] |
Stone, J.
This is an action of assumpsit brought to recover damages upon three separate and distinct causes of action, which are set forth in three separate counts. Counsel upon both sides, in presenting the questions to be considered, have treated the counts separately, and we will attempt to pursue that course in disposing of the case.
In and by the first count of the plaintiff’s declaration it alleges that in 1911 it was engaged in carrying on the business of canning fancy fruits and vegetables, and also buying and selling fruits at wholesale and in car lots, and had its principal place of business at the village of Fremont, Newaygo county. The declaration alleges that the country adjacent to the village of Fremont, at the time mentioned was, and for some time prior thereto had been, largely devoted to the raising of fruits, and particularly to the raising of large quantities of peaches, and during the season of harvesting the said fruit large quantities of peaches were shipped to various points outside of Fremont by the defendant; that during the summer of 1911 plaintiff contracted with the fruit growers of Fremont and vicinity for the delivery of large quantities of peaches to be delivered to it when they should be harvested, and agreed to pay said farmers a specified price therefor, said peaches to be delivered to the plaintiff at Fremont, some to be canned and packed by the plaintiff in its factory, and some to be shipped by the plaintiff to the wholesale trade at various points in Michigan in car load lots; that as the season advanced it became apparent to plaintiff that, owing to the large crop of peaches, there would be a special need of good transportation facilities to properly dispose of said peaches when they should be harvested and delivered to the plaintiff as aforesaid; that early in the month of August, 1911, it notified the defendant, in writing, of the conditions of the peach crop in Fremont and vicinity by a letter written by Frank Gerber, the manager and treasurer of the plaintiff, to one Frank Frisby, the local agent of the defendant, company at Fremont. That letter was as follows:
“August 2, 1911.
“Frank Frisby,
“Fremont, Michigan.
“Dear Sir:
“Referring to our conversation relative to the peach crop and the necessity for better service than we have ever had before, beg to say that the more we think of this matter, the more we are impressed that to move this crop and prevent very serious losses, it will be necessary that we have different and better train service than we have had in previous years. We are addressing this letter to you and shall ask the other fruit shippers to sign same and would request that you forward the letter with your comments to the proper official of your company.
“The peach crop this year will be far greater than any previous season, and, as we are driving in the country daily, and having this peach crop in mind, we observe large numbers of small orchards which are coming into bearing and which we have never known about before. The aggregate of the crop from these young orchards are of varieties that mature during about the middle of the regular peach season, so that there is going to be a time when the movement will be extremely heavy, although we believe there will be several cars to move every day from this point from the day the season opens until it is finished.
“It seems to us that this business is of sufficient importance to your company to warrant special services with a train starting from Muskegon in time so as to place refrigerators here about 7:00 a. m.. and returning leave White Cloud at 1:00 or 2:00 p. m., and get through here around the middle of the afternoon, or in time so that connections could be made with your trains out of Muskegon.
“Trusting that you will give this matter your immediate attention, and with best wishes, we remain,
“Yours respectfully.”
This letter was also signed by E. L. Boyd, Fred Marshall, and others purporting to be fruit shippers. The following reply was received signed by F. Hartenstein, superintendent of the defendant at Grand Rapids, Mich., viz.:
“August 26th, 1911.
“Mr. Frank Gerber, Mgr.,
“Fremont Canning Company,
“Fremont, Michigan.
“Dear Sir:
“Your letter to our agent at Fremont relative to the handling of fruit business at that station has been referred to me.
“I do not think that after it is well started there will be any reason for complaint by any of the fruit shippers between White Cloud and Muskegon. I am contemplating putting in a train service there that will fulfill the requirements.
“Yours truly,
“F. Hartenstein,
“Superintendent.
“Copy to Mr. W. H. Romoser, Mr. W. J. Quinlan, Mr. F. Frisby.”
The declaration further alleges that peaches are a highly perishable commodity, and can be safely shipped only in refrigerator cars, properly iced, and will spoil if not so shipped, and not placed under ice very shortly after they have been harvested; that this is especially true as the peach harvesting season begins during the latter part of August, when the weather is very warm, and peaches require quick handling and good refrigeration in order to keep them from spoiling, all of which facts were known to the defendant; that the plaintiff had been in the canning business for a number of years, and had gained a reputation among the trade for canning and packing only first-class fruit, and especially a first-class brand of peaches; that the defendant, in consideration that the plaintiff should deliver to it by way of its business as common carrier aforesaid the peaches which it should ship in car loads, undertook and promised that it would furnish to the plaintiff at the places designated by it, and at the times designated by it, all of the refrigerator cars needed by it to load the peaches into for certain compensation and reward. It is complained that, notwithstanding the duty of the defendant, it wrongfully, unlawfully, and negligently failed and refused to place at the plaintiff’s disposal for loading peaches the number of refrigerator cars ordered by it on the date for which they were ordered, and wrongfully and negligently failed to deliver some of the cars for two or three days after the same were ordered, placed some of the cars for loading in the nighttime, when they should have been placed in the morning preceding the night; that, by reason of the wrongful conduct and neglect of the defendant, great quantities of peaches were delivered to the plaintiff which it had no way of shipping; and, before the cars ordered by the plaintiff of the defendant had been placed by the defendant, the peaches had become so soft that they could not be shipped, and were unsalable in their condition, and would have been a total loss but for the acts of the plaintiff hereinafter stated.
Plaintiff avers that when the cars did not arrive it was unable, because of defendant’s wrongful acts, to put the peaches in the cars and on ice; that the peaches had begun to deteriorate, and would have been totally spoiled when the cars did arrive; that the plaintiff, therefore, took the peaches that were beginning to deteriorate in value because of defendant’s wrongful acts and used them in its factory, canning and packing them, and thereby saving said peaches from being a total loss, and did everything in its power to make defendant’s loss, occasioned by its own wrongful act, as light as possible.
The declaration further avers that, had it not been for the wrongful acts of defendant above mentioned, plaintiff would not have been obliged to have canned and packed anything but a first-class quality of peaches, but, owing to the fact of the wilful, wrongful, and negligent acts of the defendant aforesaid, it was obliged to and did can and pack the peaches which had deteriorated, and thereby the enviable reputation of the plaintiff as a canner and packer of a first-class brand of peaches was injured and greatly damaged; that, by endeavoring to make the defendant’s loss as light as possible, and using in its factory the peaches which had deteriorated, it became and was necessary to use many more bushels of peaches than it would have taken if it had been able to use a first-class quality of peaches to obtain the same number of cans; that plaintiff had to pay its contract price for the peaches, as they were first-class when they were delivered, and would not have canned any but first-class peaches if the defendant had delivered the cars as it should have done, whereby the plaintiff paid out large sums of money for good peaches; and, solely because of the wrongful acts of the defendant as aforesaid, said peaches deteriorated in value, and the plaintiff suffered heavy losses thereby to its damage.
As we understand the plaintiff’s position, it is that the damage which it seeks to recover under the first count of its declaration is the loss which it claims it sustained by reason of being obliged to can peaches that had become soft by reason of the neglect and delay of the defendant in furnishing refrigerator cars. The plaintiff offered testimony tending to show the amount of damage sustained by it on account of its having to can the soft peaches in order to prevent such peaches from being a total loss. This testimony was given, in the main, by Mr. Gerber, manager and treasurer of plaintiff, who testified that he had had many years’ experience in the business at that place, and the testimony tended to show that the loss occasioned by the failure of the defendant to furnish cars promptly made it necessary to can 3,337% bushels of peaches, or over 10 per cent, more than it would have taken had the peaches been in good condition for canning. Estimated at a loss of 9% per cent, on the amount, brought a total loss under this count, as claimed by the plaintiff, of $1,656.03, which was the amount of damage plaintiff claimed under the first count.
The record in this case is very voluminous, and it will be impracticable to quote any considerable portion of the testimony.
Upon the trial of the case it was the claim of the defendant that there could be no recovery in the case, because it appeared that Loveland & Hinyon Com pany should have been joined as a plaintiff in the case. That claim is based mainly upon what appeared in the examination of the witness Gerber. He testified on direct examination as follows:
“We made arrangement with Loveland & Hinyon Company for the shipping of peaches, a joint account arrangement. This joint account arrangement contemplated that Loveland & Hinyon Company would attend to the selling of the peaches. We would attend to the buying and loading, and then we were to divide whatever profit was made in the operation. This arrangement was made about August 18th. Up to that time the Fremont Canning Company had purchased or made contracts for approximately 15,000 bushels, and very few had been delivered. * * * I cannot say accurately without my records how many peaches were required by the canning company to be used in its factory during the season of 1911. Under our arrangement with Loveland & Hinyon Company the canning company was to take whatever peaches were required for our canning operation from the peaches purchased by the joint account. We were first to take those before any were shipped. As the peaches were brought in each day, they were placed! on our platform. We kept the factory in operation, taking such peaches as were required for the operation of the factory, and the remainder were supposed to be put in the refrigerator cars and shipped. The peaches were loaded into refrigerator cars the day they were brought in, if cars were available. After the 2nd of August our field man estimated that 300 cars of peaches would be shipped. I had numerous conferences with Mr. Frisby in regard to that, and we gave him our ideas from time to time as the season progressed as to the extent of the crop. * * * When the cars were placed and loaded, they were billed out. The instructions as to the billing were given by Loveland & Hinyon Company. * * *
“Q. Whether or not you could on all of these days have had good peaches to run through the canning factory, peaches in good condition?
“A. We could have used the sound peaches as they came in to the exclusion of those that we had on hand.
“Q. Why did you use the soft peaches?
“A. Why, to minimize the loss; to keep it down.
“Q. Whose loss?
“A. The loss of all concerned.
“Q. And who is all concerned?
“A. Why, both ourselves and Loveland & Hinyon Company, and we felt that the railroad company.”
On cross-examination he testified as follows:
“We entered into a joint account arrangement with Loveland & Hinyon Company about August 18th. That may not be the exact date, but it is around that time; at the beginning of the shipping season or a day or so earlier. Under our agreement with Love-land & Hinyon Company we were to buy the peaches through .our agents from the growers, and the peaches were to be shipped in the name of Loveland & Hinyon Company to their customers, and the profits and losses divided equally after certain agreed charges were made; the charges were a labor charge, and a ■charge for the cost of the baskets, and incidental charges. The profits were to be divided equally. We paid for these peaches, and then invoiced on Love-land & Hinyon Company for them, and then they sent us on the money, and the value of the whole account was to be adjusted at the end. In reality they provided the money except for a short interval; that is, I should still further qualify that they provided the money for that portion that we shipped except for a short interval. * * *
“Q. Are you interested in the suit of Loveland & Hinyon Co. v. Pere Marquette?
“A. Yes, sir.
“Q. What is your interest in the outcome of the suit?
“A. We are interested in whatever may be recovered on the shipments in which we are interested in that joint account arrangement as I told you.
“Q. Shipments of peaches out of Fremont?
“A. And Ludington and other points where the joint account may have — where peaches may have been shipped for this joint account. * * *
“Q. State whether Loveland & Hinyon were interested in the peaches which you bought in the open market.
“A. They were.
“Q. As the season progressed?
“A. Yes, sir.
“Q. State whether they were interested in the peaches that were bought under contract from these growers.
“A. They were.
“Q. Then they were interested in all the peaches that you bought during that season?
“A. All that we bought at Fremont, and a portion that we bought at Ludington and other points.”
On redirect examination he testified:
“Q. Calling your attention to your testimony as to paying for these peaches, and then invoicing to Love-land & Hinyon Company, how did you arrive at the price at which the canning peaches were to be paid for?
“A. We arrived at the price at which the canning peaches were to be paid for with Loveland & Hinyon by calculating at the time the contract was made the probable cost of the peaches suitable for filling the orders then on our books, and the price was based upon $1 a bushel for the best varieties and the best fruit. We then determined about what prices fruit would be expected to cost us for the different grades that we were to pack or that we might pack in the ordinary course, one year with another, and we fixed the price as 70 cents per bushel for the yellow peaches that we might uée in the factory and 50 cents for the white peaches. We paid these prices to the joint account throughout the season, and this is the price we paid for peaches which became soft, and which we ran through the factory; yes, sir. * * * My object in buying peaches on the open market during the season of 1911 was to carry out the spirit of our contract with Mr. Hinyon, and also to reduce the average cost of our fruit, and increase our chance of profit. * * * Some of the peaches shipped by the Fremont Canning Company were billed Fremont Canning Company, some Loveland & Hinyon Company. * * * 99
Rebuttal:
“Now, according to the contract with Loveland & Hinyon Company on our joint account arrangement, the canning factory was to use whatever peaches it required, and we were to pay for those peaches at the rate of 70 cents a bushel for yellow peaches and 50 cents a bushel for white, which was the average price that we presumed at the beginning of the season that this fruit would cost us under the conditions that we then expected.”
Recross-examination on rebuttal:
“Q. And those were all bought from what?
“A. The joint account.
“Q. At what price?
“A. 70 cents for yellows and 50 cents for whites.
“Q. And what is the average price?
“A. Chargeable to the joint account?
“Q. No; what is the average price of the peaches which you purchased from the joint account?
“A. Oh, 67.55 cents.
“Q. Is that the estimate upon which you made your basis of loss in this case?
“A. Yes, sir.”
As tending to show what parties made the contract, the following testimony of the witness Frank Frisby, local station agent of the defendant at Fremont during August and September, 1911, appears to be pertinent :
“The Fremont Canning Company placed orders for refrigerator cars with me part of the time during those months, but most of the time with my operator. * * * We had written forms at all times; but it is handier for the shipper, I suppose, to use the phone, or tell us at the time when they may happen in the office. I accepted these orders; yes, sir. I didn’t refuse an order because they were not written on blanks; no, sir. When orders came in they were placed on file, and between the hours of 5 and 6 were wired to our car distributor at Grand Rapids. * * * I have not the record of the time these refrigerator cars ordered by the Fremont Canning Company were placed; no, sir. * * * I know in a way about the orders given by the Fremont Canning Company for refrigerator cars during the peach season of 1911. There were times when that was not entirely filled. * * * I was over to the office and around the plant of the canning company during some of the time.”
The following order was received in evidence:
“September 7th, 1911.
“Frank Frisby, Agent Pere Marquette R. R.
“Fremont, Mich.
“Dear Sir:
“Please enter our order for eight (8) full ice refrigerator cars for delivery tomorrow.
“Yours respectfully,
“Fremont Canning Company,
“Frank Gerber, Manager;”
Upon the trial the plaintiff introduced in evidence certain carbon copies .of letters written by Mr. Gerber, its manager, to the railroad commission. The witness testified as follows:
“About that time I took the matter up with the railroad commission.
“Plaintiff’s Attorney: I show you that paper and ask you what it is.
“A. A copy of a letter that I wrote to the railroad commission, carbon copy.
“Q. Whether or not there was more than one carbon copy made of that?
“A. Yes.
“Q. And, if so, to whom was it sent?
“A. To Mr. Hartenstein, the superintendent of the P. M.
“Q. Whereabouts?
“A. Grand Rapids.
“Plaintiff’s Attorney: I offer this in evidence.
“Defendant’s Attorney: We object to the letter being introduced in evidence, because it is not the first evidence.
“The Court: It will be received.
“Defendant’s Attorney: An exception.
“The Court: Let me understand you, your objection is because this is not addressed to the P. M. Railroad Co.?
“Defendant’s Attorney: That is one objection.
“The Court: What is the other?
“Defendant’s Attorney: The first objection was that that is not the original, and the original not accounted for. The other objection is that it has absolutely nothing to do with this case; it is immaterial.
“The Court: I understand you are called upon to produce a carbon copy which was sent to your company?
“Defendant’s Attorney: We were called upon to produce a carbon copy, which would be no more admissible than that copy.
“The Court: That is a matter of argument. You were called upon to produce the copy, were you not?
“Defendant’s Attorney: The carbon copy of the
original.
“The Court: All right, it will be received.”
The first letter was as follows:
“August 28, 1911. “Michigan Railroad Commission,
“Lansing, Michigan.
“Gentlemen:
“File X — 2964.
“Replying to your favor of the 25th, beg to advise that up to this time we have not seen Mr. Hartenstien, nor have we received any communication from him, since writing you on Aug. 24th.
“While we have no official information, it is reported that a special fruit service was to be inaugurated this morning, and we are informed that this train left Muskegon early this morning, but was delayed by an engine failure near Holton, so that up to this hour, 1:40 p. m., this train has not arrived here. We also understand that the local freight train due here at 10:00 a. m. had not left Muskegon at a late hour this forenoon. This, from our point of view, does not look like any improvement in the service; but we appreciate that the troubles this morning may be due to accidents which could not be avoided.
“We are very much in hopes that this matter may work out all right; but the relief must come within the next day or two, or very serious losses will result. We will write you every day advising you regarding the service, until such time as the trains are running satisfactorily, and will send copies of our letters to Mr. Hartenstein. Of course, if conditions are no bet ter tomorrow than they are today, we will communicate with you by telephone or telegraph, and in the meantime we remain,
“Yours respectfully.
“Copy to Mr. Hartenstein, Supt.”
Other similar letters bearing date, respectively, August 29, 1911, September 5, 1911, and September 6, 1911, having been offered the following occurred:
“Defendant’s Attorney: The same objection, may it please your honor. I presume the objection I took before will cover these letters, will it?
“The Court: It may cover them, if you wish it to. They will be received.
“Defendant’s Attorney: The same objection. There is nothing appears here that a copy-of these letters has ever been brought to the attention of the railroad company.
“The Court: I understand the witness testified that they were.
“Defendant’s Attorney: He has testified that he sent them there. There is nothing here of record to prove that they have been brought directly to the attention of the railroad company.
“The Court: Submitted to the due course of mail, were they?
“Witness: Yes, sir.
“The Court: Directed to Mr. Hartenstein?
“Witness: Yes, sir.
“Defendant’s Attorney: Save an exception.”
Second Count.
Under the second count, as amended upon the trial, the plaintiff sought to recover damages which it claimed it had sustained by reason of the fact that the defendant unreasonably delayed in transit cars which had been delivered to it, containing baskets, and consigned to the plaintiff. The evidence tended to show that there were 12 such cars. The numbers and initials, the point of shipment, the bill of lading and date of shipment, the date of their arrival according to defendant’s wheel report, the. number of days in transit, the distance traveled, and the miles per day that the cars made were put in evidence before the jury.
It was the claim of the plaintiff that most of these cars were unreasonably delayed in transit, by reason of which it sustained a loss by having to buy other baskets and go to a large expense of express charges, etc., and the expense of cartage from other towns, etc., to get' other baskets on account of the delay of the cars in transit." In determining the time, and in showing the delay, the court permitted the bills of lading to be introduced in evidence as tending to show the dates when the shipments commenced, and the points of shipment; and the defendant’s wheel report, or record, was also put in evidence as to the dates the cars arrived in Fremont.
The reception in evidence of the bills of lading over the objection and exception of defendant’s counsel is urged as reversible error. It appeared that most or all of the bills of lading had been received by the plaintiff by mail from the consignors. The objection of the defendant was that the bills of lading were unproved, that their genuineness was not shown, and that they might have been filled out by anybody, and that it was just as necessary to prove their genuineness as it would be to prove the genuineness of an original letter before it was received in evidence, and that the same constituted a contract, if valid. It should be stated that accompanying the bills of lading were freight bills for the charges purporting to be issued at the Fremont station of defendant, and to be an account of the plaintiff with the Pere Marquette Railroad Company, in which' the billing station was given, and ■ the waybill number and date, which corresponded with the bills of lading. These freight bills appear to have been receipted by the defendant company, and there is some question whether the objection to these freight bills was because of lack of genuineness, or whether that objection was specifically called to the attention of the court, although it appears that defendant’s exception was announced as covering all the papers.
The testimony upon the question of damages on account of the failure of the plaintiff to get the baskets within a reasonable time tended to show that the plaintiff had suffered damage in the sum of $338.85, as testified to by the witness Gerber. It included the amount expended for express charges, certain charges for hauling the baskets from Grant, Holton, and other points where it was claimed the plaintiff had to go to obtain the baskets, also storing charges for having to provide for the storage of the baskets finally brought in by defendant, which came too late to be used that season, as well as an item of interest. .
Third Count.
The third count was based upon a claim of the plaintiff that the defendant wrongfully failed to place a car load of cans, which arrived on August 22d, at a place where they could be unloaded by the plaintiff; it being claimed that the car was placed upon a siding, at a distant point not accessible to the plaintiff, and that it was not placed upon the. plaintiff’s siding until 5 o’clock p. m. of August 24th. The evidence tended to show that the agent’s attention'was called to this, as well as the superintendent’s office at Grand Rapids, and that by reason of this delay the fruit which was intended to be placed in the cans was greatly depreciated; the plaintiff claiming a damage of 30 cents a bushel, or $5.1, as the total amount of damage under this count.
The trial resulted in a verdict and judgment for the plaintiff in the sum of $2,043.88, the exact amount claimed by the plaintiff in its evidence.
There was a motion at the close of the plaintiff’s case, made by the defendant, for a directed verdict in its favor, and also another like motion at the close of the testimony in the case, both of which were denied, and exceptions taken.
There was a motion by the defendant for a new trial, upon the grounds that the plaintiff wholly failed to make out a cause of action against the defendant, as alleged in its declaration, or any count thereof; because the evidence offered and received upon the trial of the cause wholly failed to support the allegations of plaintiff’s declaration, or any count thereof; because the entire evidence offered and received at the trial of said cause did not prove a cause of action against the defendant; because there was no proof in the case to sustain the verdict of the jury; that the verdict was not supported by the evidence offered and received in the trial of the cause; because the verdict of the jury was against the weight of the evidence offered, and was contrary to law, and against the just rights of defendant; because the amount of damages assessed by the jury was excessive, and not sustained by the proof; because the court erred in not granting defendant’s motion to direct a verdict; because the evidence wholly failed to show that the defendant was guilty of any negligence which was the direct or proximate cause of defendant’s damages; and because the court erred in submitting the case to the jury under the pleadings and proofs in the case.
This motion for a new trial was denied, and the reasons given for denying the same were duly excepted to by the defendant. Defendant has brought the case here upon writ of error, and there are 86 assignments of error in the record. These have, however, been classified, and will be considered under the different heads presented by the appellant.
It is the claim that, under the undisputed facts in the case, if there is a cause of action at all, it is in favor of the joint account arrangement between the Fremont Canning Company and Loveland & Hinyon Company.
We think that the evidence in the case clearly shows that a contract with the defendant for the furnishing of these refrigerator cars was made with the Fremont Canning Company, the plaintiff. The orders were given by the Fremont Canning Company, and were accepted by the defendant, and there was a contractual relation between the plaintiff and the defendant for the furnishing of the cars. We think the law of this question has been settled by this court in the following cases: Sisson v. Railroad Co., 14 Mich. 489 (90 Am. Dec. 252) ; McRoberts v. Lyon, 79 Mich. 25-31 (44 N. W. 160) ; Wolkins v. Knight, 134 Mich. 347-349 (96 N. W. 445).
It should be borne in mind that the peaches which were canned, and on which it is claimed the damages arose, were not joint account peaches, but belonged to the plaintiff; the plaintiff having the right to take peaches from the mass for canning. But we think the fact controlling that, the contract having been made with the plaintiff, the cars were not ordered by the joint account, but were ordered by the plaintiff. We do not think that there was any error committed by the trial court upon this point.
It is next contended by the appellant that, even if the Fremont Canning Company were a proper party plaintiff, there can be no recovery, because cars were furnished within a -reasonable time, as appears by the evidence.
By section 8 of Act No. 300 of the Public Acts of 1909 (3 How. Stat. [2d Ed.] § 6531), it is provided as follows:
“Every railroad shall, when within its power so to do, and upon reasonable notice, furnish suitable cars to any and all persons who may apply therefor, for the transportation of any and all kinds of freight in car load lots. Every common carrier shall have sufficient cars and motive power to meet all requirements for the transportation of passengers and property which may reasonably be anticipated. In case of insufficiency of cars at any time to meet all requirements, such cars as are available shall be distributed among the several applicants therefor, without discrimination between shippers, or between points of shipment, whether ' competitive or noncompetitive: Provided, preference may be given to shipments of live stock and perishable property.”
A thorough examination of the testimony in the case and the authorities cited by counsel satisfy us that a question of fact was here involved, and that the same was properly submitted to the jury by the trial court.
In its charge to the jury the court, after quoting the statute above referred to, said:
“It is not disputed but what the canning company in this case placed their orders with the Pere Marquette Railroad Company from time to time for the cars, that is, for a certain number of cars; there is no material dispute as to the number of cars they ordered upon a given date. The dispute is whether those cars were furnished, and, if they were not furnished, whether there was a reasonable excuse for not so furnishing those cars. * * * ”
After again alluding to the statute, the court said:
“This we must concede was perishable property. Now, gentlemen, you must take into consideration the duty of the railroad company under this statute. Their duties are not confined to the village or city of Fremont, nor to the furnishing of cars to the Fremont Canning Company. Their duty is to all shippers of that class, as well as every other class. They cannot discriminate. They cannot give preference. They must treat all alike. Now, in your deliberation of the testimony in this case, you must bear that carefully in mind that the Pere Marquette Railroad Company is a common carrier undertaking under the laws of this State to serve the whole people of this locality, the whole people of the locality which is covered by their system, not by one division of that system, but by the whole system; bear that carefully in mind, that they have a duty to perform to all who are in the business of shipping.”
Referring to the first count of the declaration, the court charged the jury as follows:
“I charge you that it was the plaintiff’s duty when the cars did not arrive on the days for which they were ordered, if you find this to be the fact, to do everything in its power to take care of the peaches which could not be shipped because of the failure to furnish cars, and if you find from the evidence that the plaintiff, in good faith, and for the purpose of taking care of the peaches, and doing all it could to prevent loss, used the peaches in its canning factory, and that said peaches had deteriorated in value because of the failure to furnish refrigerator cars, and if you find from the evidence that the plaintiff did sustain damage in using peaches in their deteriorated condition, then you must determine from the evidence what that damage was, and return a verdict for the plaintiff for that amount.
“I charge you that the measure of the plaintiff’s damage in this case, if you find that the plaintiff is entitled to recover, is the loss it sustained by reason of using soft peaches in the factory, instead of using' peaches in good condition, if you find that the peaches became soft because of the failure of the defendant to furnish refrigerator cars. Mark that, gentlemen, that is important.
“I charge you that it is no defense to this action that the defendant did not have any refrigerator cars of its own, and obtained its refrigerator cars from the Armour Car Lines. If the defendant accepted orders for refrigerator cars to be placed at Fremont in the season of 1911, it was its duty to furnish them, regardless of the fact that it did not own them itself; and 'therefore, it is no defense that it could not get these cars from other people when it wanted them, or that it didn’t have them itself. * * *
“I charge you that it is no defense if these cars had to be iced by any company or persons; it would be no defense to this company if the persons who were to furnish the ice for the cars failed or refused or were unable to furnish the ice. * * *
“I charge you that the fact, if you find it to be a fact, that the defendant placed more cars at Fremont during the entire season than the plaintiff had ordered for the entire season, this fact will not excuse the defendant, if it did not furnish the cars on the dates for which they were ordered, if you find that the defendant had reasonable notice to furnish the cars, and it was within its power so to do.”
At defendant’s request, the court charged the jury as follows:
“No. 7. I charge you that the defendant cannot be held liable for inability to furnish cars, when furnishing the same would interfere with the general business of the company and the rights of the shippers.”
“No. 12. I charge you that the defendant cannot be held liable in this case, if you find that it was unable to furnish cars ordered by the plaintiff, because of a sudden and unusual press of business, or if prevented from so doing by wreck or derailment, or by storm, which destroyed the telegraph service, or by a strike or refusal of the men engaged in icing cars to ice the same in time so that the cars could be transported and delivered by the defendant at the time requested by the plaintiff. I qualify that, gentlemen, Ño. 12, by saying that that does not go to the original instance, but it is something that must be overcome by them, and you are allowed to consider that proposition showing the delay of such number of cars as might have been interfered with on that account, no more and no less.”
“No. 22. I charge you that if you believe from the evidence that the defendant has met and overcome the presumption of negligence established by the plaintiff and has excused its failure to promptly furnish refrigerator cars, your verdict must be for the defendant. That would apply to the first count.”
We think that a question of fact was here involved, and it was properly submitted to the jury, whether the cars were furnished within a reasonable time.
The next point urged by appellant is that the plaintiff’s damages are too remote and speculative.
We are unable to agree with counsel in this position. The evidence offered by the plaintiff tended to show that, instead of visiting upon the defendant the full amount of damages which might have been claimed by the plaintiff, to wit, the entire loss of the peaches because of the failure of the defendant to furnish refrigerator cars, the plaintiff sought to minimize the damages, and make them as small as might be, and in so doing used the defective peaches for canning purposes. It is the claim of the plaintiff, however, that in so doing a larger quantity of peaches were necessarily used because of their damaged condition, and that the difference in amount, as testified to by the witness Gerber, is claimed for damages in the case. It further appeared that the testimony of the witness Gerber was based upon his prior experience there as manager of the plaintiff company, and is shown by the following excerpt from his testimony:
“Q. I want you to explain to the jury how you arrived at the amount of damage you sustained on account of these peaches which you canned were overripe.
“A. Our only method of arriving at that was by a comparison with the results of previous years when conditions were about normal, and we have to know about the amount of fruit required for a case which we figure the unit of, each different class of product.
“Q. Did you prepare an estimate of the pack of 1910?
“A. Yes, sir.
“Q: Did you prepare a record of the pack in 1911?
“A. Yes, sir.”
To this class of testimony the defendant objected, on the ground that it was incompetent, irrelevant, and immaterial, and for the further reason that it was too remote; that what comparisons may have been made in other years had nothing to do with the case.
The court said:
“I understand that that is confined — you are now speaking of 1910, and all the fruit, do I understand, in 1910, was in normal condition for packing when packed?
“Plaintiff’s Attorney: That is our theory, your
honor.
“Witness: A. Yes; I figured a normal season.
“The Court: And it is the season immediately preceding the one that they claim there was a loss süffered by reason of not being a normal condition. I will receive it.”
The further objection was then made that it was too remote and speculative. The objection was overruled, and exception taken. We do not think that the defendant is in a position to complain of the rule or measure of damages adopted in the case.
The next objection urged by appellant is that the court erred in the admission and exclusion of testimony, and in the charge. Complaint is specifically made here that the plaintiff offered in evidence, and the court received, over the objection of defendant’s counsel, certain letters, above referred to, written to the Michigan railroad commission. It is urged that the letters received were carbon copies of letters written by the plaintiff to the railroad commission. The objection to their introduction was: First, that they were not the best evidence because not the originals, and the originals not accounted for; second, that they were irrelevant, and had nothing to do with the case, and were immaterial. A carbon of an original may more appropriately be called a duplicate than a copy.
We have looked in vain for any objection that these letters were incompetent, or were self-serving statements, and therefore inadmissible in evidence. Certainly, from an examination of this record, it cannot be said that the attention of the court was challenged to this point. Manifestly, the letters were material, and had something to do with the case, and it seems to us that it was the duty of defendant’s counsel to have directed the attention of the court to their incompetency, and to the fact that they may have been self-serving statements. They covered matters that were fully testified to by the witness Gerber, and this witness was subjected to a thorough cross-examination. We find no objection or exception sufficient to warrant us in saying that the reception of the letters in evidence was reversible error.
Second Count.
1. The first objection urged is upon the admission of testimony under the second count. It is the claim, under this objection, that the plaintiff was permitted to and did introduce in evidence a number of bills of lading to cover the cars in question, without first showing that they were genuine bills of lading, or contracts made by the defendant.
It is our opinion that these bills of lading when first offered, their genuineness not having been proved, were incompetent as tending to prove the dates on which the cars and baskets were delivered to the defendant for transportation. These bills, however, were accompanied by freight bills, one of which was as follows:
“Freight bill. Date of issue, August 14, 1911. Consignee, Fremont Canning Company. Freight Bill No. 650. Issuing station, Fremont. To Pere Marquette Railroad Co., Dr., for charges on articles transported. Billing station and route, New Richmond. Waybill number and date, 12, 8/11. Car initial and number, C. B. & Q. 104861. Number of packages, articles, and marks. Baskets. Weight, 20,000. Rate, 8%. Freight charges, $17.00. Received payment for the company 8/15, 1911, F. Frisby, Rx Agent. Total, $17. Stamped on it Fremont Canning Company, Paid August 15th, 1911.”
This accompanied the following bill of lading:
“Pere Marquette Railroad Company. Straight Bill of Lading — Original—Not Negotiable. Received subject to the classifications, at New Richmond, Michigan, August 11th, 1911, from E. E. Weed & Company. Consigned to Fremont Canning Company. Destination, Fremont. Car initial, C. B. & Q. No. 104861. Car baskets; weight, subject to correction, 20,000. Class or rate, 8%. E. E. Weed & Company, Shippers. W. E. Johnson, Agent.”
Here we have accompanying the bill of lading the freight bill purporting, to be receipted in full by the defendant company. We have been unable to find by any specific objection that the genuineness of this receipted freight bill was challenged by defendant’s counsel, or that the attention of the court was called to the fact that its genuineness had not been proven. It cannot be said, therefore, that that objection was made. We think that any error which there might have been in ruling that the bills of lading were receivable in evidence was cured by the fact that they were finally accompanied by the receipted freight bills virtually covering the same ground, and containing the same statements. We are of opinion that there was no reversible error in the admission in evidence of the bills of lading and freight bills accompanying them.
2. It is next urged that the cars were moved with reasonable dispatch. This, we think, became a question of fact, and was properly submitted to the jury in the charge of the court. Upon that subject the court charged the jury as follows:
“As to the plaintiff’s claim under the second count, I charge you that it is for you to determine from all the evidence in the case whether there was any unreasonable delay in the movement of the cars containing baskets from the various stations from which they were shipped to the plaintiff at Fremont, Mich. And if you find that there was a delay in the movement of these cars, or any of them, then you must determine from the evidence in the case whether or not the plaintiff was damaged by such-delay; and, if you find that the plaintiff was so damaged, then you must determine the amount of its damage from the evidence in the case.
“I charge you that, if there was an unreasonable delay in the movement of the cars of baskets, then the plaintiff was justified in obtaining baskets from any source from which it could obtain them, using due diligence, its best efforts, and good faith to obtain the same at the least expense possible, and then you will determine from the evidence whether or not it suffered any damage in getting such other baskets, and in keeping said baskets on hand after the season was over, and this amount you will find and return a verdict for the plaintiff. That is qualified, gentlemen, to the expense of recovering other baskets.
“I charge you that the plaintiff is not seeking to recover in this case for any difference between the price that it had to pay for baskets from other parties and the price which Weed & Co. would have furnished baskets to it for. They are not undertaking to recover for that at all. The plaintiff claims that it has been injured and damaged because the defendant unreasonably delayed the movement of the basket cars, and that it had to go to extra expense to get baskets for that reason.
“If you find from all the evidence that the plaintiff is correct in its claim, then you will determine the amount of the damage which it has sustained, and include such amount in your verdict.”
3. As we understand counsel, the claim is here made that Loveland & Hinyon Company were interested in this basket transaction, and therefore the plaintiff cannot recover. We have already covered that point in discussing the first count.
Third Count.
We are of opinion that the court did not err in submitting the case under the evidence relating to the third count of the declaration.
An examination of the other assignments of error leads us to the conclusion that there is no reversible error in the record. We do not think that it can be said that there was no evidence to support the verdict and judgment, nor that the amount of recovery was excessive. It is true that the recovery was for the identical sum claimed by the plaintiff in the case; but there was evidence to support it. This was a question for the jury. We cannot say that the verdict was against the weight of the evidence.
The judgment of the circuit court is therefore affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred. Moore, J., did not sit. | [
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Kuhn, J.
The plaintiff was the night watchman and night fireman in the furniture factory of the defendant in the city of Grand Rapids. On the fourth floor of this factory, there were three rooms, known as the “varnishing room,” the “filling room,” and the “staining room.” The floor of the varnishing room was about 18 inches above that of the filling room, and a slideway of hard maple, four or five feet wide and seven feet long, ran from the level of the varnishing room to the filling room, and was used in sliding furniture from one room to the other, and the employees passed over it in going between the rooms. There were six similar slideways in the,factory, and the floors of the three rooms and the slide-ways between them were kept oiled in order to facilitate sliding the furniture in the process of manufacture and to keep the dust down while the furniture was being finished. There was a fire wall between the varnishing and filling rooms, and at the doorway, which was at the higher end of the slideway, there was a metal fire door, which, sliding on an inclined track, closed of its own weight. The plaintiff, in the performance of his duties, came down this slide six times every night, and, on Wednesday evening, July 27, 1910, while making his second round at 7:10 p. m., after opening the door from the varnishing room, he took one step on the slide, when his feet slipped from under him and he fell, sustaining injuries, to recover damages for which he brought this action.
The negligence relied upon is that the defendant placed a quantity of grease and oil in and upon this passageway without giving the plaintiff any warning that it had been done, it being claimed that it was the custom of the defendant, in the ordinary management of its business, to oil or grease this slideway every Saturday night, of which custom plaintiff was aware, but that it had never been oiled before this occasion on any night except Saturday night.
At the close of plaintiff’s proofs, the defendant moved to direct a verdict of no cause of action, upon three grounds: First, that no negligence on the part of the defendant had been shown; second, that the undisputed evidence showed the plaintiff to have been guilty of contributory negligence; and, third, that the undisputed evidence showed the plaintiff had assumed the risk. The learned trial judge granted the motion because of the last two reasons assigned in the motion. We are of the opinion that he might very prop erly have directed the verdict for the first reason assigned, viz., that no negligence on the part of the defendant was proven. The plaintiff’s own version as to how the oil eame to be there was as follows:
“On the night of the fall the other slides were not oiled, and on this one, the oil was thrown on or spilled on and run down in streaks; it was just as though you took a wet swab and threw it on and let it run down, then there was a streak. It wasn’t put on the way it was put on on Saturday. I don’t know who put it on. It looked to me as though it had been put on with a swabber, and it looked about the same as it was on Saturday night, except some places through the center there was dry places.”
There was no evidence that the defendant knew anything about the oil being there, nor that it had been there for a sufficient length of time to charge the defendant' with notice. There is no evidence to show how or by whom the slide was oiled, and no evidence that the defendant placed or caused the oil to be placed on the slide. How it came there is a matter of conjecture. According to plaintiff’s testimony, it was not spread over as usual. It was put on at an unusual time and in an unusual manner, and if there is any inference to be drawn from this testimony, it would be that the oil was placed there accidentally. There is no proof in this record from which negligence on the part of the defendant can reasonably be inferred, and hence plaintiff’s case must fail. Toomey v. Steel Works, 89 Mich. 249 (50 N. W. 850), and cases cited. Because of this conclusion, it is unnecessary to pass on the other questions raised by the motion to direct a verdict.
The judgment is affirmed.
McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Steere, J.
This suit was instituted in the circuit court of Wayne county by complainant to obtain from defendant a decree of divorce on the ground of extreme cruelty and failure to support.
The charges in complainant’s bill range through the whole period of the married life of the-parties, beginning with their wedding trip, and include failure to suitably provide maintenance, irritability, and abusive language, gambling habits, use of drugs, and cruelty of a private nature. Defendant’s answer denied all complainant’s charges positively and in detail, otherwise casting no reflections on her nor making any counter charges, and opposed a severance of their marriage ties on the ground that the allegations against him were untrue in fact, and their married life had been a source of happiness to both, congenial and pleasant, excépt when occasionally disturbed by outside influences. The testimony indicates that he attributed his wife’s application for a divorce to the influence of her parents, rather than to her own inclination.
The parties were married in 1901, in Detroit, Mich., where she resided with her parents, who were apparently in good circumstances, living in their own home, which her father, who was engaged in the lumber business, testifies would rent for $75 per month. Defendant was a physician living and practicing at Grosse Pointe where his parents resided. When married he was 30 and she 21 years of age. She states he represented that he then had a practice yielding from $2,500 to $5,000 per year. He states that it was worth $5,000 per year when they were married, and he located in Detroit at the solicitation of his wife and her parents. This she denies, claiming he was anxious to establish himself in Detroit. They were acquainted for nearly a year and a half before their marriage and he had been entertained at her parents’ home. Her affiliations were Protestant, while he was of the Catholic faith. It is not shown that this was directly the cause of any friction between them, but she testified that her mother was opposed to Catholic priests and wanted her to be married by a Protestant minister, to which defendant consented. In the year 1902 one child, a daughter, now living, was born as the issue of this marriage, for whom both manifest strong affection. The parties went on a wedding trip immediately after their marriage and visited the Pan-American Exposition at Buffalo. She claims, and he denies, that their trip was to have been extended to New York, but they were obliged to return owing to his being short of funds. The conflict in their testimony begins at this early stage and. continues on through the history of their married life. On their return they went to live with her parents, which she states had been previously agreed upon. Most of their married life together was with her parents. She testifies:
“The arrangement was that father should supply the home, which was a new, solid stone ten-room house with hardwood floors and other conveniences and the furnishing of it, and the doctor was to give mother her board and father, who was a traveling man, his board at such times as he was home.”
The extent to which defendant kept his part of the agreement is a matter in dispute.
Defendant opened an office and engaged in the practice of his profession. The testimony is clear to the effect that he acquired a good practice and they apparently were prosperous and living happily. They remained at her parents’ home until February, 1906, when defendant left for a time; she remaining. In September, 1906, they went to keeping house in apartments on Jefferson avenue, where they resided for two years and four months, near the end of which time her parents boarded with them for quite a period while their house was being repaired, when they all returned together and occupied her parents’ house as before. Defendant claims to have objected to giving up their own home, where they had lived so pleasantly and happily by themselves, but that she and her parents insisted, and he yielded. She testified that he complained of the expense of maintaining a separate home and was anxious to return. They there after resided with her parents until shortly before this bill was filed, when she told him that she proposed to get a divorce, and dismissed him. Being asked when it dawned on her that she ought to have a divorce, she replied:
“Well, I can answer you the same as I did Dr. Cadieux. I answered him by saying that it had been a gradual losing of respect covering a period of ten years, and made harder and harder with the passing of each year by his disagreeableness and his low tastes —that he knew best how.”
Defendant testified of his dismissal that he knew nothing about any trouble until the morning they separated, when she came to his room and greeted him; on his asking her to kiss him, she refused, saying she would tell him after breakfast; that they breakfasted as usual, and, it being Monday morning, at which time he usually gave her money to run the house, he offered her his share, which was $15, and she said she would receive no more money from him, that her father and mother were going to live in California and she had told them everything about him, that she would not live with a gambler, and they had promised to take her back home and she was going; that his efforts to dissuade her were of no avail, and she soon began this suit.
The testimony of significance in support of complainant’s contention, aside from her own, is that of her parents, mostly her mother’s, tending to show failure to support his wife and contribute to the maintenance of the establishment to the extent he should and had agreed to, and irritating and unseemly conduct around the home. Complainant’s mother, who testified at length of many details in their domestic life, condenses her objections to her son-in-law into “two strong points,” being: “No funds and irritability — two pretty hard things to live with.” The father, who was from home most of the time, testified in harmony with his wife to the extent of his observations and experience, and says the doctor “was all self,” admits borrowing $200 of him, which was paid back, and says:
“I liked Dr. Cadieux pretty well. I always tried to get along with him. * * * He used to help_ me fix the furnace and clean off the sidewalk and things like that. * * * The doctor always got along with Mrs. King (complainant’s mother), so far as I know.”
The only other members of the household with personal knowledge of their daily, domestic life were Harriet Traut, who was a domestic in the family for a year after complainant and defendant went there, and Jennie S. Keeler, a friend who had known Mr. and Mrs. King 35 years and lived in the family, while complainant and defendant were there, for about six years. Harriet Traut stated she thought the doctor and his wife were—
“The best of friends. Mrs. King treated the doctor very nagging; she was very disagreeable in that way. She would find fault with different things with the doctor, trying to pick at him. She was very disagreeable to get along with anyways.”
Mrs. Keeler testifies:
“Well, it is a mystery to me. I was in that home the first five years of the doctor’s married life. I was in Mrs. King’s home the first five years after the marriage of the doctor and Miss King, and it seems to me that I was either blind or deaf or something. I don’t know what it is. And so much has been told here that I know nothing about and it is just as new to me as it is to a stranger; I cannot understand it. * * * I don’t understand all these things. There are some things I may have known, but they have gone from me. * * * I have always thought that if the doctor and his wife were left alone they could get along well together.”
Witness also testified to complainant visiting her and their talking the matter over, in which conversation witness tried to prevail upon complainant to give up the idea of a divorce for the sake of their child, and said, “If you two don’t get along well, why don’t you separate and live apart for a while, perhaps it will be all right in the end?” To which complainant replied, “No, I want a divorce from that man,” she says, “I might some time want to get married again.”
Numerous witnesses of respectability, in responsible positions in life, and their wives, who were or had been friends, neighbors, and associates of both parties to this suit, none of whom speak unkindly of complainant, testify to the good character, habits, and professional standing of defendant and the conduct of these parties towards each other in their daily life and at social gatherings, when mingling with their friends and acquaintances. They speak of them as an “ideal couple,” apparently fond of each other and happy together. They moved in good society and were frequently out together at social functions and public entertainments. Between November, 1910, and February, 1911, the month this bill was filed, they attended seven dances, or balls, which were leading, high-class, public, social entertainments, going in taxicabs to six of them, and visited otherwise socially amongst their friends as usual, attending a party together at the home of mutual friends about two weeks before this bill was filed.
While it may be conceded that complainant would conceal so far as possible her private family troubles, it is somewhat significant, as bearing on the charge of nonsupport at least, that there was no suspicion amongst their intimate friends of any estrangement. It is undisputed her husband did provide her with money and credit; the, only dispute is as to the amount. She testifies, “I had credit at Hudson’s, at Newcomb’s, at Elliott-Taylor-Wolfenden’s, at Traver-Bird’s,” lead ing merchants of Detroit. Her testimony that defendant was a cocaine fiend is, in our opinion, unsupported and clearly refuted not only by his positive denial, but by all extraneous evidence given by professional men of high standing, his patients, and others. This, with her tendency to magnify comparatively small incidents of their married life, which, if of any importance, had been condoned years before, tends to weaken her uncorroborated testimony as to other more serious charges. As to the charge she makes against defendant of unnatural, secret misconduct, we do not differ with the following conclusion of the learned trial judge:
“If with reference to the other matter of cruelty which is perhaps the highest charge that has been made here, if it were true, I think that Mrs. Cadieux has condoned that by not leaving the doctor at the time; but, as I said before, I am not willing to believe in the truth of that statement.”
There is some foundation in the charge that defendant was a gambler. While culpable and an evidence of moral instability, we are not prepared to hold that, as proven, it amounted to a cause of divorce. He was in no sense a professional gambler, nor even a second-class amateur, but is shown to have at times manifested a weakness for attending horse races and investing disastrously in his judgment as to the comparative speed of the competing horses. If his defense depended upon his denials and explanations in that connection, there would be little hope for him. He is also shown to have sought to increase his financial resources by investment in stocks through the brokerage firm of Cameron Currie & Co., which failed disastrously, and he stated at the time that he had lost everything. While this venture is to be deprecated as evidence of a gambling inclination and poor judgment, the courts have not yet gone so far as to hold such conduct ground for divorce. While at times shown to have been in debt and with impaired credit, defendant is shown at other times to have deposits in bank as high as $1,600 and to have spent money liberally for their pleasure when traveling with complainant. Though culpable at times in foolishly squandering money which should have been expended for the comfort and pleasure of his family, the evidence taken as a whole falls short of establishing that defendant, being of sufficient ability to provide a suitable maintenance for his wife, grossly or wantonly and cruelly refused or neglected so to do.
No useful purpose can be served in further discussing the extremely conflicting testimony of this lengthy record. We have carefully read it, and, while taken as a whole it leaves the impression that defendant has been a disappointment to complainant and her parents, and has failed to do for his wife, and himself, all that other men under like circumstances would have done, we do not find, under the well-settled rules of preponderance and presumption of evidence, that the grounds of divorce charged in the bill of complaint are satisfactorily established. This conclusion was reached by the learned chancellor who heard the evidence develop and had the benefit of observing the witnesses while they testified, and we find no good reason to disturb the result reached by him.
The decree is affirmed but, under the circumstances, we conclude that it should be without costs to either party.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred. | [
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McAlvay, C. J.
Plaintiff recovered judgment against defendant for personal injuries claimed to have been caused by defendant in negligently running over him in the highway with an automobile which defendant was operating. Defendant brings the case to this court for review and asks for reversal upon errors assigned.
The accident occurred in the city of Sturgis, Mich., at the intersection of Chicago and Nottawa streets. It is the claim of the plaintiff that, at the time of the accident, he was riding a bicycle westward on Chicago street, which runs east and west through Sturgis, on the right-hand side of said street about 10 feet from the curb, and was some distance east of the intersection of these streets when he noticed automobiles, with tops up, approaching from the west on the same side of said street in a direct line with him. He saw but two automobiles coming quite near to each other, one directly in line with the other. There was in fact a third automobile in the same line which he says he did not see. Plaintiff was riding at a speed of not more than six miles an hour. As the automobiles approached the intersection of these streets, the first turned north into Nottawa street and was immediately followed by the other. Both of these machines turned into said street at the right of its center line. Plaintiff had at that time gone west nearly to the middle of Nottawa street and, proceeding to cross immediately behind the second car, was struck by the third automobile, which was a 5-passenger 40-horse power touring car, weighing 2,500 pounds; This car struck him when he was nearly across Nottawa street. He was picked up about 8 feet from the sidewalk line of that street and about 15 or 20 feet north of the curb line of Chicago street. He says he did not discover the third car until the second car had gotten away from in front of it, and then he immediately turned his wheel to the north to avoid collision. When the collision occurred he was about in a line with the crosswalk on the right-hand side of Chicago street.' He was struck by the fender over the left-hand front wheel of defendant’s machine.
The negligence charged by plaintiff is that, in violation of Act No. 318, Pub. Acts 1909, defendant negligently operated his machine in the city of Sturgis at a higher rate of speed than 10 miles per hour, and also failed to keep his automobile to the right side of Chicago street, and at the intersection of these streets failed to keep to the right of the center of intersection of these streets. There was a dispute relative to both of these propositions. The facts were submitted to the jury, which found in favor of plaintiff.
The errors assigned and relied upon are that the declaration did not state a cause of action, and the court erred in receiving any evidence under it, also in overruling other objections to evidence, the refusal of the court to direct a verdict for the defendant on the ground of contributory negligence of plaintiff, in refusing to give certain requests of defendant, and upon exceptions to certain portions of the charge of the court.
An examination of the declaration shows that the claim of defendant that there is no negligence charged, and that there is no allegation that plaintiff was exercising due care and was without negligence on his part, is not sustained. The case was tried upon the second count of plaintiff's declaration, and it contains sufficient allegations of a violation of the statute in driving on the left-hand side of the road at an excessive rate of speed into Nottawa street on the left of the center and negligently turning, contrary to statute, and also as to due care exercised on plaintiffs part. No error was committed in refusing to direct a verdict for defendant.
Several errors are assigned upon the admission of evidence permitted by the court. These have been examined, and we do not find that any error was committed by the court in receiving such testimony.
Errors are assigned upon the refusal to give five requests of defendant. These requests asked for a directed verdict in favor of defendant and related to the contributory negligence of plaintiff. The court was not in error in refusing to give them as they were not adapted to the evidence in the case. The court correctly charged the jury upon the question of contributory negligence of plaintiff and upon the law applicable to the case. Defendant can have no cause to complain that this charge was unfavorable to him.
The theory of the plaintiff was that defendant was driving his automobile unlawfully at a high rate of speed behind the other automobiles on the wrong side of the highway and, turning into Nottawa street as close as possible to the left-hand side of said street, could not be seen by plaintiff until after the other machines had passed into Nottawa street, when it was too late to avoid a collision.
Upon the disputed questions of fact, the jury found against the defendant. Such finding was supported by the great weight of the evidence in the case, and the amount of the verdict is not claimed to be excessive. In his charge the court refused to allow a re covery for the bicycle, which was not plaintiff’s property, and limited the plaintiff’s damages to the value of his loss of time, expenses incurred for medical attendance and medicines, caring for and treating his injury, and compensation for his pain and suffering, but excluded recovery for care given to him by his wife.
We find no reversible error in the case. The judgment of the circuit court is affirmed.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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Bird, J.
This litigation was begun in justice’s court. The defendant was there given a judgment on the 29th day of July, 1910. On August 2d following the plaintiff appealed the case to the circuit court. At the outset of the trial in the circuit court defendant’s counsel moved to dismiss the appeal for the reasons:
(1) That no affidavit for appeal was on file in the circuit court.
(2) That the surety on the appeal bond had failed to justify his pecuniary responsibility in writing and under oath.
These objections being called to the attention of the trial court, recourse was had to the files of the case, and after an examination of them the reasons assigned appeared to be well taken; whereupon plaintiff’s attorney asked for and received permission to remedy the omissions on condition that he should make a showing on oath that an affidavit was filed with the justice. The court then ordered the trial to proceed, suggesting that the amendment of the record might be perfected later. During the trial the motion to dismiss was renewed, but was overruled, and the corrections were not actually made until after verdict. Following the verdict, and on the same day, a showing was made, a new affidavit filed, and a justification by the surety was indorsed on the bond.
It is now argued by defendant that the action of the trial court in permitting the trial to proceed to verdict without an affidavit for appeal on file was error, for the reason that, without such affidavit, the court was without jurisdiction.
In the return of the justice the following recital is made:
“And I do further return that the affidavit and bond herewith returned were delivered to me on the 2d day of August, 1910, instant,” etc.
From this return and the affidavit of plaintiff that he filed an affidavit on the 2d of August, it sufficiently appears that an affidavit for appeal was filed. If it were mislaid or lost, it was within the power of the trial court to permit another one to be filed. The amendment appears to have been permitted under the authority of section 924, 1 Comp. Laws (5 How. Stat. [2d Ed.] §12370), which provides that no appeal shall be dismissed upon the ground of a defective affidavit, if appellant shall file one which shall meet the requirements of the statute.
This section is not applicable. The objection made was, not that the affidavit was defective, but that there was no affidavit. The situation disclosed by the record is that the affidavit was made and filed with the justice and returned by him to the circuit court and subsequently became mislaid or lost. The statute with reference to the restoration of lost records would be applicable thereto (section 10276 et seq. [5 How. Stat. (2d Ed.) § 12977]), and we think the showing made by plaintiff was sufficient under this statute to justify the order made by the court.
In permitting the appeal bond to be amended so as to comply with the statute, the court was well within his authority. 1 Comp. Laws, § 922 (5 How. Stat. [2d Ed.] § 12368). This statute was passed to meet just such a situation. The defendant raises no questions other than those affecting the appeal.
As we find no error in those assignments, the judgment will be affirmed.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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] |
Bird, J.
The respondent, who was the proprietor of the Western Hotel in the city of Grand Rapids, was informed against and convicted of the offense of failing to keep his saloon closed on a certain Sunday in August, 1913. To establish the guilt of the respondent, the people showed that respondent’s son was in the saloon on the day in question. This was admitted by the respondent, but he insisted that the act of the son in entering the saloon was without either his knowledge or consent, and that in so doing the son was a trespasser, for whose act he would not be responsible.
It appears that the son was 24 years of age, that he was married, and that he neither lived nor was employed at the hotel. He had previously, while living at home, worked in the saloon, and at one time, while he was at school, the license was taken out in his name, but for two years previous to this happening he had ■had no connection with it, although it appears that he had retained a key to the barroom. He testified that on the Sunday in question he came from his home to the hotel to get his motorcycle; that in making repairs on it he needed a wrench, and, being aware that his father kept one among his tools behind the bar, he unlocked the door and went into the saloon and got it.
It is urged on behalf of respondent that under these circumstances the son was a trespasser, and, if he were, respondent was wrongfully convicted. The statute makes it incumbent upon one conducting a saloon where intoxicating liquors are sold to keep it closed on Sunday (2 Comp. Laws, § 5395, 2 How. Stat. [2d Ed.] §5074). In construing this section, this court has held that he must do so at his peril. People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270) ; People v. Welch, 71 Mich. 548 (39 N. W. 747, 1 L. R. A. 385) ; People v. Lundell, 136 Mich. 303 (99 N. W. 12); People v. Kriesel, 136 Mich. 80 (98 N. W. 850, 4 Am. & Eng. Ann. Cas. 5); People v. Possing, 137 Mich. 303 (100 N. W. 396). Had it been established that the son was a trespasser on the Sunday in question, we should feel bound to give respondent’s argument serious consideration, but we do not think it so appeared. Had the law been violated in like manner two years previous, while the son was living at home, there would have been no room for such a contention. It is quite evident that the relations which existed between him and his parents had changed but very little since his going away. He kept some of his property at the hotel and retained a key to the saloon. His entrée to the hotel appeared to be as free and unobstructed as though it were still his home. The freedom which he exercised in going into the saloon was based upon his relations with his parents. We do not think it can be said, under these circumstances, that the son was a trespasser, and especially in view of the fact that the respondent himself was then at the hotel.
Both sides asked for an instructed verdict. The trial court granted the prosecutor’s request, and in doing so made use of the following language:
“Therefore, I will instruct you, there being no questions of fact in the matter to be decided, the court instructs you to find the respondent guilty. You will retire to your jury room and select a foreman and return with a verdict of guilty.”
“In this case, the main question is, and the only question is, whether Mr. Damskey, the young man, by going in there made the respondent liable. The court holds that he did. You will return to the jury room and bring in a verdict of guilty.”
Error is assigned on these instructions because it is said they deprived the respondent of his constitutional right to have a jury pass upon his guilt. In People v. Neumann, 85 Mich. 98 (48 N. W. 290), where a similar question was raised, the court said:
“Whenever there is no question of intent in a crim inal case, and no inferences, about which reasonable men might differ, to be drawn from the facts, and where, upon the admitted facts, the only question to be determined is whether under the law the statute has been violated, the trial judge may, with perfect propriety, state to the jury that the law applied to the facts, which are undisputed, shows the defendant to be guilty of the offense charged, and that it is their duty so to find under the facts and the law.”
It was conceded by both parties that there was no question of fact involved, and under the statute there was no question of intent involved. There was nothing for the trial court to do but to apply the law to the facts, and instruct the jury what their duty was in the premises. The jury were permitted to retire, and they returned with a verdict in accordance with their instructions. We think no error was committed. People v. Gardner, 143 Mich. 104 (106 N. W. 541).
The conviction is affirmed, and, as the case is here on exceptions before sentence, the trial court will proceed to judgment.
McAlvay, C. J., and Brooke, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. | [
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McAlvay, C. J.
Respondent was convicted under an information charging him with the careless use of firearms. A motion for a new trial was made in his behalf and denied. The case is before this court upon a writ of error under which numerous errors are assigned, which include errors assigned upon the refusal to grant a new trial.
The facts appear to be that respondent, a young man 19 years old, and a companion aged 22, on August 16, 1913, went from Detroit out to the residence of a Mr. Green on the line of the Rapid Railway Company, near the village of New Baltimore. His companion had a Flobert rifle carrying No. 22 short cartridges for the purpose of shooting sparrows. This electric line of the Rapid Railway Company passes within about 150 feet of Mr. Green’s house. These young men were in a berry patch between the house and the railway track, along which at the time a car full of passengers was passing. The claim of the prosecution is that respondent at this time and place “did discharge, without injury to any other person, a firearm while intentionally without malice, aimed at or toward one John H. Sinclair.” Mr. Sinclair was a passenger in the car. The bullet fired from this rifle imbedded itself one-half inch in the window post in front of the seat where he was sitting, and slivers flew and hit him in the face under his eye.
The defense interposed on the part of respondent was that the shot was not fired by him, but by the young man who was with him, and that there was no evidence in the case which would justify the jury in finding that, if respondent fired the shot, he intentionally aimed the rifle at any person in the car. The offense with which respondent is charged is a statutory offense; the statute being section 11510, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14559), which is section 2 of an act entitled “An act to prevent the careless use of firearms.” It reads:
“SEC. 2. That any person who shall discharge, without injury to any other person, any firearm, while intentionally, without malice, aimed at or toward any person, shall be guilty of a misdemeanor, and shall be liable to a fine of not less than one hundred dollars, or imprisonment in the county jail not to exceed one year, or both, at the discretion of the court.”
The entitling of this act indicates clearly its purpose. It must be held to have been designed to punish acts done carelessly, without design of doing mischief. People v. McCully, 107 Mich. 343 (65 N. W. 234).
It is claimed on the part of the prosecution, and there was evidence in the case tending to show, that respondent was using this rifle, was pointing it in the direction of Sinclair, who was in the passing car, and fired it, with the result already stated. Upon this proposition the claim of the respondent has already been stated. This was a question of fact to be submitted to the jury, and has been determined by it against respondent.
It is not necessary to sustain a prosecution under this section of the statute to show that the firearm used was aimed at any person. It is sufficient if it be pointed “toward any person.” The definition of the word “toward” is, “in a course or line leading to, in the direction of.” There is proof in this case tending to show that respondent held this firearm pointed directly at this car loaded with passengers, of which Sinclair was one, and deliberately fired it. There was evidence, if believed by the jury, to sustain every element of this statutory offense.
Consequently, the errors assigned upon the denial of the motion for a new trial are without merit, so far as the matter of the evidence is concerned, and was properly denied, unless we find that upon the trial of the case, or in the charge to the jury, or in refusals to give respondent’s requests, error was committed by the court. We find, from an'examination of the errors assigned upon the admission and exclusion of evidence, that none of them are meritorious.
The record shows that an exception was taken to a claimed statement of the prosecutor in his argument that “there are better men now in State’s prison than Kreidler.” This is followed by a statement by the court, “He said ‘perhaps there were.’ ”
The record does not show the connection of the statement with the argument made or what proposition the prosecutor was discussing, and such a statement might be made without prejudice, if he were discussing the reckless carelessness with which firearms are used on occasions like the one in the instant case. Such use of firearms all too frequently results in homicide. A very small per cent, of the inmates of our prisons are there for offenses of that character.
Including the 16 grounds for a new trial, there are nearly 50 assignments of error. These, not including those already considered, are upon the refusals to give respondent’s requests to charge, and upon portions of the charge as given. In his main charge the court gave in substance all of the requests of respondent which could be properly given. This charge of the court must be considered as a whole, and, so considering it, we find that it directed the jury that the elements of the offense charged must be proved beyond a reasonable doubt, and, “unless you are satisfied beyond a reasonable doubt that the defendant Kreidler did fire the gun as claimed, it will be your duty to acquit him.” This charge also gave all the necessary protection which the law requires should be given to a man accused of crime, and correctly stated the law in the case to the jury. The verdict was warranted by the evidence in the case.
The conviction is affirmed.
Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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M. F. Cavanagh, J.
The defendant was found guilty by a jury in Shiawassee County Circuit Court of the offense of delivery of a controlled substance; namely, heroin. MCLA 335.341(l)(a); MSA 18.1070(41)(l)(a). On appeal the defendant raises several issues, only one of which merits discussion.
The theory which the defendant sought to present at trial was that he was entrapped into the sale of the heroin to undercover agents. According to the defense theory, the defendant’s cousin, while working secretly as a police agent, induced him into selling a small amount of heroin to a third person who was supposedly very sick because of his addiction. The prosecution presented evidence that the defendant’s cousin was not an agent of the police and that no representation of the buyer being sick was ever made to the defendant.
The trial court submitted the entrapment issue to the jury and instructed them, in pertinent part:
"I further instruct you that it is the law of this State that an undercover agent’s mere offer to purchase drugs does not constitute entrapment. If you find that through some inducement the police officer prompted the Defendant to engage in an unlawful act with regard to heroin, which he would not have otherwise performed, then you must find him not guilty because of entrapment. You are instructed that the prevention of crime is a proper function of law, of enforcement officers, but the manufacture of a crime is not part of that function.
"In considering the evidence in this case, you must first decide whether the prosecution has established beyond a reasonable doubt that the Defendant sold or transferred heroin, as charged in the Information. If you find beyond a reasonable doubt that he sold or transferred the heroin, you must then consider all of the evidence and determine whether he had been induced to do so by reason of having been lured or enticed by the police officers. If you find that what he did was the result of the inducement, enticement or luring, except as I have read to you before, and I read it to you again, where the activity goes beyond the mere offer 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, the burden to overcome the presumption of innocence, as I have stated to you before, rests upon the government.”
The defendant did not object to this instruction.
In People v Turner, 390 Mich 7; 210 NW2d 336 (1973), the Michigan Supreme Court adopted the "objective” test of entrapment. The Court relied heavily upon the dissenting opinion of Justice Stewart in United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973). Both opinions placed the determination of entrapment upon the evaluation of whether repugnant methods were used by the police rather than the defendant’s predisposition to commit the offense. 390 Mich 7, 19-21.
Justice Stewart also discussed the issue which is presently before this Court:
"Phrased another way, the question is whether — regardless of the predisposition to crime of the particular defendant involved — the governmental agents have acted in such a way as is likely to instigate or create a criminal offense. Under this approach, the determination of the lawfulness of the Government’s conduct must be made — as it is on all questions involving the legality of law enforcement methods — by the trial judge, not the jury.” 411 US 423, 441.
The Michigan Supreme Court in Turner, however, did not comment upon whether the objective determination of entrapment is one for the trial judge or the jury. Turner, however, did rely upon Justice Roberts’ concurring opinion in Sorrells v United States, 287 US 435; 53 S Ct 210; 77 L Ed 413 (1932), and Justice Frankfurter’s concurring opinion in Sherman v United States, 356 US 369; 78 S Ct 819; 2 L Ed 2d 848 (1958). Both of these eminent jurists concluded that the issue of entrapment is one for the trial judge.
Justice Frankfurter explained and added to the rationale of Justice Roberts as to why the entrapment determination cannot be made by a jury:
"As Mr. Justice Roberts convincingly urged in the Sorrells case, such a judgment^ aimed at blocking off areas of impermissible police conduct, is appropriate for the court and not the jury. 'The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention.’ 287 US at 457 [53 S Ct at 218; 77 L Ed at 425] (separate opinion). Equally important is the consideration that a jury verdict, although it may settle the issue of entrapment in the particular case, cannot give significant guidance for official conduct for the future. Only the court, through the gradual evolution of explicit standards in accumulated precedents, can do this with the degree of certainty that the wise administration of criminal justice demands.” 356 US 369, 385.
We think that these rationales are persuasive that in this jurisdiction the defense of entrapment is one which must be decided by the trial court, not the jury. Recent opinions by this Court are harmonious on this point. See People v Zeegers, 61 Mich App 546; 233 NW2d 76 (1975), and People v Habel (On Rehearing), 53 Mich App 399; 220 NW2d 74 (1974).
The purpose of not imposing criminal liability where the defendant has been entrapped into committing an offense is to deter improper police conduct. A general jury verdict of not guilty would not be instructive as to whether official conduct went beyond the boundaries of sound public policy. This evaluation, like that of confessions and other evidence alleged to have been obtained illegally, must be one for the courts in their supervisory role over the administration of criminal justice. See generally Chief Justice Traynor’s dissent in People v Moran, 1 Cal 3d 755; 83 Cal Rptr 411; 463 P2d 763 (1970).
Although neither party objected to the submission of the entrapment issue to the jury, this does not preclude our review of this issue. Further, while defense counsel in his brief on appeal made only an oblique reference to the issues discussed herein, the people’s appellate brief speaks directly to them, and at the oral argument of this cause counsel for the people admitted that the trial court’s actions were violative of both Turner and Habel but argued these errors were harmless. A trial court is bound to follow the law notwithstanding the fact that the parties are negligent in not calling it to the court’s attention. People v Glover, 47 Mich App 454, 458; 209 NW2d 533 (1973).
Because entrapment is not a jury issue, instructional content will, of course, not pose a problem for trial courts. It is important, however, for the court to utilize the proper standards in deciding whether the police entrapped the defendant. The standards evidenced by the jury instructions given in this case are not consonant with Turner’s objective test. The character or propensities of a particular defendant are totally irrelevant to the entrapment determination. The court’s attention should be focused on the conduct of the police and whether that conduct has in a reprehensible manner instigated the commission of a crime by one not ready and willing to commit it — regardless of the propensities of the particular person induced. 390 Mich 7, 21. See People v Henley, 54 Mich App 463; 221 NW2d 218 (1974).
In urging this Court to adopt their respective versions of what occurred between the defendant and police, both parties have misconceived the role of an appellate court in reviewing the rejection of an entrapment defense. Where the viability of the defense depends entirely upon the resolution of a factual dispute, it is the role of the trial court to ascertain those facts and appraise their effect upon the administration of criminal justice. Sorrells v United States, 287 US 435, 455 (Roberts, J., concurring).
The defendant’s conviction is reversed and the case is remanded for a new trial.
Bashara, P. J., concurred.
Defendant asserts that certain comments by the trial judge were prejudicial and that the court also erred in denying the defendant’s request for a continuance. The former issue is without merit since our examination of the record reveals that the comments were not objected to and, in any event, cannot be construed as having denied the defendant a fair and impartial trial. People v Roby, 38 Mich App 387; 196 NW2d 346 (1972). Because of our disposition of the entrapment issue, it is unnecessary to consider the continuance question since it is not likely to recur on retrial.
No issue of retroactivity is raised by this case. The trial was held ten months after People v Turner, 390 Mich 7; 210 NW2d 336 (1973), and six weeks after People v Habel, 53 Mich App 399; 220 NW2d 74 (1974). See People v Auer, 393 Mich 667; 227 NW2d 528 (1975). | [
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] |
Bashara, J.
Defendant, James Williams Cousins, was convicted by a jury of armed robbery, MCLA 750.529; MSA 28.797, and appeals.
The defendant raises three issues on appeal. First, defendant argues that the trial judge erred at the close of the Walker hearing by failing to expressly find that the confession was voluntary before admitting it into evidence. At the conclusion of the Walker hearing defense counsel moved to exclude the confession as involuntary, while the prosecutor moved to admit it as voluntarily given. The trial judge ruled, "I am going to admit the statement”.
Defendant relies on Sims v Georgia, 385 US 538; 87 S Ct 639; 17 L Ed 2d 593 (1967), and United States v Goss, 484 F2d 434 (CA 6, 1973), in support of his position. In United States v Goss, supra, at the close of a Walker-type hearing the defendant moved to suppress a confession as involuntary. The trial judge replied, "The motion is overruled”. He then admitted the confession into evidence without further statement. The Court in United States v Goss, supra, 436-437, quoting Sims v Georgia, supra, 385 US 544; 87 S Ct 643; 17 L Ed 2d 598, stated:
" 'Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Here there has been absolutely no ruling on that issue and it is therefore impossible to know whether the judge thought the confession voluntary.’ ”
The Goss court then held that the trial judge failed to make an adequate finding on whether or not the confession was voluntary.
We believe that Goss improperly applied Sims to its factual situation. In Sims v Georgia, supra, the record disclosed that the trial judge failed to rule on the voluntariness of a confession. It further appeared that the trial judge was following Georgia law which required the state to make out a prima facie case that the confession was voluntary. The issue was then submitted to the jury for a final determination. The record clearly indicated the trial judge improperly left the issue of voluntariness to the jury.
In Michigan the trial judge must determine at a hearing outside of the presence of the jury whether the confession was voluntarily made. People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). When the trial judge ruled, "I am going to admit the statement”, the record disclosed with unmistakable clarity that he had found the confession voluntary. We hold that when the trial judge indicates after a Walker hearing that he is going to admit the statement into evidence, he is with unmistakable clarity finding the confession voluntary.
Defendant next argues that the trial judge reversibly erred in allowing a police officer to read into evidence defendant’s confession which had been reduced to a writing and signed by the de fendant. The statement was offered as substantive proof of guilt and was admissable under the hearsay exception of admissions of a party. People v Livingston, 57 Mich App 726, 731-732; 226 NW2d 704 (1975).
The prosecutor should have laid a foundation for the reading of the memorandum under past recollection recorded. Jaxon v Detroit Department of Street Railways, 379 Mich 405, 413; 151 NW2d 813 (1967), People v Turner, 59 Mich App 589, 595; 229 NW2d 861 (1975). However, no objection was made and our review is limited to whether there was a miscarriage of justice. MCLA 769.26; MSA 28.1096. There was no miscarriage of justice because on objection a proper foundation for the admission of the memorandum could have been laid.
Finally, defendant argues that the trial judge erred in instructing the jury that "it is presumed that a reasonable being intends the ordinary, natural consequences of his or her voluntary act or acts”. The jury instructions must be considered as a whole. People v Williams, 208 Mich 586, 591; 175 NW 187 (1919). The instruction taken as a whole properly informed the jury that the reference to the word "presume” was in reality a permissive inference. People v Rivera, 61 Mich App 427; 232 NW2d 727 (1975), People v Jordan, 51 Mich App 710; 216 NW2d 71 (1974).
Affirmed. | [
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] |
T. M. Burns, P. J.
This is an automobile negligence case. Plaintiff was a guest passenger in a car driven by defendant James Scollin, Jr., which collided with an automobile driven by defendant Harold Raupp. Defendant James Scollin, Sr., was the owner of the car driven by Scollin, Jr. Plaintiff alleged at trial that the injuries he suffered in the accident were the result of Raupp’s negligence and Scollin, Jr.’s gross negligence.
On the evening of the accident, plaintiff and defendant Scollin, Jr. were traveling east on 13 Mile Road approaching the intersection of Telegraph Road and 13 Mile Road. Defendant Raupp had been proceeding west on 13 Mile Road but was in the process of making a U-turn, intending to travel eastbound on 13 Mile Road. As Raupp was making the U-turn, the Raupp and Scollin vehicles collided. Testimony elicted at trial indicated that the Scollin vehicle was moving at an excessive rate of speed and without its headlamps on immediately prior to the accident, which occurred around 6 p.m. on a winter evening.
After the jury returned a unanimous verdict of no cause of action against either defendant, plaintiff filed motions for judgment notwithstanding the verdict and for a new trial, both of which were denied.
Plaintiff alleges that the trial court erred in precluding him from presenting evidence on the issue of negligent entrustment unless the complaint was amended to include such a count. The complaint, at paragraph 7F, provides:
"That the defendant James A. Scollin, Sr., was negligent in wilfully, wrongfully and negligently entrusting a dangerous instrumentality, to wit: an automobile, to an incompitant, [sic] reckless driver, to wit: James A. Scollin, Jr., who [sic] he knew, or should have known, that such entrustment was and would result in the proximate injuries and damages herein complained of.”
The trial court ruled that the allegation was not properly pleaded since not contained in a separate numbered count. This contention is based primarily on GCR 1963, 113.3 which provides in part:
"Each statement of a claim for relief founded upon a single transaction * * * shall be stated in separately numbered counts”.
Under GCR 1963, 111.1(1), the complaint must contain "a statement of facts * * * with such specific averments as are necessary reasonably to inform the adverse party of the nature of the cause he is called upon to defend”. As the Committee Comment to Rule 111 points out, "no pleading shall be deemed insufficient if it reasonably informs the adverse party of the nature of the cause”.
The negligent entrustment allegation in plaintiffs complaint was set out in the same count and paragraph as other allegations but all were based on the same occurrence. There can be no question but that the defendant Scollin, Sr., had notice of the negligent entrustment claim as his answer denied the allegation contained in paragraph 7F of the complaint.
As for plaintiffs compliance with the General Court Rules, we conclude that Rule 113.3 should not be interpreted to mean that an allegation in a complaint is fatally defective solely because it is set out in the same numbered paragraph as other claims based on the same transaction or occurrence. Such a narrow interpretation of the court rule as suggested by defendant does violence to the basic concept of liberalized pleadings that is a fundamental principle of our modern civil procedure: that of providing notice to the adverse party of a claim against him.
Defendants Scollin further argue that the negligent entrustment claim was not in issue at trial because there was no mention of it in the pretrial summary. It is true that the pretrial summary controls the course of the trial unless modified. But, as GCR 1963, 301.3 states:
"No party shall be deprived of the right to present competent proof at the trial in support of any issues raised in the pleadings unless such issues have been expressly waived at the pretrial conference”. (Emphasis added.)
There being no indication that the plaintiff expressly waived adjudication of the negligent entrustment issue at pretrial conference, there is nothing to preclude him from raising such issue at trial. Accordingly, there was no reason for plaintiff to amend his complaint before proceeding at trial on the negligent entrustment issue. From a review of the record, it is clear that plaintiff was unduly pressured into dismissing the negligent entrustment claim as he was given the choice of dropping the claim or amending his complaint and having the entire action adjourned over term. We conclude that the trial court was in error in not allowing plaintiff to present evidence on the cause of action in negligent entrustment.
Plaintiff also challenges the constitutionality of the guest passenger statute. Since trial in this case, our Supreme Court has struck down this statute as unconstitutional. Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). Accordingly, a redetermination of Scollin, Jr.’s liability is required.
After a careful review of the record and the briefs of the parties, we find no other errors requiring discussion.
Reversed and remanded for a new trial as to the liability of defendants Scollin, Jr., and Scollin, Sr.; affirmed as to defendant Raupp. Costs to defendant Raupp.
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] |
M. J. Kelly, J.
On June 19, 1967 plaintiff suffered an unquestionably work-related injury to his left hand while in the employ of defendant Candler-Rusche, Inc. Plaintiffs hourly rate was $5.06. He was employed as a piledriver which entailed a good deal of climbing. As a result of the crushing injury, full strength never returned to the hand, and plaintiff was restricted to ground work with no heavy lifting. The Workmen’s Compensation Appeal Board found plaintiff partially disabled. This finding is not questioned. The issue is whether the board used the correct method to determine the amount of compensation.
MCLA 412.10; MSA 17.160, provides for compensation in the amount of two-thirds the difference between the workman’s pre-injury weekly wages, and the weekly wages thereafter, as follows:
"While the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employee a weekly compensation equal to 66-2/3% of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter.”
During the period immediately following the accident, while plaintiff was unable to work at all, compensation benefits were paid. Thereafter, plaintiff returned to work for defendant on ground work in 1967, and was subsequently laid off. He then worked for other companies, obtaining assignments through the union hiring hall until August of 1970, when he sustained a nonwork-related heart attack. The scope of his activity throughout this period was limited by the effects of the hand injury.
After his heart attack, he once again returned briefly to work in November of 1970, but on his doctor’s orders was forced to resign in December of 1970, and continued unemployed through the date of hearing below. Petition for hearing was filed seeking workmen’s compensation benefits on account of the injury to plaintiff’s left hand. The referee awarded plaintiff benefits, holding that after the further disability caused by the heart attack, he was entitled to receive "two-thirds of the difference between his weekly earnings and $202.40, not to exceed $75 for any week”, post-injury earnings or ability to earn notwithstanding.
The appeal board modified the award by offsetting plaintiff’s post-injury pre-heart attack average weekly earnings. Plaintiff says the effect of this modification was to strip him of any weekly benefits. He says that he has a hand injury which is clearly partially disabling, but that he has been effectively disenfranchised from any benefits. And it is true.
The appeal board order is as follows:
"It is ordered, that the decision of the hearing referee in this cause shall be and it hereby is modified to find that plaintiff has been only partially disabled in his skill and for all other periods up to March 11, 1971, he is entitled to receive payment at the rate of two-thirds of the difference between his average weekly wage at the time of injury ($202.40) and his average weekly wage as of August 14, 1970, such wage or earnings to be determined by computing the average weekly wage which plaintiff earned within a one-year period preceding August 14, 1970, not to exceed $75 for any one week, and in the future payment shall be made at two-thirds of the difference between such weekly earnings as so determined and $202.40 not to exceed $75 for any one week. Further, it is found plaintiff has not sustained the loss of industrial use of his hand;
"It is further ordered, that if the parties are unable to make such determination among themselves, the matter shall be remanded to the bureau for determination of that amount, including further testimony if necessary.”
The matter has not been remanded because plaintiff was granted leave to appeal to this Court on one issue thus framed:
"May the Workmen’s Compensation Appeal Board arbitrarily select a period for the determination of wage earning capacity upon which to determine the presence of wage loss where there is a specific finding of partial disability on behalf of the plaintiff?”
Plaintiff characterizes the one-year back period for determining average weekly wage as arbitrary; but it is really not the one-year back period that is causing plaintiff’s loss of benefits; it is inflation and the rise in wages working in tandem from the date of his original injury. The wage of a pile driver increased from $5.06 per hour at the time of plaintiffs injury to $7.37 per hour at the time of his heart attack. Since the courts are used these days for everything else, we are now asked to devise a formula, under guise of legal interpretation, which will remedy the economic robbery of the fixed income recipient.
What would it take? It would require the assertion of two legal principles which are beyond our powers to make.
First, a declaration of this state’s public policy, emanating from the remedial legislation principle, against inflationary loss of purchasing power to workmen’s compensation benefit recipients.
Second, an interpretation of wage earning capacity after injury under § 11, as meaning wage earning capacity after the injury established by the wage rate of an uninjured employee at the time of hearing.
This is not a new dilemma, see Trask v Modern Pattern & Machine Co, 222 Mich 692; 193 NW 830 (1923).
We decline the undertaking and affirm the appeal board with the lame observation that not every inequity is unlawful. This inequity is beyond our power to correct.
The difficulty stems from the statutory scheme which requires that the weekly benefit be offset by "the average weekly wage that he is able to earn thereafter”. Since the word "thereafter” does not delineate a specific time reference, the appeal board was required to establish the formula. It did so by choosing the year prior to the heart attack, August of 1970. Plaintiff claims that that period is unreasonable. He does not suggest an alternative time period after the injury but urges that we ignore his earnings post-injury and pre-heart attack. He says that he was able to find employment after the accident only because of a general construction boom where all warm-bodied workers were readily employable and where wages increased rapidly. He says that in subsequent recessionary economic times, his injury made him unable to compete with able-bodied workers for fewer available jobs, and that his wage increase after the accident is incidental and does not necessarily mean that he suffered no loss.
Defendant rejoins that the period used by the board is reasonable. It claims that it would be improper to gauge his entitlement by plaintiff’s lack of earnings after his heart attack because to do so would require the employer to pay compen sation for the nonwork-related heart attack. Defendant also argues that plaintiffs economic theories are unsubstantiated in the record. Defendant says that upon remand, plaintiff will be able to prove the economics of his situation, and show any real wage loss that he may have suffered.
We find that the appeal board was required to administratively determine an appropriate time period for computing the amount of weekly wages after the accident. The legislation allows a flexible approach. We find no error in the fact that the one-year period used is not specified in the statute. We find that the mathematical approach used by the board conforms to the statute. The Supreme Court has said, "the actual earning of wages establishes an earning capacity”. MacDonald v Great Lakes Steel Corp, 274 Mich 701, 703; 265 NW 776 (1936). Although the appeal board was required to consider capacity to earn, its measuring device of actual earnings is appropriate.
It was proper for the board to exclude from the computation plaintiffs lack of earnings after the heart attack. To do otherwise would allow, or at least potentially allow, an increase in benefits for an intervening nonwork-related disability. This is not permissible. Dunavant v General Motors Corp, 325 Mich 482; 38 NW2d 912 (1949).
In legal contemplation, the occurrence of an independent intervening event does not serve to diminish the amount of weekly benefits, even if the intervening event is itself totally disabling. Sims v R D Brooks, Inc, 389 Mich 91; 204 NW2d 139 (1973). Conversely, where the employee is partially disabled by an industrial accident and an independent intervening event totally disables him, there is no increase in the amount of weekly benefits. Pigue v General Motors Corp, 317 Mich 311; 26 NW2d 900 (1947), Dunavant v General Motors Corp, 325 Mich 482; 38 NW2d 912 (1949).
We defer consideration of plaintiffs additional argument that the partial disability formula distorts the true wage loss. No true wage loss has yet been established. The appeal board ordered the case remanded for that purpose, and it has not yet been accomplished. Plaintiff will have an opportunity on remand to show his weekly wages and document his argument that the apparent increase is a distortion, and that he does in fact have an existing residual real wage loss. If plaintiff can show that, as a matter of economic reality, his capacity to earn is not reflected by the mathematical result of the appeal board’s order, then we will reach the question of whether he is entitled to additional compensation. There is no denying that plaintiffs argument appears to conform to economic reality. On the other hand, the Supreme Court has said, "Presumably and actually, an employee can be injured, disabled to a degree, and yet suffer no weekly wage loss because he is shown to be able to earn an amount equal to or greater than that which he was earning at the time of his injury”. Pulley v Detroit Engineering & Machine Co, 378 Mich 418, 423; 145 NW2d 40 (1966).
Affirmed and remanded. Costs to defendant.
It should be noted that because of the 1967 injury date, the Workmen’s Compensation Act of 1912, rather than the Workmen’s Compensation Act of 1969, applies to this case. See MCLA 418.891(3); MSA 17.237(891X3). For this reason, our opinion relies on outdated provisions. The present section can be found as MCLA 418.361; MSA 17.237(361).
"The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employee computed according to the provisions of this section as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the injury, the same to be fixed as of the time of the injury, but to be determined in view of the nature and extent of the injury. The compensation payable, when added to his wage earning capacity after the injury in the same or another employment, shall not exceed his average weekly earnings at the time of such injury.
"In cases where there are special circumstances under which the weekly wage cannot justly be determined by applying the above provisions, an average weekly wage may be computed by dividing the aggregate earnings during the year prior to the injury by the number of days when work was performed and multiplying such daily wage by the number of working days customary in the employment, but not less than 5.” MCLA 412.11; MSA 17.161.
Apparently the appeal board relied by analogy on the "one year back” approach presently found in MCLA 418.833; MSA 17.237(833). The statute in effect at the time of plaintiffs accident, MCLA 413.14; MSA 17.188, is to the same effect, stating in pertinent part:
"If payment of compensation is made (other than medical expenses) and an application for further compensation is later filed with the commission, no compensation shall be awarded by the commission for any period which is more than 1 year prior to the date of the filing of such application.” | [
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Quinn, J.
By order of the Court, these cases were consolidated for argument and submission on appeal. For brevity and to avoid confusion, we hereinafter refer to our file No. 20402 as the first case and to our file No. 20101 as the second case. The appeal in the second case is from the order of the trial court which denied the motions of Covington, Transit and Travelers to strike them as parties plaintiff in that action. The appeal in the first case, heard by a different trial judge, is from an order which denied defendants Covington, Transit and Travelers’ motion for accelerated judgment and granted Imperial Kosher’s motion for partial summary judgment as to these same insurance companies.
Imperial Kosher leased two buildings that were damaged by fire March 27, 1967. Covington, Transit, Travelers, and North American had insured the contents of these buildings and the insurance contracts also contained business interruption insurance. March 5, 1968, Imperial Kosher filed an action against these four insurers to enforce the insurance contracts. This is the first case.
November 27, 1968, Horowitz and Kozin, the sole stockholders and officers of Imperial Kosher, were convicted of arson with respect to the fire of March 27, 1967. Their conviction was affirmed in People v Horowitz, 37 Mich App 151; 194 NW2d 375 (1971).
April 3, 1969, the second case was filed by the insurance companies named in the caption of our file No. 20101 as subrogees of the owners of the buildings leased by Imperial Kosher. This action was to recover from Imperial Kosher, Horowitz and Kozin the sums paid to plaintiffs’ subrogors pursuant to the insurance contracts. The theory of this action was that defendants had set, or procured the setting, of the fire in question.
The second case was tried first by the judge without a jury. It resulted in a judgment of no cause of action. Judgment was entered July 6, 1972. By mistake, Covington, Transit and Travel ers were included as parties plaintiff in this action without their knowledge or consent.
Defendants filed their answer in the first case March 27, 1968. It contained an affirmative defense that plaintiffs had set, or procured to be set, the fire which caused the damage to the insured property. May 24, 1972, defendants filed a motion for accelerated judgment alleging the conviction of Horowitz and Kozin of arson and that that conviction precluded plaintiffs from challenging defendants’ affirmative defense. September 8, 1972, plaintiffs answered this motion by asserting, among other things, that the judgment of July 6, 1972, in the second case barred defendants from relitigating the arson issue. Plaintiffs filed a motion for partial summary judgment on December 15, 1972. September 13, 1973, defendants answered the motion for partial summary judgment alleging that they were mistakenly named as plaintiffs in the second case; that they did not insure the buildings involved and that the second case only involved loss to the buildings.
October 30, 1972, Covington, Transit and Travelers moved the court in the second case to strike them as parties plaintiff in that action. This motion was denied November 30, 1972. Although not reflected in the lower court file, Covington, Transit and Travelers apparently filed a second motion to have their names deleted from the action. This motion was denied January 17, 1973 and these plaintiffs appeal from that denial.
March 28, 1974, the trial judge in the first case denied defendants’ motion for accelerated judgment and granted plaintiffs’ motion for partial summary judgment on the basis that the no cause of action judgment in the second case barred Covington, Transit and Travelers from relitigating the arson issue in the first case. Defendants appeal from that order.
A basic concept behind GCR 1963, is that the rules are to be construed so as to avoid the consequences. of any error or defect which does not affect the substantial rights of the parties, GCR 1963, 13. This concept is reiterated in GCR 1963, 118.1 which provides that leave to amend pleadings "shall be freely given when justice so requires”. Again in GCR 1963, 529.1, the limitation in the harmless error rule is stated "unless refusal to take such action appears to the court inconsistent with substantial justice”.
In the cases before us, the action of the trial court which denied Covington, Transit and Travelers their requested removal as parties plaintiff in the second case results in the plaintiffs in the first case profiting from their own arson. This, to us, bears no resemblance to substantial justice nor can we find any substantial right of Imperial Kosher, Horowitz and Kozin to profit from their own wrong-doing. GCR 1963, 528 should have been applied in this instance and the judgment in the second case should have been corrected by deleting Covington, Transit and Travelers as parties plaintiff in that action.
We find nothing in the arguments of Imperial Kosher, Horowitz and Kozin against such a result which persuade us otherwise.
Pursuant to GCR 1963, 820.1(7), the judgment in the second case is corrected by deleting Covington, Transit and Travelers as parties plaintiff. The order in the first case which denied defendants’ motion for accelerated judgment and granted plaintiff’s motion for partial summary judgment is reversed, and that case is remanded for further consideration.
The records establish that the mistake by which Covington, Transit and Travelers were joined as parties plaintiff in the second case was due to the negligence of their counsel in drafting the complaint. The failure to discover this error for over three years was partly the fault of these companies. The mistake caused the result below and necessitated this appeal. Normally, the prevailing parties on appeal are entitled to costs, but an appeal caused by the mistake of the prevailing parties is not normal. Under authority of MCLA 600.2445(1); MSA 27A.2445(1), no costs are awarded. | [
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] |
T. M. Burns, P. J.
On March 26, 1974, defendant was jury-convicted of armed robbery. MCLA 750.529; MSA 28.797. He was sentenced on April 17, 1974, to a term of 7-1/2 to 20 years in prison and now appeals as of right raising two assignments of error.
Defendant first claims on appeal that certain remarks made by the prosecutor during closing argument were so prejudicial as to deny him his right to a fair trial.
In his closing argument, the prosecutor stated:
"The thing that is really interesting — and Mr. Smith just volunteered it in answer to one of the defense counsel’s questions, sort of added it as an afterthought —'Well I didn’t even drive that night.’
"Why is that important? Consider this: What better job or better scheme for a stickup artist than to be working at a party store where there is no time clock, so you get paid even if you are not there, you take off for a half an hour, an hour, 45 minutes, skip down to some place and rob it and (whistling) right back.”
Defendant contends that the characterization of him as a "stickup artist” was prejudicial and requires reversal. However, defendant neither objected to this remark nor requested a curative instruction from the trial court. In People v Pacely, 51 Mich App 67, 71; 214 NW2d 561, 562-563 (1974), this Court stated:
"The absence of an objection [to the prosecutor’s remarks in his closing argument] in the trial court precludes appellate review, unless this Court’s failure to consider the issue would result in a miscarriage of justice. The basic standard employed in determining whether the remarks resulted in a miscarriage of justice is whether the allegedly prejudicial effect of the remarks could have been rectified by curative instruction. If so, the failure to object is fatal to the claim on appeal.”
While we think that it would have been best for the prosecutor to have omitted the statement in question from his closing argument, we do not think that it was so prejudicial as to deny defendant a fair trial. The allegedly prejudicial effects of the remarks could have been rectified by a curative 'instruction. We find no miscarriage of justice present in the case at bar. See People v Gould, 61 Mich App 614; 233 NW2d 109 (1975) [defendant referred to as a "dope dealer”], People v Davis, 57 Mich App 505; 226 NW2d 540 (1975) [defendant referred to as a "brutal killer”], People v Giacalone, 52 Mich App 428; 217 NW2d 444 (1974) [defendants described as "pros”], People v Plozai, 50 Mich App 131; 212 NW2d 721 (1973) [defendant labeled as a "murderer”].
We now come to defendant’s final and most serious allegation of error. Upon completion of its charge to the jury but prior to the time the jury started its deliberations, the trial court said:
"Now before you go in, I will not reread any testimony, so don’t ask for that. If there is a question of law, all you will have to do is rap on the door and I will bring you back out and explain that to you. A question of law, but not a question of fact. Do we understand that? All right. Will you kindly step inside the jury room.”
Defendant maintains that the trial court’s action in categorically refusing to reread any portion of the trial testimony constitutes reversible error.
In People v Howe, 392 Mich 670; 221 NW2d 350 (1974), the trial court refused to reread the . testimony of two witnesses as requested by the jury. The Court first reiterated the rule that when a jury requests testimony to be read back to it, both the reading and the extent of the reading is a matter confided to the sound discretion of the trial court. Howe, supra, at 675. The Court went on to hold that the trial court’s refusal to reread testimony constituted an abuse of discretion where the trial court failed to consider the jury’s reasonable request. Howe, supra, at 677. In so holding, the Court said:
"a jury will at times require testimony read back to it to resolve a disagreement or correct a memory failure. A trial court must exercise its discretion to assure fairness and to refuse unreasonable requests; but it cannot simply refuse to grant the jury’s request for fear of placing too much emphasis on the testimony of one or two witnesses.” 392 Mich at 676; 221 NW2d at 352.
If it is error for a trial court to refuse a jury’s request for a rereading of particular excerpts of testimony on the ground that undue emphasis might be placed on the same, a fortiori, it is error where the trial court, before the jury has retired to consider its verdict, completely forecloses the possibility of having any testimony reread. This is what happened in the case at bar, and accordingly we find that the trial court erred in failing to recognize that it had such discretion and, therefore, in failing or refusing to exercise it.
The question now arises as to whether or not the error was harmless beyond a reasonable doubt. MCLA 769.26; MSA 28.1096. The Howe Court, in concluding that reversible error had occurred, stressed the fact that the jury was in fact confused as to the testimony of two witnesses. After an independent reading of the requested testimony, the Court agreed that there was confusion present in the questioning and the witnesses’ answers and, therefore, concluded that the error was not harmless beyond a reasonable doubt. Howe, supra, at 678.
Such is not the case here. Our independent reading of this record fails to reveal any confusion or ambiguity as to the testimony of the witnesses. The three victims of the armed robbery all testified as to the events surrounding said robbery. These three witnesses all identified the defendant as one of the perpetrators of the robbery. Defendant, on the other hand, interposed an alibi defense claiming he was at work at the time of the robbery. The jury was thus presented with a classic credibility question, a question they resolved against the defendant.
As further evidence of our conclusion that no confusion was present in the case at bar, we note that while this trial lasted almost four days, the jury reached its verdict in less than two hours. The totality of circumstances present in the instant case convinces us that no miscarriage of justice occurred. After looking at the record as a whole, we conclude that the trial court’s error in refusing to reread any portion of the trial testimony was harmless beyond a reasonable doubt.
Defendant’s conviction is affirmed. | [
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Per Curiam.
The instant appeal concerns the constitutionality of use restrictions placed upon plaintiffs’ property within the City of Escanaba. After a close scrutinization of the record de novo, this Court is convinced defendant acted unreasonably in rejecting plaintiffs’ proposed use of their property for multiple residential dwelling construction, as a planned-unit development district.
Plaintiff, Deltowne Housing Corporation, is a nonprofit entity organized to provide citizens of the community with adequate housing via low interest mortgage monies provided through the Michigan Housing Development Authority. Deltowne’s Vice President, William DeHaan, is also chairman of defendant’s housing commission. Delta Catholic Credit Union owns the involved property; it has granted Deltowne a valid option to purchase land.
Plaintiffs’ property is bounded on the north by a Class F — light manufacturing district. Existing uses within this district include an automobile dealership, bowling alley, motel, and warehouse. Directly west of plaintiffs’ parcel is an undeveloped parcel owned by the defendant city. Further west is undeveloped forest land. Bordering the subject property on the east is a small subdivision of single family homes; three homes front the plaintiffs’ parcel. Bordering on the southwest is Parkway Estates subdivision which is comprised of 35 to 40 homes. Further south of Parkway Estates are, among other things, three apartment buildings situated in a Class C or commercial district. Southeast of the involved property is an open field owned by the public school system; the high school is located east of this field.
The 18-acre subject property is presently zoned Class A residential. This classification would permit use of land for colleges, golf courses, churches, and clubs, as well as single family homes. Instant plaintiffs point out that mobile homes may be located in Class A residential districts provided they are placed on foundations. Multiple dwelling use has been traditionally allowed in Class C or commercial districts. In order to permit greater flexibility and variety in community development with emphasis on aesthetic and efficient land use, defendant enacted ordinance number 567 early in 1972. This ordinance creates a new type zoning classification termed planned-unit development or Class C-2 districts. Multiple as well as single family dwellings are allowed within a district designated Class C-2. Development is under the direction and control of the city planning commission and city council.
Instant plaintiffs sought to have their property rezoned from Class A residential to Class C-2. Pursuant to ordinance 567, Deltowne submitted a preliminary plan to the city planning commission for the construction of a 175-unit complex of townhouses and apartments. The city engineer prepared a report for the commission, stating that Deltowne’s plan conformed with the ordinance’s requirements. Public hearings were held, and on October 11, 1973, the planning commission re jected the plan and rezoning proposal of Deltowne due to no apparent need for this type of housing, concern over traffic and safety, and because it was in the "public interest”.
Deltowne appealed to the city council. At the same time, it requested the land be rezoned Class C. On October 18, 1973, the city council by a 3-2 margin determined that the property should remain Class A residence for the reasons "set forth in the Planning Commission’s minutes which were thoroughly aired at public hearings, and specifically those reasons of traffic, safety, congestion and development of the surrounding area as Class A residential property”.
Plaintiffs filed a complaint in circuit court to enjoin defendant from enforcing its allegedly unconstitutional zoning ordinance which prohibits the legitimate use of their property.
At trial on January 4, 1974, plaintiffs called as witnesses the city engineer, the architect of Deltowne’s planned-unit development, the manager of new development for the Michigan Housing Development Authority, an urban planner with the Central Upper Peninsula Planning and Development Regional Commission, and Mr. DeHaan. Proofs presented by plaintiffs which are relevant to our disposition of the case may be summarized as follows.
Defendant’s zoning plan consists of a map formulated in 1949 with a two-page amendment made in 1962. By ordinance, property not otherwise designated, i.e., Class C, F and so forth, is deemed Class A residential. The city has an overabundance of land designated Class A residential. It is currently economically unfeasible to develop single family homes on plaintiffs’ property. Many of the few Class C districts are completely devel oped; one five-acre parcel is apparently unsuitable for development due to water table difficulty. There are no C-2 districts within the city.
Plaintiffs have submitted an extensive plan for creation of an aesthetically pleasing housing development which complies with the requirements of the Planned-Unit Development Ordinance (Or 567). The units would be mostly townhouses with some apartments, and would serve as a good transitional zone between uses to the north and the residential area to the south of the parcel. The proposed development is not low cost housing, would be compatible, even complementary, to the area, and plans call for setting up an escrow account to assure continued maintenance of units. No structure would be more than two stories, and the development would have a park, playgrounds, landscaped areas, and a community building.
There has been considerable change in the area around plaintiffs’ parcel since adoption of the 1949 zoning plan and 1962 amendments. The community needs multiple dwelling units, especially for elderly citizens. Plaintiffs’ development calls for a minimum of 25% of the units for the elderly.
Plaintiffs’ planned-unit development would have no adverse impact on city services. The site is served by city water, sewer and fire protection. The roads in the area would provide adequate access to and from the complex, and the proposed development is designed to discourage traffic because no streets will run through the entire complex. Under existing use restrictions, development of 84 units for single family homes is possible. The record indicates that Deltowne plans to initially construct 100 units with the remaining being developed apparently when the constructed units are rented out.
Defendant’s sole witness was an attorney representing many of the homeowners bordering the plaintiffs’ parcel. He testified that residents in the area feel they have relied upon Class A residential zoning in constructing their homes, that plaintiffs’ development would be detrimental to the value of their property, and they are concerned about density and traffic problems.
On April 16, 1974, the trial court rendered an opinion in favor of defendant. While making -few specific findings of fact, and relying primarily upon the Supreme Court opinion in Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974), the trial court concluded inter alia that "[w]hile the Plaintiffs have presented a strong case in support of their argument for rezoning, they have not, in my opinion, met their burden of proof to establish that the City acted arbitrarily or capriciously”.
On appeal, counsel for plaintiffs has submitted a most impressive brief attacking the constitutionality of defendant’s zoning ordinance as applied to their property. Plaintiffs contend the use restriction is confiscatory and violative of substantive due process and equal protection. Defendant maintains that the question is whether the planning commission and the city council acted in an arbitrary and capricious fashion in denying plaintiffs’ rezoning request, and, even more basic, whether the City of Escanaba is to be planned by elected city officials or the courts.
The judiciary’s role in reviewing zoning matters is currently in a confused state. Turkish v City of Warren, 61 Mich App 435; 232 NW2d 732 (1975). Prior to the Supreme Court opinion in Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974), various panels of this Court applied the doctrine of "favored use” in cases involving multi pie dwellings, and shifted the burden of proof to the municipality to show a use exclusion was neither arbitrary, capricious nor unreasonable. The Kropf Court wiped out "favored use”, ruling that the proper standard was one of reasonableness of the present use with the burden of showing unreasonableness placed on the individual challenging the use restriction. Justice Levin wrote a concurring opinion in Kropf. He viewed action on a request for rezoning as administrative in nature, and believed that the test should be the reasonableness of the proposed use, not the existing use. Under this approach, proofs would be presented before the zoning board and a record established for the court’s review. Judicial review would be limited to whether the evidence supports the administrative finding on the question of whether the proposed use is reasonable.
A three-to-two majority of the Supreme Court recently adopted the approach set forth by Justice Levin in a trilogy of zoning cases. Sabo v Monroe Twp, 394 Mich 531; 232 NW2d 584 (1975), Smookler v Wheatfield Twp, 394 Mich 574; 232 NW2d 616 (1975), Nickola v Grand Blanc Twp, 394 Mich 589; 232 NW2d 604 (1975). Moreover, six members of the Supreme Court in Werkhoven v City of Grandville, 395 Mich 753; 232 NW2d 671 (1975), remanded a zoning case back to a panel of this Court for reconsideration in light of the opinions of the Justices in the above-stated cases. In reversing the trial court, and sustaining the use restriction on plaintiffs’ property, the Court of Appeals in Werkhoven had relied in part on the majority opinion in Kropf, supra.
In Ettinger v Avon Township, 64 Mich App 529; 236 NW2d 129 (1975), this Court recently recognized that:
"Justice Levin’s approach, though gathering strength, does not yet represent the current jurisprudential law in Michigan. While the viewpoint gathered three votes in Sabo, this is still not a majority of the Court. Where no opinion is endorsed by a majority of the members elected to the Supreme Court, the result is not binding as precedent. In re Curzenski Estate, 384 Mich 334, 335; 183 NW2d 220 (1971).”
Ettinger also noted that until the Supreme Court clarifies the matter further it remains uncertain whether the Levin standard would require proof of the reasonableness of the proposed use alone, or would it require proof that the proposed use is more reasonable than the existing use. See also Lax, 1974 Annual Survey of Michigan Law, Local Government, 21 Wayne L Review 577, 583-585 (1975), for comments raising other questions as to the proposed standard.
Be that as it may, we need not predict whether the Sabo or the Kropf standard either will or should ultimately prevail. Under either approach, we conclude plaintiffs should have been permitted to use its property under a C-2 classification. Unequivocally, instant plaintiffs have shown that their proposed use is reasonable in light of all the circumstances. Moreover, they have affirmatively established by unrebutted testimony that the reasons given for not granting the rezoning request are without foundation. Plaintiffs have effectively overcome the presumption of validity accorded the defendant’s actions by meeting the second standard of substantive due process set forth in Kropf, supra: "an ordinance may be unreasonable because of the purely arbitrary, capricious and unfounded exclusion of other types of legitimate land use from the area in question”. 391 Mich at 158.
Plaintiffs have prepared plans for an aesthetically pleasing residential development which will benefit the entire community, owing to a need for such housing, particularly among senior citizens. Nothing in the record established that the development would cause traffic problems. The proofs are otherwise. In light of testimony that the development would complement the area, meet the high standards required by defendant’s Planned-Unit Development Ordinance, and would be continually maintained through an escrow fund, fears of single family homeowners concerning property devaluation are not borne out by the record. Further, higher density per se ought not be determinative in denying or permitting a rezoning request. Indeed, the Kropf Court indicates that, without more, density is irrelevant to the question of the reasonableness of a use restriction. Finally, the reasons cited by the majority opinion in Kropf that might support upholding a municipality’s action prohibiting use of land for apartment construction, viz. monopolization of the sun’s rays, interference with free circulation of air, and depriving children of quiet and open spaces, are nonexistent under plaintiffs’ proposed development, which must comply with the requirements under the Planned-Unit Development Ordinance.
Granted one’s use of his property is subject to the police powers of the state in order to promote the common good, a real and substantial nexus must exist between the use restriction and the valid exercise of that power. Moreover, although courts presume that action by a municipality in restricting land use is valid, we afford the property owner an opportunity to overcome that presumption. Plaintiffs have borne their burden by establishing through the testimony of highly competent witnesses that defendant’s denial of their request for a C-2 designation constituted action without legitimate reason. The only testimony offered by defendants was that of the attorney who represented residential owners opposing the proposed development.
The lower court judgment in favor of defendant is reversed, and defendant is hereby enjoined from prohibiting plaintiff, Deltowne, from proceeding with its proposed use under the Planned-Unit Development Ordinance. Because we are confident that defendant will act in good faith in overseeing construction of plaintiffs’ proposed project for the object of assuring compliance with the just mentioned ordinance, we retain no further jurisdiction.
Reversed, No costs, a public question being involved.
Appellate courts review zoning cases de novo. Biske v City of Troy, 381 Mich 611; 166 NW2d 453 (1969).
The record indicates Mr. DeHaan receives no remuneration for his services to Deltowne.
Plaintiffs had planned to purchase this small parcel of property for use in their proposed development.
"Rather than having the decision-maker ask whether the proposed use is reasonable and thus requires rezoning, one could, for example, adopt a substantive rule whereby rezoning could not be granted unless the proposed use is clearly more appropriate than the existing permitted uses. Another possibility is that rezoning could not be granted unless the existing permitted uses are unreasonable. * * * If the supreme court decides that rezoning should be handled administratively — a decision that would send shock waves through innumerable legislative bodies — care should be taken to distinguish between the procedural consequences of such a decision and the substantive standards by which the administrative proceedings are to be governed.” (p. 585)
Defendant also offered in evidence the official minutes of the planning commission which, in part, contained statements of individuals opposing the proposed zoning change. Although plaintiff, by stipulation, agreed to introduction of said minutes, plaintiff did not agree to accept the personal opinions expressed therein. | [
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On Remand
McGregor, J.
Previously, we ruled that plaintiffs had failed to sustain their burden in rebutting the presumption of constitutionality to which the defendant’s zoning ordinances were entitled. In doing so, we relied heavily upon the majority opinion in Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974).
Following our decision, plaintiffs filed an application for leave to appeal to the Supreme Court. While this application was still pending, the Supreme Court decided three cases, all of which, like the present case, involved zoning restrictions on mobile home parks. The Supreme Court, in lieu of taking any action on plaintiffs’ application, re manded the matter to us "for reconsideration in light of the opinions of the Justices of this Court” in the Sabo, Smookler and Nickola cases.
In Sabo, Justice Levin, with Justices Kavanagh and Fitzgerald concurring, stated that the proper test to be applied in the majority of zoning cases should not be the Kropf test of whether or not the present zoning is unreasonable or confiscatory, but instead, should be whether or not the proposed use is reasonable under all the circumstances. However, Justice Williams, in concurring, and Justice Coleman, in dissenting, both continued to adhere to the Kropf test in which they had originally concurred. The remaining members of the Court, Justices Swainson and Lindemer, did not participate in any of the three decisions.
It is evident from the foregoing that there has been no agreement by a majority of the Supreme Court to adopt Justice Levin’s approach regarding zoning cases. Under these circumstances, constitutional rules of construction would normally preclude us from considering Sabo as precedent for the application of Justice Levin’s test. As stated in People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973):
"The clear rule in Michigan is that a majority of the Court must agree on a ground for decision in order to make that binding precedent for future cases. If there is merely a majority for a particular result, then the parties to the case are bound by the judgment, but the case is not authority beyond the immediate parties.” See Ettinger v Avon Township, 64 Mich App 529; 236 NW2d 129 (1975), In re Curzenski Estate, 384 Mich 334; 183 NW2d 220 (1971).
Thus, our Court, which must follow the authoritative precedents of the Supreme Court, would, in the usual case, still be bound to apply the test set forth in Kropf, supra. See Ettinger, supra, Turkish v City of Warren, 61 Mich App 435; 232 NW2d 732 (1975), Palmer v Township of Superior, 60 Mich App 664; 233 NW2d 14 (1975).
However, the present case does differ significantly from the usual case. Here, the Supreme Court has ordered us to reconsider our previous decision in light of the opinions expressed in Sabo and its companion cases. While we are extremely tempted to hold that Kropf still controls since Sabo is not binding as precedent, we nevertheless believe that the Supreme Court’s order left us with no other choice than to apply Sabo. Our Court is bound by the dictates of the Supreme Court and we must follow those dictates in the utmost good faith. The Supreme Court’s remand order is, in our view, express and unambiguous in directing us to apply Sabo rather than Kropf to the present case. It would be illogical to assume that the Supreme Court intended otherwise since our original opin ion had already decided this case on the basis of Kropf.
Consequently, we order the following action to be taken:
(1) We remand to the circuit court for the determination of whether the defendant, in fact as well as in theory, exercises legislative rather than administrative powers in respect to zoning. See Kropf, supra, 167-172 (concurring opinion). In making this determination the. court shall consider the following questions: (a) Has the legislative body of the defendant adopted, on general not individualized grounds, a plan of general application to all the lands in the community? (b) Does the defendant’s zoning authority reject all applications for a change in zoning without reaching the merits? (c) Does the defendant have a history of granting variances to individual property owners only when constitutionally necessary?
(2) If, after applying these standards, the circuit judge finds that the defendant does, in fact, exercise legislative power in respect to zoning, then he shall return his findings to this Court where our previous decision will be affirmed.
(3) If the circuit judge finds, however, that the zoning authorities of the defendant act administratively, then he shall remand to the City of Grand-ville for an administrative hearing on the question of whether plaintiffs’ proposed use is reasonable under all the circumstances. At this hearing, the factors listed in Kropf, supra (concurring opinion), 172-173, shall be considered along with all other pertinent factors. We will not retain jurisdiction should this situation arise.
(4) Judicial review of this hearing, if sought by any aggrieved party (see Kropf, supra [concurring opinion], fn 6), shall be restricted to the determina tion of whether the record evidence supports the administrative findings. Const 1963, art 6, § 28.
Remanded to the trial court for proceedings not inconsistent with this opinion.
Werkhoven v City of Grandville, 61 Mich App 200; 232 NW2d 356 (1975).
Sabo v Monroe Township, 394 Mich 531; 232 NW2d 584 (1975), Smookler v Wheatfield Township, 394 Mich 574; 232 NW2d 616 (1975), Nickola v Grand Blanc Township, 394 Mich 589; 232 NW2d 604 (1975).
The Smookler and Nickola cases were affirmed for the reasons stated in Sabo.
Justice Levin’s approach in Sabo originates from his concurring opinion in Kropf, supra, wherein he distinguished between legislative and administrative official action. It follows from this distinction that where the official action taken in respect to zoning is legislative in nature, then the Kropf test should still be employed. Where, however, the official action taken is administrative in nature, as presumably is the case in most instances, then the "reasonableness of the proposed use” test should be applied.
We believe that this approach would be preferable. If the instant case were before us now for the first time, we would unquestionably be bound to follow Kropf, and not Sabo. As a result, we would be applying the same test in the instant case that should properly be applied to all post-Sabo zoning cases. By applying Sabo instead, we are ignoring binding Supreme Court precedent and, in effect, deciding this case on the basis of the wrong law. In addition, it is this writer’s personal belief that Kropf represents better law. See Sabo, supra (dissenting opinion) and Ettinger, supra (concurring opinion). | [
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Bronson, J.
Defendant was found guilty by a jury of second-degree murder, contrary to MCLA 750.317; MSA 28.549, and sentenced to a prison term of from 10 to 20 years. That conviction was reversed by this Court in People v Williams, 26 Mich App 218; 182 NW2d 347 (1970). Defendant was released from custody on bond in September, 1970, and he remained free on bond until a new trial was held on May 21, 1972. At that new trial, the jury found defendant guilty of manslaughter, contrary to MCLA 750.321; MSA 28.553. Defendant was sentenced to a prison term of from 7-1/2 to 15 years, with a credit for 635 days served in Wayne County Jail.
On July 16, 1973, after he had served a portion of his sentence, defendant petitioned the trial court to reduce his sentence. The trial court granted that petition, and entered an order on August 13, 1973, giving defendant credit for the time spent while on bond awaiting retrial, 1,218 days. The Department of Corrections refused to recognize that extra credit. Consequently, the trial judge sua sponte granted defendant a new trial on September 12, 1974, the date defendant would have been released, with his good time credits, had the corrections commission recognized the modified amount of credit. The trial judge then dismissed the charges.
The people argue that the trial judge improperly modified defendant’s original sentence. We agree. It is well-established that a sentencing court does not have the power or authority to change a validly imposed sentence once a defendant begins serving it. People v Biniecki, 35 Mich App 335; 192 NW2d 638 (1971), Moore v Parole Board, 379 Mich 624, 631, 642; 154 NW2d 437 (1967), People v Parson, 345 Mich 727, 730; 76 NW2d 805 (1956), Elliot v Department of Corrections, 343 Mich 681, 691; 73 NW2d 298 (1955), People v Chivas, 322 Mich 384, 395-396; 34 NW2d 22 (1948), People v Fox, 312 Mich 577; 20 NW2d 732; 168 ALR 703 (1945). While a sentencing judge may correct a void sentence, In re Lemire, 360 Mich 693; 105 NW2d 37 (1960), no claim is made here that defendant’s original sentence was invalid in any way.
The trial judge’s subsequent dismissal of charges upon a sua sponte granting of a new trial was also improper. MCLA 770.1; MSA 28.1098 authorizes a trial court to grant a new trial when "it shall appear to the court that justice has not been done”. However, we cannot read the grant of authority as allowing a sentencing judge to accomplish indirectly, through a delayed motion for a new trial, what he cannot do directly. If the Legislature had intended to overrule such a well-established rule it certainly would have done so expressly. Therefore, we hold that a sentencing judge cannot use the vehicle of a new trial to "correct” a validly imposed sentence.
We have serious doubts as to the power of a sentencing judge to grant credit in the first place for the time a defendant was out on bond awaiting trial. However, due to our disposition of this case, we need not reach that issue here.
Reversed and remanded, with instructions that the trial judge reinstate the original sentence and order defendant’s return to prison.
J. H. Gillis, P. J., concurred. | [
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On Remand
O’Hara, J.
This case is before us under the following order of remand:
"On order of the Court, an application for rehearing having been filed herein, this Court recognizes that it erred in not noticing that the stipulation of non-residency was 'special’. Accordingly, the Court reaffirms its opinion and reversal of the Court of Appeals but vacates its affirmance of the trial court order. This cause is remanded to the Court of Appeals for further consideration in light of these facts and the Court’s opinion at 392 Mich 348 (1974). Costs to defendants-appellants for proceedings in this Court only.” 392 Mich at 369.
It is somewhat difficult to be sure exactly what issues this Court is required to discuss.
Mr. Justice Williams, who authored the original majority opinion, states:
"The issue before this Court, specifically reserved for consideration in Williams v Detroit Civil Service Commission, 383 Mich 507, 513; 176 NW2d 593 (1970), is whether the Civil Service Commission has power to enforce its residency rule by vacating the position of a civil service employee who violates that rule.” Gantz v Detroit, 392 Mich 348, 353; 220 NW2d 433 (1974).
Mr. Justice Levin in the original dissenting opinion writes:
"The question addressed by this Court 'is whether the Civil Service Commission has power to enforce its residency rule by vacating the position of a civil service employee who violates that rule.’ ” (Emphasis in original.) 392 Mich at 363.
Then, if I follow Justice Levin correctly, he makes the point that there is no practical difference between the status of a discharged employee and one whose position is vacated. The basic point he makes, as I understand it, in the balance of the opinion, is that there is a world of difference between the power to set up standards for employment, in the first instance, and the power to terminate that employment for stipulated lack of residency.
I am unable to apprehend how this question can possibly generate issues of fact for which remand should be made to take testimony or make a record.
The question is purely and simply one of law. The involved employee certainly knew this. He stipulated he was a nonresident. If he had not been there would have been no lawsuit. Plaintiff challenged the legality of this requirement as a condition of continuing employment. He had every incident of due process that could be afforded. He not only had notice, but an invitation to comply with the residence requirement voluntarily without any penalty. He had representation by counsel. He was free to make any sort of record he chose to.
Lawsuits ought to end sometime. This one has been going on for four years. The issue, as above noted, is one of law. I am more persuaded by the ratio decidendi of the majority than I am by that of the minority view. I am particularly impressed by the closing paragraphs of the majority opinion.
"The Civil Service Commission does not discharge an employee as would a department head. When an employee ceases to be a resident, he becomes ineligible for continued employment; the commission has a duty to refuse to approve the name of the ineligible employee on the payroll and to vacate the employee’s position. Disciplinary matters are left with the department heads; however, the Civil Service Commission retains the right to police the administration of requirements of eligibility for continued employment.” 392 Mich at 362-363.
I do not know of anything else I can discuss. I feel I have followed the order of remand, and amplified the reasons for my original holding. I adhere to that position.
I vote to affirm the trial judge.
For the history of the present case, see 48 Mich App 305; 210 NW2d 459 (1973); rev’d 392 Mich 348; 220 NW2d 433 (1974); remanded 392 Mich 369; 224 NW2d 278 (1974).
It should also be noted that the order of remand in the instant case was inadvertently set forth at page 219 following the Supreme Court’s opinion in Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195; 220 NW2d 664 (1974). In like manner the order of remand in Goodwin, supra, was erroneously printed at page 369 following the Gantz opinion. By the time this opinion is available to the Bench and Bar the appropriate changes may have been made in the permanent volume of 392 Michigan Reports. | [
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McGregor, P. J.
On May 31, 1972, the City of Ann Arbor petitioned the Michigan State Tax Commission to determine whether, pursuant to MCLA 211.154; MSA 7.211, justification existed for the exemption from taxation of the personal property owned by the defendant, The University Cellar, Inc. A stipulation of facts was entered into and filed with the state tax commission on March 14, 1973. On the same date, the commission held a hearing, at which time the stipulation was accepted and briefs were submitted. The commission, on August 19, 1973, entered an order finding that the personal property of the defendant was not tax-exempt. From this order, defendant sought leave to appeal, which was granted.
The parties agree, as they did before the commission, that the defendant corporation is a nonprofit, nonstock corporation, formed under the laws of the state of Michigan. It was incorporated under its former name of The Board for the Student Bookstore, Inc. and articles of incorporation were filed in April, 1970. The articles were amended in September, 1970, to reflect the defendant’s present name. The articles of incorporation state the purpose of the bookstore as follows:
"[T]o maintain and operate at The University of Michigan a store to sell books and supplies to bona fide students, faculty and employees, in order to promote the educational and economic welfare of students, faculty and employees of The University of Michigan;
"[A]nd to receive funds by way of grant, gift, bequest, donation, dues, fees, deposits, or otherwise for these purposes.”
It appears from the record that the University of Michigan, the University’s Student Government Council (with certain powers delegated to it by the university’s Board of Regents), and the Faculty Assembly (also recognized by the Board of Regents and a duly constituted representative body of the university’s faculty), proposed that the Board of Regents provide for, and finance the establishment of a campus bookstore. The Board of Regents, in 1969, approved a general plan for the bookstore, subject to the approval of the university president, and transferred $100,000 to defendant University Cellar as contributed capital. They also authorized the imposition of a $5 deposit requirement upon all students for the bookstore’s benefit; said deposits being returnable to the students, upon request, within one year of their leaving the university. Unclaimed deposits would become contributed capital. The regents designated that their liability would be limited to the amount of their capital contribution and the articles of incorporation provided that the regents had the power to terminate at any time the store’s right to operate on the school’s campus and to liquidate the corporation’s assets. Upon dissolution of the corporation or cessation of its existence, voluntary or otherwise, the articles provided that the net ássets of the corporation would be distributed to the university’s Board of Regents. The articles of incorporation and the bylaws further provided for a board of directors of 10 members, which would be composed of 6 students selected by the Student Government Council, three faculty members selected by the Faculty Assembly, and one administrative member selected by the university president. Additionally, the bylaws provided that this board should manage the affairs, funds and records of the corporation.
The bookstore is located on the University of Michigan campus in the Michigan Union, under a lease agreement, with the Union as lessor.
At the outset, we note that this Court’s power to review decisions of the state tax commission is very limited. Article 6, § 28, of the Michigan Constitution of 1963 provides in part:
"In the absence of fraud, error of law or the adoption of wrong principles, no appeal may be taken to any court from any final agency provided for the administration of property tax laws from any decision relating to valuation or allocation.”
Thus, on this appeal, we may properly consider only questions of law and not factual determinations made by the state tax commission.
The first issue which we must determine is whether the constitutional and statutory language applicable to property tax exemptions can accommodate an exemption for property held by a corporation which is owned by and within the control of a bona fide educational institution.
Article 9, §4 of the Michigan Constitution of 1963 provides in part as follows:
"Property owned and occupied by non-profit * * * educational organizations and used exclusively for * * * educational purposes, as defined by law, shall be exempt from real and personal property taxes.”
Additionally, MCLA 211.9; MSA 7.9, states in part:
"The following personal property shall be exempt from taxation:
"(a) The personal property of charitable, educational, scientific institutions, incorporated under the laws of this state.”
Plaintiff cites the case of Detroit v Detroit Commercial College, 322 Mich 142; 33 NW2d 737 (1948), for the proposition that exemptions must be strictly construed, and may not be inferred unless the intention to make an exception is expressed in clear and unambiguous terms. The plaintiff argues that, since the statute exempts only the personal property of the incorporated institution, the statute cannot be construed to include the property of another corporation, even if that corporation is wholly owned and controlled by the institution.
The defendant, on the other hand, argues that the cases of H K Ferguson v Department of Revenue, 377 Mich 388; 140 NW2d 469 (1966), and Knapp-Stiles v Department of Revenue, 370 Mich 629; 122 NW2d 642 (1963), stand for the proposition that the substance of the factual arrangement is to be the guiding principle in determining ownership and tax exemptions.
The Knapp-Stiles case is especially noteworthy. In that case, the Court held that sales by a private contractor to what was a private corporation, privately capitalized by that same contractor, were exempt from sales tax because the private corporation was determined to be an instrumentality of the United States Government. That corporation had been created to allow the United States Government to carry out extensive housing construction without including its costs in the Federal fiscal budget, thus avoiding violation of its direct debt limit. After listing the factors which led it to determine that the corporation was in substance an instrumentality of the government, including the fact that its stock and letters of resignation from its officers were in escrow for delivery to the United States Government upon completion of the project, the Court stated that corporate veils should be pierced to permit judicial discernment of the true situation. Since the corporation was in fact an instrumentality of the United States Government, the sales tax exemption was available to it.
The plaintiff city contends that these cases are distinguishable from the instant case in that the statutes there involved specifically allowed exemptions for instrumentalities of the Government, whereas here, the statute refers only to the institutions themselves, and makes no reference whatsoever to their instrumentalities.
However, we believe that the reasoning of these cases, which looks to the factual substance of the arrangement rather than its form to determine the real owner of the property, can also be applied to the personal property tax exemption. Although the language of the personal property tax exemption does not specifically refer to instrumentalities of the state, that section does refer to the personal property of educational institutions. Where a university establishes a corporation which is wholly owned and controlled by the university, and does so in such a way that the personal property of the corporation is, in fact, for all intents and purposes the personal property of the university, we believe that such property should come within the tax exemption.
We reach this result for two reasons. First, it is established in Michigan that:
"The lands, buildings and equipment under the management, supervision and control of the board of regents of the university are public property, owned by the State of Michigan. Such public property belonging to the State is exempt from property tax. CL 1929, § 3395, as last amended by PA 1946 (1st Ex Sess), No. 24 (Stat Ann 1947 Cum Supp § 7.7). Auditor General v Regents of the University of Michigan, 83 Mich 467; 47 NW 440 (10 LRA 376) (1890); City of Detroit v George, 214 Mich 664; 183 NW 789 (1921); People, for use of Regents of the University of Michigan v Brooks, 224 Mich 45; 194 NW 602 (1923); James A. Welch Co, Inc, v State Land Office Board, 295 Mich 85; 294 NW 377 (1940).” Rockwell Co v Romulus Township, 365 Mich 632, 640; 114 NW2d 166 (1962).
Secondly, in City of Ann Arbor v State Tax Commission, 393 Mich 52; 223 NW2d 1 (1974), the state tax commission determined that the University of Michigan Union, the University of Michi gan Lawyer’s Club, and the Board in Control of Intercollegiate Athletics were exempt from property taxation, and this Court affirmed that determination. These three organizations, like the present defendant, were also corporations established by the Regents of the University of Michigan. In reversing the case, our Supreme Court relied upon other grounds and did not express any opinion as to the substantive issues raised by the tax exemptions therein granted. As a result, our Court’s affirmance on this issue was left intact.
Having established that it is possible for a university to establish a tax-exempt corporation, we are presented with the second issue of whether the University of Michigan, in setting up and maintaining The University Cellar, Inc., retained sufficient ownership and control over that corporation so that its property can be said, as a matter of law, to be the property of the University of Michigan.
While no case has been found directly on point in this jurisdiction, other jurisdictions have examined similar arrangements. In District of Columbia v Catholic Education Press, Inc, 91 US App DC 126; 199 F2d 176 (1952), the Catholic Education Press, a separate corporation created by the Catholic University of America, was deemed to be part of the university. Likewise, in State v Bareis, 257 Wis 497; 44 NW2d 259 (1950), the Wisconsin Supreme Court held that the Wisconsin University Building Corporation, a nonstock, nonprofit corporation which owned property purchased and held in accordance with requests by the Regents of the University of Wisconsin, was entitled to a tax- exemption. On the other hand, in Stanford University Book Store v Helvering, 65 US App DC 364; 83 F2d 710 (1936), it was held that the association organized for the purpose of operating the bookstore was not sufficiently connected with the university to warrant a tax exemption.
In each of these cases, the courts have looked at the totality of the circumstances to determine whether the university retained sufficient ownership and control over the satellite corporation to justify the tax exemption. Important circumstances considered by these courts were (1) the makeup of the corporation’s managing board and the method of its selection, (2) the initial and continuing funding of the corporation, (3) the university’s degree of control over the operations and the existence of the corporation, (4) the university’s responsibility for the corporation’s liabilities, (5) the stated purpose of the corporation as contained in its articles of incorporation, and (6) the location of the corporation’s premises.
Judging the present case in the light of all the attendant circumstances, we conclude that the University of Michigan does, in fact, own and control the defendant corporation and, consequently, the personal property of the defendant is exempt from taxation. While the plaintiff points out several areas in which the corporation is independent to some degree, we, on balance, find the contrary conclusion to be inescapable.
The record makes clear that the university’s Board of Regents alone furnished the initial capital for the defendant corporation with the university’s student body thereafter becoming non-interest-bearing creditors. The Board of Regents has control over all of the assets of the defendant corporation in that it has the power to terminate and liquidate the corporation and to secure unto itself all distributable assets. The university (con sisting of administration, faculty and students) is alone represented on the defendant’s board of directors, as the board is selected only by institutional bodies officially recognized by the regents as integral parts of the university. This board operates the bookstore on a break-even basis, according to guidelines officially imposed by the regents. The defendant bookstore is located on the university’s premises and occupies said premises on a lease basis. Furthermore, the bookstore clearly appears to be in furtherance of the university’s educational program inasmuch as it caters primarily or exclusively to those connected with the school either in administrative, faculty or student positions. And, finally, the only apparent purpose of the separate, nonprofit corporation form of arrangement is the nontax purpose of limiting the regents’ otherwise limited liability to its initial capital contribution of $100,000.
• The concluding paragraph of Catholic Education Press, supra, is applicable to the present case, as it states:
"If the Catholic University of America, in its own name, should engage in activities identical to those of its subsidiary, the Catholic Education Press, we suppose its right to exemption from taxation on the personal property used in such activities would not be questioned. We see no reason for denying the exemption to the university merely because it chose to do its work through a separate non-profit corporation.”
The same situation is present here. The university clearly could conduct such a business in its own right. The fact that the regents have seen fit to set up a satellite corporation, instead of a division within the university itself, should not deprive the university of its tax exemption.
Reversed. No costs, a public question being involved.
Where the facts are not in dispute, the question of whether the property is owned by the educational institution so as to be exempt from taxation is one of law. See Webb Academy v City of Grand Rapids, 209 Mich 523; 177 NW 290 (1920). | [
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Per Curiam.
Appellant, John Unger, filed a claim of appeal in the Antrim County Circuit Court challenging the issuance of a building permit, for the construction of a 50-apartment condominium complex, to Ware Real Estate Corporation by appellee Forest Home Township. Ware Real Estate was allowed to intervene as a party-appellee to the action by order of the trial judge. Upon a written motion by Ware Real Estate, the trial judge granted summary judgment against appellant and he appeals by right.
We must decide here whether the trial judge properly granted summary judgment in favor of Ware Real Estate on grounds that appellant lacked standing to challenge the actions of the zoning board of appeals. We hold that plaintiff is not a proper party to bring this suit, and that the trial judge’s actions were correct.
In order to have any status in court to challenge the actions of a zoning board of appeals, a party must be "aggrieved”, Marcus v Busch, 1 Mich App 134; 134 NW2d 498 (1965). The plaintiff must allege and prove that, he has suffered some special damages not common to other property owners similarly situated, Joseph v Grand Blanc Twp, 5 Mich App 566; 147 NW2d 458 (1967). See, in. general, 8A McQuillan, Municipal Corporations (3d ed), § 25.292, and Note, Standing to Appeal Zoning Determinations: The 'Aggrieved Person” Requirement, 64 Mich L Rev 1070 (1966).
It has been held that the mere increase in traffic in the area is not enough to cause special damages, Joseph v Grand Blanc Twp, supra, Victoria Corp v Atlanta Merchandise Mart, Inc, 101 Ga App 163; 112 SE2d 793 (1960), Bersch v Hauck, 122 Ga App 527; 177 SE2d 844 (1970). Nor is proof of general economic and aesthetic losses sufficient to show special damages, Joseph v Grand Blanc Twp, supra, City of Greenbelt v Jaeger, 237 Md 456; 206 A2d 694 (1965), Downey v Incorporated Village of Ardsley, 152 NYS2d 195 (Sup Ct, 1956), aff’d, 3 App Div 2d 663; 158 NYS2d 306 (1957). Consequently, when the plaintiff alleges facts showing only those type of damages, summary judgment against him is proper, Joseph v Grand Blanc Twp, supra.
John Unger in his claim of appeal to the circuit court and in one affidavit alleged that he owned real property in the township bordering on the same lake as the land in question. Those allegations showed no special damages. The only inferences one might draw from those stated facts are that the traffic on the lake might increase, and that property values in general for lake property might go down. As discussed above, those allegations are insufficient to prevent summary judgment against the appellant for lack of standing.
We also reject two additional grounds appellant sets forth as giving him standing to pursue this lawsuit. Appellant first correctly argues that an action to abate a public nuisance can be brought by any township property owner, Indian Village Association v Shreve, 52 Mich App 35; 216 NW2d 447 (1974). However, that legal principle is inapplicable here, in that appellant did not bring such an action, choosing instead to directly challenge the actions of the zoning board of appeals. Unger next contends that the Forest Home Township zoning ordinance gives standing to any township property owner. To the extent that the ordinance does so, it is in conflict with the provisions of the Township Rural Zoning Act, and therefore invalid, MCLA 125.293; MSA 5.2963(23), MCLA 125.294; MSA 5.2963(24).
The other issues raised by appellant must be resolved against him, and do not merit discussion.
Affirmed, costs of this appeal to intervenor-appellee, Ware Real Estate Corporation.
Due to the imprecise manner in which this case was handled by the parties at the circuit court level, we have had to decide several preliminary procedural issues before taking this view of the case.
First, we decide that Ware Real Estate was properly allowed to intervene. GCR 1963, 209.1(2) provides for intervention by right upon stipulation of "all parties”. Both Unger and Ware Real Estate signed a stipulation here, and we hold that to be sufficient. Forest Home Township was technically a party-appellee below, but never filed an appearance and has been in default since the appeal was instituted. We cannot read the terminology "all parties” to include parties in default, for that interpretation would create a serious obstacle to resolution of cases on the merits between the real parties in interest.
Secondly, Unger’s original claim of appeal attacked only the failure of the Forest Home Township Board of Zoning Appeals to hold a public hearing relating to the issuance of the budding permit. We hold, however, that the argument of the parties on the substantive issue of whether the building permit was properly issued constituted mutual consent to try that issue, Pleger v Bouwman, 61 Mich App 558; 233 NW2d 82 (1975).
Thirdly, while Ware Real Estate labeled its motion as one for "accelerated judgment”, the trial judge treated it as a motion for summary judgment. That action was proper, inasmuch as no prejudice to appellant was shown, Birch Run Nursery v Jemal, 52 Mich App 23, 24, fn 1; 216 NW2d 488 (1974), modified, 393 Mich 775; 224 NW2d 282 (1974), Buddy v Department of Natural Resources, 59 Mich App 598, 599, fn 1; 229 NW2d 865 (1975).
Finally, the trial court in its written decision ruled that Ware Real Estate had shown a vested nonconforming use. However, on rehearing, the trial judge made plaintiffs lack of standing a second basis for his decision. | [
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] |
T. M. Burns, J.
Plaintiff purchased a tube mill (a machine which manufactures metal tubing) from defendant in 1965. After delivery and installation, the mill did not perform properly and much time and money were expended by both parties in attempts to repair it. The mill was designed and constructed to manufacture both round and square tubing, bút in operation never satisfactorily produced square tubing. It is apparent from the record that plaintiff’s primary purpose in purchasing the tube mill was for the production of square tubing. A year after delivery of the machine, defendant ceased making repairs on the tube mill, despite the fact that the mill would still not produce square tubing. Plaintiff subsequently sold the machine and brought the suit below alleging breach of contract by defendant. The trial court awarded plaintiff $107,944 in damages with a setoff to defendant for that portion of the purchase price yet unpaid. While defendant makes several assignments of error which warrant discussion, we find none which require reversal.
Defendant first asserts that the trial court erred in granting plaintiff damages since the offer to sell the machine limited defendant’s liability to repair or replacement of defects in the machine. This argument is without merit. The agreement between the parties for the sale and purchase of the tube mill was not reduced to final written form. The only evidence of a contract in this cause is a detailed offer to sell emanating from defendant, a bare acceptance by plaintiff which conflicts with the offer, and the conduct of the parties in carrying out the contract. In such situations, § 2-207 of the Uniform Commercial Code (UCC) provides that the acceptance creates a contract even though it states terms different from those contained in the offer. Under UCC § 2-207(3), the contract is established by the conduct of the parties and the contract terms are those upon which the writings agree and terms supplied by the code. Most important to this litigation is that the writings disagreed as to warranties. Defendant’s offer contained the following paragraph:
"We warrant all apparatus manufactured by us to be free from defective material and workmanship appearing within 12 months from the date of delivery if given normal and proper usage provided the equipment is still owned by the original purchaser. We are without liability for any damage or loss caused by defective material or workmanship beyond repairing or replacing it. Auxiliary items manufactured by others are sold only under such warranty as the maker provides. No other warranty, except a title, shall be implied. We assume no liability for repairs made by others without our written consent. Claims for shortages or breakage will not be recognized unless made in writing within 10 days of shipment.” (Emphasis added.)
Plaintiff’s acceptance was as follows:
"Kindly consider this letter to be our Formal Purchase Order No. 1000. Contents to certify the purchase from the McKay Machine Company of one (1) McKay W.R.S. 740 Tube Mill complete as per your quotation No. 4440-MB, dated April 27, 1965, and guaranteed by McKay Machine Company to perform to our satisfaction. "(Emphasis added.)
Since the writings conflicted as to warranties, neither provision became a part of the contract, and the UCC implied warranty of merchantability (§ 2-314) was in effect. The trial court found that this implied warranty was breached. The correctness of this finding we will discuss infra.
As to the limitation of damages clause in defendant’s offer, we need not decide whether that was part of the contract or not. Section 2-719(2) of the UCC provides that "[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in this act”. The court below found that several defects were never corrected by defendant. There is no question that the machine on delivery was grossly defective. Not only does the limitation of remedies provision fail of its essential purpose, but its application in this case would be unconscionable. Without that limiting clause, the code remedies apply, including those set out in UCC § 2-714 which allows the buyer damages for nonconforming goods.
Defendant next claims that the damage award, being greater than the purchase price of the machine, was based on insufficient evidence. Defendant argues that when the resale price of the machine is coupled with the award of damages, the plaintiff will receive more than the purchase price of the machine. Defendant fails to note that improvements were made to the machine by both parties after delivery. These improvements could only have enhanced the original value of the tube mill. It is not disputed that these improvements were made and included in the resale price. Considering the sale price and the improvements made after sale, we cannot say that the trial court’s valuation of the machine was unreasonable let alone clearly erroneous. Therefore, the trial court’s finding must stand. Home Insurance Co v Commercial & Industrial Security Services, Inc, 57 Mich App 143; 225 NW2d 716 (1974).
Defendant also challenges the trial court’s finding that defendant breached an implied warranty under the UCC. There is indeed some confusion in the court’s discussion of the applicability of code warranties to the facts of this case. It is necessary in any case of this nature to clearly distinguish between the two implied warranties set out in the UCC article on sale of goods as the proofs required to find a breach of either are significantly different. Under the implied warranty of merchantability, the seller warrants that the goods are "fit for the ordinary purposes for which such goods are used”. Under the implied warranty of fitness for a particular purpose, the seller warrants that the goods are fit for a particular purpose for which the buyer wants such goods. Hence, the warranty of merchantability is that the goods are of average quality within the industry, while the warranty of fitness is that the goods are fit for the purposes for which they were intended. Ambassador Steel Co v Ewald Steel Co, 33 Mich App 495; 190 NW2d 275 (1971). Despite the apparent confusion of the trial court regarding this distinction, the judge did make the finding of fact necessary to constitute a breach of the implied warranty of merchantability. As the judge stated:
"The Court has no difficulty in finding that the tube mill was not fit for the ordinary purpose of producing quality salable square tubing.” (Emphasis added.)
From our independent review of the facts, we cannot say that the trial court’s finding whs erroneous.
Finding no error, we affirm the decision of the trial court.
MCLA 440.2207(1); MSA 19.2207(1).
MCLA 440.2207(3); MSA 19.2207(3).
MCLA 440.2314; MSA 19.2314.
MCLA 440.2719(2); MSA 19.2719(2).
MCLA 440.2714; MSA 19.2714.
MCLA 440.2314(2)(c); MSA 19.2314(2)(c).
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] |
D. E. Holbrook, Jr., J.
Following Jeanette Vary’s death on August 8, 1971, the State of Michigan and Wayne County filed claims against her estate for charges arising out of her institutionalization at Northville State Hospital. The probate court granted the state’s claim in the amount of $20,084.60 and the county’s claim in the amount of $3,370.96. The estate’s assets consist of a single-family home valued at $10,000 to $12,000 and a bank account with a $5,547.39 balance. The bank account consists solely of the remains of social security benefits paid for the benefit of the decedent during her institutionalization.
After the probate court allowed these two claims, the co-administrators of the decedent’s estate petitioned the probate court for a determination of rights concerning the bank account. Relying on Philpott v Essex County Welfare Board, 409 US 413; 93 S Ct 590; 34 L Ed 2d 608 (1973), the probate court declared that the monies in the bank account could not be used to satisfy the claims of the state and the county. On appeal, the circuit court affirmed the decision of the probate court again relying on Philpott v Essex County Welfare Board, supra. The state filed for leave to appeal with this Court and leave was granted.
Decedent was committed to Northville State Hospital on March 22, 1967, as a state charge. While so confined the present co-administrators served as guardians of her estate. In this capacity they deposited approximately $8,000 in social security checks, from which they paid the minor guardianship expenses, the small personal expenses of the decedent while she was confined and the costs of her Christian burial.
In making their claims, the state and the county are seeking reimbursement for costs of the decedent’s institutionalization pursuant to MCLA 330.17; MSA 14.807. Defendants do not contest that the state and county have a valid claim against the estate for the care of the decedent. However, they contend that §207 of the Social Security Act makes the benefits paid to the decedent immune from legal process.
The section provides in relevant part:
"[N]one of the moneys paid * * * under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.”
Thus the sole decisional issue is whether §207 of the Social Security Act prohibits the use of social security benefits for the payment of accrued claims against the estate of the beneficiary after the beneficiary’s death.
At a person’s death it is the duty of the administrator of the person’s estate to collect the assets of the person to meet the expenses of administration, pay the valid claims of creditors, and distribute the remainder to the decedent’s heirs. MCLA 707.1; MSA 27.3178(381), MCLA 702.95; MSA 27.3178(165), MCLA 702.80; MSA 27.3178(150), MCLA 702.93; MSA 27.3178(163). Since accumulated social security benefits are the property of the decedent, they pass to his estate at his death. Cf. Beers v Federal Security Administrator, 172 F2d 34 (CA 2, 1949), Gardner v Ewing, 88 F Supp 315 (SD Ohio, 1950), aff’d, 185 F2d 781 (CA 6, 1950), rev’d in part on other grounds, 341 US 321; 71 S Ct 684; 95 L Ed 968 (1951). Once the monies are in the estate they must be disbursed either as expenses, claims, or distributions before the estate can be closed.
Under ordinary circumstances the bank account in dispute would be disbursed in accordance with the Michigan statutes. However, since the Social Security Act is a Federal statute, under the Supremacy Clause of the United States Constitution if there is a conflict between the statutes the Federal statute must control. On its face § 207 seems to prohibit any creditor from using "any legal process” to reach accumulated social security benefits of any beneficiary. Philpott v Essex County Welfare Board, supra. To further protect social security recipients from having their benefits subjected to legal process the Supreme Court has interpreted the section to mean that funds are protected in checking and savings accounts. Philpott v Essex County Welfare Board, supra at 416, accord, Porter v Aetna Casualty & Surety Co, 370 US 159; 82 S Ct 1231; 8 L Ed 2d 407 (1962), cf. Lawrence v Shaw, 300 US 245; 57 S Ct 443; 81 L Ed 623 (1937), see also 20 CFR 404.1608.
This protection from "any legal process” for accumulated social security benefits goes to the underlying principle of the social security system. The underlying principle of the system is to protect the social security beneficiaries from some of the hardships of existence. United States v Silk, 331 US 704, 711; 67 S Ct 1463; 91 L Ed 1757 (1947). It simply does not comport with the philosophy of the Social Security Act to allow a creditor to take what is necessary for bare existence at the current time for past debts. Even allowing a creditor to reach accumulations of benefits does not comport with this philosophy since at any time the accumulation may be necessary for the recipient’s current needs. Algier Estate, 43 Pa D & C2d 351, 357 (Orphan’s Court, 1967).
In the present case all the decedent beneficiary’s current needs were met when the funds in the guardianship account were used to provide her with a Christian burial. At the present time the decedent has no reasonably foreseeable current needs. There is no use to which the funds could be put that will aid the decedent in meeting the barest essentials of life. Furthermore, there is nothing in the record to indicate that these funds will assist anyone dependent on the decedent for their support in meeting the bare necessities of life. Cf. Good v Wohlgemuth, 15 Pa Cmwlth 524; 327 A2d 397 (1974).
Although the social security benefits retain their distinctive character in a traceable bank account, once they pass to the estate of the recipient they lose that characteristic. Accord, State v Monaco, 81 NJ Super 448; 195 A2d 910 (1963), State v Wendt, 94 Ohio App 440; 116 NE2d 30 (1953). This is because the recipient and the recipient’s estate are different "persons” even though the latter is a mere continuation of the former. When the accumulated funds lose the characteristic of being traceable social security receipts they lose the protection of § 207 of the Social Security Act. Accord, State v Monaco, supra.
Hence, we conclude that social security funds remaining constructively in the decedent’s hand at the time of death are a general asset of the estate. As such the funds are available to pay proper administration expenses and may be reached by creditors who have timely filed claims with the probate court. MCLA 702.95; MSA 27.3178(165). This is in accord with the underlying principles of § 207 of the Social Security Act, since the purpose of this section is to protect the recipient, not the heirs of the recipient. Accord, State v Monaco, supra, Estate of Buxton, 246 Wis 97; 16 NW2d 399 (1944).
The judgment of the circuit court is reversed and the case is remanded to the probate court for proceedings consistent with this opinion. No costs, a public question being involved.
V. J. Brennan, J., concurred.
MCLA 330.17; MSA 14.807. This section has been replaced by a comprehensive chapter on reimbursements for institutionalized care in the new Mental Health Code. MCLA 330.1800-330.1844; MSA 14.800(800)-14.800(844).
During the first year of a person’s institutionalization the state bills the county that the person formerly resided in for the costs of the institutionalization. MCLA 330.21; MSA 14.811. This also has been changed by the new Mental Health Code. MCLA 330.1302; MSA 14.800(302).
This section has been replaced by a comprehensive chapter on reimbursement for institutionalized care in the new Mental Health Code. MCLA 330.1800-330.1844; MSA 14.800(800)-14.800(844).
53 Stat 1372 (1939), 42 USC 407. | [
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] |
M. F. Cavanagh, J.
This appeal challenges the defendant county board of commissioners’ allowance of a claim by an attorney employed by the board to represent the county in a civil matter.
On April 15, 1974, plaintiff commenced this action, seeking to prevent payment of the claim by injunction and now appeals from the grant of defendants’ motion for accelerated and summary judgment.
In 1965, William Quance, Mackinac County Clerk, was involved in an automobile accident in which Suzanne Centala was severely injured. Centala, by her guardian, commenced suit against Quance and Mackinac County. The county was defended in the action by James Brown, at that time the prosecuting attorney. Centala settled with Quance and a release was signed. Summary judgment was granted for the county on the basis of the release. The guardian, however, appealed and the order of summary judgment was reversed. Centala v Navrude, 30 Mich App 30; 186 NW2d 35 (1971).
Prior to trial Edward G. McNamara, Jr., became prosecuting attorney. He attended a pre-trial conference in May, 1973. At a meeting of the county commissioners on May 16, 1973, McNamara ad-wised the commissioners that Centala was seeking damages of $2,500,000, recommended a settlement, not to exceed $200,000, and further stated that he was prepared to defend the county in the lawsuit.
At the May 16, 1973, meeting it was moved and carried that the board adjourn "to the call of the chair, or June 13, 1973”. On May 22, 1973, a postcard notice of a "special meeting” on May 24th called by the chairman "to discuss the possibility of hiring a special attorney” for the Centala suit was sent by mail to each commissioner. In addition the chairman telephoned all the commissioners.
At the May 24th meeting all the commissioners were present except Commissioner McNamara, who attended instead a prosecuting attorneys’ con vention in Ann Arbor with her husband, the plaintiff. A resolution was adopted at this meeting to "hire the law firm of Brown and Brown to represent and defend Mackinac County” in the Centala case.
The law firm of Brown and Brown thereafter undertook the county’s defense. Trial was held in October, 1973 and lasted several days. The jury returned a verdict of no cause for action in favor of defendant Mackinac County. Brown appeared at the October 10, 1973, meeting of the board of commissioners, at which all commissioners were present, and reported the result of the trial. A resolution was unanimously adopted commending Brown for his efforts and success. On March 6, 1974, Brown’s bill, in the amount of $25,000 for legal services plus $600 for expenses, 'was presented to the commissioners. The board considered the claim on March 6 and again on March 18. On April 10, 1974, the claim was allowed by a vote of three in favor, one opposed and one abstaining. The bill was paid on April 15, the same day on which plaintiff brought this action to enjoin payment.
Plaintiff presents three issues in this appeal.
I.
Plaintiff first argues that the hiring of counsel was not legal for two reasons: One, the May 24, 1973, meeting at which the resolution to hire Brown was passed was not a legal meeting, since the statutory requirements for a "special meeting” were not complied with, MCLA 46.10; MSA 5.330; and two, the board made no express "determination” that the prosecuting attorney was "unable to properly represent the county”, MCLA 49.71; MSA 5.824.
We agree that the statutory requirements for calling a "special meeting” were not complied with when the May 24, 1973, meeting was called. MCLA 46.10; MSA 5.330. However, even though the meeting was identified in the notice and in the minutes as a "special meeting”, it was not strictly speaking a "special meeting”, but rather an adjourned meeting. At the May 16, 1973, meeting the board adjourned to the call of the chair or June 13, 1973, as it had power to do. MCLA 46.1; MSA 5.321. Kalamazoo Township v Kalamazoo County Clerk, 339 Mich 619, 637; 64 NW2d 595 (1954):
"[MCLA 46.1; MSA 5.321] provides that the board 'shall have power to adjourn from time to time as they may deem necessary.’ There is no requirement that the adjournment be to a fixed date. The board can place the responsibility on the chairman to issue the call for an adjourned meeting, and in the absence of proof that the chairman abused his power, the meeting so called shall be considered as a legally adjourned meeting”.
The board of commissioners had statutory authority to engage civil counsel to represent the county in the Centala case, MCLA 49.71; MSA 5.824. They did so at a "legally adjourned meeting”.
We also agree that the board made no express "determination” that the prosecuting attorney was "unable to properly represent the county”, MCLA 49.71; MSA 5.824. E.g., Wayne County Prosecuting Attorney v Wayne County Board of Commissioners, 44 Mich App 144; 205 NW2d 27 (1972). However, the board’s resolution did state that the board desired to retain private counsel to defend the Centala action and that Brown was already familiar with the case and had handled it since its inception. Implicit in the board’s resolution was a determination that the prosecuting attorney with all his many other duties was unable to represent the county properly in that important personal injury litigation. In the instant case that was a sufficient determination to comply with the statute.
II.
Plaintiff next argues that, because the claim was unitemized, it was improper for the board to allow it.
By statute the board of commissioners is authorized to adjust, allow and authorize payment of all claims against the county. MCLA 46.11; MSA 5.331, MCLA 46.71; MSA 5.521. Plaintiff cites no authority for the proposition that the board cannot properly allow a claim unless it has been itemized. While the board has the right to require that a claim be sworn or itemized, such a procedure is not required. The board acted within the scope of its authority in allowing the claim.
III.
Finally, because the resolution of the foregoing issues is determinative of this appeal, we decline to discuss the trial court’s determination that the prosecutor had no standing to maintain this action.
Affirmed. No costs. | [
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V. J. Brennan, J.
This case concerns the interpretation of MCLA 418.827; MSA 17.237(827), of the Michigan Workmen’s Compensation Act. Defendant Ford Motor Company appeals the order of the Wayne County Circuit Court that invalidated Ford’s statutory lien on the $20,000 settlement of plaintiff Charles Osment’s malpractice suit against defendant Dr. Charnley.
Plaintiff Charles Osment (hereinafter "plaintiff”) injured his back May 16, 1968 while working at Ford Motor Company’s Michigan Truck Plant. Dr. Charnley, a private physician, treated plaintiff in hospital emergency room that day and saw plaintiff four subsequent times, prescribing medication and bed rest.
Plaintiff began receiving weekly disability benefits under workmen’s compensation September 17, 1968. He received medical and hospital benefits and, in addition, $50,000. Plaintiff presently receives disability retirement benefits through Ford Motor Company.
In October of 1968, and again in June of 1969, plaintiff, upon the advice of a second doctor, was operated on for the correction of his back condition. In May of 1970, plaintiff and his wife filed a malpractice suit in the Wayne County Circuit Court against Dr. Charnley alleging negligence in diagnosis and treatment. Charles Osment sought disability, pain and suffering, and mental anguish damages; Virginia Osment sought damages for care and nursing, medical expenses and loss of consortium. On December 2, 1971, Ford Motor Company, pursuant to MCLA 418.827, gave notice of its intention to exercise subrogation rights and seek a statutory lien against any proceeds that might be received by Mr. Osment.
The plaintiff’s action against Dr. Charnley was settled for $20,000 with Judge Blair Moody, Jr., dismissing the case May 4, 1973. At a later date, Judge Moody granted plaintiff’s motion requesting the invalidation of Ford Motor Company’s statutory lien. Judge Moody concluded that the alleged malpractice of Dr. Charnley constituted an independent injury from the original injury on the job and as such was not " 'an injury for which compensation is payable’ under the act”.
Ford Motor Company has appealed, asserting that its lien on the $20,000 settlement is authorized by statute. We agree and thereby reverse the Wayne County Circuit Court.
Plaintiff’s argument on appeal is a curious one. While acknowledging that an employer may be subrogated to the rights of an employee against a third-party tortfeasor for damages for which workmen’s compensation is payable, plaintiff contends that Dr. Charnley was not a tortfeasor and was not liable for any injuries. All injury to plaintiff, it is now alleged, was complete upon his May 16, 1968 fall and the treatment of Dr. Charnley neither aggravated the plaintiff’s injury nor gave rise to a second independent injury. The settlement does not result from any negligence liability of Dr. Charnley, it is argued, but rather from "allegations lacking in factual support”. Because the settlement does not arise out of any negligence, but rather arises out of thin air, plaintiff alleges he is entitled to retain the benefits of Dr. Charnley’s kind endowment.
We are reluctant to accept the plaintiffs present contention that the malpractice suit was totally unfounded. It strains credulity to assert that allegations lacking in factual support warrant $20,000 in settlement. Rather, the settlement is more properly viewed as compensation for aggravation, despite the fact that Dr. Charnley’s liability was, in fact, quite remote.
Because we view the settlement of the malpractice suit as a recovery for aggravation of on-the-job injuries, we find Oleszek v Ford Motor Co, 217 Mich 318; 186 NW 719 (1922), controlling. Under Oleszek, an employer is liable for all damages which flow directly from the original injury:
"Where there is a right of recovery due to the original injury and the disability at the time of the hearing is directly traceable thereto, the intervention of other and aggravating causes by which such disability has been increased * * * is no bar to his recovery.” 217 Mich 318, 321-322.
Because the employer must pay compensation for that aggravation directly flowing from the original injury, the employer is subrogated to the employee’s rights against the third party who causes the aggravation. Overbeek v Nex, 261 Mich 156; 246 NW 196 (1933). Even if the subsequent third-party aggravation is merely increased pain and suffering, and does not reach the level of an additional physical impairment, the employer is subrogated to the rights of the employee against the third party. That this is true is evidenced by the recent case of Pelkey v Elsea Realty & Investment Co, 394 Mich 485; 232 NW2d 154 (1975), which allowed the employer to recover from the employee monies received from a settlement with a third-party tortfeasor for pain and suffering arising out of the original injury. The Pelkey case, when applied in conjunction with Overbeek, supra, allows the employer to recover settlement sums that represent pain and suffering damages from aggravation subsequent to the original injury.
Even if we were to accept plaintiffs’ claim that the settlement is essentially a gratuity, not a result of any negligence by Dr. Charnley, defendant Ford Motor Company is entitled to reach the settlement. While it is true that Smith v Battjes Fuel & Building Material Co, 204 Mich 9; 169 NW 943 (1918), has been interpreted by Overbeek, supra, 261 Mich 156, 160, as allowing the employee to retain settlement sums that arose out of an unwarranted malpractice claim, the more recent case of Gamble v American Asbestos Products Co, 381 Mich 105; 159 NW2d 839 (1968), is the better rule. In that case, the parties on appeal stipulated that liability in a settled third-party action was "extremely doubtful, and the settlement was essentially what is determined to be a nuisance settlement”. 381 Mich 105, 108. Nonetheless, the Court invoked MCLA 413.15, the predecessor to the present MCLA 418.827, and allowed the employer to be reimbursed for benefits paid.
Even a windfall settlement arises out of the initial harm for which the employer must pay compensation; the settlement in the present case would not have been recovered but for the initial compensable injury.
We remand to the trial court for a reinstatement of defendant Ford Motor Company’s statutory lien. | [
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] |
D. E. Holbrook, J.
On September 25, 1970, defendant Keith Plummer was found guilty by an Oakland County jury of kidnapping, MCLA 750.349; MSA 28.581; rape, MCLA 750.520; MSA 28.788; assault with intent to murder, MCLA 750.83; MSA 28.278; and unlawfully driving away an automobile, MCLA 750.413; MSA 28.645. He was sentenced to serve 40 to 60 years on each of-the three capital charges and 4 to 5 years on the charge of unlawfully driving away an automobile. That conviction was reversed by this Court in People v Plummer, 37 Mich App 657; 195 NW2d 328 (1972). On June 27, 1972, defendant was again found guilty of all four offenses and given the same sentences. From that conviction defendant brings this appeal.
The facts in this case are particularly sordid even for cases involving similar crimes, but may be quite easily summarized. At trial, there was ample, unrefuted evidence to show that defendant abducted his 54-year-old victim from a parking lot near downtown Detroit. Using his victim’s car, defendant forced her, at knife point, to accompany him to a spot several miles from the city. Upon arriving at a secluded spot in a rural area, defendant parked the car and informed his victim that he was going to rape her. He then took his victim to some bushes a short distance from the road where he did rape her. Because of her age, the rape itself resulted in serious injury to the victim. After raping her, defendant stabbed his victim several times in the neck and abdomen. He then left the scene in the victim’s car. The victim, who had passed out during the attack, regained consciousness and made her way back to the road where she found help.
Defendant was a juvenile at the time of the offense, but juvenile court jurisdiction was waived so that defendant could be tried as an adult. Defendant’s waiver to circuit court was valid, as it complied with JCR 1969, 11.
On this appeal, defendant raises several allegations of error, only two of which we feel merit discussion.
At trial, defendant did not attempt to contest the fact that the crimes had been committed or that he had committed them. Rather, defendant entered a defense of insanity. Defendant called several witnesses who gave testimony which was favorable to his insanity defense. The prosecution called two witnesses in rebuttal of defendant’s insanity defense. Defendant makes allegations of error concerning the testimony of both of the prosecution’s rebuttal witnesses. Defendant claims it was reversible error to allow the testimony of a juvenile court psychologist who had interviewed defendant to assist the juvenile court in deciding whether or not to waive jurisdiction. Before the psychologist, Mr. Sokolov, was allowed to testify at trial, defense counsel objected on the basis of confidentiality and public policy. It was argued that since Mr. Sokolov had seen the defendant pursuant to proceedings in juvenile court, any communication was privileged and the introduction of evidence based on it would be contrary to public policy. Defendant’s "privileged communication” argument, based on MCLA 338.1018; MSA 14.677(18), is effectively answered by the case of People v Bol, 23 Mich App 244; 178 NW2d 516 (1970). Defendant cites this case in an attempt to distinguish it, but fails to do so. In Bol, supra, 23 Mich App at 250; 178 NW2d 519, this Court ruled on the applicability of MCLA 338.1018; MSA 14.677(18), to the testimony of a psychologist who had examined the complaining witness at the request of the juvenile court for the purpose of assisting the juvenile authorities:
"This Court concludes that there is no basis for holding that a doctor-patient privilege exists, since before such a finding, this Court must conclude that there did exist a true doctor-patient relationship. Here, the complainant was ordered by the court to submit to the doctor’s examination, with information thus obtained to be used by the authorities in the disposition of the complainant.”
That same reasoning applies to this case and compels us to reach the same result. Defendant’s reliance on MCLA 338.1018; MSA 14.677(18) is misplaced.
Defendant bases his public policy argument for excluding Mr. Sokolov’s testimony upon an analogy between a psychological evaluation undertaken for the benefit of the juvenile court and a competency hearing in circuit court pursuant to MCLA 767.27a; MSA 28.966(11). Defendant’s analogy is of no help to him here. MCLA 767.27a(4); MSA 28.966(H)(4) provides:
"Upon receipt of the diagnostic report and recommendations the sheriff shall immediately return the defendant to the committing court and the court shall immediately hear and determine the issue of competence to stand trial. The diagnostic report and recommendations shall be admissible as evidence in the hearing, but not for any other purpose in the pending criminal proceedings. ” (Emphasis supplied.)
This section of the statute concerns itself only with the diagnostic report and recommendations made by the person who evaluates a defendant pursuant to this statute. It does not make any mention of the admissibility of actual testimony as to the sanity of the defendant at a later trial should the defendant put forth an insanity defense. But for some reason, in reliance upon that section of the statute, it has sometimes been assumed that the person performing the evaluation for purposes of determining competency to stand trial could not testify as to defendant’s sanity should the defendant interpose an insanity defense. See People v Martin, 386 Mich 407; 192 NW2d 215 (1971), People v Schneider, 39 Mich App 342; 197 NW2d 539 (1972). We do not believe such a view to be the product of well-reasoned analysis. Rather, we agree with Justice Levin who, concurring in People v Garland, 393 Mich 215, 221-222; 224 NW2d 45, 47 (1974), said:
"In Part I we address the contentions of the parties revolving around the previously quoted words of the Martin opinion and conclude that this statute, limiting the use of diagnostic report and recommendations, does not — contrary to the declaration in Martin — prohibit a psychiatrist who conducts a competency examination from testifying at trial.”
Justices T. G. Kavanagh and J. W. Fitzgerald concurred with Justice Levin, and the Court was unanimous in affirming the defendant’s conviction, the other justices deciding they need not face the subject issue, in order to affirm.
Even assuming the validity of such pre- Garland decisions as Martin and Schneider as they construe MCLA 767.27a(4); MSA 28.966(H)(4), defendant’s analogy is still of no help to him. This is for the simple reason that there is no juvenile code counterpart to MCLA 767.27a(4); MSA 28.966(H)(4). In the absence of such analogous statute, we see no reason why a psychologist who interviews a defendant in order to aid the juvenile court in determination of the question of waiver to circuit court cannot testify as to that defendant’s sanity, should the defendant later interpose an insanity defense.
Defendant next asserts that it was error for the prosecution’s other rebuttal witness to be allowed to state what he believed to be the Michigan test for a defense of insanity. Before the expert witness in question was allowed to answer, defense counsel objected:
"I’m going to object, your Honor. I don’t believe this witness can testify — that he can state what the test for insanity is. It has to come from the court. I think. Mr. Roether can put questions to him phrased around the Michigan test for insanity. He’s not a lawyer and only the court can tell the jury what the law or test is for insanity. I object, it calls for legal conclusions and it is improper.”
The objection was overruled and the witness was allowed to testify, whereupon he proceeded to give a substantially accurate description of the Michigan test for insanity. Defendant did not claim that the witness misstated the test. Nor did defendant argue that the witness was testifying to a legal conclusion, and the witness never did so testify. Defendant only objected to the statement of the test by the witness. We hold that if it was indeed error for the psychiatrist, who had been qualified as an expert in forensic psychiatry, to state the Michigan test for insanity, that such error was harmless. The jury in this case heard the test for insanity from several different sources. In the process of conducting voir dire the trial court stated the "Michigan test for insanity” twice and asked if any juror would be unable to apply this test. In his opening statement, defense counsel stated:
"Now, let me stop right here. At the beginning of the case, because I’m allowed during my opening statement to give you my theory, of the law, what are we talking about when we’re talking about criminal insanity? Michigan recognizes — and I’m giving you my theory, the court will instruct you what the law is — but basically Michigan recognizes a two-pronged test, they are the alternative, not both, you have to find one or the other. The first one is at the time of the offense did the defendant know the difference between right and wrong. Now, if you find that he did know the difference between right and wrong and the answer is 'yes,’ then, of course, he’s not insane. No one is insane under that definition. What you must go to then next is that if he did know the difference between right and wrong, did the defendant have the power, the will power to resist doing the act with which he is charged. Now, that is an alternative test, ladies and gentlemen of the jury and it is this second test upon which the defendant basically relies to substantiate his defense of insanity.”
Defense counsel also said of one of his experts that: "Dr. Tanay will testify that on or about March 31, 1970, in his expert medical opinion, Keith Plummer was legally insane(Emphasis supplied.) Later in his opening argument he again stated that his expert witness would testify that defendant "was legally insane and therefore not criminally responsible for any action whatsoever”. In his closing argument, defense counsel stated:
"Now, I’m saying to you that Drs. Tanay and Kafi stated that on March 31, 1970 the day that Keith Plummer is charged by the people that he committed these crimes, that in their expert psychiatric opinion he was unable to help himself he was unable to resist doing what he did, and I’m saying to you that I believe his Honor will tell you that that is a test for legal insanity and if you have so much as a reasonable doubt that that condition was present in Keith Plummer on March 31, 1970 the law will not let you find him guilty and you have sworn to follow the law.” (Emphasis supplied.)
The jury was instructed that they were not bound by the opinion of any one or all of the witnesses but were free to reject part or all of the testimony. Finally, the trial court gave extensive attention to the test for insanity in his instructions. Counsel for both the people and the defendant told the jury to take the law on insanity from the trial court and to pay special attention to it.
In light of the foregoing we are able to say with certainty that the admission of the objected-to testimony was completely harmless to the defendant in this case. The test was stated several times by defense counsel during the course of the trial. The jury was properly instructed. The balance of the testimony given by the prosecution’s witness was very harmful to defendant, but it was properly admissible. The only question before us is whether the objected-to testimony was erroneously admitted and if so whether it was reversible error. We have decided that even if erroneously admitted, the error was harmless. MCLA 769.26; MSA 28.1096.
We have examined defendant’s other allegations of error and found them to be without merit.
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] |
J. H. Gillis, P. J.
A jury convicted defendant of assault with intent to commit rape. MCLA 750.85; MSA 28.280. He was sentenced to 6-1/2 to 10 years in prison, and appeals as of right.
At trial, the complainant testified as follows: She and her husband owned a small store. Defendant had visited the store a few times prior to October 12, 1973. On that day he came into the store and ascertained that complainant was the only other person present. He forced her into a back room, drew a pistol, stated that he intended to rape her, and set about to do so. At that point, complainant’s husband returned. Defendant was frightened and fled before completing the rape.
Defendant testified that he was acquainted with both complainant and her husband. He stated that he had bought a tape deck from them a few days prior to October 12th. Dissatisfied with the device, he attempted to speak with the couple about it on different occasions. Defendant testified that he was in the store on October 12th to voice his complaint about the tape deck. He denied that he attempted any assault of the complainant, but rather claimed that complainant’s husband and another man assaulted him because of his persistence in the tape deck matter.
When defendant testified on direct examination at the trial, he related his version of the incident to the jury. He stated that complainant’s husband and another man assaulted him. He did not, however, claim that he had told the police of this incident. In fact, no mention of any discussion with the police was made by defendant on direct examination. On cross-examination, the prosecutor asked defendant if he had told the police about the alleged assault made on him by the two men. Defendant responded by saying that he had told the police the same story he had just related to the court. The two police officers were then recalled to the witness stand by the prosecutor. When asked what defendant had told them upon his arrest, they stated that he had remained silent. This cross-examination of defendant was improper.
In a criminal trial, if on direct examination, a defendant makes no reference to any utterance or nonutterance made to police officers and if, prior to defendant testifying, there has been no testimony by any other witness in reference to utterances made by defendant to police officers, then the prosecutor may not, in any manner, ask defendant if he made any statements to the officers. People v Williams, 26 Mich App 218; 182 NW2d 347 (1970). The rationale underlying this rule was carefully summarized by the Williams panel:
"In summary, on cross-examination of a defendant in a criminal case, he may be questioned concerning (1) any statement that, during his direct examination, he claims he made, and (2) any statement any other witness, during the people’s case in chief, claims he made. He may not, however, be asked on cross-examination whether, when confronted with the charge, he made a statement not adduced during the people’s case or referred to during his direct examination because to allow such a question violates either (1) the defendant’s right to have the people introduce during their case in chief all statements claimed to have been made by him before he is put to his proofs, or (2) permits bringing to the jury’s attention evidence that the defendant did not make a statement, which would be an impermissible reflection on his exercise of his right to remain silent.” Williams, supra, 226, 227, fn 10; 182 NW2d at 352, fn 10.
In the case at bar, the cross-examination of defendant violated the Williams holding. Under the circumstances of this case, we do not feel that this violation compels reversal.
It must first be noted that in the instant case defense counsel did not object to the prosecutor’s cross-examination. In this situation, this Court reverses only to prevent a miscarriage of justice. People v Smith, 16 Mich App 198; 167 NW2d 832 (1969). No such miscarriage occurred here. Unlike the situation in Williams, supra, the prosecutor made no reference to defendant’s testimony during his closing argument. A review of the record convinces us that this testimony did not contribute to defendant’s conviction. Accord, People v Fry, 17 Mich App 229; 169 NW2d 168 (1969).
Defendant next complains that his credibility was improperly impeached during trial. Michigan law recognizes a trial judge may, in his discretion, allow impeachment of defendant’s credibility through questioning concerning prior felony convictions. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). At the time that defendant was tried, impeachment by use of misdemeanor convictions was allowed. People v Renno, 392 Mich 45; 219 NW2d 422 (1974), now prohibits impeachment by misdemeanor convictions. However, Renno, su pra, has been held to be retroactive only under certain circumstances that are not applicable to the case at bar. People v Sanders, 394 Mich 439; 231 NW2d 639 (1975). Thus, the impeachment of defendant by use of a misdemeanor was proper here. The prosecutor also inadvertently referred to an arrest of defendant which did not result in a conviction. Under the circumstances of this case, no reversal is required by this mistake. People v Peay, 37 Mich App 414; 195 NW2d 75 (1971), People v Roberson, 55 Mich App 413; 222 NW2d 761 (1974), cf. People v Sanders, supra. No reversible error occurred in the impeachment of defendant.
Defendant also contends that the trial judge improperly allowed into evidence hearsay testimony of a police officer concerning the complaining witness’ identification of defendant at a lineup. Accepting as correct defendant’s contention that the testimony was inadmissible under People v Poe, 388 Mich 611; 202 NW2d 320 (1972), we nonetheless hold this error harmless. Identification of defendant was simply not an issue in this case. Defendant admitted prior acquaintance with the victim and her husband. He admitted frequenting their store "nine or ten times” prior to the attempted rape. He admitted being in the store on the day in question. He denied the attempted rape. Because defendant’s identity was not at issue, any error under Poe, supra, was harmless.' Roberson, supra.
Defendant next argues that Michigan’s notice of alibi statute, MCLA 768.21; MSA 28.1044 is unconstitutional. This issue has not been properly preserved for appellate review. People v Phelps, 57 Mich App 300; 225 NW2d 738 (1975).
No other allegation of error merits discussion.
Affirmed.
Two police officers arrested defendant a short distance from the store almost immediately after the alleged attempted rape occurred.
When the officers first testified, no mention was made of any discussion they had with defendant. | [
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] |
M. F. Cavanagh, J.
Defendant is charged with prison escape, MCLA 750.349; MSA 28.581, and kidnapping, MCLA 750.193; MSA 28.390. By leave defendant brings this interlocutory appeal from the denial of several pretrial defense motions.
Defendant argues that he was denied his right to a speedy trial because of a delay of over 20 months between arrest and trial. Four factors are considered in the review of a speedy trial claim: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972), People v Hall, 391 Mich 175; 215 NW2d 166 (1974). Twenty months did indeed elapse between defendant’s arrest in March, 1973, and the last trial date set prior to this appeal. Most of this delay, however, is attributable to defendant. Only 13 months passed between arrest and the first of three continuances granted at defense counsel’s request. Of those 13 months, nine were consumed with competency examinations and proceedings which resulted when the competency issue was raised by defense counsel. After an initial forensic evaluation, defendant was adjudged incompetent. Several months later, after a subsequent forensic evaluation and recommendation, defendant was adjudged competent. Criminal proceedings were then resumed. Without question defendant sufficiently asserted his right here. However, there is no substantial evidence of prejudice to the defendant. Defendant was in prison at the time of the alleged offenses and would have remained there in any case during the claimed delay. A review and balancing of the four factors leads this Court to find that defendant in this case was not denied his constitutional right to a speedy trial.
It is next contended by the defendant that the trial court’s failure to bifurcate the trial was error. Some jurisdictions recognize that where an insanity defense is alleged together with a defense on the merits, the trial should be bifurcated, because substantial prejudice may result from the simultaneous trial on a plea of insanity and not guilty.
We hold this determination to be within the trial court’s sound discretion. In other states it has been said that the trial court should consider two factors in such a decision: (1) whether defendant has a meritorious defense, and (2) whether there is a substantial claim of insanity related to the incident. Considering the probable expenditure of great additional time and resources, defendant has not shown that such an unusual step is necessary or warranted in this case. See Sexton v State, 319 NE2d 829 (Ind, 1974), Garrett v State, 320 A2d 745 (Del, 1974), State v Helms, 284 NC 508; 201 SE2d 850 (1974).
Defendant further claims error in the trial court’s refusal to sever the two offenses for separate trials. The prison escape is alleged to have occurred on March 24, 1973, and the kidnapping on March 26. The trial court concluded that the escape and kidnap were part of the same transaction and that, therefore, People v White, 390 Mich 245; 212 NW2d 222 (1973), required that they be tried at one time. However, the escape and the kidnapping alleged here are not part of a single transaction for double jeopardy purposes. People v White, supra, does not require that they be tried at the same time. See People v Charles Johnson, 62 Mich App 240; 233 NW2d 246 (1975). An accused has the right not to be tried at one time for two separate and distinct offenses arising out of substantially different transactions. Cf. People v Tobey, 60 Mich App 420; 231 NW2d 403 (1975), People v Ferguson, 60 Mich App 302; 230 NW2d 406 (1975).
Defendant’s remaining allegations of error are without merit. Accordingly, we remand this cause for separate trials.
Remanded. | [
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Reid, J.
Plaintiff Carre W. Morrison sues to recover damages for injuries she received when she was struck by defendant’s automobile as she was walking across Grand River avenue in the city of Detroit at the intersection of Prevost avenue. Plaintiff Colin D. Morrison, husband of Carre W. Morrison, sues for damages sustained by him by reason of the injuries to his wife. Verdict in each case was in favor of plaintiff. There were special questions submitted to and answered by the jury. Defendant appeals. The two eases were consolidated for trial and again on appeal.
Grand River avenue is a main-traveled thoroughfare running from downtown Detroit to Lansing and Grand Rapids. At the intersection in question it runs in a northwesterly-southeasterly direction, 76 feet wide between curbs. Double streetcar tracks take about 14% feet of the center, and the pavement between each curb and the nearest rail is 30 feet, 9 inches wide. In the testimony the northwesterly direction of Grand River is called west and the southeasterly direction, conversely, is called east..
On April 8, 1943, plaintiff Carre W. Morrison, hereinafter referred to as plaintiff, left her employment in a downtown Detroit bank and boarded a streetcar on her way to her home, which was near Grand River and Prevost avenues. She left the car a few blocks before reaching Prevost and did some shopping. She then walked to the northwest corner of Grand River and Prevost avenues, where she intended to cross Grand River avenue on foot from the northwest to the southwest corner of the intersection. She selected that crossing because it is a better place to cross than any other street along there and the streetcars stop there. It was then about 5 p. m., still daylight; the pavement was dry and weather normal. Plaintiff carried her purse, which was not large, in her right hand, and in her left hand below the level of her shoulder she carried two light packages.
When plaintiff got to the northwest corner of the intersection, she waited for westbound Grand River traffic to clear. Having noted that the traffic was clear going westerly, she walked south to the streetcar tracks. When she got to the farthest track to the south, she saw the car driven by defendant, mid way between tbe streetcar track and tbe curb, coming toward her in the block to the west between Pr'evost and Rutherford streets. The defendant’s car was about one-third into the block, in other words, about 200 feet from plaintiff, when plaintiff was at the southerly track, at which point plaintiff hesitated, took in the situation, did not stop, and had plenty of time to cross, according to her judgment. The defendant at no time slackened the speed of her car and did not see plaintiff leave the streetcar track.
Defendant testified that just before the accident she was looking around to her right for a period of time described by her as a breath or two. After the breath or two, defendant looked ahead and for the first time saw plaintiff, who was then directly in front of her car about 30 feet away. Defendant testified she became frozen stiff with excitement, did not swerve her car to the right or left, did not slacken her speed nor apply her brakes, and did not blow her horn. Defendant’s car struck plaintiff at a point about 10 feet from the southerly curb. The right outer portion of the right front fender of defendant’s car struck plaintiff on the rear portion of the right hip.
The ordinance of the city of Detroit received in evidence is as follows:
“When traffic control signals are not in place or not in operation the driver of a vehicle shall yield the right of way slowing down' or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. ’ ’
The question as to the rate of speed of the defendant’s car was not submitted to the jury because plaintiff’s counsel admitted that the defendant’s car did not at any time travel at a speed greater than 25 miles per hour. Questions 2, 3 and 4 are as follows:
(2) Did the defendant’s automobile travel at the same speed from the time it was first seen by the plaintiff until the collision occurred?
Answer of the jury: Yes.
(3) Did the defendant’s automobile travel in the same lane of traffic on Grand Eiver avenue from the time it was first observed by the plaintiff until the collision occurred?
Answer of the jury: Yes.
(4) Did the impact occur in the second traffic lane from the south curb of Grand Eiver avenue ?
Answer of the jury: Yes.
While walking from the south rail to the point of collision, plaintiff walked rapidly as people do when they know traffic is coming; she continued to observe the approach of the car and considered she was safe. The distance from her place at the south rail, where she says she hesitated but did not stop, to the southerly edge of the second traffic lane, in which lane the jury’s answer to question 4 says the accident occurred, was approximately 19 feet. When she was at the southerly streetcar rail, defendant’s car was estimated by her to be two-thirds of a block away, about 200 feet. The jury could have considered that her walk was at the rate of three miles per hour and that the automobile was approaching her 81/3 times as fast as she was walking, and therefore, while she was walking 19 feet the car would travel about 158 feet. This would leave her about 42 feet clearance. We cannot say therefore as a matter of law that she was contributorily negligent in concluding that she could safely walk to a point where she would be beyond the path of the oncoming automobile of defendant, and in proceeding so to do.
After plaintiff had arrived at a point where she was within 4 or 5 feet of entirely clearing the path of the oncoming car, it would evidently be necessary for her to look over her right shoulder to continue her observation of the car. Her vision past her shoulder was clear and her parcels did not interfere with her line of vision. At the last time that she looked over her shoulder, very shortly before the collision, she concluded that she was already safe. Evidently it was then necessary for her to further note traffic conditions ahead of her, besides noting the possibility of the approach of other cars in the farthest lane.
While it is true that the defendant claimed in an early part of her testimony that she saw plaintiff “dive” from a place of safety at the streetcar tracks into a position in front of her car, this testimony is contradicted by testimony given by witness Silver-man, whose car followed defendant’s car, that she told him she was looking in her rear-view mirror, in which case she could not be noting the actions of plaintiff. Defendant’s testimony is also contradicted by her own later testimony that just before the accident she heard a sound like a police whistle, glanced to the right for the space of a breath or two, and that when she again looked ahead there was the plaintiff, whom she then saw for the first time, ab.out 30 feet from her in front of her car. No witness other than defendant testified that plaintiff “dove” in front of defendant’s car.
The testimony reveals the extraordinary nature of the accident in question, namely, that a driver having a perfect opportunity to see plaintiff while plaintiff was traveling 19 feet in front of her across the path of her car, and being under the command of the ordinance required to give the pedestrian the right of way, with no traffic to her right or left, did not swerve her car to any appreciable degree, did not sound her horn, did not slacken her speed, and ran the pedestrian down. It was for the jury to say whether an ordinarily prudent person in plaintiff’s situation would have acted on the assumption that defendant would obey the ordinance and not be guilty of the very extraordinary negligence just recited.
It cannot be said as a matter of law that plaintiff’s failure to jump out of the way of the car at the last moment is necessarily to be considered contributory negligence under all the circumstances of this case. It was for the jury to say whether an ordinarily prudent person would have done as plaintiff did in the instant case.
Defendant relies on the case of Haley v. Grosse Ile Rapid Transit Co., 290 Mich. 373. In that case plaintiff’s decedent crossed on foot in the middle of a block about 150 feet east of an intersection, while it was getting dark, and it was testified that he came out into the street when the bus was 150 feet away from him, traveling 35 to 40 miles per hour. In that case we say, p. 377:
“A moment’s hesitation before reaching the car track, or one backward step, would have avoided the accident entirely.”
It is evident that in that case the decedent could not have formed a reasonable judgment that he was safe and must have ignored the approaching bus, and could by no possibility have safely crossed in front of the bus. The circumstances of that case differentiate it from the instant case.
We have in mind Moldenhauer v. Smith, 311 Mich. 265, in which case the plaintiff left a place of safety in the middle of the street at midnight, misjudged the nearness of the automobile, started to travel 26 feet to cross the path in front of the car at a time when she was too near to permit the driver to stop his car, which was about 75 or 92 feet from her when she started to cross the farther half of the street. It is well known that in observing an approaching car after nightfall, a judgment as to the proximity or speed of the car, based on observation of headlights or otherwise, may prove to be unreliable and inaccurate. Plaintiff’s claim in that case was in part based on a claimed unanticipated and excessive rate of speed. That case cannot be said to afford a standard for determining claimed contributory negligence of the plaintiff in the instant case.
In the cited case of Beers v. Arnot, 308 Mich. 604, plaintiff Beers made no accurate estimate of the proximity of the car and fell so far short of assuring himself of safety that although at the last he made an effort to leap out of the way of the car, he could not avoid the collision. The circumstances of that case differentiate it from the instant case, there being no ordinance requiring Arnot to yield the right of way to Beers. Plaintiff under the circumstances of that case had no right in entering upon the path of the car to assume that the driver of that car would or could avoid the collision. The facts in that Case indicate that it was not in the power of Arnot, the driver, to avoid the collision at any time after Beers’ action showed his intent to cross in front of the car.
The trial judge relied on Moore v. Noorthoek, 280 Mich. 431, in which we say at p. 437:
“In Guina v. Harrod, 275 Mich. 393, this court said:
“ ‘Pedestrians have the right to cross the street at street crossings even on a through street. They are not required to anticipate that drivers will violate ordinances, statutes or rules of safety. ’
“In Petersen v. Lundin, 236 Mich. 590, we said:
“ ‘There is no rule of law requiring a pedestrian to rivet his eyes on an approaching automobile. He should look hut if, having looked, it appears safe to cross, he may proceed, and his care is not to he determined solely hy the fact he was struck and was not at that second looking at the automobile.’
“In the case of Nickels v. Hallen, 247 Mich. 291, the plaintiff was crossing Main street at an intersection in the nighttime and was struck by defendant’s automobile. The court said:
“ ‘The intersection was well lighted and no traffic interfered with view of pedestrian or car driver, and yet plaintiff claimed he looked before and while crossing, and did not see the car until it struck him, and the driver claimed he did not see plaintiff until the car was about two feet from him. When plaintiff left the curb to cross the street he saw a car coming, 100 feet, or more, away. That was, undoubtedly, the car which struck him. Whether plaintiff exercised reasonable care under the particular circumstances described hy him was a question of fact for the jury and not of law for the court, and the trial judge was right in so holding.’ ”
The question of plaintiff’s contributory negligence was properly submitted to the jury.
Judgment for plaintiff in each case is affirmed. Costs in each case in favor of plaintiff.
Bushnell and Starr, JJ., concurred with Reid, J. | [
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Bushnell, J.
This is an appeal by defendants Victor and Elizabeth Bluesavage from a $600 judgment in favor of plaintiff Joseph Schiesel in a case tried without a jury. Schiesel claims that he made an oral agreement with the defendants whereby he would furnish cattle and sheep to be pastured and fed by them, and that the sale profits thereof were to be equally divided.
Schiesel purchased a number of sheep and 93 head of cattle, which were taken to the Bluesavage farm and pastured thereon. When the pasturage became inadequate and the sheep were sold, plaintiff purchased hay to feed the cattle. Later when Schiesel insisted upon performance of the agreement, its validity was denied by Elizabeth. She demanded pay for the pasturage, and a settlement was reached. At the time the settlement was made, all the cattle, except three, had been removed from the Bluesavage farm to the nearby Grlen Boston farm. Some of the cattle had died, some were privately sold, and others were disposed of at auction.
Schiesel testified that some of his cattle were missing and that he afterwards discovered 14 of them on the Bluesavage farm. Elizabeth Bluesavage denied that any of the cattle on her place belonged to Schiesel. The record contains testimony of two disinterested parties who saw cattle being driven from the direction of the Boston farm to the Bluesavage farm by Victor and his brother, Tony. Victor admitted that he had conferred with the prosecuting attorney about collecting some money claimed to be due him from Schiesel and discussed the possibility of taking some of the cattle to protect his claim. From this conflicting testimony the circuit judge found that 10 cows, worth $55 each, had been taken from the Boston farm to the Blue- savage farm by Victor and Elizabeth Blnesavage’s hired man, Tony. He also stated that he was satisfied that one bull calf, valued at $50, had been kept1 on the Bluesavage farm when it should have been turned over to Schiesel.
The controlling question presented is that the judgment is against the great weight and preponderance of the evidence.
We have repeatedly stated that we do not reverse a judgment entered upon the determination reached by a trial judge sitting without a jury unless the evidence clearly preponderates in the opposite direction.
The judgment is affirmed, with costs to appellee.
Butzel, C. J., and Carr, Sharpe, Boyles, Beid, North, and Starr, JJ., concurred. | [
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Sharpe, J.
This is a street intersection automobile collision case and involves two law suits. The action by Elizabeth Major is for pain and suffering, inconvenience and ill health. The action by Warren P. Major is for damage to his automobile, loss of wife’s services and hospital and medical expenses incurred in caring for his wife, Elizabeth Major. The cases were consolidated for trial. The facts were submitted to a jury who' returned a verdict of no cause of action in each case.
It is the claim of Warren P. Major that on March 20, 1941, at about the hour of 2:25 p.m., he was driving his automobile east on Hussar street in the city of Detroit; that the day was clear and the pavement dry; that he was accompanied by his wife, Elizabeth Major; that just before entering Military avenue he came to a stop and looked for traffic from the north and east and then looked south and saw a car approaching 415 feet away; that he started his car in low gear and when he got to the center line of Military avenue, he noticed defendant’s car 60 feet away and traveling north on Military avenue; that he then speeded up his ear until the front wheels of his car were two or three feet from the east curb of Military avenue when the car driven by defendant E. D. Peters collided with plaintiff’s car; that as a result of this collision plaintiff’s wife was severely injured and plaintiff’s car was damaged.
The record also shows that this intersection is not regulated by either traffic lights or stop signs; that Military avenue from curb to curb is 38 feet; that when plaintiff stopped his car before crossing Military avenue the front wheels of his car were 17 feet west of the west curb of Military avenue and that in order to get to a place of safety he would have to travel the 17 feet to the curb plus 38 feet, the width of Military avenue, plus the' length of his ear.
The trial court submitted the cause to the jury and gave the following instruction on the question of the contributory negligence of plaintiff:
“Now, whether or not the plaintiff was guilty of contributory negligence, members of the jury, in determining this question you should use as a standard the ordinary prudence of a person of the age, intelligence, and experience of the plaintiff Warren P. Major under similar circumstances; if the plaintiff did not conduct himself as an ordinarily prudent person of his age, experience and intelligence would have done under similar circumstances, he would be guilty of contributory negligence and could not recover, even though the defendants were guilty of negligence. ’ ’
For the purpose of this opinion we shall assume that defendant was guilty of negligence. The record also shows that when plaintiff was at the middle of Military avenue he was traveling at a speed of 10 to -11 miles per hour and at such speed could stop his car in a distance of 3 or 4 feet. In our opinion plaintiff was not harmed by the actions of the trial court in submitting the issue of plaintiff’s contributory negligence to the jury for their‘deliberation. If a question of fact was involved then the verdict of the jury is final as there is substantial evidence to support such a verdict. We do not find any occasion to pass upon the claim that plaintiff was guilty of contributory negligence as a matter of law.
It is next urged that the trial court was in error in failing to instruct the jury as to the law governing the rights and duties of motorists in entering an intersection; in giving the instruction above quoted and in failing to define the duties and standard of care owed by defendants, while emphasizing the duties with which plaintiffs were to be charged. We note that there were no requests to charge presented to the trial court by plaintiffs and at the conclusion of the charge both attorneys expressed their satisfaction with the charge as given. Under such circumstances the rule is as was announced in Ogland v. Detroit Edison Co., 261 Mich. 583, where we said:
“Defendant complains because the court instructed the jury that the question of contributory negligence was not in the case, as there was no evidence of contributory negligence. At no time during the trial did defendant claim there was a question of fact on the subject. Its only claim was that plaintiff was guilty of contributory negligence as a matter of law. It presented no request to charge. When the court had completed his charge, he asked whether there were further requests; defendant suggested one, which was given, and no intimation was made that contributory negligence was an issue for the jury. Under familiar rules, as defendant did not request a charge, there was no error in this respect.”
See, also, Anderson v. Kearly, 312 Mich. 566.
However, the above rule does not excuse the giving of erroneous instructions. The instruction complained of varies from the standard of “what the ordinarily prudent person would do under like circumstances.” In our opinion the instructions as given did not mislead the jury on the issue of whether plaintiff was guilty of contributory negligence in crossing the street.
We are also of the opinion that the record does not sustain the claim that the judgment for defendants was contrary to the weight of the evidence. The judgment of no cause of action is affirmed as to plaintiff Warren P. Major, with costs to defendants.
The trial court gave the following instruction upon the subject of imputed negligence:
“If you should determine from all the testimony in this record that Warren P. Major was to blame for the happening of the accident, that he was guilty of contributory negligence, that negligence of his can be imputed to his wife. In other words, Elizabeth Major cannot recover in this action if you, in your deliberations, should come to the conclusion that her husband, Warren P. Major, was guilty of contributory negligence or that he was to blame for the happening of the accident, because that is the law of this State, that his negligence can be imputed to his wife.”
The instruction, when given, was correct, but recently our court has reversed its policy relating to imputed negligence. See Bricker v. Green, 313 Mich. 218 (163 A. L. R. 697).
In view of such fact the contributory negligence of Elizabeth Major now becomes an issue to be litigated. The cause is reversed and a new trial granted to Elizabeth Major in accordance with the decision of Bricker v. Green, supra. Costs as to Elizabeth Major will abide result of new trial.
Btjtzel, C. J., and Carr, Bushnell, Boyles, Reid, North, and Starr, JJ., concurred. | [
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Carr, J.
Defendant Kanar was tried in circuit court before a jury on an information containing two counts, each charging conspiracy to obstruct justice. The first count alleged that on January 17, 1939, and at other times between said date and August 21, 1941, defendant and other named defendants conspired together and with persons unknown, wilfully and corruptly, to assist and enable the maintenance and operation of houses of ill fame and gambling establishments in the city of Ham tramck in violation of the laws of the State of Michigan and the ordinances of the city. The second count incorporated the material portions of the first, further alleging the unlawful purpose on the part of the alleged conspirators to procure the wilful and corrupt failure and neglect on the part of defendant Kanar and other named defendants, who were police officers of the city, to perform their respective official duties in the enforcement of the criminal laws of the State and of the city in relation to prostitution and gambling. The second count further alleged that as a result of said conspiracy certain houses of ill fame and gambling establishments were operated within the city; and that gifts and gratuities were presented said public officers, and accepted by them, by way of consideration for the unlawful agreement.
It appears from the record that one of the defendants named in the information, Isadore Green, pleaded guilty and his plea was accepted. The case was dismissed as to certain other defendants, with the result that defendant Kanar was tried alone. At the conclusion of the proofs, a motion for directed verdict in his favor was made and denied. Thereupon a motion was submitted to require the prosecutor to elect on which count of the information he would proceed, and this motion was also denied. The case was submitted to the jury on both counts and a verdict of guilty returned on each. Sentence was pronounced in accordance with the verdict.
On behalf of defendant a motion for a new trial was submitted to the trial court. Said motion was denied but the court on its own motion vacated the sentence and set aside the verdict of guilty on the second count on the ground that the evidence was insufficient to warrant submitting to the jury the question of defendant’s guilt under said count. Sentence was then imposed on the first count and defendant has appealed.
On behalf of appellant it is contended that conviction on the first count should be set aside, and defendant discharged, on the ground that the competent evidence of guilt on the trial was insufficient to warrant submitting the case to the jury and, consequently, insufficient to support a verdict of guilty. In view of the uncontradicted testimony of the witnesses for the prosecution any claim that a conspiracy, as charged in the first count, was not shown, would be clearly untenable. It is insisted, however, that the prosecution failed to establish, by the requisite degree of proof, that defendant Kanar was a party to the conspiracy, or that he took any part whatsoever in furthering its purposes.
On behalf of the people it is' argued that the evidence offered on the trial clearly established appellant’s connection with and participation in the conspiracy, that the facts and circumstances disclosed negatived any hypothesis of innocence on his part, and that his acts, statements and conduct generally, interpreted in the light of his relations with certain other alleged conspirators, named as defendants in the information, and whose guilt is, on the record, not open to question, established appellant’s connection with the offense of which he. has been convicted.
Particular emphasis is placed on evidence tending to show close association between appellant and Michael Figurski, who was, the proofs indicate, the central figure in the making and carrying out of the conspiracy charged. Figurski was not an officer of the city but the record indicates that he had some measure of political influence, sufficient at least to impress other conspirators with whom he dealt. It is the theory of the people that defendant Kanar be came connected with the conspiracy through his relations with Figurski and that his participation was carried on quite largely through Figurski.
Appellant was appointed mayor of Hamtramck in January of 1939 to fill a vacancy then existing in that office. Subsequently, he was elected. It appears from the testimony of Figurski that prior to appellant’s appointment he (appellant) sought the support of Figurski, whom he knew and who had been a contributor to his political campaigns. We quote from Figurski’s testimony:
“I recall the early part of January, 1939, when Dr. Tenerowicz had left the city and gone to Washington to take his seat in the United States Con'gress. At that time, while Dr. Tenerowicz was in Washington, I had a conversation with Walter Kanar about Walter’s going to Washington. I can’t tell you the dates, but it was somewhere in that time. I don’t remember where this discussion took place. We were at a bathhouse on Oakland avenue, and I guess that is where it took place. He told me if there was going to be any money made, well, it would be just as much convenient for him as it would be for me. I gave him either $300 or $400 at that time. After he got this money, he went to Washington. That is what he told me.”
The witness further testified to conversations between himself and defendant Kanar with reference to the appointment of a chief of police and also with reference to permitting certain gambling operations. Such testimony indicates that defendant knew that efforts were being made to permit various illegal businesses of the character referred to in the information to operate within the city of Hamtramck. Along this line Isadore Green, who was one of the defendants in the case and who pleaded guilty, testified that he talked with defendant on two or three occasions, insisting that he should be allowed to operate a gambling establishment because he had supported defendant in the election, and was finally told by defendant to see Figurski. The witness further testified that he went to Figurski twice and on the second occasion was told that he (Figurski) had orders to allow Green to operate, which Green then proceeded to do without interference by police officers.
It is in evidence that on April 1, 1939, certain houses of ill fame and gambling establishments were permitted to open. About that time Figurski collected $3,000 from Thomas Bradley and Elik Gell, both of whom are named as defendants in the information. With reference to such facts Figurski testified:
“I went and told Kanar I had this money. I told him I promoted this money and he asked me how much of that money I thought I should get. Well, I thought — I left that to him, so he offered me $200, and I told him that $200 wasn’t quite enough for me, I thought I should get more, and we talked back and forth, and then he finally agreed I should take $400. We kept talking back and forth, and he says — well, he wanted me to take $200, >and then finally he agreed with me on $400. Before that, I wouldn’t take $200, and I told him I thought I should get more. When I said I wanted more, he mentioned the name of Alex Gell; he said he could get Alex Gell to do it for nothing'. I didn’t say anything. We just argued back and forth, and then he agreed that I could keep $400.
“Q. So you kept $400 and there were $2,600 —
“A. When he says I could keep the $400, then he asked me where I got the money. I told him that I had the $1,000 from Tom Bradley and $2,000 from Alex Gell, and when I told him that, he refused to take the money.”
Figurski further testified that he gave the money in question to Henry Kanar, defendant’s brother. The testimony above quoted indicates that defendant Kanar raised no objection when advised by Figurski that the latter had “promoted” the sum of $3,000. It is a fair inference, also, that Figurski took the money to defendant for the purpose of delivering most of it to him, after deducting what he considered a reasonable amount for himself. It is significant that the discussion between these two men had reference to the amount that Figurski was to keep; it was not until defendant was advised that Bradley and Bell had paid the money that he gave any indication that he would not accept it.
Under the first count of the information whether he actually received the money or directed its disposition is not of controlling importance. Rather, the query is, whether he knowingly and wilfully participated in the conspiracy charged.
The inferences to be drawn from the testimony rested in the determination of the jury. A recital of other details of the evidence would tend merely to corroborate the existence of the conspiracy, and to explain the connection therewith of certain of the named defendants; the knowledge of defendant with reference to efforts that were being made to enable houses of ill fame and gambling establishments to operate; the relations between defendant Kanar and certain of the conspirators, whose guilt clearly appears, including police officers whose selection he approved; and the manner in which the conspiracy was actually carried out. Permissible inferences may be drawn from what was actually done, construed in the light of the manner of performance. It is settled by prior decisions of this court that a conspiracy may be shown by circumstantial evidence, and a finding that the offense has been committed may be based on legitimate inferences from established facts. People v. Robinson, 306 Mich. 167; People v. Roxborough, 307 Mich. 575; People v. Heidt, 312 Mich. 629. In the case at bar the competent evidence was sufficient to justify the trial court in submitting to the jury the question of the guilt of defendant Kanar on the charge set forth in the first count of the information. -The motion for directed verdict was, as to the first count, properly denied.
On the examination of Figurski the prosecutor questioned the witness with reference to his testimony given on the preliminary examination and, likewise, as to such testimony on ouster proceedings instituted against defendant Kanar. The statement was made and subsequently repeated, that the purpose was to refresh the recollection of the witness. In the main the witness denied present recollection of specific answers as read by the prosecutor and claimed, in substance, that he was telling the truth on the trial as well as on prior occasions.
Counsel in their briefs discuss at some length the question as to whether the previous testimony of Figurski can be regarded as substantive proof against defendant. On the record as made, however, we do not think that the question as to the competency of such testimony, regarded as substantive proof, is before us. The stenographer who took the testimony on the ouster proceeding was not called as a witness for the purpose of establishing its verity; nor was its verity shown in any other way; nor was the transcript, which the prosecutor was apparently using, offered in evidence, either as to the excerpts read by him, or in its entirety.
Commenting on a somewhat similar situation this court, in People v. Baxter, 245 Mich. 229, said: “Of course, the transcript could not be introduced in evidence until proven by the stenographer.” See, also, Job v. Railway Co., 245 Mich. 353; Misner v. Darling, 44 Mich. 438; People v. Carr, 64 Mich. 702.
Figurski’s testimony taken on the preliminary examination was not formally offered, nor was there any showing made as to who took and transcribed such testimony. There is nothing in the record indicating that it was brought into the record for any purpose except as stated, that is, to refresh the recollection of the witness. Such prior testimony was not offered as substantive proof. The question as to its competency for such purpose may not, thórefore, be determined in this case. As the above discussion of the testimony indicates, it has not been considered in determining the sufficiency of the evidence against defendant.
It is further claimed in appellant’s behalf that the trial court erred in the charge to the jury, in failing to apprise the jury fairly of the offense charged, and likewise, in failing to define correctly the law applicable to the charge set forth in the information. Attention is called to the following statement in the charge:
“If you are not satisfied beyond a reasonable doubt that "Walter Kanar in any way connected himself with the illegal operation of these businesses, it would be your duty to find him not guilty. But if you find that he failed in any way to carry on the duties of his office, as he was sworn to do when he was chosen as mayor of that city, that he failed in his duty, or that he had knowledge of the fact of these illegal operations and did not carry out his duty, and you should find that he permitted the operation of these various illegal establishments, it would be your duty to find him guilty on the first count, if you are not satisfied beyond a reasonable doubt that be is guilty of the second count, that is, of receiving compensation for permitting the operation of these various businesses.”
It is claimed, in1 substance, that the language quoted ignored the fact that defendant was charged with conspiracy to obstruct justice and instructed the jury to return a verdict of guilty if it was found that defendant had failed and neglected to perform the duties of his office. We think the charge quoted is open to the objection that it ignored the necessity of finding the existence of an unlawful combination or agreement constituting the offense of conspiracy. It cannot be said that the jury was not misled into confusing the essential elements of the conspiracy, 'as set forth in the information, with the alleged purposes thereof. It does not appear that the erroneous charge was subsequently corrected, although the following further statement was made:
“If, on the other hand, you should find that he did have knowledge of the fact, that he permitted them to operate and he conspired with others in permitting them to operate, then I say that it is your duty to find him guilty on the first count. If you should find that he received compensation for permitting these illegal establishments, you may find him guilty on both counts. ”
In connection with the latter part of the excerpt from the charge last quoted attention is called by appellant to a prior statement in the charge to the effect that the jury should find defendant guilty on the first count if they convicted him on the second. In view of such prior statement the omission to refer to the conspiracy in connection with the reference to the second count, in the language quoted, is also open to objection.
It should be noted, also, that the trial court, after calling the attention of the jury at the outset of his charge to the fact that the offense was conspiracy, and after defining that term, said further:
“This information is based on two counts, the first count in permitting the illegal operation of these businesses, and the second count permitting the illegal operation of these various businesses with the purpose of receiving compensation for the same. ’ ’
And further: —
“You may find him guilty on the first count, that is, permitting the illegal operation of these businesses that existed there in Hamtramek, or you may find him guilty on the second count, permitting the illegal operation of these businesses and receiving compensation for the same, or you may find him not guilty.”
Considering the charge in its entirety it does not appear that the erroneous instruction, which ignored the nature of the offense charged against defendant, was corrected or that the error was otherwise cured by further specific statements by the court. The rule is well settled in this State that if an erroneous instruction is given on a material matter and the error is not corrected or cured in the charge such error must be regarded as prejudicial. Thus, in People v. Dewitt, 233 Mich. 222, it was said' in applying this rule:
“If the jury followed the first instructions then defendant whs convicted under an erroneous understanding of the law. Where conflicting instructions are given, one erroneous and the other correct, we must presume that the jury followed the erroneous instruction. Silverstone v. London Assurance Corp., 176 Mich. 525; People v. Eggleston, 186 Mich. 510; In re Foerster’s Estate, 193 Mich. 440.”
In People v. Prinz, 148 Mich. 307, it was said:
“It is doubtless true that the trial judge should, even though no requests be preferred, cover the general features of the case, define the offense, and indicate what it is essential to prove to establish the off ense. ’ ’
See, also, People v. Place, 226 Mich. 212; People v. Immonen, 271 Mich. 384; People v. Tenerowicz, 266 Mich. 276, 296; People v. Visel, 275 Mich. 77; Herzberg v. Knight, 289 Mich. 29; 23 C. J. S. p. 741 et seq., and p. 940 et seq.; State v. Hilsinger, 167 Wash. 427 (9 Pac. [2d] 357); Croft v. State, 117 Fla. 832 (158 South. 454).
For the reasons stated we conclude that the charge of the trial court was erroneous and prejudicial to the rights of the defendant. This renders it unnecessary to consider other alleged errors, based on the submission of the second count, now eliminated from the case by the action of the trial court, and the denial of the motion to require the prosecutor to elect between counts.
The verdict and judgment are set aside and the case remanded for new trial.
Butzel, C. J., and Bushnell, Sharpe, Boyles, Reid, North, and Starr, JJ., concurred. | [
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] |
Boyles, J.
One Alice Moad May Sorter executed a will in 1939, naming appellants herein as executor and executrix. She died December 17, 1943; appellants filed the instrument in probate court with a petition for admission to probate; and the appellees herein filed notice of contest, claiming that the testatrix was mentally incompetent at the time the alleged will was made. After hearing, the probate judge entered an order admitting the will to probate, the contestants appealed and the case was heard in the circuit court by a jury, which found that the testatrix was mentally incompetent at the time the will was made. Judgment was entered accordingly, from which the proponents appeal.
Pour questions were originally relied upon by appellants for reversal, of which the first two complained of alleged errors in charging the jury. These have been expressly abandoned by appellants in their brief, and the two remaining questions relied upon for reversal relate to claimed error by the trial court in receiving the verdict of the jury.
The court had properly instructed the jury that the only question for its consideration was whether the testatrix was mentally competent to make a will at the time the alleged will was executed. When the jurors returned into court, having arrived at a verdict, the following took place:
“The Clerk: Members of the jury: Have you agreed upon a verdict? And if so, who will speak for you?
“The Foreman: The jury agrees that Alice Sorter was incompetent at the time of making the will.
“The Court: That she was mentally incompetent of making the will. Is that your verdict? Say yes or no.
“The Foreman: Yes.
“The Clerk: Members of the jury: Listen to your verdict as recorded. You have agreed that Alice Sorter was mentally incompetent of making the will?
“The Court: That is the will of June 14, 1939. Ask that, if that is the will?
“The Clerk: That is your verdict?
“The Foreman: Yes. * * *
“The Clerk: So say you, members of the jury?
“The Jury: Yes.”
Appellants claim that the court erred in questioning the jury after the foreman had first announced their verdict, and that the verdict as entered is ambiguous. The essence of appellants’ claim is that the foreman of the jury in first announcing the verdict did not state that the testatrix was “mentally” incompetent at the time of making the will, and that the “first” verdict was the only one the court could receive.
. In view of the instructions given to the jury, that the only question for their determination was whether the testatrix had sufficient mental capacity to make a will, it is obvious that the jury answered this sole issue of fact in the negative. Judgment was entered in proper language and form tó that effect. The jury rendered a verdict on the sole issue submitted to it, against the proponents and in favor of the contestants. The trial court, in a commendable exercise of caution, hesitated to accept the verdict as first stated by the foreman, without it having been announced that the testatrix was “mentally” incompetent. The verdict as originally announced by the foreman was not an uncommon phraseology, even when used by members of the legal profession. We note in the record that counsel for the appellants, in referring to the charge of the court after it was given and before the jury was sworn, said:
“Mr. Young: If your honor please, I believe it would be proper to instruct the jury that she is presumed to be competent.”
It is to be noted that counsel did not use the term ‘ ‘ mentally ’ ’ competent.
That this omission is no stranger in the law, where in the context it is used to refer to testamentary capacity, see O’Connor v. Madison, 98 Mich. 183; In re Johnson’s Estate, 286 Mich. 213; In re Rowling’s Estate, 291 Mich. 218; In re Getchell’s Estate, 295 Mich. 681; In re Vallender’s Estate, 310 Mich. 359.
In Schneider v. Teppert, 292 Mich. 675, after the foreman of the jury had announced the verdict, the circuit judge inquired of the jury at some length as to the meaning of their verdict. Thereafter a correct judgment was entered, and on appeal the defendants contended that the form of the verdict was improper and that no proper judgment was entered. In denying this contention the court said (p. 682):
“In entering judgment, the trial court did not exceed the authority granted by 3 Comp. Laws 1929,' §§ 14148, 14149 (Stat. Ann. §§27.842, 27.843).” (Statutes of amendments.)
In People v. Foote, 1 Doug. (Mich.) 102, plaintiff sued in replevin. The jury returned a verdict saying: “This jury find for the plaintiff.” The trial court refused to enter a judgment for the plaintiff, on the ground that the verdict did not, in form, award that the right to the property was in the plaintiff, and that the defendants had wrongfully detained it. The court rejected this contention, saying (p. 103):
“It is perfectly clear that the jury intended to determine the issue against the defendants, and, although their verdict was informal, the justice ought to have entered it according to the substantial finding, and to have rendered judgment.”
In the instant case the language of the verdict was corrected by the foreman before it was entered. The procedure employed by the trial judge in the instant case was approved by this court in Sleight v. Henning, 12 Mich. 371 (syllabus):
“Juries rarely give very formal verdicts,* and inquiries of the jurors in court, and amendments for the purpose of putting in due form what the jury mean by their finding, are unobjectionable.”
In Rabior v. Kelley, 194 Mich. 107, the court said (p. 117) :
‘ ‘ There can be no doubt that where the intention of the jury is ascertainable the court may amend the verdict, correcting manifest errors of forip, and sometimes matters of substance, to make it conform to the intention of the jury.”
It is apparent that when the jury in the instant case found the testatrix to be incompetent they were using the word in the ordinary layman’s sense but had meant thereby to determine the issue against proponents. The correction in the verdict suggested by the trial judge was assented to by the jury. In People v. Pizzino, 313 Mich. 97, this court (p. 105) quoted with approval the following language from 8 Wigmore on Evidence (3d Ed.), p. 704, § 2355:
“The act of assent to a verdict is constituted by the express answer to the clerk at the polling in open court, or by the silence which implies ah assent. This outward act is final.”
No claim is made by appellants that the verdict is contrary to the great weight of the evidence. The trial court did not err in the manner of receiving and entering the verdict.
The judgment is affirmed, with costs to appellees.
Butzel, C. J., .and Carr, Bushnell, Sharpe, Reid, North, and Starr, JJ., concurred. | [
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] |
Sharpe, J.
This is an appeal from a decree granting plaintiff a divorce and custody of the minor child' of the parties.
The material facts are that on December 20, 1931, plaintiff and defendant were married at. the Temple Beth El in Detroit; that as a result of the marriage one child, Donnie, was born on May 5, 1936; that when the parties were married plaintiff was earning about $25 a week as a shoe salesman and defendant worked as a clerk and earned approximately the same wages; that the parties have lived in a three-room apartment since the birth of their child in 1936; that a housekeeper was employed to attend the housework and help care for the child; that because of the smallness of the apartment and the physical condition of the child, defendant and the maid shared the bedroom while plaintiff and his son slept together. In December 1943, plaintiff was earning approximately $80 per week and early in 1944 began employment as salesman and manager of a radio store at a smaller salary. Defendant has been em-. ployed all of the time since the marriage of the parties, except for a short period when she had her baby. The parties ceased to cohabit as husband and wife in the summer of 1941 although they continued to occupy the same apartment.
The bill of complaint is founded upon extreme cruelty in that defendant refused to have sexual intercourse with him, spurned any efforts he made to show her affection and love, and went to work shortly after the child was born so that she could avoid her household duties, including the rearing and upbringing of the child.
Defendant filed an answer to the bill of complaint in which she claims that the parties lived together until October, 1942, when plaintiff ceased to have anything to do with her because of his infatuation for a Madame X; and that she was compelled to work in order to support herself and child. She denies the allegations of cruelty charged by plaintiff and denies that plaintiff is a fit and proper person to have-custody of the minor child of the parties. She asks that plaintiff’s bill of complaint be dismissed.
The cause came on for trial and the trial court in an opinion found that the parties ceased to cohabit in the summer of 1941; that subsequent to the summer of 1941 defendant refused to have marital relations with plaintiff; that defendant used vile and insulting language toward plaintiff; that defendant was adverse towards raising a family and upon one occasion after she became pregnant had an abortion performed; that the child likes his father more than he likes his mother; and that the child is intelligent and has become very much attached to his father.
The rule applicable in divorce cases similar to the instant case is well stated in Chubb v. Chubb, 297 Mich. 501.
“While we are not restricted by the findings of the circuit court, a divorce case on appeal being heard de novo, especial consideration is given to such findings, so largely based upon the credibility of the witnesses, and the reviewing court ought not to reverse the determination of the trial court in such a case, unless convinced that it must have reached a different conclusion had it occupied the position of the lower court, under like circumstances. Brookhouse v. Brookhouse, 286 Mich. 151; Stratmann v. Stratmann, 287 Mich. 94; Westgate v. Westgate, 291 Mich. 18.”
But the advantage possessed by the trial court does not relieve this court from the duty of exercising its own judgment in passing upon the evidence. Emery v. Emery, 181 Mich. 146.
Plaintiff bases his charge of cruelty upon the denial of defendant to give him that love and affection that a husband should expect from a wife. His chief complaint is that defendant denied him normal sex relations. The record shows that during the marriage of these parties both plaintiff and defendant were engaged in useful employment except for a short period of time when defendant was having her baby; that after the baby was born plaintiff and defendant did not occupy the same bed $ that during the latter part of the year 1943 plaintiff was employed as a shoe salesman; that early in 1944 he changed employment and became the manager of a store owned by Madame X at a salary somewhat less than he received as a shoe salesman; that plaintiff and Madame X opened a joint bank account, went to New York City on business or pleasure or both; and that plaintiff took Madame X and her child together with his own child to a summer resort and remained there ten days, and upon another occasion he took Madame X on a boat trip to Buffalo. The record does not show that plaintiff had any immoral rela tions with Madame X, but it would seem quite possible that plaintiff’s relations with her would be disturbing to the peace and tranquillity of defendant.
• In our opinion the acts of plaintiff had much to do with the severance of family relations. We have carefully considered other claims of plaintiff, among which is that defendant had an abortion. As to this matter we note that plaintiff consented to his wife having this'operation performed. He is now in no position to complain of an illegal act which he consented to. In our opinion plaintiff has failed to sustain his claim of cruelty.
The decree of the trial court is reversed and an order will be entered herein dismissing plaintiff’s bill of complaint. Defendant may recover costs.
Butzel, C. J., and Carr, Boyles, Reid, North, and Starr, JJ., concurred. Bushnell, J., took no part in the decision of this case. | [
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] |
Butzel, C. J.
The Pennsylvania Railroad Company brought suit to recover demurrage charges for freight cars held by, or for, defendant, Evans Products Company, beyond the free time allowed for loading and unloading the cars. During the period from September 4,1941, to October 2, 1941, the railroad company did not pick up the empty.cars standing on the sidings inside defendant’s plant at Detroit, nor deliver to the plant various freight cars consigned, or ordered delivered, to, and placed on, the railroad sidings inside 'the defendant’s plant.
Both parties agree that as a result of a dispute with some employees, defendant’s plant was picketed during the period in question. Plaintiff claims that its failure to pick up and deliver the freight cars was caused by the threatening and intimidating conduct of the pickets. Defendant claims that plaintiff’s employees were not threatened but, on the contrary, arbitrarily refused to cross the picket lines as a matter of personal policy. The parties further agree that if plaintiff’s interpretation of the facts, that its employees were intimidated, is correct, then it is entitled to recovery in the sum of $1,819.40, but if defendant’s contention is correct, that plaintiff’s employees were not threatened, then plaintiff is not entitled to recover any sum whatsoever.
Defendant denied that it is liable under the facts. It admits that the statement of charges as submitted by plaintiff is correct, that it did not file an application in accordance with Rule 8 of the interstate commerce commission tariff No. 3583, which provides for lower demurrage rates .where delivery has been prevented due to a strike of the employees of the consignee, provided that the consignee presents a claim in writing within 30 days after the date on which the interference ceased and, therefore, if delivery was prevented because of the strike, it is not entitled to the lower rates.
The trial court found that, although the train crew was not entirely blameless, the railroad was entitled upon the proofs in this case to recover a judgment. There was picketing in progress, and from the testimony in the case, and particularly the file in the chancery case in which defendant sought to restrain the pickets, parts of which file were introduced in evidence, the picketing was accompanied with violence and danger to those who dared to break through the picket line at certain points. It is possible that the employees of the railroad company did not care to force their way through the picket line, but in the injunction proceedings brought by the defendant against the union, testimony was introduced to show that there had not only been threats of violence, but overt acts.
In rendering judgment the trial judge applied the lower rates set forth in Rule 8, supra. This was improper. Such application can be made only in accordance with the procedure set forth by the Interstate Commerce Commission. Pennsylvania Railroad Co. v. International Coal Mining Co., 230 U. S. 184 (33 Sup. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915 A, 315); Minnesota Rate Cases (Simpson v. Shepard), 230 U. S. 352 (33 Sup. Ct. 729, 57 L. Ed. 1511, 48 L. R. A. [N. S.] 1151, Ann. Cas. 1916 A, 18); Anthony Carlin Co. v. Hines, 107 Ohio St. 328 (140 N. E. 99); Chrysler Corporation v. Railroad Co., 234 I. C. C. 755; Balfour, Guthrie & Co. v. Railroad Co., 235 I. C. C. 437.
The court should have rendered a judgment for the'full amount set forth in plaintiff’s hill of particulars. The judgment is modified, and the case remanded to the trial court to enter judgment for the full amount claimed by plaintiff. Plaintiff will recover costs.
Carr, Bushnell, Sharpe, Boyles, Reid, North, and Starr, JJ., concurred. | [
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] |
Butzel, C. J.
On September 8, 1941, Peter Aninos, plaintiff, filed a bill of complaint alleging that prior to September 24, 1936, he owned a controlling interest in the Atlantic Baking Company; that the business was a well-established and profitable one having assets, including good will, worth in excess of $60,000; that the bakery was conducted in a' building on land located in Detroit, the title to which was vested in plaintiff and his brother Louis; that this property had a value of $75,000. He further stated that he had been in the business for over 21 years, and in full charge of it, and that it was in a flourishing condition up to September, 1935. He further alleged that on September 1,1935, he became ill and was hospitalized, and as a result he left the business in charge of his brother Louis; that during his illness defendant Christ G-. Petrouleas entered into a contract, hereinafter referred to as exhibit A, with plaintiff and his brother, and that plaintiff lost control of the business to defendant Petrouleas who took advantage of plaintiff’s mental condition, and also advised him to go away and have a good time and upon his return he would be “boss” again. Plaintiff further claims that the title to the real estate was also obtained from him by defendant acting in the name of the corporation, and that such real estate was deeded by plaintiff and his brother to defendant Service Baking Company, the name which the corporation, the Atlantic Baking Company, had adopted through amendment of charter as provided by exhibit A. He asked that'exhibit A be set aside, and that plaintiff be restored to the full possession of both the business and real estate. He made no offer to do equity nor to restore to Petrouleas that which he had invested in the business. We herein refer to Petrouleas as defendant unless otherwise indicated.
Exhibit A is dated September 24, 1936, and is signed by defendant Petrouleas, plaintiff Peter Aninos and his brother Louis. It recites that plaintiff and his brother Louis each owned 30 shares of the capital stock totaling 60 shares at $100 par value of the Atlantic Baking Company, which was engaged in the bakery business; that they also held title to the property used by the business, subject to two mortgages aggregating $14,138.25. It provided that the name of the corporation be changed to Service Baking Company, and that the capital be increased from-$6,000 to $50,000, consisting of 5,000 shares of $10 each. Plaintiff and brother were to receive a total of 600 shares of $10 par value in place of their former 60 shares of. $100 par value. It further provided that defendant Petrouleas should purchase 1513 of the new shares so as to provide for additional capital of $15,130. It also provided that the real estate owned by Peter and Lonis be deeded to the corporation which agreed to pay them $11,380, assume the mortgages totaling $14,138.25, and also issue to them as a further consideration -853 shares of stock of $10 each, making their joint holdings 1,453 shares in contrast with defendant’s 1,513 shares.
Defendant thus became owner of a majority of the stock issued. The Atlantic Baking Company, the name by which the corporation was known prior to September 24, 1936, separately consented to the agreement, Peter and Louis as president and secretary signing in its behalf. The agreement was witnessed by the attorney who represented defendant, as well as by the one who represented Peter and Louis. Other provisions of the contract are not material to the issue in this litigation and are not set forth.
When the trial court made the determination that Peter was insane, Prances Aninos, wife of Louis, was appointed guardian ad litem to continue the suit against the corporation and Petrouleas.
The Atlantic Baking Company originally was a partnership which was formed in 1923 with Peter and Louis as copartners. In 1927 it was incorporated with a stated capital of $70,000. The assets together with the real estate, standing in the name of Peter and Louis, were turned over to the new corporation. In 1933 the corporation lost its charter for failure to pay the franchise fee. The same year a new corporation was formed, again under the name of Atlantic Baking Company. Only the personal property was transferred to the new corporation ; the title to the real estate remaining vested in Peter and Louis as tenants in common. The paid-in capital was represented as $6,000, for which the 60 shares of stock were issued. One-half of the stock was issued to Peter and the other half to Louis.
There .is no doubt but that in 1935 Peter became seriously ill, suffering from some form of brain disturbance due to syphilis. Louis Aninos is the main witness in the case. He claims that notwithstanding the records, to the contrary Peter really owned the entire business. He very glibly gave testimony that the business was worth at least $140,000, shortly prior to defendant’s investing in the business. However, on February 3,1936, he presented a petition to the probate court in accordance with 2 Comp. Laws 1929, §8295 (Stat. Ann. §16.281). This was not a petition for an adjudication of insanity or the appointment of a guardian; it was solely for the purpose, as provided by statute, to enable persons without means to secure hospital treatment. Louis represented that. Peter was afflicted with a malady which he believed could be' benefited by proper hospital care and medical and surgical treatment, and that Peter had no means of his own with which to provide such treatment and care. This sworn petition made in 1936 contradicts his statement on the stand that the business, alleged to have been owned by Peter, was worth at the time $140,000; which evaluation may have influenced the trial judge. This is one of the many instances of the contradictory statements made by Louis and shows how little credence can be given to his testimony.
Peter did enter the hospital in 1935, and he showed every sign of syphilis affecting the brain. However, he had not been adjudged insane and was under no guardianship or control. He did respond to malarial treatment. The doctor, who was senior associate of the neuropsychiatry department of the Ford Hospital, Detroit, first saw Peter September 30, 1935. In March, 1936, Peter was released from the hospital though not completely cured at the time. He went to the hospital for treatment at intervals. The doctor on November 26, 1941, testified that Peter never would be entirely cured, but on August 14, 1942, the same doctor made an affidavit in the probate court that Peter was mentally competent and should be restored to all of his rights. Peter had never been adjudged a mentally incompetent person prior to the beginning of this trial. This was five years after exhibit A was entered into. On December 15,1944, the probate court entered an order that Peter was mentally competent and that he be restored to full rights.
The testimony showed that exhibit A was not entered into in haste. Prior to meeting defendant, the bakery company was approaching financial disaster. A flour salesman, by the name of Chiflakos was asked to seek assistance. For 23 days he tried to interest others in the bakery, but without success. He testified as plaintiff’s witness and stated that the bakery was worth $140,000. However, he admitted that he told defendant that the business was only doing $100 a day, at which rate it was losing money, that it was deeply involved in debt, that it could break even if it did a business of $250 a day, that it could be made into a paying business, but required new equipment and a new investment of $9,000. He admitted that the business was run down and that unless the business did get someone to come to its rescue, it could not last. Most of the help had been discharged; there were only three people working at the bakery.
Defendant did not seek out the business. His aid was sought. Defendant put his money into a losing venture and tried to resuscitate it by the investment of a large amount of additional capital. The record indicates that thereafter the condition of the business was improving, until it was absolutely killed by the devastating’ litig’ation that followed.
When Peter was released from the hospital he first went south for a very brief stay. Shortly after his return, however, a large sum of money was paid to him by the corporation in pursuance of the agreement, and thus he was able to go to Greece where he remained a year and a half. He married while there and returned to this country with his wife and for a short time resumed employment at the bakery. However, in 1938, he commenced divorce proceedings against his wife, who was represented by one of his present counsel. She filed a cross bill and succeeded in obtaining a divorce from one whom counsel now contends was ‘ ‘ insane. ’ ’ Contempt proceedings were instituted and resulted in the incarceration of Peter in the Detroit House of Correction for nonpayment of alimony. On or about this time Peter by written instrument transferred his stock and all claims of every kind against the corporation and against defendant to his brother Louis who accepted such an assignment from the alleged “insane” man. Louis thereupon under date of June 11, 1938, in his own name and as assignee of Peter, on receipt of 454 shares of stock, signed a complete release in full of all claims against the corporation and the defendant. Peter also gave his written consent to and approved of the release. Defendant contends that this was a complete ratification of everything that had been previously done and disposed of all claims by Peter. However, suit was begun and the bill of complaint filed. In justice to Mr. Nelson, one of plaintiff’s present counsel, it should be stated that he did not become one of the attorneys in the case until after the bankruptcy petition hereinafter referred to was filed. Motions in the ease were heard by several circuit judges. An injunction was issued restraining defendants from any action except in the regular course of business, but providing that they might proceed with the installation of the new equipment that had been begun. A considerable period after the-modification of the injunction, during one of the hearings, the trial judge enjoined the further installation of all improvements that had been ordered. Thereupon the corporation filed a petition in bankruptcy. It was contested.
Appeal was taken from the determination of the referee adjudicating the corporation bankrupt. The district court of the United States for the eastern district of Michigan found “that the corporation w'as in a serious financial condition due principally to the proceedings in the Wayne circuit court,” and refused to vacate the adjudication in bankruptcy and certified when the cause was further appealed that “such appeal is not taken in good faith and that it is not meritorious, but is frivolous.” The schedules in the bankruptcy court include in the liabilities an amount in excess of $20,000 due to the inability of the corporation to permit the fulfillment of the contracts for new equipment. The completion of the installation of the new equipment had been enjoined by the order of the circuit court trial judge.
When appeal was taken by plaintiff to the United States Circuit Court of Appeals for the 6th District, the court did find the appeal was not in good faith and in an opinion written by the Honorable Thomas F. McAllister, circuit judge, denied the plaintiff all relief against the corporation, stating that if he had any claim against Petrouleas, it should be fought out in the State court. The opinion is set forth in Aninos v. McGuire (C. C. A.), 127 Fed. (2d) 817. The conflicting claims were set forth and'the opinion shows that the liabilities of the corporation at the time were $99,190.75 against assets of $24,817.57. We quote from the opinion as follows:
“When the corporation was adjudicated bankrupt, Frances Aninos, guardian ad litem of Peter Aninos, filed a petition similar to one filed by Louis Aninos, based upon alleged fraud and deceit on the part of Petrouleas, in taking advantage of the mental incapacity of Peter Aninos. But Louis Aninos was a party to the same transaction, and had been advised by legal counsel throughout the matter; and it seems remarkable that on June 11, 1938, two years after the alleged insanity of Peter Aninos, upon which so much reliance is placed by appellant and Louis Aninos, we find that Louis and Peter were executing contracts in which Peter assigned all of his rights and claims against the corporation, to Louis, at the same time executing a power of áttorney to him; and both brothers, pursuant to action at a meeting of the corporate directors, executed an instrument, in consideration of a certain stock transfer, discharging the corporation and Petrouleas from all claims Peter and Louis might have against them.”
Thereafter, Peter presented a petition for reclamation in which he sought to have all the property-returned to him. The petition was heard by the Honorable George A. Marston, referee in bankruptcy, who wrote a very complete and comprehensive opinion in which he discussed all the details of the transactions. He found that there was no fraud on the part of defendants and completely exonerated them from all claims of fraud and liability. He placed the blame for the litigation where it belonged, stating “that the claim constitutes an attempt to perpetrate a rank injustice against Christ G. Petrouleas, who has invested upwards of $36,000 in the stock of this corporation, and who stands to lose his entire investment. I believe the claim was presented in bad faith, and that it has no merit whatsoever. ’ ’
Meanwhile, in the State court the case had proceeded with a reference to the Honorable Arthur W. Sempliner, circuit court commissioner, who found defendant Petrouleas took nothing from plaintiff. The trial judge, however, re-referred the case to the Honorable Frank FitzGerald, circuit court commissioner, who went into the case very exhaustively. He took a great deal of testimony, and he made findings in which defendant was completely exonerated from any fraud or any liability whatsoever.
Limitations of time and space prevent us from setting forth this report in the opinion, for it completely answers all of the claims made that Petrouleas either overreached, or was guilty of any fraud of any kind.
To further satisfy ourselves we, however, have examined the record closely, as we hear an equity case de novo. We are in total accord with the findings of fact by all the judicial officers thus far named who previously passed upon the issues. We believe it proper to call attention to some of the very pertinent facts. Louis Aninos, as treasurer-of the corporation, signed the answer to the bill of complaint denying the main allegations claiming defendant or the corporation was liable. In spite of the high value placed on the property by Louis and a few other witnesses who testified in the case, we go to the written records for facts. The machinery was antiquated. The schedules in the bankruptcy petition show that at the time the petition was filed approximately $29,000 of machinery and equipment were being purchased under chattel mortgage, and only part of them had been delivered and part of them had been installed. This indicates an honest effort on the part of defendant and the management to rehabilitate the company in which a large share of stock stood in Lonis’ name, although the latter claims that it belonged to Peter. We realize that the amount of taxes assessed on property frequently does not reflect its true value, but when statements to the assessors are sworn to by the taxpayer they have considerable probative value. In 1930 the real estate and buildings were valued at $21,000; personal property, $3,356.64. This valuation was constantly being reduced. In 1933 the real estate and buildings were valued at $7,500, the personal property at $1,650; and the personal property was valued in 1934 at $1,475; in 1935 at $1,328; in 1936 at $1,325. A sworn petition to the common council of the city of Detroit in 1929 shows as follows :
“Petition of Atlantic Baking Company, ward 19, Personal: Having filed a statement showing depreciation of 33%% we are petitioning that the amount be reduced $10,000 about 25%. The reason is that the machinery is not worth the valuation of $10,000. It was purchased when the prices were high, absurdly high priced for the contract in the first place. It originally cost $14,300. Some of it is very old, the ovens and big machinery about five years old, the ovens are obsolete.”
In 1935 the corporation’s income tax for the year ending November 30th represented it had sustained a loss of $1,196.16 and had assets of $14,321.51 as against $9,419.91 in liabilities. Net worth consisted of outstanding capital stock of $6,000 less a deficit of $1,098.40. Peter had withdrawn $950 for the year and Louis $2,015. The sworn annual report to the State of Michigan for the year ending November 30, 1935, the year prior to the execution of exhibit 1, a year before defendant acquired an interest, coincided with the above-mentioned income tax report, showing that the net worth was only $4,901.60.
In the answer to the hill of complaint signed hy Lonis, he stated that just prior to September 24, 1936, the total-property and assets, including good will, were worth not in excess of $10,000, and the liabilities were in excess of $24,000, but despite this on the stand he stated the assets were worth $140,000. He also stated that at the time it was losing $600 a month.
We do not believe it necessary to give further details, which also show that no fraud of any kind was perpetrated by defendant, who actually invested $36,360 for which he received 3,636 shares of stock. His withdrawals from the business were exceedingly modest. There was no exercise of control for the benefit of defendant or any showing of unfair dealing. If there were any just cause for complaint, it would be exclusively by defendant, not by plaintiff. The judge mainly relied upon the testimony indicating that Peter was insane. At the time defendant entered into the contract, the business was headed for disaster. Plaintiff had been released from the hospital but was sane enough to participate in the contract and prior negotiations assisted by his own attorney. He was sane enough to go to Greece by himself, and on his return to turn whatever property he had to his brother when confronted by the divorce suit. It was conceded by defendant’s counsel at the oral argument that if a person enters into a contract with a person who had not been adjudged insane, the contract is not void but only voidable, and there can only be liability if fraud or overreaching has been exercised. Moran v. Moran, 106 Mich. 8 (58 Am. St. Rep. 462); Dodds v. Purdy, 277 Mich. 593; Lynder v. Schulkin, 305 Mich. 451.
The trial judge held that Peter was insane and never would recover his sanity, notwithstanding the sworn statement of the main doctor in the probate court to the effect that plaintiff had recovered his sanity. The judge accepted the statement by Louis corroborated by two others as to the value of the property, notwithstanding that actual figures belie these estimates. The judge set the entire transaction aside although the real estate and personal property had been sold out in the bankruptcy proceedings. He gave plaintiff a money decree of $15,000. tWe find no basis whatsoever for it. Other questions specifically raised have been answered in this opinion, or have not sufficient merit so as to require discussion.
The decree is set aside and one may be entered here dismissing the bill, with costs of this court and the trial court to defendant Christ Gr. Petrouleas.
Carr, Bushnell, Sharpe, Boyles, Reid, North, and Starr, JJ., concurred. | [
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Reid, J.
Plaintiff appeals from a decree dismissing her bill of complaint for divorce.
The parties were married May 28, 1932, and there is one child of the marriage, a daughter, Rochelle, now aged 7 years. The parties first separated in 1942. Plaintiff began a suit for divorce on September 21, 1942. A reconciliation was effected. A second separation occurred April 6, 1943, and on the following day plaintiff filed her second bill of complaint for divorce. After a hearing, the second suit was decided adversely to plaintiff on September 24, 1943. Plaintiff filed this, her third bill of complaint, on April 26, 1944. Defendant filed an answer denying plaintiff’s allegations of extreme cruelty and nonsupport.
This being - a chancery case, we try the suit de novo. The question involved is whether plaintiff should be granted a divorce on the grounds of extreme cruelty and nonsupport.
Plaintiff claims that since the entry of the decree against her in the second divorce ease on Septem ber 24, 1943, defendant has been guilty of nonsupport, and testified that immediately ^ after. the decree, defendant came to the house where the parties lived, told plaintiff the court had granted him everything, “house, furniture, daughter,” told plaintiff she could stay or leave, and that he would contribute nothing to plaintiff’s support and no more than necessary for the daughter’s support.
Plaintiff further claims that defendant has been guilty of criminal conduct in violation of his marital vows. After a very careful consideration of all the testimony, we conclude that defendant is not guilty of such misconduct. In that particular we agree with the finding of the trial judge.
However, we find that since the decree in the last preceding suit, defendant has been associating with, visiting and appearing in public with a certain married woman, to such extent and under such circumstances that his conduct in that regard caused plaintiff to believe that defendant was unfaithful to her and was of such a nature as to amount to extreme cruelty toward plaintiff.
Defendant paid $20 toward the support of plain.tiff during October, 1943, and thereafter he paid nothing except under compulsion either upon an interview with the prosecuting attorney or after being subjected to a court order for alimony. Defendant was guilty of nonsupport.
The decree appealed from is reversed. Plaintiff is awarded a decree of divorce to be entered in this court on the grounds of extreme cruelty and nonsupport. The cause is remanded to the lower court for further hearing so far as may be found necessary by that court to determine the property settlement, custody of child and alimony. Costs to plaintiff.
Butzel, C. J., and Carr, Sharpe, Boyles, North, and Starr, JJ., concurred. Bushnell, J., took no part in the decision of this case. | [
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] |
Boyles, J.
Plaintiff is the widow of one Edward B. McKenna and the beneficiary in four life insurance policies issued by the defendant insurance company in which Edward B. McKenna was the insured. Upon his death the company paid the single indemnities provided for in the policies but refused to pay the double indemnities for accidental death. ' The four policies are identical in so far as the questions here involved are concerned, and provide for the payment of double the face of the policies if the death of the insured resulted from accident as defined in the policies. Double indemnities were to be paid upon receipt of due proof that “the death of the insured resulted directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means. * * * Double indemnity shall not be payable if the insured’s death resulted * * # directly or indirectly, from infirmity of mind or body, from illness or disease.”
The insurance company claimed that death resulted at least in part from an infirmity, a paralyzed condition of the left side of the insured caused by a “stroke.” Plaintiff, claiming that death resulted from a fall on a wet floor, causing a fractured femur, gangrene and amputation of the left leg, brought the instant suit to recover the double indemnities. The case was heard by the circuit judge without a jury, and plaintiff had judgment from which the defendant appeals.
According to the record, the four policies were, issued April 7,1936. However, each policy contains a provision stating that the policy “takes effect” May 17, 1927, March 2, 1928, August 22, 1929, respectively, at which time (1927-1929) it seems to be assumed that Mr. McKenna was under no disability. In 1934 he suffered a stroke caused by a cerebral thrombosis which resulted in a paralysis of his left side and leg. For about two years he was hospitalized part of the time, and thereafter for the next six yeará preceding the accident in 1942 he had no medical attention except for occasional short periods of hospitalization for checkup. However, his paral ysis continued until Ms death, and he walked with a cane. For the last three years before his death he had no medical attention or hospitalization until his accident in August, 1942. He lived at home, worked in his garden, did practically all the work about the house while his wife was employed. In 1938 he took a trip to Mexico by himself and stayed there several months. It was Ms custom to wash the kitchen, bathroom and hall floors daily except Sunday, while his wife was at work. On August 24, 1942, he slipped and fell on the wet floor as he was coming out of the bathroom, apparently as he was hurrying to open the front door of the house for Ms wife as she returned from,work. He was immediately taken to a hospital where it was found that he had a comminuted fracture of the femur of his left leg at the hip joint. He was put into a Thomas splint, in four or five days changed to a plaster of paris cast with a Jones traction splint, and on September 2d he was discharged from the hospital and taken home by ambulance. A gangrenous condition developed, on September 9th he was returned to the hospital, on October 9th Ms left leg was amputated between the knee and the hip, and he died five days later.
The trial judge decided that the death of the insured “resulted from accident” as defined in the policies, namely, “directly and independently of all other causes from bodily injury effected solely through external, violent and accidental means.” Inasmuch as this is a law case heard by the trial court without a jury, we do not reverse unless the evidence clearly preponderates in the opposite direction.
Five physicians and surgeons were sworn and testified for the plaintiff and two for the defendant. They were all eminently qualified to draw conclu sions and express their opinions as to whether Mr. McKenna died from a coronary thrombosis as the result of paralysis or arteriosclerosis, or from a pulmonary embolism as the sequelae of the accident, gangrene, and the amputation of his leg. The doctors disagreed, and the case comes to court to find the answer. We examine the record to determine whether the evidence clearly preponderates in favor of the defendant, requiring reversal.
Dr. Berke, an experienced physician and surgeon who attended Mr. McKenna,' testified that his patient’s foot showed a cyanosis, that the blood vessels in his foot were slightly thrombosed; that thrombosis is a blocking of an artery or vein by a clot; that when it breaks away it is called an embolism; that it was common for a thrombosis to follow a fracture ; that if a thrombosis blocks a blood vessel gangrene may follow; that after an amputation there is danger of embolism; that embolism can travel to any part of the body; and that he felt that the embolism caused Mr. McKenna’s death. He further testified that in his opinion the fact that Mr. Mc-Kenna had been suffering for eight years with a partial paralysis due to a stroke had no relationship or causal connection between the break and the patient’s gangrene and thrombosis, and that there was no relationship between the paralysis and the cause of death.
Dr. Wilson, a physician with upwards of 40 years ’ experience and a member of the staff of St. Mary’s hospital, was called to see Mr. McKenna in the hospital as a consultant. He testified that he suggested an amputation, that in his opinion there was a localized thrombosis, and in answer to a hypothetical question stating fully the facts and circumstances (to which no objection was made) he testified:
“Well, I think in the first place, of course, the fracture was the exciting cause, caused disturbance of the blood vessels of the leg, and if it followed the history of cases of this type, the way he died, the chances are he had a piece of thrombus arising in a vein go np in his lnng causing embarrassment there, and death thereby.”
On examination by the judge he further testified that he believed there was a thrombosis present in this patient following the fracture and that in his opinion there was no causal connection between the thrombosis and the paralyzed condition.
Dr. Freeman, with upwards of 20 years in surgery, four years in Receiving hospital, two of which were as chief resident surgeon specializing in surgery associated with accidents, after examining the records of St. Mary’s hospital and in answer to a hypothetical question similar to that answered by Dr. Wilson, testified (without objection) that in his opinion Mr. McKenna’s death was caused by thrombosis of the femoral vessels of the left side with a pulmonary embolism, that such a condition resulting from the fracture could cause death, and that in his opinion there was positively no relationship between the paralysis and the thrombosis. He testified:
‘ ‘ To my way of thinking, the damage the man received to the blood supply was produced by the trauma to the intima, which produced thrombosis, which produced gangrene, which required amputation of the gangrene and breaking off of a piece of the clot causing death. That had no relationship, no bearing whatsoever, in my opinion, to his trouble some eight years before, but was entirely due to the trauma of, I think, August 24, 1942.”
The hospital record was introduced showing final diagnosis of multiple thrombosis, signed by Dr. Blodgett, the attending physician. Dr. Blodgett, later called as a witness by the defendant, testified that he performed the amputation, that he later was present at the time of Mr. McKenna’s death, and that the patient’s heart stopped a few seconds before the breathing stopped, which would ordinarily be considered a circulatory death, primarily due to a heart or circulation involvement. In other words, this would support the defendant’s theory that death resulted from coronary thrombosis rather than from pulmonary embolism. Dr. Blodgett further testified:
“In any operation, the part that is operated on is traumatized and that trauma can cause thrombosis. As a result of the thrombosis an embolus might follow, an embolus might break away. In a large sense, all clotting which occurs after operation is thrombotic. There is really no distinction betweén clotting of a cut artery and a thrombosis and when a vein is cut likewise clotting or thrombosis occurs, and a piece of thrombus in the vein may get loose and travel around.”
Dr. Baer, called as a witness by the plaintiff, and Dr. Freund, clinical professor of medicine at Wayne university since 1912 or 1913, called as a witness by the defendant, both testified at length as to the consequences ■ following an amputation, dry and wet gangrene, pulmonary embolism, vascular injury, peripheral vascular diseases, coronary thrombosis, and the effects of arteriosclerosis and paralysis. The testimony of all the medical men indicates a difference of opinion among them as to whether Mr. McKenna died from a pulmonary embolism resulting from the accident, gangrene and amputation, or from coronary thrombosis caused by arteriosclerosis resulting from age or from the paralysis. Dr. Haking, connected with St. Mary’s hospital, called as a witness by the plaintiff, testified that he had seen Mr. McKenna in the hospital from September 9th to October 14th, that he noted everything that was wrong with the patient, that he made the certificate of death and gave the cause of death as pulmonary embolism.
The foregoing is only a brief review of the testimony in the case. The trial court reached the following conclusion: •
“In the instant case, I find from the testimony that on August 24,1942, the insured met with an accident,-as above stated; that as .a direct result of that accident, the insured suffered a thrombosis impairing the arterial circulation in his left leg, resulting directly in gangrene, and that as a result of the gangrene the patient’s leg was amputated, which, in turn, resulted in a thrombosis, resulting directly in causing the insured’s death by pulmonary embolism.
“I find that although the insured for some years prior to the date of the accident was suffering from partial paralysis as a result of a cerebral hemorrhage, that there is no causal connection between his death and said partial paralysis.
“I further find that although the insured had been suffering from hypertension, that is, high blood pressure, in a moderate degree for some years prior to the accident, that such. impairment has no causal connection between the accident and the resulting death of the insured.
“In other words, I find that the testimony establishes, by a preponderance of the evidence, that Edward B. McKenna, the insured, died from pulmonary embolism, and not coronary thrombosis; that the cause of death, pulmonary embolism, was brought about by the amputation of his left leg; that the left leg was amputated because of its gangrenous condition, which in turn was caused by the injury to the arterial circulation of the patient, itself caused by the comminuted fracture of the left' hip.
■ “At the trial, the court was aided hy the testimony of some outstanding physicians and surgeons. As in most lawsuits, there was some conflict in the testimony. However, after listening to the various witnesses, the arguments of counsel, and aided by their briefs, it is my considered judgment that plaintiff has shown by a preponderance of the evidence that the insured died as the result of an accident within the meaning of the policies, and therefore that she is entitled to judgment under the double-indemnity clause of said policies.”
We are in accord with the findings. The evidence affirmatively establishes that the accident with the sequelae of gangrene, amputation, and pulmonary embolism was sufficient to cause the death and that bodily infirmity or disease was not a contributing cause to the death. The defendant claims that the infirmity contributed to the accident, and for that reason plaintiff cannot recover. The precise question is, did Mr. McKenna’s death result directly and independently of all other causes, from bodily injury effected solely through external and accidental means ? On the contrary, did Mr. McKenna’s death result directly or indirectly from infirmity of mind or body (paralysis or arteriosclerosis) ? This is a question of fact, depending on the evidence adduced, answered by the trial court in the negative. See Thirkill v. Kansas City Life Ins. Co., 278 Mich. 588. The case at bar comes within our recent decision in Bristol v. Mutual Benefit Health & Accident Ass'n, 305 Mich. 145, where we reached the following conclusions (syllabi):
“In action under policy insuring against death resulting directly and independently of all other causes, from bodily injuries sustained through purely accidental means, if several causes concur to produce death, and each claim can be supported by competent evidence, the presence of a terminal disease at the time of a fatal accident does not bar recovery as a matter of law, the case being one for the trier of the facts.
“Under -policy insuring against accidental death and expressly excluding liability for death resulting directly or indirectly from bodily infirmity, illness or disease, the accident itself must have been sufficient to cause death.
“In nonjury action on policy insuring against death resulting directly and independently of all other causes, from bodily injuries sustained through purely accidental means, for death of insured from brain concussion sustained in a fall, whether presence of a terminal disease at time of fatal accident barred recovery was for trial judge.”
The defendant further contends that the plaintiff failed to furnish the insurance company with proof that the death resulted directly and independently of all other causes, from bodily injury effected solely through external, violent and accidental means. The record does not contain such proof as was furnished, although defendant admits that proof of death was furnished. Nor does defendant’s answer to the declaration set up that the defendant relies on any failure to furnish any proof of loss as required by the policy, or set up the facts showing the nature of the defense thus relied upon, as required by Court Buie No. 23, § 4 (1933), in effect at the time of trial {id. Court Buie No. 23, §4 [1945]). Furthermore, at the pretrial hearing before the court, counsel agreed “to try the case on the merits as to whether or not the plaintiff is entitled to' recover under the insurance policy on which the action is brought for the double indemnity feature; that is whether or not the deceased came to his death as the result of an accidental injury within the meaning of the policy.” We find no merit in this present contention.
Judgment affirmed, with costs.
Btjtzel., C. J., and Carr, Bttshnell, Sharpe, Reid, North, and Starr, JJ., concurred. * | [
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Sharpe, J.
This is an action to renew a judgment granted by the circuit court of Wayne county on November 9, 1932. The following facts have been stipulated. On October 21, 1942, William A. Meyers, defendant, filed a voluntary petition in bankruptcy and, under schedule A-3 as amended attached to the petition in bankruptcy, the claim involved in this cause appears among those claims of “creditors whose claims are unsecured.” On Oc tober 22, 1942, defendant was adjudicated a bankrupt and on October 15,1943, an order of discharge of said bankrupt was entered by the referee in bankruptcy. The discharge in bankruptcy provides:
“It is ordered that the said William A. Meyers be, and he hereby is, discharged from _all debts and claims which are made provable by said act against his estate, except such debts as are, by said act, excepted from the operation of a discharge in bankruptcy. ’ ’
On December 7, 1942, the present action for renewal and revival of the original judgment was commenced by plaintiff. Defendant in his answer to plaintiff’s declaration as amended set up special defenses of the statute of limitations and discharge in bankruptcy. On February 15, 1945, the trial court entered a judgment in favor of plaintiff in the amount of $5,209.58 with costs. On March 26, 1945, defendant filed a motion for a new trial, which was denied April 20, 1945. Defendant appeals.
The principal question in this case may be stated as follows: Was the judgment rendered against defendant in 1932 such a judgment as would make it nondischargeable under the bankruptcy laws? The answer to this question requires an examination of the facts upon which the 1932 judgment was based. The declaration and amendments thereto filed by plaintiff upon which the' 1932 judgment was based alleges that prior to June 18,1930, plaintiff was engaged in the automobile business in Ann Arbor, Michigan, where he bought and sold Auburn and Cord automobiles; that defendant, William A. Meyers, prior to and on June 18, 1930, was a dis tributor for the Auburn and Cord automobiles and controlled territory which included the city of Ann Arbor; that on said date plaintiff was the owner of a Cord sedan; that defendant represented to plaintiff that he (defendant) had been advised that the Auburn automobile company was about to place on the market a new model Cord sedan at a price reduced from that of the then-existing’ model; that defendant advised plaintiff to bring his Cord sedan from Ann Arbor to Detroit; and that on June 19, 1930, plaintiff took his Cord sedan to defendant’s place of business in Detroit and delivered the same to defendant for which defendant gave plaintiff the following:
“Detroit, June 19, 1930.
“1 Cord Sedan, Serial #2,925,653, Motor #641. Received from John Maier the above car to be sold for Mr. J. Maier by the Meyers Auburn Co.
(signed) Meyers Auburn Co.
“H. A. Porter, Mgr. "WA. A. Meyers.”
Plaintiff also alleged that defendant promised to sell such car and deliver to plaintiff the sale price thereof; that on or about July 2, 1930, defendant sold said car and received payment in full for the same; that upon learning of the sale, immediate demand was made on defendant for the money whereupon defendant informed plaintiff that the money had been used in defendant’s business and represented that he (defendant) was well rated financially and enjoyed credit of $10,000 at his local bank and that the Ann Arbor bank would discount defendant’s 30-day note for plaintiff; and that by reason of the false and fraudulent representations of said defendant, plaintiff was deceived into delivering said car to defendant and induced to accept from defendant a 30-day note for the price of the same.
The following is a copy of the note delivered and accepted:
“$2761 July 14, 1930.
“Thirty days after date I promise to pay to the order of John Maier, Two Thousand Seven Hundred Sixty-one Dollars. Payable at Ann Arbor Savings Bank. Value received with interest at 6% per annum.
“Due August 14th. (Signed) Wm. A. Meyers.”
In support of the above-amended declaration, plaintiff testified:
“On June 18th Mr. Meyers called me up. He phoned and asked me if I still got this car on-the floor. I said yes, and he said, ‘You better get rid of it. ’ I asked him why. He said, ‘ There is going to be a new model coming out pretty soon; the price is going to be dropped; the car is going to be ready to change; and you will have a big loss if you don’t sell it as soon as you can.’ And he said, ‘Bring it down to me. I got a prospect for the car, and I can sell it for you.’ * * *
“When I took the car down he figured out how much it was. It was $2,761 what he agreed to pay me for it. He said, ‘It’s all right. Leave it here.’
“Q. Did you say anything to him about the acceptance of a note? Did you protest at all?
“A. I asked him if the note is any good.
“Q. What did he say about the note being good?
“A. He said, ‘My God, man, I do business. I got around $30,000 tied up in my business here. Go over to my bank, ask how much credit I got. I got $10,000 worth of credit there.’ * * *
“A. I said, ‘Well, I’ll take a note but that note ought to be good after 30 days.’ And he said, ‘Take that note and go right back to your bank after 30 days and get your money.’ * * *
“A. * * * When I got this note I asked him, ‘Is that note going to be any good-after 30 days?’ He said, ‘Go over to Ann Arbor Savings Bank where yon do business and get the money for it.’ And that satisfied me. I took that note and went home, waited for 30 days.”
It is the claim of- plaintiff that the declaration in the original cause alleged false and fraudulent representations of existing facts by defendant to plaintiff by means of which plaintiff was induced to deliver his automobile to defendant and to accept the 30-day promissory note; that the original judgment of November 9, 1932, was in trespass on the case; and that the judgment so rendered is within the meaning of section 17 (a) (2) of the bankruptcy act (52 Stat. at L. 851, 11 TJSCA 1945 Cum. Ann. Supp. § 35 a [2]), which provides:
“a. A discharge in bankruptcy shall release .a bankrupt from all of his provable debts, whether allowable in full or in part, except such as * * * (2) are liabilities for obtaining money or property by false pretenses or false representations.”
In Bonnici v. Kindsvater, 275 Mich. 304, we said:
“In this cause the plaintiff has the burden of proving that her judgment is within the exception, and that the defendant’s discharge (in bankruptcy) is not operative as to it. - -Moreover, plaintiff must prove that the injury to her was wilful and malicious (McIntyre v. Kavanaugh, 242 U. S. 138 [37 Sup. Ct. 38, 61 L. Ed. 205]), and in determining whether a judgment is within the exception, the court may examine the entire record. Nunn v. Drieborg, 235 Mich. 383.”
In Horner v. Nerlinger, 304 Mich. 225, 237, we said:
.‘‘The law is well established that to bring his claim within the statutory exception of ‘liabilities for obtaining property by false pretenses or false representations,’ plaintiff must show actual or intentional fraud on the part of defendant Nerlinger. The rule is stated in 8 C. J. S. p. 1516, § 573c, as follows:
“ ‘Actual or intentional fraud in obtaining property is necessary to save the liability from the operation of the discharge; fraud implied in law is insufficient.
“ ‘Not all frauds come within this exception to the operation of the discharge. * * *
“ ‘The character of the fraud necessary to save a claim from the operation of the discharge is an actual or positive fraud, knowingly and intentionally committed; fraud implied in law, or mere actionable or implied fraud which would support a judgment in a civil action without moral turpitude or intentional wrong, is not sufficient to defeat such discharge. ’
“See, also, Proctor v. Walker-Smith Co. (Tex. Civ. App.), 87 S. W. (2d) 828; Otto Gerdau Co. v. Radway, 222 App. Div. 107 (225 N. Y. Supp. 284); Hisey v. Lewis-Gale Hospital, 27 Fed. Supp. 20 (40 Am. Bankr. Rep. [N. S.] 206); Noble v. Hammond, 129 U. S. 65 (9 Sup. Ct. 235, 32 L. Ed. 621); Strang v. Bradner, 114 U. S. 555 (5 Sup. Ct. 1038, 29 L. Ed. 248).”
The testimony of plaintiff in the original case justifies a conclusion that defendant made false representations to plaintiff in order to secure the automobile and in our opinion the judgment was not discharged in the bankruptcy proceedings. The 1932 judgment was a provable debt within the meaning of section 63a (1) of the bankruptcy act (52 Stat. at L. 873, 11 USCA 1945 Cum. Ann. Supp. § 103a [1]). It was not discharged in the bankruptcy proceedings and could be sued upon within the period provided by the statute of limitations. See Elston v. Rusch, 250 Mich. 221.
It is urged by plaintiff that as the judgment is a npndischargeable debt, the bankruptcy act suspends the running of the statute of limitations.
•Section 11 (f) of the bankruptcy act (52 Stat. at L. 849, 11 USCA 1945 Cum. Ann. Supp. § 29 [f]) reads as follows:
“The operation of any statute of limitations of the United States or of any State, affecting the debts of a bankrupt provable under this act, shall be suspended during the period from the date of the filing of the petition in bankruptcy (1) until the expiration of thirty days after the date of the entry of an order denying his discharge; or (2) if he has waived or lost his right to a discharge, then until the expiration of thirty days after the filing of such waiver or loss of such right or, in case of a corpora-ton, if no application for a discharge is filed within the period of six months after the adjudication, then until the expiration of thirty days after the end of such period; or (3) until thirty days after the dismissal of the bankruptcy proceedings, whichever may first occur. ’ ’
Section 63 of the bankruptcy act as last amended by 52 Stat. at L. 873 (11 USCA 1945 Cum. Ann. Supp. § 103) lists the kinds of debts which may be proved against the estate of the bankrupt, among them being:
“(a) * * * (1) a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition by or against him, whether then payable or not, with any interest thereon which would have been recoverable at that date or with a rebate of interest upon such as were not then payable and did 0 not bear interest; (2) costs taxable against a bankrupt who was at the time of the filing of the petition by or against him plaintiff in a cause of action which would pass to the trustee and which trustee declines to prosecute after notice; (3) a claim for taxable costs incurred in good faith by a creditor before the filing of the petition in an action to recover a provable debt; (4) an open account, or a contract express or implied; (5) provable debts reduced to judgments after the filing of the petition and before the consideration of the bankrupt’s application for a discharge, less costs incurred and interest accrued after the filing of the petition and up to the time of the entry of such judgments.”
We have in mind that section 11 (f) makes no distinction between provable debts which are dis-chargeable and provable debts which are not dis-chargeable. It is urged by defendant that section 11 (f), supra, refers only to debts dischargeable in bankruptcy proceedings.
In 1 Collier on Bankruptcy (14th Ed.), pp. 1136, 1190, §§ 11.01, 11.14, it is said:
“Subdivision f, which tolls the statute of limitations to .protect creditors, also represents a new departure from the content of the old section. This subdivision was incorporated to cure an unjust dilemma in which creditors of the bankrupt found themselves regarding statutes of limitations running against their claims during bankruptcy of the debtor. ”
“This subdivision [¶] is also a new addition to section 11, introduced by the 1938 act. Its purpose was to remedy the situation which prevailed under the former act whereby a creditor’s claim could be barred by the running of a statute of limitations during the bankruptcy proceedings. Thus even though the bankrupt was not discharged and the creditor thereafter sought to pursue his claim through legal proceedings, the expiration of the statute was a good defense, whether or not the claim was dischargeable, inasmuch as the creditor could not assert that the bankruptcy proceedings had sus pended the running of the statute. This placed creditors in a difficult position, so that if they failed to institute a suit their claim might be barred by a statute of limitations and if they did sue and the bankrupt obtained his discharge in bankruptcy, their suits were of no value in so far as an in personam judgment was concerned.
“Subdivision f of section 11 now suspends all Federal and State statutes of limitations affecting provable debts from time of filing the petition in bankruptcy until whichever of the three specified situations first occurs. ’ ’
In our opinion section 11 (f) of the bankruptcy act has the effect of suspending the statute of limitations on all provable debts of a bankrupt. Plaintiff’s revival action commenced on December 7, 1942, was timely.
The judgment is affirmed, with costs to plaintiff.
Carr, Boyles, Reid, North, and Starr, JJ., concurred with Sharpe, J.
See 3 Comp. Laws 1929, § 13976, as amended by Acts Nos. 21, 193, Pub. Acts 1937, and Aet No. 72, Pub. Aets 1941 (Comp. Laws Snpp. 1940, 1945, •§ 13976, Stat. Ann. 1945 Cum. Supp. § 27.605).— Reporter. | [
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Carr, J.
Plaintiff sustained a personal injury in a theater operated by defendant in the city of Grand Rapids and brought action to recover damages. Following presentation of plaintiff’s proofs on the trial before a jury, counsel for defendant moved for a directed verdict on the grounds that plaintiff had not shown actionable negligence on the part of defendant, constituting the proximate .cause of the accident, and that her proofs did not establish freedom from contributory negligence. The motion was granted, judgment was entered on the verdict, and plaintiff has appealed.
The accident occurred in the afternoon of September 4, 1944. Plaintiff, who was at the time 68 years of age, purchased her ticket at the office in the lobby, and then entered the theater. In the lobby was an usher with a flashlight, but he did not offer to show plaintiff to a seat, nor did she ask his assistance. Plaintiff’s testimony justifies the inference that the employee in question observed her presence in the lobby, there being nothing to prevent his doing so.
At the time plaintiff entered the theater the performance had begun and lights were dim. Plaintiff testified that it was dark, that there were no lights along the aisle on the floor, but merely dim lights on the side of the theater and on the ceiling. It was her claim that she took hold of the backs of seats as she proceeded down the aisle and that the condition was such that she “was just going blindfolded.” While proceeding in this manner plaintiff stepped on, or stumbled over, a small child lying partly in the aisle, and suffered a fractured ankle. Plaintiff testified that the child in question was apparently about five years of age and that immediately after the accident it ran out of the theater, followed by three or four older children.
Plaintiff was familiar with the theater, having frequently attended it. It is a fair conclusion from her testimony that she did not consider she needed the services of the usher and that she did not anticipate any difficulty in finding her way down the aisle to a seat. Following the accident she was assisted by defendant’s employees, including the usher referred to, and was taken to a hospital.
Plaintiff contends that defendant was negligent in failing to provide reasonable and adequate lighting facilities to enable plaintiff to see her way down the aisle of the theater. It is urged that, because of the dimness of the lights within the theater, defendant’s usher should have accompanied plaintiff with his flashlight in order to supply sufficient light to enable her to proceed with reasonable security. Plaintiff’s testimony supports the inference that the child, over whom she stumbled, was of such tender years as to have been irresponsible. The theory of plaintiff’s cause of action is, in substance, that it was the duty of the defendant to furnish sufficient light to enable plaintiff to observe the child on the floor.
Claim is made on behalf of plaintiff that the trial court was in error in directing a verdict at the conclusion of plaintiff’s proofs instead of taking the motion under advisement and submitting the case to the jury under Act No. 217, § 1, Pub. Acts 1915 (3 Comp. Laws 1929, § 14531), as amended by Afet No. 44, Pub. Acts 1939 (Comp. Laws Supp. 1940, §14531, Stat. Ann. 1945 Cum. Supp. §27.1461). The said section, insofar as material, reads as follows:
“Hereafter in all civil actions at law, in courts of record, if the defendant at the close of the plaintiff’s case or if either party shall at the close of the testimony, and before the case is submitted to the jury, request the court for a directed verdict in his favor, the court may reserve Ms decision thereon, and submit the case to the jury under proper instructions as to the law applicable to such case.”
It is argued, in substance, that the word “may,” as used in the quoted provision, should be construed as meaning “shall,” and that in consequence the trial court was required by the statute to submit the case to the jury. With tMs contention we are unable to agree. The language of the statute clearly indicates that it was the intention of the legislature to permit the exercise of discretion. Whether a motion for a directed verdict shall be granted, or denied, or decision thereon reserved as expressly authorized, rests in the judgment of the court. Quinn v. New York Life Ins. Co., 218 Mich. 650; In re Cotcher’s Estate, 274 Mich. 154.
It is also claimed that the trial court erred in sustaining an objection to the request of counsel for plaintiff that he be permitted to read in evi denee to the jury the first three paragraphs of plaintiff’s declaration, together with the answer to said paragraphs. It is said that the purpose of such offer was to place before the jury an admission that one Allen Johnson was defendant’s “resident agent” in the city of G-rand Eapids. The trial court denied the request for the reason, as appears from the colloquy between court and counsel, that the matter had been fully covered in the opening statements. Plaintiff testified that Mr. Johnson was defendant’s manager at the time the accident occurred. It .does not appear, therefore, that plaintiff was in any way prejudiced because of the refusal to permit the pleadings to be read. There was no error in the ruling in question.
The principal question at issue in the case is whether the motion for a directed verdict, at the conclusion of plaintiff’s proofs, was properly granted. In determining this question plaintiff’s testimony must be construed as strongly in her favor as is reasonably possible. Keech v. Clements, 303 Mich. 69. So construed, can it be said that the minds of reasonable men cannot differ with reference to the alleged negligence on the part of defendant, and plaintiff’s freedom from contributory negligence? Nezworski v. Mazanec, 301 Mich. 43. Plaintiff was an invitee and, while defendant was not an insurer of her safety, the duty rested on it, and its employees, to exercise reasonable care for her protection against injury in the theater.
In Coleman v. Washington Theatre Co., 294 Mich. 343, plaintiff was injured as a result of a fall in defendant’s theater. The cause of action was based on the theory that defendant was negligent in failing to provide suitable and adequate light at the .place where plaintiff stumbled or fell as she was about to go down a stairway leading from tbe aisle to the front of the balcony. In sustaining a verdict in her favor, it was said:
“A moving picture theater is a place to which the public is invited, and plaintiff had a right to presume that defendant’s picture house was maintained in a reasonably safe condition as to lights, and had a right to pass along the aisle thereof with, a reasonable assurance, of its being in a safe condition. The fact that the premises were maintained in a somewhat darkened condition might have given added assurance of its being reasonably safe.”
It was held that the questions as to defendant’s negligence and plaintiff’s freedom from contributory negligence were for the determination of the jury.
In Keech v. Clements, supra, plaintiff was injured by falling in the vestibule of defendant’s hotel in the city of Detroit. The place where the accident happened was dimly lighted and it was plaintiff’s claim that because of such condition she was unable to note the condition of the floor, on. which there was an accumulation of snow, slush and ice. As in the case at bar, a motion for a directed verdict for defendant was granted at the conclusion of plaintiff’s proofs. This was held to be error, the court indicating in its opinion that the negligence of defendant and the contributory negligence of plaintiff were questions “on which the minds of reasonable men might honestly reach different conclusions.” •
In Branch v. Klatt, 165 Mich. 666, plaintiff was injured while endeavoring to leave defendant’s theater while the performance was in progress. The lights in the theater were so dim, according to plaintiff’s testimony, as to render it impossible for her to see clearly the stairs that she was required to descend. This court reversed' a judgment entered on a directed verdict at the conclusion ■ of plaintiff’s proofs, holding that the question as to plaintiff’s contributory negligence should have been submitted to the jury. In reaching such conclusion it was said:
“One would have a right to presume that the defendant had discharged his duty of having the premises in a reasonably safe condition, as to lights and construction; and the ordinary person would naturally suppose that- it would be safe to pass along a passageway provided for his exit, with reasonable assurance of its being in a safe condition. The very fact of the premises being maintained in a darkened condition might give him added assurance of its being reasonably safe.”
In Nezworski v. Mazanec, supra, plaintiff, found by the jury to be an invitee, was injured on defendant’s premises because of defendant’s alleged failure to maintain the premises in a safe condition and keep them properly lighted. There the trial court denied a motion for a directed verdict, submitting the disputed issues of negligence and contributory negligence to the jury. In affirming the case, Justice Starr, speaking for the court, cited and discussed many of the prior decisions in this State and the principles of law applicable and controlling in a situation such as is presented in the case at bar. See, also, Levy v. Israelite House of David, 216 Mich. 373; Cox v. Detroit United Theatres Corp., 306 Mich. 479.
In the case of Crowley v. Bugg, 292 Ill. App. 210 (10 N. E. [2d] 678), the factual situation was very similar to that presented in the case at bar. Plaintiff was injured in defendant’s theater as a result of stumbling over a child on the floor in the aisle. The performance was in progress, the lights were dim, and it was claimed there were no lights on the floor, so that plaintiff was unable to see the child. In sustaining the judgment of the trial court in favor of plaintiff, it was said:
“In the case of Gibbons v. Balaban & Katz Corp., 242 Ill. App. 524, which was a case somewhat similar to the instant case, the court said at page 529: ‘We think that under the facts disclosed it was defendant’s duty to its patrons to sufficiently light the aisle and stairway during the exhibition of a picture. It appears that during exhibitions they, with defendant’s consent, entered or left the theater at will by way of said aisle and stairway and by other aisles, et cetera. In 38 Cyc. pp. 268, 269, it is said: ‘ ‘ The owner of a place of - entertainment is charged with an affirmative positive obligation to know that the premises are safe for the public use, and to furnish adequate appliances for the prevention of injuries which might be anticipated from the nature of the performance. * - * * He is required to use care and diligence to put and keep the premises and appliances in a reasonably safe condition for persons attending; and if he fails to perform his duty in this respect so that the premises or appliances are in fact unsafe, he may be held liable for personal injuries occasioned thereby. * * * Reasonable care is held to be the measure of duty, and the undertaking of the proprietor is held not to call for an application of the same strict rule of responsibility as in the ease of common carriers. He is not an insurer.” These rules have been held applicable as to the lighting of aisles, stairways, et cetera, of theaters (see note in 22 A. L. R. p. 670 etseq.). * * * And in the instant'case we think that the question whether the stairway and steps were insufficiently lighted as charged, and whether defendant was negligent in failing to have them sufficiently lighted at the time of plaintiff’s fall, were questions for the jury under the conflicting evidence to determine.’
“It is next contended by the defendant that the plaintiff was guilty of contributory negligence. In the case of Gibbons v. Balaban & Katz Corp., 242 Ill. App. 524, in citing the case of Andre v. Mertens, 88 N. J. Law, 626 (96 Atl. 893), it was held that the injured plaintiff could not be held guilty of contributory negligence as a matter of law, but that the question as to whether she was or not was for the jury to determine. We think in the instant case that under all the evidence, whether plaintiff was guilty of contributory negligence, was for the jury to determine.
“It is next contended that the so-called negligence of the defendant was not the proximate cause of the injury; that the injury was caused by an independent agency, namely, the child in.the aisle over which the plaintiff fell. It is not necessary that an act of negligence to be the proximate cause of an injury, need be the sole or exclusive proximate cause, but it must be a proximate cause, either alone or concurrently with some other cause. * * *
“In the instant case it is our opinion that even though‘a child in the aisle of a darkened theater caused the plaintiff to fall and be injured, that does not excuse the defendant from the duty imposed upon him to keep and maintain the aisle's of his theater in a reasonably safe condition for the use of patrons and would not preclude plaintiff from recovering damages for the injuries which she sustained. Stone v. Donk Bros. Coal & Coke Co., 199 Ill. App. 64.”
In view of the manner in which the accident happened in the instant case, and the attendant facts and circumstances, the following statement of the Pennsylvania court in Rutherford v. Academy of Music, 87 Pa. Sup. 355, is in point:
“We are not unmindful of the fact that places in which plays, moving pictures and certain other forms of entertainment are given must be made substantially dark during the exhibition. But it is a matter of common knowledge that it is the practice of the proprietors of theaters and moving picture establishments to protect patrons against this necessary darkness by equipping ushers with flashlights and requiring the ushers to assist the patrons when they enter such a place of entertainment when it is dark. The law required this defendant to do nothing unreasonable. Reasonable protection to plaintiff under all the circumstances is the measure of its responsibility. Whether it performed its duty was a jury question.”
A similar conclusion was expressed by the court in Lyric Amusement Co. v. Jeffries, 58 Ariz. 381 (120 Pac. [2d] 417). There plaintiff recovered judgment for personal injuries sustained in defendant’s theater because of inadequate lighting conditions. In discussing the duties of the defendant, it was said:
“It is a well-known fact, of which we take judicial notice, that in the exhibition of moving pictures it is necessary that a theater be darkened to a very great extent, so much so that patrons entering the auditorium after the pictures have started are generally unable to see how to reach their seats safely without some special aid, until their eyes have become adjusted to the changed light, for it is a scientific fact that anyone passing from a brightly-lighted place to a partially-darkened room will require some time for the sight to become adjusted so that he can see properly in the latter place. For this reason most movie houses now provide ushers with flashlights, whose duty it is to assist patrons in reaching their seats, and we think some aid for that purpose must be furnished, in order that the owner of a theater may be said to use due care in the seating of his patrons.”
Other decisions involving the general principles under consideration are Emery v. Midwest Amuse ment & Realty Co., 125 Neb. 54 (248 N. W. 804); Magruder v. Columbia Amusement Co., 218 Ky. 761 (292 S. W. 341); Poppleston v. Pantages Minneapolis Theatre Co., 175 Minn. 153 (220 N. W. 418); James v. Smith, 93 Pa. Sup. 485; Andre v. Mertens, 88 N. J. Law, 626 (96 Atl. 893); 62 C. J. pp. 869, 870.
Construing plaintiff’s testimony in the light most favorable to her, we do not think that it may properly be said that as a matter of law there was no negligence on defendant’s part constituting the proximate cause of the accident. Neither may it be said that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff’s ■ testimony indicates that the theater was so dark that she was unable to see. The fact that defendant employed an usher, and furnished him a flashlight to assist patrons, constituted a recognition that such assistance might be reasonably required. Plaintiff was an elderly woman. No reason appears on the' record for the failure of defendant’s employee to accompany her down the aisle with his flashlight, thus supplementing the dim light within the theater. Doing so would not have interfered with the performance. Plaintiff, on the record before us, was entitled to have the issues in the case submitted to the jury.
The judgment is reversed and the cause remanded for a new trial, with costs to plaintiff.
Btjtzel, C. J., and Sharpe, Boyles, Reid, North, and Starr, JJ., concurred. Bushnell, J., took no part in the decision of this case. | [
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] |
Moore, J.
This suit is in trover. It was brought in justice’s court to recover the value of a sewing machine. The plaintiff recovered a judgment for $30. The case was appealed by defendant to the circuit court, where plaintiff again recovered a judgment of $30. The case is brought here by writ of error.
Counsel for appellant say, we quote from the brief:
“There are no intricate questions of law involved in this case. It seems to us that all the questions involved and upon which error is assigned are too elementary to admit of discussion, and counsel desire to say at the outset that, but for the fact that the defendant is conducting a large business in this and other parts of this State in which the result of this case in the trial court might establish a dangerous precedent, the amount herein involved would not justify its seeking to have it reviewed by this court.
“While defendant has alleged 11 assignments of error upon the trial, it will be apparent that the error chiefly relied upon will be the improper admission of testimony offered by plaintiff by which he sought to show the value of the old machine, or, in other words, to show_ plaintiff’s measure of damages, and that the verdict is against the weight of the evidence, and the damages are excessive.”
The plaintiff is a married man with a wife and four children. It is his claim that his wife does not speak English well, and that in his absence an agent of defendant visited his house and tried to exchange a new machine for the one they had in the house; that his wife declined to make any exchange in the absence of her husband, but that she was persuaded by the agent to allow him to take the old machine and leave a new one, the agent assuring her that if the husband did riot approve he would return the old machine and take away the new one. It is the further claim that the agent left with the wife, though no money was paid, a paper reading:
“September 13, 1910.
“Received of Mrs. William Barbrick cash, $5.00, and old machine, $5.00, total paid, $10.00; balance $35.00, to be paid $2.00 monthly from this date.
“White Sewing Machine,
“-, Agent.”
He also left with her a contract containing, among other things, the following:
“Having paid by cash, $5.00 and by Disc. $5.00 (stipulated rent for the first month only) for which I receive the company’s so-called ‘blue paper’ receipt, I further agree to pay at the office of the said company, at Grand Rapids, Mich., or to its authorized collector, the sum of three dollars on the 25th day of each and every month after date, upon condition that when the entire amount of forty-five dollars, the agreed value of said sewing machine, including first payment, shall have been paid by me, the said company shall upon demand make me a bill of sale of said machine. And I agree to pay the said monthly rental until the balance of said agreed value shall have been paid; and it is further expressly understood that until the whole sum of said agreed value whether in judgment or not, shall be paid, the said White Sewing Machine Company neither parts with nor do I acquire any title to said White Sewing machine.
“And I agree that until this contract is fully paid, with interest after maturity, all payments made by me shall be considered by the parties hereto as payments by me for the use and rental of said machine under the terms hereof.”
A sum of $5 was indorsed on the back of this paper.
It is the further claim of plaintiff that, when he reached home and found out what had been done, he did not approve, and that the agent was so notified in writing by means of a postal card, the next day; that the agent replied by postal that he regarded the transaction as a sale and should expect payments to be made according to the contract. No payments were made, nor was the old machine returned. The plaintiff declined to let the defendant take the new machine until the old one was returned.
The defendant claimed it was unable to return the old machine, but was willing to replace it with another, and finally brought replevin for the machine left at the house of the plaintiff. No defense was interposed to this action, and defendant recovered the machine. This action was then brought, with the result before stated. Upon the trial in the circuit court the plaintiff was allowed to testify to the cost of his machine, and he and his wife were both allowed to testify as to how its work compared with the work done by the machine left by the agent of defendant. Error is assigned upon the admission of this testimony.
Defendant gave testimony tending to show that the machine of plaintiff was not worth more than $5 to $10, and it is its claim that plaintiff is entitled to recover only the market value of his machine, and that the verdict of $30 is excessive.
In Rose v. Lewis, 10 Mich. 483, which was an action of trover for the wrongful conversion of a promissory note, Justice Campbell, speaking for the court, said:
“It is undoubtedly true that damages for the conversion of articles having a regular market value are measured generally by that value. But that is only _ because such a measure furnishes the precise redress ’ which the law always aims at giving, by making good as near as may be the injury which the aggrieved party has sustained. Where articles have not a standard or market value, then their value to the owner, so far as they are susceptible of pecuniary measure ment which is not fanciful or merely speculative, furnishes the true test.”
A judgment for the full amount.of the note was sustained, though some witnesses for the defendant testified that the maker of the note was in debt and had no property to pay his debts.
In Dalton v. Laudahn, 27 Mich. 529, it is said:
“The rule seems to be settled that when property is tortiously taken, the owner is not only entitled to an action, but to full compensation in damages.”
' In Smith v. Mitchell, 12 Mich., at page 191, it is said:
“Evidence of what the property brought at auction is admissible, as having some tendency to prove value.”
In Worthington v. Hanna, 23 Mich., at page 534, it is said:
“It is also alleged as error that the court refused to instruct the jury to disregard the appraisement made under the attachment proceedings, in estimating the value of the goods.
“Plaintiff in error was allowed to introduce testimony on this subject, and the appraisal was left to the jury for what it was worth and not as in any way conclusive. We do not think there' was any objection to this. It is a sworn valuation, made under the statute by persons selected by the plaintiff in error himself, as most likely to value the property judiciously. It is so far conclusive that the sheriff is compelled to release the property on a bond proportioned by its value. Testimony of value, being very much matter of opinion, has been received from many sources supposed to be reasonably reliable, upon less security against error than exists here. In Smith v. Mitchell, 12 Mich. 180, we allowed auction prices to be considered. In Sisson v. Railroad Co., 14 Mich. 489 [90 Am. Dec. 252], values were allowed to be shown by the published prices current. In Cliquot’s Champagne, 3 Wall. [U. S.] 114, and Fennerstein’s Champagne, 3 Wall. [U. S.] 145, a still more liberal rule was adopted. There may be serious objections to making any of these extraneous estimates conclusive. But when an appraisement is made in pursuance of a statute under oath, in the course of the proceedings, under which the party has himself acted, and he himself selected the appraisers, we think it would be going too far to say that such a valuation is entirely worthless as evidence against him. Assuming that he acted fairly in selecting them — and this is a reasonable presumption — it must be supposed that the safeguards provided by the statute with an express reference to securing this evidence will give it at least a claim to consideration against the officer who obtained it! See, also, Comstock v. Smith, 20 Mich. 338; Kermott v. Ayer, 11 Mich. 181.”
We do not think there is occasion to reverse this case.
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 but three assignments of error:
“(1) The court erred in excluding the following question: ‘What was that accident the result of, in
your opinion?’ propounded to the witness Leonard Wall by Mr. Van Dyke, attorney for plaintiff.
“(2) The court erred in stating in the charge to the jury that ‘there is no proof of negligence.’
“(3) The court erred in directing a verdict for the defendant.”
We are of opinion that the answer to this question was properly excluded. All the facts surrounding the accident had been detailed to the jury. It was for the jury to draw such legitimate inferences from those facts as were warranted. It was not a case in which expert testimony was admissible. Lemon v. Railway Co., 59 Mich. 618 (26 N. W. 791); Jackson v. Railway Co., 161 Mich. 168 (125 N. W. 763).
The next two assignments of error may be treated together. They raise the controlling question in the case. In our opinion the verdict was properly directed for the following reasons: The only defect shown to exist in the truck at the time of the accident was that the axle on its underside was worn somewhat flat. It is uncontradicted that this flatness did not render the truck unsafe but that its existence» necessitated a more frequent oiling than otherwise. The record clearly shows that the duty of oiling rested upon the plaintiff himself. It is not even shown that the accident occurred by reason of there being insufficient oiling. From all the testimony, the conclusion is inevitable that the accident and resulting injury was caused by the coming off of the nut or burr which holds the wheel upon the axle. This is an accident which, in turning and backing of wagons, we should suppose to be of no infrequent occurrence. It was such an accident as a casual inspection by the plaintiff would have averted, and, according to the testimony in the record, the duty of inspection rested upon plaintiff himself. Indeed, he himself says, “Any man with a new tool ought to look the tool over before he takes it out.”
A glance at the alleged defective axle at the depot where plaintiff obtained his last load would undoubtedly have disclosed the condition of the nut. At the time he started from the depot, it must have been very nearly off, as the evidence discloses the fact that in going forward it was so threaded as to become tighter instead of looser through the friction between it and the end of the hub. We think the plaintiff, under the circumstances of this case, must be held to have as sumed the risk. Prentiss v. Manufacturing Co., 63 Mich. 478 (30 N. W. 109); Kean v. Rolling Mills, 66 Mich. 277 (33 N. W. 395, 11 Am. St. Rep. 492); Wheeler v. Berry, 95 Mich. 250 (54 N. W. 876); Breig v. Railway Co., 98 Mich. 222 (57 N. W. 118); Gavigan v. Railway Co., 110 Mich. 71 (67 N. W. 1097) ; Welch v. Brainard, 108 Mich. 38 (65 N. W. 667) ; Soderstrom v. Lumber Co., 114 Mich. 83 (72 N. W. 13) ; Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145) ; Mackey v. Furnace Co., 119 Mich. 552 (78 N. W. 783) ; Goga v. Foundry Co., 142 Mich. 340 (105 N. W. 859).
In this connection it should be noted that the defect to which plaintiff called the attention of defendant’s superintendent at the brewery company was not in any wise connected with the accident or injury; it consisting in a tendency of the tire on the rear right wheel to come off.
The judgment is affirmed.
McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred. | [
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V. J. Brennan, P. J.
Defendant, Adoise White, was charged with first-degree murder in violation of MCLA 750.316; MSA 28.548, as a result of the killing of the manager of a Kroger supermarket during an armed robbery on March 16, 1963, in the Township of Waterford, Oakland County. Defendant’s accomplice, one Charles Hodges, pleaded guilty to second-degree murder and testified against defendant. Defendant was tried by a jury and convicted of first-degree murder in Oakland County Circuit Court on August 13, 1963. Defendant’s conviction was reversed by this Court on May 1, 1972. People v White, 40 Mich App 433; 198 NW2d 904 (1972). Defendant was tried again by a jury and convicted of first-degree murder on August 29, 1973. Again, defendant appeals.
The victim, Robert Green, was the assistant manager of a Kroger store, and was defendant’s employer. The victim’s body was discovered in a small room in the store in the early morning hours of March 17, 1963. The victim’s hands were tied behind his back. A representative from the Oakland County Medical Examiner’s Office testified that Robert Green had been stabbed or slashed at least 42 times and that he had also suffered a number of other wounds. The victim was also shot once at the base of the head. The cause of death was a stab wound on the left side of the chest which entered the victim’s heart. An auditor for the Kroger store testified that the store’s safe was short $1,733.
At a Walker hearing held on January 8, 1973, the trial judge ruled inadmissible as involuntary a confession obtained from defendant on March 19, 1963. During the trial, on August 14, 1973, the trial judge ruled inadmissible as substantive evidence a filmed interview of defendant by Ven Marshall, a TV-news reporter, which was made on March 19, 1963, while defendant was still unrepresented by counsel. The judge ruled, however, that if defendant chose to take the stand to deny his guilt, he would allow the filmed interview to be used for rebuttal.
Defendant’s accomplice, Charles Hodges, had apparently informed the prosecution that he would give testimony in this trial substantially similar to his testimony at the former trial in which he testified against defendant. Shortly before being called as a witness, however, Hodges changed his mind and began to deny the truth of testimony he had given at the previous trial. The prosecution proceeded to call Hodges as a witness, and when Hodges denied that either he or defendant were ever involved in any robbery or murder at the Kroger store, the prosecution was allowed over objection to impeach Hodges’ testimony by a filmed television statement he had made and by reading into the record Hodges’ testimony in the previous trial.
The prosecution also called Ven Marshall, the television-news reporter, to lay a foundation for the introduction of the filmed statement of Charles Hodges. The prosecutor asked Marshall if he could remember what questions he has asked and what answers he had received. In response thereto Marshall replied, "Quite obviously I can’t remember the wording of the questions verbatim, but I did ask Mr. White and Mr. Hodges did they participate in the slaying of Mr. Green, and both told me they had.”
Defendant brings several allegations of error, three of which merit our discussion.
The defendant first contends that the trial court committed reversible error mandating reversal by permitting, over defense objection, the impeachment of an accomplice called to testify by the prosecution.
As a general rule a party cannot impeach his own witness. People v Lee, 307 Mich 743; 12 NW2d 418 (1943). This rule has roots deep in our common law traditions, but the precise origin thereof is not clear. See McCormick, Evidence (2d ed), § 38, p 75. Exceptions have been made, however, where the prosecution in a criminal case is required to call res gestae witnesses. People v Elco, 131 Mich 519; 91 NW 755 (1902), MCLA 767.40a; MSA 28.980(1).
The policy to be served by the rule against impeaching one’s own witness is anything but clear. Its defenders contend that the party who calls the witness to testify vouches for his credibility, and that if the calling party is allowed to impeach his own witness he could coerce the desired testimony by the threat of character assassination under the guise of impeachment. The former rationale has little weight, since with the exception of character witnesses and expert witnesses, a litigant has very little choice in the selection of witnesses. He must call those who have some firsthand knowledge of the facts in controversy. We note that five jurisdictions have by statute expressly provided for the impeachment of one’s own witnesses by prior inconsistent statements, and eleven jurisdictions allow such impeachment if the witness is proved to be adverse. California has abandoned the rule against impeaching one’s own witness in its entirety, as has Kansas. Further, the newly enacted Federal Rules of Evidence completely abandon the rule. The Advisory Committee’s Note accompanying the proposed Rule 607 prior to adoption explains the reasoning behind the change in the rule.
"The traditional rule against impeaching one’s own witness is abandoned as based on false premises. A party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary. * * * The substantial inroads into the old rule made over the years by decisions, rules, and statutes are evidence of doubts as to its basic soundness and workability. * * * ”
The peculiar posture of this case is noteworthy. In a former trial, the witness had been allowed to plead guilty to second-degree murder and had testified against defendant. He admitted having told the prosecution prior to this trial that he would testify against the defendant as he had previously. During the trial he changed his mind. If he had refused to testify altogether, he would have been deemed unavailable and his prior recorded testimony would have been admissible as substantive evidence for the prosecution. People v Pickett, 339 Mich 294; 63 NW2d 681 (1954). As it was, he took the stand and denied his own guilt and the guilt of defendant. If defendant had called Hodges as his witness, and Hodges had given the same testimony, the prosecution would have been allowed to impeach him with his prior recorded testimony as well as other prior inconsistent statements. If the witness had not informed the prosecution of his intention to testify favorably to the defendant prior to taking the stand, the prosecution would have been able to impeach his credibil ity with prior inconsistent statements based on surprise, a recognized exception to the rule. People v Walters, 223 Mich 676; 194 NW 538 (1923), People v Payne, 131 Mich 474; 91 NW 739 (1902), People v Gillespie, 111 Mich 241; 69 NW 490 (1896). If the prosecution had known in advance that the witness would not testify as he had previously, different preparations might have been made for trial. If we follow the general rule regarding impeachment of one’s own witness, therefore, a confessed felon would be allowed to sabotage the people’s case by promising to testify favorably to the prosecution prior to trial, and then informing the prosecution after trial was underway that he would instead testify favorably to the defendant.
Where a witness has promised to testify for a party in accord with testimony given at a previous trial, thereby inducing the calling party to rely thereon, and has informed the calling party of a change in intentions after the trial has begun, if the trial judge determines such witness to be adverse at the time he takes the stand, the calling party may introduce the prior recorded testimony and prior inconsistent statements of the witness for impeachment purposes.
Defendant next contends that he was denied his right to take the stand and testify in his defense by the trial court’s erroneous ruling that it would admit on rebuttal the 1963 television-news film in which defendant made certain admissions. Defendant contends that the judge had impliedly ruled the admissions, made during the television interview, involuntary and that consequently it was error for the admissions to be admitted in rebuttal. The people argue that the fact that the trial judge ruled the admissions admissible for impeachment purposes meant that he impliedly ruled them to be voluntarily made, and thus not inadmissible. The trial judge’s ruling was as follows:
"Gentlemen, I’m going to follow the law in this case in Harris v New York, of the majority opinion, and that opinion of the United States Supreme Court speaks very clearly. They simply said this, that this line of proof may not be admitted in any case in chief, the case which the people have just finished, that they have also said so clearly and unequivocally that such proof of impeachment led this defendant to the stand and denied that he ever made controversial statements that the Court saw in camera in Exhibit 21-A, that they could be admitted. If such circumstances develop in this case, I would want you to know that I will admit the evidence in Exhibit 21-A.”
The United States Supreme Court case of Harris v New York, 401 US 222; 91 S Ct 643; 28 L Ed 2d 1 (1971), held that where a confession is obtained from a defendant in violation of his Miranda rights, such confession may not be used in the prosecution’s case-in-chief, but it may be used for impeachment purposes if the defendant chooses to take the stand to deny his guilt. We think the trial judge erred in finding Harris applicable to the case at bar. In the Harris case, the United States Supreme Court recognized the distinction between statements to a law enforcement officer and statements made to a third party.
"Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.” Harris, supra, at 225-226; 91 S Ct at 646; 28 L Ed at 5.
The trial judge viewed the film clip a total of three times. Nowhere did he indicate that he found the statements in any way coerced or involuntary. The prosecution argues that these statements should have been admissible in their case-in-chief. We agree. The news reporter had no duty to give the defendant any Miranda warnings. Since the judge’s decision in this regard served to help rather than hurt the defendant’s case, this was clearly not reversible error.
Defendant further contends that the trial court committed reversible error mandating a new trial in refusing to declare a mistrial when the witness who interviewed defendant on television volunteered that defendant had admitted participation in the murder of Robert Green. This contention has little merit. For reasons stated, supra, full testimony of the conversation should have been freely admissible in the people’s case since they were made to a third party and not to police officials. If the judge had been correct in ruling such testimony improper, it would still not constitute reversible error because the prosecution did not elicit the testimony purposely and it will be presumed that the judge will apply the proper corrective measures if requested to do so. See People v Swann, 44 Mich App 329; 205 NW2d 281 (1973), and cases cited therein.
The judge immediately ordered the unresponsive testimony stricken from the record and the defense did not ask for a curative instruction. The defense chose to cross-examine the witness fully about the statements.
We have examined the other contentions of error and find them to be without merit.
Affirmed.
See McCormick, Evidence (2d ed), § 38, p 77, n 76.
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Sawyer, P.J.
Plaintiff appeals an order of the circuit court granting summary disposition for defendants on plaintiffs complaint seeking recovery on a loan secured by a mortgage. We affirm.
Plaintiff alleges that it made a $392,000 loan to Hanna and Jaklin Shina secured by a mortgage on property located in West Bloomfield. Most of the loan proceeds were used to satisfy and discharge a prior first mortgage on the property in favor of Option One Mortgage Corporation. According to plaintiff, it was unaware of the fact that, at the time it made the loan to the Shinas, there were two other mortgages recorded against the property: a $200,000 mortgage in favor of ShoreBank and a $249,000 mortgage in favor of Standard Federal Bank. Plaintiff alleges that the Shinas have defaulted on both those mortgages, which put the property into foreclosure. Although both those mortgages were recorded before the mortgage in favor of plaintiff, both were made after the Option One mortgage.
Plaintiff filed a multicount complaint. Count one claimed that, under the doctrine of equitable subrogation, the mortgage in favor of plaintiff should be supe rior to, and have priority over, the mortgages in favor of ShoreBank and Standard Federal. That is, the Washington Mutual mortgage should stand in the place of the Option One mortgage. The trial court granted summary disposition in favor of defendants, concluding that plaintiff had no legal obligation to pay off the Option One mortgage and, therefore, it was a volunteer not entitled to equitable subrogation. The trial court also referenced plaintiffs ability to recover under a title insurance policy. Plaintiffs claims against ShoreBank and Standard Federal are the only ones at issue in this appeal. We review de novo the grant of summary disposition. Beaudrie v Henderson.
Subrogation comes in two forms described by the Supreme Court in French v Grand Beach Co as follows:
The doctrine of subrogation rests upon the equitable principle that one who, in order to protect a security held by him, is compelled to pay a debt for which another is primarily liable, is entitled to be substituted in the place of and to be vested with the rights of the person to whom such payment is made, without agreement to that effect. This doctrine is sometimes spoken of as “legal subrogation,” and has long been applied by courts of equity. Stroh v. O’Hearn, 176 Mich. 164,177 [142 NW 865 (1913)]. There is also what is known as “conventional subrogation.” It arises from an agreement between the debtor and a third person whereby the latter, in consideration that the security of the creditor and all his rights thereunder be vested in him, agrees to make payment of the debt in order to relieve the debtor from a sacrifice of his property due to an enforced sale thereof. It is wholly independent of any interest in the property which the lender may have to protect. It does not, however, inure to a mere volunteer who has no equities which appeal to the conscience of the court.
In Stroh v O’Hearn, the Court noted that the equitable principle of subrogation is not available to volunteers:
Subrogation is an equitable doctrine depending upon no contract or privity, and proper to apply whenever persons other than mere volunteers pay a debt or demand which in equity and good conscience should have been satisfied by another. It is proper in all cases to allow it where injustice would follow its denial, and in allowing it all injustice should be guarded against so fax as possible.
The principle that subrogation is not available to a mere volunteer was again applied in Lentz v Stoflet. Indeed, even in Walker v Bates, a case that cannot be reconciled with Lentz, the Court acknowledged that subrogation is not available to a mere volunteer. See also Hartford Accident & Indemnity Co v Used Car Factory, Inc and Beaty v Hertzberg & Golden, PC.
Thus, the question becomes whether plaintiff is properly categorized as a “mere volunteer.” Not surprisingly, plaintiff relies on Walker in its argument that it was not a volunteer in paying off the Option One mortgage. The relevant transaction history in Walker is this:
(1) The Hannas purchased the property at issue and granted a mortgage to Highland Park State Bank.
(2) The plaintiffs sued Henry and Frances Bates, claiming that the Bateses had fraudulently purchased the property with the plaintiffs’ money.
(3) Frances Bates contracted to sell the property to Charles Derr and his wife.
(4) The Derrs contracted to sell the property to the Howeses, with the Howeses assuming the mortgage given to Highland Park State Bank.
(5) A lis pendens was filed related to the plaintiffs’ suit against the Bateses.
(6) Frances Bates mortgaged the property to Commonwealth-Federal Savings Bank, with the Hannas’ mortgage to Highland Park State Bank being paid and discharged.
(7) Frances Bates conveyed the property by warranty deed to the Howeses.
(8) A judgment was rendered in favor of the plaintiffs and a lien was placed on the property.
(9) An action was commenced to foreclose on the lien.
In the litigation to foreclose the lien, Commonwealth-Federal claimed that it was entitled to be subrogated to the rights of Highland Park State Bank as mortgagee. The analysis by the majority in Walker, however, is scant. It essentially consists of quoting much of the same material from French that we did above, and then making the following statement:
The first mortgage was upon the property when the notice of lis pendens was filed. No injustice results from subjecting plaintiffs’ rights thereto. Their interest in the property is charged with the payment of a mortgage lien of the same amount as that which was on it when the lis pendens was filed. The trial court very aptly said:
“It is immaterial to the plaintiff and wasn’t wronging him any, to just simply change from the Highland Park Bank to the Commonwealth Bank.”
In short, although the Walker majority acknowledged the “mere volunteer” rule by quoting from French, it did not engage in any meaningful analysis of the point. Rather, the extent of its analysis rested on its conclusion that applying the doctrine would not create any injustice to the holder of the lis pendens because the holder was in no worse position than it was before the remortgaging.
While the majority in Walker ignored the volunteer rule, the dissent did not, making the following observation:
A stranger to the title cannot, by payment of the whole or any portion of a mortgage, become subrogated to the rights of the mortgagee. The Commonwealth-Federal Savings Bank was a stranger to the parties and the title, a volunteer, with no interest in or claim against the parties or the premises which it was, in equity entitled to have protected. Under such circumstances, it is not entitled to subrogation to the prejudice of plaintiffs’ lien.
Were Walker the last word on the subject, we might have to agree with plaintiff that Walker compels a conclusion that an entity in plaintiffs position is not a volunteer, though such a conclusion would arise more from the implications of Walker than its express holding or analysis. But Walker is not the final word on the subject. Rather, it appears that the Supreme Court’s opinion nine years later in Lentz is the Supreme Court’s latest word on the topic of equitable subrogation in the context of mortgages. Lentz, like Walker, was written by Justice Sharpe. Lentz, however, reached the opposite result as Walker, despite a similarity in facts.
Specifically, the transactions at issue in Lentz were these:
(1) William Mexico and his wife gave a mortgage in the amount of $4,000 to Rockwood State Bank over a 94.72-acre tract of land.
(2) The Mexicos conveyed the property to the Stoflets.
(3) The Stoflets mortgaged 68.49 acres of the property to Rockwood State Bank.
(4) Rockwood State Bank foreclosed on both mortgages and acquired title to the property.
(5) The Stoflets mortgaged the 68.49-acre tract to the State Savings Bank of Carleton.
(6) Rockwood State Bank discharged the mortgages it held and conveyed the property to the Stoflets.
(7) The next day, the Stoflets made payment to Rock-wood State Bank with money loaned to them by an agent of the plaintiffs, with a mortgage being granted to the plaintiffs covering the 68.49-acre tract of land as well as two other parcels.
(8) The plaintiffs commenced foreclosure on the mortgage and sought a determination that their mortgage be given priority over the mortgage to the State Savings Bank of Carleton on the basis that the plaintiffs’ rights should be subrogated to the rights of Rockwood State Bank and its two mortgages on the property under a theory of equitable subrogation.
In his analysis, Justice Sharpe again quoted from French, as well as three other sources discussing the volunteer rule. The analysis began with a discussion of the fact that the new mortgage was in a greater amount and covered additional land, with the ability of the State Savings Bank to recover any deficiency being reduced. The majority then made the following observations:
When plaintiffs loaned the money they had no interests to protect. It was done without any agreement or understanding that they were to enjoy the fruits of subrogation. It was voluntarily done upon their part and to grant it would not leave defendant in its former position. A mere volunteer is not entitled to subrogation.
Interestingly, Justice Sharpe did not cite his previous opinion in Walker, much less explain how it was distinguishable from Lentz.
While Justice Sharpe ignored Walker, Justice POTTER, the author of the dissent in Walker, did not. Justice Potter filed a concurring opinion in Lentz, which opinion opened with the observation that the effect of the opinion in Lentz is to overrule Walker. After reviewing several authorities on the issue of the volunteer rule, Justice POTTER stated:
This case [Walker] holds that a mere stranger to the title who voluntarily advances money to help a fraudulent holder of real estate pay a mortgage placed by him thereon has equities more appealing to the conscience of the court than those of the real but defrauded owner of the real estate with notice of whose rights the money was advanced. This case stands alone. It violates all the principles underlying the cases involving legal or conventional subrogation in England and America. It is not a precedent to be followed, but an accident to be avoided.
We also find guidance from Justice POTTER in his concurrence:
Subrogation “from its very nature, never could have been intended for the relief of those who were in a condition in which they were at liberty to elect whether they would or would not be bound.” Gadsden v. Brown, 1 Speer’s Eq. (S. C.) 37 [17 SC Eq 37 (SC App Eq, 1843)]. This, says the Supreme Court of the United States, is perhaps as clear a statement of the doctrine as can be found anywhere. Ætna Life Ins. Co. v. Middleport, 124 U. S. 534 (8 Sup. Ct. 625) [31 L Ed 537 (1888)]. This was the rule recognized in Smith v. Austin, 9 Mich. 465 [1862], and Kitchell v. Mudgett, 37 Mich. 81 [1877]. In Desot v. Ross, 95 Mich. 81 [54 NW 694 (1893)], complainant was sought to be subrogated. It is said:
“She was a stranger to the title, and as such could not, by payment of the whole or any portion of the mortgage, become subrogated to the rights of the mortgagee.”
The court cited in support of this proposition Kelly v. Kelly, 54 Mich. 30, 47 [19 NW 580 (1884)]; Shinn v. Budd, 14 N. J. Eq. 234, 237 [(1862)]; Brice v. Watkins, 30 La. Ann. 21 [(1878)]; and quoted with approval from Sanford v. McLean, 3 Paige Ch. (N. Y.) 117, 122 (23 Am. Dec. 773) [3 NY Ch Ann 80 (1832)], as follows:
“ ‘It is only in cases where the person advancing money to pay the debt of a third party stands in the situation of a surety, or is compelled to pay it to protect his own rights, that a court of equity substitutes him in the place of the creditor as a matter of course, without any agreement to that effect. In other cases the demand of a creditor which is paid with the money of a third person, and without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished.’"
We are obligated to follow the most recent pronouncement of the Supreme Court on a principle of law. Brown v Genesee Co Bd of Comm’rs (On Remand). The most recent pronouncement of the Supreme Court on this topic would certainly seem to be that the doctrine of equitable subrogation does not allow a new mortgagee to take the priority of the older mortgagee merely because the proceeds of the new mortgage were used to pay off the indebtedness secured by the old mortgage. It is clear to us that, under Lentz, plaintiff is a mere volunteer and, therefore, is not entitled to equitable subrogation.
Plaintiff, however, offers other reasons why it should be entitled to equitable subrogation. Plaintiff argues that equitable subrogation should apply because the mortgage was obtained through fraud, the fraud being the Shinas’ failure to disclose the mortgages given to defendants in the mortgage application to plaintiff. But the cases cited by plaintiff do not support its position.
First, three of the cases did not even involve the question of giving priority to one mortgage over another. In Linn v Linn, the mortgagee held two mortgages on a property, which were replaced by a new mortgage, with the mortgagors being a husband and wife. After the husband’s death, the wife denied having executed the mortgage. The Court held that the earlier mortgages were to be revived because their discharge was obtained through the supposed execution of the fraudulent new mortgage. In White v Newhall, the Court ruled against the purported mortgagee, concluding that the proper remedy was for the purported mortgagee to seek an equitable lien. Finally, in Coulter v Minion, Minion owned property in Barry County and Lloyd owned property in Grand Rapids. They exchanged the two properties, plus an additional $250 to be paid to Minion. Lloyd had mortgaged the Grand Rapids property and, under the agreement, Lloyd would mortgage the Barry County property to pay off the Grand Rapids mortgage and to pay the $250 to Minion. Minion arranged the mortgage with Coulter. As it turned out, Minion swindled Lloyd because the Barry County property was essentially worthless, and Lloyd abandoned it, defaulting on the mortgage. Coulter then sued Minion, seeking to be subrogated to the rights of the mortgagee on the Grand Rapids property (which now belonged to Minion) to recompense Coulter for her losses caused by Minion’s fraud. The Court granted the mortgagee subrogation to Coulter. None of those cases dealt with a later mortgage being equitably subrogated to an earlier mortgage to leap ahead of intervening mortgages on the priority list.
On the other hand, in Eggeman v Harrow, there was a question of the priority of an intervening mortgage, but it presented a pure question of fraud rather than an application of the volunteer doctrine. In Eggeman, the Eggemans gave a $3,000 mortgage to Harrow covering two lots. Thereafter, a new mortgage was made covering only one of the two lots in the amount of $2,000. On the same day, the Eggemans gave a mortgage over the same lot to Miller, Mrs. Eggeman’s father. Although it appears that the new mortgage to Harrow was executed first, Mr. Eggeman maneuvered to have the Miller mortgage recorded first. In holding that the Harrow mortgage would have priority, the Court did not engage in a consideration of the application of the volunteer rule to the equitable subrogation doctrine. Rather, the Court concluded that the Miller mortgage was fraudulent in its entirety, noting that there had not, in fact, been any loan from Miller to the Eggemans that it secured, that there was not “any real consideration or equity” behind the mortgage.
Any fraud in the case at bar is not materially different from the fraud in Lentz. In both Lentz and this case, the later mortgage was obtained apparently -without disclosing the existence of the earlier mortgage(s). In short, if the volunteer doctrine applies in Lentz despite the fraud, then it also applies in this case despite the similar fraud.
Plaintiff also argues that a mistake of fact prevents plaintiff from being considered a volunteer. We disagree. As with the fraud issue, the cases relied on by plaintiff are not analogous to this case. In Detroit & Northern Michigan Bldg & Loan Ass’n v Oram, the mistake involved was by a life tenant who believed that she owned the real estate in fee and mortgaged the property, paying off the preexisting mortgage. A second mistake occurred when the title abstractor failed to discover that the life tenant was not the owner in fee. The mortgagee sought to be subrogated to the original mortgage, which relief was granted. But the Court’s holding very specifically noted two facts: the new mortgage was defective because the life tenant could not grant a mortgage, and there were no intervening encumbrances. Id. at 499. In this case, the mortgage to plaintiff is not defective and there are intervening encumbrances. Similarly, Sproal v Larsen allowed subrogation where the mortgagor no longer held title because of a conveyance occurring between the filings of the original mortgage and the subsequent mortgage, with the Court noting the requirement that there could be no persons with intervening superior equities in order to apply subrogation. Detroit Fire Marine & Ins Co v Aspinall, also represents a case in which there was a failed mortgage with no intervening liens to be considered.
In Taylor v Roniger, there was a mistake regarding ownership. The plaintiff bought the property subject to a preexisting mortgage, which he then paid off. But his title was defective because the seller’s ex-wife never signed the deed conveying the property to the plaintiff, and, therefore, she retained ownership (and became sole owner after her ex-husband’s death). The Court ultimately held that the plaintiff, in essence, became the equitable owner of the mortgage he paid off.
Plaintiffs reliance on French is grossly misplaced because a mistake was not at issue and the quotation in plaintiffs brief that refers to subrogation applying in cases of mistake, among others, which plaintiff attributes to French, is actually from a different source that French itself quotes. The issue in French was whether the holder of a promissory note secured by a first mortgage could be compelled to accept payment and issue an assignment and subrogation of that note to a new lender. Apparently the new lender in French wanted the priority of the first mortgage (which the plaintiff was foreclosing on because of a default by the defendant), and the plaintiff did not want the new lender to obtain priority over the second mortgage because the plaintiff also held bonds secured by the second mortgage. The Court determined that it was equitable to require the plaintiff to issue the assignment and subrogate the new lender to the original mortgage. No mistake was involved. See also Moore v Smith, which also involved the right to an assignment, in that case in order to redeem the property following a foreclosure.
Similarly, Palmer v Sharp did not involve a mistake; rather, it involved a fraud. Further, while plaintiff does quote a brief passage that references “mistake,” that is not the basis of the analysis of that case. In fact, like in Oram, the Court in Palmer specifically noted that, for subrogation to apply, there can be no intervening encumbrances. There also was no mistake involved in Draper v Ashley, in which the facts differ greatly from the case at bar. Indeed, if anything, Draper supports defendants’ position because the Court specifically noted that “one who pays off a prior incumbrance, and takes a new security for the advance, is not entitled to priority over an intervening incumbrance.”
Also, as with the fraud argument, plaintiff overlooks the fact that the mistake in this case is no different than the mistake in Lentz. The mistake in both cases is that a new mortgage was granted to pay off a senior mortgage, without the discovery of intervening junior mortgages. Accordingly, there is no basis for distinguishing this case from Lentz on the basis of a mistake providing an exception to the volunteer rule.
Next, plaintiff cites Smith v Sprague, for the proposition that a mere promise of repayment is sufficient to prevent plaintiff from being regarded as a volunteer. Once again, this overlooks the fact that the promise of repayment in the case at bar is no different from that in Lentz, and, therefore, provides no basis to distinguish Lentz. Furthermore, the cases are different. In Smith, there was no issue of providing priority over intervening encumbrances. Rather, the Court used the subrogation doctrine to impose liability on the promissor’s widow. Briefly, the defendant and her husband defaulted on mortgage notes. The husband borrowed money from his former daughter-in-law to pay off the mortgage, promising to grant the former daughter-in-law a mortgage to secure the debt, but he died without fulfilling his promise. The Court concluded that it was unnecessary to determine if the defendant had agreed with her husband to grant the mortgage to the plaintiff because, even if she had not, under equitable subrogation the plaintiff could be subrogated to the prior mortgage that had been paid off. Not only was that not a case of granting priority over intervening encumbrances, but it also appears that the exact opposite was true: the subrogation was subject to the intervening encumbrances. Although not discussed in detail in the opinion, in describing the trial court’s decree, which was affirmed, the Court stated that the plaintiff “had decree with respect to the mortgage of $5,000 and subject to incumbrances created in the meantime, and defendant has appealed.” Thus, if anything, Smith supports defendants’ position in the case at bar.
Finally, relying on Schanhite v Plymouth United Savings Bank, plaintiff argues that it should be given priority over the mortgages to defendants in order to prevent unjust enrichment. Schanhite, however, does not support plaintiffs position. In Schanhite, a mortgage was given to the sellers of the property, the Glasses, who thereafter gave two assignments of the mortgage for the purpose of securing their indebtedness. The first assignment was to State Savings Bank of Ann Arbor and the second was to Plymouth United Savings Bank. There are various conveyances of the property subject to the mortgage, with Schanhite eventually purchasing the property still subject to the mortgage previously given to the Glasses and with Schanhite expressly assuming the indebtedness to the Ann Arbor bank. As part of Schanhite’s purchase transaction, he gave another mortgage on the same property to the Ann Arbor bank, the proceeds of which were used to pay off the indebtedness from the Glasses to the Ann Arbor bank, which indebtedness Schanhite had assumed, and to pay tax arrearages (the property was about to be sold for failure to pay taxes). At issue was whether the new mortgage to the Ann Arbor bank should have priority over the original mortgage and its assignment to the Plymouth bank. The Court held that it should, but the analysis does not support plaintiffs position in the case at bar. First, the Court applied the equitable doctrine of mistake and not equitable subrogation. More to the point, the Court relied on the well-settled rule that the acceptance by a mortgagee of a new mortgage and his cancellation of the old mortgage do not deprive the mortgagee of priority over intervening liens. Third, the Court noted that the Ann Arbor bank’s loan was necessary to pay the tax arrearages, and had the money not been advanced, the property would have been lost to the tax man. Thus, the new mortgage operated to the Plymouth bank’s benefit. In other words, the Court, in effect, restored the original mortgage, essentially correcting the Ann Arbor bank’s “mistake” of discharging the original mortgage.
By contrast, in this case, we are not presented with a new mortgage being accepted by the holder of the old mortgage. That is, had the new mortgage been given to Option One Mortgage, and Option One was before us rather than plaintiff, Schanhite might provide the authority to revive the original mortgage and give the new mortgage the same priority as the one it replaced. For that matter, it might be sufficient under Schanhite if the plaintiff had first purchased the Option One mortgage and then accepted the new mortgage. But neither of those situations is present here, and, therefore, Schanhite is inapplicable. For that matter, there is no indication that the mortgage granted by plaintiff was necessary to preserve defendants’ security in the property. That is, while defendants certainly have benefited by the new mortgage in that a debt with a higher security interest priority was discharged, there is no indication that defendants were about to lose their security interests if the loan had not been made at the time plaintiff made its loan to the Shinas. Accordingly, neither of the conditions present in Schanhite is present here.
Schanhite is similar to Wallace v McBride, another case relied on by plaintiff. In Wallace, the plaintiff had received a fraudulently assigned second mortgage, which eventually was reassigned to the rightful holder. But, in the meantime, the first mortgage had been foreclosed and the plaintiff paid the money to redeem the property from the sheriffs sale on that foreclosure. Thereafter, the plaintiff asserted an interest in the property based on his redemption. The Court held that the plaintiff was entitled to recover the money he paid for the redemption, though equity denied him interest on the debt. As in Schanhite, in which the Court noted that the property would have been lost for taxes, the Court in Wallace noted that the holder of the second mortgage would have lost the land to the purchaser at the sheriffs sale of the property under the foreclosure of the first mortgage.
In sum, with the exception of Walker, we are unaware of any authority regarding the application of the doctrine of equitable subrogation to support the general proposition that a new mortgage, granted as part of a generic refinancing transaction, can take the priority of the original mortgage, which is being paid off, giving it priority over intervening liens. And, as for Walker, as Justice POTTER stated in his concurrence in Lentz, Walker “is not a precedent to be followed, but an accident to be avoided.” Such bolstering of priority may be applicable where the new mortgagee is the holder of the mortgage being paid off or where the proceeds of the new mortgage are necessary to preserve the property from foreclosure or another action that would cause the intervening lien holders to lose their security interests. But neither of those circumstances exists here. Therefore, plaintiff is not entitled to be subrogated to the original mortgage and receive priority over the intervening lienholders. Accordingly, the trial court properly granted summary disposition for defendants.
Plaintiffs other issue on appeal is that, in ruling against plaintiff, the trial court erroneously relied on the existence of title insurance from which plaintiff could seek recovery. While we do not necessarily disagree with plaintiff that the availability of insurance coverage should have no bearing on the resolution of the substantive question presented in this case, because we conclude that the trial court properly granted summary disposition in favor of defendants, we need not address this issue.
Affirmed. Defendants may tax costs.
465 Mich 124, 129; 631 NW2d 308 (2001).
239 Mich 575, 580-581; 215 NW 13 (1927).
Id.
280 Mich 446, 451; 273 NW 763 (1937).
244 Mich 582, 587; 222 NW 209 (1928).
461 Mich 210, 215-216; 600 NW2d 630 (1999).
456 Mich 247, 255; 571 NW2d 716 (1997) (for a third party to avoid being classified as a mere volunteer, the damage must have been incurred as the result of the third party’s fulfillment of a legal or equitable duty owed by the third parly to the client).
8 Walker, supra at 587.
9 Id. at 584-585 (Potter, J., dissenting).
10 Lentz, supra at 451.
Id. at 451 (Potter, J., concurring).
12 Id. at 455 (Potter, J., concurring).
13 Id. at 452 (Potter, J., concurring).
233 Mich App 325, 328; 590 NW2d 603 (1998), rev’d on other grounds 464 Mich 430 (2001).
122 Mich 130; 80 NW 1000 (1899).
68 Mich 641; 36 NW 699 (1888).
Id. at 647.
139 Mich 200; 102 NW 660 (1905).
37 Mich 435 (1877).
Id. at 439.
200 Mich 485; 167 NW 50 (1918).
138 Mich 142; 101 NW 213 (1904).
Id. at 143.
48 Mich 238; 12 NW 214 (1882).
147 Mich 99; 110 NW 503 (1907).
Id. at 104.
95 Mich 71; 54 NW 701 (1893).
112 Mich 420; 70 NW 903 (1897).
Id. at 423-424.
104 Mich 527; 62 NW 707 (1895).
Id. at 531.
244 Mich 577; 222 NW 207 (1928).
Id. at 579.
Interestingly, the unanimous decision in Smith was decided the same day as the apparently aberrant decision in Walker and cites many of the same authorities.
277 Mich 33; 268 NW 801 (1936).
Id. at 38.
Id. at 39.
Id. at 40.
Id.
70 Mich 596; 38 NW 592 (1888).
Id. at 600-601.
Lentz, supra at 455. | [
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Neff, J.
In this child custody dispute, defendant father appeals as of right an order of the family division of the circuit court granting him joint legal custody of his eleven-year-old daughter, Dionna, but ordering that physical custody remain with plaintiff, the child’s half-sister and legal guardian, who has had primary care of Dionna for five years following their mother’s death. We affirm.
The trial court found that defendant was not entitled to the traditional strong presumption that the award of custody to the natural parent serves the child’s best interests because defendant had not sought a paternity determination and had abandoned his parental role after the child’s mother died. The court nevertheless accorded defendant deference as the natural parent by placing the burden of persuasion on defendant to show by a preponderance of evidence, rather than clear and convincing evidence, that a change of physical custody to defendant was in the child’s best interests.
Following a hearing de novo, the court concluded that it was in Dionna’s best interests to continue physical custody with plaintiff, but the court granted defendant primary physical custody during the summer and extended parenting time, including alternate weekends; every Thanksgiving weekend, including all Thanksgiving holidays; every Christmas break, including all Christmas holidays; and parenting time when Dionna is not in school over a three-day weekend.
I. ISSUE
The question before this Court is whether the trial court erred in failing to accord defendant the constitutional deference to which a natural parent is generally entitled in determining a child’s best interests in a custody dispute between a parent and a third person pursuant to Heltzel v Heltzel, 248 Mich App 1, 23-24, 27-28; 638 NW2d 123 (2001), which requires that Michigan’s statutory parental presumption, MCL 722.25(1), be given priority over the established custodial environment presumption, MCL 722.27(1)(c), and that the third person prove by clear and convincing evidence that all relevant factors, taken together, MCL 722.23, demonstrate that the child’s best interests require placement with the third person.
We hold that the standard and reasoning of Heltzel do not govern this case because the trial court found that defendant was not a fit parent on the basis of his neglect of Dionna, and, therefore, the trial court did not clearly err in according defendant a lesser standard of deference than that announced in Heltzel in determining custody.
II. FACTS
It is undisputed that defendant is the natural father of Dionna, although his exact involvement in her life before her mother died is unclear. Defendant was not married to Dionna’s mother and it appears that he never resided with her. The mother did not acknowledge defendant as the father at the time of Dionna’s birth in November 1993. Nor did defendant seek to be legally acknowledged as Dionna’s father.
According to the record, from birth until age five, Dionna lived with her biological mother in Detroit, in which city defendant also lived. Until the mother died in May 1999, defendant did have contact with Dionna. When Dionna’s mother died, plaintiff, who lived in Lansing, applied for guardianship of Dionna, which was granted in July 1999. After the mother’s death, defendant had no contact with Dionna for three years. Dionna lived with plaintiff and her husband and attended school in Lansing.
It was not until 2002, when plaintiff sought medical coverage for Dionna through the Family Independence Agency (FIA) and the state filed a paternity action, that defendant legally acknowledged that he was Dionna’s father. Following a paternity test, defendant signed an acknowledgement of paternity in May 2002, and was ordered to pay child support, including an arrearage for back child support. Two months later, in July 2002, defendant filed a motion for a change of custody of Dionna. After a conciliation conference with the Friend of the Court (FOC) conciliator, an order was entered granting plaintiff legal and physical custody of Dionna, and granting defendant parenting time. Defendant appealed the conciliator’s order and, following an investigation and hearing before an FOC referee, the conciliator’s decision was reversed. The FOC referee recommended that defendant be granted custody of Dionna because plaintiff failed to prove by clear and convincing evidence that custody should be awarded to her.
Plaintiff then filed objections to the referee’s recommendation seeking review de novo of the referee’s decision. The court conducted a hearing de novo over three days from November 2003 to January 2004, during which the parties presented additional testimony and evidence.
According to the testimony, defendant is a retired Detroit police officer. He testified that he was employed as a police officer in the court system for twenty years and was familiar with court procedures. At the time Dionna was born, he had no doubt that he was her father. However, he did not seek paternity because that was the mother’s wish and he thought he could do nothing about it. He testified that while the mother was alive, he was regularly involved in Dionna’s life, taking her places, picking her up from school, and doing other things that any father living in the house would do.
The parties dispute whether defendant was notified that plaintiff was seeking guardianship of Dionna after her mother’s death. Defendant testified that he first learned that plaintiff had been appointed as Dionna’s guardian sometime in 2002; however, between 1999 and 2002, he was uncertain of Dionna’s whereabouts and took no legal action in regard to Dionna.
Defendant had not paid support for Dionna except on an extremely infrequent basis. However, defendant had supported ten children, including three other minor children for whom he was currently paying child support.
Plaintiff testified that she is Dionna’s half-sister and that she assumed guardianship of Dionna when their mother died. Further, Dionna calls plaintiff “Mom.” Dionna’s teacher testified that Dionna was smart, interacted well with friends, and was generally doing well in school. She stated that plaintiff was very involved with Dionna’s school activities.
The court heard additional testimony, and the parties stipulated the consideration of the record before the FOC referee. Before rendering its decision, the court ruled that given defendant’s neglect of Dionna after her mother died, defendant was not entitled to the strong statutory presumption in favor of a fit parent under which the court must presume that awarding custody to the parent is in the child’s best interests. Accordingly, the burden of proof and burden of persuasion announced in Heltzel did not apply because defendant was not entitled to the constitutional deference generally accorded fit parents with regard to their children. Instead, the court stated that it was applying a lesser standard of deference to defendant, under which he had the burden of persuasion to show by a preponderance of evidence that a change of custody to defendant was in the best interests of the child.
The court weighed the best interests factors and granted joint legal custody to both parties, but ordered that physical custody continue with plaintiff. However, the court granted defendant extended parenting time, as noted above.
III. STANDARD OF REVIEW
To expedite the resolution of a child custody dispute by prompt and final adjudication, all custody orders must be affirmed on appeal unless the trial court’s findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue. MCL 722.28; Harvey v Harvey, 257 Mich App 278, 282-283; 668 NW2d 187 (2003) (quoting MCL 722.28), aff'd on other grounds 470 Mich 186 (2004). “ ‘Questions of law are reviewed for clear legal error. A trial court commits clear legal error when it incorrectly chooses, interprets or applies the law.’ ” Vodvarka v Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003) (citations deleted).
IV. CHILD CUSTODY ACT
“The Child Custody Act of 1970, MCL 722.21 et seq.) MSA 25.312(1) et seq., governs child custody disputes between parents, agencies, or third parties.” Booth v Booth, 194 Mich App 284, 292; 486 NW2d 116 (1992); Harvey, supra at 291. The act is a comprehensive scheme intended to promote the best interests of children, and it is to be liberally construed. MCL 722.26(1); Harvey, 470 Mich 191-192; Thompson v Thompson, 261 Mich App 353, 361 n 2; 683 NW2d 250 (2004). The act creates presumptions and standards by which competing custody claims are to be judged and sets forth the procedures and the forms of relief available. Ruppel v Lesner, 421 Mich 559, 565; 364 NW2d 665 (1984); Porter v Overton, 214 Mich App 95, 100; 542 NW2d 288 (1995). “Above all, custody disputes are to be resolved in the child’s best interests,” according to the factors set forth in MCL 722.23. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).
Statutory presumptions affect the burden of proof. In a dispute between a parent and an agency or third party, MCL 722.25(1) creates the presumption that the child’s best interests are served by awarding custody to the parent. The contrary must be established by clear and convincing evidence. Id.; LaFleche v Ybarra, 242 Mich App 692, 696-697; 619 NW2d 738 (2000). However, the act also includes a presumption in favor of an established custodial environment. When a custody decision would change the established custodial environment of a child, the moving party must show by clear and convincing evidence that the change is in the child’s best interests. MCL 722.27(1)(c); LaFleche, supra at 697.
V. DEFENDANT’S CLAIMS
On appeal, defendant asserts that the court correctly determined that the presumption in favor of a fit parent outweighs the presumption in favor of a third party custodian despite an established custodial environment with the third person. We agree.
Defendant further argues, however, that the court committed error requiring reversal in finding that he was not a fit parent on the basis of his neglect of Dionna during the three years between her mother’s death and the adjudication of paternity and, therefore, finding that defendant was not entitled to the constitutional presumption in favor of a fit parent. We disagree. We find no clear legal error, nor do we conclude that the trial court’s findings concerning neglect were against the great weight of the evidence. We are therefore obligated to affirm the custody determination. MCL 722.28; Harvey, supra at 283.
VI. HELTZEL v HELTZEL
In enacting the Child Custody Act, the Legislature incorporated a presumption in favor of the natural parent as well as a presumption in favor of an established custodial environment. In a custody dispute between a natural parent and a third party with whom the child has an established custodial énvironment, these presumptions are clearly at odds.
Panels of this Court have had conflicting views of the legal effect of the competing “parental preference” and “established custodial environment” presumptions with respect to the burden of proof and burden of persuasion in a child custody dispute. Heltzel, supra at 15-17. One line of cases held that in a dispute between a parent and a third party with whom there was an established custodial environment, the parental presumption, MCL 722.25(1), weighed more heavily and therefore the third party bore the burden of rebutting by clear and convincing evidence the statutory presumption favoring the natural parents. Heltzel, supra at 15-16. A second line of cases concluded, however, that the existence of the two presumptions reduced the burden of proof from clear and convincing to a preponderance of the evidence and that the burden of persuasion rests with the parent challenging the established custodial environment. Id. at 16-17, citing Rummelt v Anderson, 196 Mich App 491, 496; 493 NW2d 434 (1992).
In Heltzel, this Court resolved the longstanding conflict concerning the Michigan statutory presumptions on the basis of the United States Supreme Court’s decision in Troxel v Granville, 530 US 57; 120 S Ct 2054; 147 L Ed 2d 49 (2000), which reiterated the fundamental constitutional right of fit parents to make decisions concerning the care, custody, and control of their children. Heltzel, supra at 18-24. Citing Troxel’s reminder of the importance of the fundamental parental liberty interest, the Heltzel Court concluded that a fit natural mother seeking a change of her child’s custody from an established custodial environment with a third person could not be required to show that a change in custody was in the child’s best interests. Heltzel, supra at 23. To do so “unconstitutionally places on the natural parent the ultimate burden of persuasion that an award of custody to the parent would serve the child’s best interests.” Id. at 22. “ ‘[T]he court must accord at least some special weight to the parent’s own determination.’ ” Id., quoting Troxel at 70.
The Heltzel Court also held that in a child custody dispute between a fit, natural parent of a child and a third-party custodian, the statutoiy parental presumption, MCL 722.25(1), must be given priority over the established custodial environment presumption, MCL 722.23, and, therefore, the third person must prove by clear and convincing evidence “that all relevant factors, including the existence of an established custodial environment and all legislatively mandated best interest concerns,” taken together, demonstrate that the child’s best interests require placement with the third person. Heltzel, supra at 27. Accordingly, pursuant to the holding in Heltzel, the trial court in this case correctly recognized that the presumption in favor of a fit parent outweighs the presumption in favor of a third-party custodian with whom there exists an established custodial environment.
VII. APPLICATION OF HELTZEL
Recognizing the holding and rationale of Heltzel, we now turn to the crux of the issue in this case to determine whether the trial court clearly erred in failing to apply the rules announced in Heltzel to defendant. No published case has yet addressed the implications of Heltzel in circumstances in which a parent seeking custody is found to be unfit, or to have neglected or abandoned a child. We conclude that this case is not governed by Heltzel, and we find no clear error in the court’s custody decision.
The trial court reasoned that, given defendant’s neglect of Dionna, defendant was not entitled to the constitutional deference accorded a fit parent under the reasoning in Heltzel and Troxel. The court applied a lesser standard of deference by placing the ultimate burden of persuasion on defendant to show by a preponderance of the evidence that it was in Dionna’s best interests to change custody of Dionna to him.
The trial court’s resolution of the conflicting presumptions comports with the statutory provisions recognizing both a presumption in favor of a natural parent and a presumption in favor of an established custodial environment. The trial court determined that defendant was entitled to deference as the natural parent, but not the strong deference recognized Heltzel or Troxel. We find no clear legal error.
The constitutional standards applied in Heltzel and Troxel apply in the case of a fit parent. Neither the holdings nor the rationale logically apply if a parent’s conduct is inconsistent with a parent’s protected interest in a child. In relying on and quoting Troxel,- the Heltzel Court indicated that the fitness of the parent is an essential premise of the analysis:
First, the [grandparents] did not allege, and no court has found, that [the mother] was an unfit parent. That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children. As this Court explained in Parham [v J R, 442 US 584; 99 S Ct 2493; 61 L Ed 2d 101 (1979)]:
“[O]ur constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.. . . The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.” 442 US at 602; 99 S Ct 2493 (alteration in original) (internal quotation marks and citations omitted).
“Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children....
“The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to [the mother’s] determination of her daughters’ best interests.. ..
“The judge’s comments suggest that he presumed the grandparents’ request should be granted unless the children would be “impact[ed] adversely.” In effect, the judge placed on [the mother], the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters... .
“The decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child.... In that respect, the court’s presumption failed to provide any protection for [the mother’s] fundamental constitutional right to make decisions concerning the rearing of her own daughters.... In an ideal world, parents might always seek to cultivate the bonds between grand parents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” [Heltzel, supra at 19-20, quoting Troxel, supra at 68-70 (opinion by O’Connor, J.) (emphasis in original).]
The Heltzel Court’s resolution of the competing statutory presumptions was based on the constitutional underpinnings of Troxel, which are based on presumptions about fit natural parents and their interests in protecting and caring for their children. If a parent is unfit or fails to adequately care for a child, i.e., neglects or abandons a child, those presumptions are extinguished. Accordingly, because the trial court found that defendant did not have the status of a fit parent on the basis of his neglect, the court did not clearly err in failing to apply the standards announced in Heltzel.
VIII. PARENTAL PREFERENCE STANDARD
The parties raise an issue of case law from other jurisdictions that recognize exceptions to the parental preference presumption. Plaintiff cites cases from other jurisdictions that shift the burden of proof in a custody dispute to a parent upon a showing of “voluntary forfeiture” or “constructive abandonment” of the child. The parties agree that Michigan has not adopted this rule. Defendant contends that this rule should not be adopted in Michigan. We agree that this general rule does not govern in Michigan following the adoption of the Child Custody Act.
A number of jurisdictions adhere to the parental preference standard, sometimes known as the “unfit ness” or “extraordinary circumstances” rule. 2 Little, Child Custody and Visitation Law & Practice (2003), § 11.03[1], p 11-6. If the parent is found to be unfit or extraordinary circumstances are present, a court may then “evaluate the ‘best interests’ ” of the child to determine who shall be named as the child’s custodian.” Id. at 11-14. However, some jurisdictions, including Michigan, have moved away from using the “parental unfitness” or “extraordinary circumstances” standards and focus on a placement’s detriment to the child. Id. “Michigan has codified the presumption to provide that if the child custody dispute is between the parent or parents and an agency or a third person, the court must presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.” Id.
That Michigan no longer recognizes the common-law rules for exceptions to the parental presumption seems clear. The parental presumption of § 5 of the Child Custody Act creates a presumption that applies in all custody disputes between parents and an agency or a third person:
If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence. [MCL 722.25(1).]
Further, this Court has recognized that in enacting the Child Custody Act, the Legislature purposely rejected the former exceptions based on unfitness, abandonment, or neglect:
Prior to the Child Custody Act of 1970, in a dispute between a parent and a third party or agency the best interests of the child were deemed to be served by awarding custody to the parent unless it could be affirmatively proven that the parent was unfit to have custody or had neglected or abandoned the child. Furthermore the court could not indulge in a comparison between the parental home and the proposed alternative. In re Ernst, 373 Mich 337; 129 NW2d 430 (1964), Rincon v Rincon, 29 Mich App 150; 185 NW2d 195 (1970). Neither of these formerly accepted principles were incorporated within the comprehensive provisions of the Child Custody Act. Since the Legislature is presumed to be aware of the long-standing judicial precedent affecting an area in which an exhaustive codification of the law is undertaken and enacted, we must conclude the omission was intentional. [Citations omitted.]
Still recognized, of course, is the presumption that the best interests of the child would be served by granting custody to the natural parent. MCLA 722.25, supra. Indeed this remains a presumption of the strongest order and it must be seriously considered and heavily weighted in favor of the parent. Nevertheless if the “clear and convincing evidence” establishes that the best interest of the child is served by awarding custody to the third party, the presumption is rebutted.
The Child Custody Act details extensive criteria to be utilized in determining the best interests of the child, MCLA 722.23; MSA 25.312(3), and recognizes the parties’ moral fitness and their love and affection for the children as factors to be considered. MCLA 722.23(a), (f); MSA 25.312(a), (f). Moreover, the statute now expressly requires a trial judge to indulge in a comparison between the existing home and the proposed alternative. MCLA 722.23(e); MSA 25.312(3)(e).
Rebuttal of the presumption in favor of parental custody no longer requires proof of parental unfitness, neglect or abandonment. The principles enunciated in Ernst and Rincon to that effect have been modified and repudiated by the Legislature and are not, since the enactment of the Child Custody Act of 1970, a correct statement of the law in Michigan. [Bohr v Bohr, 60 Mich App 354, 359-360; 230 NW2d 430 (1975).]
Thus, while the case law from other jurisdictions maybe helpful with respect to particular issues of unfitness, it cannot properly be adopted to overcome Michigan’s statutory scheme for resolving child custody disputes.
IX. FIT PARENT DETERMINATION
The remaining question is whether the trial court properly determined that defendant was not entitled to the status of a “fit” parent. Defendant argues that the trial court’s consideration of his past neglect of Dionna was improper. Defendant asserts that Troxel and Heltzel discuss the constitutional presumption in favor of a fit parent in the present tense. Further, other case law supports a conclusion that the determination whether a parent is fit should not be based on past neglect. We cannot conclude that the trial court’s findings were against the great weight of the evidence or that the court clearly erred in denying defendant the constitutionally protected status of a fit parent. Harvey, supra at 283.
As noted above, an essential premise of the fundamental constitutional right to raise one’s children is that the parent is fit, that is, that the parent’s conduct is consistent with the protected parental interest. Heltzel, supra at 19-20; Little supra at 11-11. Whether viewed as unfitness, neglect, or abandonment, defendant’s conduct was inconsistent with a protected parental interest.
We emphasize that the court did not find defendant unfit with respect to his lifestyle or parental capabilities, either in the past or the present, in the sense that defendant would be denied credit for any rehabilitation if the court were to consider his past conduct. Rather, the court based its conclusion on defendant’s neglect or abandonment of Dionna at a critical time in her life and for an extended period. Although defendant takes issue with the trial court’s overall conclusion, he does not challenge the trial court’s factual findings.
It was undisputed that defendant did not take the initiative to provide support for Dionna or maintain contact with her after her mother died. It was not until the state filed a paternity action against defendant and he was ordered to pay child support that defendant took a renewed interest in Dionna and sought custody. During this time, Dionna relied on plaintiff as her surrogate parent. There is no question that plaintiff capably fulfilled the role of parent, to the extent that Dionna refers to plaintiff as “Mom.”
In support of its conclusion that defendant was not entitled to the protected parental status, the court observed that although defendant may not have understood how to assert his parental rights, his misunderstanding did not make him any less neglectful. The court noted that defendant’s failure to seek legal custody for six years of Dionna’s life had an effect on her because, when her mother died, defendant had no legal rights to Dionna. He was the putative father, and, consequently, the guardian stepped in to seek custody of Dionna because there was no legal parent to provide care.
The court charged defendant with responsibility for failing to assert his legal rights as a father, in part because defendant is a retired police officer who worked in the court system, and he should have some knowledge or awareness of the process to acknowledge paternity. Nonetheless, for three years after Dionna’s mother died, defendant sat passively and permitted the child to form a mother-daughter bond with her older half-sister, the guardian. But for the fact that the guardian required medical coverage and sought assistance from the FIA, defendant’s lack of involvement with Dionna would have likely continued.
While the court found no reason that defendant could not be a good father to Dionna, the court concluded that his neglect made him unfit under the totality of the circumstances such that he should not be accorded the constitutional deference set forth in Heltzel. We agree. Although not directly relevant to the issue of fitness, the court’s statement in addressing the best interests under MCL 722.23(1), any other relevant factor, fully convinces us that no clear legal error justifies reversal in this case:
This child went through a grieving process when her mother died. This child has had a significant loss in her fife. She’s attempted to fill that void of mom with the guardian. I think that factor causes the Court to be concerned about breaking down the bond between the guardian and the child. I think that’s a factor that isn’t listed that’s something we have to consider. I think that weighs in favor of providing the mother — the guardian with really recognizing her as a full-fledged custodial parent. Because to deny the guardian the status as a custodial parent would cause the child to undergo a second loss of a mother; and I think that would be devastating.
I also think that the child lost her father for a period of time. And I think that that is something that she grieved. And I think that to deny the father the status as a custodial parent, again, would cause the child loss, because I think that the child looked to the father for the first five-and-a-half years of her life. I think that the child would have gone through a grieving process when the father just simply inexplicably to her was gone. So this child lost a mother and a father in May of 1999. And the fact that she is so [] well-adjusted is a testament, I think, to the work that the guardian has done with the child and the faith-based support that she has provided to the child. It is unbelievable to me how resilient this young lady is.
There is no question that child custody disputes can be the most heart-wrenching and agonizing controversies our courts are called upon to resolve. In many cases, it is difficult to achieve a unified result that serves the parties’ interests and provides the fundamental support, care, and comfort to which every child is entitled. We are persuaded that in this case the court has properly applied the law to do so.
X. CONCLUSION
The comprehensive scheme set forth in the Child Custody Act permits consideration of both the natural parent’s fundamental liberty right to raise a child and a child’s need for stability in determining the ultimate issue of the child’s best interests. When the statutory presumption in favor of parental custody and the presumption in favor of the established custodial environment conflict, due process requires that the presumption remain in favor of custody with the parent in the absence of a showing of parental unfitness. Heltzel, supra at 23-24, 27-28. The best interests of the child are presumed to be served by granting custody to the parent, and that presumption must be weighed heavily in favor of the parent. To rebut the presumption, the third party must show by clear and convincing evidence that the best interests of the child require maintaining the established custodial environment. Id.
However, when a parent’s conduct is inconsistent with the protected parental interest, that is, the parent is not fit, or has neglected or abandoned a child, the reasoning and holding of Heltzel do not govern. In this custody dispute, given defendant’s failure to acknowl edge paternity during the first six years of the child’s life and his total neglect-of his child over a three-year period after the mother’s death, we find no clear legal error in the placement of the burden of persuasion on defendant to show, by a preponderance of the evidence, that a change in the established custodial environment with the guardian was in the child’s best interests.
Affirmed.
During the pendency of this action, plaintiff and her husband divorced.
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] |
Allen, J.
Does § 411(2) of the Michigan Income Tax Act, MCL 206.411(2); MSA 7.557(1411)(2), which provides for the tolling of the three-year period of limitations for refunds as set forth in § 441(2) of said act, MCL 206.441(2); MSA 7.557(1441)(2), apply when the corporate claimant of the refund, who originally filed an individual income tax return, more than three years later filed a combined return as provided in § 335, MCL 206.335; MSA 7.557(1335), of said act? Where a combined return is filed within the three-year period of limitations set forth in § 441(2) thus entitling the taxpayer to a refund and interest, is the interest on the refund computed from the date that the individual return was filed or from the date that the combined return was filed? On September 12, 1977, the trial court answered the first question in the negative and, in response to the second question, held that interest is computed from the date of filing the amended return. Plaintiffs appeal of right. These two questions of first impression arise on the following facts.
Plaintiffs are subsidiary corporations of the parent Studebaker-Worthington Corporation. In 1971, 1972, and 1973, each plaintiff filed a separate Michigan corporation tax return. Commencing in 1968, the first year that the Michigan Income Tax Act of 1967 took effect, plaintiffs filed their own separate corporate tax returns. In 1975, plaintiffs learned that they would receive a substantial refund if amended combined tax; returns were filed under § 335 of the act for the years 1971, 1972 and 1973. Under the recomputed returns, plaintiffs claimed refunds as follows: $149,293 for 1973; $101,976 for 1972; and $74,494 for 1971. The Michigan Department of Treasury allowed the refunds for 1972 and 1973, but without interest. The re fund for 1971 was denied on grounds that it was not timely filed, having been filed on September 12, 1975, a date more than three years after April 17, 1972, which was the date on which the separate 1971 return was filed. The 1971 Federal return had been audited by the Federal government and was in the process of litigation when plaintiffs filed the combined return in 1975.
Plaintiffs filed suit in the Circuit Court for Ingham County claiming a refund for the year 1971, and interest thereon from April 17, 1972. Further, plaintiffs claimed they were entitled to interest on the refunds given them for the years 1972 and 1973. The circuit court granted defendants’ motion for summary judgment for the reason that the combined return for 1971 was not filed three years from the date of filing the original separate return. Interest on the 1972 and 1973 returns was allowed, but only from September 12, 1975—the date on which the combined returns were filed. Plaintiffs disagree with the trial court’s denial of the 1971 refund and further seek interest on the 1972 and 1973 payments from April 17, 1972.
When read apart from other sections of the statute, § 441 spells out an absolute three-year period within which a taxpayer may claim a refund.
"(2) A taxpayer who has paid a tax which he claims was not due under this act may, on or before the expiration date of 3 years from the date set for the ñling of the annual or ñnal return for the year or the date the tax was paid, whichever is later, and not after, petition the department in writing to refund the amount so paid. If the annual return reflects an overpayment or credits in excess of the tax, the declaration thereof on the return constitutes a claim for refund.” (Emphasis supplied.) MCL 206.441(2); MSA 7.557(1441)(2).
But plaintiffs contend that § 441(2) cannot be read in isolation and should be interpreted in conjunction with § 411 which pertains to periods of limitations.
"(1) No deficiency, interest or penalty shall be assessed for any year after the expiration of 3 years from the date set for the filing of the annual return for each year or the date the return was filed whichever is later. If any person subject to tax under this act fraudulently conceals any liability for the tax or any part thereof, the department within 2 years of the discovery of the fraud shall assess the tax with interest and penalties as provided in this act, computed from the date on which the tax liability originally accrued, and the tax, penalties and interest shall become due and payable after notice and hearing as provided in this act, anything herein contained to the contrary notwithstanding.
"(2) The running of the statute of limitations shall be suspended for the period pending ñnal determination of litigation of or hearing on a taxpayer’s federal income tax return or of the return required by this act, or in the event any notice is required under the provisions of [MCLA 206.325; MSA 7.557(1325)], and for 1 year thereafter.
"(3) The running of the statute of limitations shall be suspended for the period for which the taxpayer and the commissioner have consented in writing that the period be suspended. The period so extended may be further extended by subsequent consent in writing made before the expiration of the extended period.
"(4) The running of the statute of limitations shall be suspended for any taxable year for which no return has been filed.” (Emphasis supplied.) MCL 206.411; MSA 7.557(1411).
The 1971 single consolidated Federal income tax return filed by the parent company included tax returns for three of the plaintiffs in this action. That return had been questioned by the Federal government and was still in the process of litiga tion when plaintiffs filed their combined Michigan return for 1971.
I
Plaintiffs argue that under §411(2) the pending litigation on the 1971 Federal income tax return tolls the three-year limitation imposed by § 441(a). Despite the over-all excellence of plaintiffs’ brief and oral argument we respectfully disagree. Subsection (2) of § 411, supra, is obviously ambiguous. One cannot determine what period of limitations the words "the running of the statute of limitations” refer to. Does it refer to the three-year period of limitations for refunds set forth in § 441(2) or does it refer to the three-year period of limitations for assessment of deficiencies set forth in §441(1), or both? The trial court held that because subsection (2) of § 411 immediately followed subsection (1) of §411 and because subsection (1) pertained only to deficiencies, subsection (2) tolled only the period during which the state could assess a deficiency. Subsection (2) is ambiguous in a second respect. Assuming, arguendo, that it does refer to refunds, it is not clear from the wording whether the refunds eventually due must arise out of litigation or hearing on the taxpayer’s Federal return or whether, as in the instant case, the refunds arise from facts completely unrelated to the Federal audit. Or to state the question in another way—did the Legislature intend subsection (2) to apply to a § 335 situation where, quite apart from any Federal income tax dispute, a taxpayer elects to file a combined return?
Where one section of a statute is ambiguous or is susceptible to more than one interpretation, the entire statute must be read as a whole, and the meaning given to one section should be deter mined by considering the other sections. King v Director of the Midland County Dep’t of Social Services, 73 Mich App 253; 251 NW2d 270 (1977), Williams v Secretary of State, 338 Mich 202; 60 NW2d 910 (1953). Another rule of statutory construction—and one which we will again refer to later in this opinion—is the rule that departure from a literal construction is justified when such a construction would produce an awkward result or a result inconsistent with the policies of the act in question. Salas v Clements, 399 Mich 103; 247 NW2d 889 (1976). Relevant to our construction of the statute as a whole are § 325(2) and § 335. Section 325(2) reads:
"Every taxpayer shall notify the department in writing of any alteration in, or modification of, his federal income tax return which affects his taxable income under this act and of any similarly related recomputation of tax or determination of deficiency under the provisions of the internal revenue code. The notice shall be given in writing within 60 days after the final alteration, modification, recomputation or determination of deficiency. If the commissioner finds upon all the facts that an additional tax under this act is owing, the taxpayer shall thereupon pay the additional tax. If the commissioner finds that the taxpayer has overpaid the tax imposed by this act, a credit or refund of the overpayment shall thereupon be made as provided in section 441.” MCL 206.325(2); MSA 7.557(1325)(2).
Upon reading and considering the separate sec tions above cited in pari materia and upon evaluating the statute as a whole, this Court concludes that § 411(2) refers to both claims for deficiencies by the state and claims for refunds by the taxpayer. In this respect our conclusion resolves the first mentioned statutory ambiguity in favor of plaintiffs—a conclusion we note, which was conceded by defendants upon oral argument. However, we also conclude that § 411(2) does not encompass the tolling of the time for filing for a refund using a combined return under § 335. In this respect our conclusion resolves the second mentioned statutory ambiguity in favor of the state.
It appears clear to us that in § 411(2) and § 325, the Legislature intended to keep open the three-year limitation period where the taxpayer’s Federal return was being questioned. Because the state tax "piggy-backs” on the Federal return, Michigan Consolidated Gas Co v Dep’t of Treasury, 72 Mich App 426, 435; 250 NW2d 85 (1976), the Legislature was certain that any eventual change in the Federal return would in turn affect the state tax, resulting in either deficiencies or refunds. In such situations it is always the same taxpayer who is involved, viz.: the taxpayer who has filed the state return. But under § 335, a different taxpayer is involved. A combined return under § 335 is necessarily filed by a different taxpayer than the taxpayer filing the original state return. In the case before us the five named plaintiffs filed the state tax returns but it was Studebaker-Worthington which filed the combined re turn. For this reason we do not believe the Legislature intended the tolling to apply to § 335 situations.
Our conclusion that the Legislature did not intend to extend»the three-year period within which to file a combined return is reinforced by practical considerations. It is a well known fact, of which we take judicial notice, that corporate income fluctuates greatly. Depending upon economic conditions the differences between the tax due under individual returns and a combined return is extraordinary. It is in the state’s interest that this disparity and the state’s consequent obligation to make a refund be known within a reasonably short period of time. Three years appears to be a' reasonable period within which the taxpayer is given the option. But under plaintiffs’ construction of the statute, the grace period may be prolonged while the Federal government first audits and then engages in litigation on 40 or more subsidiaries. Such an interpretation is not reasonable. As stated in Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948), where the meaning of a statute is doubtful:
"* * * a reasonable construction must be given, looking to the purpose subserved thereby. Attorney General v Bank of Michigan, Harr Ch (Mich) 315; Bennett v Michigan Pulpwood Co, 181 Mich 33 [147 NW 490 (1915)]. Its occasion and necessity are matters of judicial concern. Sibley v Smith, 2 Mich 48[6 (1853)], and Bennett v Michigan Pulpwood Co, supra, and its purpose should be effected if possible, People v Stickle, 156 Mich 557 [121 NW 497 (1909)]. Its spirit and purpose should prevail over its strict letter, Stambaugh Township v Iron County Treasurer, 153 Mich 104 [116 NW 569 (1908)].”
Neither is plaintiffs’ construction of the statute practical.
"Nor will it be forgotten, in any question of statutory tax interpretation, that taxing is a practical matter and that the taxing statutes must receive a practical construction. ” In re Brackett Estate, 342 Mich 195, 205; 69 NW2d 164 (1955). (Emphasis supplied.)
Plaintiffs herein may argue that once this Court concludes, as we have in fact concluded, that § 411(2) relates to claims for refunds, the language of § 411(2) becomes so unambiguous and clear as to leave no room for a practical construction. See Detroit Edison Co v Secretary of State, 281 Mich 428, 433; 275 NW 196 (1937). We disagree, first, because we do not find the section to be clear and unambiguous and, second, because the plain words of § 441(2) state that the taxpayer’s right to claim a refund is three years "and not after”. In view of the express "and not after” limitation and the fact that refunds are considered a privilege rather than a right, Manistee & NER Co v Comm’r of Railroads, 118 Mich 349, 350; 76 NW 633 (1898), we conclude that in the case before us the taxpayers’ right to a refund depended upon filing the consolidated return within three years and that the taxpayers’ failure to exercise that privilege forfeited the right to the refund.
In their brief and oral argument, excellently done in all respects, plaintiffs cite cases from other jurisdictions in rebuttal to defendants’ claims that § 411(2) tolling applies only to refunds directly related to downward changes in the Michigan tax liability required by reason of the Federal litiga tion. Plaintiffs conclude that these cases refute any conclusion that "if facts which are not relevant to Federal taxable income were called to the Commissioner’s attention with respect to the year 'reopened’ by Section 325(2), or during the pendency of Federal hearings or litigation, the Commissioner would have to ignore them, and base his determination solely upon the actual changes in Federal taxable income”.
The flaw in plaintiffs’ reliance on said cases is that they speak to a different issue than the question before us. The Oregon and California cases so cited hold that once the taxpayer’s Federal return is in litigation and a change therein reported or otherwise brought to the attention of the state, the amount of the refund or deficiency may (in the absence of statutory provisions which, like Nebraska, Maine, et al, restrict the amount of the refund or deficiency to the precise change in the state tax caused by the Federal change) exceed the amount of the refund or deficiency occasioned by the change in the Federal return alone. In all of those cases the ensuing refund or deficiency stemmed from the change in the Federal return. But in the case before us the issue is not the amount of the higher refund but whether the tolling provision of §411(2) extends the time period within which the taxpayer may file a § 335 combined return. In the case before us, unlike the Oregon and California cases, the ensuing refund in no way stemmed from the change in the Federal return.
The inapplicability of the Oregon-California cases relied upon by plaintiffs is best illustrated by International Health & Life Ins Co, supra. There, plaintiff, an Oregon corporation, was a subsidiary of Industrial Housing Association, a California corporation doing business in Oregon. Both, corporations filed separate corporate excise tax returns in Oregon for 1964. In 1965, a corporate reorganization took place. In 1971, the reorganization was recognized by the IRS and International was allowed to carry back a 1967 operating loss against its 1964 income. As a result, International’s tax for 1964 was virtually eliminated and International would be entitled to a refund, provided (1) International’s claim for a refund was not barred by Oregon’s three-year statute of limitations, ORS 314.415, and (2) the refund was not restricted to those items which were not adjusted by the IRS. As to the first issue the court held that the claim was not barred by the statute because another section of the code expressly extended the time period. On the second issue the court held that the refund on an excise tax was not restricted to the items adjusted by IRS.
Unlike Oregon which makes a specific exception where there is a change in Federal taxable income, Michigan has no statutory exception extending the time for filing a § 335 combined return. Furthermore, the reduction in International’s 1964 state tax resulted from (though it exceeded in amount) the change made by IRS, whereas in the case before us the requested refund has nothing to do with changes made or to be made by the pending litigation in Studebaker-Worthington’s 1971 Federal return. Accordingly, we hold that defendants properly rejected plaintiffs’ combined tax return for 1971. While the trial judge assigned the wrong reasons for his decision on this issue, he nevertheless reached the correct result.
II
The second question raised on appeal to us is whether interest on the refunds due plaintiffs for the tax years 1972 and 1973, is computed from the date the original returns were filed or is computed from the date that the combined returns were filed on September 12, 1975. Prior to January 1, 1974, the Michigan income tax act did not expressly provide for the payment of interest on refunds. In 1974, § 441 was amended by adding to subsection (3) the following language, effective for tax years on or after January 1, 1974:
"* * * [I]nterest at the rate of 9% per annum shall be added to the refund, computed in the same manner and subject to the same provisions as provided in section 6611 of the internal revenue code.” MCL 206.441(3); MSA 7.557(1441)(3).
Plaintiffs claim that although the added language does not govern a 1971 tax return, it formalizes what was implicit in the statute prior to 1974. In expanding on this statement, plaintiffs state that the Michigan statute "piggy-backs” and is modeled after the Federal act; that under Treasury Regulation 301.6611-l(a) of the Federal act, interest is paid "from the date of overpayment”; that the date of overpayment is defined as the date on which the taxpayer overpays his correct tax liability.
Plaintiffs’ claim is technically attractive but we remain unconvinced. We hesitate to read into the statute provisions which the Legislature did not add until a later date. In the case before us the alleged "overpayment” occurred only because the taxpayers elected to use a nonfederal-type provision. Filing a combined report is a special legislative privilege pursuant to § 335. Plaintiffs’ filing of a combined Michigan return was not necessarily related to any of its Federal rights. We decline to give similar terms in the Federal and state statutes similar meanings when those terms are applied to dissimilar situations. Realistically, plaintiffs’ original 1972 and 1973 tax returns were not "overpayments”. As first filed, plaintiffs paid the precise amount of tax required under the returns. It was only after plaintiffs decided to file amended combined returns that an "overpayment” for 1972 and 1973 occurred. They have been paid interest from that date. This is not a case where the taxpayers have been paid no interest at all. Nor is this a case where the refund was due to an improper assessment or other action of the state. Until September 12, 1975, plaintiffs had nothing coming and nothing was due by the state. From that date forward plaintiffs have been paid.
Affirmed. No costs, a public question being involved.
The parent corporation consists of some forty subsidiaries throughout the United States, Canada and Europe.
"In the discretion of the commissioner, any taxpayer which owns or controls either directly or indirectly substantially all the capital stock of 1 or more other corporations, or substantially all the capital stock of which is owned or controlled either directly or indirectly by 1 or more other corporations, or by interests which own or control either directly or indirectly substantially all of the capital stock of 1 or more corporations may he required or permitted to make a report on a combined basis covering any such other corporations and setting forth such information as the commissioner may require.” (Emphasis supplied.) MCL 206.335; MSA 7.557(1335).
In response to questions from the Court at oral argument, counsel for defendants admitted that the Department of Treasury had interpreted §411(2) to include refunds as well as deficiencies. However, defense counsel claimed that said section did not extend to § 335 situations.
The cases cited by plaintiffs for this proposition are International Health & Life Ins Co v Dep’t of Revenue, 269 Or 23; 523 P2d 223 (1974), Industrial Air Products Co v Dep’t of Revenue, 259 Or 38; 485 P2d 24 (1971), Montgomery Ward & Co, Inc v Franchise Tax Board, 6 Cal App 3d 149; 85 Cal Rptr 890 (1970). Plaintiffs also cite statutory provisions which, unlike Michigan’s, expressly restrict refunds (or deficiencies) during the period "reopened” to refunds for the precise change in the state tax caused by the Federal change. See § 77-2793 Neb Rev Stat 1943; ch 36, § 5278, Maine Rev Stat 1954; § 1083 NY Tax Law; Ill Rev Stat 1975, ch 120, par 9-905(e).
"However, we agree with the Tax Court that another statute, ORS 314.380(2), is applicable to the instant case. That statute states, in pertinent part:
'* * * The taxpayer may file a report of a federal change or correction, and the report of the federal change or correction shall be treated by the department as a claim for refund pursuant to ORS 314.415 and, notwithstanding the [time] limitations of ORS 314.415, shall be deemed timely if filed with the department within one year after the federal correction has become final.’ ” International Health & Life Ins Co v Dep’t of Revenue, 269 Or 23, 26; 523 P2d 223.
Treasury Regulation 301.6611-1(a), provides a clear statement of how the Federal income tax rule works. It provides in relevant part as follows:
"* * * there can be no overpayment of tax until the entire tax liability has been satisfied. Therefore, the dates of overpayment of any tax are the date of payment of the first amount which (when added to previous payments) is in excess of the tax liability * * * and the dates of payment of all amounts subsequently paid with respect to such tax liability.”
Section 6611 of the Internal Revenue Code of 1954, as amended, then goes on to provide that interest is to be paid from the date of the "overpaymen t”.
In view of the fact that the Legislature did not provide for paying interest on tax refunds until January 1, 1974, the question arises why any refunds were paid in this case at all. However, that question was not raised by defendants in this appeal. Further, there is case.law authority that even in the absence of statutory authority, interest must be paid on tax refunds. Standard Oil Co v Michigan, 283 Mich 85, 96; 276 NW 908 (1937), Ready Power Co v Dearborn, 336 Mich 519, 526; 58 NW2d 904 (1953). | [
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M. F. Cavanagh, J.
Plaintiff, Robert Timmons, appeals the determination of the State Department of Social Services Hearing Authority that plaintiff was ineligible for benefits provided to families with dependent children under the ADC-I program (aid to dependent children for the reason of parental incapacity).
Plaintiff is a painter by trade, working a maximum of 30 hours per week. Since at least 1969, he has suffered from back problems that necessitate certain restrictions on his work activities. Due to his back condition and work limitations, he applied to the Midland County Department of Social Services (DSS) for assistance under the ADC-I program. In a Medical Examination Report submitted to the county DSS in October, 1973, plaintiff’s physician diagnosed his condition as degenerative disc disease and early degenerative arthritis of the spine. In the report he indicated that this condition was deteriorating and was expected to last for the plaintiff’s lifetime, but further stated that the plaintiff was employable with work limitations against prolonged standing, bending and lifting. Based on this report, the DSS certified plaintiff as disabled and eligible for ADC-I benefits in January, 1974, for the reason that his employment, although full-time, unduly endangered his health. Social Services specified that a medical review of this determination be conducted in July, 1974.
This review was finally concluded in September, 1974. The physician’s report shows a diagnosis substantially similar to the report filed in October, 1973. It noted work limitations of limited lifting, climbing and work endurance, but did indicate that plaintiff’s back condition had stabilized. On October 8, 1974, the DSS terminated plaintiff’s ADC-I benefits on the grounds that the "[m]edical or psychiatric findings” did not "justify disability to the extent that it will materially impair or affect [the plaintiff’s] Employability”.
Plaintiff appealed the county department’s deci sion. After a hearing, the administrative law judge determined that the plaintiff qualified for ADC-I. The hearing authority, acting under authorization of the state DSS director, reversed this decision on the grounds that plaintiff was no longer physically incapacitated as defined by Federal regulations and department policy. By order and opinion, the trial court upheld this determination, finding that there was sufficient evidence from the hearing record to support the termination of benefits. The court held further that because the plaintiff was considered fully employed by the DSS, he did not meet the Federal eligibility requirements of 45 CFR 233.90(c)(iv), in that he did not suffer an incapacity that "reduce[d] substantially * * * [his] ability to support or care for [his] otherwise eligible [children]”. Both the hearing authority’s decision and the trial court’s affirmance of plaintiff’s ineligibility for ADC-I attached considerable significance to the fact that plaintiff was fully-employed, i.e., he worked in excess of 100 hours per month.
Plaintiff contends on appeal: (1) the hearing authority erred by not considering plaintiff’s eligibility for ADC-U benefits, (2) the hearing authority’s decision was not supported by substantial evidence on the whole record, (3) the hearing authority applied incorrect standards to reach its decision by failing to consider the needs of plaintiff’s dependent children and by applying an eligibility standard in conflict with Federal law, and (4) the use of the 100-hours full-employment test for ADC-I eligibility constituted an irrebuttable presumption violative of due process and equal protection.
Plaintiff’s first asserted error concerns the hear ing authority’s failure to consider the plaintiffs eligibility for ADC-U benefits. Families with dependent children where the father is unemployed may qualify for ADC-U benefits, under a program funded on a matching basis by the Federal government and a participating state. 42 USC 602-603, 607, MCL 400.10; MSA 16.410, MCL 400.56d; MSA 16.456(4). 45 CFR 233.100(a)(1)(i) defines an "unemployed father” as one who is employed less than 100 hours per month. Any state ADC-U plan must include fathers who meet this test. Plaintiff argues, however, that while the Federal requirements establish minimum eligibility standards which override any more exclusive state criteria, Quern v Mandley, 436 US 725; 98 S Ct 2068; 56 L Ed 2d 658 (1978), Townsend v Swank, 404 US 282; 92 S Ct 502; 30 L Ed 2d 448 (1971), they do not prevent states from creating broader eligibility standards. It is argued, therefore, that because plaintiff works less than 64 hours in any consecutive two-week period, he qualifies for ADC-U benefits under MCL 400.56d; MSA 16.456(4). We disagree and find that the hearing authority did not err.
The present version of MCL 400.56d; MSA 16.456(4) was enacted in 1966, at a time when Federal law permitted states participating in the ADC-U program to establish their own definition of unemployment for eligibility purposes. In 1968, however, Congress amended the statute to allow the Secretary of HEW to define unemployment. The stated purpose of the amendment was to provide for "a uniform definition * * * throughout the United States”. 1967 US Code Cong & Admin News, vol 2, p 2837. The present uniform standard, found at 45 CFR 233.100(a)(1)(i), states in mandatory terms, that a participating state’s ADC-U plan must include within its definition of "unemployed”, any father who works less than 100 hours per month. This standard has been incorporated into the Michigan ADC-U program by Item 216, p 3 of the DSS Assistance Payments (AP) Manual. Given Congress’s clearly stated goal of uniformity in administering the ADC-U program, MCL 400.56d; MSA 16.456(4) is of doubtful validity.
Our conclusion concerning MCL 400.56d; MSA 16.456(4) is further supported by other provisions of the Michigan Social Welfare Act that indicate the Legislature’s intent to cooperate fully with the Federal government in administering social welfare programs. The Legislature explicitly permits the Director of the State Department of Social Services to:
"distribute * * * subject to federal rules and regulations, and in accordance with the rules promulgated by the director, moneys appropriated by the legislature or received from the federal government for the granting of aid to dependent children.” MCL 400.14(b); MSA 16.414(b);
"adopt any plan required or desirable to participate in the distribution of federal moneys or the assistance of the federal government.”
and:
"[f]or the purpose of assuring full federal approval of the activities of the department and local departments with respect to the operation of a plan, * * * do all things reasonable and proper to conform with federal requirements pertaining to methods and standards of administration.” MCL 400.10; MSA 16.410.
The DSS’s adoption of the 100-hour standard set out in 45 CFR 233.100(a)(1)(i) is thus fully consistent with the Legislature’s expressed intent to insure full Federal approval of the state’s social welfare programs and with the department’s statutory mandate.
We next turn to plaintiff’s contention that the hearing authority improperly determined his eligibility for ADC-I benefits by applying standards in conflict with Federal law. Plaintiff bases his argument on the principle, upheld in a number of United States Supreme Court cases, that:
"[A]t least in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance under federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause.” Townsend v Swank, supra, at 286. Quern v Mandley, supra, King v Smith, 392 US 309; 88 S Ct 2128; 20 L Ed 2d 1118 (1968).
Plaintiff argues that Rule 400.10(3) and AP Manual Item 215, p 2 and Item 216, p 3 establish eligibility requirements for ADC-I benefits in conflict with Federal regulations.
42 USC 606(a) defines a dependent child who may be eligible for aid under the AFDC program as one who "has been deprived of parental support or care by reason of the * * * physical or mental incapacity of a parent”. The Secretary of HEW defines the term "physical or mental incapacity” as:
" 'Physical or mental incapacity’ of a parent shall be deemed to exist when one parent has a physical or mental defect, illness, or impairment. The incapacity shall be supported by competent medical testimony and must be of such a debilitating nature as to reduce substantially or eliminate the parent’s ability to support or care for the otherwise eligible child.” 45 CFR 233.90(c)(1)(iv).
While the DSS Assistance Payments Manual cites the above regulation, the above-cited departmental policy and administrative rules also define a physically or mentally incapacitated parent as one who is unable to engage in "full-time employment”. The definition of this standard is "working less than 100 hours per month” and is borrowed from regulations pertaining to the ADC-U program.
The question before us is whether the regulations at issue constitute an impermissible attempt by the state to narrow eligibility standards for ADC-I benefits in such a manner as to conflict with Federal law. In cases finding such a conflict, the invalid state regulations created blanket exclusions by defining or creating an eligibility criterion in a manner inconsistent with the applicable Federal law or regulation. Townsend v Swank, supra, King v Smith, supra, Lopez v Vowell, 471 F2d 690 (CA 5, 1973), cert den 411 US 939; 93 S Ct 1903; 36 L Ed 2d 401 (1973).
The Federal regulation defining a "physical or mental incapacity” sufficient to qualify an individual for ADC-I benefits focuses on the effect of the parental incapacity on the ability to support or care for dependent children. It emphasizes a substantial reduction or an elimination of the support ability. The language used is thus inherently flexible and evidences an intent that no one factor related to support be automatically determinative of eligibility or ineligibility for ADC-I. The purpose is clearly to take into account the various ways a parent’s disability may affect the support of his or her family and the extent to which it is affected.
The regulations in the case at bar represent an effort by the state either to define the term "physically or mentally incapacitated” so as to exclude any parent who is able to work "full-time”, i.e., 100 or more hours a month, or at the very least to narrow the broad import of 45 CFR 233.90(c)(1)(iv) by using the number of hours worked as a sole determinative factor for eligibility. Under these definitions, it matters not that one’s ability to support may be substantially reduced. We agree with plaintiff that the DSS regulation at issue in the case at bar is in conflict with the letter and the spirit of Federal law. The denial of benefits to plaintiff was therefore invalid under the principle of King v Smith, supra. The decision of the hearing authority and the trial court is therefore reversed.
However, the initial disposition of this case makes it unnecessary to remand for a new hear ing. The original decision of the administrative law judge, after hearing on the issue of eligibility, found that the plaintiff suffered from a physical incapacity and that this incapacity substantially reduced his ability to support his children. As the trier of fact, the administrative law judge had the opportunity to hear testimony and view the witnesses in reaching his decision. His determination of eligibility, therefore, under the principle enunciated in Soto v Director of the Michigan Dep’t of Social Services, 73 Mich App 263, 271-272; 251 NW2d 292 (1977), will be upheld as long as it is supported by substantial evidence on the whole record and/or is authorized by law. Based on our review of the hearing transcript, we find that there was substantial evidence on the whole record to support the finding of plaintiff’s eligibility for ADC-I benefits. We therefore reinstate the decision of the administrative law judge.
The appellees argue that the administrative law judge improperly placed the burden of proof on the state to establish the changes in the "status quo” that justified the finding of ineligibility. We disagree that the administrative law judge misstated the burden of proof. The clear import of the statement in his opinion is that, while the plaintiff had introduced competent evidence establishing his eligibility for ADC-I benefits, the Midland County Department of Social Services failed to offer evidence sufficient to rebut the plaintiff’s asserted eligibility. See Stuart v Canary, 367 F Supp 1343, 1345 (ND Ohio, 1973).
Due to our view, that the DSS regulations’ invalid conflict with Federal law provides sufficient grounds for reversal, we do not reach the constitutional issue raised by the plaintiff. Ryan v Ore Lake, 56 Mich App 162, 167; 223 NW2d 637 (1974).
The decision of the trial court, affirming the State Department of Social Services Hearing Authority’s denial of ADC-I benefits is reversed. The decision of the administrative tribunal finding plaintiff eligible for ADC-I benefits is reinstated. No costs, as a public question is involved.
The medical packet attached to the hearing record reveals a history of back problems first brought to the attention of the County Department of Social Services in October, 1969. The record also reveals a number of applications for aid over a four-year period; only the grant of benefits in 1974 and their subsequent cancellation are in issue here.
Medical Examination Report, dated October 11, 1973.
Disability Certification, dated January 9, 1974.
Medical Examination Report, dated September 12, 1974.
Disability Certification, dated October 8, 1974.
Decision of Hearing Authority, May 2, 1975, Opinion of the trial court, No 75-005586-AA, dated April 19, 1977.
Pub. L. 90-248, § 203(a), 1968.
The rules challenged by plaintiff read:
Rule 400.10(3):
"In aid to dependent children, mental or physical incapacity is considered to exist if due to mental or physical inñrmity the parent is unable to engage in full-time employment, or to perform all the tasks required in a remunerative occupation for which the person under consideration is otherwise qualified, or to engage in employment without endangering life or health.” (Emphasis added.)
DSS AP Manual, Item 215, p 2:
"In order to consider a parent incapacitated, one of the following conditions must be met:
"1. The parent’s incapacity must prevent him from working full-time at any job for which he is otherwise qualified; or * * and id., Item 216, p 3.
"Unemployed — At application, a father who has been employed only part time must have worked less than 100 hours per month during the 30 days preceding the date of the first payment to be considered unemployed * * *.
"Any father employed 100 or more hours (unless intermittent), even though his income is insufficient on assistance standards to meet the family’s needs, is not eligible.”
It must be pointed out that while a state may not narrow eligibility requirements so as to conflict with Federal law, a state may still achieve its goal to allocate scarce social welfare resources by setting benefit levels. Townsend v Swank, supra, at 291. | [
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Bashara, J.
Plaintiff appeals from a jury verdict awarding defendant $7,000 for a parcel of land taken in a condemnation proceeding in 1977. Defendant has already been paid the full amount of the jury award. The only issue to merit discussion is the manner in which value should be assigned property in condemnation actions of this nature in the future.
Defendant was the owner of a two-family income flat. Testimony at trial indicated that defendant and other neighborhood residents became aware of the board of education’s intention to acquire land for Kettering High School in 1962. An inquiry as to the extent of property to be taken resulted in defendant being shown a general print of proposed construction which included his property.
In 1965, defendant again made inquiries of the board and was told his property could be taken at any time. Some property in the area was acquired at that time.
In 1970, defendant was told that his property was included in an alternate plan but there was no planned date for purchase. In 1972, in response to further inquiries, defendant received a letter indicating that his parcel of land fell outside the area of the designated site.
Defendant began to have difficulty retaining tenants in 1970. He attributed this to uncertainty as to what property would be taken, residents allowing their property to deteriorate and the effect of houses being torn down. Defendant boarded his house up in 1973 and it was demolished soon after.
The property was valued at $900 by the board of education. An appraiser testifying for defendant evaluated the fair market value of the property had the house not been torn down as $9,500. This was based on his survey of the area in 1977, his knowledge of the neighborhood, and city records. He testified that the property had experienced accelerated condemnation blight (distinguished from normal urban blight), and that it had been caused by the activities of the board of education.
Plaintiff contends that there was not sufficient evidence presented of activities on its part to justify the jury award.
Private property may not be taken for public use without due process of law and just compensation. Thom v State Highway Comm’r, 376 Mich 608, 613; 138 NW2d 322 (1965). Just compensation is that which puts the injured party in the same position as he would have been had the injury not occurred. It should not enrich the individual at public expense, nor the public at the individual’s expense. The value given for the condemned land is determined at the time of the taking. State Highway Comm’r v Eilender, 362 Mich 697, 699; 108 NW2d 755 (1961).
A taking generally occurs when a verdict is confirmed, the deed executed, and the award paid. However, there are special situations where governmental actions amount to a "de facto” taking of private property prior to an actual eminent domain proceeding. Foster v Detroit, 254 F Supp 655, 662 (ED Mich, 1966).
The term "taking” is not to be construed in a narrow sense. There need be no actual physical invasion of the property. A diminution in value or partial destruction can constitute a "taking”. Thom, supra, at 613-614, Clinton Street Greater Bethlehem Church v Detroit, 484 F2d 185, 188 (CA 6, 1973).
The issue becomes what activities on the part of the condemning authority can be considered as depriving an owner of his property rights. There is no precise formula or specific method for this determination.
The Michigan Supreme Court has held that a city may not by deliberate acts reduce the value of private property. In re Urban Renewal, Elmwood Park Project, 376 Mich 311, 317; 136 NW2d 896 (1965).
Actions found to be deliberate include the filing of lis pendens, the published threat of condemnation, mailing letters and circulars concerning the project to area residents, refusing to issue building permits for improvements coupled with intense building violation inspection, reductions in city services to the area and protracted delay and piecemeal condemnation and razing. In re Urban Renewal, Elmwood Park, supra, Foster v Detroit, supra, Madison Realty Co v Detroit, 315 F Supp 367 (ED Mich, 1970).
However, more than mere promulgation and publicizing of plans is needed in Michigan to constitute a taking. Threats must be coupled with affirmative action such as unreasonable delay or oppressive conduct directed to the neighborhood as a whole. Muskegon v DeVries, 59 Mich App 415, 419; 229 NW2d 479 (1975), Holloway Citizens Committee v Genesee County, 38 Mich App 317, 321; 196 NW2d 484 (1972).
Threats of condemnation and any action in furtherance thereof should be considered cumulatively in determining whether an unlawful taking has occurred. Ellis v Grand Rapids, 257 F Supp 564 (WD Mich, 1966). See also Cleveland v Carcione, 118 Ohio App 525; 190 NE2d 52 (1963).
The determination of the date of taking and the ascertainment of value is a question of fact for the jury. Detroit v Sherman, 68 Mich App 494, 498; 242 NW2d 818 (1976), In re Urban Renewal, Elmwood Park, supra, at 318.
It is not within the province of this Court to review questions of fact other than to ascertain the presence of evidence that can support the verdict. A verdict will not be disturbed so long as it is within the fair range of the testimony. Detroit v Sherman, supra, St Clair Shores v Conley, 350 Mich 458, 463-4; 86 NW2d 271 (1957). In this case, sufficient facts were elicited to support the jury’s award.
Affirmed, costs to defendant.
The United States Supreme Court has not yet adopted a definitive stance on the time and manner of awarding just compensation when precondemnation delay is involved. However, the Court held in United States v Virginia Electric & Power Co, 365 US 624; 81 S Ct 784; 5 L Ed 2d 838 (1961), that the Court must exclude any depreciation in value caused by the prospective taking once the government "was committed” to the project. The opinion seemed to indicate that mere threats could in fact depreciate property values. | [
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] |
R. B. Burns, P.J.
Plaintiff had a judgment of no cause of action entered against it following a bench trial on its claim for rents allegedly due under a lease contract, and appeals. We reverse.
In 1963, the parties in this case entered into a contract whereby plaintiff agreed to construct a building in its Kalamazoo shopping center to defendant’s specifications and to lease the building to defendant for use as a supermarket. The lease term was 12-1/2 years, and the rental terms provided for a "fixed minimum rental” of $30,000 per year, plus an additional "percentage rental” of 3/4 of one per cent of gross sales over $3,000,000, and 1/2 of one per cent of gross sales over $4,000,000 per year. Defendant occupied the building in 1963, and remained in possession throughout the lease term. Defendant operated a supermarket in the building until 1974, when it moved its retail operations across the street into a new shopping center. The building was thereafter used as a warehouse until the expiration of the lease. The fixed minimum rental was paid throughout the lease term. Gradually increasing percentage rentals were paid from 1966 through 1974, culminating in a maximum payment of approximately $26,000. Since the use of the building as a warehouse did not generate sales, no percentage rentals were paid after 1974.
The issue presented for the trial court’s resolution was whether defendant breached the lease agreement by stopping retail operations in the building before the end of the lease term, causing plaintiff the loss of percentage rentals which otherwise would have been paid. Plaintiff argued that the lease required defendant to maintain its supermarket operation throughout the lease term, relying in part on parol evidence tending to show that the parties contemplated payment of percentage rentals throughout the lease term, and in part on the "use” provision of the lease:
"The premises during the term of this Lease shall be used by the LESSEE for the operation of a discount grocery store super market, including such other operations as are normally conducted in this type of business.”
The trial court found that the "such other operations” clause of the "use” provision unambiguously permitted the warehouse operation, and excluded the parol evidence as inadmissible under the parol evidence rule. Additionally, the trial court found that a default provision authorizing re-entry, reserving as damages the minimum rent accruing subsequent to re-entry, precluded assessment of percentage rentals as damages even in the event that warehousing was a breach of the lease. Lastly, the trial court held that, even if admissible, the parol evidence would not have changed its interpretation of the lease.
Although plaintiff was permitted to make a special record on some of the parol evidence it sought to introduce, other parol evidence was excluded totally. Thus, we cannot say that the failure to admit parol evidence was harmless error because it would not have affected the outcome. Although the trial court concluded that the parol evidence would not have changed its interpretation, it did not have all of the evidence before it.
The trial court’s conclusion that percentage rentals could not be collected as damages is clearly erroneous. GCR 1963, 517.1. The re-entry clause, even if construed as limiting damages, was inapplicable, because plaintiff did not re-enter. Elsewhere, the lease contained a clause reserving for plaintiff its common law remedies, which could include percentage rentals which would have been payable but for the breach of the lease.
Evidence that the "such other operations” clause of the "use” provision authorized only operations concomitant to the operation of a supermarket on the premises, and not warehousing, would not be inconsistent with the terms of the lease. Such evidence was, therefore, admissible. Union Oil Co of California v Newton, 397 Mich 486; 245 NW2d 11 (1976).
The "use” provision, coupled with the scheme of rentals involving fixed minimum and percentage rentals, raises an ambiguous inference that defendant was required to operate a supermarket business so as to generate percentage rentals. Resolution of the ambiguity requires a determination of the intent of the parties, which may be inferred from the circumstances in which the lease was made, see Kroger Co v Bonny Corp, 134 Ga App 834; 216 SE2d 341 (1975), Ingannamorte v Kings Super Markets, Inc, 55 NJ 223; 260 A2d 841 (1970), Professional Building of Eureka, Inc v An ita Frocks, Inc, 178 Cal App 2d 276; 2 Cal Rptr 914 (1960), and the relative substantiality of the minimum rent, Bobenal Investment, Inc v Giant Super Markets, Inc, 79 Mich App 31; 260 NW2d 915 (1977). Parol evidence is admissible to resolve the ambiguity and determine the intent of the parties. Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195; 220 NW2d 664 (1974), Lippman v Sears Roebuck & Co, 44 Cal 2d 136; 280 P2d 775 (1955).
Reversed and remanded for a new trial. Costs to plaintiif. | [
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] |
Per Curiam.
Plaintiff publishes and markets in the Detroit metropolitan area a product known as the Metro Book, a "discount passbook” consisting of several hundred coupons which entitles the bearer to purchase entertainment, meals and other services at reduced prices at designated establishments. Defendants are-the managing agent and owner, respectively, of the Macomb Mall, a large enclosed shopping center in Macomb County. Plaintiff sought on several occasions to rent temporarily a kiosk in the corridors of Macomb Mall during the Christmas shopping season, in order to offer its passbooks for sale to shoppers. Defendants consistently refused to lease to plaintiff, but just as consistently rented a kiosk to plaintiffs principal competitor, Sports Unlimited, Inc., which marketed a similar discount passbook.
After learning that its attempts to lease space in Macomb Mall for the 1975 Christmas selling season had been rejected again, plaintiff brought this action alleging that defendants’ conduct restrained trade and competition in violation of the basic Michigan antitrust statute, MCL 445.701; MSA 28.31, and should be enjoined. No preliminary relief was granted. The circuit court heard the case without a jury on April 27 and April 28, 1978.
At the close of the proofs, the trial judge concluded that plaintiff had proven neither a prohibited agreement nor an illegal restraint of trade nor interference with competition. We agree and affirm.
Insofar as is pertinent to plaintiffs complaint, MCL 445.701; MSA 28.31 defines an illegal trust as,
"a combination of capital, skill or arts by 2 or more persons, firms, partnerships, corporations or associations of persons, or of any 2 or more of them, for either, any or all of the following purposes:
"1. To create or carry out restrictions in trade or commerce;
"3. To prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, produce or any commodity.”
At the threshold, plaintiff failed to demonstrate the requisite combination of two or more entities. No evidence established, or even plausibly suggested, that defendants had conspired or acted in concert with any third party, including Sports Unlimited, in refusing to deal with plaintiff. Jerome Schostak, the chairman and chief executive officer of defendant Schostak Brothers & Company, Inc., and David Brock, an employee of Schostak Brothers who managed the mall’s day-to-day operations, maintained that the decision not to lease space to plaintiff was a unilateral managerial decision based upon a number of factors, notably their desire to obtain a better "tenant mix” which would increase the diversity of goods available to shoppers. Brock also wished to maintain the satisfactory existing relationship with Sports Unlimited.
So far as the testimony indicates, only Schostak and Brock participated in the decision to exclude plaintiff. Each acted in his capacity as officer or employee of Schostak Brothers, which in turn served as managing agent for Roseland Shopping Center. Thus, all of the conduct of which plaintiff complains was performed on behalf of the same principal: Roseland Shopping Center (Macomb Mall). The statute which plaintiff invokes plainly contemplates "a combination of capital, skill or arts” by a plurality of actors. Other states with similar antitrust statutes modeled after the Sherman Act have concluded that an agent and his principal, or an employee and his corporate employer, may not be counted separately for purposes of finding a proscribed combination, so long as the agent or employee acts only within the scope of his agency of employment. Padgitt v Lone Star Gas Co, 213 SW2d 133, 136 (Tex Civ App, 1948), Bondi v Jewels by Edwar Ltd, 73 Cal Rptr 494, 498; 267 Cal App 2d 672 (1968), Exxon Corp v Wagner, 154 NJ Super 538; 382 A2d 45, 48 (1977). The Federal courts have arrived at a similar interpretation of § 1 of the Sherman Act, 15 USC § 1. See Anno: 20 ALR Fed 682 (1974). Upon the present facts, defendants, Schostak, and Brock must be regarded as a single actor.
Nor did plaintiff establish that defendants had acted with a forbidden purpose to restrain trade or prevent competition, or that the anti-competitive effects of defendants’ conduct necessarily indicated such a purpose. An alleged restraint of trade should be evaluated in accordance with the rule of reason. People, ex rel Attorney General v Detroit Asphalt Paving Co, 244 Mich 119, 127; 221 NW 122 (1928), Barrows v Grand Rapids Real Estate Board, 51 Mich App 75, 83-88; 214 NW2d 532 (1974). The trial judge concluded that the public was not harmed, nor was competition in discount passbooks stifled, because of defendants’ refusal to lease a kiosk to plaintiff. Plaintiff marketed its passbook in other shopping malls within the same general region. Indeed, Metro Books were sold in the customer service office of one of Macomb Mali’s major chain stores, and defendants’ counsel represented to the court that plaintiff could market its passbook through any regular tenant whose lease permitted it to sell general merchandise. Thus, even if plaintiff had successfully demonstrated a plurality of actors, a covenant against leasing to competitors, and a relevant market, the restrictive or anti-competitive effect of its inability to obtain a kiosk would not have been cognizable under the rule of reason. The trial court’s findings and conclusions in this regard are amply supported by the evidence.
Underlying the trial judge’s decision was his view that a landlord "is not required to accept every tenant who comes with the money in hand to pay the rent”, so long as no discriminatory or otherwise illegal purpose for refusal is involved. The trial judge characterized defendants’ conduct as an exercise of their "legitimate managerial prerogative” to choose the parties with whom they would deal. While we do not predicate our holding on this position, we note that individual refusals to deal have generally been held not to be prohibited under state antitrust laws. 54 Am Jur 2d, Monopo lies, Restraints of Trade, and Unfair Trade Practices, § 581, p 1006.
Plaintiffs second assignment of error is without merit.
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Bashara, J.
These consolidated actions seek an order of mandamus to permanently restrain the Board of State Canvassers from declaring the sufficiency of petitions to refer 1978 PA 426 and 1978 PA 427 to referendum vote at the November 1980 general election.
1978 PA 426 amends §§ 2, 12, 18b, 22, 34, 64, 86 and 93 of 1927 PA 150, as amended, the gasoline and diesel motor fuel tax act, MCL 207.101 et seq.; MSA 7.291 et seq. Among other things, the act raises the tax on gasoline from nine cents to eleven cents per gallon (§ 2) and the tax on diesel fuel from seven cents to nine cents per gallon (§ 22).
1978 PA 427 amends §§ 801, 801e, 802 and 803a of 1949 PA 300, as amended, which is chapter VII of the Michigan vehicle code, MCL 257.1 et seq.; MSA 9.1801 et seq. 1978 PA 427 increases weight (registration) taxes on most motor vehicles, with the heaviest increases falling on automobiles and pick-up trucks.
On January 2,1979, People Against Higher Taxes filed referendum petitions on 1978 PA 426. On January 9,1979, they filed referendum petitions on 1978 PA 427.
The County Road Association of Michigan commenced this action January 3, 1979. The Michigan Road Builders Association filed a similar action January 12, 1979. On that date, this Court entered an order to show cause and set the matter for expedited submission on March 6,1979. The Court also enjoined the Board of State Canvassers from certifying the sufficiency or insufficiency of the petitions during this proceeding.
Plaintiffs contend that the acts make an appropriation for a state institution and, therefore, are not subject to referendum under that part of Const 1963, art 2, § 9, which provides, "The power of referendum does not extend to acts making appropriations for state institutions.”
Motor vehicle fuel tax increases in this state have frequently been challenged. See Detroit Automobile Club v Secretary of State, 230 Mich 623; 203 NW 529 (1925), Moreton v Secretary of State, 240 Mich 584; 216 NW 450 (1927), Michigan Good Roads Federation v State Board of Canvassers, 333 Mich 352; 53 NW2d 481 (1952), Boards of County Road Comm’rs v Board of State Canvassers, 50 Mich App 89; 213 NW2d 298 (1973), afFd, 391 Mich 666; 218 NW2d 144 (1974). Those cases establish the proposition that if the challenged act, by itself or when read in pari materia with other acts, makes an appropriation for a state institution, then the act is not subject to referendum. Plaintiffs contend that 1978 PA 426, either by itself or when read in pari materia with 1978 PA 427 and 444, is an act making an appropriation for a state institution.
Specifically, 1978 PA 426 amends chapter 2, § 34 of 1927 PA 150, as amended, the gasoline and diesel motor fuel tax act to provide for disposition of diesel motor fuel taxes, as follows:
"All sums of money received and collected by the secretary of state under this chapter, except the license fees herein provided, shall be deposited in the state treasury to the credit of the Michigan transportation fund, and after the payment of the necessary expenses incurred in the enforcement of this chapter shall be appropriated, allocated and apportioned therefrom to the department of transportation, the several county road commissions and incorporated cities and villages of the state in the manner and for the specific highway purposes prescribed by law.” MCL 207.134; MSA 7.316(14). (Emphasis added.)
The above emphasized language is sufficient language of appropriations to make 1978 PA 426 an appropriations act under the definition adopted and approved by this Court in County Road Comm’rs v Board of State Canvassers, supra. In that case, the Court said:
"In Black’s Law Dictionary (4th ed), p 131, an appropriation in public law is defined as follows:
" 'The act by which the legislative department of government designates a particular fund, or sets apart a specified portion of the public revenue or of the money in the public treasury, to be applied to some general object of governmental expenditure, or to some individual purchase or expense.’
"Applying Black’s definition of the word appropriation to § 18b would in our opinion qualify it as an appropriations act.” 50 Mich App at 95-96.
Section 18b, construed to be an appropriations act by the Court in the prior case, read:
"All sums of money received and collected under the provisions of this act, except the license fees provided for herein and after the payment of the necessary expenses incurred in the enforcement of this act, shall be deposited in the state treasury to the credit of the motor vehicle highway fund.” MCL 207.118b; MSA 7.308(2).
Section 18b was again amended by 1978 PA 426, essentially to change the name of the Motor Vehicle Highway Fund to the Michigan Transportation Fund.
If former § 18b is construed as an appropriations act, then even more so can § 34 of 1978 PA 426 be considered an appropriations act because of the specific mandatory provision, "shall be appropriated, allocated and apportioned therefrom.” (Emphasis added.)
Although in the prior case this Court declined to hold that the Motor Vehicle Highway Fund, referred to in § 18b, was a state institution, the Department of State Highways and Transportation in present § 34 is clearly a state institution. The Department of State Highways and Transportation is one of the principal departments of the executive branch. See § 4 of the Executive Organization Act, as amended by 1978 PA 483, MCL 16.104; MSA 3.29(4). Furthermore, most of the prior gas tax cases expressly recognize that the former State Highway Department, county road commissions and/or cities and villages are state institutions within the meaning of the constitution.
In addition, § 34 of 1978 PA 426 makes the act an appropriation for a state institution on grounds suggested but not utilized as definitive by this Court in County Road Comm’rs v Board of State Canvassers, supra. In that case, this Court said:
"A more tenable position for plaintiffs to stand on in relation to this issue would be to assert that 1972 PA 326 is but a part by amendment of 1927 PA 150. Without question 1927 PA 150, as amended by 1951 PA 54 and 1967 PA 5 (Ex Sess), is an appropriations act in which appropriations are made to state institutions in §§ 34 and 91. It is, of course, an axiom of statutory construction that an amendatory act is construed in the context of the act which it is designed to amend, the policy being to harmonize and give effect to all legislative language whenever possible. Doyle v Election Commission of the City of Detroit, 261 Mich 546; 246 NW 220 (1933), Fowler v Board of Registration in Chiropody, 374 Mich 254; 132 NW2d 82 (1965).
"Although it appears that standing on this premise we could justifiably rule that the act is not subject to referendum, we do not predicate our decision on this added premise because we do not deem it necessary in view of our subsequent determination.” 50 Mich App at 99-100. (Footnotes omitted.)
In this case, 1978 PA 426 amends § 34 in language nearly identical to 1951 PA 54 which this Court held in the prior case "without question * * * is an appropriations act in which appropriations are made to state institutions in §§ 34 and 91”. 50 Mich App at 99-100.
We reject defendants’ contention that 1978 PA 426 cannot be held to be an appropriation act without violating Const 1963, art 4, § 31. That section is inapplicable because 1978 PA 426, 427 and 444 were part of general appropriation bills as defined by Const 1963, art 4, § 31, and those bills were part of the Governor’s budget. Article 4, § 31 seeks to avoid the passage of appropriation bills for items not in the budget before general appropriation bills for items in the budget are approved.
Defendants also contend that § 34 does not take effect in the next ensuing fiscal year and is therefore just an authorization or merely the expression of an intention to appropriate. Defendants cite Board of Education of Oakland Schools v Superintendent of Public Instruction, 392 Mich 613; 221 NW2d 345 (1974), in support of that proposition.
However, in that case the specific appropriation made was vetoed by the Governor and only the enabling act was passed. School board appropriations are made on a year-by-year basis. Our Supreme Court determined that the bill was in conflict with Const 1963, art 4, § 31, and art 5, § 18, since the Legislature could not accurately forecast available revenues to balance the appropriations. In the instant case, no more is appropriated than the actual net revenue from the tax. The statute here in question is clearly distinguishable from that in Board of Education, supra. We also note that the Supreme Court there indicated that it was not passing upon the validity of a continuing appropriation. Furthermore, we allude to the definition of an appropriation in public law as found in Black’s Law Dictionary, and in County Road Comm’rs, supra, previously cited in this opinion.
Accordingly, we conclude that 1978 PA 426 is an act which makes an appropriation for a state institution and, therefore, is not subject to referendum.
1978 PA 427 does not make an appropriation for a state institution and is subject to referendum, unless that act is to be read in pari materia with 1978 PA 426 and 444.
1978 PA 444 extensively amends 1951 PA 51, the classification of roads act, as amended, MCL 247.651 et seq.; MSA 9.1097(1) etseq. 1978 PA 444 not only contains clear appropriation language to the Department of State Highways and Transportation, but § 10 thereof specifically refers to, incorporates and appropriates, among others, the gas tax increases of 1978 PA 426 and the weight tax increase of 1978 PA 427. If the doctrine of in pari materia applies, 1978 PA 444 is the catalyst.
The doctrine of in pari materia was used by the Courts in County Road Comm’rs v State Canvassers, supra, and in Good Roads Federation v Board of Canvassers, supra. In those cases, the acts involved were passed on the same day and contained tie-bars to each other. In the present case, the acts were not passed on the same day and contain no tie-bar provisions. 1978 PA 426 and 427 were approved September 30,1978, but 1978 PA 444 was not approved until October 10,1978. Moreover, none of those acts has tie-bar provisions. Even more significant than that is the fact that as originally introduced and in subsequent legislative versions, those three acts did have tie-bar provisions which were deleted when the acts were finally passed.
In affirming this Court’s denial of referendum in County Road Comm’rs v State Canvassers, the Supreme Court did so reluctantly only because of the past construction of the constitutional referendum language in Detroit Automobile Club, Moreton, and Good Roads, supra. The Court noted:
"The construction placed by this Court on this exception to the right of referendum in the 1925 Detroit Automobile Club, 1927 Moreton and 1952 Good Roads cases may, indeed, in many instances deny the people a right to vote on new or increased taxes. If the question were one not previously considered, a different result might obtain. However, the identical question involving substantially the same language has been considered by this Court and settled.” 391 Mich at 676.
We are reluctant to extend the referendum exception beyond the prior gas tax cases. In pari materia is a rule of construction to ascertain legislative intent. However, rules of construction should not be invoked where the legislation is not ambiguous or conflicting. See 21 Michigan Law & Practice, Statutes, § 81, p 79. Perhaps then the in pari materia doctrine should not have been applied in the prior gas tax cases where no allegation was made that the statutes under consideration were ambiguous or conflicting. Therefore, even though the doctrine was utilized in County Road Comm’rs and in Good Roads Federation, we do not feel that it should be extended to the present case where the acts were neither tie-barred nor approved simultaneously. The principal consideration must be to implement the constitutional right of referendum. In Kuhn v Dep’t of Treasury, 384 Mich 378, 385; 183 NW2d 796 (1971), the Court said:
"Furthermore, under a system of government based on grants of power from the people, constitutional provisions by which the people reserve to themselves a direct legislative voice ought to be liberally construed. * * * Previous decisions of this Court requiring strict compliance with constitutionally mandated procedures for exercise of the powers of initiative and referendum should not be read as limiting the occasions upon which these powers may be exercised.” (Citations omitted.)
In Michigan Farm Bureau v Secretary of State, 379 Mich 387, 393; 151 NW2d 797 (1967), the Court said:
"There is nevertheless an overriding rule of constitutional construction which requires that the commonly understood referral process, forming as it does a specific power the people themselves have expressly reserved, be saved if possible as against conceivable if not likely evasion or parry by the legislature.”
The same thought was expressed by this Court in Newsome v Board of State Canvassers, 69 Mich App 725, 729; 245 NW2d 374 (1976):
"Constitutional and statutory initiative and referendum provisions should be liberally construed to effectuate their purposes, to facilitate rather than hamper the exercise by the people of these reserved rights.”
We are thus cautioned by respectable authority against restricting the right of referendum. Accordingly, we decline to apply the doctrine of in pari materia to the 1978 acts. As noted earlier, the doctrine probably should not have been applied in prior gas tax cases in the absence of ambiguous or conflicting provisions. Since it was applied in prior cases, however, we must restrict its application to situations, like the prior cases, where the acts were approved on the same day and were tie-barred to each other. Since 1978 PA 426, 427 and 444 were not enacted simultaneously and do not contain tie-bars to each other, we decline to read them in pari materia.
Good Roads Federation and County Road Comm’rs, supra, gave special (perhaps undue) significance to the presence of tie-bar language in those gas tax controversies. Because of the precedential force of those decisions, we are compelled similarly to give significance to the absence of tie-bar language in this controversy. However, we caution that tie-bar should not be raised to the level of an absolute principle of statutory construction in other contexts. Tie-bar language may be some legislative indication that statutes are intended to be read together; but, tie-bar language or its absence, alone, should not necessarily be controlling injudicial interpretation of legislative intent in other situations.
We conclude, therefore, that 1978 PA 426 is not subject to referendum, but that 1978 PA 427 is. The power of referendum under Const 1963, art 2, § 9, was properly invoked with reference to 1978 PA 427. See 1978 PA 587.
An order of mandamus will issue in 20 days from the date of the release of this opinion permanently to restrain the Board of State Canvassers from certifying the sufficiency of petitions to refer 1978 PA 426 to referendum. In 20 days also, our stay of certification of petitions to refer 1978 PA 427 to referendum will be vacated. Our stay of the certification process remains in effect for that 20-day period.
D. E. Holbrook, Jr., J., concurred.
Although we find the right of referendum inapplicable to 1978 PA 426, it should be noted that the people of the State of Michigan may always institute a petition to amend the constitution or propose an initiative petition on any issue, regardless of its fiscal implications. | [
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J. H. Gillis, J.
Defendant was charged with carrying a concealed weapon. MCL 750.227; MSA 28.424. After he was bound over for trial defendant brought a motion to suppress evidence and quash the information. The trial court granted defendant’s motion and the prosecutor appealed. In an unpublished per curiam opinion this Court remanded the case for additional findings. Docket No. 77-1139 (released March 9, 1978). The trial court carried out these instructions in an order dated April 25, 1978. The people now appeal from that order.
The parties stipulated that the factual basis for determination of the motion was contained in the preliminary examination transcript. That evidence was provided by the arresting officer’s testimony. He stated that at approximately 1:30 a.m. on November 12, 1976, he and his partner spotted defendant and a female companion walking along Mack Avenue in the City of Detroit. According to the officer the female "appeared young looking”. Suspecting the woman was in violation of Detroit’s curfew ordinance, the officers pulled their car to the curb and, in the officer’s words, "told the female to stop”. At that point defendant made a movement toward his waistband, prompting the officers to draw their weapons and order him to freeze. As defendant stopped, a gun fell out of his coat. He was arrested on the instant charge and the two persons were transported to the station. There it was discovered that the woman was 19 years old and she was released.
The trial court based its order on two distinct grounds. First, the court found the officer’s testimony that he was investigating a curfew violation to be "inherently incredible” under the factual situation presented. The trial court pointed out that the female was 19 years old and accompanied by the defendant, an adult, and the officer should have been mindful of the exemption from the curfew ordinance for "a minor accompanied by * * * other adult person having the care or custody of the minor”. Detroit Municipal Code, ch 36, art 3. The court, therefore, concluded that the stop was not justified under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).
The trial court went on to rule that even if the witness were believed, the Detroit curfew ordinance is unconstitutional. Hence, the stop was unsanctioned and the evidence was obtained as a direct result of a violation of defendant’s constitutional rights.
In reviewing a trial court’s order to suppress evidence and dismiss the charges, this Court applies a "clearly erroneous” standard. People v Ulrich, 83 Mich App 19; 268 NW2d 269 (1978), People v Robertson, 81 Mich App 446; 265 NW2d 365 (1978), People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977). A finding is "clearly erroneous” when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been made. People v Hummel, 19 Mich App 266, 270; 172 NW2d 550 (1969).
In this case we are convinced that a mistake has been made. The trial court’s decision to suppress the gun was based on its determination that the initial stop was unlawful.
In People v White, 84 Mich App 351; 269 NW2d 598 (1978), two officers asked two males to get out of a car. The defendant, a female, had been sitting on the passenger side of the car. She was not requested to exit the car, but did so on her own. As she approached one of the officers, she reached as if to go into her purse. She was told not to go into the purse and when she did not stop the officer grabbed her hand. At that point he saw a revolver in the purse. In reversing the trial court’s order suppressing the evidence, this Court stated:
"The decision to order the two males out of the car is not a question here. Defendant has no standing to raise it. She was not ordered out of the car, but rather, voluntarily injected her presence into this affair. As the circumstances developed, stopping her hand from entering her purse must be considered a protective act, justified under Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). The officer was not required to allow defendant access to the purse without first checking the contents. People v Ridgeway, 74 Mich App 306; 253 NW2d 743 (1977), lv den, 401 Mich 831 (1977). Since the officer’s actions up to that point were reasonable, the subsequent seizure of the weapon after it came into his view in the open purse was not unreasonable.” 84 Mich App at 354.
In the instant case, the arresting officer testified, "We told the female to stop” and "We asked her to stop and show age and identification”. There is no indication that defendant was ordered to stop. Hence, we conclude that defendant has no standing to question the validity of the initial stop.
When defendant reached into his waistband under his coat the officers thought he was going for a gun and ordered him to freeze. As in White, supra, the officers’ actions at this point were justified under Terry v Ohio, supra. Since the officers’ actions were reasonable at this point, the seizure of the gun after defendant dropped it was not unreasonable.
The order to suppress the evidence is reversed and the proceedings against defendant are reinstated.
Reversed. | [
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Beasley, J.
On October 6, 1961, while a passenger, plaintiff was injured in a four-car collision on the Lodge Expressway. After the car in which plaintiff was a passenger struck the suddenly-stopping car in front of it, defendant drove his car into the rear end of the car in which plaintiff was a passenger.
After a trial, which started on May 31, 1977, a jury awarded plaintiff judgment against defendant in the sum of $2,000. After denial of a motion for new trial, plaintiff appeals as of right, raising two issues.
First, plaintiff claims it was error to deny his request that the trial judge inquire of the jurors whether they harbored prejudice or feeling against blacks. In this case, plaintiff is black and defendant is white. The trial judge denied plaintiff’s request, pointing out that the jurors indicated they had no reservations about deciding the case from the testimony. In support of his claim, plaintiff cites a criminal case, People v Wray.
The purpose of voir dire is to provide counsel an opportunity to elicit sufficient information to develop a rational basis for excluding prospective jurors whether for cause or by peremptory challenge.
Part of the problem for trial judges in conducting voir dire of prospective jurors to determine the presence of undue prejudice is that the questioning of necessity places emphasis on race which, of course, is just what a trial judge wants to avoid, namely, injection of race. For example, in Harrell, defense counsel requested the trial judge to propound 120 questions to each prospective juror. One inevitable effect of putting 120 such questions to a prospective juror would, of necessity, place undue emphasis on differing races in the trial.
In Ham v South Carolina, the Supreme Court held:
"The State having created this statutory framework [voir dire examination] for the selection of juries, the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires under the facts shown by this record the petitioner be permitted to have the jurors interrogated on the issue of racial bias.”
In Ristaino v Ross, Ross, a black, was convicted of crimes of violence against a white security guard. The Supreme Court held that his Federal constitutional rights secured through the Fourteenth Amendment were not violated by a refusal to ask questions directed to racial prejudice. "The mere fact that the victim of the crimes alleged was a white man and the defendants were Negroes was less likely to distort the trial than were the special factors involved in Ham ” where racial issues "were inextricably bound up with the conduct of the trial”.
In People v Wray, the trial court said:
"Even though the Court noted that there was no requirement for the trial court to ask the defendant’s requested questions verbatim, it was reversible error not to ask specific questions dealing with the particular subject of racial prejudice.”
Although the cited cases are all criminal cases, we subscribe to the proposition that in a civil jury trial where it appears that race is an issue, a litigant is entitled, upon request, to ask or have asked special questions dealing with the particular subject of racial prejudice. While we unqualifiedly embrace this doctrine, we do not find that there was any bona fide issue of race within the civil suit for damages. The mere fact that a plaintiff is black and a defendant white does not indicate that there is necessarily an issue of race. Consequently, under these circumstances, we decline to find that it was error for the trial judge to refuse to ask specific questions of the jury relating to racial prejudice. Furthermore, the record in this case indicates that counsel for plaintiff failed to make specific written requests regarding the exact inquiries of prospective jurors that he wanted made. Counsel’s oral request on the record for such an inquiry lacked specificity and was stated in an indefinite fashion. Consequently, we find no error in the conduct of the voir dire in this case.
Next, plaintiff alleges that the trial court erred in admitting into evidence an "Ability to Work” report as part of plaintiffs employment record at Ford Motor Company. In the report, the company doctor noted that no work restrictions were required. This was not a diagnosis but was merely a general description of plaintiffs physical condition. As such, it was admissible under the business entry rule.
Affirmed, with costs.
49 Mich App 344; 212 NW2d 78 (1973).
People v Harrell, 398 Mich 384, 388, 393; 247 NW2d 829 (1976).
See fn 2, supra.
409 US 524, 527; 93 S Ct 848; 35 L Ed 2d 46 (1973).
424 US 589, 597; 96 S Ct 1017; 47 L Ed 2d 258 (1976).
People v Wray, supra, p 346.
The record indicates as follows:
"MR. MEYER: [Counsel for plaintiff] Yes, Your Honor. I would like to know — I realize this is a difficult thing perhaps for some jurors, I don’t know about this jury — but I would like to know if any of the jurors have any feelings against people of the black race, whether or not—
"THE COURT (Interposing): No, I don’t think we need to get into the racial matter.
"Anything else?
"MR. MEYER: I think the jury should be committed to the proposition—
"THE COURT (Interposing): They have indicated they have no reservation about deciding the case solely and completely from the sworn testimony.”
The "Ability to Work” report was dated some eight years after the accident.
MCL 600.2146; MSA 27A.2146. Bond v Greenwood, 34 Mich App 41; 190 NW2d 731 (1971), Cacavas v Bennett, 37 Mich App 599; 194 NW2d 924 (1972). | [
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D. E. Holbrook, Jr., J.
A warrant was issued charging defendant with receiving and concealing stolen property of over $100, MCL 750.535; MSA 28.803. At preliminary examination, the prosecution moved to compel defendant to submit handwriting exemplars, which motion the district judge granted. Defendant applied for and was granted leave to appeal by the Oakland County Circuit Court. After reviewing briefs submitted by both parties, the circuit court reversed the district court order. From the circuit court ruling the people appeal by leave granted.
Defendant had contended, in circuit court, that a defendant cannot be compelled to give handwriting exemplars under Michigan law based upon holdings in People v Sturman, 209 Mich 284; 176 NW 397 (1920), and People v Smogoleski, 14 Mich App 695; 166 NW2d 14 (1968).
The United States Supreme Court in Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967), held that the taking of exemplars was not a critical stage of the criminal proceedings entitling petitioner to assistance of counsel, and that the taking of exemplars does not violate the Fifth Amendment privilege against self-incrimination. The Supreme Court provided further guidance regarding handwriting exemplars in United States v Mara, 410 US 19; 93 S Ct 774; 35 L Ed 2d 99 (1973). There they indicated that "the specific and narrowly drawn directive requiring the witness to furnish a specimen of his handwriting* violated no legitimate Fourth Amendment interest.” Mara, supra at 22. The asterisk in this quote referred to a footnote which further explained defendant’s Fifth Amendment privileges. This footnote states in part:
"But the Government’s petition for the order to compel production stated: 'Such exemplars will be used solely as a standard of comparison in order to determine whether the witness is the author of certain writings.’ If the Government should seek more than the physical characteristics of the witness’ handwriting — if, for example, it should seek to obtain written answers to incriminating questions or a signature on an incriminating statement — then, of course, the witness could assert his Fifth Amendment privilege against compulsory self-incrimination.” Mara, supra at 22.
Gilbert and Mara clearly indicate that there is no violation of a defendant’s Fifth Amendment privilege against self-incrimination when he is compelled to provide a handwriting exemplar to be used for comparison purposes.
Though the law is clear that the United States Constitution does not prohibit the requiring of handwriting exemplars, defendant’s position is that Michigan law forbids compelling of handwriting exemplars. Indeed, a cursory reading of Sturman would tend to support this contention. There the Michigan Supreme Court, after citing 1915 CL 12539, which was a predecessor statute to MCL 600.2144; MSA 27A.2144, stated in dicta that:
"Quite likely it would have been error to compel the witness, against objection, to make the signatures he did.” Sturman, supra at 289.
MCL 600.2144; MSA 27A.2144 concerns admission into evidence of the handwriting of any person. It states:
"Whenever in any suit or proceeding in any of the courts of this state, it shall be necessary or proper to prove the signature or the handwriting of any person, it shall be competent to introduce in evidence for the purpose of comparison, any specimen or specimens of the handwriting or signature of such person, admitted or proved to the satisfaction of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one admissible in evidence or connected with the case or not. If such paper is not one admissible in evidence for some other purpose, or connected with the case, it shall not be admissible in evidence for the purpose of comparison unless it was made before the controversy arose concerning which such suit or proceeding was brought.”
It is clear that in 1920 when the Michigan Supreme Court decided Sturman a handwriting exemplar of the type involved in this case was not admissible under the predecessor statute to MCL 600.2144; MSA 27A.2144. While it is true that MCL 600.2144; MSA 27A.2144 remains in force, essentially in the same form as it was in 1920, it does not alone state the law in this area. In 1927, MCL 768.25; MSA 28.1048 was enacted. This section states:
"Whenever in the trial of any criminal case it shall be necessary or proper to prove the signature of any person, it shall be competent to introduce in evidence for the purpose of comparison, any specimen or specimens of the handwriting or signature of such person, admitted or proved to the satisfaction of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one in evidence or connected with the case or not.”
It is this statute, rather than MCL 600.2144; MSA 27A.2144, that governs admission of handwriting specimens in criminal proceedings. The fact that specimens of handwriting were obtained after defendant’s arrest does not offend that statute. People v Harris, 69 Mich App 505, 506; 245 NW2d 110 (1976). The enactment of MCL 768.25; MSA 28.1048 necessarily limits the applicability of Sturman to civil cases. Defendant’s reliance on Smogoleski is similarly misplaced. The Court in that case indicated:
"Defendant for the first time on appeal raises the question of the prohibition provided in CLS 1961, § 600.2144 (Stat Ann 1962 Rev § 27A.2144) against using a sample signature created after the controversy concerning which the criminal proceedings were brought. It appears that, although objection was made to admission of the evidence, it was predicated on a violation of Fifth and Sixth Amendment privileges and not as a violation of the statute. This Court need not pass on the controversy as to whether the aforementioned section of the revised judicature act of 1963 applies only to civil matters. People v Sturman (1920), 209 Mich 284, indicates that the signatures may not be compelled, but may be used if voluntarily given. No objection was made either in Sturman or in the instant case predicated on this statute. Sturman holds that by not interposing an objection based on this statute to have the paper containing the picture excluded for comparison purposes, a defendant waives the benefit of same.
"Defendant’s conviction is affirmed.” Smogoleski, supra at 700-701.
The Court clearly held that because the statute had not been brought into play, Gilbert v California, supra, permitted the handwriting exemplar to be introduced into evidence and affirmed defendant’s conviction. Thus, in light of Harris, Smo goleski, rather than supporting defendant’s position, must be interpreted as sustaining the people’s position.
We find the handwriting exemplar requested by the people to be non-communicative in nature and that this compulsion does not violate the Fifth Amendment. Holt v United States, 218 US 245; 31 S Ct 2; 54 L Ed 1021 (1910), Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966). Additionally, there is no provision in Michigan law which prohibits a criminal defendant from being required to submit handwriting exemplars.
The circuit court’s order reversing and setting aside the order of the district court is vacated. The people may require defendant to submit handwriting exemplars as ordered by the district court.
Reversed. | [
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R. B. Burns, P.J.
Plaintiff brought suit under the no-fault automobile insurance act alleging that defendant’s negligent operation of an automobile in which plaintiff was a passenger had caused plaintiff serious impairment of body function. See MCL 500.3135(1); MSA 24.13135(1). A bench trial was held, at the conclusion of which the trial court found negligence, but no serious impairment of body function. Plaintiff appeals and we reverse.
Plaintiffs primary contention on appeal is that the trial court erred in finding no serious impairment of body function.
Findings of fact by the trial court may not be set aside unless clearly erroneous. In applying this principle regard is given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. GCR 1963, 517.1. A finding of fact is clearly erroneous where, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244, 245 (1976). "The 'judicial sieve’ employed here is appropriately 'of finer mesh than the one correspondingly employed here on review’ of a jury’s verdict. Schneider v Pomerville, 348 Mich 49, 54-55; 81 NW2d 405 (1957).” Hi-Way Motor Co v International Harvester Co, 398 Mich 330, 339; 247 NW2d 813, 817 (1976).
Testimony at trial by plaintiff, her family, and friends, established that, prior to the accident, plaintiff was a healthy, active and sociable person. She was never sick and never complained of neck or back problems. She was very active, engaging in intramural high school volleyball, bike riding, roller skating, motorcycling, and snowmobiling. She would help out around her father’s farm, loading corn in the pickup, mowing the lawn, and picking up stones in the field. She would do acrobatics on the flagpole and a barn rope. She was variously described as happy-go-lucky, a girl who wanted to live for everything, always on the run, fun-loving, and a "terror”. She went out at least four nights a week. A month before the accident she moved out of her parents’ home to live in an apartment with a girlfriend.
The accident occurred November 16, 1973, shortly after midnight. Plaintiff was 19 years old. Defendant lost control of the car and it went off the road. Plaintiff was thrown from the car and knocked unconscious. She drifted in and out of consciousness on the way to a hospital by ambulance. She had two cuts on the back of her head which were sewn up. She also had bruises on her body and one arm hurt, although, by the time of trial, she could not say which arm. X-rays were taken, and apparently were negative. She was sent home from the hospital the same night.
Plaintiff’s roommate testified that, when plaintiff came home from the hospital, plaintiff was very tense, had severe headaches, and complained of back and head pain. Plaintiff started keeping to herself, and hardly ever went out after the accident. She had rarely seen plaintiff since plaintiff moved out in February of 1974.
Plaintiff testified that the head cuts hurt so much that she did not really notice any neck or back pain until the stitches were removed by Dr. Laughlin on November 23, 1973. She thereafter went to her family physician, Dr. Anderson, on December 23, 1973, complaining of pain in her neck, shoulders and back. Dr. Anderson testified by. deposition that his diagnosis was whiplash— multiple soft tissue injuries of the back, shoulders and neck. Considering the absence of complaints of this type before the accident; Dr. Anderson concluded that the injury was the result of the accident. He provided plaintiff with ultrasonic treatment, muscle relaxants, anti-inflammatory agents and pain tablets. Plaintiff returned to Dr. Anderson for further treatments on December 5, December 11, and December 28, 1973. However, despite treatments by Dr. Anderson and other doctors, plaintiff’s pain has persisted and gotten worse.
Plaintiff moved back to her parents’ farm in February, 1974. Plaintiffs family testified that, since the accident, plaintiff always seems to be either complaining about her neck and back pain or is in bed suffering. She sometimes takes to bed for three days at a time. Someone is always having to rub her back or neck for her. She gets very depressed, has crying jags, says she doesn’t want to live, and threatens to kill herself. Her father can’t talk to her because she runs off and cries. Her sister testified that the depression is getting worse.
Plaintiffs level of physical activity has been reduced. Plaintiff can no longer bowl, or ride horses, snowmobiles or motorcycles, or do acrobatics. She cannot help out on farm chores. She did enter a demolition derby in August, 1974, but her car quit before the start and she was not hit. She wore a helmet, neck collar, padding and seatbelt for protection. She played slow pitch softball because she wanted to have some fun, but she hurt afterwards. Rather than go to a party with her teammates after the games, she would go home, clean up, and go to bed. Her brother observed that she could play the game, but she "paid for it” in pain.
Plaintiffs social life has suffered. She only goes out once or twice a week now, because she recognizes that she has become a chronic complainer and does not want to spoil the fun of friends. However, she can and does get on the top of tables and dances when urged to do so by friends. Plaintiffs sister testified that, when they go out, plaintiff can’t keep up and wants to go home too soon. Plaintiff cancelled three shopping trips she had agreed to go on with her sister prior to the last Christmas, saying she was too sick with a sore neck to go. When she went to Florida with a girlfriend, driving only a little because it bothered her, she found she could not get out of the hotel bed by herself, or even lift her head off the pillow, because of her sore neck and back. She had no fun at the last Tip-up Town, because she had a sore back and neck, could not ride snowmobiles like everyone else, and the friend she was with ignored her.
Plaintiff testified that her condition is getting worse. Her back pain is more constant, and becoming worse in her lower back. Her left arm had developed shooting pains if she lifted it too far, but in September, 1977, it got worse and she couldn’t use it for three weeks. Just before trial she found she was losing her grip, dropping things, and could not type accurately. However, she believes she could still do secretarial or selling work, though she was not working. Sometimes when she sits, her legs get numb or go to sleep. She wears a neck collar at home, and is currently taking valium and muscle relaxants.
Plaintiff has sought medical help frequently. Between January 14, 1974, and October 26, 1974, she went to Dr. Tarry, a chiropractor, for manipulations 56 times. This would provide her with temporary relief. She then went to Dr. Badgley three times between November, 1975, and January, 1976. Dr. Badgley prescribed pain relievers and muscle relaxants, and advised that she discontinue chiropractic treatment while she was in his care. However, the medications hurt plaintiff’s stomach and made her drowsy, so she only took them when the pain became severe. She went back to Dr. Anderson in March and April, 1976, for traction treatment, muscle relaxants, aspirin and an anti-inflammatory agent. She went to a Dr. O’Connor twice during the summer of 1976 for manipulations of her back and hip. During October and November she returned to Dr. Anderson for ultrasonic treatments. Starting in the summer of 1977 to the time of trial, February, 1978, she saw a Dr. Brown for manipulations and valium. She saw Dr. Badgley a last time in October, 1977.
Dr. Badgley testified by deposition that when plaintiff visited him in November, 1975, she complained of cervical, dorsal and lumbar spine pain radiating into the shoulders and sometimes arms, aggravated by lifting of arms over the head; intermittent sharp shooting leg pain; and headaches. He diagnosed residual cervical, dorsal, lumbar spine sprain. He defined sprain as a tearing of supporting tissues around joints caused by movement of the joint beyond normal range. Plaintiff was suffering from trapezius muscle spasm, which he described as a vicious cycle whereby the muscle contracts to limit motion in response to pain, which, self-defeating, causes more pain and more spasm and pain. Her range of motion in the neck and back were normal, but there was pain at the extreme of range of motion. She had a gentle scoliosis in the dorsal-lumbar area, caused by muscles pulling harder on one side than the other, bowing the spine. Dr. Badgley testified that, when plaintiff returned in October, 1977, she complained that she hurt most of the time in the cervical area, and had intermittent pain in the lumbosacral region. He once again found muscle spasm over the trapezius. He found plaintiff had developed a loss of sensation in the right shoulder and arm, extending to the ring and long fingers, showing compression of the nerve roots in the neck. The scoliosis had become worse. He testified that it would not be possible to fake loss of sensation, muscle spasm, or scoliosis. Characteristic of an injury of this type is an inability to look up or raise one’s arms over the head without pain. Thus, a person with this type of injury can’t bowl, wash windows, paint walls, horseback ride, jog, go snowmobiling, or play tennis. If they try to do such things, they must "pay the fiddler” with pain. Persons with this injury become depressed, weepy, cranky, unpredictable, and have temper tantrums. These personality changes are caused by muscle spasm compressing the vertebral artery as it goes into the skull, constricting blood flow. Those who are married have an alarming divorce rate. Dr. Badgley opined that, as plaintiff had been getting worse, she would continue to get worse. Assuming there were no similar symptoms before the accident, he opined that the accident caused the current symptoms. Finally, he was certain that she was not faking the injury.
The trial court delivered an opinion from the bench, apparently finding liability but no serious impairment of body function. The trial court appears to have discounted the significance of the complications in plaintiff’s arm and lower back, observing that they were of recent nature. The trial court found that the depression was not proximately caused by the injury. The trial court observed that plaintiff had suffered a limitation in physical activities, but also observed that the manipulations by the chiropractor may have worsened plaintiff’s condition. The trial court found no serious impairment of body function because plain tiff was not disabled from employment, and because her pain could not be too great if she was willing to enter a demolition derby, could pitch softball, and could dance on tables.
Assuming the trial court found later complications insignificant, we disagree with the conclusion, Medical testimony was unequivocal that the inability to raise the arm above shoulder level without great pain is a natural condition of this type of injury, and that the recent loss of sensation is the result of compressed nerve roots arising out of the injury, and extends into the hand. Additionally, there is a clear inference that the lower back pain is caused by the injury. Merely because the more recent complications are removed from the injury by time does not mean they were not caused by the injury, where they are a result of a natural progression of the ailment. Certainly, loss of use and sensation in an arm is a serious complication worthy of consideration.
We do not agree that the depression was not proximately caused by the accident. Prior to the accident plaintiff was happy-go-lucky. After the accident she has suffered pain and intermittent depression. Dr. Badgley testified that depression is associated with this type of injury, and caused by constriction of the vertebral artery blood flow due to spasm. Plaintiff suffers from spasm, caused by pain from the sprain, which in turn was caused by the accident. We can see no basis for any inference but that the depression was proximately caused by the accident.
That the manipulations by the chiropractor may have been viewed by plaintiffs medical doctors as counterproductive is of no significance. Plaintiff obtained temporary relief from the manipulations. There is no evidence of negligence on her part in selecting chiropractic care for her injury. Reed v Detroit, 108 Mich 224; 65 NW 967 (1896). When she was advised by Dr. Badgley to discontinue chiropractic treatment because of incompatibility with his treatment, she did so, at least until no longer able to stand the pain which had not been abated by Dr. Badgley’s treatment.
We accept the trial court’s conclusion that plaintiff was not disabled from employment, though with reservation. Plaintiff testified that she was able to do secretarial or sales work. However, she had worked only three or four months in the last three years; her father testified that she returned to live with him because she could not hold a job, and she would not be able to do heavy work; Dr. Badgley agreed plaintiff could not do heavy work; and, if plaintiff’s arm is useless at times, it would seem she would be hard put to type at those times.
We believe the trial court attached too much significance to plaintiff’s willingness to enter a demolition derby, play softball, and dance on table tops. Evidence indicates plaintiff has to "pay the fiddler” for her activity. It is clear that plaintiff was once very active, but is no longer so. That she is not willing to completely curtail her former active lifestyle, and is willing to "pay the price” to have some fun, indicates courage, rather than that the injury was not serious.
A review of the entire evidence establishes that plaintiff suffered a spine sprain, with pain radiating into arms and legs. She has muscle spasms which, in a vicious cycle, are steadily increasing the pain. She has suffered loss of sensation, reduction of grip, and, intermittently, loss of use of the right arm. She has scoliosis. The pain associated with the injury is severe enough to cause her to take to bed intermittently, frequently seek out medical help, and to substantially reduce her phys ical and social activities. She suffers intermittent depression which makes her speak of suicide, caused by constriction of blood flow to the brain. We conclude that she suffered serious impairment of body function, and are left with a definite and firm conviction that a mistake has been committed.
Reversed and remanded for a new trial on the damage issue. Costs to plaintiff.
V. J. Brennan, J., concurred.
Evidence on the liability issue was very slim. The trial court found that "there’s no question of the — liability is not an issue here”. The court then proceeded to discuss the serious impairment of body function issue. If the trial court found no liability, the subsequent analysis would have been superfluous. We conclude the trial court found liability. As defendant did not cross-appeal, we do not reach the issue of whether liability was established. | [
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N. J. Kaufman, P.J.
On November 26, 1973, plaintiffs filed a complaint to enjoin the defendants from planning, acquiring, developing and operating a proposed park to be known as "North Branch Metropolitan Park” and to be located in Ray Township. On January 30, 1978, the circuit court dismissed plaintiffs’ complaint. Plaintiffs appeal by right from that dismissal.
The sole issue on appeal is whether or not the metropolitan district act, MCL 119.51 et seq.; MSA 5.2148(1) et seq., violates the Equal Protection Clause of the United States Constitution by entitling each constituent county to appoint one Huron-Clinton Metropolitan Authority Commissioner regardless of the size of its population. We conclude that it does not.
The Huron-Clinton Metropolitan Authority (hereinafter HCMA) was established in 1940 for the purpose of planning, acquiring, developing and maintaining parks in southeastern Michigan. MCL 119.51; MSA 5.2148(1). It is comprised of Wayne, Washtenaw, Livingston, Oakland, and Macomb Counties. Each of these counties joined the HCMA after a majority of its voters approved the proposal. See MCL 119.51; MSA 5.2148(1), MCL 119.60; MSA 5.2148(10), and MCL 119.61; MSA 5.2148(11).
The seven-member governing board consists of two commissioners appointed by the governor and one commissioner elected by each participating county’s board of supervisors. MCL 119.54; MSA 5.2148(4), and MCL 119.61; MSA 5.2148(11).
The powers of the HCMA are specifically delineated by the act. MCL 119.53; MSA 5.2148(3) authorizes the HCMA to plan, acquire, and operate parks and to fix and collect fees for the use of the parks. MCL 119.57; MSA 5.2148(7) permits the levy and collection of taxes. MCL 119.58; MSA 5.2148(8) provides for the issuance of self-liquidating revenue bonds. Finally, MCL 119.59; MSA 5.2148(9) authorizes the acquisition of property through purchase, gift, devise or condemnation.
Both parties agree that representation on the governing board is not apportioned on the basis of population. Our question, then, is one of law.
In Reynolds v Sims, 377 US 533; 84 S Ct 1362; 12 L Ed 2d 506 (1964), the United States Supreme Court concluded that the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on the basis of population. But in Brouwer v Kent County Clerk, 377 Mich 616; 141 NW2d 98 (1966), our Supreme Court split evenly on the issue of w hether or not the Reynolds rule also applied to units of local government.
The United States Supreme Court initially faced the local government question in the Michigan case of Sailors v Board of Education of the County of Kent, 387 US 105; 87 S Ct 1549; 18 L Ed 2d 650 (1967). The County Board of Education was chosen by delegates from the local boards, but each local board sent only one delegate regardless of the number of people it represented. The county board had the authority to appoint a county school supervisor, prepare an annual budget and levy taxes, distribute delinquent taxes, furnish various educational services to member districts, employ teachers for special educational programs, establish a school for children in juvenile homes, and transfer areas from one school district to another. MCL 340.298a; MSA 15.3298(1), MCL 340.461; MSA 15.3461.
After reviewing Reynolds, supra, the Court concluded, 387 US at 108-111:
"We find no constitutional reason why state or local officers of the nonlegislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means rather than by an election. Our cases have, in the main, dealt with elections for United States Senator or Congressman * * * or for state officers * * * or for state legislators. * * *
"* * * Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs.
"The Michigan system for selecting members of the county school board is basically appointive rather than elective. We need not decide at the present time whether a State may constitute a local legislative body through the appointive rather than the elective process. We reserve that question for other cases * * *. We do not have that question here, as' the County Board of Education performs essentially administrative functions; and while they are important, they are not legislative in the classical sense.
"Viable local governments may need many innovations, numerous combinations of old and new devices, great flexibility in municipal arrangements to meet changing urban conditions. We see nothing in the Constitution to prevent experimentation. At least as respects nonlegislative officers; a State can appoint local officials or elect them or combine the elective and appointive systems as was done here. If we assume arguendo that where a State provides for an election of a local official or agency — whether administrative, legislative, or judicial — the requirements of * * * Reynolds v Sims must be met, no question of that character is presented. For while there was an election here for the local school board, no constitutional complaint is raised respecting that election. Since the choice of members of the county school board did not involve an election and since none was required for these nonlegislative offices, the principle of 'one man, one vote’ has no relevancy.” (Footnotes and citations omitted.) (Emphasis added.)
The emphasis in Sailors was on the distinction between legislative and administrative bodies, but in Avery v Midland County, Texas, 390 US 474; 88 S Ct 1114; 20 L Ed 2d 45 (1968), the Court offered an alternative test. Avery involved the five-member general governing body of a Texas county, the Commissioners Court, one member of which was elected at large and four members of which were elected from single-member districts of substantially unequal propulation. The Commissioners Court had the power to establish a courthouse and jail, appoint numerous minor officials, fill vacancies in county offices, let contracts in the name of the county, build roads and bridges, administer the county’s public welfare services, perform numerous duties in regard to elections, set the county tax rate, issue bonds, adopt the county budget, serve as a board of equalization for tax assessments, build and run a hospital, an airport, and libraries, fix county school district boundaries, establish a regional public housing authority, and determine the districts for election of its own members.
After noting that the Commissioners Court was charged with legislative, executive, administrative, and judicial tasks, the Supreme Court refused to categorize the body as administrative or legislative. the Court concluded, 390 US at 480-481 and 485-486:
"When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. If voters residing in oversize districts are denied their constitutional right to participate in the election of state legislators, precisely the same kind of deprivation occurs when the members of a city council, school board, or county governing board are elected from districts of substantially unequal population. If the five senators representing a city in the state legislature may not be elected from districts ranging in size from 50,000 to 500,000, neither is it permissible to elect the members of the city council from those same districts. In either case, the votes of some residents have greater weight than those of others; in both cases the equal protection of the laws has been denied.
"This Court is aware of the immense pressures facing units of local government, and of the greatly varying problems with which they must deal. The Constitution does not require that a uniform straitjacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems. Last Term, for example, the Court upheld a procedure for choosing a school board that placed the selection with school boards of component districts even though the component boards had equal votes and served unequal populations. Sailors v Board of Education, 387 US 105 [87 S Ct 1549; 18 L Ed 2d 650] (1967). The Court rested on the administrative nature of the area school board’s functions and the essentially appointive form of the scheme employed. In Dusch v Davis, 387 US 112 [87 S Ct 1554; 18 L Ed 2d 656] (1967), the Court permitted Virginia Beach to choose its legislative body by a scheme that included at-large voting for candidates, some of whom had to be residents of particular districts, even though the residence districts varied widely in population.
"The Sailors and Dusch cases demonstrate that the Constitution and this Court are not roadblocks in the path of innovation, experiment, and development among units of local government. We will not bar what Professor Wood has called 'the emergence of a new ideology and structure of public bodies, equipped with new capacities and motivations * * *.’ R. Wood, 1400 Governments, at 175 (1961). Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general governmental powers over an entire geographic area not be apportioned among single-member districts of substantially unequal population. ” (Footnote omitted. Emphasis added.)
The Sailors administrative-legislative distinction was eventually discarded altogether in Hadley v Junior College District of Metropolitan Kansas City, 397 US 50; 90 S Ct 791; 25 L Ed 2d 45 (1970), which involved the popular election of the trustees of a junior college district. The Court concluded that the distinction was unmanageable because governmental activities "cannot be easily classified in the neat categories favored by civics texts”. 397 US at 55-56.
Hadley went on to state, 397 US at 56, 58:
<t* * * [A]s a general rule, whenever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election, and when members of an elected body are chosen from separate districts, each district must be established on a basis that will insure, as far as is practicable, that equal numbers of voters can vote for proportionally equal numbers of officials.
"* * * We have also held that where a State chooses to select members of an official body by appointment rather than election, and that choice does not itself offend the Constitution, the fact that each official does not 'represent’ the same number of people does not deny those people equal protection of the laws. Sailors v Board of Education, 387 US 105 [87 S Ct 1549; 18 L Ed 2d 650] (1967); cf. Fortson v Morris, 385 US 231 [87 S Ct 446; 17 L Ed 2d 330] (1966).”
In short, the one person-one vote doctrine applies to state and local government units which are composed of members elected by the voters. However, a state or local government may select some government officials by appointment. And where appointment is permissible, the one person-one vote doctrine does not apply. In determining whether or not a given government unit may be composed of appointees, the Supreme Court has abandoned the administrative-legislative test. Unfortunately, the Court has offered no alternative formulation of a rule by which we might deter mine which government officials may be selected by appointment and which may not. The most that can be said is that the more a local unit’s functions and powers parallel those of the board of education considered in Sailors, supra, the more likely it is that a state may constitutionally provide for appointment of government officials to that unit.
The selection process in the instant case is appointive rather than elective. Consequently, the dispositive issue is whether or not the powers and functions of the HCMA are sufficiently analogous to those exercised by the board of education in Sailors to render an appointive system constitutionál.
The powers of the HCMA and the board of education in Sailors have already been listed and we make the following observations: 1) Both entities are special purpose units, not general governmental units; 2) The general planning and management functions of the HCMA with respect to parks are similar to those of the county board of education with respect to schools; 3) The HCMA’s power to acquire the property of a county, city, village or township is subject to approval by a majority vote of the electors of such county, city, etc., MCL 119.53; 4) Both the HCMA and the county board of education were empowered to levy taxes, but the HCMA’s authority in this respect is expressly circumscribed, MCL 119.57; 5) While it appears that only the HCMA could issue bonds, its authority to do so is very limited, MCL 119.58; 6) While it appears that only the HCMA could condemn private property, the individual whose property is condemned is apparently entitled to a jury trial at which the HCMA must prove that it is necessary to make the contemplated improvement and that it is necessary to take the individual’s property for the improvement, and at which just compensation is fixed, MCL 119.59 and MCL 213.21 et seq.; MSA 8.11 et seq.
In sum, while the HCMA’s powers are somewhat more extensive than those of the county board of education, we conclude that the state may constitutionally provide for appointment of HCMA commissioners. Accordingly, the one person-one vote doctrine does not apply in this case.
Finally, we wish to point out that the voters of each member county voted to join the HCMA with full knowledge of the representation they would be afforded. And, while it does not appear that a county could unilaterally withdraw from the HCMA, a county could request the Legislature to amend the statute so as to increase its representation on the Board of Commissioners. See OAG, 1949-50, No. 1219, p 570 (May 31, 1950), and OAG, 1976, No. 4994, p 427 (April 23, 1976).
Affirmed.
"* * * No State shall * * * deny to any person within its jurisdiction the equal protection of the laws.” US Const, Am XIV, § 1.
The population of the five counties, based on the 1970 census as reported by the Elections Division of the Secretary of State, is as follows:
Wayne 2,666,751
Oakland 907,871
Macomb 625,309
Washtenaw 234,103
Livingston 58,967. | [
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] |
R. B. Burns, J.
Defendant was convicted by a jury of second-degree murder, MCL 750.317; MSA 28.549. He appeals and we affirm.
Evidence presented at trial indicates that defendant went to the home of his estranged wife and shot her with a rifle. The evidence included a tape-recorded confession given by defendant to the police. Defendant presented an insanity defense at trial.
Defendant argues that his confession was improperly admitted as evidence at trial. Prior to trial, a Walker hearing was held, at the conclusion of which the trial judge ruled that the confession was voluntarily made after a valid waiver of Miranda rights.
A Walker hearing is designed to determine the voluntariness of a defendant’s statement. Voluntariness is determined from the totality of the circumstances. When reviewing a trial court’s rul ing, an appellate court will examine the entire record and reach an independent determination of voluntariness. However, absent a definite and firm conviction that the trial court erred, the decision will be affirmed. People v Sparks, 82 Mich App 44; 266 NW2d 661 (1978). An examination of the record does not convince us that the trial court erred.
Two police officers testified that they did not think the defendant was intoxicated, that he stated he understood his rights and that he would talk to the officers. He appeared alert and responsive.
A psychiatrist testified for the defense and he concluded that the defendant was incapable of asserting his rights at the time he spoke to the police.
In arriving at his decision the trial judge set forth two statements of law concerning the admissibility of an intoxicated person’s confession. The first was taken from 69 ALR2d 361, § 1, p 362.
"[P]roof that the accused was intoxicated at the time he confessed his guilt of crime will not, without more, bar the reception of the confession in evidence. But if it is shown that the accused was intoxicated to the degree of mania, or of being unable to understand the meaning of his statements, then the confession is inadmissible.” (Footnotes omitted.)
The second formulation of the rule is found at 23 CJS, Criminal Law, § 838, p 299.
"It is a rule of general application that a confession otherwise voluntary, is not to be excluded because accused was intoxicated at the time of making it, provided he had sufficient mental capacity to know what he was saying, since intoxication at the time of making a confession does not deprive the confession of the required spontaneity to make it free and voluntary. A substantial impairment of the will and mind must be shown before intoxication will render a confession inadmissible, and the rule is stated by some authorities to be that intoxication, less than mania, does not exclude a confession made during its continuance, but should the intoxication of the confessor produce actual mania, or render him unconscious of what he is saying, the confession will be inadmissible as a result thereof.” (Footnotes omitted.)
Finally the trial judge stated, "I find that defendant had developed a tremendous capacity and tolerance for alcohol that permitted him, with only brief rest, to function effectively and understand and comprehend the Miranda warnings given to him and that he did in fact make a knowing, intelligent, understanding and voluntary waiver of his right to remain silent and of his right to counsel and that his subsequent statement was given freely, willingly, understandingly and voluntarily”.
When there is conflicting evidence and the determination of voluntariness depends on the witnesses at the hearing, deference will be given to the findings of the trial court. There was sufficient evidence to substantiate the finding of the trial judge.
Next, defendant claims that the police officers knew that defendant was represented by an attorney in a divorce case, and therefore, the police officers should not have talked to him without notifying his attorney. Defendant claims that such conduct by the officers rendered the confession inadmissible.
People v Moore, 51 Mich App 48; 214 NW2d 548 (1974), holds contrary to defendant’s position.
Defendant also claims the trial judge erred when he informed the jury that the trial judge had determined that defendant’s statement was voluntary.
The record does not substantiate defendant’s contention. The trial judge, in answer to defendant’s objections concerning questions to a police officer about the confession, informed the jury that the matter was admissible and that it was the jury’s responsibility to determine the weight to be given to the confession. No error.
No request having been made, the failure of the trial court to instruct as to the disposition of defendant if found not guilty by reason of insanity was not error. People v Cole, 382 Mich 695; 172 NW2d 354 (1969).
The trial judge did err when he instructed the jury "A person is legally sane, if, despite his mental illness, that person possesses substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law”.
Legal insanity is defined in MCL 768.21a(1); MSA 28.1044(1)(1):
"A person is legally insane if, as a result of mental illness as defined in section 400a of Act No. 258 of the Public Acts of 1974, being section 330.1400a of the Michigan Compiled Laws, or as a result of mental retardation as defined in section 500(g) of Act No. 258 of the Public Acts of 1974, being section 330.1500 of the Michigan Compiled Laws, that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”
The people and defendant both agree that mental retardation was not an issue and consequently references to it were left out of the instructions.
The court gave a correct definition of legal insanity and then gave the erroneous instruction for legal sanity.
There are two ways in which a person who is mentally ill may be legally insane: (1) he may lack the "substantial capacity * * * to appreciate the wrongfulness of his conduct”, or (2) he may lack the ability "to conform his conduct to the requirements of law”.
However, when a court chooses to define legal sanity, instead of legal insanity, then the mentally ill person must be shown to possess both "substantial capacity * * * to appreciate the wrongfulness of his conduct” and the ability "to conform his conduct to the requirements of law”. Therefore, the trial judge’s instruction as to legal sanity was erroneous.
This erroneous instruction does not require reversal. Defendant did not object to the instruction. Where no objection to erroneous instructions is made at trial, this Court will not reverse absent a showing of manifest injustice. People v Dixon, 84 Mich App 675; 270 NW2d 488 (1978). The evidence that defendant killed his wife was overwhelming. Also, before defendant could be found legally insane he had to have first been found mentally ill. MCL 768.21a(1); MSA 28.1044(1)(1). The trial court instructed the jury that if they found defendant was mentally ill, they could only return a verdict of guilty but mentally ill, not guilty by reason of insanity or not guilty. The trial court’s erroneous instruction on insanity could only come into play if defendant was mentally ill. Since the jury determined that defendant was not mentally ill, the error was harmless.
Defendant’s contention that the court erred by admitting testimony of a psychiatrist that defen dant "did not have a disease of the mind that incapacitated him to the extent that it would not permit him to make a decision between right and wrong” is refuted by People v Livingston, 57 Mich App 726; 226 NW2d 704 (1975).
The trial court’s instructions on insanity and voluntary intoxication were adequate and in addition no objections were made by defendant.
The jury determined that defendant was not legally insane nor mentally ill, therefore, he does not have standing to attack the constitutionality of MCL 768.21a; MSA 28.1044(1).
Lastly, defendant claims that he should have a Tucker hearing. The trial judge has already conducted a hearing and defendant has been resentenced by a different judge.
Affirmed.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).
United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972). | [
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] |
N. J. Kaufman, J.
Defendants appeal from a March 28, 1978, order of the Oakland County Circuit Court which allowed alteration of Old Orchard Trail in Orchard Lake Village, Oakland County. Defendants claim that the circuit judge misconstrued and misapplied MCL 247.41 et seq.; MSA 9.51 et seq. We disagree and affirm.
According to its title, the act under consideration exists "to prevent the abandonment, discontinuance or alteration of the course of any public highway which borders upon, or is adjacent to any lake.” It provides in relevant part as follows:
"No public highway which borders upon, or is adjacent to any lake, or the general course of any stream, or crosses any stream, nor any portion of such highway so bordering upon a lake or general course of any stream, shall be discontinued by the order or action of any official or officials of any township, city or incorporated village in this state, until an order authorizing the same shall have been made by the circuit court of the county in which such highway is situated in the manner as hereinafter provided.” MCL 247.41; MSA 9.51.
"Whenever the official or officials having jurisdiction over the highways of any township, village or city in this state shall desire to abandon, discontinue or alter the course s of any public highway mentioned in the preceding section, before any action shall be taken by the said public authority or authorities of any township, village or city, an application signed by not less than 7 freeholders of the township, village or city in which such highway is situated, shall be made to the circuit court for the county in which such highway is located, setting forth the particular circumstances of the case, an accurate description of the highway proposed to be abandoned, discontinued or altered, together with the reasons therefor, which application shall be verified by 1 or more of the persons so signing.” MCL 247.42; MSA 9.52.
"Upon the filing of such application it shall be the duty of the presiding circuit judge to make an order fixing a day of hearing thereon.” MCL 247.43; MSA 9.53.
"Upon the day of hearing of such application or any adjournment thereof, testimony shall be taken on the part of the petitioner and any person or persons interested in such application, and if it shall satisfactorily appear to the court that there is no reasonable objection thereto, and that it is necessary for the best interest and welfare of the public that such highway be abandoned, discontinued or altered as to its course, as prayed for in such application, or if it shall appear to the court that such highway or any part thereof should remain as then established, an order shall be made and entered in the record of the court in accordance with such determination.” MCL 247.44; MSA 9.54.
"The proceedings therein shall be subject to review by certiorari.” MCL 247.45; MSA 9.55.
"The term 'adjacent’ as used herein, shall be construed to include any highway, or portion thereof, lying within 5 rods of the shore of any lake or the general course of any stream.” MCL 247.46; MSA 9.56.
This case began when Abbey Homes of Michigan, which wishes to subdivide some property along the south edge of Orchard Lake, and other petitioners proposed to move the intersection of Old Orchard Trail with Pontiac Trail 410 feet southwesterly away from the border of Orchard Lake. See diagram in appendix.
Despite some strong local opposition to the plan, the city council of Orchard Lake Village eventually approved the petitioners’ proposal. Petitioners filed the statutorily required application in the circuit court on February 3, 1978. The court held hearings on March 6, 8, 10, 27, and 28, 1978, and stated:
"The Court finds as a matter of law and fact:
"* * * that the objections made to the altering of the highway relate to the loss of part of a historic route around Orchard Lake, and a loss of the public scenic view of the lake for six hundred sixty feet of highway adjacent to the lake.
"There is no question that any point where land meets a body of water is unique; and that the proposed alteration of Old Orchard Trail will eliminate the visual scenic beauty of the lake to the public.
"The issue presented to the Court is whether the proposed altered road is in the best interest and welfare of the public.
"The testimony indicates that the existing road is inadequate for the following reasons: Too narrow; inadequate shoulders; road design improper for current traffic patterns and vehicles; the radius of the curve of the road is less than the minimum road commission standards; there is a safety hazard in the reverse arcs of the curve; the banking of the curve fails to meet the road commission minimum standards; sight obstructions exist at the intersection of Pontiac Trail; and at the existing intersection the line sight is less than County road minimum standards; the trees partially block the driver’s view of the lake; and the home owners would have to cross the road to take advantage of their riparian rights.
"The testimony indicates that the proposed altered road would be an adequate and better road for the following reasons: Proper width and design for current and prospective traffic flow of vehicles; adequate shoulders; provides better radius and curve as required by the road commission standards; banking of the curve exceeds minimum standards; provides for scenic view of the lake with no obstructions while going north, directly to the lake; provides safer intersection with Pontiac Trail, with no sight obstructions, and better than minimum line sight; and pedestrian access to the lake requires no crossing of the road.
"The evidence further indicates that although the existing Old Orchard Trail could be improved, little can be done to improve the existing intersection with respect to the line sight requirements.
"Any improvements to the existing road would be at the City or public expense.
"The evidence further indicates that the proposed altered road requires no public expense, in that the new road would be constructed at builders’ expense; and the land would be donated by the owner to provide for adequate shoulders.
"The proofs show only four hundred feet of the highway bordering on the lake would be altered, and that there would remain over thirteen thousand feet of highway adjacent to the lake for continued public use.
"The Court finds that the scenic beauty of the existing road would on balance be exchanged for the aesthetic beauty for the proposed altered road.
"Therefore, the objections to the proposed altered road, although real, are not reasonable when all the circumstances are taken into consideration.
"For all the foregoing reasons, the Court finds that the proposed altered highway is in the best interest and welfare of the public.”
On May 3, 1978, the circuit court heard and denied numerous motions for a rehearing. Defen dants now appeal. We must determine if the circuit court made any errors of law or if the court’s findings of fact are clearly erroneous.
The parties raise numerous issues on appeal and we address their concerns in the following discussion of the act. Since each issue relates to the interpretation of a statute, we must remember "it is elementary that the rules of common sense apply to the construction of statutes.” Attorney General ex rel Connolly v Reading, 268 Mich 224, 230; 256 NW 432 (1934).
Defendant Casey claims that the circuit court was unduly influenced by a mistaken belief that its role was to review the determination of local officials rather than to conduct a de novo hearing.
Defendant’s interpretation of the statute is correct. The circuit court proceedings required by the act constitute an original action in that court. While the appropriate local officials must first desire to alter the course of a road protected by the act before the court petition and hearing procedures become necessary, see MCL 247.42; MSA 9.52, the court’s role is to make an independent determination of the matter based on the guidelines of MCL 247.44; MSA 9.54. The court is not reviewing the actions of local officials.
In the instant case, over a month after her decision, the judge mistakenly referred to her role as one of reviewing the decision of the City of Orchard Lake. However, since the judge strictly adhered to the guidelines of the act and made an independent determination of the issue, her error does not require reversal. An improper label does not alter the product.
Defendant Casey also argues that the judge could not consider evidence regarding those portions of Old Orchard Trail which lie farther than 5 rods from the lake in determining whether or not to approve the alteration. Defendant is particularly concerned with the court’s interest in the line sight deficiencies of the existing intersection of Old Orchard Trail and Pontiac Trail, which intersection is farther than 5 rods from the lake.
Circuit court approval is required before alterations can be made in the course of any city, village or township road which lies within 5 rods of a lake shore. MCL 247.41; MSA 9.51 and MCL 247.46; MSA 9.56. But in determining whether or not to approve a proposed alteration governed by the act, the court is nowhere limited by the act to consideration of evidence regarding only that portion of road within 5 rods of a lake. With apologies to John Donne: No stretch of road is an island, entire of itself. Where the portion of road under consideration draws its characteristics from the terrain, the traffic and the rest of its length, a court would be remiss in not considering those factors, regardless of their distance from the lake. Indeed, as a general rule, a court should consider all relevant evidence in making its decision. See generally MRE 401, 402 and 403.
In deciding to approve the alteration of Old Orchard Trail, the circuit judge considered evidence regarding the road and terrain within the immediate area of the proposed alteration, but farther than 5 rods from the lake. However, since this evidence relates directly to the advisability of the alteration, the judge did not err in receiving and considering it.
Both defendants contend the circuit court erred in its interpretation of MCL 247.44; MSA 9.54 by focusing on the best interest and welfare of the public and comparing the existing road with the proposed road to decide that there was no reasonable objection to the alteration. Defendants claim the language of the statute, which prevents circuit court approval of a proposed alteration unless "it shall satisfactorily appear to the court that there is no reasonable objection thereto, and that it is necessary for the best interest and welfare of the public”, required the court to determine first that there was no single, isolated nonfrivolous objection to the alteration before considering the best interest and welfare of the public and before comparing the relative benefits and detriments of the proposed alteration. Defendants further argue that since the alteration would eliminate the scenic beauty of the existing route, there was the requisite reasonable objection to the alteration and the circuit court should have denied approval to the alteration.
On its face, defendants’ argument has the appeal of simplicity. But taken to its logical conclusion, the argument reduces the statute to a useless enactment. Presumably, every road within 5 rods of a lake has some scenic, historic or public access value. If an isolated objection based on one of these grounds is a reasonable objection under the act, as defendants suggest, it would be virtually impossible to alter any road near a lake, even though the alteration might be in the best interest and welfare of the public. We do not believe the Legislature intended this result, and we do not require circuit court judges to wear evidentiary blinders in determining whether or not the statutory "reasonable objection” exists.
The term "reasonable objection”, as used in the act, is a term of art. It requires circuit judges to consider all the circumstances of the case to determine if there is a reasonable objection. The phrase "all the circumstances of the case” includes, but is not limited to, a comparison of the scenic, historic and public access values of the existing road and the proposed alternative; consideration of the safety features of the existing road and the proposed alternative; recognition of any relevant cost factors; and an evaluation of the best interest and welfare of the public.
If there are no reasonable objections, a circuit court must still determine that the alteration is necessary for the best interest and welfare of the public before approving the change. Where the petitioners do not show that the alteration is necessary for the best interest and welfare of the public, it is entirely possible that a court could deny an alteration, even though there are no reasonable objections to the alteration.
On the other hand, if there are reasonable objections to the alteration, we find it difficult to imagine a situation in which the proposed alternative still would be necessary for the best interest and welfare of the public.
In the present case, the circuit judge determined there were no reasonable objections after considering all the circumstances of the case. Thereafter, the judge concluded that the proposed alteration was in the best interest and welfare of the public. The judge’s approach was proper.
Finally, defendants claim that the circuit court’s conclusions that there were no reasonable objections to the alteration and that the alteration was necessary for the best interest and welfare of the public were not supported by the evidence. Defendants’ major objection to the alteration was the loss of a scenic drive along the shore of the lake. Defendants also claimed that the safety hazards of the existing route were overstated and could be corrected.
As previously indicated, we must determine if the circuit judge’s findings were clearly erroneous. GCR 1963, 517.1. A finding is clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Tuttle v Dept of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976).
The circuit judge patiently heard a great deal of testimony from 17 witnesses. On March 6, 1978, five witnesses testified in favor of the alteration. An Abbey Homes realtor, the city attorney and the city chief of police all discussed the dangerous nature of the existing route and recommended the change. However, the chief of police admitted that the safety hazards of the existing route were minor compared to other city traffic problems. The realtor also stated that the proposed route offered a better view of the lake and its island than the present route, which is bordered by thick foliage.
Thereafter, six witnesses testified against the alteration. Four witnesses, including Messrs. Wilcox and Casey, stated that the safety factor was being exaggerated. But Mr. Wilcox did say the existing road should be improved. Additionally, four witnesses, including Messrs. Wilcox and Casey, testified to the scenic value of the existing road and their desire to retain the present route.
On May 24, 1978, six more witnesses presented statements in favor of the proposed alteration. All six stated that the change was necessary to make Old Orchard Trail a safer road. One witness testified that the view from the proposed route would be no less beautiful than that from the present route. Three witnesses, including two civil engineers, claimed that the proposed route would enhance the public’s view of the lake.
After hearing and evaluating this testimony, as well as photographs and drawings of the area, the judge approved the alteration. Our careful review of the record does not leave us with a definite and firm conviction that a mistake was committed.
It is apparent that the witnesses who testified against the alteration had genuine and legitimate concerns regarding the loss of a scenic drive. But, under all the circumstances of the case, their scenic loss objection was not a reasonable objection as that term is used in the act and applied by the trial judge in her findings of fact. The evidence preponderates in favor of the conclusion that the scenic view on Old Orchard Trail will be enhanced by the change. Additionally, the recommended alteration will improve the overall safety of the Old Orchard Trail-Pontiac Trail area. Therefore, the judge’s determinations that there were no reasonable objections to the alteration and that the change was necessary for the best interest and welfare of the public were not clearly erroneous.
Affirmed. No costs, the interpretation of a statute being involved.
While the review provision of the act provides for review by certiorari, see MCL 247.45; MSA 9.55, the act was passed in 1927. Since then we have been given jurisdiction on appeals from all final judgments of the circuit courts, MCL 600.308(1); MSA 27A.308(1). The Michigan Supreme Court, through its rule making power, see Const 1963, art 6, § 10, MCL 600.223(2)(a); MSA 27A.223(2)(a), has replaced the writs of certiorari with limited complaints for superintending control, GCR 1963, 711, and has provided for civil appeals by right to this Court from all final judgments of the circuit courts, GCR 1963, 806.1. Since superintending control is not necessary in this case, and this appeal properly comes to us by right, see GCR 1963, 711.2 and 806.1, we apply the usual standards of review.
"* * * No man is an Hand, intire of it selfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any mans death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; It tolls for thee.” John Donne, Meditation XVII, in Devotions Upon Emergent Occasions (1624).
We are not unmindful of the oft-amended and now repealed plat acts and their use of language similar in some respects to that in MCL 247.44; MSA 9.54. See 1915 CL 3355, and MCL 560.62; MSA 26.492. Nor have we ignored Story & Clark Piano Co v Ottawa Circuit Judge, 212 Mich 1; 179 NW 254 (1920), In re Spears, 227 Mich 525; 198 NW 952 (1924); or Yonker v Oceana Cty Road Comm, 17 Mich App 436; 169 NW2d 669 (1969), which interpreted the plat acts. But we have specifically avoided drawing an analogy between MCL 247.44; MSA 9.54 and the relevant plat act statutes because the language of the provisions and the stated purposes of the acts are significantly different. Additionally, we have not relied on the above-mentioned cases because, in each instance, public officials objected to the plat change. Here, public officials support the alteration. | [
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] |
D. E. Holbrook, Jr., J.
On June 30, 1976, defendant was convicted by a jury of carrying a firearm with unlawful intent, MCL 750.226; MSA 28.423, and carrying a concealed weapon, MCL 750.227; MSA 28.424. Given concurrent sentences of 2-1/2 to 5 years in prison, he appeals as of right.
A deputy sheriff testified that he was in the Pickle Barrel Bar with two other deputies. While at the bar, he observed defendant enter the premises with two other individuals. At that time he saw the outline of a handgun in defendant’s right-hand pants pocket. When defendant and the two other individuals left the building, the three deputies followed. The three deputies caught defendant once, but he got away. Upon catching him the second time, one deputy testified that defendant put his right hand in his right pants pocket. Once this occurred, all three deputies immediately grabbed defendant’s right arm and removed the weapon. Testimony was elicited that when defendant’s hand was forcibly removed from his right-hand pocket the gun was not in it. A patrolman testified that defendant had his hand in his right front pocket and that, 'T could see the outline of a gun and he had his hand on the grip”.
Following conclusion of the people’s case, defendant rested without presenting any proof, making motions for directed verdicts on both counts. Defendant contends that the motions for directed verdict were improperly denied. A directed verdict may only be granted where there is no evidence, either direct or circumstantial, on each material element of the offense. People v Maliskey, 77 Mich App 444, 448; 258 NW2d 512 (1977), People v Hodo, 51 Mich App 628, 639; 215 NW2d 733 (1974). A review of the record indicates that there was some evidence introduced on each material element of both offenses. Defendant correctly argues that there were possible innocent theories concerning why his hand was in his pocket at the time of his arrest, however the prosecution is not required to negate every possible innocent theory in order to avoid a directed verdict of acquittal. People v Edgar, 75 Mich App 467; 255 NW2d 648 (1977).
Defendant’s primary contention, however, is that a conviction for both offenses violates double jeopardy. The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections. It protects against the second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). It is the protection against multiple punishments for the same offense that is at issue in this case. In Brown v Ohio, 432 US 161, 166; 97 S Ct 2221; 53 L Ed 2d 187 (1977), the United States Supreme Court reiterated the test applicable to multiple punishments:
"The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v United States, 284 US 299, 304; 76 L Ed 306; 52 S Ct 180 (1932): 'The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether they are two offenses or only one, is whether each provision requires proof of a fact which the other does not * * V This test emphasizes the elements of the two crimes. 'If each requires proof of the fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes * * *’ Iannelli v United States, 420 US 770, 785, n 17; 483 L Ed 2d 616; 95 S Ct 1284 (1975).”
The elements of carrying a firearm with unlawful intent, MCL 750.226; MSA 28.423, are that the defendant be armed with a firearm, that at the time he was so armed he intended to use the firearm, and that he intended to use the firearm unlawfully against the person of another. CJI 11:2:01. The elements of carrying a. concealed weapon, MCL 750.227; MSA 28.424, as far as this case is concerned, are that the defendant merely carried a pistol and that the pistol was concealed on or about his person. CJI 11:1:01. Each charge has the common element that defendant carried a pistol, but the carrying the concealed weapon charge requires proof that the pistol was concealed on or about the person of the defendant, and the going armed with the firearm with unlawful intent requires proof that the defendant intended to use the pistol unlawfully against the person of another. Since each requires proof of a fact the other does not, the Blockburger test is satisfied, and punishment for both offenses would not violate double jeopardy.
Defendant argues that the evidence which proved him guilty of carrying a firearm with unlawful intent necessarily proved him guilty of carrying a concealed weapon. This argument is based upon the Michigan Supreme Court’s holding in People v Ora Jones, 395 Mich 379, 387-389; 236 NW2d 461 (1975), which held that lesser included offenses in Michigan include both necessarily included lesser offenses and those lesser offenses that are related and hence cognate. The Court stated:
"The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law & Procedure, § 1799. This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate’ or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence 'cognate’ in the sense that they share several elements, and are of the same class or category, but may contain some elements not found in a higher offense.
"The failure to advert to the nature of the 'cognate’ lesser included offense has caused confusion. The fact that a lesser offense, within the same category as the greater charged offense, has an element not included within the greater does not preclude the lesser from being included within the greater.” (Footnote omitted, emphasis in original.)
It is arguable Brown v Ohio, supra, held that a lesser included offense and a greater offense are the same under Blockburger. It is also arguable that the expansive definition of lesser included offenses found in Ora Jones, precludes conviction for cognate lesser included offenses, as well as for necessarily lesser included offenses, after a conviction of the greater offense. But see People v Risher, 78 Mich App 431; 260 NW2d 121 (1977), Wayne County Prosecutor v Recorder’s Court Judge, 85 Mich App 727; 272 NW2d 587 (1978). Defendant cites People v Martin, 398 Mich 303; 247 NW2d 303 (1976), and People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), as supporting his argument that a cognate lesser included offense is treated identically with a necessarily lesser included offense in Michigan. Defendant’s reliance is inappropriate, since neither case relies upon the Ora Jones definition of cognate lesser included offenses, but rather, held, on the facts of each case, that the possessions for which the defendants were convicted constituted necessarily included offenses.
The greatest difficulty with defendant’s position is that no case can be found holding that carrying a concealed weapon is a lesser offense to carrying a weapon with unlawful intent, or that carrying a weapon with unlawful intent is a lesser offense of carrying a concealed weapon. Significantly, both offenses are felonies punishable by imprisonment in the state prison for not more than five years, or by a fine of not more than $2,500. The mere fact that two offenses have one similar element, in this case possession of the pistol, does not make one the lesser offense of the other. Clearly these two statutes were enacted in an attempt to remedy two separate problems. People v Johnnie W Jones, 12 Mich App 293, 295-296; 162 NW2d 847 (1968), indicates:
" 'The purpose of all concealment statutes is clear. At the time they were enacted, the open carrying of weapons upon the person, was not prohibited. The purpose of the concealed weapons statutes was to prevent men in sudden quarrel or in the commission of crime from drawing concealed weapons and using them without prior notice to the victims that they were armed. The person assailed or attacked would behave one way if he knew his assailant was armed and perhaps another way if he could safely presume he was unarmed.’ People v Raso, (1958) 9 Misc 2d 739 (170 NYS 245, 251).”
The statute prohibiting the carrying of a firearm with unlawful intent is an attempt to civilize our society. Const 1963, art 1, § 6, clearly states that every person has a right to keep and bear arms for the defense of himself and the state. This constitutional provision clearly indicates that it is permissible for individuals to carry weapons. In an attempt to discourage the open carrying of weapons, it was made a felony to go about armed with the intent to use the same unlawfully against the person of another. Since the statutory purposes of both charged offenses are different, they are not cognate offenses. See People v Ora Jones, supra, at 389.
In view of the foregoing we hold that carrying a firearm with unlawful intent, MCL 750.226; MSA 28.423, and carrying a concealed weapon, MCL 750.227; MSA 28.424, are not lesser offenses of each other. Each requires proof of a fact that the other does not, and conviction of both offenses does not violate double jeopardy.
Affirmed.
D. F. Walsh, P.J., concurs in result. | [
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] |
M. B. Breighner, J.
Defendant insurance company appeals from the circuit court’s refusal to modify or set aside an appraisal award made pursuant to the statutorily mandated appraisal procedure in plaintiff’s fire insurance policy. MCL 500.2832; MSA 24.12832.
Defendant was the insurer of a shopping center in Ludington, Michigan, owned by plaintiff. On February 3, 1976, a storm seriously damaged a store in the shopping center. Plaintiff filed a claim of loss with defendant under its insurance policy, but the parties failed to agree on the valuation of the damage. Pursuant to the statutorily required appraisal provision of plaintiffs policy, MCL 500.2832(1); MSA 24.12832(1), the parties each selected an appraiser. Upon petition, the circuit court appointed Ronald K. Johnson to serve as umpire on July 27, 1976. The appraisers and umpire subsequently determined that the amount of loss to the building was $69,107.40. Defendant does not dispute this part of the appraisal award and has paid it in full.
However, the amount of compensable rental loss sustained by plaintiff remained unsettled. Although the parties stipulated that the fair rental value of the premises was $8,748 per month, the appraisers and umpire could not agree on the length of the indemnity period.
The dispute focused upon the following provisions of plaintiffs insurance policy:
"2. The Company shall be liable for:
"a. the actual loss sustained by the insured resulting directly from necessary untenantability, but not exceeding the reduction in rents less charges and expenses which do not necessarily continue during the period of untenantability for only such length of time as would be required with the exercise of due diligence and dispatch to rebuild, repair or replace such part of the property herein described as has been damaged or destroyed commencing with the date of such damage or destruction and not limited by the date of expiration of this policy.
"6. Additional Exclusions and Limitations:
"a. the Company shall not be liable for any increased loss which may be occasioned by:
"(3) the suspension, lapse or cancellation of any lease, contract or order unless such suspension, lapse or cancellation results directly from the untenantability of the premises and then the Company shall be liable for only such loss as affects the rents of the premises during and limited to the period of indemnity under this policy.”
Immediately prior to the damage incurred, plaintiff had been negotiating with the S. S. Kresge Company for the lease of the store. On January 27, 1976, one week before the damage occurred, Kresge had sent plaintiff a letter announcing its intent to lease subject to concluding a satisfactory lease agreement based on certain stated terms and conditions. Among the terms listed in the letter was a provision that rent payments would not commence until "90 days from consummation of lease or from date of delivery of premises to Kresge, whichever occurs later”. Plaintiff had approved the terms.
At a final meeting of the appraisers and umpire held on March 22, 1977, the umpire concluded that the period required to make building repairs was six months and that plaintiff should be awarded $52,488 for consequent rental loss. Because neither appraiser concurred, the meeting ended without agreement. But in June, 1977, plaintiff’s appraiser signed the umpire’s proposed award.
On July 27, 1977, plaintiff filed for summary judgment on the appraisal award, alleging that no issue of material fact remained. Defendant moved to modify or set aside the appraisal award based on an alleged error of law by the umpire. Defendant contended that the umpire had erroneously interpreted the policy provisions regarding coverage of rental loss and had allowed plaintiff to recover for a three-month period when it could not have collected rent regardless of damage to the store. Plaintiff argued in response that, given the standard of review for such statutory appraisal awards, defendant had shown no adequate reason for the circuit court to interfere with or overturn the award.
The trial court first ruled that defendant had failed to prove that the appraisal award incorporated any mistake of law. The record only showed agreement between the umpire and plaintiff’s appraiser as to the amount of rental loss sustained, and not as to the legal theory supporting the award. Second, even if defendant could attack the award on the basis of only one signer’s mistake, the court found no evidence that the umpire had acted fraudulently or in bad faith, or that he had committed a patent mistake of law. The trial court concluded that defendant was bound by the compromise decision of two out of the three members of the appraisal panel. We affirm.
MCL 500.2832(1); MSA 24.12832(1), which includes the statutorily required appraisal procedure incorporated into plaintiffs policy, provides in pertinent part as follows:
"In case the insured and this Company shall fail to agree as to the actual cash value or the amount of loss, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire; and failing for fifteen days to agree upon such umpire, then, on request of the insured or this Company, such umpire shall be selected by a judge of a court of record in the state in which the property covered is located. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this Company shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him and the expenses of appraisal and umpire shall be paid by the parties equally.”
The total amount of loss as contained in the appraisal award is payable 60 days after the award is filed with the insurer. The policy provides that neither party may seek court review of a claim until the appraisal process has been invoked and completed:
"No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within twelve months next after inception of the loss.”
See, also, Thermo-Plastics R & D, Inc v General Accident Fire & Life Assurance Corp, Ltd, 42 Mich App 418; 202 NW2d 703 (1972), Innis v Fireman’s Fund Ins Co, 218 Mich 253; 187 NW 268 (1922).
Although appraisal is generally distinguished from arbitration, the terminology used is not necessarily conclusive of the nature of the process. The Michigan Supreme Court has held that a submission to appraisal under MCL 500.2832; MSA 24.12832 constitutes a common law arbitration agreement. Manausa v Saint Paul Fire & Marine Ins Co, 356 Mich 629, 633; 97 NW2d 708 (1959), Davis v National American Ins Co, 78 Mich App 225, 232; 259 NW2d 433 (1977). It is a well-settled arbitration principle that the scope of the agreement between the parties dictates the isues to be addressed by the arbitrators. Likewise, the arbitration award must not exceed the authority granted the arbitrators, who derive their power solely from the parties’ agreement. Carr v Kalamazoo Vegetable Parchment Co, 354 Mich 327; 92 NW2d 295 (1958), Smith v Highland Park Board of Education, 83 Mich App 541; 269 NW2d 216 (1978).
The statutory appraisal agreement here at issue limits the scope of the appraisal proceedings to a determination of the amount of actual cash value and loss suffered by the policyholder. Plaintiff and defendant further specifically agreed, pursuant to plaintiff’s policy, to submit the question of plaintiff’s rental loss to the appraisers and umpire. The appraisal panel was thus authorized to determine "the amount of actual case value and loss” of rentals.
The standard of review for common law arbitration agreements in general, and for the instant statutory appraisal process in particular, is limited. E E Tripp Excavating Contractor, Inc v Jackson County, 60 Mich App 221; 230 NW2d 556 (1975), Davis, supra. Bad faith, fraud and misfeasance affecting the integrity and impartiality of the proceedings are always grounds for attacking an appraisal award. Davis, supra. Defendant has not, however, alleged any such dereliction by the appraisers or umpire.
Defendant instead contends that this Court should set aside the appraisal award because of the umpire’s manifest error of law in awarding plaintiff rental loss for a period during which, by the terms of the policy, defendant could not be held liable for such loss. Defendant also alleges that plaintiff’s appraiser joined in the manifest error by signing the umpire’s appraisal award.
We first note that, by merely signing the umpire’s monetary award, plaintiff’s appraiser did not necessarily adopt the umpire’s underlying ratio nale. It is equally probable that he compromised his own conclusions in order to resolve the dispute. Cf., Davis, supra, at 237-238.
As for the umpire’s appraisal, the record does not indicate that he made any manifest legal error or that we have any basis for overturning the award. Defendant’s whole argument rests on the premise that plaintiff had previously contractually bound itself not to collect rent from Kresge for three months of the period required to repair the damaged building. Thus, defendant argues, rental loss was not attributable to damage for which defendant could be liable. This is simply not true. While plaintiff had expressed preliminary agreement to such a term, no lease had been signed at the time the store was damaged. Suspension of plaintiffs rental income due to circumstances other than damage covered under the policy was merely a factual possibility for the umpire and appraisers to consider, not an established fact mandating a firm legal conclusion as to plaintiffs coverage under the policy.
The statutory appraisal procedure has been called "a substitute for judicial determination of a dispute concerning the amount of loss”, and "a simple and inexpensive method for the prompt adjustment and settlement of claims”. ThermoPlastics, supra, at 422, Davis, supra, at 231. If it is to fulfill these functions, umpires and appraisers must be allowed to freely weigh speculative considerations affecting determinations of loss. Compare Port Huron & Northwestern R Co v Michael Callanas 61 Mich 22, 26; 34 NW 678 (1887). We decline to interfere with a resolution particularly within the intended scope of the umpire’s and appraisers’ powers.
Affirmed. Costs to plaintiff.
In an affidavit filed with the trial court, plaintiff’s appraiser alleged that he had claimed nine months as an appropriate indemnity period and had submitted an award for $67,500. He further alleged that defendant’s appraiser had contended no rental loss was due plaintiff.
The appraisal award signed by plaintiff’s appraiser only stated the total amount of rental loss and not the length of the indemnity period.
See Noble v Grandin, 125 Mich 383, 390; 84 NW 465 (1900), Campbell v Michigan Mutual Hail Ins Co, 240 Mich 167; 215 NW 401 (1927), E E Tripp Excavating Contractor, Inc v Jackson County, 60 Mich App 221, 246; 230 NW2d 556 (1975).
Defendant would have us adopt the reasoning in Jefferson Ins Co of New York v Superior Court of Alameda County, 3 Cal 3d 398; 90 Cal Rptr 608; 475 P2d 880 (1970), in which the California court held that appraisers generally have more limited powers than arbitrators. We decline since Michigan precedent directs us to look to the scope of the appraisal agreement between the parties under MCL 500.2832; MSA 24.12832.
Defendant argues on appeal that, in resolving the dispute between the parties as to compensable rental loss under the policy, the umpire and appraisers only had the power to decide the amount of rental loss per month and the number of months required to make the building tenantable. It was then the trial court’s responsibility to apply those factual findings to the terms and provisions of the policy. Contrary to defendant’s contention, the statutory appraisal provision states that the appraisers and umpire shall assess separately actual cash value and loss to each item. Since rental loss was an item submitted, the appraisal panel in this case was authorized to determine the rental loss as a whole.
In his affidavit to the trial court, plaintiffs appraiser stated, "The decision on loss and damage was the result of a compromised decision and did not represent the adoption of any one point of view, theory of law, or agreement on the facts.”
At the circuit court hearing on defendant’s motion to set aside the appraisal award, the umpire testified in part as follows:
"I would like to back up so far as to inform the Court of what I considered concerning the K-Mart lease. There was a letter dated January 27th to the plaintiff from Kresge Company detailing a consent or an agreement of lease. It isn’t a formal lease. This is a business letter. We relied quite heavily on this letter to establish the dollar value, because it apparently is an arms length transaction. And, one of the terms that’s spelled out in here, it details that ninety days after the consummation of the lease or the date of delivery of the premises, the rent would start. It doesn’t specifically refer to May 8th, or anything. It just says ninety days after possession. And, as I considered this, having, and I am sure we will speak to this, having determined a six-month indemnity period, it was my feeling that one way to consider this thing, anyway, was that after the six-month indemnity period, possession would again then be delivered and there would be another three months before any rent would come due. Or, another way of considering the whole matter was that this is merely the best evidence we have of the rental value, since this is a twenty-year lease and we have no idea why the parties determined that no rent would be due in the first three months, and I felt it would conversely be appropriate to just ignore that as some sort of baiting or concession that had been made for one reason or another that didn’t seem to have anything to do with the rental value of the premises.
"In looking at the policy and my main concern was that it was actually nine months until rental monies would start flowing into this after this loss. The term of the three-month delay from possession until commencement of rent, I felt it was delayed six months and this six months’ delay, or read it nine-month delay, is also a direct result of the collapse. And, I believe the matters, as I read the policy, were covered. There is a provision in the policy for, well, perhaps I could find it, that would, as I interpreted it, would cover this additional three months on the other end. If we are to say that this is the word, this Kresge letter saying that there is no rent due for this first three months, and that is to be considered in this matter, then it must be considered at the other end and the three months tagged on the end, as a consequent loss. Or, it could just as easily be considered that this Kresge letter had nothing at all to do with it and was merely evidence of the rental value, whereupon it doesn’t matter.”
Most of the parties’ argument on appeal concerned the scope of appraisers’ and umpires’ powers to decide legal questions of liability and coverage under the terms of insurance policies. Because we conclude that the facts of the instant case do not squarely raise this issue, we do not address it. See Schreiber v Pacific Coast Fire Ins Co, 195 Md 639; 75 A2d 108; 20 ALR2d 951 (1950). But see, contra, Atlas Construction Co, Inc v Indiana Ins Co, Inc, 160 Ind App 33; 309 NE2d 810 (1974), Jefferson Ins Co of New York v Superior Court of Alameda County, 3 Cal 3d 398; 90 Cal Rptr 608; 475 P2d 880 (1970). | [
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Per Curiam.
Defendant was convicted by a jury of unarmed robbery, contrary to MCL 750.530; MSA 28.798. After sentence, he appeals as of right, raising two issues, only one of which merits discussion.
Defendant offered as an alibi that he and four friends were watching a football game on television at the time of the alleged crime. At trial, on cross-examination, the prosecutor asked three of the alibi witnesses and defendant which teams had played in the game.
Out of the presence of the jury, the prosecutor announced that he intended to introduce the Detroit News T.V. Guide in evidence to rebut the testimony offered by the alibi witnesses. He asked the trial judge to take judicial notice of its authenticity. The court ruled, over defendant’s objection, that the T.V. Guide could be admitted into evidence to show what was scheduled to be aired on the day in question, but it was not admissible as evidence of what actually appeared on television that day.
When the jury reentered the courtroom, the prosecutor had his witness identify the proposed exhibit. After several attempts to lay a foundation for admission of the T.V. Guide into evidence, the prosecutor abandoned his attempt to introduce it for the reason that his witness lacked the information necessary to lay the foundation.
During deliberations, the jury asked the trial judge to permit them to see the T.V. Guide. In the presence of the jury, the court said that they could not examine the T.V. Guide. The judge stated: "The reason for that is that it’s not an exhibit. It’s not in evidence.”
Defendant contends that the court made an erroneous ruling when it determined that the T.V. Guide was not admissible as probative of what actually appeared on television, but was admissible for the purpose of showing what was scheduled to be shown. Although the evidence was not formally admitted, defendant argues that had the court ruled differently, the jury would not have been exposed to the physical presence of and the discussion concerning the T.V. Guide, and defendant’s case would not have been prejudiced.
Where a newspaper is admissible, extrinsic evidence of its authenticity is not required. Generally, however, newspapers are hearsay evidence of the facts stated within them and are not admissi ble in evidence to prove such facts. A T.V. Guide is an out-of-court statement of what was scheduled. If it was being offered by the prosecutor to prove the truth of the matter asserted, i.e., as evidence of what was actually aired so as to rebut defendant’s alibi, it would be hearsay. The T.V. Guide defied cross-examination concerning its reliability. The prosecutor could have brought in a witness from the television station to testify or introduced records kept by the station in the regular course of business.
The trial judge ruled that the T.V. Guide was not admissible to prove what was actually aired, but only for what was scheduled. We find what was scheduled to be aired to be irrelevant in this case. MRE 401 states:
" 'Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Showing what was scheduled would in no way dispute defendant’s alibi; the relevant evidence would be proof that the football game which defendant and the alibi witnesses claimed they were watching at the time of the alleged crime, was not aired at that time. However, the T.V. Guide would be inadmissible for that purpose, as it is merely hearsay evidence of the facts stated and incompetent to prove what was actually shown on the date in question.
We must then consider if the erroneous ruling by the judge is grounds for reversal. In determining whether the error was harmless, we take into consideration that although the T.V. Guide was never formally admitted into evidence, the jury was exposed to it and could well have inferred from the prosecutor’s line of questioning the purpose for which it was being introduced. We also consider that when the jury asked to see the T.V. Guide during their deliberations, the judge instructed them that the T.V.uide was not in evidence and could not be viewed by them.
Under MRE 201(c), a court may take judicial notice whether or not requested to do so. MRE 201(c) allows judicial notice to be taken at any stage of the proceeding. At the very least, the rule implies that appellate courts can review the propriety of the judicial notice taken by the court below and can even take judicial notice on their own initiative of facts not noticed below. A judicially noticed fact must be one "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”.
We find it capable of accurate demonstration by resorting to easily accessible sources of unquestioned accuracy whether a football game was played between Washington and Dallas, or between any other professional football teams, on the afternoon of December 24, 1976, and have done so.
Consequently, even if we find that the jury’s exposure to the T.V. Guide was prejudicial, we do not find it necessary to return the, case for a new trial. We take judicial notice that, in fact, no football game between Washington and Dallas, or between any other professional football teams, was televised on the date in question, namely, Decem ber 24, 1976. Therefore, any harmful inferences made by the jury upon seeing the T.V. Guide would not be erased by a new trial in which the prosecution could offer testimony of an official programmer from the station which would appear to raise serious questions regarding the credibility of the alibi witnesses.
We, therefore, find that, under the circumstances of the case, the outcome of the trial would not likely be changed upon retrial; therefore, the error is found to be harmless.
Affirmed.
MRE 902(6).
32 CJS, Evidence, § 726, p 1031.
McCormick, Evidence (2d ed), § 333, pp 771, 773. See, Comment, 42 Mich L Rev 509 (1943).
MRE 201(b)(2). | [
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Taylor, J.
We granted leave to appeal to consider defendants Camp Niobe’s and Joanne Mandell’s claim that the trial court had erred in denying their motion to change venue from Wayne County to Lapeer County. Because we conclude that venue in Wayne County was proper, we affirm the judgment of the trial court.
I. FACTS AND PROCEEDINGS BELOW
Plaintiff’s decedent, nine-year-old Jeremy Massey, was a foster child in Detroit. On June 28, 1998, Jeremy participated in an outing sponsored by the Children’s Center of Detroit at Camp Niobe in Lapeer County. Tragically Jeremy drowned while in the swimming area at the camp. Maureen Massey filed a lawsuit in Wayne County as personal representative of Jeremy’s estate. The lawsuit named as defendants the Children’s Center and one of its employees, Lisa Dilg, and Camp Niobe and some of its employees, including Mandell.
The camp and Mandell filed a motion for change of venue, arguing that venue in Wayne County was improper and that, pursuant to MCL 600.1629(l)(a); MSA 27A.1629(l)(a) venue in Lapeer County was proper because the camp was located and conducts business in Lapeer County and the drowning took place in Lapeer County. Plaintiff opposed the motion, arguing that the criteria under súbd (l)(a) and (b) of the statute did not apply, but that venue in Wayne County was proper pursuant to subd (l)(c) because plaintiff resided there and the Children’s Center did business there.
The trial court denied the motion to change venue on the basis that both the plaintiff and the Children’s Center were in Wayne County. Camp Niobe and Man-dell filed an application for leave to appeal, a motion for immediate consideration, and a request for a stay with the Court of Appeals. The Court of Appeals granted immediate consideration and denied the application and stay “for lack of merit in the grounds presented.” The camp and Mandell then filed a motion for immediate consideration, an application for leave to appeal, and a motion for stay with this Court. This Court granted immediate consideration and granted a stay and leave to appeal.
H. STANDARD OF REVIEW
This Court reviews a trial court’s ruling in response to a motion to change improper venue under the clearly erroneous standard. Shock Bros, Inc v Morbark Industries, Inc, 411 Mich 696, 698-699; 311 NW2d 722 (1981). Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake has been made. People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993).
m. PRINCIPLES OF STATUTORY CONSTRUCTION
In examining a statute, it is our obligation to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979). One fundamental principle of statutory construction is that “a clear and unambiguous statute leaves no room for judicial construction or interpretation.” Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993). Thus, when the Legislature has unambiguously conveyed its intent in a statute, the statute speaks for itself and there is no need for judicial construction; the proper role of a court is to apply the terms of the statute to the circumstances in a particular case. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). Concomitantly, it is our task to give the words used by the Legislature their common, ordinary meaning. MCL 8.3a; MSA 2.212(1).
IV. THE STATUTE
MCL 600.1629; MSA 27A.1629 in full provides:
(1) Subject to subsection (2) in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, all of the following apply:
(a) The county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action:
(i) The defendant resides, -has a place of business, or conducts business in that county.
(ii) The corporate registered office of a defendant is located in that county.
(b) If a county does not satisfy the criteria under subdivision (a), the county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action:
(i) The plaintiff resides, has a place of business, or conducts business in that county.
(ii) The corporate registered office of a plaintiff is located in that county.
(c) If a county does not satisfy the criteria under subdivision (a) or (b), a county in which both of the following apply is a county in which to file and try the action:
(1) The plaintiff resides, has a place of business, or conducts business in that county, or has its corporate registered office located in that county.
(ii) The defendant resides, has a place of business, or conducts business in that county, or has its corporate registered office located in that county.
(d) If a county does not satisfy the criteria under subdivision (a), (b), or (c), a county that satisfies the criteria under section 1621 or 1627 is a county in which to file and try an action.
(2) Any party may file a motion to change venue based on hardship or inconvenience.
(3) For the purpose of this section only, in a product liability action, a defendant is considered to conduct business in a county in which the defendant’s product is sold at retail. [Emphasis added.]
V. ANALYSIS
The parties agree that the original injury for purposes of construing § 1629 was the drowning and that the drowning occurred in Lapeer County. The camp and Mandell argue that they satisfy subd (l)(a) of § 1629 because the original injury occurred in Lapeer County and they reside, have a place of business, or conduct business in Lapeer County. The plaintiff argues however that when subd (l)(a) is carefully analyzed the argument for mandatory venue in Lapeer County fails.
Subd (l)(a) provides that, using the place of original injury (Lapeer County) as the referent, the inquiry is then if either of the following apply:
(i) The defendant resides, has a place of business, or conducts business in that county.
(ii) The corporate registered office of a defendant is located in that county. [Emphasis added.]
Accordingly, subd (l)(a)(i) requires that “[t]he defendant” reside, have a place of business, or conduct business in the county. Here, we have a case with four defendants. The camp and Mandell would satisfy subd (l)(a)(i) if either were the only defendant. Moreover, the Children’s Center and Lisa Dilg would not satisfy subd (l)(a)(i) even if they were the only defendant. These circumstances are fatal to the camp’s and Mandell’s reliance on subd (l)(a)(i).
Having determined that subd (l)(a)(i) does not apply, we next must determine if subd (l)(a)(ii) required venue be established in Lapeer County. Under this subdivision, venue would be required to be in the county where the original injury occurred if a defendant is a corporation and its registered corporate office is in the same county. “A,” as the above makes clear, should be understood to cover a case with more than one defendant and one of them is a corporation. In the case at bar none of the defendants has asserted that it is a corporation or that it has its corporate registered office in Lapeer County. Accordingly, subd (l)(a)(ii) is also inapplicable.
The statute next instructs that, if a county does not satisfy the criteria in subd (l)(a), one must look to subd (l)(b). Under subd (l)(b), Lapeer County would be the proper venue if “[t]he plaintiff” resided there, or had a place of business there or conducted business there or if “a plaintiff” had a registered corporate office there. None of these criteria are satisfied.
The statute next instructs that if a county does not satisfy subd (l)(a) or (l)(b) that one must look to subd (l)(c). Under subd (l)(c), the county in which the original injury occurred is no longer a consideration. Rather, if there is a county wherein “[t]he plaintiff” resides, or has a place of business, conducts business or has its registered office, and at the same time “[t]he defendant” resides or has a place of business or conducts business or has its registered corporate office, then such a county is a county in which to try an action. Plaintiff argues that Wayne County comes within subd (l)(c). We cannot agree. There is no question that plaintiff resides in Wayne County. However, subd (l)(c)(ii) also requires that “[t]he defendant” reside, have a place of business, conduct business, or have its registered office in Wayne County before Wayne County would be “a county in which to file and try the action . . . MCL 600.1629(l)(c); MSA 27A.1629(l)(c). As before, “the” does not mean “a” and thus the requirements of subd (l)(cXii) are not satisfied merely because one or more of the defendants reside or have a place of business or conduct business in Wayne County.
The statute next instructs that if a county does not satisfy subd (l)(a), (l)(b), or (l)(c) one must look to subd (l)(d), which provides:
If a county does not satisfy the criteria under subdivision (a), (b), or (c), a county that satisfies the criteria under section 1621 or 1627 is a county in which to file and try an ' action.
Thus, we are instructed to consult MCL 600.1621; MSA 27A.1621, which provides:
Except for actions provided for in sections 1605, 1611, 1615, and 1629, venue is determined as follows:
(a) The county in which a defendant resides, has a place of business, or conducts business, or in which the registered office of a defendant corporation is located, is a proper county in which to commence and try an action.
Sections 1605, 1611, 1615 do not apply here. This means we must look to § 1629, which by its terms refers us to § 1621 or § 1627.
Applying § 1621 leads to the conclusion that Wayne County was a proper county in which plaintiff was free to file her lawsuit because at least one defendant (The Children’s Center) has a place of business and conducts business in Wayne County. Alternatively, applying § 1627 (which, with several exceptions, provides that venue shall be in a county where all or a part of the cause of action arose) also supports a Wayne County venue because plaintiff asserts that part of her cause of action arose in Wayne County.
VI. CONCLUSION
In summary then, because MCL 600.1629; MSA 27A.1629 referred us to MCL 600.1621; MSA 27A.1621 or MCL 600.1627; MSA 27A.1627 and Wayne County satisfies the venue criteria of §§ 1621 and 1627, venue in Wayne County was proper. Thus, the trial court properly denied the camp’s and Mandell’s motion.
Weaver, C.J., and Young and Markman, JJ., concurred with Taylor, J.
MCL 600.1629; MSA 27A.1629 states:
(1) [I]n an action based on tort . . . seeking damages for . . . wrongful death, all of the following apply:
(a) The county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action:
(i) The defendant resides, has a place of business, or conducts business in that county.
(ii) The corporate registered office of a defendant is located in that county. [Emphasis added.]
MCL 600.1629; MSA 27A.1629 states:
(1) [I]n an action based on tort . . . seeking damages for . . . wrongful death, all of the following apply:
(c) If a county does not satisfy the criteria under subdivision (a) or (b), a county in which both of the following apply is a county in which to file and try the action:
(i) The plaintiff resides, has a place of business, or conducts business in that county, or has its corporate registered office located in that county.
(ii) The defendant resides, has a place of business, or conducts business in that county, or has its corporate registered office located in that county. [Emphasis added.]
Unpublished order, entered August 16, 1999 (Docket No. 219751). Judge Gage dissented indicating she would have granted a stay and leave to appeal.
461 Mich 905 (1999).
The use of the word “the” has a meaning that is different than the word “a.” Subd (l)(a)(i) does not say “a defendant” resides, has a place of business, or conducts business in the county. Nor does it say “one of the defendants.” Rather, it says “the defendant.” Thus, in order for the camp’s and Mandell’s position to prevail, we would have to read “the” as if it said “a.” This we decline to do. “The” and “a” have different meanings. “The” is defined as “definite article. 1. (used, esp. before a noun, with a specifying or particularizing effect, as opposed to the indefinite or generalizing force of the indefinite article a or an). . . .” Random House Webster’s College Dictionary, p 1382. Moreover, when, as in subd (l)(a), the Legislature has qualified the same word with the definite article “the” in one instance (subd [l][a][i]) and the indefinite article “a” in another instance (subd [l][a][ii]), and both are within the same subsection of a statute, even more clearly there can be no legitimate claim that this Court should read “the” as if it were “a”
Plaintiff has apparently been unable to serve process on two of the six defendants named in the caption.
Further demonstration that the Legislature itself is familiar with the difference between using “the defendant” and “a defendant” in a venue statute can be seen by the fact that MCL 600.1621(a); MSA 27A.1621(a) says that, in certain circumstances, venue is proper in the county “in which a defendant resides . . . .’’In contrast with such language, MCL 600.1629(l)(a)(i); MSA 27A.1629(1)(a)(i) provides that venue is proper in the county in which “[t]he defendant resides . . . .”
MCL 600.1605; MSA 27A.1605 establishes venue for certain real property lawsuits.
MCL 600.1611; MSA 27A.1611 establishes venue for actions involving probate bonds.
MCL 600.1615; MSA 27A.1615 establishes venue for actions against governmental units. | [
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] |
D. C. Riley, P.J.
On June 6, 1977, defendant James Watroba was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. After reviewing defendant’s prior history and record, the trial judge imposed a sentence of 6 to 15 years imprisonment.
Thereafter, defendant filed a motion in this Court to remand for a hearing to determine whether the trial judge had impermissibly taken into consideration, in aggravation of sentence, prior convictions alleged to have been unconstitutionally obtained. In an order dated April 7, 1978, we granted defendant’s motion to remand for a Tucker hearing pursuant to United States v Tucker, 404 US 443; 92 S Ct 589; 30 L Ed 2d 592 (1972), and People v Moore, 391 Mich 426; 216 NW2d 770 (1974). During the course of that hearing on the motion for resentencing, transcripts of defendant’s plea-based convictions of July 25, 1969, and July 20, 1970, were received into evidence. Defendant contended below that said convictions were constitutionally infirm in that he had not been advised that by pleading guilty he was giving up the right to confront witnesses against him. At the conclusion of the hearing the trial judge entered an order denying the motion to resentence, stating in part:
"[T]his Court relied upon the aforesaid convictions but even if this Court had not relied upon the aforesaid convictions the Court would have given the defendant the same sentence(Emphasis supplied.)
Defendant appeals as of right pursuant to GCR 1963, 806.1, and alleges that, despite the court’s emphatic declaration above, resentencing is the necessary remedy whenever allegedly defective prior convictions are, in any sense, considered by the sentencing court.
In disposing of defendant’s claim, we must briefly consider the breadth of the holdings in United States v Tucker, and People v Moore, supra.
In Tucker, the lower court’s original imposition of sentence incorporated an explicit notation of defendant’s three previous felony convictions, two of which were deficient due to lack of representation by counsel under Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799; 93 ALR2d 733 (1963). The case was remanded back to the trial court for reconsideration of defendant’s punishment. Tucker was subsequently followed in Michigan by People v Moore, supra.
Tucker and Moore spoke only in terms of prior convictions invalid under Gideon. In the case at bar, however, defendant was represented by counsel at all times. Thus, the issue presented is whether the relief afforded by Tucker and Moore should be extended beyond convictions obtained in violation of Gideon, supra, to include those which are constitutionally defective by reason of the trial court’s failure, at a plea proceeding, to advise the defendant that his plea of guilty constitutes a waiver of his right to confront adverse witnesses. Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). We answer in the affirmative. The rights protected by Boykin and Jaworski are of similar importance to the guilt-determination process as the right to counsel; consequently, we are of the opinion that a conviction obtained in violation of these decisions and the rights protected thereunder, by analogy, should not be considered as a factor in sentencing.
In so holding we must, nevertheless, reject defendant’s assertion that resentencing (modification of the original punishment) is the required remedy whenever allegedly invalid convictions are, in any sense, considered. In order to initiate a Tucker proceeding, a defendant must present prima facie proof that the prior conviction was constitutionally infirm, People v Moore, supra, at 440-441, and that it was considered by the trial judge in sentencing, United States v Tucker, supra. However, reliance upon a faulty conviction does not necessarily mandate a different sentence. A careful reading of Tucker reveals that the concern in that case was not whether the prior convictions had been considered (for the record had already indicated they were), but whether the sentence imposed might have been different if the sentencing judge had known that the previous convictions had been unconstitutionally obtained. The Tucker case was remanded for reconsideration of defendant’s sentence.
A Tucker hearing, then, determines whether the punishment might have been different absent consideration of infirm convictions. See People v Moore, supra, at 439. That determination was made in the case at bar.
We are not unmindful of the language in People v Moore, supra, at 439, that,
"[w]hile a harmless error rule might also be applied to a Tucker claim, from a practical point of view, * * * in most cases a judge can more readily resentence a convicted person than determine whether whatever consideration was given an invalid conviction at sentencing was harmless.”
and we agree that this remains the better procedure to follow in cases such as these. However, we read that excerpt as requiring, not necessarily an altered sentence, but rather a full re-evaluation of the record and circumstances in conjunction with defendant’s claim of improperly considered convictions, which proceeding could just as easily produce the same sentence as it could a different one.
In the present case, this procedure was not strictly followed; however, we believe the thrust and concern of the Tucker decision was satisfied. In so holding, we note the traditionally expansive discretion afforded trial judges in sentencing matters. See, e.g., People v Almond, 67 Mich App 713, 719; 242 NW2d 498 (1976), People v Shively, 45 Mich App 658, 665; 206 NW2d 808 (1973). A prior conviction is merely one factor which the court, in its judgment, may consider in determining punishment.
In the case at bar, the court, both at sentencing and the Tucker hearing, was aware of defendant’s apparent drug habit, former probation violations, and three previous convictions, two of which were claimed to be infirm. The totality of circumstances considered does not render the court’s statement that "it would have given the defendant the same sentence” an extraordinary one. As factfinder, it was his province to consider all the factors and elements which culminated in the original sentence imposed, determine what emphasis was to be given each, and to resolve whether that sentence should be altered.
In addition, a further remand, given that there is no likelihood that a different sentence might be imposed, would result in a useless procedure.
Affirmed.
MacKenzie, J., concurred.
We reject the people’s assertion that the collateral attack doctrine precludes the defendant from raising at the trial court level the alleged constitutional infirmity of the prior convictions. See People v Moore, 391 Mich 426, 441-442; 216 NW2d 770 (1974):
"We have considered the collateral attack doctrine set forth in People v Gavin, 50 Mich App 743; 213 NW2d 758 (1973), urged upon us by the prosecutor, but are unpersuaded. A defendant will not be required 'first [to] establish in separate post-conviction actions that the underlying convictions are invalid’. Clearly, a Michigan trial court is competent to resolve the factual issues regarding the constitutional validity of a defendant’s previous Michigan convictions.” (Footnotes omitted.)
The Moore rationale is equally applicable in the case at bar. See also People v Jones, 83 Mich App 559, 568; 269 NW2d 224 (1978). | [
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Per Curiam.
The plaintiff alleged under several theories that the defendant was liable for the fact that her daughter had been sexually victimized. A jury made findings, some of which were favorable to the plaintiff. However, on the basis of the jury’s other findings, the circuit court entered judgment for the defendant. The Court of Appeals reversed, and remanded for a new trial. We reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.
i
Directions Unlimited, Inc., operates a drop-in center in Hancock. Directions Unlimited is wholly owned by its members, and membership is “limited to persons who are 18 years of age or older and who have experienced, and are working at recovery from an emotional or mental health problem[], including alcohol or drug addiction.” Directions Unlimited is run by a board of directors selected from among the members, and is served by an executive director and sundry part-time employees, who also were members.
Among the members were James Koivu, Gerald Flagle, and Heather Bean. Each was an adult whose background included the requisite mental or emo tional problems, or chemical addiction. Further, each had been a member before being hired as an employee, and each remained a member after the events that gave rise to this suit. Throughout the events giving rise to this suit, Ms. Bean was a legal adult without conservator or guardian.
Mr. Koivu was executive director. In that capacity he hired Mr. Flagle and Ms. Bean to work as part-time employees. At the time of hire, Mr. Koivu did not investigate Mr. Flagle’s background. Mr. Flagle’s job did not include any supervision of Ms. Bean.
After hiring Mr. Flagle, Mr. Koivu learned that his past included a conviction for criminal sexual conduct involving a woman of limited mental abilities. Mr. Koivu spoke to the woman and to her fiancé, and confronted Mr. Flagle, who told Mr. Koivu that he was receiving counseling. Mr. Koivu had known Mr. Flagle for several years, and this conversation satisfied him that further action was not required.
Mr. Flagle possessed a key to the drop-in center. About two years after learning of Mr. Flagle’s prior conviction, Mr. Koivu discovered Ms. Bean and him in the center together at a time when it was not open. He told them that this was improper. When he again found Mr. Flagle at the center during hours when it was not open, he fired Mr. Flagle.
Mr. Koivu later heard from another member, who suspected that Mr. Flagle had been having sexual relations with Ms. Bean. Mr. Koivu asked Mr. Flagle, who was still a member and was still attending the center. He denied such improper behavior. However, when Mr. Koivu asked Ms. Bean, she admitted that she had been sexually active with Mr. Flagle. That day, Mr. Koivu drove to the home of Ms. Bean’s parents, to tell them what he had been told.
n
Ms. Bean’s mother was appointed guardian, and filed the present suit against Directions Unlimited. In her complaint, she alleged negligent hiring and supervision of Mr. Flagle. She also alleged that Mr. Flagle had committed assault, battery, and criminal sexual conduct for which Directions Unlimited was responsible under the principle of respondeat superior. In an amended complaint, the plaintiff added an allegation of sexual harassment.
After the circuit court denied the defendant’s motion for summary disposition, the case was tried to a jury. At the conclusion of the proceedings, the jury returned this verdict:
1. Was Defendant, Directions Unlimited, Inc., negligent in its luring and supervision of Gerald Flagle as claimed by Plaintiff? Yes
If your answer is “no” do not answer Question No 2 and proceed to Question No 3. If your answer is “yes” proceed to Question No 2.
2. Was the negligent hiring and supervision of Gerald Flagle a proximate cause of Plaintiffs damages? No
3. Was the conduct between Gerald Flagle and Heather Bean sexual harassment as defined by the Jury Instructions? Yes
4. Did the Defendant’s employee, Gerald Flagle wilfully and intentionally touch Heather Bean either without her consent or while she was mentally incapacitated or mentally incapable of giving consent? Yes
5. If your answer to Question No 4 was yes, was the touching accomplished by Defendant’s employee, Gerald Flagle, through the exercise of authority given to the employee by the Defendant? No
6. Did Plaintiff, Heather Bean, sustain injury or damage?
No
If your answer is “no” do not answer any further questions. If your answer is “yes” proceed to Question No 7.
7. What is the total amount of Plaintiff, Heather Bean’s damages? $0
On the basis of that verdict, the circuit court entered a judgment in favor of Directions Unlimited. Later, the court denied the plaintiffs motion for new trial or, alternatively, for additur.
Over the dissent of Judge Saad, the Court of Appeals reversed and remanded for a new trial, which apparently is to be limited to the allegations concerning negligence. The majority said that proximate cause was the element in dispute and that “[t]he overwhelming weight of the evidence suggests that it was Flagle’s status as an employee, and his possession of keys to the facility, that created the opportunity for him to engage in sexual activity with Heather.”
With regard to the allegations of assault, battery, and CSC, the majority upheld the jury’s finding that Mr. Flagle’s sexual touching of Ms. Bean was not accomplished through the exercise of authority given to Mr. Flagle by Directions Unlimited:
Under the doctrine of respondeat superior, defendant would not be liable for torts intentionally committed by Flagle if they were beyond the scope of his master’s business. [Bradley v Stevens, 329 Mich 556, 562; 46 NW2d 382 (1951).] Although Flagle’s sexual acts with Heather occurred on defendant’s premises, the incidents occurred before operating hours. Defendant created no necessity for Flagle to be in the building before hours, and derived no benefit from his presence. Flagle’s presence at the drop-in center was never condoned and was finally the reason for his discharge. Based on the evidence, the jury’s finding that Flagle’s touching of Heather was not accomplished through the exercise of authority given to Flagle by defendant was not against the great weight of the evidence, and the trial court did not abuse its discretion in denying plaintiff’s motion for a new trial on this ground.
Judge Saad filed a brief dissent, in which he simply stated:
For the reasons stated by the majority in sustaining the trial court’s decision not to grant a new trial on the claim regarding “Flagle’s touching of Heather,” I respectfully dissent from its decision to remand this matter for a new trial.
Directions Unlimited has applied to this Court for leave to appeal.
in
We agree with Judge Saad. While Mr. Flagle and Ms. Bean were fellow employees, they also were fellow members and owners of defendant Directions Unlimited. Viewing the proofs in the light most favorable to the defendant (in whose favor the circuit court entered judgment), the misconduct on the part of Mr. Flagle did not come through any exercise of authority over Ms. Bean. Similarly, the evidence in this case would have allowed the jury to conclude that Mr. Flagle’s actions with Ms. Bean were not the product of the employment relationship.
Though the parties do not approach the case in this manner, we are reminded of the principles stated in Granger v Fruehauf Corp, 429 Mich 1; 412 NW2d 199 (1987), and Lagalo v Allied Corp, 457 Mich 278; 577 NW2d 462 (1998). A jury’s verdict is to be upheld, even if it is arguably inconsistent, “[i]f there is an inteipretation of the evidence that provides a logical explanation for the findings of the jury.” 429 Mich 7. In deciding whether to grant a new trial, a circuit court must “make every effort to reconcile the seemingly inconsistent verdicts.” 457 Mich 282. Further, such an effort “requires a careful look, beyond the legal principles underlying the plaintiffs causes of action, at how those principles were argued and applied in the context of this specific case.” 457 Mich 284-285.
In the present case, the jury found that Directions Unlimited had been negligent in hiring and supervising Mr. Flagle, but that the negligent hiring and supervision was not a proximate cause of the harm suffered by Ms. Bean. The latter finding can be explained in light of the multiple roles of these persons who, simultaneously and interchangeably, were members, owners, employees, and patrons of the Directions Unlimited drop-in center. The contrary conclusion reached by the Court of Appeals also reflects plausible inferences from the testimony. However, in reviewing a circuit court’s decision to deny a motion for new trial, the reviewing court must not substitute its own view of the evidence.
The jury further found that Mr. Flagle had engaged in sexual harassment, and that he touched Ms. Bean either without her consent or while her mental abilities precluded a meaningful consent. The jury went on to find that Mr. Flagle’s misconduct was not accomplished through an exercise of authority given him by Directions Unlimited and that Ms. Bean did not suffer injury or damage. However, the jury’s finding that the misconduct did not occur pursuant to authority granted by Directions Unlimited has ample evidentiary support, and thus, like the Court of Appeals, we need not reach the question of damages.
This is an unusual case involving an unusual organization that is owned and directed by persons with mental, emotional, or chemical difficulties. Employees are selected from among the members, and thus each is assumed to be a person with past difficulties and the potential for future problems. In an interesting application of the organization’s philosophy, it made little or no effort to investigate the background of members/owners who were beginning an employment role.
To sort out the reasonableness, wisdom, and consequences of such relationships and behavior, as well as causal connections and extent of harm, the judicial system summoned a jury of local residents. This case represents a nearly perfect example of what juries are for. In such an instance, the findings of a properly instructed jury must be upheld if those findings can be reconciled to the evidence. Here, the jury’s findings do have support in the record, and the Court of Appeals erred by substituting its own view of the proofs.
To warrant our review, defendant was required to show that the Court of Appeals decision was clearly erroneous and will result in material injustice. MCR 7.302(B)(5). The question before us is whether the Court of Appeals erred in concluding that the trial court abused its discretion. While the dissent concludes that the record supports the grant of a new trial, this does not answer the underlying question whether the Court of Appeals erred. Rather, it merely leads to the conclusion that, if the trial court had granted a new trial, this too, would have been within the trial court’s discretion. The Court of Appeals was permitted to reverse the denial of plaintiff’s motion for a new trial only if that denial was “ ‘so palpably and grossly violative of fact and logic that it evidence [d] not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’ ” Marrs v Bd of Medicine, 422 Mich 688, 694; 375 NW2d 321 (1985), quoting Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959).
The Court of Appeals majority essentially injected itself into the role of trier of fact, thus imposing liability on defendant contrary to a verdict rendered by a jury of local residents. Because we find support for the trial court’s decision in the record, the Court of Appeals clearly erred in finding that the trial court had abused its discretion.
We are likewise convinced that material injustice will result from requiring defendant, a nonprofit organization wholly owned by individuals attempting to recover from emotional or mental health problems, to relitigate this case when a jury has already reached a decision supported by the record, particularly where overturning the jury verdict was a usurpation of power.
Accordingly, we reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. MCR 7.302(F)(1).
Taylor, Corrigan, Young, and Markman, JJ., concurred.
Weaver, C.J., concurred in the result only.
Mr. Koivu was a recovering alcoholic, who had an unspecified mental health problem, and a prior felony conviction. At his deposition, Mr. Koivu explained that he had experienced depression, and that the conviction was for felonious assault (“I was crazy drunk and went after a man who was selling drugs to my children”). Mr. Flagle did not testify at trial and his mental condition was not known to Mr. Koivu. However, Mr. Koivu offered the lay opinion that Mr. Flagle “had some problems with insecurity,” “was paranoid at times,” and sometimes was verbally intimidating to other members. Ms. Bean is developmentally disabled, with an I.Q. of 61, as measured on the Wechsler Adult Intelligence Scale.
Mr. Koivu’s testimony at trial was generally consistent with, and would have allowed the jury to infer the same content as one finds in, this somewhat more elaborated explanation given at the time of his deposition:
Q. The Drop-In Center, would it be a fair characterization to say that the—the premise upon what [sic] this Center is created for was forgiveness for past indiscretions.
A. Oh, yeah.
* * *
Q. Did Copper Country [Mental Health Department] require you, under any sort of provisions, to provide for record checks of any of the members of Directions Unlimited?
A. Definitely not.
Q. And did Directions Unlimited have any sort of a rule requiring that?
A. Checking—-What are you asking?
Q. Checking the past criminal history?
A. No.
Q. Or . . .
A. No.
Q. Or researching at all into past indiscretions by members?
A. No.
Q. Would that have been contrary to the—the tenets on which this organization was founded?
A. It certainly would be.
At trial, Ms. Bean testified that she was sexually penetrated on ten occasions. However, her testimony also included passages that were less clear. Here is an example:
Q. Now Heather, we’re interested in knowing whether or not you recall ever having intercourse, sexual intercourse between yourself and Mr. Flagle. Do you remember ever having sexual intercourse?
A. Do I ever remember?
Q. Yes.
A. The only place I can think of, I remember the drop-in center.
Q. And you’re certain you had sexual intercourse with him?
A. That’s the only place I think I can remember, yeah.
Q. And you know what that means?
A. Little bit.
Q. What do you think it means?
A. Just bug—guys bugging, asking for sex.
Q. Do you know what it means other than that?
A. No, I don’t.
Mr. Koivu testified that he contacted Ms. Bean’s parents because he had been told they were her legal guardians. He further testified that, had he known that there was no guardianship at that time, he would not have contacted them.
Mr. Flagle apparently had left the state, and the plaintiff did not name him as a defendant.
At trial, the circuit court also denied the defendant’s motion for directed verdict.
Unpublished opinion per curiam, issued November 20, 1998, reh den January 22, 1999 (Docket No. 205482).
As indicated in the text, the Court of Appeals denied a new trial with regard to the allegations that were premised on the doctrine of respondeat superior. The Court of Appeals did not directly address the jury’s finding with regard to sexual harassment, but we infer from the Court’s opinion that there is to be no retrial on that aspect of the case, either. The parties do not appeal the sexual harassment claim. Accordingly, we confine our analysis to the direct negligence claim.
As noted, Mr. Flagle apparently left the state, and is not a defendant in this suit. Thus, the plaintiff must prove that Directions Unlimited is liable in order to gain a judgment.
The plaintiff is especially dismayed by the finding of no injury or damage.
Here is a portion of Mr. Koivu’s testimony on direct examination by plaintiff’s counsel:
Q. . . . How long have you been the executive director at the drop-in center?
A. Since shortly after it opened in 1987.
Q. And what qualifications do you have to hold that position?
A. Well I grew up in a dysfunctional home, I have suffered mental illness, I . . .
Q. I’m sorry?
A. I said I grew up in a dysfunctional home, dysfunctional abusive home, I suffered mental illness and brain damage when I was a child, and I’m a recovering alcoholic and drug addict, and a convicted felon.
Q. And that’s qualification for being executive director?
A. Well I was picked from among a group of mental health consumers by a group of mental health consumers when the drop-in center first opened from a group of applicants.
Q. And how much formal education do you have, sir?
A. Eighth grade.
The dissent observes that Flagle’s employment afforded him access to the facility when it was closed and unoccupied, and then asserts: “Nothing indicates that Flagle would have been able to sexually penetrate Ms. Bean at another location or at Directions Unlimited when the facility was open.” Post at 36. The dissent essentially suggests that defendant had to prove that the employment relationship did not cause the sexual assault by showing that the assaults did not occur in the facility when it was closed. Defendant, however, was not required to prove anything. Plaintiff had the burden of proving that defendant’s negligent hiring and supervision proximately caused the assaults. The evidence at trial, including plaintiff’s vague testimony, did not compel a jury determination that the assaults occurred when only employees had access to the facility. Since plaintiff and Flagle were members and co-owners as well as employees of defendant, the jury could have rationally concluded that Flagle’s employment status played no role in the assaults. | [
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Taylor, J.
At issue is the appropriate discipline for an attorney’s assault of a witness at a deposition. In light of our recent decision in Grievance Administra tor v Lopatin, 462 Mich 235; 612 NW2d 120 (2000), adopting on an interim basis the American Bar Association’s (aba) standards for imposing lawyer sanctions, we remand this matter to the Attorney Discipline Board (adb) for a determination of the appropriate sanction.
Respondent Arnold Fink was an attorney with the Lopatin, Miller law firm. He gave partner Sheldon Miller a stock tip. Respondent did not inform Miller that he made a commission on Miller’s purchase of the stock. The investment performed poorly.
Miller filed an action against respondent for breach of fiduciary duty in connection with the stock purchase. After a contentious September 12, 1991, motion hearing, Miller told respondent that he was fired. Respondent nonetheless returned to work to prepare for an out-of-state deposition scheduled for the next day. When Miller returned to the office, he allegedly choked respondent and threatened to kill him. Miller rescinded the termination and respondent continued working with the firm until January, 1992.
Miller was charged in Detroit Recorder’s Court in connection with this assault and entered a guilty plea, but it was taken under advisement. The criminal charges were ultimately dismissed. The Grievance Administrator filed a formal complaint against Miller for the assault, but the hearing panel dismissed it, finding it to be “without credible factual basis.” No petition for review was filed with the adb.
The present charges arise out of a deposition of Miller, held on August 8, 1995. Respondent, representing himself, was questioning Miller. There was a good deal of friction between respondent and Miller. The deposition fell apart with the following exchange:
Q. [By respondent, representing himself] So if Arnold Fink told you that Share Data would be bought at two dollars a share, and now you go ahead and enter into an entirely different purchase, how is it that you’re blaming Mr. Fink?
A. [by Miller] Read my complaint, Mr. Fink.
Q. Sir, how is it you’re blaming Mr. Fink. Answer the question.
A. Because the lying stinking son-of-a-b_took a kick-
back of three hundred and seventy-five thousand dollars, that’s how.
Q. Sit the f_down. Don’t you raise your voice at me.
A. You asked a question; you got the answer.
Q. Sit down.
A. Tell me to.
Q. Sit down.
Mr. Schwartz [Miller’s attorney]: Gentlemen, gentlemen—come on.
Q. I’ll tear your f_ing head off. Sit down.
A. Oh, come on, come on, threaten me.
Mr. Schwartz: Stop.
A. Oh, come on, threaten me.
Q. You’re—all right, that’s it.
Mr. Schwartz: Call the police.
Q. You c_-sucker.
Mr. Schwartz: Call the police. Get out of here. Stop it. Both of you stop it.
[Off the record.]
Mr. Schwartz: This deposition is over. That’s it. I want a record. The deposition is over. Mr. Fink came around the table to where Mr. Miller was. Mr. Fink attacked Mr. Miller. Mr. Fink choked Mr. Miller and shoved him to the ground, knocking over the chair that Mr. Miller was on . . .
Mr. Fink: Yeah right.
Mr. Schwartz: . . . and he started to try to strangle Mr. Miller. I tried to separate . . .
Mr. Fink: In your dreams.
Mr. Schwartz: . . . them and he refused to get off.
Mr. Fink: In your dreams.
Respondent later testified about this incident. He explained that Miller, who enjoyed a clear size advantage, cursed at him and stood and leaned over the table during the deposition. Respondent acknowledged that he “just lost it” and “came around the table and shoved [Miller].” He disagreed with Schwartz’s description of the events as set forth in the transcript. Respondent testified that he shoved Miller and that Miller went over the chair, but that he did not hit, strangle, or choke Miller.
Respondent was charged with misdemeanor assault and battery for this conduct. On April 10, 1996, he pleaded guilty to this charge. He was fined, placed on probation, and was required to perform community service.
In August 1996, the Grievance Administrator filed the judgment of conviction. The hearing panel initially issued an order of dismissal on December 12, 1996. On July 30, 1997, the adb issued an order of remand for a hearing in accordance with Grievance Administrator v Deutch, 455 Mich 149; 565 NW2d 369 (1997), which held that proceedings initiated by a valid judgment of conviction could not be dismissed. On January 15, 1998, the hearing panel issued an order imposing no discipline. It noted respondent’s testimony admitting the altercation and explaining that “there had been a long history of acrimony preceding the deposition and that Mr. Miller had threatened him in the past.” It noted that respondent denied that he had choked Miller or shoved him to the ground (as Miller’s attorney stated in the deposition transcript). It also noted that respondent had two prior disciplines, but that neither involved assaultive behavior. It then concluded that no discipline was warranted for the following reasons: the exchange of insults and scuffle at the deposition were remote to the administration of justice, respondent’s misconduct appeared to have been provoked by Miller, the conduct of respondent and Miller had been “substantially equivalent,” and the misconduct was “in the nature of a personal lapse of control by two lawyers . . . who should have known better . . . .” Further, the panel stated that it might have decided otherwise if “the misconduct had occurred in open court or before non-lawyer clients, or resulted in physical injury, or led to a conviction for felonious assault.” Finally, it stated that it thought the limited resources of those involved in discipline should be expended in areas other than personal transgressions “not involving lawyer-client relationships or adversely impacting the decorum of the courts or of the legal profession.”
On November 6, 1998, the adb vacated the hearing panel’s order and issued an order of reprimand. It deferred to the hearing panel’s assessment of respondent’s credibility and demeanor and its acceptance of his version of the incident. After noting that both respondent and Miller acted in a “childish, pugnacious, and unprofessional manner,” it concluded that respondent “escalated the dispute from verbal sparring to physical contact . . . .’’It opined that provocation does not excuse and only rarely mitigates gross incivility such as what occurred here. The adb held in pertinent part:
[T]here is sufficient evidence to convince us that discipline is warranted. Respondent admittedly “lost it.” Also, respondent’s testimony establishes that he could have retreated from the room had he truly felt threatened. Finally, the argument that no discipline in this case is necessary to balance the ledger also fails. Respondent and Miller may despise each other, but they are attorneys and they have an obligation to refrain from interfering with the administration of justice. We are not persuaded that Fink can shove Miller at a deposition because Miller may have escaped discipline for allegedly similar conduct four years prior.
We have concluded that the imposition of discipline is clearly required in this case. However, we also conclude that a reprimand is appropriate under all of the circumstances. Respondent has engaged in a lengthy career with no record of this type of behavior. This singular, short-lived incident occurred in a case in which respondent was the defendant. His status as a party does not excuse his behavior; an attorney must abide by his or her obligations as an officer of the court even if he or she is also the client. However, respondent may not have fully appreciated how difficult it would be to represent himself in the litigation with Miller. Apparently, respondent did learn this lesson as no other incidents were reported.
In an appropriate case, we will not hesitate to impose a suspension for an attorney’s assaultive conduct, particularly that which arises out of the performance of lawyering functions. However, assessing all of the facts here, we conclude that a reprimand fully achieves the objectives of the discipline system. There is no evidence of injury to Mr. Miller or of a pattern of similar incidents. Respondent presents no discemable risk to the public, the courts, or the legal profession in light of the unique circumstances giving rise to this incident. [Citation omitted.]
Additionally, the adb noted the penalties respondent received in connection with the criminal proceedings. For all these reasons, the adb vacated the hearing panel’s order imposing no discipline and reprimanded respondent.
When the ADB issued this order, it did not have the benefit of this Court’s guidance in Lopatin, supra, regarding the use of the aba standards for imposing lawyer sanctions. We accordingly remand this matter to the adb for application of the aba standards. Because this is among the first cases requiring application of the aba standards, we draw the adb’s attention to standard 5.12, which states:
Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 [which focuses on dishonesty] and that seriously adversely reflects on the lawyer’s fitness to practice.
The commentary to this section states in pertinent part:
Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category. [Emphasis added.]
This appears to be the standard applicable to the type of conduct at issue. As we explained in Lopatin, supra at 240:
[A]fter determining the recommended sanction, the disciplinary body moves to the third step of the analysis and considers the relevant aggravating and mitigating factors.
On review of these factors, it then decides whether to increase or decrease the sanction. Aba Standard 9.1.
In the course of deciding the appropriate sanction in a particular case, the ADB is to delineate any aggravating and mitigating factors and explain the effect of such factors on the sanction recommended by the applicable ABA standard.
In accordance with Lopatin, we remand this matter to the adb for reconsideration of the appropriate level of discipline in light of the ABA standards.
Weaver, C.J., and Corrigan, Young, and Markman, JJ., concurred with Taylor, J.
Cavanagh and Kelly, JJ., concurred in the result only.
Respondent testified that Miller is about 6' 1", 200-210 lbs, while respondent is 5' 8" and about 155 lbs.
The judgment of sentence indicates that he pleaded guilty. In contrast, the register of action indicates that he was convicted after a bench trial. | [
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R. B. Burns, P. J.
Plaintiff filed suit against the owner and the driver of a motor vehicle. A default judgment was entered against the driver. The trial court entered a judgment of no cause of action in favor of the owner as the borrower of the vehicle had disobeyed instructions. We reverse.
On the day that defendant Grace Strecker’s car was being driven by defendant William Shannon that car collided with a car being driven by plain tiff John Cowan. Cowan was seriously injured. Grace Strecker had loaned her car to Virginia Shannon, William’s mother, with explicit instructions that no one drive that car other than Mrs. Shannon. Contrary to those admittedly clear instructions, Mrs. Shannon allowed her son to drive the car. At the time of the accident Mrs. Shannon was a passenger in the car. John Cowan brought suit against William Shannon and Grace Strecker. The action against Mrs. Strecker was based on the owner liability provisions of the Michigan civil liability act, MCLA 257.401; MSA 9.2101. Defendant William Shannon failed to defend, and a default judgment was properly entered against him. After a bench trial a judgment of no cause of action was entered in favor of Mrs. Strecker. The judge ruled that, because William Shannon’s operation of Mrs. Strecker’s car was contrary to the owner’s explicit instructions to Mrs. Shannon, the car was not being operated by William Shannon with either the express or implied consent of Mrs. Strecker and that, therefore, no liability was imposed upon her by the civil liability act. Plaintiff challenges the judgment for defendant Strecker as erroneous as a matter of law.
In order to resolve this appeal we must choose between two recent decisions: Roberts v Posey, 386 Mich 656; 194 NW2d 310 (1972), and Ensign v Crater, 41 Mich App 477; 200 NW2d 341 (1972), appeal dismissed with prejudice by stipulation, 389 Mich 791 (1973). In Roberts, 386 Mich at 664; 194 NW2d at 314, the Michigan Supreme Court overruled Merritt v Huron Motor Sales, Inc, 282 Mich 322; 276 NW 464 (1937), and held that "[t]he presumption that a motor vehicle, taken with the permission of its owner, is thereafter being driven with his express or implied consent or knowledge is not overcome by evidence that the driver has violated the terms of the original permission”. In Roberts the individual who borrowed another’s car was involved in an accident while operating the car past the hour stipulated for its return. In Ensign a father loaned a car to his daughter with explicit instructions that no one else drive it. The daughter allowed her boyfriend to drive the car, and, while he was doing so negligently, the car was involved in a serious accident. A panel of this Court found Ensign to be "factually distinguishable” from Roberts and refused to apply the principle of law enunciated in the latter case. Obviously, plaintiff bases his appeal on Roberts v Posey, supra, while defendant Strecker bases her response on Ensign v Crater, supra.
We concede that Ensign and the instant case are "factually distinguishable” from Roberts. Different instructions were disregarded by the borrower in each case. However, in light of the rationale underlying the decision in Roberts, we cannot agree that that factual difference is significant. In Roberts, supra, 386 Mich at 662; 194 NW2d at 312, our Supreme Court interpreted the civil liability act to place upon the owner of an automobile liability for any injury or damage caused by the improper use of his car, even when operated by another in blatant disregard of explicit instructions, because, as the person with ultimate control of the vehicle, the owner, by entrusting his car to another, began the chain of events which resulted in injury or damage. The specifics of any limitations imposed by the owner are irrelevant to the statute’s effectuation of its purpose. Whatever the limitations, once the owner has turned his keys over to another, he is powerless to enforce those limitations. Several thousand pounds of steel are being moved upon the public highway because the owner consented thereto. Even if the individual who borrowed the car has deviated from his instructions, the car is being operated on the highway because the owner consented thereto. If the car is involved in an accident, the owner is liable because of that consent.
Reversed and remanded for entry of judgment against defendant Strecker. Costs to plaintiff.
Van Valkenburg, J., concurred. | [
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North, C. J.
The Muskegon Trust Company, one of the plaintiffs herein, holds as trustee title to the unsold portion of Castenholz Grove Annex located in the township of Muskegon, Muskegon county, Michigan. The other plaintiffs are owners of lots in block 4 of this addition. The defendants Bousma hold the fee title to lots 26 and 27 of block 4, and the defendant Arie Doctor is a contract purchaser from the Bousmas of these lots. The plaintiffs seek to enjoin the defendants from manufacturing cement blocks on said lots, and to correct and reform the deed and contract to purchase this property by including therein certain building restrictions. Relief is sought on the ground that the restrictions “were inadvertently omitted” in conveying these lots, and also on the ground that conducting on these lots the business sought to be enjoined constitutes a nuisance. The circuit judge found plaintiffs were entitled to injunctive relief on both theories. The defendants have appealed.
The restrictions sought to be applied to these lots are as follows:
“1. That no building shall be placed thereon nearer than 20 feet to the front of the lot. 2. Said lot to be used for residence purposes only. 3. That no house shall be erected thereon to cost less than $2,000. 4. That no use shall be made of said lot either by the operation of any offensive business thereon, or by the keeping of pigs, or other animals of like offensive character, nor shall any signs for advertising purposes only be placed thereon.”
These restrictions are not embodied in the dedication of the plat of this addition; they are not included in any of the recorded instruments affecting the title to either lot 26 or 27; neither of defendants Bousma nor their immediate predecessor in title had any notice or knowledge of these restrictions when they purchased; it is not claimed the restrictions were intended to apply to this whole addition, but only to certain portions thereof, which include block 4; and these restrictions are not referred to in any way in the chain of title to substantially one-half of the lots in block 4 under which the present owners hold. The record does not contain proof of such a uniform course of development in this addition as would constitute constructive notice of the above-quoted restrictions to the defendants.
“Restrictions in deeds will be construed strictly against the grantors and those claiming to enforce them, and all doubts resolved in favor of the free use of the property.” Casterton v. Plotkin, 188 Mich. 333.
Restrictions which are not a matter of record and of which a party has neither actual nor constructive notice cannot be enforced against such party. There is no proof in this case which would justify granting the relief sought by way of correcting or reforming the instruments of title through which defendants hold; nor are the plaintiffs entitled to have the restrictions as such enforced.
The remaining question is plaintiffs’ right to relief on the ground of an alleged nuisance. This record is unsatisfactory in that it does not disclose the relative location of the restricted and unrestricted or business portions of this addition; nor does the extent or uniformity of residential development in the restricted portions appear. But, it is well established that the proprietor of this plat intended that the block in which defendants’ lots are located should be subject to the restrictions noted. The addition was so advertised. The restrictions were embodied in many of the contracts and deeds to purchasers. Other purchasers in whose contracts or deeds no restrictions appeared purchased with the understanding and belief that the lots were restricted and because thereof. Their good faith is indicated by the fact that, subsequent to the beginning of this suit, the owners of the lots in block 4 which were not already expressly subject to the restrictions, entered into an agreement that their respective parcels should be so restricted. At the time Doctor bought there was no development in block 4 other than of a residential character. The plaintiff Cleon Cottrell testified he had lived “next door” to the lots in question for three years. The witnesses Russell Cloething and Clarence Cloething had occupied their respective homes in the immediate vicinity for three or four years at the time of the hearing. The plaintiff Paul Sifford owned three lots, one of which is adjacent to defendants’ property.
As to the character of the business of manufacturing cement blocks sought to be carried on in this community, the defendant Doctor testified:
“The machine is an automatic stamper. * * * Any machine makes noise, but not so bad. * * * Sometimes * '* * I left about seven at night. Maybe sometime I did run later than seven; I don’t know exactly, but not much after seven.”
The following is from Cleon Cottrell’s testimony:
“Q. Was this machinery there making any noise? A. It was disturbing us so you couldn’t hear anything else. Q. Did it operate at all hours ? A. One machine that did the stamping, was very noisy; you could hear it a couple of blocks away, and the cement dust flew all around. My wife did have trouble, yes, sir, with some of that dust getting on the clothes that hung out from the washing. They worked about 14 hours a day, I should judge. Yes, he worked after six o’clock. Q. Did that disturb the children, the noise? A. Disturbed the whole neighborhood.”
Another witness (Clarence Cloething) said:
“Yes, I did hear this noise of the machinery that was running. It was very much of an annoyance. Why they run the plant all hours of the day. Yes, and at night.”
The testimony above quoted stands undisputed. No claim is made by the defendants that this business will not be detrimental to the neighboring resi dential property or that it will not unreasonably interfere with the enjoyment of the homes in .this locality, which the circuit judge described in his written opinion as “purely residential.” The equities of the case seem to be against the right asserted by the defendants to thus carry on this business in this locality. We are satisfied by the proof that before he signed this contract to purchase Doctor knew that it was claimed that the lots in this block were to be used for residential purposes exclusively, and that those owning the property were objecting to his carrying on his manufacturing business on these lots. From observation he must have known there were no other industrial plants in this neighborhood. Those interested in the development of this addition offered to take Doctor’s contract for these lots off his hands and pay him $100 to-reimburse him for expenses incurred in moving machinery to these premises. He declined this offer and at first asked $4,000 for a release of his rights in this property for which he had contracted to pay only $700. Later he reduced his demand to $1,800, but there was .no apparent justification for demanding even that amount except possibly on the theory that it was legalized extortion. After a careful consideration of this record we are of the opinion that these plaintiffs are entitled to a decree enjoining the defendant Doctor from carrying on the business of manufacturing cement blocks on lots 26 and 27 of block 4 in the manner heretofore employed by him. See Whittemore v. Baxter Laundry Co., 181 Mich. 564 (52 L. R. A. [N. S.] 930, Ann. Cas. 1916C, 818); McMorran v. Fitzgerald, 106 Mich. 649 (58 Am. St. Rep. 511), and Simon v. Detroit Motor Valve Co., 233 Mich. 17. The defendants Bousma were not parties to the manufacturing process conducted on these premises. No claim of that character has been made or established. No injunctive relief should be granted as to the Bousmas, but the dismissal of the bill of complaint as to them will be without costs. The appellees will have costs of this court against the defendant Doctor.
Fead, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Clark, J.
Defendant was driving an automobile on a street in Flint at an excessive and unlawful speed. Police officers stopped and arrested him for this offense. They immediately searched the automobile and found therein intoxicating liquor, for the unlawful possession of which defendant was tried, convicted, and sentenced. His assignments of error as briefed present the question that his motion to suppress the evidence as having been obtained in violation of his constitutional right to be secure against unreasonable searches and seizures ought not to have been denied. The arrest here was lawful, and that it therefore was proper for the officers to search the person of defendant and the vehicle in which he was then riding is settled by the following authorities, from which we need not quote: People v. Cona, 180 Mich. 641; People v. Conway, 225 Mich. 152; People v. Du Shane, 240 Mich. 35; 39 A. L. R. 818, note.
Affirmed.
North, C. J., and Bead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Potter, J.
Plaintiff filed a bill to establish an easement — a private right of way — across the lands of defendant, from Meldrum avenne in the city of Detroit to his land, and to enjoin defendant from interfering with his use of the claimed easement. From a decree for defendant, plaintiff appeals. The easement or right of way in question is a private right,of way, if anything. The owners of the northerly and southerly part of lot two, apparently by mutual consent, established and maintain a private right of way or alley between their respective holdings. Lot one lies east of lot two, and if the claimed alley in question is continued open, the end of it reaches the edge of lot one. The existence of this alley for the benefit of the owners of lot two is recognized by various conveyances. Plaintiff, the owner of lot one, acquired his property in 1911. The bill of complaint herein was filed in 1925. There is nothing in the conveyance to plaintiff or in the conveyances in plaintiff’s chain of title indicating he acquired an easement in or over the adjoining premises of defendant. The disputed questions must be determined by the state of facts existing when suit was commenced. Plaintiff had not then owned his land long enough to gain any prescriptive rights. He could not tack his claimed adverse use of the alley upon that of his predecessor in title, even if the use of his predecessor was shown to have been adverse. Sheldon v. Railroad Co., 161 Mich. 503; Lake Shore, etc., R. Co. v. Sterling, 189 Mich. 366; Wilhelm v. Herron, 211 Mich. 339; Robertson v. Boylan, 214 Mich. 27; Bunde v. Finley, 224 Mich. 634; Hanlon v. Ten Hove, 235 Mich. 227.
Plaintiff claims an easement over the adjoining land passed to him by the conveyance by which he acquired title to his property without any mention thereof in his title deed. Ordinarily, no estate passes by deed which is not embraced plainly within the words of the grant. Ryan v. Wilson, 9 Mich. 262; Munro v. Meech, 94 Mich. 596. Plaintiff claims this case is governed by Wortman v. Stafford, 217 Mich. 554. In that case the land to which the right of'way ran was isolated, and a right of way to it existed of necessity. Powers v. Harlow, 53 Mich. 507 (51 Am. Rep. 154). The driveway here involved was established for the mutual convenience of the adjoining-owners of lot two, and does not constitute a way of necessity but a revocable license to use. Wilkinson v. Hutzel, 142 Mich. 674. In Wortman v. Stafford, supra, it is said:
“The question of the continuity of possession and user by successive holders in privity to sustain title by prescription is not involved here.”
Neither by the common law of England nor by that of Michigan does a mere right of way constitute such a continuous easement as will pass by implication. 19 C. J. p. 918.
In Morgan v. Meuth, 60 Mich. 238, the question was presented whether a right of way across adjacent land passed by the general words “together with the hereditaments and appurtenances thereunto belonging, or in anywise appertaining,” contained in a mortgage. It is said:
“This depends upon the nature of the easement. This alley was created for a passage-way, and nothing else. The only benefit or advantage claimed for it is that of a right of way. It is therefore a discontinuous easement — one the use of which can only be had by the interference of man. It is not like a drain or sewer, which are used continually without the intervention of man. Continuous easements pass, * * * but a right of way does not, unless the grantor in the conveyance uses language sufficient to create the easement de novo, or because its use is absolutely necessary to the enjoyment of the premises conveyed.”
The premises of plaintiff front on Jefferson avenue. He seeks to establish an easement over adjacent property to reach the back part of his premises from Meldrum avenue. He is not entitled to a right of way over the lands of defendant of necessity. His premises are accessible from Jefferson avenue without the use of the claimed easement. Because the front of his lot is entirely covered with buildings gives him no right in property he does not own. He has not acquired an easement across the premises in dispute by prescription. He is not, under the facts, entitled to tack a prior claim of adverse user, even if it existed, on to his own. The easement did not pass to him by conveyance.
The trial court reached a correct conclusion, and its decree is affirmed, with costs to defendant.
North, C. J., and Fead, Fellows, Wiest, Clark, McDonald, and Sharpe, JJ., concurred. . | [
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] |
Wiest, J.
Plaintiff herein seeks our writ of mandamus, directing the circuit judge to set aside a summary judgment rendered against it in a suit brought by the Metropolitan Electric Company, a Michigan corporation, doing business as Morris Blumberg Electric Company.
The suit was upon a note and an open account. Upon motion for summary judgment plaintiff herein admitted owing the note and also some items in the open account, and by affidavit of merits raised issues of fact as to other items. The circuit judge entered judgment for the amount of the admitted indebtedness and reserved the disputed items for subsequent trial. This, if sanctioned, will result in two judgments in one action.
In support of the action of the circuit judge, it is urged that, unless such be held the purpose of the statute (3 Comp. Laws 1915, §12581), and Circuit Court Rule No. 34, no end is served in requiring a showing of merits, and defendant, by raising an is sue of fact as to a small item, can stay judgment for admitted items of indebtedness until trial. The statute and rule need no such extension in order to serve their purpose. Items admitted require no proof at the trial and the issue or issues of fact are segregated. If some small item only is disputed, then plaintiff, unless litigious, can avoid a trial by accepting the confessed liability and taking judgment therefor. If he does so, however, the judgment concludes the- suit and is res adjudicata of the whole demand. Such is the legal effect of the judgment in suit.
Counsel for plaintiff (below) states in his brief that, if judgment for the admitted indebtedness cannot be granted and an issue upon contested items be reserved for disposition upon subsequent trial, then plaintiff will accept the amount of the judgment, as entered, in satisfaction of the demands in suit, and by remittitur make the proper record.
If the judgment stands it remits the contested items. Plaintiff may elect to accept the judgment as entered, and if the remittitur is filed within ten days the writ will be denied, without costs.
North, C. J., and Fead, Fellows, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Potter, J.
This case involves the validity of the alleged last will and testament of Frank R. Harris, deceased, late of Grosse Pointe Shores, claimed to have been made and executed February 27, 1925, at the office of John W. L. Hicks, an attorney, in the city of Detroit. Mr. Harris died March 1, 1925, and March 26, 1925, the executor named in the alleged will filed a petition in the probate court of Wayne county to admit such will to probate. April 29, 1925, the will was admitted to probate by the probate court of Wayne county. June 26, 1925, Lauramaye Harris-, one of the contestants, filed a petition in the probate court alleging the will admitted to probate was not the will of Frank E. Harris, deceased. On August 4, 1925, an order granting a rehearing was made by the probate court. A petition was then filed by George Morris, a beneficiary under the will, asking that the issue made by such petition be certified to the circuit court for Wayne county for trial. An order was made December 14,192,5, so certifying it. The case was tried in the circuit court for Wayne county before a jury from January 24, 1929, to February 7, 1929, when the trial was concluded, a verdict rendered for contestants and judgment entered thereon. A motion for a new trial was made and denied, and the case is brought here on error, proponent alleging several reasons why the case should be reversed:
1. The court charged the jury among other things:
(a) “The court instructs the jury that a will, to be valid, in this State, must be signed by the testator in the presence of two witnesses who must also sign in his presence and in the presence of each other. The court instructs the jury that if you find that the signature of Frank E. Harris was upon the alleged will before Glen E. Young came into the office of John W. L. Hicks, you must return a verdict for the contestant.
(b) “The court instructs the jury that if you find that Frank E. Harris ’ signature was obtained prior to February 27, 1925, to the alleged will, you must return a verdict for the contestant, as the proponent claims that the witness signed the will February 27, 1925.
(c) “The court instructs the jury that if you find that Frank R. Harris did not sign the alleged will in the office of John W. L. Hicks you must find a verdict for the contestant.”
3 Comp. Laws 1915, § 11821, prescribes the formalities for the execution of a will. This statute provides :
“No will made within this State, except such nuncupative wills as are mentioned in the following section, shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be otherwise satisfactorily proved. ’ ’
The charge of the court directed the jury to find a verdict for contestants, providing the will of testator was not signed by him in the presence of both the witnesses thereto. This is not the law. If the testator signed his name to the will prior, to the time the witnesses or either of them came into his presence, the will would not be invalid. The testator had a right to sign the will in one place and take it into the presence of the witnesses and declare the same to be his last will and testament in the presence of such witnesses. This part of the court’s charge was error.
2. In denying proponent’s motion for a new trial it was said:
“The only issue in the case was whether or not the signature to the will was genuine or a forgery. ’ ’
It is apparent the part of the charge referred to in paragraph numbered one herein conflicts with the conclusion of the trial court in the disposition of the motion for a new trial.
3. Upon the trial, counsel for contestants said to the jury:
“Here is Frank R. Harris, a bachelor, who had been born, brought up with his sister-in-law, who had lived with them, who had lived in her family; who had known Lauramaye Harris and Joseph Harris since they were babes; had all the tradition centered around them through all his years which had been carried' down, as the testimony shows to the day of his death; all his affections centered around them and couldn’t a more and better reason for a man giving it to them and the greater doubt that he ever gave it to his beloved friend, so-called, George R. Morris, than the appearance of Lauramaye Harris and Joe Harris and Mrs. Harris presented upon this stand. You don’t have to go far, that it is not a difficult thing for Frank R. Harris to find all his affections centered in such people as those. You don’t find better people than Lauramaye Harris, better people appearing on the stand than they did; that’ he jumped over all those natural ties, chose to give it to a man of another race, whom he had known only a year. ’ ’
This was an argument to the jury that the will was void because contrary to natural justice. It was an appeal to prejudice. No issue of the mental incapacity of the deceased was involved in the trial of the issue. The law provides how the property of intestates shall descend and be distributed. It permits anyone of full age and of sound mind to make a testamentary disposition of property. That the testator acted under the law of wills and directed how he wished his property disposed of after his death, instead of permitting it to pass under the statutes of descent and distribution, is no evidence of the invalidity of his will. If the deceased was mentally competent to make the will in question, and of this there is no dispute, he had a right to give his property to whomsoever he saw fit, regardless of who were his relatives or who would have taken his property under the statutes of descent and distribution. It was error for the court to permit counsel for contestants to argue the question before the jury against defendant’s objection.
4. The trial court in his charge referred to the contestants as the natural recipients of testator’s bounty and charged that,
“The disinheriting by the proposed will of all of Mr. Harris’ relatives and its giving the property to one outside the family is not sufficient alone to permit you to break the will.”
It was error to charge the jury as above indicated. In re Bliss’s Estate, ante, 389.
5. Experts are permitted to give their opinion, when properly qualified, upon the theory that by reason of their superior knowledge they may know things which ordinary witnesses do not. The opinion of an expert rises no higher than the facts upon which it is based. These facts must be detailed in order that the jury may judge of their existence or nonexistence, their truth or falsity. A witness ought not to be permitted to pass upon the force, effect, weight, or sufficiency of the facts detailed by him, or to usurp the functions of the jury. In re Lembrich’s Estate, 243 Mich. 39. In this case one Courtney, a claimed handwriting expert, was on the stand. He was permitted to testify, against defendant’s objection, as follows:
“Q. Using the examination that you have made of the signatures of Frank R. Harris appearing on Exhibits 4 to 14, either Frank R. Harris or F. R. Harris as a basis, can you tell us whether or not the signature of Frank R. Harris appearing on Exhibit 1 is the genuine signature of Frank R. Harris?
“Mr. Lodge: Objected to as incompetent, irrelevant, and immaterial.
“The Court: I think he may answer.
“A. In making an examination of the signature of Frank R. Harris to the will, Exhibit 1, and a comparison of the standards on Exhibits 4 to 14, inclusive, I find that the signature on Exhibit 1 is not written by the same hand as the standards.”
In re Foster’s Will, 34 Mich. 21, it is said:
“Every one knows how very unsafe it is to rely upon any one’s opinions concerning the niceties of penmanship. The introduction of professional experts has only added to the mischief, instead of palliating it, and the results of litigation have shown that these are often the merest pretenders to knowledge, whose notions are pure speculation. Opinions are necessarily received, and may be valuable, but at best this kind of testimony is a necessary evil. Those who have had personal acquaintance with the handwriting of a person are not always reliable in their views, and single signatures, apart from some known surroundings, are not always recognized by the one who made them. Every degree of removal beyond personal knowledge, into the domain of what is sometimes called with great liberality scientific opinion, is a step towards greater uncertainty, and the science which is so generally diffused is of very moderate value. Subject to cross-examination it may be reduced to the minimum of danger. In a jury-room, without any check or corrective, it would be very dangerous indeed. * * *
“In the cases of the Tracy and Fitzwalter Peerages, in 10 Clark and Finnelly, 154 and 193, this subject was discussed somewhat, and the danger of allowing testimony of handwriting from studies made expressly for the occasion was forcibly expressed. Mr. Best regards it as absolutely incompetent, and it has been so regarded in some instances by the courts. Best on Evidence (Inti. Ed.), 236.”
To permit an expert witness in a case of contested handwriting to directly answer the question as to the genuineness of the signature in dispute is to permit him to invade the province of the jury, — to answer the very question which it is the duty of the jury to answer. The rule permitting experts, usually employed and paid to express desired opinions, has gone far enough. It should not now be extended so as to permit such experts to substitute their conclusions for those of the jury. It was error to permit the witness to do so.
6. The petition for the probate of the will was filed by the executor named therein on March 26, 1925. Afterward it is claimed the wife of proponent obtained some keys by which she was enabled to and did enter the house of the deceased. There was some testimony that at some time someone had entered the house and ransacked the same. There is no testimony connecting the proponent or anyone else interested in the case with this entering. The contestants were permitted to put all these facts before the jury and to argue inferentially that the will in question was a forgery -and the genuine signatures of the deceased had been obtained by proponent’s wife from the house by entering it with skeleton keys and searching for and obtaining the genuine signatures of the deceased which were copied on the will. Inasmuch as the petition had already been filed in the probate court for the admission of the will to probate before any of these things are shown to have occurred, it was error to permit contestants to place the facts before the jury and to argue therefrom that the will was a forgery.
7. It was claimed by the contestants that the will was not executed at the office of Mr. Hicks, where it was claimed by proponent to have been executed. There was no competent evidence the testator was not at the office of Mr. Hicks at the time claimed, and no testimony except that of the expert Courtney, the signature upon the will was not the genuine signature of the testator. The opinion of an expert, or even his positive statement, erroneously permitted to be placed before the jury, when contradicted by the facts, is not entitled to serious consideration. The opinions of experts are of no weight when contrary to sworn testimony as to facts. Judgment reversed, with costs, and a new trial granted.
North, C. J., and Fead, Wiest, Clark, McDonald, and Sharpe, JJ., concurred in the result. The late Justice Fellows took no part in this decision. | [
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] |
McDonald, J.
This bill was filed to foreclose a mortgage given by the defendants, Esidore Kowalsky and Minnie Kowalsky, on 34 vacant lots in the city of Detroit.
The defendant Esidore Kowalsky is a contractor and dealer in real estate. He had a line of personal credit for a Considerable amount with the plaintiff bank. In January, 1925, he applied for a loan of $6,800. The loan was made and a warranty deed of the property in question was taken as security. The deed was absolute in form but was recorded as a mortgage. Subsequently, Mr. Kowalsky conveyed the lots to the defendants Glasser and Hoffman as a down payment on the purchase of an apartment building subject to the plaintiff’s mortgage of $6,800. Before closing the deal with Kowalsky, Mr. Hoffman examined the records in the register of deeds’ office,, from which he learned that the deed to the plaintiff had been recorded as a mortgage, that it recited a consideration of $6,800, and that on that sum the mortgage tax was paid. Mr. Hoffman then went to the plaintiff bank, stated that he and Glasser were buying the lots from Kowalsky, and inquired as to the amount of its claim against the property. He was told that the entire amount was $6,800. Having received this information, Hoffman and Glasser accepted a conveyance from Kowalsky subject to the $6,800 lien. The note which this mortgage was given to secure does not appear in the record. In May, 1925, it became due, and Hoffman and Glasser paid the bank $2,000. The bank required Kowalsky to sign the renewal note for $4,800. This note recited that the deed which was given to secure the original loan should be security also for every other obligation of Kowalsky due and to become due. Defendants Hoffman and Glasser did not know of this recital in the renewal note. Kowalsky subsequently became indebted to the bank on other notes totaling $5,900. These notes were carried on the bank’s books as unsecured paper. When the bank began foreclosure, it claimed that the security attached not only to the $4,800 balance due on the $6,800 loan, but to all other Kowalsky obligations. On the hearing, the court adopted this view, and found that there was $12,930.16 due on the mortgage. It was decreed that this amount should be paid to the plaintiff out of a fund of $15,000 which defendants Hoffman and Glasser previously had been ordered to deposit with the clerk of the court. From the decree entered, Hoffman, and Glasser have appealed.!
The one question in issue is the amount due on the mortgage. The appealing defendants admit an unpaid balance of $4,800, which amount they have tendered to the plaintiff. Their only contention here is that the court erred in attaching to the security other notes which the bank holds against Kowalsky.
.There is no dispute as to the controlling facts. Hoffman and Grlasser were good-faith purchasers for value. Before closing the deal with Mr. Kowalsky, they used every available means to ascertain the exact amount of the bank’s lien. They examined the records in the office of the register of deeds, from which they learned that the deed was given as security for a loan of $6,800. They then advised the bank that they were about to purchase the property, and desired to know the extent of its interest, and were informed that the entire amount of the lien was $6,800. Mr. Hoffman testified that, relying on the bank’s statement and on the recital in the deed, they concluded their deal with Kowalsky. In view of these facts, the bank is estopped from now claiming any greater lien. 21 C. J. p. 1067; 41 C. J. p. 597; 10 E. C. L. p. 760; 2 Jones, Mortgages (8th Ed.), pp. 248, 249.
But the plaintiff claims that it has a right to attach all of Kowalsky’s obligations to the security because of the recitals in the renewal note made on May 11,1925. This note contained a statement that the plaintiff should hold the deed as security for all of Mr. Kowalsky’s indebtedness “due or to become due or that may hereafter be contracted.” Hoffman and G-lasser knew nothing of its contents. They did not sign it. Kowalsky signed it without any agreement or understanding with them. At that time he had no interest whatever in the mortgaged property. But all of this is of little importance, for the amount of the lien is to be determined by the recital in the deed. Carrol v. Chauret, 241 Mich. 338.
It is conceded that a proper tender in writing was made by the defendants on February 15, 1928, and was refused by the plaintiff. This tender was of full performance of the conditions of the mortgage and contained a demand for release or discharge. In view of this, the defendants ask that the plaintiff be compelled to pay the penalty fixed by the statute (3 Comp. Laws 1915, § 11745) and 'the actual damages occasioned by its refusal to discharge the lien. In its refusal, we are not persuaded that the mortgagee acted in bad faith or without an honest belief that the amount tendered did not fully satisfy the lien. The penalty statute does not apply.
We find the amount of the plaintiff’s lien to be $4,800, on which it is not entitled to interest since February 15,1928, the date of tender.
A decree will be entered in accordance with this opinion. The defendants Hoffman and Grlasser will have costs of this court.
• North, C. J., and Fead, Fellows, Wiest, Clark, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
Defendant and his wife, although estranged and no longer sustaining marital relations, occupied together an apartment in Detroit. Defendant did not take his meals there. He and his brother ran a tire business on Michigan avenue and a real estate office in the Majestic building. They had a nephew named Theodore Moller in Vienna, Austria. By correspondence conducted by the brother, it was arranged that Theodore, who could speak English, should come over and work in the tire shop. He came and was paid $25 a week; he was around 20 or 21 years old. He lived at the apartment of defendant; for a time he took some of his meals there, but later only had a room. When he took some of his meals there he paid defendant’s wife $10 a week, and when he only had the room and took his meals elsewhere, he paid her $5 a week.
Defendant owned and had for his personal use a Rickenbacker sedan. He left for Europe January 2, 1924. He did not return until April. Before leaving he canceled his insurance on the automobile, took it out of live storage and placed it in dead storage. No one had any authority to use it during his absence. It was taken out- by some one without authority from the garage owner, or, so far as the record discloses, from anyone else, in February, and was reported as stolen to the police department. While being driven on the Packard road between Ann Arbor and Detroit on February 10th, it collided with a car in which plaintiff was riding, and she was injured. We very much doubt if the facts we are about to relate are established by competent evidence, but, for the purposes of the case, we will as sume they are. The car was being driven by Theodore Moller, who was accompanied by defendant’s wife and some of her relatives, and was negligently operated by him.
Plaintiff’s recovery was predicated on 1 Comp. Laws 1915, § 4825, which was in force when the accident occurred, but which has been superseded by Act No. 56, Pub. Acts 1927. The validity of the section was sustained in Bowerman v. Sheehan, 242 Mich. 95, and we are here concerned only in its construction. That portion of the section which is here involved reads as follows:
“In the event said motor vehicle is being driven at the time of said injury by the father, mother, brother, sister, son, daughter, or other immediate members of the family of the owner of said motor vehicle, then it shall be conclusively presumed that said motor vehicle is being driven by the consent or with the knowledge of such owner.”
The trial judge held as matter of law that young Moller was an immediate member of defendant’s family and defendant was liable for the young man’s negligence in operating the car on the occasion in question and under the circumstances here disclosed.
The word “family” is one of great flexibility. In Carmichael v. Benefit Ass’n, 51 Mich. 494, it was said by Chief Justice Graves, speaking for the court:
“Now this word ‘family,’ contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relatives, or any group constituting a distinct domestic or social body. It is often used to denote a small select corps attached to an army chief, and has even been extended to whole sects, as in the case of the Shakers.
“We discover nothing in the statute implying a narrow sense, and we should not be inclined to attribute one where the result would cause injustice. ’ ’
The word as used under different circumstances has received different constructions. When used in' life insurance policies and in homestead and other exemption statutes, it has been given a broad construction, and, in so doing, the intent, either of the parties to the contract or the legislature, has been carried out and no injustice has been done. Here we have a statute in derogation of the common law, and under one well-recognized rule of construction should be strictly construed. t It also enumerates relationships followed by other cases enumerated in general terms, and under another well-recognized rule of construction such other cases must be understood to be cases of the same general character, sort, or kind with those named. Jacobs v. E. Bement’s Sons, 161 Mich. 415, and cases there cited. To hold that the statute should be construed to be applicable to cases of the character of the one before us manifestly would work an injustice. Webster includes boarders and lodgers as members of the family, but such definition has been negatived so far as this court is concerned by what was said in our recent case of Seeley v. Phi Sigma Delta House Corp., 245 Mich. 252. Other courts have definitely declined to include them as members of the family. Strawn v. Strawn, 53 Ill. 263; Weed v. Dayton, 40 Conn. 293; Fowler v. Mosher, 85 Va. 421 (7 S. E. 542); Whitehead v. Nickelson, 48 Tex. 517; Golden Cross v. Donaghey, 75 N. H. 197 (72 Atl. 419). In Sheehy v. Scott, 128 Iowa, 551 (104 N. W. 1139, 42 L. R. A. [N. S.] 365), it was said by Mr. Justice Ladd, speaking for tbe court:
“ ‘Family’ has been defined as a collective body of persons who live in one house under one head or manager. Tyson v. Reynolds, 52 Iowa, 431 (3 N. W. 469); Parsons v. Livingston, 11 Iowa, 104 (77 Am. Dec. 135). But this is not accurate, for strangers might thus band themselves together and live under the direction of a leader. To constitute one or more persons, with another, living together in the same house, a family, it must appear that they are being supported by that other in whole' or in part, and are dependent on him therefor, and, further, that he is under a natural or moral obligation to render such support.”
And the same court in the later case of Mooney v. Canier, 198 Iowa, 251 (197 N. W. 625), held that the defendant, head of the family, could not be held liable under the “family use” doctrine for an injury done by his automobile when driven by his stepson who had roomed and boarded at his house, paying therefor $8.00 a week. In Town of Cheshire v. Town of Burlington, 31 Conn. 326, where a statute dealing with the settlement of paupers was involved, the court said:
‘ ‘ The intention of the legislature we think was, by this term ‘family’ to designate all individuals whom it was the right of the head of it to control, and his duty to support.”
In Roco v. Green, 50 Tex. 483, it was said:
“We deduce from the authorities the following general rules to determine when the relation of a family, as contemplated by law, exists:
1. It is one of social status, not of mere contract.
2. Legal or moral obligation on the head to support the other members.
3. Corresponding state of dependence on the part of the other members for this support.”
In part, plaintiff relies, on our cases dealing with the word “family” as found in the workmen’s compensation law (2 Comp. Laws 1915, §§ 5423-5495, as amended). Three of our cases deal specifically with this word: Roberts v. Whaley, 192 Mich. 133 (L. R. A. 1918A, 189); Lewis v. Eklund Bros. Co., 244 Mich. 22; Holmberg v. Cleveland-Cliffs Iron Co., 219 Mich. 204. The first two of these cases involved illegitimate children whom the deceased workmen owed a legal duty to support. In the last case, for 27 years the deceased workman had maintained a home for a blood relative and her children whom it was found he owed a moral duty to support. It will be quite difficult to find cases under workmen’s compensation acts which, as ours, use the word “family” which hold that family relations exist, unless there is also found to exist either a legal or moral ■obligation to support resting on the head of the household.
In each of the two cases involving the validity of the section before us (Hawkins v. Ermatinger, 211 Mich. 578, and Bowerman v. Sheehan, supra), the driver was the minor son of the owner. In the HawTcins Case, it was stressed that the head of the family had absolute dominion over the car, and it was said:
“The owner of such a vehicle has complete dominion over it and the absolute right of control thereof. He may, if he will, retain its possession and so prevent its use by persons other than careful, experienced operators.”
"While in the Bowerman Case his control over the immediate members of his family, in that case a minor son, was also stressed, and it was said:
“In my opinion, this law should be sustained as a valid exercise of the police power upon the broad principle that he who owns property, in its nature a dangerous instrumentality when recklessly operated, will not be permitted to suffer it to be handled by a member of his immediate family, over lohom he has full control, in such a negligent manner as to inflict injury upon another without responding in damages therefor.”
We are not persuaded that we should construe the words “immediate members of the family,” as used in this statute, to include a boarder or roomer who is paying for such board or room, even though he be a collateral relative. It follows that the judgment for plaintiff must be reversed, but, as the Empson act (3 Comp. Laws 1915, .§ 14568) was not invoked, we must grant a new trial. Defendant will have costs of this court.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fead, J.
This is review, by writ of error, of judgment of the circuit court dismissing writ of certiorari, issued to Henry S. Hulbert, probate judge of Wayne county, to review his order denying appellant’s petition to set aside orders of approval and confirmation of a settlement agreement in the estate of August Marxhausen, and to vacate the orders subsequent thereto, including an order assigning residue, and to reopen the estate.
August Marxhausen died testate in 1920, leaving three adult children, Erna, Curt, and Thelma, and a divorced wife, Laura. The estate consisted of:
1. Half interest in Bróadway avenue property, Detroit, with a long lease- thereon, appraised at $150,000, left in trust for the lives of Elsa Schantz and Erna, 40 per cent, of net income to Erna and 20 per cent, each to Curt, Thelma, and Elsa, with division of Elsa’s share among the others on her death. Elsa died in a short time and no claim is made in her behalf.
2. Calf Island, $65,000, devised to the three children equally.
3. Daily Abend Post Publishing Company stock, $36,000, in trust for lives of Erna and Thelma, net income to be divided equally among the children.
4. 450 shares common and 100' shares preferred stock of Broadway Market Company, $950, other personalty, $1,099.25, and cash $3,510.97.
5. The proved debts against the estate were $54,200.
Erna married appellant, Frederick, and died November 25, 1924, leaving a son, Pompey, the only minor interested in the estate. In 1925 Frederick was appointed administrator of Erna’s estate and guardian of Pompey’s. Frederick took an active interest in the administration of the Marxhausen estate, filing several petitions other than those hereafter referred to.
Advances were made to the children from time to time, Erna receiving $4,631.60, Thelma $3,400, and Curt $400.
Calf Island is a summer home. For a time, Erna, Curt, and Thelma occupied it at will. Later dissension arose and Erna objected to its use by the others. An attempt to arrange occupancy was unsuccessful, and on July 24, 1924, at Erna’s suggestion, the executor notified Curt and Thelma to vacate or they would be charged $540 per month rent. They did not reply, but occupied the premises about three months each season in 1925, 1926, and 1927.
In the decree of divorce, testator was ordered to deliver to Laura 400 shares of Broadway Market Company common stock. He did not do so. In 1922 the executor, in ignorance of the decree, sold the stock, 450 shares of common and 100 preferred, for $2,100, with consent of Erna, Curt, and Thelma. In 1925 Laura commenced suit in the Wayne circuit court against the executor, claiming ownership of 400 shares, charging conversion, and asked $30,000 damages on the contention that the executor must comply with the decree or pay the value at the time of attempted compliance. The probate judge returned that at the date of the settlement it was doubtful whether the stock could be obtained at $30 per share. Trial of the suit was imminent when the settlement was made.
November 26, 1926, Frederick, as administrator of Erna’s estate, filed a petition claiming that between the death of testator and the death of Erna the total net income of the Broadway property was over $45,000, that it was a -trust fund, $21,000 belonged to Erna’s estate, and asked that such amount, less advances, be paid to him as her administrator. Curt and Thelma answered, and their position was that the trust had not become operative because no trustee had qualified and the income was necessarily and properly used by the executor to pay debts and expenses, the other personal property, aside from the stock bequeathed in trust, being insufficient therefor. On the same, day, Frederick, as administrator and guardian, filed a petition praying that the executor be ordered to bring action against Curt and Thelma to collect rent for Calf Island. He filed a third petition asking that the estate be distributed and closed. Curt and Thelma filed answers denying liability for rent. Negotiations for settlement were had between attorneys for Frederick and attorneys for Curt and Thelma from time to time, in the course of which Frederick changed attorneys three times. December 26, 1926, the executor’s second account was allowed. June 30,1927, the executor filed a petition for leave to settle Laura’s claim, setting up the facts concerning it, to equalize advances to the children, for determination of Frederick’s petitions, and general instructions. Frederick did not answer this petition until December 1st, at which time he included in his answer a cross petition charging Curt, Thelma, and Laura with conspiracy to defraud Pompey, the executor with fraudulent mishandling and mispayment of funds, and asked that the allowance of the former accounts be set aside and the executor be charged as trustee as well as executor.
July 29th, the four pending petitions were brought on before the court and counsel for all parties were heard at length. The matters were adjourned from time to time and were further heard in open court on November 1, 1927,. with all parties and their counsel present; on December 1st, in presence of all parties and their counsel, the questions involved being argued at length; and December 15th, all parties and their counsel in court, at which time an order equalizing advances was made and the sums owing made a lien against the estates of the children respectively.
December 22d, the executor filed his fourth account and prayed for specific instructions.. He set up at length the controversy over the occupancy of Calf Island, and gave his opinion that the place could not be rented except to heirs, that it had no other rental value, and that Curt and Thelma should not be charged anything for their occupancy; set up Laura’s claim and the condition of the suit, and asked leave to withhold such sum to pay it as the court should determine. This petition was answered by Frederick, Curt, and Thelma.
January 30th, hearing on executor’s third and fourth accounts was continued to February 8th, to which date the other matters had been adjourned to give the parties an opportunity to effect a settlement which counsel for all of them, in the presence of Frederick, had informed the court was in progress.
Between December 15th and February 8th, the court had a long conference with Frederick, in which the controversies and the affairs of the estate of Erna and Pompey were discussed at length. February 8th, all parties were present in court, personally and by counsel. Frederick’s attorney presented to the court an agreement of settlement, then signed by Curt, Thelma, and Laura. On petition of all parties, Frederick signing three times as administrator and guardian and acknowledging it before a notary, an order was entered authorizing the executor and Frederick, in both capacities, to execute the instrument. They signed in open court, an order confirming the agreement was made, and the instrument filed.
The agreement provided:
(a) That Erna, Curt, and Thelma and their representatives be discharged from obligation to repay the advances made or to be made under the order of December 15th.
(b) That the 'trust in the Broadway property never became effective and any balance of income collected by the executor be divided equally among the heirs.
(c) That Curt and Thelma pay $1,000 for occupancy of Calf Island and Erna’s estate pay nothing.
(d) That the executor settle Laura’s suit for $6,500.
(e) That the real estate be relieved of liens for contributions and Calf Island and the residue of the estate, except the Abend Post stock, be divided equally among the heirs.
On February 18th, counsel stipulated in open court, in the presence of Frederick,' the amount of the executor’s and his attorney’s fees. On the same day an order assigning the estate, including over $15,000 in cash, was made. The cash was divided among the heirs and the Abend Post stock delivered to the trustee. Some miscellaneous personalty was left, and on petition of Frederick as administrator, consented to by Frederick as guardian, that it was hard to divide, he was authorized to release it to Curt and Thelma for $175 and certain keepsakes.
On April 14th, final account of the executor, approved by counsel for all the parties, was allowed, his bond canceled and his letters discharged.
No appeal was taken from these orders nor further action had until October 20, 1928, when Frederick, as administrator and guardian, filed the petition to set aside the settlement and subsequent proceedings. In his petition he made claim of fraud in the settlement, but made no showing to substantiate it.
Appellant contends that the, approval of settlement by the probate judge was without jurisdiction because (a) no testimony was taken at the hearing on settlement, (b) the settlement was not fair and •reasonable to the minor, and (c) the probate court could not authorize settlement of a suit pending in circuit court.
The probate judge had general authority to approve the settlement, with binding effect upon the estate of a minor. Metzner v. Newman, 224 Mich. 324 (33 A. L. R. 98); Act No. 249, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 13818 [4] et seq.). The statute requires, as a condition of approval, that the court find: (a) The contest or controversy is in good faith, and (b) the effect on the estate of the minor is just and reasonable. This means that the court shall not approve a compromise as of course upon consent of the guardian, but shall investigate in order to make a judicial determination of the essentials of settlement. Palazzolo v. Judge of Superior Court, 234 Mich. 547; Dudex v. Sterling Brick Co., 237 Mich. 470. The statute, however, does not require that testimony be taken in a proceeding for settlement. If the court is otherwise uninformed, it may be necessary. But a probate court takes judicial notice of its own files. Wilkinson v. Conaty, 65 Mich. 614. And in the course of administration of an estate, in the consideration of the large number of petitions incident thereto and making orders thereon, in the examination of claims and accounts, in the general conduct of the estate and advising and directing the administrator or executor, a judge of probate may, and usually does, obtain an intimate knowledge of the estate and is able to determine a policy without the necessity of direct testimony. The finding necessary for approval of settlement is one of substance, not of form, and is to be based upon acquaintance with the situation rather than upon whether witnesses are sworn.
From the host of verified petitions, answers, accounts, and reports, the many arguments and discussions with counsel, and conferences with appellant, the probate judge must necessarily have become acquainted with the issues. He returned that he knew the facts. The matters of the trust fund and the liability of the estate to Laura and its extent were essentially questions of law upon which no tes timony was necessary. The issues would be developed by arguments of counsel. The opinion of the executor that Calf Island had no rental value was not disputed by any direct averment. From official sources and hearings, the probate judge was put in possession of the facts to properly exercise jurisdiction and make the judicial determination required by statute. There was neither apparent nor shown the necessity for testimony to acquaint him with material facts which he did not have before* him.
The contests against appellant’s claims were made in as good faith as the claims themselves. The legal questions were at least so serious and doubtful that after long consideration and negotiation the guardian and his counsel deemed settlement advisable. The court might well have been impressed, from appellant’s activities, his litigious attitude, and the character of his charges against the others, that he would not consent to a settlement which was not just to his ward. Failure to approve settlement would have resulted in long delay in closing the estate and extensive and costly litigation. From the whole situation, it is apparent that the probate judge exercised sound discretion in approving the settlement. In any event, having properly exercised jurisdiction, no appeal having been taken nor fraud in the settlement shown, the order of approval is not reviewable in this proceeding.
Appellant’s contention that the probate court had no jurisdiction to authorize the executor to make settlement of the case pending in the circuit court is untenable. In re Hannan’s Estate, 227 Mich. 569.
Judgment is affirmed, with costs.
North, C. J., and Fellows, "Wiest, Clark, McDonald, Potter, and Sharpe, JJ., coincurred. | [
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] |
Fellows, J.
While the bill originally filed is not in the record, from a temporary injunction and an order to show cause, which do appear, it is apparent that it was filed to restrain defendant from repossessing certain premises which a judgment of restitution of a circuit court commissioner had awarded to it in a suit brought by it against plaintiff for failure to pay rent. The case was transferred to the law side of the court and a declaration was filed which bears little semblance to the one filed the day the trial started, and upon which plaintiff seeks to recover. The case went to the jury upon the theory that plaintiff had been evicted as tenant of defendant from certain premises by digging a trench so close to the house as .to render the foundation insecure, the brick walls to crack and the house to become uninhabitable and unsafe for occupancy. Under the Empson act (3 Comp. Laws 1915, § 14568 et seq.) a judgment for defendant non obstante veredicto was entered. -
There were several grounds urged by defendant for a directed verdict, but it is evident that the result was reached by reason of the judgment in the case before the circuit court commissioner, which was res adjudicate/, of one of the crucial questions in the case. In the instant case, plaintiff claimed he had been evicted from the premises through the unlawful acts of the landlord before the summary proceedings were instituted, and was not then in possession either actually or constructively. In the case before the commissioner the plaintiff there, defendant here, was bound to establish (see 3 Comp. Laws 1915, § 13241, as amended by Act No. 320, Pub. Acts 1923): (1) that defendant was in possession of the premises involved (either actually or constructively); (2) that such possession was unlawful, and (3) that plaintiff was lawfully entitled to repossess the same. Not only were these questions properly involved, but they were necessarily involved, and in the original case before the commissioner they were all solved in favor of the plaintiff in that case, defendant here. Plaintiff here appeared in that case; it was adjourned for his accommodation and no claim is made that the proceedings are in any way irregular. The judgment in that case is res adjudícala of the questions there involved, and necessarily involved, including the question of whether the present plaintiff was then in possession, and unlawfully in possession of the premises in question: Security Investment Co. v. Meister, 214 Mich. 337; Manuel v. Bank, 227 Mich. 647; Blazewicz v. Weberski, 234 Mich. 431; William F. Nance Realty Co. v. Wood-Wardowski Co., 242 Mich. 110. In the last-cited case, it is said:
“A further reason in this case is that at the summary proceedings, in both of which Nance is recorded as appearing and pleading, possession -was an essential fact to be shown, and found by the commissioners to sustain the judgments rendered, ■which were not appealed from and are res ad judicata as to him.”
The judgment will be affirmed, but as no brief has been filed by defendant, no costs will be allowed.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
Fellows, J.
Plaintiff is the daughter of Samuel Brenton, deceased, and is the executrix of and beneficiary under his will. There has been no distribution of the estate, and the construction and validity of two clauses of the will were involved in this case. One was of minor importance, and the decree as to it is acquiesced in by all parties. The other question is of importance, both in amount involved and in principle, and has not been passed upon by this court. This question arises under these circumstances. Arthur and Willis, sons of deceased, were each given $10,000 by the will. They contested the admission of the will to probate, but upon a trial in the circuit the will was' sustained and judgment to that effect was there entered. From this judgment, there was no appeal. The sixteenth clause of the will is as follows:
“16. It is my will- that if either of my children, Arthur S. V. Brenton, Willis L. Brenton, Lillian Brenton Schiffer or any otherlegatees named in this will shall contest this, my last will and testament that they shall not receive the legacy or bequest given them in this will and that the bequest and legacy that would have gone to the one so contesting shall be divided among the ones not contesting this, my last will and testament, share and share alike,”
We are here concerned with (1) the validity of this clause, and, if valid, the further question arises, (2) Upon whom do these legacies devolve? The clause was held to be void on the hearing in the court below as against public policy, and the plaintiff and one of the beneficiaries under the will have appealed.
1. Textwriters and some of the courts state that the decisions dealing with the validity of clauses of similar purport to the one before us are in utter confusion. Some confusion may upon the surface appear. We think on the main question of the validity of such provisions, such confusion is more apparent than real, and that the confusion is minor and not major. Some cases hold that such clauses are 'declarations in terrorem and not enforceable as to personal property unless there is (as here.) a gift over, although at the same time valid without a gift over as to real estate, while other courts, and a vast majority of them, hold that whether there is a gift over or not snch clauses are enforceable. In New York the validity of such clauses is upheld, but held to be inapplicable to minors (Bryant v. Thompson, 14 N. Y. Supp. 28), while in Kentucky, their validity is sustained and they are held to be applicable to minors (Moorman v. Louisville Trust Co., 181 Ky. 30 [203 S. W. 856]).
"While differences on minor questions exist, in the main the decisions are well nigh unanimous that such conditions in wills are valid and that they are conditions subsequent and enforceable. Some courts, as we shall presently see, seek to and do engraft so-called exceptions on the rule which tend to weaken its effect and retard its enforcement. In 28 R. C. L. p. 315, it is said:
“Considerable confusion and uncertainty appear in the cases as to the validity of a condition in a testamentary disposition providing for the forfeiture of devises or bequests in case the beneficiaries contest the will, but according to the weight of authority a condition of this character is not considered as opposed to public policy, but is recognized and enforced, both as to real and personal property, and even in the absence of a gift over, because the devisee, electing to take under the will, must take subject to the condition prohibiting a contest.”
The leading English case is Cooke v. Turner, 15 M. & W. 727. The validity of a similar clause was upheld, and, considering the question of public policy, it was said:
“There is no duty on the part of an heir, whether of perfect or imperfect obligation, to contest his ancestor’s sanity. It matters not to the State whether the land is enjoyed by the heir or the devisee ; and we conceive, therefore, that the law leaves the parties to make just what contracts and what arrangements they may think expedient, as to the raising or not raising questions of law or fact among one another, the sole result of which is to give the enjoyment of property to one claimant rather than another. The question, whether this proviso is a proviso void as being contrary to the policy of the law, may be well tested by considering how the case would have stood, if, instead of a condition subsequent, it had been made, as in substance it might have been made, a condition precedent.”
The language of the Supreme Court of the United States in Smithsonian Institution v. Meech, 169 U. S. 398 (18 Sup. Ct. 396), is.clear, forceful, and convincing. After quoting from Beall v. Schley, 2 Gill (Md.), 181 (41 Am. Dec. 415), and speaking through Mr. Justice Brewer, it was said:
“The propositions thus laid down fully commend themselves to our approval. They are good law and good morals. Experience has shown that often after the death of a testator unexpected difficulties arise, technical rules of law are found to have been trespassed upon, contests are commenced wherein not infrequently are brought to light matters of private life that ought never to be made public, and in respect to which the voice of the testator cannot be heard either in explanation or denial, and as a result the manifest intention of the testator is thwarted. It is not strange, in view of this, that testators have desired to secure compliance with their dispositions of property and have soüght to incorporate provisions which should operate most powerfully to accomplish that result. And when g, testator declares in his will that his several bequests are made upon the condition that the legatees acquiesce in the provisions of his will, the courts wisely hold that no legatee shall without compliance with that condition receive his bounty, or be put in a posi tion to use it in the effort to thwart his expressed purposes. ’ ’
We shall quote at length from but one other decision which sustains the full enforcement of the rule, one from the Supreme Court of Iowa, Moran v. Moran, 144 Iowa, 451 (123 N. W. 202, 30 L. R. A. [N. S.] 898). In that case it was said:
“Without taking time to cite the cases, it may be said that some courts incline to the view that such conditions are valid only in cases where the testator names some third person to receive the legacy in the event of a breach of the condition by the legatee first named. Others sustain all such conditions attached to devises of real estate, but hold there must be a gift over upon its breach in order to make valid a condition of the same kind attached to a bequest of personalty. A few courts have held the condition inoperative where the beneficiary has probable cause for the contest of the will, while still others reject all these distinctions as arbitrary, and hold the condition valid and enforceable in all cases, whether the gift be of realty or personalty, and without regard to the cause or ground of contest. The latter view appears to be the one now generally held, and to our minds is most in consonance with reason and sound principle. * * * For ourselves we can not believe that public interests are in any manner prejudiced or the fundamental rights of any individual citizen in any manner violated by upholding a gift or bequest made on condition that the donee waive or release his claim to some other property right, or even upon condition that he observe some specified line of personal conduct not in violation of law, or contrary to good moral?. The donee is under no compulsion to accept the gift. He is free to elect. The question he has to decide is the ordinary one which arises in nearly every business transac tion — whether the thing offered him is worth the price demanded. The owner of property may give or refrain from giving. He may attach to his offer such lawful conditions as his reason, caprice, or malice may dictate, but he is dealing with his own, and the donee, who claims the benefit of the gift, must take it, if at all, upon the terms offered.”
See, also, Bradford v. Bradford, 19 Ohio St. 546 (2 Am. Rep. 419); In re Barandon’s Estate, 84 N. Y. Supp. 937 (41 Misc. Rep. 380); Estate of Hite, 155 Cal. 436 (101 Pac. 443, 21 L. R. A. [N. S.] 953, 17 Ann. Cas. 993); Estate of Miller, 156 Cal. 119 (103 Pac. 842, 23 L. R. A. [N. S.] 868); Massie v. Massie, 54 Tex. Civ. App. 617 (118 S. W. 219); Thompson v. Gaut, 14 Lea (Tenn.), 310; Donegan v. Wade, 70 Ala. 501; Hoit v. Hoit, 42 N. J. Eq. 388 (7 Atl. 856, 59 Am. Rep. 43); Kayhart v. Whitehead, 77 N. J. Eq. 12 (76 Atl. 241); 40 Cyc. p. 1705.
Our attention has been called to no case, and we have found none worthy of discussion, that does not recognize the validity of such provisions in wills. As we have noted, some of the cases limit its application. But there is a line of decisions, and they come from courts of high standing,' to which we many times look for guidance, but which in this instance we cannot follow, which recognize the rule but decline to enforce it unless the contest against the will is made by the beneficiary in bad faith; see Re Keenan, 188 Wis. 163 (205 N. W. 1001, 42 A. L. R. 836); Friend’s Estate, 209 Pa. St. 442 (58 Atl. 853, 68 L. R. A. 447); Tate v. Camp, 147 Tenn. 137 (245 S. W. 839, 26 A. L. R. 755) (somewhat modifying, we think, Thompson v. Gaut, supra); Rouse v. Branch, 91 S. C. 111 (74 S. E. 133, 39 L. R. A. [N. S.] 1160, Ann. Cas. 1913E, 1296). Of these cases the Pennsylvania case is most frequently referred to. It was decided by a divided court. In that case the court recognized the rule in the following language:
“It is not to be questioned that it was competent for the testatrix, possessing the absolute power to dispose of what she possessed just as she pleased, to impose the condition upon which the appellants rely in asking that their brother shall be deprived of all interest in her estate; and it is equally clear, in view of his attempt to annul her will, that the burden is upon him to show that he now ought to have what it gives him. Such conditions to testamentary gifts and devises are universally recognized'as valid, and, by some courts, enforcible without exception.”
But the court held that the rule was not applicable where the contest against the will was made in good faith and vas not “the mere vexatious act of a disappointed child or next of kin.” The other cases cited follow the same line of reasoning. We can not follow the logic, the result reached, or the policy of this line of reasoning. If the rule is that provisions of this character in wills are valid and enforceable, and practically every court speaking on the subject so holds, the rule is a rule of property and should be enforced irrespective of the good or bad faith of the contestant. Such provisions serve a wise purpose; they discourage a child from precipitating expensive litigation against the estate, and encourage and reward other children in their effort to sustain their parent’s disposition of his property if such contest is precipitated; they discourage family strife, they discourage litigation, and the law abhors litigation. Take the Friend Case as an example. Porter C. Friend, the son, • contested the will unsuccessfully, and carried his contest to the court of last resort. Having failed to set aside the will, he then insisted on his right to take under it notwithstanding his breach, of its conditions, basing such claim on the ground that his contest was in good faith and for that reason the rulo did not apply. That case likewise went to the Supreme Court, and that court sustained his contention, and the decision after two pieces of litigation expensive to the estate gave him that which his father, in a valid will, said he should not have if he breached the condition. The logic of such holding does not appeal to us.
South Norwalk Trust Co. v. St. John, 92 Conn. 168 (101 Atl. 961, Ann. Cas. 1918E, 1090), would not, if followed, help defendants. The Connecticut court recognized both the rule and the exceptions, but holds that, to bring the contestant within the exception, he must establish his good faith. In the instant case, there was no testimony taken on the subject of good faith. Whether properly or not we need not decide, but both parties seem to proceed on the theory that in the absence of any testimony good faith would be presumed. Whitehurst v. Gotwalt, 189 N. C. 577 (127 S. E. 582), is an interesting case. There was a clause similar to the one before us. The beneficiaries under the will divided into three camps, one to contest the will, another to actively procure its allowance, and the third to watch the contest from the side lines, to be neutral. The will was. sustained, and the court held that the contestants had forfeited their interest under the will and that those active in sustaining the will should take it and that the neutrals should take what the will gave and no more. Doubtless justice was administered.
. We hold unequivocally that provisions of the character of the one before us are valid and enforceable, that, they apply both to devises of real estate and ■.bequests of personal property, irrespective of ; whether there is a gift over or not, and likewise irrespective of the good or bad faith of the contest.
2. Under the will, Dr, E. G. Folsom was given “whatever office furniture and safe he may select at my sanitarium.” The executors were directed to rent testator’s office to Dr. Folsom at reasonable rent. He was named defendant in the bill together with all others mentioned in the will, many of whom were minors. He appealed from the decree, and here insists that inasmuch as he and plaintiff alone appeal, the decree of the court below is binding on all the other defendants, and that the $20,000 given the two sons should be divided equally between him. and plaintiff. We can not sustain this claim. Having in mind the entire will, the clause in question, and the situation of the parties, we are clearly of opinion that the testator, when he directed the division of the $20,000 “among the ones not contesting” his will, had in mind those who could have contested it but did not. To hold that the testator intended that this friend, to whom he gave some second-hand furniture, should take $10,000 given to a son and forfeited by him by his contest would overlook the cardinal rule of construction that the intent of the testator, if ascertainable, should control. Dr. Folsom was a stranger to the blood, had no interest in the estate, and could not have contested the will if he had so desired. We hold that the testator intended by his will that the forfeited sum should go to the ones who could have contested but who did not.
It follows that the portion of the decree appealed from will be reversed, and a decree will be here entered in accordance herewith. Plaintiff will have costs of both courts against defendants Arthur S. V. Brenton and Willis L. Brenton.
North, C. J., and Fead, Wiest, Clare:, McDonald, Potter, and Sharpe, JJ., concurred. | [
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] |
North, C. J.
Who is entitled to receive the war risk insurance of John A. Dempster, deceased, is the question here presented. When John A. Demp ster was about one year old his parents separated and he continued to live with his father about 11 years. At that time the father made arrangements for the son to live and board with other parties and went away to work in a mill. Within a year the mother consented to the adoption of John A. Dempster by Samuel Bell and Mary Bell, the latter being a sister of John A. Dempster’s father. This proceeding was consummated on the theory that John A. Dempster had been abandoned by his father; and the father is said to have had no knowledge of the adoption during the son’s lifetime. After an absence of about four years, the father returned, and from that time on until John A. Dempster entered the service in the World War in March, 1918, he and his father lived together. Upon entering the service John A. Dempster, who was then 27 years old, took out war risk insurance in the amount of $10,000, naming his adopted mother as a beneficiary to the extent of $5,Q00. The insured died in J une, 1918, without having married and intestate. The accruing monthly payments were made under this policy to his adopted mother until her death in May, 1928. Thereupon John’s father, Warren Dempster, filed a petition in the probate court of Lapeer county and was appointed administrator of John’s .estate, which consisted of the unpaid portion of the 240 monthly payments of insurance computed at present worth and amounting to $2,994. John’s mother had died in the meantime and the father claimed the insurance as the sole heir of his son. After Warren Dempster had been appointed administrator of John’s estate, George Bell and June Duprey, a son and daughter of John A. Dempster’s adopted mother, filed a petition in the probate court in which they pray that the appoint ment of Warren Dempster as administrator be set aside and that they be determined to be the lawful heirs of the estate of the deceased. Upon the hearing in the probate court and also upon the appeal taken in the circuit court, this claim on the part of George Bell and June Duprey was sustained; and Warren Dempster has brought the case to this court for review by writ of error.
It seems to be conceded in this case that at the date of John’s death the provisions of the Michigan statute were such that his estate would have gone . to his father. But in 1923 the legislature passed an act providing:
“All personal property of an adopted child, dying intestate, shall be distributed to the same persons and in the same manner as though such adopted child had been the natural child of its adopting parents.” Act No. 225, Pub. Acts 1923, §1, sub-sec. 8.
Act No. 45, Pub. Acts 1923, contains a similar •provision relative to real estate. Appellant claims that the change in the laws of descent and distribution of this State made in 1923 cannot affect the rights of the heirs of John A. Dempster, who died five years previous. On the other hand, it is the contention of the appellees that neither the insured nor the beneficiary named in his certificate had any vested rights in the unpaid portion of the insurance until the death of the beneficiary named, which occurred in 1928, and therefore the distribution of the estate must be controlled by the law as in force in May, 1928.
The appellees have cited and rely much upon Sutton’s Executor v. Barr’s Administrator, 219 Ky. 543 (293 S. W. 1075); but this case holds only that “under war risk life policy, heirs of insured in being at time of beneficiary’s death take amount remaining due on policy. ’ ’ The question with which we are concerned is which statute controls the determination of who are the heirs of John A. Dempster. Is it the statute that was in force at his death or the subsequently enacted statute which was in force at the death of the beneficiary? Under the war veterans act, 1924, § 303, as amended by act of congress, March 4, 1925, § 14 (U. S. Comp. Stat. § 9127%-303 [38 USCA § 514]) the unaccumulated installments at the death of the beneficiary computed at their present'worth were made payable to the estate of the insured soldier. There is an unbroken line of authorities which holds that, after the death óf the insured, the beneficiary has no vested rights in the unpaid installments provided for in the policy, and the validity of amendments retroactively affecting their rights have been uniformly upheld. In this respect war risk policies differ from the ordinary insurance contract. See White v. U. S. (D. C.), 299 Fed. 855; Helmholz v. Horst (C. C. A.), 294 Fed. 417; Cassarello v. U. S. (D. C.), 271 Fed. 486; and Salzer v. U. S. (C. C. A.), 300 Fed. 767.
The question now before us was squarely decided in Re Pivonka’s Estate, 202 Iowa, 855 (211 N. W. 246, 55 A. L. R. 570); and we quote with approval the following therefrom:
“ ‘The estate of the insured’ came into being as the estate of a deceased person (i. e., the insured soldier) instantly upon the death of such deceased person. The heirs of a decedent are, under the laws of this State, to be determined by ascertaining upon whom the law casts the estate immediately upon the death of the ancestor. * * * Under the laws of descent and distribution in this State, the persons entitled to a decedent’s estate, who, in case of in testacy, are his heirs, are to be determined as of the time of the decedent’s death. This is the only time recognized under the law for the purpose of ascertaining heirship. Congress undoubtedly had the power to have made disposition of the uncollected installments of wa-r-risk insurance upon the death of the first named beneficiary. It did so by providing that, upon the death of said beneficiary, the unaccumulated installments should be paid to the estate of the deceased soldier. It would, therefore, be disposed of as assets of the estate of said decedent, and as of the date of the death of said decedent. The heirs of said decedent entitled to said fund are to be ascertained at no other date than the date of the death of the soldier. This fixes a certain and inflexible guide for ascertaining heirship, and one that we have recognized as thoroughly established in the law. This being true, the distribution of the assets coming into the hands of the administrator of the estate of said decedent must be made by determining the heirs of the said decédent as of the date of the death of the said soldier.”
Holdings of like character will be found in Battaglia v. Battaglia (Tex. Civ. App.), 290 S. W. 296; In re Cross’ Estate, 147 Wash. 441 (266 Pac. 711), and Palmer v. Mitchell, 117 Ohio St. 87 (158 N. E. 187, 55 A. L. R. 566). In the Palmer Case a state of facts is presented which is very similar to that in the instant case, and the court said:
“We therefore arrive at the conclusion that the lump sum representing the present value of monthly installments thereafter payable was properly paid by the Federal government to the administrator of Basil (the insured soldier), and that the same should, in case of intestacy, be distributed to those who are entitled to his personal estate under the law as it existed at the time of Basil’s death.”
In determining that the personal property of an intestate, subject to the payment of his lawful debts, is to be distributed among those persons who were his heirs at the time of his death, the foregoing cases are in full accord with the Michigan decisions. Richmond v. Railway Co., 87 Mich. 374; Parks v. Norris, 101 Mich. 71.
The judgment of the circuit court is reversed, with costs to the appellant; and with direction to the circuit court to enter a judgment accordingly and to certify the same back to the probate court of Lapeer county.
Fead, Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fellows, J.
This bill is filed for an accounting, to restrain proceedings for the forfeiture of a land contract, and to adjust the rights of the parties under a land contract and a building contract. It will not be necessary to fully detail the facts until we take up the questions urged. For the present a general statement of what is involved will be sufficient. Plaintiffs owned a lot on Exeter avenue in the city of Detroit, which cost them $800. Defendant Woodliff agreed to erect a home on the lot on the cost-plus plan. Plaintiffs were to advance $1,200, and Woodliff was to finance the transaction through the Society of Savings. He was unable to do this, and an arrangement was made with defendant Hartson, a friend of Woodliff, and to whom Woodliff was then indebted. The lot was deeded to Hartson, and he gave back a contract to reconvey on payment of $4,200 in deferred payments. The transaction was clearly in the nature of a mortgage, and was in effect, and we are satisfied was understood by the parties to be, a construction loan. All parties were familiar with the deal, and it is fairly apparent that Hartson was to advance up to $3,000 from time to time as needed to pay for material and labor. Everyone seems to agree that the house was not fully completed. Defendant Woodliff insists he was not furnished sufficient money to complete the job, and plaintiffs insist more than sufficient was furnished, that they had to have a place to live in, and, there fore, moved in and put it into its present condition themselves. The questions we are asked to consider are: (1) The practice on reference to a commissioner; (2) laches; (3) estoppel; (4) the merits.
1. The trial judge heard the testimony of the parties and of a number of witnesses, and concluded that an accounting should be had. He referred the case to a circuit court commissioner; further testimony was taken; the commissioner accepted the accounts filed by defendants as correct; his report was approved by an ex parte order filed by defendants ’ counsel; exceptions were filed to the report. The matter having reached the attention of the trial judge, he severed the Gordian knot by directing the filing of a transcript of the testimony taken before the commissioner, and, considering that testimony, together with the testimony taken before himself, made an accounting and found a sum was due plaintiffs, and the sum so found became the amount of the personal decree against defendants. It is urged by defendants’ counsel that neither plaintiffs’ counsel nor the court followed Circuit Court Rules Nos. 51, 52, and 53. We are not satisfied that either or any of the parties have literally followed these rules. There was sufficient compliance — substantial compliance — to bring before the court the real question for final determination, i. e., had defendants been overpaid, and if so, how much.
2 and 3. These subjects will be considered together. There was considerable delay in bringing this action, during which time plaintiffs made their payments regularly without protest to defendant Harts on. It is urged that the delay in bringing the action prevents recovery against both defendants, and the payments without protest of the monthly sums fixed in the contract works estoppel as to de fendant Hartson. It should be borne in mind that the action is not for rescission, but for relief on the ground of breach of contract, and is brought within the limit fixed by the statute. Attention should also be called to the fact that plaintiffs have, by their monthly payments, paid to defendant Hartson more money than he claims to have advanced. It is really difficult to perceive how the delay in bringing- the action and the constant payments made on the contract has injured either defendant. The record established that the father of defendant Woodliff is an attorney and drew the papers for the parties; that he was the only attorney consulted by plaintiffs until just before this bill was filed. The following testimony given by Mrs. Forrest Gifford is not disputed :
“Between July, 1920, and the conversation with Hartson in 1925-had a hundred or more conversations with Richard S. Woodliff concerning the finishing of the house; I demanded the house be finished; he said that we were cheated; he was ashamed of the way his son'had acted; he said he would use his utmost influence with his son to get the house finished ; to see we had a fair deal.
“Q. Did he ever finish it?
“A. No.
“Q. Or do anything with it after July?
“A. No.
“Q. After you had gone along you went ahead to make payments?
“A. Yes.
“Q. Why?
“A. R. S. Woodliff’s influence that he would get the house finished. We consulted no attorney except Richard S. Woodliff who examined the abstract in this deal.”
The record discloses that the Woodliffs and defendant Hartson are intimate friends, friends of a lifetime; before this transaction Hartson was aiding the son in financing his building operations; the'son was then in his debt, for how much does not appear; they spent some time together in Florida. We are satisfied that Hartson knew all about the transaction, made a construction loan, and knew that plaintiffs understood, at least tacitly, that he was to advance money only as it was earned under the terms of the contract. Manifestly, he could not use this mortgage given by plaintiffs to secure the payment of any other than their indebtedness to him; with the knowledge he had he could not use it for the benefit of defendant Woodliff in the discharge of his antecedent debt. Plaintiffs under the facts appearing in this record had the right to insist that they be called upon under the instruments which together constituted a mortgage, a construction loan, only for such sums as had been advanced for their benefit, and they had not lost such right either by laches or estoppel.
4. Both sides called contractors and builders who had examined the house and who gave their estimates of the actual amount of cash necessarily expended for work and material up until the defendant Woodliff breached his contract and quit the job. It is patent that the trial judge accepted the testimony and figures of Benjamin Doyle, a builder of 16 years’ experience, as being the most reliable. The record, we think, justifies the confidence reposed in his figures. He impresses us as fair, honest, and as speaking from authority. He hunted up his actual invoices for the year the work was done to get the actual unit prices. He found the actual prices paid for labor. He was entirely disinterested, and at least one of defendants’ experts spoke in the highest terms of him. He fixed the sum expended as $2,658.07. Making due allowance for interest earned, th,e trial judge fixed the amount due plaintiffs on the day the decree was entered at the sum of $540. It is not pointed out that the computation is inaccurate if Mr. Doyle’s figures are accepted, as we think they should be.
"We perceive no good reason for disturbing the decree appealed from, and it will stand affirmed, with costs.
North, C. J., and Fead, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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Fead, J.
Decree of divorce was rendered in favor of plaintiff, approved in writing as to form and substance by defendant’s counsel, dated as of December 6, 1927, and filed December 23d. The calendar entries show stenographer’s certificate and notice of appeal filed and appeal fee paid December 23d. No extension of time to settle the case was ordered. Defendant’s counsel gave notice of settlement for January 16, 1928, and the record was signed by the circuit judge January 19th.
Plaintiff moved in this court to dismiss the appeal on the ground that the circuit judge had lost jurisdiction to settle and sign the case, more than 20 days having elapsed after entry of decree and no extension of time having been ordered within the 20-day period. Walker v. Wayne Circuit Judge, 226 Mich. 393.
By affidavit, defendant’s counsel makes claims that the decree was entered in vacation, he received no notice of its filing, and that he sent claim of appeal to the clerk and gave notice to opposing counsel on December 21st, before the decree was filed. He contends the case was settled in time because of the provision of 3 Comp. Laws 1915, § 13754:
‘ ‘ That when any order or decree is entered in vacation, the time for taking an appeal shall be computed from the time of the service of notice of such decree as provided by law.”
When a decree is entered in vacation, the losing party need not wait for service of written notice of entry, but may begin his appeal forthwith. When he does, he waives notice of entry of decree and must abide by his own proceedings. Stockwell v. Eaton Circuit Judge, 172 Mich. 166. The notice of appeal became effective when it was filed with the clerk. The official record showed it was filed on the same day and after entry of decree. This fixed the time from which all subsequent proceedings on appeal must date.
The circuit judge had no jurisdiction to sign the case, this court has no appellate jurisdiction in the matter, and the appeal is dismissed, with costs to plaintiff.
North, C. J., and Fellows, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred. | [
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